Javellana VS Exec. Sec PDF

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.
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.
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.
No. L-36236. March 31, 1973.

EDDIE B. MONTECLARO, [personally and in his capacity as
President of the National Press Club of the Philippines],
petitioner, vs. THE EXECUTIVE SECRETARY, THE SECRETARY
OF PUBLIC INFORMATION, THE AUDITOR GENERAL, THE BUDGET
COMMISSIONER & THE NATION-
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al Treasurer, respondents.
No. L-36283. March 31, 1973.

NAPOLEON V. DILAG, ALFREDO SALAPANTAN, JR., LEONARDO
ASODISEN, JR., and RAUL M. GONZALEZ, petitioners, vs. THE
HONORABLE EXECUTIVE SECRETARY, THE HONORABLE
SECRETARY OF NATIONAL DEFENSE, THE HONORABLE BUDGET
COMMISSIONER, and THE HONORABLE AUDITOR GENERAL,
respondents.
Constitutional law; Doctrine of Separation of powers; Six

Justices agree that the issue of the validity of Proclamation 1102
(announcing the ratification of the proposed Constitution) is a
justiciable question; four Justices differ.—On the first issue
involving the political-question doctrine, Justices Makalintal,
Zaldivar, Castro, Fernando, Teehankee and Chief Justice
Concepcion, or six (6) members of the Court, hold that the issue of
the validity of Proclamation 1102 presents a justiciable and non-
justiciable question. Justices Makalintal and Castro did not vote
squarely on this question, but, only inferentially, in their
discussion of the second question. Justice Barredo qualified his
vote, stating that “inasmuch as it is claimed 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 affirmative, 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.”
Same; Amendments; Six Justices agree that the Constitution
proposed by the 1971 Constitutional Convention has not been
ratified validly conformably to the applicable constitutional and
statutory provisions; one Justice qualifies his vote while the three
others dissent.—On the second question of validity of the
ratification, Justices Makalintal, Zaldivar, Castro, Fernando,
Teehankee and Chief Justice Concepcion, or six (6) members of
the Court also hold that the Constitution proposed by the 1971
Constitutional Convention was not validly ratified in accordance
with Article XV, section 1 of the 1935 Constitution, which
provides only one way for ratification, i.e., “in an election or
plebiscite held in accordance with law and participated in only by
qualified and duly registered voters.”
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32 SUPREME COURT REPORTS ANNOTATED
Javellana vs. The Executive Secretary

Justice Barredo qualified his vote while 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.
Same; Same; Four Justices hold that the proposed
Constitution has been acquiesced in by the people; two Justices
hold that the people have not expressed themselves; one Justice
thinks the doctrine of “Constitution by acquiescence” inapplicable;
while the three other justices agree that they lack the knowledge or
competence to make a determination.—On the third question of
acquiescence by the Filipino people in the aforementioned
proposed Constitution, no majority vote has been reached by the
Court.
Four (4) of its members, namely, Justices Barredo, Makasiar,
Antonio and Esguerra hold that “the people have already accepted
the 1973 Constitution.” Two (2) members of the Court, namely,
Justice Zaldivar and Chief Justice Concepcion hold that there can
be no free expression, and there has even been no expression, by
the people qualified to vote all over the Philippines, of their
acceptance or repudiation of the proposed Constitution under
Martial Law. Justice Fernando thinks that the doctrine of
“Constitution by acquiescence” cannot be applied at this time
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.”
Remedial law; Certiorari; Six Justices voted to dismiss the
petitions while the four others voted to give them due course.—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 “the effectivity
of the said Constitution, in the final analysis, is the basic and
ultimate question posed by these cases to resolve which
considerations other than judicial, and therefore beyond the
competence of this Court, are relevant and unavoidable.” Four (4)
members of the Court, namely, Justices Zaldivar, Fernando,
Teehankee and Chief Justice Concepcion voted to deny
respondents’ motion to dismiss and to give due course to the
petitions.
Constitutional law; Amendments; Four Justices hold that the
new Constitution of 1973 is in force; four Justices did not vote on
the question; while the remaining two Justices voted that the
proposed
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VOL. 50, MARCH 31, 1973 33
Constitution is not in force.—On the fifth question of whether the

new Constitution of 1973 is in force: Justices Barredo, Makasiar,
Antonio and Esguerra hold that it is in force by virtue of the
people’s acceptance thereof; 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 Justice Zaldivar and Chief
Justice Concepcion 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.
Concepcion, C.J., dissenting:
Constitutional law; Courts; Only a majority of all the

members of the Supreme Court is required to annul an executive
proclamation.—There is nothing either in the Constitution or in
the Judiciary Act requiring the vote of eight Justices to nullify a
rule or regulation or an executive order issued by the President. It
is very significant that in the previous drafts of section 10, Article
VIII of the Constitution, “executive order” and “regulation” were
included among those that required for their nullification the vote
of two thirds of all the members of the Court. But “executive
order” and “regulation” were later deleted from the final draft
(Aruego, The Framing of the Philippine Constitution, Vol. 1, pp.
495, 496), and thus a mere majority of six members of this Court is
enough to nullify them. x x x An executive proclamation has no
more than “the force of an executive order,” so that, for the
Supreme Court to declare such proclamation unconstitutional,
under the 1935 Constitution, the same number of votes needed to
invalidate an executive order, rule or regulation — namely, six (6)
votes — would suffice.
Same; Same; The question of the effectivity of the new
Constitution should be determined by applying the provisions of
the former Constitution.—As regards the applicability of the
provisions of the proposed new Constitution, approved by the
1971 Constitutional Convention, in the determination of the
question whether or not it is now in force, it is obvious that such
question depends upon whether or not the said new Constitution
has been ratified in accordance with the requirements of the 1935
Constitution, upon the authority of which said Constitutional
Convention was called and approved the proposed Constitution. It
is well settled that the matter of ratification of an amendment to
the Constitution should be settled applying the provisions of the
Constitution in force at the time of the alleged ratification of the
old
34
Constitution.
Same; Doctrine of Separation of Powers; The validity of
Proclamation 1102 does not partake of the nature of a political,
and, hence, nonjusticiable question.—Referring to the issue on
whether the new Constitution proposed by the 1971
Constitutional Convention has been ratified in accordance with
the provisions of Article XV of the 1935 Constitution is a political
question or not, I do not hesitate to state that the answer must be
in the negative. Indeed, such is the position taken by this Court,
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.
Same; Same; The issue of whether the exercise of a
Constitutional power has met its conditions is justiciable.—When
the grant of power is qualified, conditional or subject to
limitations, the issue on whether or not the prescribed
qualifications or conditions have been met, or the limitations
respected, is justiciable or non-political, the crux of the problem
being one of legality or validity of the contested act, not its
wisdom. Otherwise, said qualifications, conditions or limitations
— particularly those prescribed or imposed by the Constitution —
would be set at naught. What is more, the judicial inquiry into
such issue and the settlement thereof are the 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.
Same; Amendments; Elections; The right to vote is conferred
by the Constitution and the same may not be increased or
diminished.— Article V of the Constitution was meant to be and
is a grant or conferment of a right to persons possessing the
qualifications and none of the disqualifications therein mentioned,
which in turn, constitute a limitation of or restriction to said
right,
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VOL. 50, MARCH 31, 1973 35
and cannot accordingly, be dispensed with, except by

constitutional amendment. Obviously, every such constitutional
grant or conferment of right is necessarily a negation of the
authority of Congress or of any other branch of the government to
deny said right to the subject of the grant — and, in this sense,
only, may the same partake of the nature of a guarantee. But, this
does not imply, not even remotely, that the Fundamental Law
allows Congress or anybody else to vest in those lacking the
qualifications and having the disqualifications mentioned in the
Constitution the right of suffrage.
Same; Same; Same; The votes of persons less than 21 years of
age renders the proceedings in the Citizens assemblies void.—It is
thus clear that the proceedings held in such Citizens’ Assemblies
were fundamentally irregular, in that persons lacking the
qualifications prescribed in section 1 of Art. V of the Constitution
were allowed to vote in said assemblies. And, since there is no
means by which the invalid votes of those less than 21 years of
age can be separated or segregated from those of the qualified
voters, the proceedings in the Citizens’ Assemblies must be
considered null and void.
Same; Same; Same; Viva voce voting for the ratification of the
Constitution is void.—Article 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 official ballots prepared
and furnished by the Government and secrecy in the voting, with
the advantage of keeping records that permit judicial inquiry,
when necessary, into the accuracy of the election returns. And the
1935 Constitution has been so consistently interpreted in all
plebiscites for the ratification 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.
Same; Same; Commission on Elections; The plebiscite on the
Constitution, not having been conducted under the supervision of
the Comelec is void.—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. The procedure therein mostly followed
is such that there is no reasonable means of checking the accuracy
of the returns filed by the officers who conducted said plebiscites.
This is another patent violation of
36
Art. X of the Constitution which can be hardly sanctioned. And,

since the provisions of this article form part of the fundamental
scheme set forth in the 1935 Constitution, as amended, to ensure
the “free, orderly, and honest” expression of the people’s will, the
aforementioned violation thereof renders null and void the
contested proceedings or alleged plebiscite in the Citizens’
Assemblies, insofar as the same are claimed to have ratified the
revised Constitution proposed by the 1971 Constitutional
Convention.
Same; Same; The Presidential proclamation of the ratification
of the proposed Constitution, when assailed, may be inquired into.
—A declaration to the effect that a given amendment to the
Constitution or revised or new Constitution has been ratified by a
majority of the votes cast therefor, may be duly assailed in court
and be the object of judicial inquiry, indirect proceedings therefor
— such as the cases at bar — and the issue raised therein may
and should be decided in accordance with the evidence presented.
Same; Same; Proclamation 1102 is not an evidence of
ratification.—Inasmuch as Art. X of the 1935 Constitution places
under “exclusive” charge of the Commission on Elections, “the
enforcement and administration of all laws relative to the conduct
of election,” independently of the Executive, and there is not even a
certification by the Commission in support of the alleged results of
the citizens’ assemblies relied upon in Proclamation No. 1102 —
apart from the fact that on January 17, 1973 neither the alleged
president of the Federation of Provincial or City Barangays nor
the Department of Local Governments had certified to the
President the alleged result of the citizens’ assemblies all over the
Philippines — it follows necessarily that, from a constitutional
and legal viewpoint, Proclamation No. 1102 is not even prima
facie evidence of the alleged ratification of the proposed
Constitution.
Same; Same; The citizens assemblies did not adopt 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.
Same; Same; The acts of the executive department under
martial law cannot be construed as an acquiescence to the
proposed Constitution.—I am not prepared to concede that the
acts of the officers and offices of the Executive Department, in line
with Proclamation No. 1102, connote a recognition thereof or an
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VOL. 50, MARCH 31, 1973 37
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.
Same; Same; A department of the Government cannot
“recognize” its own acts.—Then again, a given department of the
Government cannot generally be said to have “recognized” its own
acts. Recognition normally connotes the acknowledgment by a
party of the acts of another. Accordingly, when a subordinate
officer or office of the Government complies with the commands of
a superior officer or office, under whose supervision and control he
or it is, the former merely obeys the latter. Strictly speaking, and
from a legal and constitutional viewpoint, there is no act of
recognition involved therein. Indeed, the lower officer or office, if
he or it acted otherwise, would just be guilty of insubordination.
Same; Same; Individual acts of recognition by members of
Congress do not constitute congressional recognition.—Individual
acts of recognition by members of our legislature, as well as of
other collegiate bodies under the government, are invalid as acts
of said legislature or bodies, unless its members have performed
said acts in session duly assembled, or unless the law provides
otherwise, and there is no such law in the Philippines. This is a
well-established principle of Administrative Law and of the Law
of Public Officers, and no plausible reason has been adduced to
warrant departure therefrom.
Same; Same; The compliance by the people with the orders of
the martial law government does not constitute acquiescence to the
proposed Constitution.—Neither am I prepared to declare that the
people’s inaction as regards Proclamation No. 1102, and their
compliance with a number of Presidential orders, decrees and/or
instructions — some or many of which have admittedly had
salutary effects — issued subsequently thereto amounts,
constitutes or attests to a ratification, adoption or approval of said
Proclamation No. 1102. The intimidation is there, and inaction or
obedience of the people, under these conditions, is not necessarily
an act of conformity or acquiescence.
Same; Same; The “enrolled bill” rule does not apply to the acts
of the President in reference to powers he does not possess.—As
38
regards the applicability to these cases of the “enrolled bill” rule,

it is well to remember that the same refers to a document certified
to the President — for his action under the Constitution — by the
Senate President and the Speaker of the House of
Representatives, and attested to by the Secretary of the senate
and the Secretary of the House of Representatives, concerning
legislative measures approved by the two House of Congress.
Whereas, Proclamation 1102 is an act of the President declaring
the results of a plebiscite on the proposed Constitution, an act
which Article X of the 1935 Constitution denies the executive
department of the Government.
Remedial law; Certiorari; Due course should be granted to the
petitions there being more than prima facie showing of non-
compliance with the Constitution.—In all other respects and with
regard to the other respondents in said case, as well as in cases L-
36142, L-36164, L-36236 and L-36283, my vote is that the
petitions therein should be given due course, there being more
than prima facie showing that the proposed Constitution has not
been ratified 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 m 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.
Makalintal and Castro, JJ.:
Constitutional law; Inquiry as to whether or not the act of the

Citizens Assemblies as certified and proclaimed by the President
was an act of ratification lies within the power of judicial review.
—Such a finding [a finding that the ratification of the draft
Constitution by the Citizens Assemblies, as certified by the
President m Proclamation No. 1102, was not in accordance with
the constitutional and statutory procedure laid down for the
purpose] is on a matter which is essentially justiciable, that is,
within the power of this Court to inquire into. It imports nothing
more than a simple reading and application of the pertinent
provisions of the 1935 Constitution of the Election Code and of
other related laws and otiicial acts. No question of wisdom or of
policy is involved.
Same; Procedure of ratification followed not in accordance
with the 1935 Constitution and the related statutes; Reasons.—
There should be no serious dispute as to the fact that the manner
in which
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VOL. 50, MARCH 31, 1973 39
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, lection 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.
Same; Same; Same.—The Citizens Assemblies were not
limited to qualified, let alone registered, voters, but included all
citizens from the age of fifteen, and regardless of whether or not
they were illiterates, feeble-minded, or ex-convicts — these being
the classes of persons expressly disqualified from voting by
Section 102 of the Election Code. In short, the constitutional and
statutory qualifications were not considered in the determination
of who should participate. No official ballots were used in the
voting; it was done mostly by acclamation or pen show of hands.
Secrecy, which is one of the essential features of the election
process, was not therefore observed. No set of rules for counting
the votes or of tabulating them and reporting the figures was
prescribed or followed. The Commission on Elections, which is the
constitutional body charged with the enforcement and
administration of all laws relative to the conduct of elections, took
no part at all, either by way of supervision or in the assessment of
the results.
Same; Matter of whether or not the Constitution has become
effective because of popular acquiescence beyond the domain of
judicial review.—Under a regime of martial law, with the free
expression of opinions through the usual media vehicles
restricted, we have no means of knowing, to the point of judicial
certainty, whether the people have accepted the Constitution. In
any event, we do not find the issue decisive insofar as our vote in
these cases is concerned. To interpret the Constitution — that is
judicial. That the Constitution should be deemed in effect because
of popular acquiescence — that is political, and therefore beyond
the domain of judicial review.
Barredo, J.:
Constitutional law; Validity of a law presumed until otherwise

declared unconstitutional.—With full consciousness of my
limitations but compelled by my sense of duty and propriety to
straighten out this grave issue (on whether the Court is acting as
an 11-man Court under the 1935 Constitution or as a 15-man
Court
40
under the 1973 Constitution) 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 first instance accord due respect to
the acts of the other departments, as otherwise, the smooth
running of the government would have to depend entirely on the
unanimity of opinions among all its departments, which is hardly
possible, unless it is assumed that only the judges have the
exclusive prerogative of making and enforcing the law, aside from
being its sole interpreter, which is contrary to all norms of
juridical and political thinking. To my knowledge, there is yet no
country in the world that has recognized judicial supremacy as its
basic governmental principle, no matter how desirable we might
believe the idea to be. ... 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 put from Malacafiang under the authority of said
Constitution. ... Moreover, what makes the premise of
presumptive validity preferable and] imperative, is that We are
dealing here with a whole Constitution that radically modifies 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.
Same; When Article XV of the 1935 Constitution not complied
with.—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,
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VOL. 50, MARCH 31, 1973 41
albeit I held that nonetheless, the Constitution of 1973 is already

in force.
Same; Result of referendum is as the President stated.—In my
opinion in those cases, the most important point I took into
account was that in the face* of the Presidential certification
through Proclamation 1102 itself that the New Constitution has
been approved by a majority of the people and having in mind
facts of general knowledge which I have 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 figures 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 am not prepared to discredit entirely
the declaration that there was voting and that the majority of the
votes were in favor of the New Constitution. If in fact there were
substantially less than 14 million votes of approval, the real
figure, in my estimate, could still be significant enough and
legally sufficient to serve as basis for a valid ratification.
Same; Referendum through Citizens Assemblies not mere
consultative.—It is contended, however, that the understanding
was that the referendum among the Citizens Assemblies was to
be in the nature of a loose consultation and not an outright
submission for purposes of ratification. I can see that at the,
outset, when the first set of questions was released, such may
have been the idea. It must not be lost sight of, however, that if
the newspaper reports are to be believed, and I say this only
because petitioners would consider the newspapers as the official
gazettes of the administration, the last set of six questions were
included precisely because the reaction to the idea of mere
consultation was that the people wanted greater direct
participation, thru the Citizens Assemblies, in decision-making
regarding matters of vital national interest. Thus, looking at
things more understandingly and realistically, the two questions
emphasized by counsel, namely, (1) Do 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.
Same; Results of referendum valid.—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
42
decisions and more resolute action. After all voting on a whole

new constitution is different from voting on one, two or three
specific proposed amendments, the former calls for nothing more
than a collective view of all the provisions of the whole charter, for
necessarily, one has to take the good together with the bad in it. It
is rare for anyone to reject a constitution only because of a few
specific objectional 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.
Same; Referendum not in strict compliance with 1935
Constitution.— At this juncture, I think it is fit to make it clear
that I am not trying to show that the result of the referendum
may be considered as sufficient basis for declaring that the New
Constitution has been ratified in accordance with the amending
clause of the 1935 Constitution. I reiterate that in point of law, I
find neither strict nor substantial compliance. The foregoing
discussion is only to counter, if I may, certain 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.
Same; 1973 Constitution already adopted by the people.—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.
Same; Ruling in Tolentino vs. Comelec (U SCRA 702)
distinguished from case at bar.—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
43
VOL. 50, MARCH 31, 1973 43
requirements of Article XV thereof. What is more, that decision

asserted judicial competence to inquire into the matter of
compliance or noncompliance as a justiciable matter. I still believe
in the correctness of those views and I would even add that I
sincerely feel that it reflects the spirit of the said constitutional
provision. Without trying to strain any point, however, I submit
the following considerations in the context of the peculiar
circumstances of the cases now at bar, whicn are entirely different
from those in the backdrop of the Tolentino rulings I have
referred to:
1. Consider that in the present case what is involved is not
just an amendment of a particular provision of an existing
Constitution; here, it is, as I have discussed earlier above, an
entirely new Constitution that is being proposed. This important
circumstance makes a great deal of difference.
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.
3. 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 1935 Constitution
on January 22, 1973 for the regular session.
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 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
significant 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
44

political right to choose the fundamental charter by which their
lives, their liberties and their fortunes shall be safeguarded
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, oftweferred to above, in the Plebiscite
Cases — that is, as an extraconstitutional 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.
Makasiar, J.:
Constitutional law; Issue as to the validity of Proclamation

No. 1102 political and not justiciable; Reasons.—Assuming,
without conceding, that the procedure for ratification prescribed
in Article XV of the 1935 Constitution was not 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
ratification 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 definition of a
political question enunciated in Tañada, et al. vs. Cuenco, et al.
(103 Phil. 1051).
Same; Acceptance by the people of the 1973 Constitution cures
any infirmity in its submission; Reason.—The legality of the
submission is no longer relevant; because the ratification,
adoption and/or acquiescence by the people cures any infirmity in
its submission or any other irregularities therein which are
deemed mandatory before submission as they are considered
merely directory after such ratification or adoption or
acquiescence by the people.
Esguerra, J.:
Constitutional law; Issue as to whether or not Constitution of

November 30, 1972 ratified in accordance with the amending
process prescribed by the 1935 Constitution and other related
statutes highly
45
VOL. 50, MARCH 31, 1973 45
political and not justiciable.—Certainly, the invalidation of

Proclamation No. 1102 and Presidential Decrees Nos. 86 and 86-A
by this Court would smack of plain political meddling which is
described by the United States Supreme Court as “entering a
political thicket” in Colgrove vs. Green, 328 U.S. p. 549. At this
juncture it would be the part of wisdom for this Court to adopt the
proper attitude towards political upheavals and realize that the
question before Us is political and not fit for judicial
determination.
Same; Political question explained.—For a political question
is one entrusted to the people for judgment in their sovereign
capacity (Tanada 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.”
Zaldivar, J., dissenting and concurring:
Constitutional law; Meaning of political question.—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.
Same; The courts have the power to determine whether the
acts of the Executive are authorized by the Constitution and the
laws.—It is a settled doctrine that every officer under a
constitutional government must act according to law and subject
to its restrictions, and every departure therefrom, or disregard
thereof, must subject him to the restraining and controlling power
of the people, acting through the agency of the judiciary. It must
be remembered that the people act through the courts, as well as
through the executive or the legislature. One department is just
as representative as the other, and the judiciary is the
department which is charged with the special duty of determining
the limitations which the law places upon all official actions.
Same; Courts have power to determine validity of means
adopted to change the Constitution.—It is in the power of this
Court, as the ultimate interpreter of the Constitution, to
determine the
46
validity of the proposal, the submission, and the ratification of

any change in the Constitution. Ratification or non-ratification of
a constitutional amendment is a vital element in the procedure to
amend the constitution, and I believe that the Court can inquire
into, and decide on, the question whether or not an amendment to
the Constitution, as in the present cases, has been ratified in
accordance with the requirements prescribed in the Constitution
that was amended.
Same; “Election” contemplated in Article XV of the
Constitution is an election conducted under the election law.—The
election contemplated in said constitutional provision is an
election held in accordance with the provisions of the election law,
where only the qualified and registered voters of the country
would cast their votes, where official ballots prepared for the
purpose are used, where the voters would prepare their ballots in
secret inside the voting booths in the polling places established in
the different election precincts throughout the country, where the
election is conducted by election inspectors duly appointed in
accordance with the election law, where the votes are canvassed
and reported in a manner provided for in the election law. It was
this kind of election that was held on May 14, 1935, when the
Constitution of 1935 was ratified; on April 30, 1937, when the
amendment to the Constitution providing for Women’s Suffrage
was ratified; on June 18, 1940, when the 1940 Amendments to the
Constitution were ratified; on March 11, 1947 when the Parity
Amendment to the Constitution was ratified; and on November
14, 1967 when the amendments to the Constitution to increase
the number of Members of the House of Representatives and to
allow the Members of Congress to run in the elections for
Delegates to the Constitutional Convention of 1971 were rejected.
Same; Votes cast in the barangays not the votes contemplated
in Section 1 of Article XVof the 1935 Constitution.—It is my view
that the President of the Philippines cannot by decree order the
ratification of the proposed 1972 Constitution thru a voting in the
barangays and make said result the basis for proclaiming the
ratification of the proposed Constitution. It is very clear, to me,
that Proclamation 1102 was issued in complete disregard or in
violation, of the provisions of Section 1 of Article XV of the 1935
Constitution.
Same; Same; Manner of voting by the barangays subject to
judicial notice.—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
47
VOL. 50, MARCH 31, 1973 47
consider the votes in the barangays as expressive of the popular

will and use them as the basis in declaring whether a
Constitution is ratified or rejected is to resort to a voting by
demonstrations, which would mean the rule of the crowd, which is
only one degree higher than the rule by the mob.
Same; The fact that a majority voted for the amendment of the
Constitution, unless the vote was taken as provided by the
Constitution, is not sufficient to make a change in that instrument.
—In the cases now before this Court, the fact that the voting in
the citizens assemblies (barangays) is not the election that is
provided for in the 1935 Constitution for the ratification of the
amendment to the Constitution, the affirmative votes cast in
those assemblies cannot be made the basis for declaring the
ratification of the proposed 1972 Constitution, in spite of the fact
that it was reported that 14,976,561 members of the citizens
assemblies voted for the 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 be upheld.
Same; Voting in the barangays was not freely exercised
because of the existence of martial law.—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 my order of December 17, 1972 temporarily suspending
the effects of Proclamation No. 1081 for the purpose of free and
open debate on the proposed constitution, be suspended in the
meantime.'
Same; Meaning of “people” in the Constitution.—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.”
Same; The term “election” in Article XV of the Constitution
should be taken in its historical perspective.—It can safely be said
that when the framers of the 1935 Constitution used the word
“election” in Section 1 of Article XV of the 1935 Constitution they
had no other idea in mind except the elections that were
periodically
48
held in the Philippines for the choice of public officials prior to the
drafting of the 1935 Constitution, and also the “election”
mentioned in the Independence Act. It is but logical to expect that
the framers of the 1935 Constitution would provide a mode of
ratifying an. amendment to that Constitution itself.
Same; It cannot be said that the people have accepted the 1978
Constitution.—What appears to me, however, is that practically it
is only the officials and employees under the executive
department of the Government who have been performing their
duties apparently in observance of the provisions of the new
Constitution.... True it is, that 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 office; and of
the 92 members of the House of Representatives, only 22 took
their oath of office. This is an indication that only a small portion
of the members of Congress had manifested their acceptance of
the new Constitution.
Same; Acceptance of Constitution is manifested by oath of
office.—It is in the taking of the oath of office where the affiant
says that he swears to “support and defend the Constitution” that
the acceptance of the Constitution is made manifest. I agree with
counsel for petitioners in L-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
definitely 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.
Same; Presidential declaration that government is not a
revolutionary government subject to judicial notice.—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
49
VOL. 50, MARCH 31, 1973 49
has reason to be happy because, according to the President, we

still have a constitutional government.
Same; Congress may still call a plebiscite.—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 ratification or rejection.
Fernando, J., dissenting:
Constitutional law; When power of judicial review should be

exercised.—In the United States as well 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 cannot nullify
the policy of others, they are incapable of fashioning their own
solutions for social problems.” Nonetheless, as was stressed by
Professors Black, and Murphy, a Supreme Court by the
conclusion it reaches and the decision it renders does not merely
check the coordinate branches, but also by its approval stamps
with legitimacy the action taken. Thus, in affirming constitutional
supremacy, the political departments could seek the aid of the
judiciary.
Same; Same; Whether there has been deference to the
provisions of the Constitution is a judicial question.—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, Tolentino and Planas cases
speak uneauivocally to that effect. Nor is it a valid objection to
this conclusion that what was involved in those cases was the
legality of the submission and not ratification, for from the very
language of the controlling article, the two vital steps are proposal
and ratification, which as pointed out in Dillon v. Gloss (256 US
368) “cannot be treated as unrelated acts, but as succeeding steps
in a single endeavor.” Once an aspect thereof is viewed as judicial,
there would be no justitification for considering the rest as devoid
of that character.
Same; The Philippines has a tradition of judicial activism.—
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
50
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.
Same; Nature of judicial function.—It suffices to state that
what elicits approval on the part of our people of a judiciary ever
alert to inquire into alleged breaches of the fundamental law is
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 mind
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 that it is satisfied with an empiricism untroubled by
the search for jural consistency and rational coherence. A balance
has to be struck. So juridical realism requires. Once allowance 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 fidelity to the constitutional requirements. 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.
Same; Requirements of the Constitution for its amendment
was not complied with.—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, 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 no inacc urate, then it cannot be confidently asserted
that there was such compliance. It would be to rely on conjectural
assumptions that did founder on the rock of the undisputed facts.
Any other conclurion would, for me, require an interpretation that
borders on the s rained. So it has to be if one does not lose sight of
how the article on amendments is phrased. A word, to paraphrase
Justice Holmes may not be crystal, transparent and unchanged,
but it is not, to borrow from Learned Hand, that eminent jurist, a
rubber band either. It would be unwarranted in my view to assert
that the requirements of the 1935 Constitution have been met.
51
VOL. 50, MARCH 31, 1973 51

Same; Same.—Even if the assumption be indulged in that
Article XV is not phrased in terms too clear to be misread, so that
this Court is called upon to give meaning and perspective to what
could be considered words of vague generality, pregnant with
uncertainty, still whatever obscurity it possesses is illumined
when the light of the previous legislation is thrown on it. In the
first Commonwealth Act, 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.” Then came the statute, calling for the
plebiscite on the three 1940 amendments providing for a
bicameral Congress or a Senate and a House of Representatives to
take the place of a unicameral National Assembly, reducing the
term of the President to four years but allowing this re-election
with the limitation that he cannot serve for more than eight
consecutive years, and creating an independent Commission on
Elections. Again it was expressly provided that the election “shall
be conducted in conformity with the provisions of the Election
Code insofar as the same may be applicable.” The approval of the
present parity amendment was by virtue of a Republic Act which
specifically made applicable the then Election Code. There is a
similar provision in the legislation which in contemplation of the
1971 Constitutional Convention provided for increase of the
membership of the House of Representatives, to a maximum of
one hundred eighty, and the eligibility of senators and
representatives to become members of such constitutional
convention without forfeiting their seats. Thus, the consistent
course of interpretation followed by the legislative branch is most
persuasive, if not controlling. The restraint thus imposed would
set limits to the Presidential action taken, even on the
assumption that either as an agent of the Constitutional
Convention or under his martial law prerogatives, he was not
devoid of power to specify the mode of ratification. On two vital
points, who can vote and how they register their will, Article XV
had been given a definitive construction.
Same; Petitions in the case at bar should not be dismissed.—
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 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
52
that votes are cast by individuals with their personal concerns

uppermost in mind, worried about their immediate needs and
captive to their existing moods. That is inherent in any human
institution, much more so in a democratic polity. Nor is it open to
any valid objection because in the final analysis the state exists
for the individuals who in their collectivity compose it. Whatever
be their views, it is entitled to respect. It is difficult for me,
however, at this stage to feel secure in the conviction that they did
utilize the occasion afforded to give expression to what was really
in their hearts. This is not to imply that such doubt could not be
dispelled by evidence to the contrary. If the petitions be
dismissed, however, then such opportunity is forever lost.
Same; A decision in favor of the petitioners need not be
immediately executory.—It might be asked though, suppose the
petitioners should prevail? What then? Even so, the decision of
this Court need not be executory right away. Such a disposition of
a case before this Court is not novel. That was how it was done in
the Emergency Powers Act controversy. Once compliance is had
with the requirements of Article XV of the 1935 Constitution, to
assure that the coming force of the revised Charter is free from
any taint of infirmity, then all doubts are set at rest.
Same; How the case at bar should be viewed.—For some, to so
view the question before us is to be caught in a web of unreality,
to cherish illusions that cannot stand the test of actuality. What is
more, it may give the impression of reliance on what may, for the
practical man of affairs, be no more than gossamer distinctions
and sterile refinements unrelated to events. That may be so, but I
find it impossible to transcend what for me are the implications of
traditional constitutionalism. This is not to assert that an
occupant of the bench is bound to apply with undeviating rigidity
doctrines which may have served their day. He could at times
even look upon them as mere scribblings in the sands to be
washed away by the advancing tides of the present. The
introduction of novel concepts may be Cirried 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 spasr iodic sentiment,
to vague and unregulated benevolence. He is to exercise a
discretion informed by tradition, methodized by analogy,
disciplined by system, and subordinated to ‘the primordial
necessity of order in the social life.’ Wide enough in all conscience
is the field of discretion that remains.”
53
VOL. 50, MARCH 31, 1973 53
Teehankee, J., dissenting:
Constitutional law; Issue as to the validity of Presidential

Proclamation No. 1102 presents a justiciable question and
constitutes a proper subject of judicial review; Reasons.—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,
“(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 and restrictions embodied in our
Constitution are real as they should be in any living
Constitution.”
Same; Same; Same.—Justice Laurel pointed out that in
contrast to the United States Constitution, the Philippine
Constitution as “a definition of the powers of government” placed
upon the judiciary the great burden of “determining the nature,
scope and extent of such powers” and stressed that “when the
judiciary mediates to allocate constitutional boundaries, it does
not assert any superiority over the other departments ... but only
asserts the solemn and sacred obligation entrusted to it by the
Constitution to determine conflicting claims of authority under
the Constitution and to establish for the parties in an actual
controversy the rights which the instrument secures and
guarantees to them.”
Same; No valid ratification of Constitution where ratification
not in accordance with mandatory requirements of Article XV of
the 1935 Constitution.—Since it appears on the face of
Proclamation 1102 that the mandatory requirements of the
constitutional articles have not been complied with and that no
election or plebiscite for ratification as therein provided as well as
in section 16 of Article XVII of the proposed Constitution itself
has been called or held, there cannot be said to have been a valid
ratification.
Same; Same; Necessity of strict adherence to constitutional
requirements; Reasons for.— Sound constitutional policy and the
sheer necessity of adequate safeguards as ordained by the
Constitution and implementing statutes to ascertain and record
the will of the people in free, orderly and honest elections
supervised by
54
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.
ORIGINAL PETITIONS in the Supreme Court. Mandamus

and prohibition.
The facts are stated in the resolution of the Court.
Ramon A. Gonzales for petitioner Josue Javellana.
Lorenzo M. Tañada & Associates for petitioners Vidal
Tan, et al.
Tañada, Salonga, Ordonez, 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 re-
spondents.

RESOLUTION

CONCEPCION, C.J.:
The above-entitled five (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 as the plebiscite cases.
Background of the Plebiscite Cases.
The factual setting thereof is set forth in the decision
therein rendered, from which We quote:
55
VOL. 50, MARCH 31, 1973 55

“On March 16, 1967, Congress of the Philippines passed

Resolution No. 2, which was amended by Resolution No. 4 of said
body, adopted on June 17, 1969, calling a Convention to propose
amendments to the Constitution of the Philippines. Said
Resolution No. 2, as amended, was implemented by Republic Act
No. 6132, approved on August 24, 1970, pursuant to the
provisions of which the election of delegates to said Convention
was held on November 10, 1970, and the 1971 Constitutional
Convention began to perform its functions on June 1, 1971. While
the Convention was in session on September 21, 1972, the
President issued Proclamation No. 1081 placing the entire
Philippines under Martial Law. On November 29, 1972, the
Convention approved its Proposed Constitution of the Republic of
the Philippines. The next day, November 30, 1972, the President
of the Philippines issued Presidential Decree No. 73, “submitting
to the Filipino people for ratification or rejection the Constitution
of the Republic of the Philippines proposed by the 1971
Constitutional Convention, and appropriating funds therefor,” as
well as setting the plebiscite for said ratification or rejection of the
Proposed Constitution on January 15, 1973.
“Soon after, or on December 7, 1972, Charito Planas filed, with
this Court, Case G.R. No. L-35925, against the Commission on
Elections, the Treasurer of the Philippines and the Auditor
General, to enjoin said ‘respondents or their agents from
implementing Presidential Decree No. 73, in any manner, until
further orders of the Court,’ upon the grounds, inter alia, that
said Presidential Decree ‘has no force and effect as law because
the calling x x x 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 x x x,’ and ‘there is no proper submission
to the people of said Proposed Constitution set for January 15,
1973, there being no freedom of speech, press and assembly, and
there being no sufficient time to inform the people of the contents
thereof.’
“Substantially identical actions were filed, on December 8,
1972, by Pablo C. Sanidad against the Commission on Elections
(Case G.R. No. L- 35929) on December 11, 1972, by Gerardo
Roxas, et al., against the Commission on Elections, the Director of
Printing, the National Treasurer and the Auditor General (Case
G.R. L-35940), by Eddie B. Monteclaro against the Commission on
Elections and the Treasurer of the
56
Philippines (Case G.R. No. L-35941), and by Sedfrey 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 file their answers ‘not later than
12:00 (o’clock) noon of Saturday, December 16, 1972.’ Said cases
were, also, set for hearing and partly heard on Monday, December
18, 1972, at 9:30 a.m. The hearing was continued on December 19,
1972. By agreement of the parties, the aforementioned last case
— G.R. No. L-35979 — was, also, heard, jointly with the others,
on December 19, 1972. At the conclusion of the hearing, on that
date, the parties in all of the aforementioned cases were given a
short period of time within which ‘to submit their notes on the
points they desire to stress.’ Said notes were filed on different
dates, between December 21, 1972, and January 4, 1973.
“Meanwhile, or on December 17, 1972, the President had
issued an order temporarily suspending the effects of
Proclamation No. 1081, for the purpose of free and open debate on
the Proposed Constitution. On December 23, the President
announced the postponement of the plebiscite for the ratification
or rejection of the Proposed Constitution. No formal action to this
effect was taken until January 7, 1973, when General Order No.
20 was issued, directing ‘that the plebiscite scheduled to be held
on January 15, 1978, be postponed until further notice.’ Said
General Order No. 20, moreover, ‘suspended in the meantime’ the
‘order of December 17, 1972, temporarily suspending the effects of
Proclamation
57
VOL. 50, MARCH 31, 1973 57

No. 1081 for purposes of free and open debate on the proposed
Constitution.’
“In view of these events relative to the postponement of the
aforementioned plebiscite, the Court deemed it fit to refrain, for
the time being, from deciding the aforementioned cases, for
neither the date nor the conditions under which said plebiscite
would be held were known or announced officially. Then, again,
Congress was, pursuant to the 1935 Constitution, scheduled to
meet in regular session on January 22, 1973, and since the main
objection to Presidential Decree No. 73 was that the President
does not have the legislative authority to call a plebiscite and
appropriate funds therefor, which Congress unquestionably could
do, particularly in view of the formal postponement of the
plebiscite by the President — reportedly after consultation with,
among others, the leaders of Congress and the Commission on
Elections — the Court deemed it more imperative to defer its final
action on these cases.
“In the afternoon of January 12, 1973, the petitioners in Case
G.R. No. L-35948 filed an ‘urgent motion,’ praying that said case
be decided ‘as soon as possible, preferably not later than January
15, 1973.’ It was alleged in said motion, inter alia:
‘6. That the President subsequently announced the issuance of
Presidential Decree No. 86 organizing the so-called Citizens
Assemblies, to be consulted on certain public questions [Bulletin
Today, January 1, 1973];
‘7. That thereafter it was later announced that “the Assemblies
will be asked if they favor or oppose —
“[1] The New Society;
“[2] Reforms instituted under Martial Law;
“[3] The holding of a plebiscite on the proposed new
Constitution and when (the tentative new dates given
following the postponement of the plebiscite from the
original date of January 15 are February 19 and March 5);
“[4] The opening of the regular session slated on January
22 in accordance with the existing Constitution despite
Martial Law.” [Bulletin Today, January 3, 1973.]
58


‘8. That it was later reported that the following are to be the
forms of the questions to be asked to the Citizens Assemblies: —
“[1] Do you approve of the New Society?
“[2] Do you approve of the reform measures under
martial law?
“[3] Do you think that Congress should meet again in
regular session?
“[4] How soon would you like the plebiscite on the new
Constitution to be held? [Bulletin Today, January 5, 1973].
‘9. That the voting by the so-called Citizens Assemblies was
announced to take place during the period from January 10 to
January 15, 1973;
‘10. That on January 10, 1973, it was reported that on more
question would be added to the four (4) question previously
announced, and that the forms of the question would be as
follows: —
“[1] Do you like the New Society?
“[2] Do you like the reforms under martial law?
“[3] Do you like Congress again to hold sessions?
“[4] Do you like the plebiscite to be held later?
“[5] Do you like the way President Marcos running the
affairs of the government? [Bulletin Today, January 10,
1973; emphasis an additional question.]
‘11. That on January 11, 1973, it was reported that six (6) more
questions would be submitted to the so-called Citizens
Assemblies: —
“[1] Do you approve of the citizens assemblies as the base
of popular government to decide issues of national
interests?
59
VOL. 50, MARCH 31, 1973 59


“[2] Do you approve of the new Constitution?
“[3] Do you want a plebiscite to be called to ratify the
new Constitution?
“[4] Do you want the elections to be held in November,
1973 in accordance with the provisions of the 1935
Constitution?
“[5] If the elections would not be held, when do you want
the next elections to be called?
“[6] Do you want martial law to continue? [Bulletin
Today, January 11, 1973; emphasis supplied]
‘12. That according to reports, the returns with respect to the
six (6) additional questions quoted above will be on a form similar
or identical to Annex “A” hereof;
‘13. That attached to page 1 of Annex “A” is another page,
which we marked as Annex “A-1,” and which reads: —
“COMMENTS ON
QUESTION No. 1
In order to broaden the base of citizens’ participation in
government.
QUESTION No. 2
But we do not want the Ad Interim Assembly to be
convoked. Or if it is to be convened at all, it should not be
done so until after at least seven (7) years from the approval
of the New Constitution by the Citizens Assemblies.
QUESTION No. 3
The vote of the Citizens Assemblies should already be
considered the plebiscite on the New Constitution.
If the Citizens Assemblies approve of the New Constitution,
then the new Constitution should be deemed ratified.
60


QUESTION No. 4
We are sick and tired of too frequent elections. We are fed
up with politics, of so many debates and so much expenses.
QUESTION No. 5
Probably a period of at least seven (7) years moratorium on
elections will be enough for stability to be established in the
country, for reforms to take root and normalcy to return.
QUESTION No. 6
We want President Marcos to continue with Martial Law.
We want him to exercise his powers with more authority.
We want him to be strong and firm so that he can
accomplish all his reform programs and establish normalcy
in the country. If all other measures fail, we want President
Marcos to declare a revolutionary government along the
lines of the new Constitution without the ad interim
Assembly.”
‘Attention is respectfully invited to the comments on
“Question No. 3,” which reads: —
“QUESTION No. 3
The vote of the Citizens Assemblies should be considered
the plebiscite on the New Constitution.
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];
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VOL. 50, MARCH 31, 1973 61


‘15. That petitioners have reason to fear, and therefore state,
that the question added in the last list of questions to be asked to
the Citizens Assemblies, namely: —
“Do you approve of the New Constitution?” —
in relation to the question following it: —
“Do you still want a plebiscite to be called to ratify the
new Constitution?” —
would be an attempt to by-pass and short-circuit this Honorable
Court before which the question of the validity of the plebiscite on
the proposed Constitution is now pending;
‘16. That petitioners have reason to fear, and therefore allege,
that if an affirmative answer to the two questions just referred to
will be reported then this Honorable Court and the entire nation
will be confronted with a fait accompli which has been attained in
a highly unconstitutional and undemocratic manner;
‘17. That the fait accompli would consist in the supposed
expression of the people approving the proposed Constitution;
‘18. That, if such event would happen, then the case before this
Honorable Court could, to all intents and purposes, become moot
because, petitioners fear, and they therefore allege, that on the
basis of such supposed expression of the will of the people through
the Citizens Assemblies, it would be announced that the proposed
Constitution, with all its defects, both congenital and otherwise,
has been ratified;
‘19. That, in such a situation the Philippines will be facing a
real crisis and there is likelihood of confusion if not chaos, because
then, the people and their officials will not know which
Constitution is in force.
‘20. That the crisis mentioned above can only be avoided if this
Honorable Court will immediately decide and announce its
decision on the present petition;
‘21. That with the withdrawal by the President of the limited
freedom of discussion on the proposed Constitution which was
given to the people pursuant to Sec. 3 of Presidential Decree No.
73, the opposition of respondents to petitioners’
62

prayer at the plebiscite be prohibited has now collapsed and that

a free plebiscite can no longer be held.’
“At about the same time, a similar prayer was made in a
‘manifestation’ filed by the petitioners in L-35949, ‘Gerardo
Roxas, et al. v. Commission on Elections, et al.,’ and L-35942,
‘Sedfrey A. 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 than Tuesday noon, January 16, 1973.’ Prior thereto, or
on January 15, 1973, shortly before noon, the petitioners in said
Case G.R. No. L-35948 riled a ‘supplemental motion for issuance
of restraining order and inclusion of additional respondents,’
praying —
‘x x x 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
Ratification Coordinating Committee and its Chairman,
Guillermo de Vega; their deputies, subordinates and
substitutes, and all other officials and persons who may be
assigned such task, from collecting, certifying, and
announcing and reporting to the President or other officials
concerned, the so-called Citizens’ Assemblies referendum
results allegedly obtained when they were supposed to have
met during the period comprised between January 10 and
January 15, 1973, on the two questions quoted in paragraph
1 of this Supplemental Urgent Motion.’
“In support of this prayer, it was alleged —
‘3. That petitioners are now before this Honorable Court
in order to ask further that this Honorable Court issue a
restraining order enjoining herein respondents, particularly
respondent Commission on Elections as well as the
Department of Local Governments and its head, Secretary
Jose Roño; the Department of Agrarian Reforms and its
head, Secretary Conrado Estrella; the National Ratification
Coordinating Committee and its Chairman, Guillermo de
Vega; and their deputies, subordinates and/or substitutes,
from collecting, certifying, announcing and reporting to the
President the supposed Citizens’ Assemblies referendum
results allegedly obtained when they were supposed to have
met during the period between January 10 and January 15,
1973, particularly
63
VOL. 50, MARCH 31, 1973 63

on the two questions quoted in paragraph 1 of this

Supplemental Urgent Motion;
‘4. That the proceedings of the so-called Citizens’ Assemblies
are illegal, null and void particularly insofar as such proceedings
are being made the basis of a supposed consensus for the
ratification of the proposed Constitution because: —
[a] The elections contemplated in the Constitution,
Article XV, at which the proposed constitutional
amendments are to be submitted for ratification, are
elections at which only qualified and duly registered voters
are permitted to vote, whereas, the so called Citizens’
Assemblies were participated in by persons 15 years of age
and older, regardless of qualifications or lack thereof, as
prescribed in the Election Code;
[b] Elections or plebiscites for the ratification of
constitutional amendments contemplated in Article XV of
the Constitution have provisions for the secrecy of choice
and of vote, which is one of the safeguards of freedom of
action, but votes in the Citizens’ Assemblies were open and
were cast by raising hands;
[c] The Election Code makes ample provisions for free,
orderly and honest elections, and such provisions are a
minimum requirement for elections or plebiscites for the
ratification of constitutional amendments, but there were
no similar provisions to guide and regulate proceedings of
the so called Citizens’ Assemblies;
[d] It is seriously to be doubted that, for lack of material
time, more than a handful of the so called Citizens’
Assemblies have been actually formed, because the
mechanics of their organization were still being discussed a
day or so before the day they were supposed to begin
functioning: —
‘Provincial governors and city and municipal
mayors had been meeting with barrio captains and
community leaders since last Monday [January 8,
1973) to thresh out the mechanics in the formation of
the Citizens Assemblies and the topics for discussion.’
[Bulletin Today, January 10, 1973]
64


‘It should be recalled that the Citizens’ Assemblies were
ordered formed only at the beginning of the year [Daily Express,
January 1, 1973], and considering the lack of experience of the
local organizers of said assemblies, as well as the absence of
sufficient guidelines for organization, it is too much to believe that
such assemblies could be organized at such a short notice.
‘5. That for lack of material time, the appropriate amended
petition to include the additional officials and government
agencies mentioned in paragraph 3 of this Supplemental Urgent
Motion could not be completed because, as noted in the Urgent
Motion of January 12, 1973, the submission of the proposed
Constitution to the Citizens’ Assemblies was not made known to
the public until January 11, 1973. But be that as it may, the said
additional officials and agencies may be properly included in the
petition at bar because: —
[a] The herein petitioners have prayed in their petition
for the annulment not only of Presidential Decree No. 73,
but also of “any similar decree, proclamation, order or
instruction.”
so that Presidential Decree No. 86, insofar at least as it attempts
to submit the proposed Constitution to a plebiscite by the so-
called Citizens’ Assemblies, is properly in issue in this case, and
those who enforce, implement, or carry out the said Presidential
Decree No. 86, and the instructions incidental thereto clearly fall
within the scope of this petition;
[b] In their petition, petitioners sought the issuance of a
writ of preliminary injunction restraining not only the
respondents named in the petition but also their “agents”
from implementing not only Presidential Decree No. 73, but
also “any other similar decree, order, instruction, or
proclamation in relation to the holding of a plebiscite on
January 15, 1973 for the purpose of submitting to the
Filipino people for their ratification or rejection the 1972
Draft or proposed Constitution approved by the
Constitutional Convention on November 30, 1972”; and
finally,
[c] Petitioners prayed for such other relief which may be
just and equitable. [p. 39, Petition].
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VOL. 50, MARCH 31, 1973 65


“Therefore, viewing the case from all angles, the officials and
government agencies mentioned in paragraph 3 of this
Supplemental Urgent Motion, can lawfully be reached by the
processes of this Honorable Court by reason of this petition,
considering, furthermore, that the Commission on Elections has
under our laws the power, among others, of: —
“(a) Direct and immediate supervision and control over
national, provincial, city, municipal and municipal district
officials required by law to perform duties relative to the
conduct of elections on matters pertaining to the
enforcement of the provisions of this Code *****” [Election
Code of 1971, Sec. 3].
‘6. That unless the petition at bar is decided immediately and
the Commission on Elections, together with the officials and
government agencies mentioned in paragraph 3 of this
Supplemental Urgent Motion are restrained or enjoined from
collecting, certifying, reporting or announcing to the President the
results of the alleged voting of the so-called Citizens’ Assemblies,
irreparable damage will be caused to the Republic of the
Philippines, the Filipino people, the cause of freedom an
democracy, and the petitioners herein because:
[a] After the result of the supposed voting on the
questions mentioned in paragraph 1 hereof shall have been
announced, a conflict will arise between those who maintain
that the 1935 Constitution is still in force, on the one hand,
and those who will maintain that it has been superseded by
the proposed Constitution, on the other, thereby creating
confusion, if not chaos;
[b] Even the jurisdiction of this Court will be subject to
serious attack because the advocates of the theory that the
proposed Constitution has been ratified by reason of the
announcement of the results of the proceedings of the so-
called Citizens’ Assemblies will argue that, General Order
No. 3, which shall also be deemed ratified pursuant to the
Transitory Provisions of the proposed Constitution, has
placed Presidential Decree Nos. 73 and 86 beyond the reach
and jurisdiction of this Honorable Court.’
66


“On the same date — January 15, 1973 — the Court passed a
resolution requiring the respondents in said case G.R. No. L-
35948 to file “file an answer to the said motion not later than 4
P.M., Tuesday, January 16, 1973,” and setting the motion for
hearing “on January 17, 1973, at 9:30 a.m.” While the case was
being heard, on the date last mentioned, at noontime, the
Secretary of Justice called on the writer of this opinion and said
that, upon instructions of the President, he (the Secretary of
Justice) was delivering to him (the writer) a copy of Proclamation
No. 1102, which had just been signed by the President.
Thereupon, the writer returned to the Session Hall and
announced to the Court, the parties in G.R. No. L-35948 —
inasmuch as the hearing in connection therewith was still going
on — and the public there present that the President had,
according to information conveyed by the Secretary of Justice,
signed said Proclamation No. 1102, earlier that morning.
Thereupon, the writer read Proclamation No. 1102 which is of the
following tenor:
‘BY THE PRESIDENT OF THE PHILIPPINES
‘PROCLAMATION NO. 1102
‘ANNOUNCING THE RATIFICATION BY THE FILIPINO
PEOPLE OF THE CONSTITUTION PROPOSED BY THE 1971
CONSTITUTIONAL CONVENTION.
‘WHEREAS, the Constitution proposed by the nineteen
hundred seventy-one Constitutional Convention is subject to
ratification by the Filipino people;
‘WHEREAS, Citizens Assemblies were created in barrios, in
municipalities and in districts/wards in chartered cities pursuant
to Presidential Decree No. 86, dated December 31, 1972,
composed of all persons who are residents of the barrio, district or
ward for at least six months, fifteen years of age or over, citizens
of the Philippines and who are registered in the list of Citizen
Assembly members kept by the barrio, district or ward secretary;
‘WHEREAS, the said Citizens Assemblies were established
precisely to broaden the base of citizen participation in the
democratic process and to afford ample opportunity for the
citizenry to express their views on important national issues;
‘WHEREAS, responding to the clamor of the people and
pursuant to Presidential Decree No. 86-A, dated January 5, 1973,
the following questions were posed before the Citizens
67
VOL. 50, MARCH 31, 1973 67

Assemblies or Barangays: Do you approve of the New

Constitution? Do you still want a plebiscite to be called to ratify
the new Constitution?
“WHEREAS, fourteen million nine hundred seventy-six
thousand five hundred sixty-one (14,976,561) members of all the
Barangays (Citizens Assemblies) voted for the adoption of the
proposed Constitution, as against seven hundred forty-three
thousand eight hundred sixty-nine (743,869) who voted for its
rejection; while on the question as to whether or not the people
would still like a plebiscite to be called to ratify the new
Constitution, fourteen million two hundred ninety-eight thousand
eight hundred fourteen (14,298,814) answered that there was no
need for a plebiscite and that the vote of the Barangays (Citizens
Assemblies) should be considered as a vote in a plebiscite;
“WHEREAS, since the referendum results show that more
than ninety-five (95) per cent of the members of the Barangays
(Citizens Assemblies) are in favor of the new Constitution,
the Katipunan ng Mga Barangay has strongly recommended that
the new Constitution should already be deemed ratified by the
Filipino people;
‘NOW, THEREFORE, I, FERDINAND E. MARCOS, President
of the Philippines, by virtue of the powers in me vested by the
Constitution, do hereby certify and proclaim that the Constitution
proposed by the nineteen hundred and seventy-one (1971)
Constitutional Convention has been ratified by an overwhelming
majority of all of the votes cast by the members of all the
Barangays (Citizens Assemblies) throughout the Philippines, and
has thereby come into effect.
‘IN WITNESS WHEREOF, I have hereunto set my hand and
caused the seal of the Republic of the Philippines to be affixed.
‘Done in the City of Manila, this 17th day of January, in the
year of Our Lord, nineteen hundred and seventy-three.
(Sgd.) FERDINAND E. MARCOS
‘President of the Philippines
‘By the President:
‘ALEJANDRO MELCHOR
‘Executive Secretary’
68


“Such is the background of the cases submitted determination.
After admitting some of the allegations made in the petition in L-
35948 and denying the other allegations thereof, respondents
therein alleged in their answer thereto, by way affirmative
defenses: 1) that the ‘questions raised’ in said petition ‘are
political in character’; 2) that ‘the Constitutional Convention
acted freely and had plenary authority to propose not only
amendments but a Constitution which would supersede the
present Constitution’; 3) that ‘the President’s call for a plebiscite
and the appropriation of funds for this purpose are valid’; 4) that
‘there is not an improper submission” and ‘there can be a
plebiscite under Martial Law’; and 5) that the ‘argument that the
Proposed Constitution is vague and incomplete, makes an
unconstitutional delegation of power, includes a referendum on
the proclamation of Martial Law and purports to exercise judicial
power’ is ‘not relevant and x x x 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
69
VOL. 50, MARCH 31, 1973 69

Makalintal, Castro, Teehankee and Esguerra opine that the issue

has become moot and academic. Justices Fernando, Barredo,
Makasiar, Antonio and myself have voted to uphold the authority
of the Convention.
“4. Justice Fernando, likewise, expressed the view that the
1971 Constitutional Convention had authority to continue in the
performance of its functions despite the proclamation of Martial
Law. In effect, Justices Barredo, Makasiar and Antonio hold the
same view.
“5. On the question whether the proclamation of Martial Law
affected the proper submission of the proposed Constitution to a
plebiscite, insofar as the freedom essential therefor is concerned,
Justice Fernando is of the opinion that there is a repugnancy
between the election contemplated under Art. XV of the 1935
Constitution and the existence of Martial Law, and would,
therefore, grant the petitions were they not moot and academic.
Justices Barredo, Antonio and Esguerra are of the opinion that
issue involves questions of fact which cannot be predetermined,
and that Martial Law per se does not necessarily preclude the
factual possibility of adequate freedom, for the purposes
contemplated.
“6. On Presidential Proclamation No. 1102, the following views
were expressed:
“a. Justices Makalintal, Castro, Fernando, Teehankee,
Makasiar, Esguerra and myself are of the opinion that the
question of validity of said Proclamation has not been
properly raised before the Court, which, accordingly, should
not pass upon such question.
“b. Justice Barredo holds that the issue on the
constitutionality of Proclamation No. 1102 has been
submitted to and should be determined by the Court, and
that the ‘purported ratification of the Proposed Constitution
x x x 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, x x x
the new Constitution is legally recognizable and should be
recognized as legitimately in force.’
“c. Justice Zaldivar maintains unqualifiedly that the
Proposed Constitution has not been ratified in accordance
with
70

Article XV of the 1935 Constitution, and that, accordingly,

it has no force and effect whatsoever.
“d. Justice Antonio feels ‘that the Court is not competent
to act’ on the issue whether the Proposed Constitution has
been ratified by the people or not, ‘in the absence of any
judicially discoverable and manageable standards,’ since the
issue ‘poses a question of fact.’
“7. On the question whether or not these cases should be
dismissed, Justices Makalintal, Castro, Barredo, Makasiar,
Antonio and Esguerra voted in the affirmative, for the reasons set
forth in their respective opinions. Justices Fernando, Teehankee,
and the writer similarly voted, except as regards Case No. L-
35948 as to which they voted to grant to the petitioners therein a
reasonable period of time within which to file appropriate
pleadings should they wish to contest the legality of Presidential
Proclamation No. 1102. Justice Zaldivar favors the granting of
said period to the petitioners in said Case No. L-35948 for the
aforementioned purpose, but he believes, in effect, that the Court
should go farther and decide on the merits everyone of the cases
under consideration.”
Accordingly, the Court — acting in conformity with the

position taken by six (6) of its members,1 with three (3)
members dissenting,2 with respect to G.R. No. L-35948,
only and another member 3 dissenting, as regards all of the
cases dismissed the same, without special pronouncement
as to costs.
The Present Cases
Prior thereto, or on January 20, 1973, Josue Javellana
filed Case G.R. No. L-36142 against the Executive
Secretary and the Secretaries of National Defense, Justice
and Finance, to restrain said respondents “and their
subordinates or agents from implementing any of the
provisions of the propose Constitution not found in the
present Constitution” — referring to that of 1935. The
petition therein, filed by Josue Javellana, as a “Filipino
citizen, and a qualified and registered
_______________
1 Justices Makalintal, Castro, Barredo, Makasiar, Antonio and
Esguerra.
2 Chief Justice Concepcion and Justices Fernando and Teehankee.
3 Justice Zaldivar.
71
VOL. 50, MARCH 31, 1973 71

voter” and as “a class suit, for himself, and in behalf of all

citizens and voters similarly situated,” was amended on or
about January 24, 1973. After reciting in substance the
facts set forth in the decision in the plebiscite cases,
Javellana alleged that the President had announced “the
immediate implementation of the New Constitution, thru
his Cabinet, respondents including,” and that the latter
“are acting without, or in excess of jurisdiction in
implementing the said proposed Constitution” upon the
ground: “that the President, as Commander-in-Chief of the
Armed Forces of the Philippines, is without authority to
create the Citizens Assemblies”; that the same “are without
power to approve the proposed Constitution ...”; “that the
President is without power to proclaim the ratification by
the Filipino people of the proposed Constitution”; and “that
the election held to ratify the proposed Constitution was
not a free election, hence null and void.”
Similar actions were filed, on January 23, 1973, by Vidal
Tan, J. Antonio Araneta, Alejandro Roces, Manuel Crudo,
Antonio U. Miranda, Emilio de Peralta and Lorenzo M.
Tañada, against the Executive Secretary, the Secretaries of
Finance, Justice, Land Reform, and National Defense, the
Auditor General, the Budget Commissioner, the Chairman
of the Presidential Commission on Reorganization, the
Treasurer of the Philippines, the Commission on Elections
and the Commissioner of Civil Service;4 on February 3,
1973, by Eddie Monteclaro, personally and as President of
the National Press Club of the Philippines, against the
Executive Secretary, the Secretary of Public Information,
the Auditor General, the Budget Commissioner and the
National Treasurer;5 and on February 12, 1973, by
Napoleon V. Dilag, Alfredo Salapantan, Jr., Leonardo
Asodisen, Jr. and Raul M. Gonzales,6 against the Executive
Secretary, the Secretary of National Defense, the Budget
Commissioner and the Auditor General.
Likewise, on January 23, 1973, Gerardo Roxas,
Ambrosio Padilla, Jovito R. Salonga, Salvador H.
Laurel,7 Ramon V. Mitra, Jr. and Eva Estrada-Kalaw, the
first as “duly elected
_______________
4 Case G.R. No. L-36164.
5 Case G.R. No. L-36236.
6 Case G.R. No. L-36293.
7 Who withdrew as petitioner on January 25, 1973.
72

Senator and Minority Floor Leader of the Senate,” and

others as “duly elected members” thereof, filed Case G.R.
No. L-36165, against the Executive Secretary, the
Secretary National Defense, the Chief of Staff of the Armed
Forces of the Philippines, the Secretary of General
Services, the President and the President Pro Tempore of
the Senate. In their petition — as amended on January 26,
1973 — petitioners Gerardo Roxas, et al. allege, inter alia,
that the term of office of three of the aforementioned
petitioners8 would expire on December 31, 1975, and that
of the others9 on December 31, 1977; that pursuant to our
1935 Constitution, “which is still in force Congress of the
Philippines “must convene for its 8th Session on Monday,
January 22, 1973, at 10:00 A.M., which is regular
customary hour of its opening session”; that “on said day,
from 10:00 A.M. up to the afternoon,” said petitioner “along
with their other colleagues, were unlawfully prevented
from using the Senate Session Hall, the same having been
closed by the authorities in physical possession and control
the Legislative Building”; that “(a)t about 5:00 to 6:00 P.M.
the said day, the premises of the entire Legislative
Building were ordered cleared by the same authorities, and
no one was allowed to enter and have access to said
premises”; that “(r)espondent Senate President Gil J. Puyat
and, in his absence, respondent President Pro Tempore
Jose Roy we asked by petitioning Senators to perform their
duties under the law and the Rules of the Senate, but
unlawfully refrained and continue to refrain from doing
so”; that the petitioners ready and willing to perform their
duties as duly elected members of the Senate of the
Philippines,” but respondent Secretary of National Defense,
Executive Secretary and Chief of Staff, “through their
agents and representatives, are preventing petitioners from
performing their duties as duly elected Senators of the
Philippines”; that “the Senate premise in the Congress of
the Philippines Building x x x are occupied by and are
under the physical control of the elements military
organizations under the direction of said
_______________
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.
73
VOL. 50, MARCH 31, 1973 73

respondents”; that, as per “official reports, the Department

of General Services x x x is now the civilian agency in
custody of the premises of the Legislative Building”; that
respondents “have unlawfully excluded and prevented, and
continue to so exclude and prevent” the petitioners “from
the performance of their sworn duties, invoking the alleged
approval of the 1972 (1973) Constitution of the Philippines
by action of the so-called Citizens’ Assemblies on January
10, 1973 to January 15, 1973, as stated in and by virtue of
Proclamation No. 1102 signed and issued by the President
of the Philippines”; that “the alleged creation of the
Citizens’ Assemblies as instrumentalities for the
ratification of the Constitution of the Republic of the
Philippines” is inherently illegal and palpably
unconstitutional; that respondents Senate President and
Senate President Pro Tempore “have unlawfully refrained
and continue to refrain from and/or unlawfully neglected
and continue to neglect the performance of their duties and
functions as such officers under the law and the Rules of
the Senate” quoted in the petition; that because of events
supervening the institution of the plebiscite cases, to which
reference has been made in the preceding pages, the
Supreme Court dismissed said cases on January 22, 1973,
by a majority vote, upon the ground that the petitions
therein had become moot and academic; that the alleged
ratification of the 1972 (1973) Constitution “is illegal,
unconstitutional and void and x x x can not have
superseded and revoked the 1935 Constitution,” for the
reasons specified in the petition as amended; that, by
acting as they did, the respondents and their “agents,
representatives and subordinates x x x have excluded the
petitioners from an office to which” they “are lawfully
entitled”; that “respondents Gil J. Puyat and Jose Roy have
unlawfully refrained from convening the Senate for its 8th
session, assuming general jurisdiction over the Session
Hall and the premises of the Senate and x x x continue
such inaction up to this time and x x x a writ
of mandamus is warranted in order to compel them to
comply with the duties and functions specifically enjoined
by law”; and that “against the above mentioned unlawful
acts of the respondents, the petitioners have no appeal nor
other speedy and adequate remedy in the ordinary course
of law except by invoking the equitable remedies
of mandamus and prohibition with the provisional remedy
of preliminary mandatory injunction.”
74


Premised upon the foregoing allegations, said
petitioners prayed that, “pending hearing on the merits, a
writ of preliminary mandatory injunction be issued
ordering respondents Executive Secretary, the Secretary of
National Defense, the Chief of Staff of the Armed Forces of
the Philippines, and the x x x Secretary of General Service,
as well as all their agents, representatives and
subordinates to vacate the premises of the Senate of the
Philippines and to deliver physical possession of the same
to the President of the Senate or his authorized
representative”; and that hearing, judgment be rendered
declaring null and Proclamation No. 1102 x x x and any
order, decree, proclamation having the same import and
objective, issuing writs of prohibition and mandamus, as
prayed for against above-mentioned respondents, and
making the writ injunction permanent; and that a writ
of mandamus be issued against the respondents Gil J.
Puyat and Jose Roy directing them to comply with their
duties and functions as President and President Pro
Tempore, respectively, of the Senate of Philippines, as
provided by law and the Rules of the Senate.”
Required to comment on the above-mentioned petitions
and/or amended petitions, respondents filed, with the leave
Court first had and obtained, a consolidated comment on
said petitions and/or amended petitions, alleging that the
same ought to have been dismissed outright; controverting
petitioners’ allegations concerning the alleged lack
impairment of the freedom of the 1971 Constitution
Convention to approve the proposed Constitution, its
alleged lack of authority to incorporate certain contested
provisions thereof, the alleged lack of authority of the
President to create and establish Citizens’ Assemblies “for
the purpose submitting to them the matter of ratification of
the new Constitution,” the alleged “improper or inadequate
submission of the proposed constitution,” the “procedure for
ratification adopted x x x through the Citizens Assemblies”;
a maintaining that: 1) “(t)he Court is without jurisdiction
to act on these petitions”; 2) the questions raised therein
are “political in character and therefore nonjusticiable”; 3)
“there substantial compliance with Article XV of the 1935
Constitution”; 4) “(t)he Constitution was properly
submitted the people in a free, orderly and honest election;
5)
75
VOL. 50, MARCH 31, 1973 75

“Proclamation No. 1102, certifying the results of the

election, is conclusive upon the courts”; and 6) “(t)he
amending process outlined in Article XV of the 1935
Constitution is not exclusive of other modes of
amendment.”
Respondents Puyat and Roy, in said Case G.R. No. L-
36165, filed their separate comment therein, alleging that
“(t)he subject matter” of said case “is a highly political
question which, under the circumstances, this x x x Court
would not be in a position to act upon judicially,” and that,
in view of the opinions expressed by three members of this
Court in its decision in the plebiscite cases, in effect
upholding the validity of Proclamation No. 1102, “further
proceedings in this case may only be an academic exercise
in futility.”
On February 5, 1973, the Court issued a resolution
requiring respondents in L-36236 to comment on the
petition therein not later than Saturday, February 10,
1973, and setting the case for hearing on February 12,
1973, at 9:30 a.m. By resolution dated February 7, 1973,
this Court resolved to consider the comments of the
respondents in cases G.R. Nos. L-36142, L-36164, and L-
36165, as motions to dismiss the petitions therein, and to
set said cases for hearing on the same date and time as L-
36236. On that date, the parties in G.R. No. L-
3628310 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, 1973, shortly after 9:30 a.m.,
was continued not only that afternoon, but, also, on
February 13, 14, 15 and 16, morning and afternoon, after
which the parties were granted up to February 24, 1973,
noon, within which to submit their notes of oral arguments
and additional arguments, as well as the documents
required of them or whose presentation was reserved by
them. The same resolution granted the parties until March
1, 1973, to reply to the notes filed by their respective
opponents. Counsel for the petitioners in G.R. Nos. L-36164
and L-36165 filed their aforementioned notes on February
24, 1973, on which date the Solicitor General sought an
extension of time up to March 3, 1973, within which to file
his notes, which was granted, with
_______________
10 Napoleon V. Dilag, et al. v. Executive Secretary, et al.
76

the understanding that said notes shall include his reply to

the notes already filed 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 file, as they did, their
notes in reply to those submitted by the Solicitor General
on March 3, 1973. On March 21, 1973, petitioners in L-
36165 filed a “Manifestation a Supplemental Rejoinder,”
whereas the Office of the Solicitor General submitted in all
these cases a “Rejoinder Petitioners’ Replies.”
After deliberating on these cases, the members of the
Court agreed that each would write his own opinion and
serve a copy thereof on his colleagues, and this they did.
Subsequently, the Court discussed said opinions and votes
were cast thereon. Such individual opinions are appended
hereto.
Accordingly, the writer will first express his person
opinion on the issues before the Court. After the exposition
his aforesaid opinion, the writer will make, concurrently
with his colleagues in the Court, a resume of summary of
the votes cast by them in these cases.
Writer’s Personal Opinion
I.
Alleged academic futility of further proceedings in G.R.
L-36165.
This defense or theory, set up by counsel for respondents
Gil J. Puyat and Jose Roy in G.R. No. L-36165, and, also,
by the Solicitor General, is predicated upon the fact that, in
Our decision in the plebiscite cases, Mr. Justice Barredo
had expressed the view that the 1935 Constitution had “pro
tanto passed into history” and “been legitimately
supplanted by the Constitution now in force by virtue of
Proclamation No. 1102 x x x”; that Mr. Justice Antonio did
not feel “that this Court competent to act” in said cases “in
the absence of any judicially discoverable and manageable
standards” and because “the access to relevant information
is insufficient to assure the correct determination of the
issue,” apart from the
77
VOL. 50, MARCH 31, 1973 77

circumstance that “the new constitution has been

promulgated and great interests have already arisen under
it” and that the political organ of the Government has
recognized its provisions; whereas, Mr. Justice Esguerra
had postulated that “(w)ithout any competent evidence
x x x about the circumstances attending the holding” of the
“referendum or plebiscite” thru the Citizens’ Assemblies, he
“cannot say that it was not lawfully held” and that,
accordingly, he assumed ”that what the proclamation (No.
1102) says on its face is true and until overcome by
satisfactory evidence” he could not “subscribe to the claim
that such plebiscite was not held accordingly”; and that he
accepted “as a fait accompli that the Constitution adopted
(by the 1971 Constitutional Convention) on November 30,
1972, has been duly ratified.”
Counsel for respondents Gil J. Puyat and Jose Roy goes
on to say that, under these circumstances, “it seems remote
or improbable that the necessary eight (8) votes under the
1935 Constitution, and much less the ten (10) votes
required by the 1972 (1973) Constitution, can be obtained
for the relief sought in the Amended Petition” in G.R.
No. L-36165.
I am unable to share this view. To begin with, Mr.
Justice Barredo announced publicly, in open court, during
the hearing of these cases, that he was and is willing to be
convinced that his aforementioned opinion in the plebiscite
cases should be reconsidered and changed. In effect, he
thus declared that he had an open mind in connection with
the cases at bar, and that in deciding the same he would
not necessarily adhere to said opinion if the petitioners
herein succeeded in convincing him that their view should
be sustained.
Secondly, counsel for the aforesaid respondents had
apparently assumed that, under the 1935 Constitution,
eight (8) votes are necessary to declare invalid the
contested Proclamation No. 1102. I do not believe that this
assumption is borne out by any provision of said
Constitution. Section 10 of Article VIII thereof reads:
“All cases involving the constitutionality of a treaty or law

shall be heard and decided by the Supreme Court in banc, and no
treaty or law may be declared unconstitutional without the
concurrence of two thirds of all the members of the Court.”
78


Pursuant to this section, the concurrence of two-thirds of
all the Members of the Supreme Court is required only to
declare “treaty or law” unconstitutional. Construing said
provision, in a resolution dated September 16, 1949, then
Chief Justice Moran, voicing the unanimous view of the
Members of this Court, postulated:
“x x x There is nothing either in the Constitution or in the

Judiciary Act requiring the vote of eight Justices to nullify a rule
or regulation or an executive order issued by the President. It is
very significant that in the previous drafts of section 10, Article
VIII of the Constitution, ‘executive order’ and ‘regulation’ were
included among those that required for their nullification the vote
of two-thirds of all the members of the Court. But ‘executive order’
and ‘regulation’ were later deleted from the final draft (Aruego,
The Framing of the Philippine Constitution, Vol. I, pp. 495, 496),
and thus a mere majority of six members of this Court is enough to
nullify them.”11
The distinction is not without reasonable foundation.

The two thirds vote (eight [8] votes) requirement, indeed,
was made to apply only to treaty and law, because, in these
cases, the participation of the two other departments of the
government — the Executive and the Legislative — is
present, which circumstance is absent in the case of rules,
regulations and executive orders. Indeed, a law (statute)
passed by Congress is subject to the approval or veto of the
President, whose disapproval cannot be overridden except
by the vote of two-thirds (2/3) of all members of each House
of Congress.12 A treaty is entered into by the President
with the concurrence of the Senate,13 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
_______________
11 Araneta v. Dinglasan, 84 Phil. 431, 437-438. See, also, Gonzales v.
Commission on Elections, L-28196 & L-28224, Nov. 9, 1967. Emphasis
ours.
12 Art. VI, sec. 20(1), Constitution.
13 Art. VII, sec. 10(7), Constitution.
79
VOL. 50, MARCH 31, 1973 79

executive orders issued by the President, the dictum

applies with equal force to executive proclamation, like said
Proclamation No. 1102, inasmuch as the authority to issue
the same is governed by section 63 of the Revised
Administrative Code, which provides:
“Administrative acts and commands of the (Governor-General)

President of the Philippines touching the organization or mode of
operation of the Government or rearranging or readjusting any of
the districts, divisions, parts or ports of the (Philippine Islands)
Philippines and all acts and commands governing the general
performance of duties by public employees or disposing of issues
of general concern shall be made effective in executive orders.
“Executive orders fixing the dates when specific laws,
resolutions, or orders are to have or cease to (have) effect and any
information concerning matters of public moment determined by
law, resolution, or executive orders, may be promulgated in an
executive proclamation, with all the force of an executive order.”14
In fact, while executive order embody administrative

acts or commands of the President, executive
proclamations are mainly informative and declaratory in
character, and so does counsel for respondents Gil J. Puyat
and Jose Roy maintain in G.R. No. L-36165.15 As
consequence, an executive proclamation has no more than
“the force of an executive order,” so that, for the Supreme
Court to declare such proclamation unconstitutional, under
the 1935 Constitution, the same number of votes needed to
invalidate an executive order, rule or regulation — namely,
six (6) votes — would suffice.As regards the applicability of
the provisions of the proposed new Constitution, approved
by the 1971 Constitutional Convention, in the
determination of the question whether or not it is now in
force, it is obvious that such question depends upon
whether or not the said new Constitution has been ratified
in accordance with the requirements of the 1935
Constitution, upon the authority of which said
Constitutional Convention was called and approved the
proposed Constitution.
_______________
14 Italics ours.
15 See page 4, last paragraph, of his Comment dated Feb. 6, 1973.

80

It is well settled that the matter of ratification of an

amendment to the Constitution should be settled
by applying the provisions of the Constitution in force at the
time of the alleged ratification, or the old Constitution.16
II
Does the issue on the validity of Proclamation No. 1102
partake of the nature of a political, and, hence, non-
justiciable question?
The Solicitor General maintains in his comment the
affirmative view and this is his main defense. In support
thereof, he alleges that “petitioners would have this Court
declare as invalid the New Constitution of the Republic”
from which — he claims — “this Court now derives its
authority”; that “nearly 15 million of our body politic from
the age of 15 years have mandated this Constitution to be
the New Constitution and the prospect of unsettling acts
done in reliance on it caution against interposition of the
power of judicial review”; that “in the case of the New
Constitution, the government has been recognized in
accordance with the New Constitution”; that “the country’s
foreign relations are now being conducted in accordance
with the new charter”; that “foreign governments have
taken note of it”; that the “plebiscite cases” are “not
precedents for holding questions regarding proposal and
ratification justiciable”; and that “to abstain from judgment
on the ultimate issue of constitutionality is not to abdicate
duty.”
At the outset, it is obvious to me that We are not being
asked to “declare” the new Constitution invalid. What
petitioners dispute is the theory that it has been validly
ratified by the people, especially that they have done so in
accordance with Article XV of the 1935 Constitution. The
petitioners maintain
_______________
16 In 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.
81
VOL. 50, MARCH 31, 1973 81

that the conclusion reached by the Chief Executive in the

dispositive portion of Proclamation No. 1102 is not borne
out by the whereases preceding the same, as the predicates
from which said conclusion was drawn; that the plebiscite
or “election” required in said Article XV has not been held;
that the Chief Executive has no authority, under the 1935
Constitution, to dispense with said election or plebiscite;
that the proceedings before the Citizens’ Assemblies did not
constitute and may not be considered as such plebiscite;
that the facts of record abundantly show that the
aforementioned Assemblies could not have been held
throughout the Philippines from January 10 to January 15,
1973; and that, in any event, the proceedings in said
Assemblies are null and void as an alleged ratification of
the new Constitution proposed by the 1971 Constitutional
Convention, not only because of the circumstances under
which said Assemblies had been created and held, but,
also, because persons disqualified to vote under Article V of
the Constitution were allowed to participate therein,
because the provisions of our Election Code were not
observed in said Assemblies, because the same were not
held under the supervision of the Commission on Elections,
in violation of section 2 of Article X of the 1935
Constitution, and because the existence of Martial Law and
General Order No. 20, withdrawing or suspending the
limited freedom to discuss the merits and demerits of said
proposed Constitution, impaired the people’s freedom in
voting thereon, particularly a viva voce, as it was done in
many instances, as well as their ability to have a
reasonable knowledge of the contents of the document on
which they were allegedly called upon to express their
views.
Referring now more specifically to the issue on whether
the new Constitution proposed by the 1971 Constitutional
Convention has been ratified in accordance with the
provisions of Article XV of the 1935 Constitution is a
political question or not, I do not hesitate to state that the
answer must be in the negative. Indeed, such is the
position taken by this Court,17 in
_______________
17 Mun. of Malabang v. Benito, L-28113, Mar. 28, 1969; NAWASA v.
Piguing, et al., L-35573, Oct. 11, 1968; Fernandez v. P. Cuerva & Co., L-
21114, Nov. 25, 1967; Gonzales v. Commission on Elections, L-28224, Nov.
29, 1967; Bara Lidasan v. COMELEC,
82

an endless line of decisions, too long to leave any room for

possible doubt that said issue is inherently and essentially
justiciable. Such, also, has been the consistent position of
the courts of the United States of America, whose decisions
have a persuasive effect in this jurisdiction, our
constitutional system in the 1935 Constitution being
patterned after that of the United States. Besides, no
plausible reason has, to my mind, been advanced to
warrant a departure from said position, consistently with
the form of government established under said
Constitution.
Thus, in the aforementioned plebiscite cases,18 We
rejected the theory of the respondents therein that the
question
_______________
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; Guevara 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; Mun. of Naguilian v.
NAWASA, L-18540, 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-Curing & 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 Office 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; Corominas, Jr. v. Labor
Standards Commission, L-14837, June 30, 1961; City of Baguio 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.
83
VOL. 50, MARCH 31, 1973 83

whether Presidential Decree No. 73 calling a plebiscite to

be held on January 15, 1973, for the ratification or rejection
of the proposed new Constitution, was valid or not, was not
a proper subject of judicial inquiry because, they claimed, it
partook of a political nature, and We unanimously declared
that the issue was a justiciable one. With identical
unanimity, We overruled the respondents’ contention in the
1971 habeas corpus cases,19 questioning Our authority to
determine the constitutional sufficiency of the factual bases
of the Presidential proclamation suspending the privilege
of the writ of habeas corpus on August 21, 1971, despite the
opposite view taken by this Court in Barcelona v.
Baker20 and Montenegro v. Castañeda,21 insofar as it
adhered to the former case, which view We, accordingly,
abandoned and refused to apply. For the same reason, We
did not apply and expressly modified, in Gonzales v.
Commission on Elections,22 the political-question theory
adopted in Mabanag v. Lopez Vito.23 Hence, respondents
herein urge Us to reconsider the action thus taken by the
Court and to revert to and follow the views expressed
in Barcelon v. Baker and Mabanag v. Lopez Vito.24
The reasons adduced in support thereof are, however,
substantially the same as those given in support of the
political-question theory advanced in said habeas
corpus and plebiscite cases, which were carefully
considered by this Court and found by it to be legally
unsound and constitutionally untenable. As a consequence,
Our decision in the
_______________
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.
84
aforementioned habeas corpus cases partakes of the nature

and effect of a stare decisis, which gained added weight by
its virtual reiteration in the plebiscite cases.
The reason why the issue under consideration and other
issues of similar character are justiciable, not political, is
plain and simple. One of the principal bases of the non-
justiciability of so-called political questions is the principle
of separation of powers — characteristic of the Presidential
system of government — the functions of which are
classified or divided, by reason of their nature, into three
(3) categories, namely: 1) those involving the making of
laws, which are allocated to the legislative department; 2)
those concerned mainly with the enforcement of such laws
and of judicial decisions applying and/or interpreting the
same, which belong to the executive department; and 3)
those dealing with the settlement of disputes, controversies
or conflicts involving rights, duties or prerogatives that are
legally demandable and enforceable, which are apportioned
to courts of justice. Within its own sphere — but only
within such sphere — each department is supreme and
independent of the others, and each is devoid of authority,
not only to encroach upon the powers or field of action
assigned to any of the other departments, but, also, to
inquire into or pass upon the advisability or wisdom of the
acts performed, measures taken or decisions made by the
other departments — provided that such acts, measures or
decisions are within the area allocated thereto by the
Constitution.25
This principle of separation of powers under the
presidential system goes hand in hand with the system of
checks and balances, under which each department is
vested by the Fundamental Law with some powers to
forestall, restrain or arrest a possible or actual misuse or
abuse of powers by the other departments. Hence, the
appointing power of the Executive, his pardoning power,
his veto power, his authority to call the Legislature or
Congress to special sessions and even to prescribe or limit
the object or objects of legislation that may be taken up in
such sessions, etc. Conversely, Congress or an agency or
arm thereof — such as the Commission on
_______________
25 In re McConaughy, 119 N.W. 408, 417.
85
VOL. 50, MARCH 31, 1973 85

Appointments — may approve or disapprove some

appointments made by the President. It, also, has the
power of appropriation, to “define, prescribe, and apportion
the jurisdiction of the various courts,” as well as that of
impeachment. Upon the other hand, under the judicial
power vested by the Constitution, the “Supreme Court and
x x x such inferior courts as may be established by law,”
may settle or decide with finality, not only justiciable
controversies between private individuals or entities, but,
also, disputes or conflicts between a private individual or
entity, on the one hand, and an officer or branch of the
government, on the other, or between two (2) officers or
branches of service, when the latter officer or branch is
charged with acting without jurisdiction or in excess
thereof or in violation of law. And so, when a power vested
in said officer or branch of the government
is absolute or unqualified, the acts in the exercise of such
power are said to be political in nature, and, consequently,
non-justiciable or beyond judicial review. Otherwise, courts
of justice would be arrogating upon themselves a power
conferred by the Constitution upon another branch of the
service to the exclusion of the others. Hence, in Tañada v.
Cuenco,26 this Court quoted with approval from In re
McConaughy,27 the following:

“ ‘At the threshold of the case we are met with the assertion
that the questions involved are political, and not judicial. If this is
correct, the court has no jurisdiction as the certificate of the state
canvassing board would then be final, regardless of the actual
vote upon the amendment. The question thus raised is a
fundamental one; but it has been so often decided contrary to the
view contended for by the Attorney General that it would seem to
be finally settled.
* * * *
“ ‘* * * What is generally meant, when it is said that a question
is political, and not judicial, is that it is a matter which is to be
exercised by the people in their primary political capacity, or that
it has been specifically delegated to some other department or
particular officer of the government, with discretionary power to
_______________
26 103 Phil. 1051, 1067.
27 119 N.W. 408, 411, 417.
86

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 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
him, free from judicial control, so long as he observes the laws act
within the limits of the power conferred. His discretionary acts
cannot be controllable, not primarily because they are of a politics
nature, but because the Constitution and laws have placed the
particular matter under his control. But every officer under
constitutional government must act accordingly to law and subject
its restrictions, and every departure therefrom or disregard thereof
must subject him to that restraining and controlling power of the
people, acting through the agency of the judiciary; for it must be
remembered that the people act through courts, as well as through
the executive or the Legislature. One department is just as
representative as the other, and the judiciary is the department
which is charged with the special duty of determining the
limitations which the law places upon all official action. The
recognition of this principle, unknown except in Great Britain and
America, is necessary, to “the end that the government may be one
of laws and not of men” — words which Webster said were the
greatest contained in any written constitutional document.”
(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 “x x x 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.”
87
VOL. 50, MARCH 31, 1973 87


Accordingly, when the grant of power is qualified,
conditional or subject to limitations, the issue on whether
or not the prescribed qualifications or conditions have been
met, or the limitations respected, is justiciable or non-
political, the crux of the problem being one of legality or
validity of the contested act, not its wisdom. Otherwise,
said qualifications, conditions or limitations — particularly
those prescribed or imposed by the Constitution — would
be set at naught. What is more, the judicial inquiry into
such issue and the settlement thereof are the 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,28 it was held that courts have a “duty, rather
than a power,” to determine whether another branch of the
government has “kept within constitutional limits.” Not
satisfied with this postulate, the court went farther and
stressed that, if the Constitution provides how it may be
amended — as it is in our 1935 Constitution —
“then, unless the manner is followed, the judiciary as the
interpreter of that constitution, will declare the amendment
invalid.”29 In fact, this very Court — speaking through
Justice Laurel, an outstanding authority on Philippine
Constitutional Law, as well as one of the highly respected
and foremost leaders of the Convention that drafted the
1935 Constitution — declared, as early as July 15, 1936,
that “(i)n times of social disquietude or political excitement,
the great landmarks of the Constitution are apt to be
forgotten or marred, if not entirely obliterated. In cases of
conflict, the 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.30
_______________
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. Tufly, 19 Nev. 391, 12 Pac. Rep. 835.
30 Angara v. Electoral Commission, 63 Phil. 139, 157. Italics ours.
88


The Solicitor General has invoked Luther v. Borden31 in
support of his stand that the issue under consideration is
non-justiciable in nature. Neither the factual background of
that case nor the action taken therein by the Federal
Supreme Court has any similarity with or bearing on the
cases under consideration.
Luther v. Borden was an action for trespass filed by
Luther with the Circuit Court of the United States against
Borden and others for having forcibly entered into Luther’s
house, in Rhode Island, sometime in 1842. The defendants
who were in the military service of said former colony of
England, alleged in their defense that they had acted in
obedience to the commands of a superior officer, because
Luther and others were engaged in a conspiracy to
overthrow the government by force and the state had been
placed by competent authority under Martial Law. Such
authority was the charter government of Rhode Island at
the time of the Declaration of Independence, for — unlike
other states which adopted a new Constitution upon
secession from England — Rhode Island retained its form
of government under a British Charter, making only such
alterations, by acts of the Legislature, as were necessary to
adapt it to its subsequent condition as an independent
state. It was under this form of government when Rhode
Island joined other American states in the Declaration of
Independence and, by subsequently ratifying the
Constitution of the United States, became a member of the
Union. In 1843, it adopted a new Constitution.
Prior thereto, however, many citizens had become
dissatisfied with the charter government. Memorials
addressed by them to the Legislature having failed to bring
about the desired effect, meetings were held and
associations formed — by those who belonged to this
segment of the population — which eventually resulted in a
convention called for the drafting of a new Constitution to
be submitted to the people for their adoption or rejection.
The convention was not authorized by any law of the
existing government. The delegates to such convention
framed a new Constitution which
_______________
31 12 L. ed. 581 (1849).
89
VOL. 50, MARCH 31, 1973 89

was submitted to the people. Upon the return of the votes

cast by them, the convention declared that said
Constitution had been adopted and ratified by a majority of
the people and became the paramount law and
Constitution of Rhode Island.
The charter government, which was supported by a
large number of citizens of the state, contested, however,
the validity of said proceedings. This notwithstanding, one
Thomas W. Dorr, who had been elected governor under the
new Constitution of the rebels, prepared to assert authority
by force of arms, and many citizens assembled to support
him. Thereupon, the charter government passed an Act
declaring the state under Martial Law and adopted
measures to repel the threatened attack and subdue the
rebels. This was the state of affairs when the defendants,
who were in the military service of the charter government
and were to arrest Luther, for engaging in the support of
the rebel government — which was never able to
exercise any authority in the state — broke into his house.
Meanwhile, the charter government had taken measures
to call its own convention to revise the existing form of
government. Eventually, a new constitution was drafted by
a convention held under the authority of the charter
government, and thereafter was adopted and ratified by
the people. “(T)he times and places at which the votes were
to be given, the persons who were to receive and return
them, and the qualifications of the voters having all been
previously authorized and provided for by law passed by the
charter government,” the latter formally surrendered all of
its powers to the new government, established under its
authority, in May 1843, which had been in
operation uninterruptedly since then.
About a year before, or in May 1842, Dorr, at the head of
a military force, had made an unsuccessful attempt to take
possession of the state arsenal in Providence, but he was
repulsed, and, after an “assemblage of some hundreds of
armed men under his command at Chepatchet in the June
following, which dispersed upon approach of the troops of
the old government, no further effort was made to
establish” his government. “x x x until the Constitution of
1843” — adopted under the auspices of the charter
government — “went into
90

operation, the charter government continued to assert its

authority and exercise its powers and to enforce obedience
throughout the state x x x.”
Having offered to introduce evidence to prove that the
constitution of the rebels had been ratified by the majority
of the people, which the Circuit Court rejected, apart from
rendering judgment for the defendants, the plaintiff took
the case for review to the Federal Supreme Court which
affirmed the action of the Circuit Court, stating:

“It is worthy of remark, however, when we are referring to the

authority of State decisions, that the trial of Thomas W. Dorr took
place after the constitution of 1843 went into operation. The
judges who decided that case held their authority under that
constitution and it is admitted on all hands that it was adopted by
the people of the State, and is the lawful and established
government. It is the decision, therefore, of a State court, whose
judicial authority to decide upon the constitution and laws of
Rhode Island is not questioned by either party to this controversy,
although the government under which it acted was framed and
adopted under the sanction and laws of the charter government.
“The point, then, raised here has been already decided by the
courts of Rhode Island. The question relates, altogether, to the
constitution and laws of that State, and the well settled rule in
this court is, that the courts of the United States adopt and follow
the decisions of the State courts in questions which concern merely
the constitution and laws of the State.
“Upon what ground could the Circuit Court of the United States
which tried this case have departed from this rule, and
disregarded and overruled the decisions of the courts of Rhode
Island? Undoubtedly the courts of the United States have certain
powers under the Constitution and laws of the United States
which do not belong to the State courts. But the power of
determining that a State government has been lawfully
established, which the courts of the State disown and repudiate, is
not one of them. Upon such a question the courts of the United
States are bound to follow the decisions of the State tribunals, and
must therefore regard the charter government as the lawful and
established government during the time of this contest.32
_______________
32 Luther v. Borden, supra, p. 598. Italics ours.
91
VOL. 50, MARCH 31, 1973 91


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
first being generally conceded to be a political question,
whereas the nature of the latter depends upon a number of
factors, one of them being whether the new Constitution
has been adopted in the manner prescribed in the
Constitution in force at the time of the purported
ratification of the former, which is essentially a justiciable
question. There was, in Luther v. Borden, a conflict
between two (2) rival governments, antagonistic to each
other, which is absent in the present cases. Here, the
Government established under the 1935 Constitution is the
very same government whose Executive Department has
urged the adoption of the new or revised Constitution
proposed by the 1971 Constitutional Convention and now
alleges that it has been ratified by the people.
In short, the views expressed by the Federal Supreme
Court in Luther v. Borden, decided in 1849, on 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
92

controlling, nor even persuasive in the present cases,

having as the Federal Supreme Court admitted
— no authority whatsoever to pass upon such matters or to
review decisions of said state court thereon. In fact,
referring to that case, the Supreme Court of Minnessota
had the following to say:
“Luther v. Borden, 7 How. 1, 12 L. Ed. 581, is always cited by

those who assert that the courts have no power to determine
questions of a political character. It is interesting historically, but
it has not the slightestapplication to the case at bar. When
carefully analyzed, it appears that it merely determines that
the federal courts will accept as final and controlling a decision of
the highest court of a state upon a question of the construction of
the Constitution of the state. x x x.33
Baker v. Carr,34 cited by respondents, involved an action

to annul a Tennessee statute apportioning the seats in the
General Assembly among the counties of the State, upon
the theory that the legislation violated the equal protection
clause. A district court dismissed the case upon the ground,
among others, that the issue was a political one, but, after
a painstaking review of the jurisprudence on the matter,
the Federal Supreme Court reversed the appealed decision
and held that said issue was justiciable and non-political,
inasmuch as: “x x x (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 x x x.”
Similarly, in Powell v. McCormack,35 the same Court,
speaking through then Chief Justice Warren, reversed a
decision of the Court of Appeals of New York affirming that
of a Federal District Court, dismissing Powell’s action for a
declaratory judgment declaring thereunder that he —
whose qualifications were uncontested — had been
unlawfully excluded from the 90th Congress of the U.S.
Said dismissal
_______________
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).
35 395 U.S. 486, 23 L. ed. 2d. 491, 89 S. Ct. 1944 (1969).
93
VOL. 50, MARCH 31, 1973 93

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. x x x.”36
In the light of the foregoing, and considering that Art.

XV of our 1935 Constitution prescribes the method or
procedure for its amendment, it is clear to my mind that
the question whether or not the revised Constitution
drafted by the 1971 Constitutional Convention has been
ratified in accordance with said Art. XV is a justiciable one
and 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 fide controversy as to whether some
action denominated ‘political’ exceeds constitutional
authority.”37
_______________
36 In re McConaughy, 119 N.W. 408, 415. Emphasis 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.
94

III
Has the proposed new or revised Constitution been
ratified conformably to said Art. XV of the 1935
Constitution?
Petitioners in L-36142 maintain the negative view, upon
ground: 1) that the President “is without authority to
create the Citizens’ Assemblies” through which,
respondents maintain, the proposed new Constitution has
been ratified; 2) that said Assemblies “are without power to
approve the proposed Constitution”; 3) that the President
“is without power to proclaim the ratification by the
Filipino people of the proposed Constitution”; and 4) that
“the election held (in the Citizens’ Assemblies) to ratify the
proposed Constitution was not a free election, hence null
and void.”
Apart from substantially reiterating these grounds
support of said negative view, the petitioners in L-36164
contend: 1) that the President “has no power to call a
plebiscite for the ratification or rejection” of the proposed
new Constitution or “to appropriate funds for the holding of
the said plebiscite”; 2) that the proposed new or revised
Constitution “is vague and incomplete,” as well as “contains
provisions which are beyond the powers of the 1971
Convention to enact,” thereby rendering it “unfit for x x x
submission the people”; 3) that “(t)he period of time
between November 1972 when the 1972 draft was approved
and January 11-15, 1973,” when the Citizens’ Assemblies
supposedly ratified said draft, “was too short, worse still,
there was practically no time for the Citizens’ Assemblies
to discuss the merits of the Constitution which the majority
of them have not read a which they never knew would be
submitted to them ratification until they were asked the
question — “do you approve of the New Constitution?”
during the said days of the voting”; and that “(t)here was
altogether no freedom discussion and no opportunity to
concentrate on the matter submitted to them when the
1972 draft was supposedly submitted to the Citizens’
Assemblies for ratification.”
Petitioner in L-36236 added, as arguments in support of
the negative view, that : 1) “(w)ith a government-controlled
press, there can never be a fair and proper submission of
the proposed
95
VOL. 50, MARCH 31, 1973 95

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

is null and void “(i)nasmuch as the ratification process”
prescribed “in the 1935 Constitution was not followed.”
Besides adopting substantially some of the grounds
relied upon by the petitioners in the above-mentioned
cases, the petitioners in L-36283 argue that “(t)he creation
of the Citizens’ Assemblies as the vehicle for the
ratification of the Constitution was a deception upon the
people since the President announced the postponement of
the January 15, 1973 plebiscite to either February 19 or
March 5, 1973.”38
The reasons adduced by the petitioners in L-36165 in
favor of the negative view have already been set forth
earlier in this opinion. Hence, it is unnecessary to
reproduce them here. So it is, with respect to the positions
taken in L-36165 by counsel for therein respondents Gil J.
Puyat and Jose Roy — although more will be said later
about them — and by the Solicitor General, on behalf of the
other respondents in that case and the respondents in the
other cases.
1. What is the procedure prescribed by the 1935
Constitution for its amendment?
Under section 1 of Art. XV of said Constitution, three (3)
steps are essential, namely:
1. That the amendments to the Constitution be proposed
either by Congress or by a convention called for that
purpose, “by a vote of three-fourths of all the Members of
the Senate and the House of Representatives voting
separately,” but “in joint session assembled”;
2. That such amendments be “submitted to the people
for their ratification” at an “election”; and
3. That such amendments be “approved by a majority of
the votes cast” in said election.
Compliance with the first requirement is virtually
conceded,
_______________
38 See p. 5 of the Petition.
96

although the petitioners in L-36164 question the authority

of the 1971 Constitutional Convention to incorporate
certain provisions into the draft of the new or revised
Constitution. The main issue in these five (5) cases hinges,
therefore, on whether or not the last two (2) requirements
have been complied with.
2. Has the contested draft of the new or revised
Constitution been submitted to the people for their
ratification conformably to Art. XV of the Constitution?
In this connection, other provisions of the 1935
Constitution concerning “elections” must, also, be taken
into account, namely, section I of Art. V and Art. X of said
Constitution. The former reads:
“Section 1. Suffrage may be exercised by male citizens of the

Philippines not otherwise disqualified by law, who are twenty-one
years of age or over and are able to read and write, and who shall
have resided in the Philippines for one year and in the
municipality wherein they propose to vote for at least six months
preceding the election. The National Assembly shall extend the
right of suffrage to women, if in a plebiscite which shall be held
for that purpose within two years after the adoption of this
Constitution, not less than three hundred thousand women
possessing the necessary qualifications shall vote affirmatively on
the question.”
Sections 1 and 2 of Art. X of the Constitution ordain in
part:
“Section 1. There shall be an independent Commission on

Elections composed of a Chairman and two other Members to be
appointed by the President with the consent of the Commission on
Appointments, who shall hold office for a term of nine years and
may not be reappointed. ...
“xxx xxx xxx
“Sec. 2. The Commission on Elections shall
have exclusive charge of the enforcement and administration of all
laws relative to the conduct of elections and shall exercise all
other functions which may be conferred upon it by law. It shall
decide, save those involving the right to vote, 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 officials. All law
enforcement agencies and
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VOL. 50, MARCH 31, 1973 97

instrumentalities of the Government, when so required by the

Commission, shall act as its deputies for the purpose of insuring
fee, orderly, and honest elections. The decisions, orders, and
rulings of the Commission shall be subject to review by the
Supreme Court.
“xxx xxx xxx”39

a. Who may vote in a plebiscite under Art. V of the
Constitution?
Petitioners maintain that section 1 of Art. V of the
Constitution is a limitation upon the exercise of the right of
suffrage. They claim that no other persons than “citizens of
the Philippines not otherwise disqualified by law, who are
twenty-one years of age or over and are able to read and
write, and who shall have resided in the Philippines for one
year and in the municipality wherein they propose to vote
for at least six months preceding the election,” may
exercise the right of suffrage in the Philippines. Upon the
other hand, the Solicitor General contends that said
provision merely guarantees the right of suffrage to persons
possessing the aforementioned qualifications and none of
the disqualifications, prescribed by law, and that said right
may be vested by competent authorities in
persons lacking some or all of the aforementioned
qualifications, and possessing some of the aforesaid
disqualifications. In support of this view, he invokes the
permissive nature of the language — “(s)uffrage may be
exercised” — used in section 1 of Art. V of the Constitution,
and the provisions of the Revised Barrio Charter, Republic
Act No. 3590, particularly sections 4 and 6 thereof,
providing that citizens of the Philippines “eighteen years of
age or over,” who are registered in the list of barrio
assembly members, shall be members thereof and may
participate as such in the plebiscites prescribed in said Act.
I cannot accept the Solicitor General’s theory. Art. V of
the Constitution declares who may exercise the right of
suffrage, so that those lacking the qualifications therein
prescribed may not exercise such right. This view is borne
out by the records of
_______________
39 Italics ours.
98

the Constitutional Convention that drafted the 1935

Constitution. Indeed, section 1 of Art. V of the 1935
Constitution was largely based on the report of the
committee on suffrage of the Convention that drafted said
Constitution which report was, in turn, “strongly
influenced by the election laws then in force in the
Philippines x x x.”40 Said committee had recommended: 1)
“That the right of suffrage should exercised only by male
citizens of the Philippines.” 2) “That should be limited to
those who could read and write.” 3) “That the duty to vote
should be made obligatory.” It appears that the first
recommendation was discussed extensively in the
Convention, and that, by way of compromise, it was
eventually agreed to include, in section 1 of Art. V of the
Constitution, the second sentence thereof imposing upon
the National Assembly established by the original
Constitution — instead of the bicameral Congress
subsequently created by amendment said Constitution —
the duty to “extend the right of suffrage women, if in a
plebiscite to, be held for that purpose within two years
after the adoption of this Constitution, not less than three
hundred thousand women possessing the necessary
qualifications shall vote affirmatively on the question.”41
The third recommendation on “compulsory” voting was,
also debated upon rather extensively, after which it was
rejected by the Convention.42 This accounts, in my opinion,
for the permissive language used in the first sentence of
said Art. V. Despite some debates on the age qualification
— amendment having been proposed to reduce the same to
18 or 20, which were rejected, and the residence
qualification, as well as the disqualifications to the exercise
of the right of suffrage — the second
recommendation limiting the right of suffrage to those who
could “read and write” was — in the language of Dr. Jose
M. Aruego, one of the Delegates to said Convention —
“readily approved in the Convention without any dissenting
vote,” although there was some debate on whether the
Fundamental Law should specify the language or dialect
that the voter could
_______________
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.
99
VOL. 50, MARCH 31, 1973 99

read and write, which was decided in the negative.43
What is relevant to the issue before Us is the fact that
the constitutional provision under consideration was meant
to be and is a grant or conferment of a right to persons
possessing the qualifications and none of the
disqualifications therein mentioned, which in turn,
constitute a limitation of or restriction to said right, and
cannot, accordingly, be dispensed with, except by
constitutional amendment. Obviously, every such
constitutional grant or conferment of a right is necessarily
a negation of the authority of Congress or of any other
branch of the Government to deny said right to the subject
of the grant — and, in this sense only, may the same
partake of the nature of a guarantee. But, this does not
imply not even remotely, that the Fundamental Law allows
Congress or anybody else to vest in those lacking the
qualifications and having the disqualifications mentioned
in the Constitution the right of suffrage.
At this juncture, it is noteworthy that the committee on
suffrage responsible for the adoption of section 1 of Art. V
of the Constitution was “strongly influenced by the election
laws then in force in the Philippines.” Our first Election
Law was Act 1582, passed on January 9, 1907, which was
partly amended by Acts 1669, 1709, 1726 and 1768, and
incorporated into the Administrative Code of 1916 — Act
2657 — as chapter 20 thereof, and then in the
Administrative Code of 1917 — Act 2711 — as chapter 18
thereof, which, in turn, was amended by Act 3387,
approved on December 3, 1927. Sections 431 and 432 of
said Code of 1917, prescribing, respectively, the
qualifications for and disqualifications from voting, are
quoted below.44 In all of these legislative acts, the
provisions concerning the qualifications of voters partook of
the nature of a grant or recognition of the right of suffrage,
and, hence, of a
_______________
43 Id., pp. 224-227.
44 SEC. 431. Qualifications 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
100

denial thereof to those who lacked the requisite

qualification and possessed any of the statutory
disqualifications. In short, the history of section 1, Art. V of
the Constitution, shows beyond doubt than the same
conferred — not guaranteed — the authority to persons
having the qualifications prescribed therein and none of
disqualifications to be specified in ordinary laws and,
necessary implication, denied such right to those lacking
any said qualifications, or having any of the
aforementioned disqualifications.
This view is further bolstered by the fact that the 1971
Constitutional Convention sought the submission to a
plebiscite of a “partial amendment” to said section 1 of Art.
V of the 1935 Constitution, by reducing the voting age from
_______________
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 five hundred pesos,
declared in their name for taxation purposes for a period 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 final 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 taken by 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 meetings for registration and
revision, that they are incapacitated preparing their ballots due to
permanent physical disability, present themselves at the hour of voting as
incapacitated, irrespective whether such incapacity be real or feigned.”
101
VOL. 50, MARCH 31, 1973 101

twenty-one (21) years to eighteen (18) years, which,

however, did not materialize on account of the decision of
this Court in Tolentino v. Commission on
Elections,45 granting the writs, of prohibition and
injunction therein applied for, upon the ground that, under
the Constitution, all of the amendments adopted by the
Convention should be submitted in “an election” or a single
election, not separately or in several or distinct elections,
and that the proposed amendment sought to be submitted
to a plebiscite was not even a complete amendment, but a
“partial amendment” of said section 1, which could be
amended further, after its ratification, had the same taken
place, so that the aforementioned partial amendment was,
for legal purposes, no more than a provisional or
temporary amendment. Said partial amendment was
predicated upon the generally accepted contemporary
construction that, under the 1935 Constitution, persons
below twenty-one (21) years of age could not exercise the
right of suffrage, without a previous amendment of the
Constitution.
Upon the other hand, the question, whether 18-year-old
members of barrio assemblies may vote in barrio assembly
plebiscites is, to say the least, a debatable one. Indeed,
there seems to be a conflict between the last paragraph of
said section 6 of Rep. Act No. 3590,46 pursuant to which the
“majority vote of all the barrio 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,47 ”(a)ll duly
registered barrio assembly
_______________
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 qualified to vote may
vote in the plebiscite. Voting procedures may be made either in writing as
in regular elections, and/or declaration by the voters to the board of
election tellers. 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.”
102

members qualified to vote” — who, pursuant to section 10

of the same Act, must be citizens “of the
Philippines, twenty-one years of age or over, able to read
and write,” and residents the barrio “during the six months
immediately preceding election, duly registered in the list
of voters” and “ otherwise disqualified x x x” — just like the
provisions of present and past election codes of the
Philippines and Art. V of the 1935 Constitution — “may
vote in the plebiscite.”
I believe, however, that the apparent conflict should
resolved in favor of the 21-year-old members of the
assembly, not only because this interpretation is in accord
with Art. V the Constitution, but, also, because provisions
of a Constitution — particularly of a written and rigid one,
like ours generally accorded a mandatory status — unless
the intention to the contrary is manifest, which is not so as
regards said Art. V — for otherwise they would not have
been considered sufficiently important to be included in the
Fundamental Law of the land.48 Besides, it would be
illogical, if not absurd, believe that Republic Act No. 3590
requires, for the most important measures for which it
demands — in addition to favorable action of the barrio
council — the approval of barrio assembly through
aplebiscite, lesser qualifications than those prescribed in
dealing with ordinary measures for which such plebiscite
need not be held.
It is similarly inconceivable that those who drafted the
1935 Constitution intended section 1 of Art. V thereof to
apply only to elections of public officers, not
to plebiscites for the ratification of amendments to the
Fundamental Law or revision thereof, or of an entirely new
Constitution, and permit the legislature to require lesser
qualifications for such ratification, notwithstanding the
fact that the object thereof much more important — if not
fundamental, such as the basic changes introduced in the
draft of the revised Constitution adopted by the 1971
Constitutional Convention, which a intended to be in force
permanently, or, at least, for many
_______________
48 Edwards v. Lesueur, 33 S.W. 1130; Johnson v. Grand Forks County,
113 N.W. 1071; Ellingham v. Dye (1912), 178 Ind. 336, 99 N.E. 1; State v.
Marcus, 160 Wis. 354, 152 N.W. 419.
103
VOL. 50, MARCH 31, 1973 103

decades, and to affect the way of life of the nation — and,

accordingly, demands greater experience and maturity on
the part of the electorate than that required for the election
of public officers,49 whose average term ranges from 2 to 6
years.
It is admitted that persons 15 years of age or over, but
below 21 years, regardless of whether or not they possessed
the other qualifications laid down in both the Constitution
and the present Election Code,50 and of whether or not they
are disqualified under the provisions of said Constitution
and Code,51 or those of Republic Act No. 3590,52 have
participated
_______________
49 In Alcantara v. Secretary of the Interior, 61 Phil. 459, this Court
held that “when a state constitution enumerates and fixes the
qualifications of those who may exercise the right of suffrage, the
legislature cannot take from nor add to said qualifications 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 office or trust, but, also, in deciding a controverted
question, it follows, considering the said ruling in Alcantara, that the
constitutional qualifications 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 officers by the people and all votings in connection with
plebiscites shall be conducted in conformity with the provisions of said
Code.
50 Republic Act No. 6388, section 101 of which, in part, provides:
“SEC. 101. Qualifications prescribed for a voter.—Every citizen of the
Philippines, not otherwise disqualified 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 final 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
disqualified to vote under this paragraph shall
104

and voted in the Citizens’ Assemblies that have allegedly
ratified the new or revised Constitution drafted by the 1971
Constitutional Convention.
In fact, according to the latest official data, the total
number of registered voters 21 years of age or over in the
entire Philippines, available in January 1973, was less
than 12 million. Yet, Proclamation No. 1102 states that
14,976,56 “members of all the Barangays (Citizens
Assemblies) voted for the adoption of the proposed
Constitution, as against x x x 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, “x x x 14,298,814 answered that there
was no need for a plebiscite and that the vote of the
Barangays (Citizens Assemblies) should be considered as a
vote in a plebiscite.” In other words, it is conceded that the
number of people who allegedly voted at the Citizens’
Assemblies for exceeded the number of registered
voters under the Election Code in force in January 1973.
It is thus clear that the proceedings held in such
Citizens’ Assemblies — and We have more to say on this
point in subsequent pages — were fundamentally irregular,
in that persons lacking the qualifications prescribed in
section 1 of
_______________
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 final judgment to suffer an imprisonment of not less than
one year.
“(b) Any person who has been adjudged by final 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. x x x
“The following persons shall not be qualified to vote:
“a. Any person who has been sentenced by final judgment to suffer one
year or more of imprisonment, within two years after service of his
sentence;
“b. Any person who has violated his allegiance to the Republic of the
Philippines; and
“c. Insane or feeble-minded persons.”

105
VOL. 50, MARCH 31, 1973 105

Art. V of the Constitution were allowed to vote in said

Assemblies. And, since there is no means by which the
invalid votes of those less than 21 years of age can be
separated or segregated from those of the qualified voters,
the proceedings in the Citizens’ Assemblies must be
considered null and void.53
It has been held that “(t)he power to reject an entire poll
x x x should be exercised x x x 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 x x x.”54
In Usman v. Commission on Elections, et al.,55 We held:
“Several circumstances, defying exact description and

dependent mainly on the factual milieu of the particular
controversy, have the effect of destroying the integrity and
authenticity of disputed election returns and of avoiding
their prima facie value and character. If satisfactorily proven,
although in a summary proceeding, such circumstances as alleged
by the affected or interested parties, stamp the election returns
with the indelible mark of falsity and irregularity, and,
consequently, of unreliability, and justify their exclusion from the
canvass.”
Then, too, the 1935 Constitution requires “a majority of

the votes cast” for a proposed amendment to the
Fundamental Law to be “valid” as part thereof, and the
term “votes cast” has a well-settled meaning.

“The term ‘votes cast’ x x x was held in Smith v. Renville

County Commissioners, 65 N.W. 956, 64 Minn. 16, to have been
used as an equivalent of ‘ballots cast.’ ”56“The word ‘cast’ is
defined as ‘to deposit formally or officially.’ ”57
_______________
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.
106


“It seems to us that a vote is cast when
a ballot is deposited indicating a ‘choice.’ x x x The word “cast”
means “deposit (a ballot) formally or officially x x x.’
“x x x In simple words, we would define a ‘vote cast’ as the
exercise on a ballot of the choice of the voter on the measure
proposed.”58
In short, said Art. XV envisages — with the term “votes

cast” — choices made on ballots — not orally or by raising
— by the persons taking part in plebiscites. This is but
natural and logical, for, since the early years of the
American regime, we had adopted the Australian Ballot
System, with its major characteristics, namely, uniform
official ballots prepared and furnished by the Government
and secrecy in the voting, with the advantage of keeping
records that permit judicial inquiry, when necessary, into
the accuracy of the election returns. And the 1935
Constitution has been consistently interpreted
in all plebiscites for the ratification rejection of proposed
amendments thereto, from 1935 to 1967. Hence, the viva
voce voting in the Citizens’ Assemblies was and is null and
void ab initio.
b. How should the plebiscite be held? (COMELEC
supervision indispensable; essential requisites)
Just as essential as compliance with said Art. V of the
19 Constitution is that of Art. X thereof, particularly its
sections 1 and 2. Indeed, section 1 provides that “(t)here
shall be an independent Commission on Elections x x x.”
The point to be stressed here is the term “independent.”
Indeed, why was the term used?
In the absence of said constitutional provision as to the
independence of the Commission, would it have been
depends upon either Congress or the Judiciary? The
answer must be the negative, because the functions of the
Commission — “enforcement and administration” of
election laws — are neither legislative nor judicial in
nature, and, hence, beyond
_______________
58 Port of Palm Beach District v. State, 22 So. 2d. 581, 582-583. Italics
ours.
107
VOL. 50, MARCH 31, 1973 107

the field allocated to either Congress or courts of justice.

Said functions are by their nature essentially executive, for
which reason, the Commission would be under the “control”
of the President, pursuant to section 10, paragraph (1) of
Art. VII of the Constitution, if Art. X thereof did not
explicitly declare that it (the Commission) is an
“independent” body. In other words, in amending the
original 1935 Constitution, by inserting therein said Art. X,
on the Commission on Elections, the purpose was to make
said Commission independent principally of the Chief
Executive.
And the reason therefor is, also, obvious. Prior to the
creation of the Commission on Elections as a constitutional
organ, election laws in the Philippines were enforced by the
then Department of the Interior, through its Executive
Bureau, one of the offices under the supervision and control
of said Department. The same — like other departments of
the Executive Branch of the Government — was, in turn,
under the control of the Chief Executive, before the
adoption of the 1935 Constitution, and had been — until
the abolition of said Department, sometime ago — under
the control of the President of the Philippines, since the
effectivity of said Fundamental Law. Under the provisions
thereof, the Executive could so use his power of control over
the Department of the Interior and its Executive Bureau as
to place the minority party at such a great, if not decisive,
disadvantage, as to deprive it, in effect, of the opportunity
to defeat the political party in power, and, hence, to enable
the same to perpetuate itself therein. To forestall this
possibility, the original 1935 Constitution was amended by
the establishment of the Commission on Elections as a
constitutional body independent primarily of the
President of the Philippines.
The independence of the Commission was sought to be
strengthened by the long term of office of its members —
nine (9) years, except those first appointed59 — the longest
under the Constitution, second only to that of the Auditor
General60; by
_______________
59 Art. X, section 1 of the 1935 Constitution.
60 Ten (10) years.
108

providing that they may not be removed from office except

by impeachment, placing them, in this respect, on the same
plane as the President, the Vice-President, the Justices of
the Supreme Court and the Auditor General; that they may
not be reappointed; that their salaries, “shall be neither
increased nor diminished during their term of office”; that
the decisions the Commission “shall be subject to review by
the Supreme Court” only61; that “(n)o pardon, parole, or
suspension sentence for the violation of any election law
may be granted without the favorable recommendation of
the Commission”62; and, that its chairman and members
“shall not, during the continuance in office, engage in the
practice of any profession or intervene, directly or
indirectly, in the management or control of any private
enterprise which in anyway may affected by the functions
of their office; nor shall they, directly or indirectly, be
financially interested in any contract with the Government
or any subdivision or instrumentality thereof.”63 Thus, the
framers of the amendment to the original Constitution of
1935 endeavored to do everything possible protect and
insure the independence of each member of the
Commission.
With respect to the functions thereof as a body, section 2
of said Art. X ordains that “(t)he Commission on Elections
shall have exclusive charge of the enforcement and
administration all laws relative to the conduct of elections,”
apart from such other “functions which may be conferred
upon it by law.” It further provides that the Commission
“shall decide, save those involving the right to
vote, all administrative question affecting elections,
including the determination of the number and location of
polling places, and the appointment of election inspectors
and of other election officials.” And, to forests possible
conflicts or frictions between the Commission, on one hand,
and the other offices or agencies of the executive
department, on the other, said section 2 postulates that
“(a)ll law enforcement agencies and instrumentalities of
the Government, when so required by the Commission,
shall act as
_______________
62 Ibid.
109
VOL. 50, MARCH 31, 1973 109

its deputies for the purpose of insuring free, orderly, and

honest elections.” Not satisfied with this, it declares, in
effect, that “(t)he decisions, orders, and ruling of the
Commission” shall not be subject to review, except by the
Supreme Court.
In accordance with the letter and spirit of said Art. X of
the Constitution, Rep. Act No. 6388, otherwise known as
the Election Code of 1971, implements the constitutional
powers of the Commission on Elections and grants
additional powers thereto, some of which are enumerated
in sections 5 and 6 of said Act, quoted below.64 Moreover,
said Act contains, inter alia, detailed provisions regulating
contributions and other
_______________
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 and such other subordinate
officers and employees as may be necessary for the efficient 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 officer 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 he 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 officer 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 land bring him before the Commission or officer 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
110

(corrupt) practices; the establishment of election precincts;

the designation and arrangement of polling places,
including voting booths, to protect the secrecy of the ballot;
formation of lists of voters, the identification and
registration of voters, the proceedings therefor, as well as
for the inclusion in, or exclusion or cancellation from said
list and the publication thereof; the establishment of
municipal, provincial and files of registered voters; the
composition and appointment of board of election
inspectors; the particulars of the official ballots to be used
and the precautions to be taken to insure authenticity
thereof; the procedure for the casting of votes; the counting
of votes by boards of inspectors; the rules for the
appreciation of ballots and the preparation and disposition
of election returns; the constitution and operation of
municipal, provincials and national boards of canvassers;
the presentation of the political parties and/or their
candidates in each election precinct; the proclamation of
the results, including, in the case of election of public
officers, election contests; and the jurisdiction of courts of
justice in cases of violation of the provisions of said Election
Code and the penalties for such violations.
Few laws may be found with such meticulous and
elaborate set of provisions aimed at “insuring free, orderly,
and honest election,” as envisaged in section 2 of Art. X of
the Constitution. Yet, none of the foregoing constitutional
and statutory provisions was followed by the so-called
Barangays or Citizens’ Assemblies. And no reasons have
been given, or
_______________
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, deputized 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
a certiorari in accordance with the Rules of Court or such applicable laws
as may enacted.
“Any violation of any final executory decision, order or ruling of the
Commission shall constitute contempt thereof.”
111
VOL. 50, MARCH 31, 1973 111

even sought to be given therefor. In many, if not most,

instances, the election were held a viva voce, thus depriving
the electorate of the right to vote secretly — one of the
most, fundamental and critical features of our election laws
from time immemorial — particularly at a time when the
same was of utmost importance, owing to the existence of
Martial Law.
In Glen v. Gnau,65 involving the casting of many votes,
openly, without complying with the requirements of the
law pertinent thereto, it was held that the “election
officers” involved “cannot be too strongly condemned”
therefor and that if they “could legally dispense with such
requirement ... they could with equal propriety dispense
with all of them, including the one that the vote shall be by
secret ballot, or even by ballot at all x x x.”
Moreover, upon the formal presentation to the Executive
of the proposed Constitution drafted by the 1971
Constitutional Convention, or on December 1, 1972,
Presidential Decree No. 73 (on the validity of which —
which was contested in the plebiscite cases, as well as in
the 1972 habeas corpus cases66 — We need not, in the case
of bar, express any opinion) was issued, calling a plebiscite,
to be held on January 15, 1973, at which the proposed
Constitution would be submitted to the people for
ratification or rejection; directing the publication of said
proposed Constitution; and declaring, inter alia, that “(t)he
provision of the Election Code of 1971, insofar as they are
not inconsistent” with said decree — excepting those
“regarding right and obligations of political parties and
candidates” — “shall apply to the conduct of the plebiscite.”
Indeed, section 2 of said Election Code of 1971 provides
that “(a)ll elections of public officers except barrio
officials and plebiscites shall be
_______________
65 64 S.W. 2d. 168.
66 L-35538, Roses, 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 Doronila, et al. v.
Secretary of National Defense, et al.; L-35573, Randon v. Hon. Enrile, et
al.
112

conducted in the manner provided by this Code.” General

Order No. 20, dated January 7, 1973, postponing until
further notice, “the plebiscite scheduled to be held on
January 15, 1973,” said nothing about the procedure to be
followed in plebiscite to take place at such notice, and no
other order or decree has been brought to Our attention,
expressly or impliedly repealing the provisions of
Presidential Decree 73, insofar as said procedure is
concerned.
Upon the other hand, said General Order No. 20
expressly suspended “the provisions of Section 3 of
Presidential Decree No. 73 insofar as they allow free public
discussion of proposed Constitution x x x temporarily
suspending effects of Proclamation No. 1081 for the
purposes of free open debate on the proposed Constitution
x x x.” This specific mention of the portions of the decrees
or orders or instructions suspended by General Order No.
20 necessarily implies that all other portions of said
decrees, orders or instructions — and, hence, the provisions
of Presidential Decree No. 73 outlining the procedure to be
followed in the plebiscite for ratification or rejection of the
proposed Constitution — remained in force, assuming that
said Decree is valid.
It is claimed that by virtue of Presidential Decree No.
86-A — the text of which is quoted below67 — the Executive
declared,
_______________
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
field as gathered from barangays (citizens assemblies) have so far been
established, the people would like to decide themselves questions or
issues, both local and national, affecting their day to day lives and their
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
113
VOL. 50, MARCH 31, 1973 113

inter alia, that the collective views expressed in the

Citizens’ Assemblies “shall be considered in the
formulation of national policies or programs and, wherever
practicable, shall be translated into concrete and specific
decision”; that such Citizens’ Assemblies “shall consider
vital national issues x x x like the holding of the plebiscite
on the new Constitution x x x 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
_______________
conduct immediately a referendum on certain specified questions such as
the ratification of the new Constitution, continuance of martial law, the
convening of Congress on January 22, 1973, and the elections in
November 1973 pursuant to the 1935 Constitution.
“NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the
Philippines, by virtue of the powers vested in me by the Constitution as
Commander-in-Chief of all Armed Forces of the Philippines, do hereby
declare as part of the law of the land the following.
“1. The present barangays (citizens assemblies) are created under
Presidential Decree No. 86 dated December 31, 1972, shall constitute the
base for citizen participation in governmental affairs and their collective
views shall be considered in the formulation of national policies or
programs and, wherever practicable, shall be translated into concrete and
specific decision;
“2. Such barangays (citizens assemblies) shall consider vital national
issues now confronting the country, like the holding of the plebiscite on
the new Constitution, the continuation of martial rule, the convening of
Congress on January 22, 1973, and the holding of elections in November
1973, and others in the future, which shall serve as guide or basis for
action or decision by the national government;
“3. The barangays (citizens assemblies) shall conduct between January
10 and 15, 1973, a referendum on important national issues, including
those specified in paragraph 2 hereof, and submit the results thereof to
the Department of Local Governments and Community Development
immediately thereafter, pursuant to the express will of the people as
reflected in the reports gathered from the many thousands of barangays
(citizens assemblies) throughout the country.
“4. This Decree shall take effect immediately.
“Done in the City of Manila, this 5th day of January, in the year of Our
Lord, nineteen hundred and seventy-three.” (Italics ours.)
114

those specified in paragraph 2 hereof, and submit the
results thereof to the Department of Local Governments
and Community Development immediately thereafter,
x x x.” As in Presidential Decree No. 86, this Decree No. 86-
A does not and cannot exclude the exercise of the
constitutional supervisory power of the Commission on
Elections or its participation in the proceedings in said
Assemblies, if the same had been intended to constitute the
“election” or Plebiscite required Art. V of the 1935
Constitution. The provision of Decree No. 86-A directing
the immediate submission of the result thereof to the
Department of Local Governments Community
Development is not necessarily inconsistent with, and must
be subordinate to the constitutional power of the
Commission on Elections to exercise its “exclusive
authority over the enforcement and administration of all
laws to the conduct of elections,” if the proceedings in the
Assemblies would partake of the nature of an “election” or
plebiscite for the ratification or rejection of the proposed
Constitution.
We are told that Presidential Decree No. 86 was further
amended by Presidential Decree No. 86-B, dated 1973,
ordering “that important national issues shall from time to
time; be referred to the Barangays (Citizens Assemblies)
for resolution in accordance with Presidential Decree No.
86-A dated January 5, 1973 and that the initial referendum
include the matter of ratification of the Constitution by the
1971 Constitutional Convention” and that “(t)he Secretary
of the Department of Local Governments and Community
Development shall insure the implementation of this
order.” As in the case of Presidential Decrees Nos. 86 and
86-A, the foregoing directives do not necessarily exclude
exercise of the powers vested by the 1935 Constitution in
the Commission on Elections, even if the Executive had the
authority to repeal Art. X of our Fundamental Law —
which he does not possess. Copy of Presidential Decree No.
86-B is appended hereto as Annex B hereof.
The point is that, such of the Barrio Assemblies as were
held took place without the intervention of the Commission
on Elections, and without complying with the provisions of
the Election Code of 1971 or even of those of Presidential
Decree
115
VOL. 50, MARCH 31, 1973 115

No. 73. What is more, they were held under the

supervision of the very officers and agencies of the Executive
Department sought to be excluded therefrom by Art. X of
the 1935 Constitution. Worse still, said officers and
agencies of the 1935 Constitution would be favored thereby,
owing to the practical indefinite extension of their
respective terms of office in consequence of section 9 of the
Transitory Provisions, found in Art. XVII of the proposed
Constitution, without any elections therefor. And the
procedure therein mostly followed is such that there is no
reasonable means of checking the accuracy of the returns
files by the officers who conducted said plebiscites. This is
another patent violation of Art. of the Constitution which
can hardly be sanctioned. And, since the provisions of this
article form part of the fundamental scheme set forth in
the 1935 Constitution, as amended, to insure the “free,
orderly, and honest” expression of the people’s will, the
aforementioned violation thereof renders null and void the
contested proceedings or alleged plebiscite in the Citizens’
Assemblies, insofar as the same are claimed to have
ratified the revised Constitution proposed by the 1971
Constitutional Convention. “x x x (a)ll the authorities
agree that the legal definition of an election, as well as that
which is usually and ordinarily understood by the term, is
a choosing or as election by those having a right to
participate (in the selection) of those who shall fill the
offices, or of the adoption or rejection of any public measure
affecting the territory involved. 15 Cyc. 279; Lewis v.
Boynton, 25 Colo. 486, 55 Pac. 732; Saunders v. Haynes, 13
Cal. 145; Seaman v. Baughman, 82 Iowa 216, 47 N.W.
1091, 11 L.R.A. 354; State v. Hirsh, 125 Ind. 207, 24 N.E.
1062, 9 L.R.A. 170; Bouvier’s Law Dictionary.68
_______________
68 McKinney v. Baker, 180 Ky. 526 203 S.W. 303, 304. Italics ours.
116

IV
Has the proposed Constitution aforementioned been
approved by a majority of the people in Citizens’ Assemblies
allegedly held throughout the Philippines?
Respondents maintain the affirmative, relying upon
Proclamation No. 1102, the validity of which is precisely
being contested by petitioners herein. Respondents claim
that said proclamation is “conclusive” upon this Court, or
is, at least, entitled to full faith and credence, as an
enrolled bill; that the proposed Constitution has been, in
fact, ratified, approved or adopted by the “overwhelming”
majority of the people; that Art. XV of the 1935
Constitution has thus been “substantially” complied with;
and that the Court refrain from passing upon the validity
of Proclamation No. 1102, not only because such question is
political in nature, but, also, because should the Court
invalidate the proclamation, the former would, in effect,
veto the action of the people in whom sovereignty resides
and from its power are derived.
The major flaw in this process of rationalization is that
it assumes, as a fact, the very premise on which it is
predicated, and which, moreover, is contested by the
petitioners. As the Supreme Court of Minnessota has aptly
put it —
“x x x every officer under a constitutional government must act

according to law and subject to its restrictions, and every
departure therefrom or disregard thereof must subject him to the
restraining and controlling of the people, acting through the
agency of the judiciary; for it must be remembered that the people
act through courts, as well as through the executive or the
Legislature. One department is just as representative as the
other, and the judiciary is the department which is charged with
the special duty of determining the limitations which the law
places upon all official action. x x x.”
Accordingly, the issue boils downs to whether or not the
Executive acted within the limits of his authority when he
117
VOL. 50, MARCH 31, 1973 117

certified in Proclamation No. 1102 “that the Constitution

Constitutional Convention has been ratified by an
overwhelming majority of all of the votes cast by the
members of all the Barangays (Citizens Assemblies)
throughout the Philippines and has thereby come into
effect.”
In this connection, it is not claimed that the Chief
Executive had personal knowledge of the data he certified
in said proclamation. Moreover, Art. X of the 1935
Constitution was precisely inserted to place beyond the
Executive the power to supervise or even
exercise any authority whatsoever over “all laws relative to
the conduct of elections,” and, hence, whether the elections
are for the choice or selection of public officers or for the
ratification or rejection of any proposed amendment, or
revision of the Fundamental Law, since the proceedings for
the latter are, also, referred to in said Art. XV as
“elections.”
The Solicitor General stated, in his argument before this
Court, that he had been informed that there was in each
municipality a municipal association of presidents of the
citizens’ assemblies for each barrio of the municipality; that
the president of each such municipal association formed
part of a provincial or city association of presidents of such
municipal associations; that the president of each one of
these provincial or city associations in turn formed part of
a National Association or Federation of Presidents of such
Provincial or City Associations; and that one Francisco
Cruz from Pasig, Rizal, as President of said National
Association or Federation, reported to the President of the
Philippines, in the morning of January 17, 1973, the total
result of the voting in the citizens’ assemblies all over the
country from January 10 to January 15, 1973. The Solicitor
General further intimated that the said municipal
associations had reported the results of the citizens’
assemblies in their respective municipalities to the
corresponding Provincial Association, which, in turn,
transmitted the results of the voting in the to the
Department of Local Governments and Community
Development, which tabulated the results of the voting in
the citizens’ assemblies throughout the Philippines and
then turned them over to Mr. Francisco Cruz, as President
or acting
118

President of the National Association or Federation,

whereupon Mr. Cruz, acting in a ceremonial capacity,
reported said results (tabulated by the Department of
Governments and Community Development) to the Chief
Executive, who, accordingly, issued Proclamation No. 1102.
The record shows, however, that Mr. Cruz was not even
a member of any barrio council since 1972, so that he could
possibly have been a member on January 17, 1973, of
a municipal association of presidents of barrio or ward
citizens’ assemblies, much less of a Provincial, City or
National Association or Federation of Presidents of any
such provincial or city associations.
Secondly, at the conclusion of the hearing of these cases
February 16, 1973, and in the resolution of this Court of
same date, the Solicitor General was asked to submit,
together with his notes on his oral argument, a true copy of
aforementioned report of Mr. Cruz to the President and of
“(p)roclamation, decree, instruction, order, regulation or
circular, if any, creating or directing or authorizing
creation, establishment or organization” of said municipal,
provincial and national associations, but neither a copy of
alleged report to the President, nor a copy of any
“(p)roclamation, decree, instruction, order, regulation or
circular,” has been submitted to this Court. In the absence
of said report, “(p)roclamation, decree, instruction,” etc.,
Proclamation No. 1102 is devoid of any factual and legal
foundation. Hence, the conclusion set forth in the
dispositive portion of said Proclamation No. 1102, to the
effect that the proposed new or revised Constitution had
been ratified by majority of the votes cast by the people,
can not possibly have any legal effect or value.
The theory that said proclamation is “conclusive upon
Court is clearly untenable. If it were, acts of the Executive
and those of Congress could not possibly be annulled or
invalidated by courts of justice. Yet, such is not the case. In
fact, even a resolution of Congress declaring that a given
person has been elected President or Vice-President of the
Philippines as
119
VOL. 50, MARCH 31, 1973 119

provided in the Constitution,69 is not conclusive upon the

courts. It is no more than prima facie evidence of what is
attested to by said resolution.70 If assailed directly in
appropriate proceedings, such as an election protest, if and
when authorized by law, as it is in the Philippines, the
Court may receive evidence and declare, in accordance
therewith, who was duly elected to the office involved.71 If
prior to the creation of the Presidential Electoral Tribunal,
no such protest could be filed, it was not because the
resolution of Congress declaring who had been elected
President or Vice-President was conclusive upon courts of
justice, but because there was no law permitting the filing
of such protest and declaring what court or body would
hear and decide the same. So, too, a declaration to the
effect that a given amendment to the Constitution or
revised or new Constitution has been ratified by a majority
of the votes cast therefor, may be duly 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 McConaughy72 is squarely in point. “As
the Constitution stood from the organization of the state”
— of Minnessota — “all taxes were required to be raised
under the system known as the ‘general property tax.’
Dissatisfaction with the results of this method and the
development of more scientific and satisfactory methods of
raising revenue induced
_______________
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.
120

the Legislature to submit to the people an amendment to

the Constitution which provided merely that taxes shall be
uniform upon the same class of subjects. This proposed
amendment was submitted at the general election held in
November, 1906, and in due time it was certified by the
state canvassing board and proclaimed by the Governor as
having been legally adopted. Acting upon the assumption
that the amendment had become a part of the Constitution,
the Legislature enacted statutes providing for a State Tax
Commission and a mortgage registry tax, and the latter
statute, upon the same theory, was held constitutional” by
said Court. “The district court found that the amendment
had no in fact been adopted, and on this appeal” the
Supreme Court was “required to determine the
correctness of that conclusion.”
Referring to the effect of the certification of the State
Board of Canvassers created by the Legislature and of 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
board and add up and certify the results. State v. Mason,
45 Wash. 234, 88 Pac. 126, 9 L.R.A. (U.S.) 1221. It
is settled law that the decisions of election officers, and
canvassing boards are not conclusive and that the final
decision must rest with the courts, unless the law declares
that the decisions of the board shall be final” — and there
is no such law in the cases at bar. “x x x The correctness of
the conclusion of the state board rests upon the correctness
of the returns made by the county boards and it
is inconceivable that it was intended that this statement of
result should be final and conclusive regardless of the
actual facts. The proclamation of the Governor
adds nothing in the way of conclusiveness to the legal effect
of the action of the canvassing board. Its purpose is to
formally notify the people of the state of the result of the
voting as found by the canvassing board. James on Const.
Conv. (4th Ed.) sec. 523.”
In Bott v. Wartz,73 the Court reviewed the statement of
results of the election made by the canvassing board, in
order that the true results could be judicially determined.
And so did
_______________
73 63 N.J. Law, 289, cited in In re McConaughy, supra.
121
VOL. 50, MARCH 31, 1973 121

the court in Rice v. Palmer.74

Inasmuch as Art. X of the 1935 Constitution places
under the “exclusive” charge of the Commission on
Elections, “the enforcement and administration of all laws
relative to the conduct of elections,” independently of the
Executive, and there is not even a certification by the
Commission in support of the alleged results of the citizens’
assemblies relied upon in Proclamation No. 1102 — apart
from the fact that on January 17, 1973 neither the alleged
president of the Federation of Provincial or City Barangays
nor the Department of Local Governments had certified to
the President the alleged result of the citizens’ assemblies
all over the Philippines — it follows necessarily that, from
a constitutional and legal viewpoint, Proclamation No.
1102 is not even prima facie evidence of the alleged
ratification of the proposed Constitution.
Referring particularly to the cases before Us, it will be
noted that, as pointed out in the discussion of the preceding
topic, the new or revised Constitution proposed by the 1971
Constitutional Convention was not ratified in accordance
with the provisions of the 1935 Constitution. In fact, it has
not even been, ratified in accordance with said proposed
Constitution, the minimum age requirement therein for the
exercise of the right of suffrage 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 ratification of an
amendment or revision of the first Constitution or the
effectivity of the proposed Constitution, and the phrase
“votes cast” has been construed to mean “votes made in
writing not orally, as it was in many Citizens’ Assemblies.75
Even counsel for Gil J. Puyat and Jose Roy, as
respondents in L-36165, asserts openly that Art. XV of the
Constitution has not been complied with, and since the
alleged substantial compliance with the requirements
thereof partakes of the
_______________
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.
122

nature of a defense set up by the other respondents in

these cases, the burden of proving such defense — which, if
true, should be within their peculiar knowledge — is
clearly on such respondents. Accordingly, if despite the
extensive notes and documents submitted by the parties
herein, the members of the Court do not know or are not
prepared to say whether or not the majority of the people or
of those who took part in the Citizens’ Assemblies have
assented to the proposed Constitution, the logical step
would be to give due course to these cases, require the
respondents to file their answers, and the plaintiffs their
reply, and, thereafter, to receive the pertinent evidence and
then proceed to the determination of the issues raised
thereby. Otherwise, we would be placing upon the
petitioners the burden of disproving a defense set up by the
respondents, who 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 ratification or rejection of the proposed
Constitution. Hence, in Our decision in the plebiscite cases,
We said, inter alia:

“Meanwhile, or on December 17, 1972, the President had

issued an order temporarily suspending the effects of
Proclamation No. 1081, for the purpose of free and open debate on
the Proposed Constitution. On December 23, the President
announced the postponement of the plebiscite for the ratification
or rejection of the Proposed Constitution. No formal action to this
effect was taken until January 7, 1973, when General Order No.
20 was issued, directing ‘that the plebiscite scheduled to be held
on January 15, 1973, be postponed until further notice.’ Said
General Order No. 20, moreover, ‘suspended in the meantime’ the
‘order of December 17, 1972, temporarily suspending the effects of
Proclamation No. 1081 for purposes of free and open debate on the
proposed Constitution.’
“In view of these events relative to the postponement of the
aforementioned plebiscite, the Court deemed it fit to refrain, for the
time being, from deciding the aforementioned cases, for neither the
date nor the conditions under which said plebiscite would be held
were known or announced officially. Then again, Congress was,
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VOL. 50, MARCH 31, 1973 123

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 cases76 — the President
announced the postponement of the plebiscite scheduled by
Presidential Decree No. 73 to be held on January 15, 1973,
after consultation with the Commission on Elections and
the leaders of Congress, owing to doubts on the sufficiency
of the time available to translate the proposed Constitution
into some local dialects and to comply with some pre-
electoral requirements, as well as to afford the people a
reasonable opportunity to be posted on the contents and
implications of said transcendental document. On January
7, 1973, General Order No. 20 was issued formally,
postponing said plebiscite “until further notice.” How can
said postponement be reconciled with the theory that the
proceedings in the Citizens’ Assemblies scheduled to be
held from January 10 to January 15, 1973, were
“plebiscites,” in effect, accelerated, according to the theory
of the Solicitor General, for the ratification of the proposed
Constitution? If said Assemblies were meant to be the
plebiscites or elections envisaged in Art. XV of the
Constitution, what, then, was the “plebiscite”postponed by
General Order No. 20? Under these circumstances, it was
only reasonable for the people who attended such
assemblies to believe that the same were not an “election”
or plebiscite for the ratification or adoption of said proposed
Constitution.
And, this belief is further bolstered up by the questions
propounded in the Citizens’ Assemblies, namely:

“[1] Do you like the New Society?
_______________
76 On December 19, 1972.
124


“[2] Do you like the reforms under martial law?
“[3] Do you like Congress again to hold sessions?
“[4] Do you like the plebiscite to be held later?
“[5] Do you like the way President Marcos is running the affairs
of the government? [Bulletin Today, January 10, 1973; emphasis
an additional question.]
“[6] Do you approve of the citizens assemblies as the base of
popular government to decide issues of national interests?
“[7] Do you approve of the new Constitution?
“[8] Do you want a plebiscite to be called to ratify the new
Constitution?
“[9] Do you want the elections to be held in November, 1973 in
accordance with the provisions of the 1935 Constitution?
“[10] If the elections would not be held, when do you want the
next elections to be called?
“[11] Do you want martial law to continue?” [Bulletin Today,
January 11, 1973]

To begin with, questions nos. 1, 2, 3, 4, 5, 6, 9, 10 and 11
are not proper in a plebiscite for the ratification of a
proposed Constitution or of a proposed amendment thereto.
Secondly, neither is the language of question No. 7 — “Do
you approve the new Constitution?” One approves “of” the
act of another which does not need such approval for the
effectivity of said act, which the first person, however, finds
to be good, wise satisfactory. The approval of the majority
of the votes cast in plebiscite is, however, essential for an
amendment to the Constitution to be valid as part thereof.
Thirdly, if the proceedings in the Citizens’ Assemblies
constituted a plebiscite question No. 8 would have been
unnecessary and improper, regardless of whether question
No. 7 were answered affirmatively or negatively. If the
majority of the answers to question No. 7 were in the
affirmative, the proposed Constitution would have become
effective and no other
125
VOL. 50, MARCH 31, 1973 125

plebiscite could be held thereafter in connection therewith,

even if the majority of the answers to question No. 8 were,
also, in the affirmative. If the majority of the answers to
question No. 7 were in the negative, neither may another
plebiscite be held, even if the majority of the answers to
question No. 8 were in the affirmative. In either case, not
more than one plebiscite could be held for the ratification or
rejection of the proposed Constitution. In short, the
insertion of said two (2) questions — apart from the other
questions adverted to above — indicates strongly that the
proceedings therein did not partake of the nature of a
plebiscite or election for the ratification or rejection of the
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:

“x x x This report includes a resumee (sic) of the activities we

undertook in effecting the referendum on the eleven questions you
wanted our people consulted on and the Summary of Results
thereof for each municipality and for the whole province.
“xxx xxx xxx
“x x x Our initial plans and preparations, however, dealt only
on the original five questions. Consequently, when we received an
instruction on January 10 to change the questions, we urgently
suspended all scheduled Citizens Assembly meetings on that
day and called all Mayors, Chiefs of Offices and other government
officials to another conference to discuss with them the new set of
guidelines and materials to be used.
“On January 11, x x x another instruction from the top was
received to include the original five questions among those to be
discussed and asked in the Citizens’ Assembly meetings. With
this latest order, we again had to make modifications in our
instructions to all those managing and supervising the holding of
the Citizens’ Assembly meetings throughout the province. x x x
Aside from the
126

coordinators we had from the Office of the Governor, the splendid

cooperation and support extended by almost all government
officials and employees in the province, particularly of the
Department of Education, PC and PACD personnel, provided us
with enough hands to trouble shoot and implement sudden
changes in the instructions anytime and anywhere needed. x x x
“x x x As to our people, in general, their enthusiastic
participation showed their preference and readiness to accept this
new method of government to people consultation in shaping up
government policies.”

Thus, as late as January 10, 1973, the Bataan officials
had to suspend ”all scheduled Citizens’ Assembly meetings
...” and call all available officials “x x x to discuss with
them the new set of guidelines and materials to be used
x x x.” Then, “on January 11 x x x another instruction from
the top was received to include the original five questions
among those be discussed and asked in the Citizens’
Assembly meetings. With this latest order, we again had to
make modifications in our instructions to all those
managing and supervising holding of the Citizens’
Assembly meetings throughout province. x x x As to our
people, in general, their enthusiastic participation showed
their preference and readiness to accept the new method of
government to people consultation in shaping
up government policies.”
This communication manifestly shows: 1) that, as late a
January 11, 1973, the Bataan officials had still to discuss—
not put into operation — means and ways to carry out the
changing instructions from the top on how to organize the
citizens’ assemblies, what to do therein and even what
questions or topics to propound or touch in said assemblies;
2) that the assemblies would involve no more
than consultations or dialogues between people and
government — not decisions be made by the people; and 3)
that said consultations were aimed only at “shaping
up government policies” and, hence could not, and did not,
partake of the nature of a plebiscite for the ratification or
rejection of a proposed amendment of a new or revised
Constitution for the latter does not entail the formulation
of a policy of the Government, but the making of decision by
the people on the new way of life, as a nation, they
127
VOL. 50, MARCH 31, 1973 127

wish to have, once the proposed Constitution shall have

been ratified.
If this was the situation in Bataan — one of the
provinces nearest to Manila — as late as January 11, 1973,
one can easily imagine the predicament of the local officials
and people in the remote barrios in northern and southern
Luzon, in the Bicol region, in the Visayan Islands and
Mindanao. In fact, several members of the Court, including
those of their immediate families and their household,
although duly registered voters in the area of Greater
Manila, were not even notified that citizens’ assemblies
would be held in the places where their respective
residences were located. In the Prohibition and
Amendment case,77 attention was called to the “duty cast
upon the court of taking judicial cognizance of anything
affecting the existence and validity of any law or portion of
the Constitution x x x.” In line with its own pronouncement
in another case, the Federal Supreme Court of the United
States stressed, in Baker v. Carr,78 that “a court is not at
liberty to shut its eyes to an obvious mistake, when the
validity of the law depends upon the truth of what is
declared.”
In the light of the foregoing, I cannot see how the
question under consideration can be answered or resolved
otherwise than in the negative.
V
Have the people acquiesced in the proposed Constitution?
It is urged that the present Government of the
Philippines is now and has been run, since January 17,
1971, under the Constitution drafted by the 1971
Constitutional Convention; that the political department of
the Government has recognized said revised Constitution;
that our foreign relations are being conducted under such
new or revised Constitution; that the Legislative
Department has recognized the same; and that the people,
in general, have, by their acts or omissions,
_______________
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.

128

indicated their conformity thereto.

As regards the so-called political organs of the
Government, gather that respondents refer mainly to the
offices under the Executive Department. In a sense, the
latter performs some functions which, from a constitutional
viewpoint, are politics in nature, such as in recognizing a
new state or government, in accepting diplomatic
representatives accredited to our Government, and even in
devising administrative means and ways to better carry
into effect. Acts of Congress which define the goals or
objectives thereof, but are either imprecise or silent on the
particular measures to be resorted to in order to achieve
the said goals or delegate the power to do so, expressly or
impliedly, to the Executive. This, notwithstanding, the
political organ of a government that purports to be
republican is essentially the Congress or Legislative
Department. Whatever may be the functions allocated to
the Executive Department — specially under a written,
rigid Constitution with a republican system of Government
like ours — the role of that Department is inherently,
basically and fundamentally executive in nature — to “take
care that the laws be faithfully executed,” in the language
of our 1935 Constitution.79
Consequently, I am not prepared to concede that the
acts the officers and offices of the Executive Department, in
line with Proclamation No. 1102, connote a recognition
thereof o an acquiescence thereto. Whether they recognized
the proposed Constitution or acquiesce thereto or not is
something that cannot legally, much less necessarily or
even normally, be deduced from their acts in accordance
therewith, because 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
_______________
79 Art. VII, section 10, paragraph (1).
129
VOL. 50, MARCH 31, 1973 129

proposed by the 1971 Constitutional Convention has been

ratified by the overwhelming majority of the people — that
he could not do under the authority he claimed to have
under Martial Law, since September 21, 1972, except the
power of supervision over inferior courts and its personnel,
which said proposed Constitution would place under the
Supreme Court, and which the President has not ostensibly
exercised, except as to some minor routine matters, which
the Department of Justice has continued to handle, this
Court having preferred to maintain the status quo in
connection therewith pending final determination of these
cases, in which the effectivity of the aforementioned
Constitution is disputed.
Then, again, a given department of the Government
cannot generally be said to have “recognized” its own acts.
Recognition normally connotes the acknowledgment by a
party of the acts of another. Accordingly, when a
subordinate officer or office of the Government complies
with the commands of a superior officer or office, under
whose supervision and control he or it is, the former
merely obeys the latter. Strictly speaking, and from a legal
and constitutional viewpoint, there is no act of recognition
involved therein. Indeed, the lower officer or office, if he or
it acted otherwise, would just be guilty of insubordination.
Thus, for instance, the case of Taylor v.
Commonwealth80 — cited by respondents herein in support
of the theory of the people’s acquiescence — involved a
constitution ordained in 1902 and “proclaimed by a
convention duly called by a direct vote of the people of the
state to revise and amend the Constitution of 1869. The
result of the work of that Convention has been recognized,
accepted and acted upon as the only valid Constitution of
the State” by —
1. The “Governor of the State in swearing fidelity to it
and proclaiming it, as directed thereby”;
2. The “Legislature in its formal official act adopting
a joint resolution, July 15, 1902, recognizing the
Constitution ordained by the Convention x x x”;
_______________
80 101 Va. 529, 44 S.E. 754.
130


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 x x x”;
4. The “judiciary in taking the oath prescribed thereby to
support it and by enforcing its provisions x x x”; and
5. The “people in their primary capacity by peacefully
accepting it and acquiescing in it, by registering as voters
under it to the extent of thousands throughout the State,
and by voting, under its provisions, at a general election for
their representatives in the Congress of the United States.”
Note that the New Constitution of Virginia, drafted by a
convention whose members were elected directly by the
people, was not submitted to the people for ratification or
rejection thereof. But, it was recognized, not by the
convention itself, but by other sectors of the Government,
namely, the Governor; the Legislature — not merely by
individual acts of its members, but by formal joint
resolution of its two (2) chambers; by the judiciary; and by
the people, in the various ways specified above. What is
more, there was no martial law. In the present
cases, none of the foregoing acts of acquiescence was
present. Worse still, there is martial law, the strict
enforcement of which was announced shortly before the
alleged citizens’ assemblies. To top it all, in the Taylor case,
the effectivity of the contested amendment was not
contested judicially until about one (1) year after the
amendment had been put into operation in all branches of
the Government, and complied with by the people who
participated in the elections held pursuant to the
provisions of the new Constitution. In the cases under
consideration, the legality of Presidential Decree No. 73
calling a plebiscite to be held on January 15, 1973, was
impugned as early as December 7, 1972, or five (5)
weeks before the scheduled plebiscite, whereas the validity
of Proclamation No. 1102 declaring on January 17, 1973,
that the proposed Constitution had been ratified — despite
General Order No. 20, issued on January 7, 1972, formally
and officially suspending the plebiscite until further notice
— was impugned as early as January 20, 1973, when L-
36142 was filed, or three (3) days after the issuance of
Proclamation No. 1102.
131
VOL. 50, MARCH 31, 1973 131


It is further alleged that a majority of the members of
our House of Representatives and Senate have acquiesced
in the new or revised Constitution, by filing written
statements opting to serve in the Ad Interim Assembly
established in the Transitory Provisions of said
Constitution. Individual acts of recognition by members of
our legislature, as well as of other collegiate bodies under
the government, are invalid as acts of said legislature or
bodies, unless its members have performed said acts
in session duly assembled, or unless the law provides
otherwise, and there is no such law in the Philippines. This
is a well-established principle of Administrative Law and of
the Law of Public Officers, and no plausible reason has
been adduced to warrant departure therefrom.81
Indeed, if the members of Congress were generally
agreeable to the proposed Constitution, why did it become
necessary to padlock its premises to prevent its meeting in
session on January 22, 1973, and thereafter as provided in
the 1935 Constitution? It is true that, theoretically, the
members of Congress, if bent on discharging their functions
under said Constitution, could have met in any other place,
the building in which they perform their duties being
immaterial to the legality of their official acts. The force of
this argument is, however, offset or dissipated by the fact
that, on or about December 27, 1972, immediately after a
conference between the Executive, on the one hand, and
members of Congress, on the other, some of whom
expressed the wish to meet in session on January 22, 1973,
as provided in the 1935 Constitution, a Daily Express
columnist (Primitivo Mijares) attributed to Presidential
Assistant Guillermo de Vega a statement to the effect that
“ ‘certain members of the Senate appear to be missing the
point in issue’ when they reportedly insisted on taking up
first the question of convening Congress.” The Daily Express
of that date,82 likewise, headlined, on its front page, a
“Senatorial Plot Against ‘Martial Law Government’
Disclosed.”
_______________
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.
132

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
x x x which may result in the exercise by me of authority I
have not exercised.”
No matter how good the intention behind these
statement may have been, the idea implied therein was too
clear 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 justified
in holding that the failure of the members of Congress to
meet since January 22, 1973, was due to their recognition,
acquiescence in or conformity with the provisions of the
aforementioned Constitution, or its alleged ratification.
For the same reasons, especially because of
Proclamation No. 1081, placing the entire Philippines
under Martial Law, neither am I prepared to declare that
the people’s inaction as regards Proclamation No. 1102,
and their compliance with a number of Presidential orders,
decrees and/or instructions — some or many of which have
admittedly had salutary effects — issued subsequently
thereto amounts, constitutes or attests to a ratification,
adoption or approval of said Proclamation No. 1102. In the
words of the Chief Executive, “martial law connotes power
of the gun, meant coercion by the military,
and compulsion and intimidation.”83 The failure to use the
gun against those who comply with the orders of the party
wielding the weapon does not detract from the intimidation
that Martial Law necessarily connotes. It may reflect the
good, reasonable and wholesome attitude of the person who
has the gun, either pointed at others, without pulling the
trigger, or merely kept in its holster, but not without
warning that he may or would use it if he deemed it
necessary. Still, the intimidation is there, and inaction or
obedience of the people, under these conditions, is not
necessarily an act of conformity or acquiescence. This is
specially so when we consider that the masses are, by and
_______________
83 Daily Express, November 29, 1972, p. 4. Italics ours.
133
VOL. 50, MARCH 31, 1973 133

large, unfamiliar with the parliamentary system, the new

form of government introduced in the proposed
Constitution, with the particularity that it is not even
identical to that existing in England and other parts of the
world, and that even experienced lawyers and social
scientists find it difficult to grasp the full implications of
some provisions incorporated therein.
As regards the applicability to these cases of the
“enrolled bill” rule, it is well to remember that the same
refers to a document certified to the President — for his
action under the Constitution — by the Senate President
and the Speaker of the House of Representatives, and
attested to by the Secretary of the Senate and the
Secretary of the House of Representatives, concerning
legislative measures approved by the two Houses of
Congress. The argument of the Solicitor General is,
roughly, this: If the enrolled bill is entitled to full faith and
credence and, to this extent, it is conclusive upon the
President and the judicial branch of the Government, why
should Proclamation No. 1102 merit less consideration
than in enrolled bill?
Before answering this question, I would like to ask the
following: If, instead of being certified by the
aforementioned officers of Congress, the so-called enrolled
bill were certified by, say, the President of the Association
of Sugar Planters and/or Millers of the Philippines, and the
measure in question were a proposed legislation concerning
Sugar Plantations and Mills sponsored by said Association,
which even prepared the draft of said legislation, as well as
lobbied actually for its approval, for which reason the
officers of the Association, particularly, its aforementioned
president — whose honesty and integrity are
unquestionable — were present at the deliberations in
Congress when the same approved the proposed legislation,
would the enrolled bill rule apply thereto? Surely, the
answer would have to be in the negative. Why? Simply,
because said Association President has absolutely no
official authority to perform in connection therewith, and,
hence, his certification is legally, as good as non-existent.
Similarly, a certification, if any, of the Secretary of the
Department of Local Governments and Community
Development about the tabulated results of the voting in
the
134

Citizens Assemblies allegedly held all over the Philippines

— and the records do not show that any such certification,
to the President of the Philippines or to the President
Federation or National Association of presidents of
Provincial Associations of presidents of municipal
association presidents of barrio or ward assemblies of
citizens — would not, legally and constitutionally, be worth
the paper on which it is written. Why? Because said
Department Secretary is not the officer designated by law
to superintend plebiscites or elections held for the
ratification or rejection of a proposed amendment or
revision of the Constitution and, hence, to tabulate the
results thereof. Worse still, it is the department which,
according to Article X of the Constitution, should not and
must not be all participate in said plebiscite — if plebiscite
there was.
After citing approvingly its ruling in United States v.
Sandoval,84 the Highest Court of the United States that
courts “will not stand impotent before an obvious instance
of a manifestly unauthorized exercise of power.”85
I cannot honestly say, therefore, that the people
impliedly or expressly indicated their conformity to the
VI
Are the Parties entitled to any relief?
Before attempting to answer this question, a few words
be said about the procedure followed in these five (5) cases.
In this connection, it should be noted that the Court has
not decided whether or not to give due course to the
petitions herein or to require the respondents to answer
thereto. Instead, it has required the respondents to
comment on the respective petitions — with three (3)
members of the voting to dismiss them outright — and
then considers comments thus submitted by the
respondents as motions to dismiss, as well as set the same
for hearing. This was due to
_______________
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.
135
VOL. 50, MARCH 31, 1973 135

the transcendental nature of the main issue raised, the

necessity of deciding the same with utmost dispatch, and
the main defense set up by respondents herein, namely, the
alleged political nature of said issue, placing the same,
according to respondents, beyond the ambit of judicial
inquiry and determination. If this defense was sustained,
the cases could readily be dismissed; but, owing to the
importance of the questions involved, a reasoned resolution
was demanded by public interest. At the same time,
respondents had cautioned against a judicial inquiry into
the merits of the issues posed on account of the magnitude
of the evil consequences, it was claimed, which would result
from a decision thereon, if adverse to the Government.
As a matter of fact, some of those issues had been raised
in the plebiscite cases, which were dismissed as moot and
academic, owing to the issuance of Proclamation No. 1102
subsequently to the filing of said cases, although before the
rendition of judgment therein. Still one of the members of
the Court (Justice Zaldivar) was of the opinion that the
aforementioned issues should be settled in said cases, and
he, accordingly, filed an opinion passing upon the merits
thereof. On the other hand, three (3) members of the Court
— Justices Barredo, Antonio and Esguerra — filed
separate opinions favorable to the respondents in the
plebiscite cases, Justice Barredo holding “that the 1935
Constitution has pro tanto passed into history and has
been legitimately supplanted by the Constitution in force
by virtue of Proclamation 1102.”86 When the petitions at
bar were filed, the same three (3) members of the Court,
consequently, voted for the dismissal of said petitions. The
majority of the members of the Court did not share,
however, either view, believing that the main question that
arose before the rendition of said judgment had not been
sufficiently discussed and argued as the nature and
importance thereof demanded.
The parties in the cases at bar were accordingly given
every possible opportunity to do so and to elucidate on and
discuss said question. Thus, apart from hearing the parties
in oral argument for five (5) consecutive days — morning
and
_______________
86 Justice Barredo’s opinion in the plebiscite cases.
136

afternoon, or a total of exactly 26 hours and 31 minutes —

the respective counsel filed extensive notes on their or
arguments, as well as on such additional arguments as
they wished to submit, and reply notes or memoranda, in
addition to rejoinders thereto, aside from a sizeable
number of document in support of their respective
contentions, or as required by the Court. The arguments,
oral and written, submitted have been so extensive and
exhaustive, and the documents filed in support thereof so
numerous and bulky, that, for all intents and purposes, the
situation is as if — disregarding forms — the petitions had
been given due course and the cases had been submitted
for decision.
Accordingly, the majority of the members of the Court
believe that they should express their views on the
aforementioned issues as if the same were being decided on
the merits, and they have done so in their individual
opinion attached hereto. Hence, the resume of the votes
cast and the tenor of the resolution, in the last pages
hereof, despite the fact that technically the Court has not,
as yet, formally given due course to the petitions herein.
And, now, here are my views on the reliefs sought by the
parties.
In L-36165, it is clear that we should not issue the writ
of mandamus prayed for against Gil J. Puyat and Jose Roy,
President and President Pro Tempore respectively of the
Senate, it being settled in our jurisdiction, based upon the
theory of separation of powers, that the judiciary will not
issue such writ to the head of a co-equal department, like
the aforementioned officers of the Senate.
In all other respects and with regard to the other
respondent in said case, as well as in cases L-36142, L-
36164, L-36236 and L-36283, my vote is that the petitions
therein should be given due course, there being more than
prima facie showing that the proposed Constitution has not
been ratified in accordance with Article XV of the 1935
Constitution, either strictly, substantially, or has been
acquiesced in by the people or majority thereof; that said
proposed Constitution is not in force and effect; and that
the 1935 Constitution is still the
137
VOL. 50, MARCH 31, 1973 137

Fundamental Law of the Land, without prejudice to the

submission of said proposed Constitution to the people at a
plebiscite for its ratification or rejection in accordance with
Articles V, X and XV of the 1935 Constitution and the
provisions of the Revised Election Code in force at the time
of such plebiscite.
Perhaps others would feel that my position in these
cases overlooks what they might consider to be the
demands of “judicial statesmanship,” whatever may be the
meaning of such phrase. I am aware of this possibility, if
not probability; but “judicial statesmanship,”
though consistent with Rule of Law, cannot prevail over the
latter. Among consistent ends or consistent values, there
always is a hierarchy, a rule of priority.
We must realize that the New Society has many
achievements which would have been very difficult, if not
impossible, to accomplish under the old dispensation.
But, in and for the judiciary, statesmanship should not
prevail over the Rule of Law. Indeed, the primacy of the law
or of the Rule of Law and faithful adherence thereto are
basic, fundamental and essential parts of statesmanship
itself.
Resume of the Votes Cast and the Court’s Resolution
As earlier stated, after the submittal by the members of
the Court of their individual opinions and/or concurrences
as appended hereto, the writer will now make, with the
concurrence of his colleagues, a resume or summary of the
votes cast by each of them.
It should be stated that by virtue of the various
approaches and views expressed during the deliberations,
it was agreed to synthesize the basic issues at bar in broad
general terms in five questions for purposes of taking the
votes. It was further agreed of course that each member of
the Court would expound in his individual opinion and/or
concurrence his own approach to the stated issues and deal
with them and state (or not) his opinion thereon singly or
jointly and with such priority, qualifications and
modifications as he may deem proper, as well as discuss
thereon other related issues which he may consider vital
and relevant to the cases at bar.
138


The five questions thus agreed upon as reflecting the
basic issues herein involved are the following:
1. Is the issue of the validity of Proclamation No. 1102 a
justiciable, or political and therefore non-justiciable,
question?
2. Has the Constitution proposed by the 1971
Constitutional Convention been ratified validly (with
substantial, if not strict, compliance) conformably to the
applicable constitutional and statutory provisions?
3. Has the aforementioned proposed Constitution
acquiesced in (with or without valid ratification) by the
people?
4. Are petitioners entitled to relief? and
5. Is the aforementioned proposed Constitution in force?
The results of the voting, premised on the individual
views expressed by the members of the Court in their
respect opinions and/or concurrences, are as follows:
1. On the first issue involving the political-question
doctrine Justices Makalintal, Zaldivar, Castro, Fernando,
Teehankee and myself, or six (6) members of the Court,
hold that the issue of the validity of Proclamation No. 1102
presents a justiciable and non-political question. Justices
Makalintal and Castro did not vote squarely on this
question, but, only inferentially, in their discussion of the
second question. Justice Barredo qualified his vote, stating
that “inasmuch as it is claimed there has been approval by
the people, the Court may inquire into the question of
whether or not there has actually been such an approval,
and, in the affirmative, the Court should keep hands-off out
of respect to the people’s will, but, in negative, the Court
may determine from both factual and legal angles whether
or not Article XV of the 1935 Constitution been complied
with.” Justices Makasiar, Antonio, Esguerra, or three (3)
members of the Court hold that the issue is political and
“beyond the ambit of judicial inquiry.”
2. On the second question of validity of the ratification,
Justices Makalintal, Zaldivar, Castro, Fernando,
Teehankee
139
VOL. 50, MARCH 31, 1973 139

and myself, or six (6) members of the Court also hold that
the Constitution proposed by the 1971 Constitutional
Convention was not validly ratified in accordance with
Article XV, section 1 of the 1935 Constitution, which
provides only one way for ratification, i.e., “in an election or
plebiscite held in accordance with law and participated in
only by qualified and duly registered voters.”87
Justice Barredo qualified his vote, stating that “(A)s to
whether or not the 1973 Constitution has been validly
ratified pursuant to Article XV, I still maintain that in the
light of traditional concepts regarding the meaning and
intent of said Article, the referendum in the Citizens’
Assemblies, specially in the manner the votes therein were
cast, reported and canvassed, falls short of the
requirements thereof. In view, however, of the fact that I
have no means of refusing to recognize as a judge that
factually there was voting and that the majority of the
votes were for considering as approved the 1973
Constitution without the necessity of the usual form of
plebiscite followed in past ratifications, I am constrained to
hold that, in the political sense, if not in the orthodox legal
sense, the people may be deemed to have cast their
favorable votes in the belief that in doing so they did the
part required of them by Article XV, hence, it may be said
that in its political aspect, which is what counts most, after
all, said Article has been substantially complied with, and,
in effect, the 1973 Constitution has been constitutionally
ratified.”
Justices Makasiar, Antonio and Esguerra, or three (3)
members of the Court hold that under their view there has
been in effect substantial compliance with the
constitutional requirements for valid ratification.
3. On the third question of acquiescence by the Filipino
people in the aforementioned proposed Constitution, no
majority vote has been reached by the Court.
Four (4) of its members, namely, Justices Barredo,
Makasiar, Antonio and Esguerra hold that “the people have
already
_______________
87 Joint Opinion of Justices Makalintal and Castro, p. 153.
140

accepted the 1973 Constitution.”

Two (2) members of the Court, namely, Justice Zaldivar
and myself hold that there can be no free expression, and
there has even been no expression, by the people qualified
to vote all over the Philippines, of their acceptance or
repudiation of the proposed Constitution under Martial
Law. Justice Fernando states that “(I)f it is conceded that
the doctrine stated in some American decisions to the effect
that independently of the validity of the ratification, a new
Constitution once accepted acquiesced in by the people
must be accorded recognition by the Court, I am not at this
stage prepared to state that such doctrine calls for
application in view of the shortness of time that has
elapsed and the difficulty of ascertaining what is the mind
of the people in the absence of the freedom of debate that is
a concomitant feature of martial law.”88
Three (3) members of the Court express their lack of
knowledge and/or competence to rule on the question.
Justices Makalintal and Castro are joined by Justice
Teehankee in their statement that “Under a regime of
martial law, with the free expression of opinions through
the usual media vehicle restricted, (they) have no means of
knowing, to the point of judicial certainty, whether the
people have accepted the Constitution.”89
4. On the fourth question of relief, six (6) members of the
Court, namely, Justices Makalintal, Castro, Barredo,
Makasiar, Antonio and Esguerra voted to DISMISS the
petition. Justice Makalintal and Castro so voted on the
strength of their view that “(T)he effectivity of the said
Constitution, in the final analysis, is the basic and ultimate
question posed by these cases to resolve which
considerations other than judicial, an therefore beyond the
competence of this Court,90 are relevant and
unavoidable.”91

_______________
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.
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VOL. 50, MARCH 31, 1973 141


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:
Barredo, Makasiar, Antonio and Esguerra hold that it
is in force by virtue of the people’s acceptance thereof;
Makalintal, Castro, Fernando and Teehankee cast no
vote thereon on the premise stated in their votes on
the third question that they could not state with
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
142

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.

143
VOL. 50, MARCH 31, 1973 143


ANNEX A
PERTINENT PORTIONS
OF THE
MINNESSOTA SUPREME COURT
DECISION
ON THE CASE
IN RE McCONAUGHY*
“(a) An examination of the decisions shows that
the courts have almost uniformly exercised the authority to
determine the validity of the proposal, submission, or
ratification of constitutional amendments. It has
beenjudicially determined whether a proposed
amendment received the constitutional majority of
votes (Dayton v. St. Paul, 22 Minn. 400; Rice v. Palmer, 78
Ark. 432, 96 S.W. 396; Bott v. Wurtz, 63 N.J. Law, 289, 43
Atl. 744, 881, 45 L.R.A. 251; State v. Foraker, 46 Ohio St.
677, 23 N.E. 49l; 6 L.R.A. 422; Tecumseh National Bank V.
Saunders, 51 Neb. 801, 71 N.W. 779; Green v. State Board,
5 Idaho, 130, 47 Pac. 259, 95 Am. St. Rep. 169; In re
Denny, 156 Ind. 104, 59 N.E. 359, 51 L.R.A. 722; Knight v.
Shelton [C.C.] 134 Fed. 423); whether a proposed
amendment is a single amendment, within the
constitutional requirement that every amendment must be
separately submitted (State v. Powell, 77 Miss. 543, 27
South. 927; Gabbert v. Chicago, etc., R. Co., 171 Mo. 84, 70
S.W. 891; State v. Timme, 54 Wis. 318, 11 N.W. 785; In re
Denny, 156 Ind. 104, 59 N.E. 359, 51 L.R.A. 722; Lobaugh
v. Cook, 127 Iowa, 181, 102 N.W. 1121; People v. Sours, 31
Colo. 369, 74 Pac. 167, 102 Am. St. Rep. 34; State v. Board,
34 Mont. 426, 87 Pac. 450; State v. Winnett [Neb.] 110
N.W. 1113, 10 L.R.A. [N.S.] 149); whether the failure to
enter the resolution of submission upon the legislative
journals invalidates the amendment (Koehler v. Hill, 60
Iowa, 543,14 N.W. 738,15 N.W. 609; Oakland Paving Co. v.
Hilton, 69 Cal. 479, 11 Pac. 3; West v. State, 50 Fla. 154, 39
South. 412; Durfee v. Harper, 22 Mont. 354, 56 Pac. 56;
State v. Tufly, 19 Nev. 391, 12 Pac. 835, 3 Am.
144

St. Rep. 895); whether the description of the amendment

and the form of the ballot are sufficient (Russell v. Croy,
164 M 69, 63 S.W. 849; State v. Winnett [ Neb.] 110 N.W.
1113, L.R.A. [N.S.] 149; Murphy Chair Co. v. Attorney
General [Mich.] 112 N.W. 127); whether the method of
submission sufficient (Lovett v. Ferguson,, 10 S.D. 44, 71
N.W. 765; Russell v. Croy, 164 Mo. 69, 63 S.W. 849);
whether the publication of the amendment or of a notice
relative to it is sufficient (Com. v. Griest, 196 Pa. 396, 46
Atl. 505, 50 L.R.A. 568; Russell v. Croy, 164 Mo. 69, 63
S.W. 849); whether the submission may be well by
resolution as by a legislative act approved by the executive
(Com. v. Griest, 196 Pa. 396, 46 Atl. 505, 50 L.R. 568;
Warfield vi Vandiver, 101 Md. 78, 60 Atl. 538; Edward
Lesueur, 132 Mo. 410, 33 S.W. 1130, 31 L.R.A. 815; Hays v.
Hays, 5 Idaho, 154, 47 Pac. 732; State v. Dahl, 6 N.D. 81, 6
N.W. 418, 34 L.R.A. 97); at what election the amendment be
submitted (People v. Curry, 130 Cal. 82, 62 Pac. 516).
“In Rich v. Board of Canvassers, 100 Mich. 458, 59 N.W.
183, the court said: “It is contended that the determination
of the question whether an amendment to the Constitution
has been carried involves the exercise of political, and not
judicial, power. If this be so, it follows that the
promulgation of any purported amendment by the
executive or any executive department is final, and that the
action cannot be questioned by the judiciary; but, with
reference to the conditions precedent to submitting a
proposed amendment to a vote of the people, it has been
repeatedly held, by courts of the highest respectability, that
it is within the power of the judiciary to inquire into the
question, even in a collateral proceeding. * * * It is to be
noted that under section 1 of article 20 of the Constitution
of the state no amendment can become a part of the
Constitution until ratified by a vote of the people. One
prerequisite is equally as essential as the other. The
amendment must first receive the requisite majority in the
Legislature, and afterwards be adopted by the requisite
vote. * * * It is the fact of a majority vote which makes the
amendment a part of the Constitution.’
“In considering the cases it is necessary to note whether
in the particular case the court was called upon to
determine between rival governments, or whether the
Legislature, or
145
VOL. 50, MARCH 31, 1973 145

some board or official, had legally performed the duty

imposed by the Constitution or statutes. In re State v.
McBride, 4 Mo. 303, 29 Am. Dec. 636, it was held that the
General Assembly, under the power granted by the
Constitution, could change the Constitution only in the
manner prescribed by it, and that it was the duty of the
court to determine whether all prerequisites had been
complied with. In Collier v. Frierson, 24 Ala. 100, it was
held that a Constitution can be changes only by the
peoplein convention or in a mode described by the
Constitution itself, and that if the latter mode is
adopted every requisite of the Constitution must be
observed. ‘It has been said,” says the court, “that certain
acts are to be done, certain requisitions are to be observed,
before a change can be effected; but to what purpose are
these acts required, or these requisitions enjoined, if the
Legislature or any other department of the government 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. 700,
the
146

court determined judicially whether an amendment to the

Constitution had been legally adopted. After approving the
statement quoted from Collier v. Frierson, supra, that ‘we
entertain no doubt that, to change the Constitution in an
other mode than by a convention, every requisite which is
demanded by the instrument itself must be observed, and
the omission of any one is fatal to the amendment,’ the court
held that, ‘as substance of right is grander and more potent
than methods of form,’ there had been substantial
compliance with the constitutional requirement that a
proposed amendment to the Constitution must be entered
at length on the legislative journal. It appears that the joint
resolution making submission simply provided that a
proposition should be submitted to the electors at the
general election of 1880. It did not declare that the
machinery of the general election law should control, or
that any particular officers or board would receive, count, or
canvass the votes cast. But the existing election machinery
was adequate, and the votes were received, counted, and
canvassed, and the result declared as fully as though it had
been in terms so ordered. These methods had been followed
in the adoption of previous amendments, and was held that,
conceding the irregularity of the proceedings the
Legislature and the doubtful scope of the provisions for the
election, yet in view of the very uncertainty of such
provision the past legislative history of similar propositions,
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 taking judicial knowledge of anything affecting
the existence and validity of any law or portion of the
Constitution, it must be adjudged that the proposed
amendment became part of the Constitution. The effect
was to hold that a provision of the Constitution requiring
the proposed amendment to be entered in full on the
journals was directory, and not mandatory.
This liberal view was approved in State v. Winnett (Neb.)
110 N. 1113, 10 L.R.A. (N.S.) 149, and People v. Sours, 31
Colo. 369, Pac. 167, 102 Am. St. Rep. 34. But it has not
been universally accepted.
“In Oakland Paving Co. v. Hilton, 69 Cal. 479, 11 Pac. 3,
the court, in commenting upon the Kansas case said: ‘The
147
VOL. 50, MARCH 31, 1973 147

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. InLivermore v.
Waite, 102 Cal. 113, 36 Pac. 424, 25 L.R.A. 312, the court,
at the instance of a citizen and a taxpayer, restrained the
Secretary of State from taking steps to submit to the people
a proposed amendment to the Constitution agreed to by the
Legislature on the ground that the Legislature had not
acted in conformity with the Constitution and that the
proposed amendment was of such a character that it could
not properly become a part of the Constitution. The
Supreme Court of Colorado, in People v. Sours, supra,
refused to exercise this authority.
“The entire question received elaborate consideration in
Koehler v. Hill, 60 Iowa, 543, 14 N.W. 738, 15 N.W. 609.
The amendment, which concededly had been adopted by the
people, had not, before its submission, been entered in full
upon the legislative journals, as required by the
Constitution, and it was held that this was
a materialvariance in both form and substance from the
constitutional requirements, and that the amendment
did not, therefore, become a part of the Constitution. As to
the claim that the question was political, and not judicial,
it was said that, while it is not competent for courts to
inquire into the validity of the Constitution and the form of
government under which they themselves exist, and from
which they derive their powers, yet, where the existing
Constitution prescribes a method for its own amendment,
an amendment thereto, to be valid, must be adopted in strict
conformity to that method; and it is the duty of the courts in
a proper case, when an amendment does not relate to their
own power or functions, to inquire whether, in the adoption
of the amendment, the provisions of the existing
Constitution have been observed, and, if not, to declare the
amendment invalid and of no force. This case was followed
in State v. Brookhart,
148

113 Iowa, 250, 84 N.W. 1064.

“In University v. McIver, 72 N.C. 76, the question
whether a proposed amendment to the Constitution had
been legally adopted was treated as a judicial question. By
the Constitution a proposed amendment was required to be
approved by Legislatures before its submission to the
people. In this instance a bill was passed which contained
17 amendments. The next Legislature rejected 9 and
adopted 8 of the amendments, and submitted them to the
people. The majority of the people voted for their adoption;
but it was contended that the Constitution contemplated
and required that the same bill and the same
amendments, without change, should approved by both
Legislatures, and that it did not follow because the second
Legislature adopted separately 8 out of 17 amendments
adopted by the first Legislature, it would have adopted the
17, or any of them, if they had been voted upon the second
in the form adopted by the first body. The substance of the
contention was that there had not been a concurrence of
the two Legislatures on the same amendments, according
to the letter and spirit of the Constitution. The court held
that the power of the Legislature in submitting
amendments could not be distinguished from the powers of
convention, and that, as the people had spoken and ratified
the amendments, they became a part of the Constitution.
“In Westinghausen v. People, 44 Mich. 265, 6 N.W. 641,
it was held that prior to 1876 a proposed amendment to
Constitution could not be submitted to the people at any
other than a general election; but, as the amendment under
consideration had been submitted after the Constitution
been changed, it had been legally submitted and adopted.
“In State v. Powell, 77 Miss. 543, 27 South. 927, the
question whether an amendment to the Constitution had
been legally submitted and adopted by the people was held
to be judicial, and not political, in its nature. The
amendment under consideration changed the Constitution
by providing for an elective, instead of an appointive,
judiciary. It was contented that the amendments had
been improperly submitted and adopted by a majority of
the qualified voters voting at election, as required by the
Constitution. The law did not
149
VOL. 50, MARCH 31, 1973 149

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 final judgment as well, confides to the
separate magistracy of
the legislative department full power to hear, consider, and
adjudge that question. The Legislature puts the question to
the qualified electors. The qualified electors answer back to
the Legislature. “If it shall appear” to the Legislature that
its question has been answered in the affirmative, the
amendment is inserted and made a part of the
Constitution. The Governor and the courts have no
authority to speak at any stage of the proceedings between
the sovereign and the Legislature, and when the matter is
thus concluded it is closed, and the judiciary is as
powerless to interfere as the executive.’ But it was held
that the question whether the proposition submitted to the
voters constituted one, or more than one,
amendment, whether the submission was according to the
requirements of the Constitution, and whether the
proposition was in fact adopted, were all judicial, and not
political, questions. ‘We do not,’ said Chief Justice
Whitfield, ‘seek a jurisdiction not imposed upon us by the
Constitution. We could not, if we would, escape the exercise
of that jurisdiction which the Constitution has imposed
upon us. In the particular instance in which we are now
acting, our duty to know what the Constitution of the state
is, and in accordance with our oaths to support and
maintain it in its integrity, imposed on us a most difficult
and embarrassing duty, one which we have not sought, but
one which, like all others, must be discharged.’
150


“In Bott v. Wurtz, 63 N.J. Law, 289, 43 Atl. 744, 881, 45
L.R.A. 251, it was held that it was the duty of the judicial
department of the government to determine whether the
legislative department or its officers had observed the
constitutional injunctions in attempting to amend the
Constitution, and to annul their acts if they had not done
so. The case is an interesting and well-considered one. The
Constitution provided the manner in which proposed
amendments should be submitted to the people, but did not
provide a method for canvassing the votes. The Legislature
having agreed to certain proposed amendments, passed an
act for submitting the same to the people. This statute
provided for the transmission to the Secretary of State of
certificate showing the result of the voting throughout the
state, and made it the duty of the Governor at the
designated time summon four or more Senators, who, with
the Governor, should constitute a board of state canvassers
to canvass and estimate the votes for and against each
amendment. This board was to determine and declare
which of the proposed amendments had been adopted and
to deliver a statement of the results to the Secretary of
State, and “any proposed amendment, which by said
certificate and determination of the board of canvassers
shall appear to have received in its favor the majority of all
the votes cast in the state for and against said proposed
amendment, shall from the time of filing such certificate be
and become an amendment to and a part of the
Constitution of the state; and it shall be the duty of the
Governor of the state forthwith, after such a determination,
to issue a proclamation declaring which of the said
proposed amendments have been adopted by the people.”
This board was required to file a statement of the result of
the election, and the Governor to issue his proclamation
declaring that the amendment had been adopted and
become a part of the Constitution. At the instance of a
taxpayer the Supreme Court allowed a writ 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 official
151
VOL. 50, MARCH 31, 1973 151

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.”
152


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 Office
of the President to submit to them for resolution important
national issues;
WHEREAS, one of the questions persistently mention
refers to the ratification of the Constitution proposed by the
1971 Constitutional Convention;
WHEREAS, on the basis of the said petitions, it is
evident that the people believe that the submission of the
proposed Constitution to the Citizens Assemblies or
Barangays should taken as a plebiscite in itself in view of
the fact that freedom of debate has always been limited to
the leadership in political, economic and social fields, and
that it is now necessary to bring this down to the level of
the people themselves through the Barangays or Citizens
Assemblies;
NOW, THEREFORE, I, FERDINAND E. MARCOS,
President of the Philippines, by virtue of the powers in me
vested by the Constitution, do hereby order that important
national issues shall from time to time be referred to the
Barangays (Citizens Assemblies) for resolution in
accordance with Presidential Decree No. 86-A dated
January 5, 1973 an that the initial referendum shall
include the matter of ratification of the Constitution
proposed by the 1971 Constitutional Convention.
153
VOL. 50, MARCH 31, 1973 153


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 sufficient 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 filed We considered
them as motions to dismiss so that they could be orally
argued. As it turned out, the hearing lasted five days,
morning and afternoon, and could not have been more
exhaustive if the petitions had been given due course from
the beginning.
The major thrust of the petitions is that the act of the
Citizens Assemblies as certified and proclaimed by the
President on January 17, 1973 (Proclamation No. 1102)
was not an act of ratification, let alone a valid one, of the
proposed Constitution, because it was not in accordance
with the existing Constitution (of 1935) and the Election
Code of 1971. Other grounds are relied upon by the
petitioners in support of their basic proposition, but to our
mind they are merely subordinate and peripheral.
154


Article XV, Section 1, of the 1935 Constitution provides
that amendments (proposed either by Congress in joint
session or by a Convention called by it for the purpose)
“shall be valid part of this Constitution when approved by a
majority of votes cast at an election at which the
amendments submitted to the people for their ratification.”
At the time Constitution was approved by the
Constitutional Convention on February 8, 1935, and
ratified in a plebiscite held on following May 14, the word
“election” had already a definite meaning in our law and
jurisprudence. It was not a vague and amorphous concept,
but a procedure prescribed by statute ascertaining the
people’s choices among candidates for public offices, or
their will on important matters submitted to the pursuant
to law, for approval. It was in this sense that word was
used by the framers in Article XV (also in Articles VI and
VII), and in accordance with such procedure that
plebiscites were held to ratify the very same Constitution
in 1935 as well as the subsequent amendments thereto,
thus: in 1939 (Ordinance appended to the Constitution);
1940 (establishment of a bicameral legislature; eligibility of
the President and the Vice President for re election;
creation of the Commission of Elections); 1947 (Parity
Amendment); and 1967 (increase in membership of the
House of Representatives and eligibility of members of
Congress to run for the Constitutional Convention without
forfeiture of their offices).
The Election Code of 1971, in its Section 2, states that
“all elections of public officers except barrio officials 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 suffrage, and with specific reference to the term
“plebiscites,” the provision of Article XV regarding
ratification of constitutional amendments.
The manner of conducting elections and plebiscites
provided by the Code is spelled out in other sections
thereof. Section 99 requires that qualified voters be
registered in a permanent list, the qualifications being
those set forth in Article V, Section 1, of the 1935
Constitution on the basis of age (21), literacy and
residence. These qualifications are reiterated
155
VOL. 50, MARCH 31, 1973 155
in Section 101 of the Election Code. Section 102

enumerates the classes of persons disqualified to vote.
Succeeding sections prescribe the election paraphernalia to
be used, the procedure for registering voters, the records, of
registration and the custody thereof, the description and
printing of official ballots, the actual casting of votes and
their subsequent counting by the boards of inspectors, the
rules for appreciation of ballots, and then the canvass and
proclamation of the results.
With specific reference to the ratification of the 1972
draft Constitution, several additional circumstances should
be considered:
(1) This draft was prepared and approved by a
Convention which had been convened pursuant to
Resolution No. 2 passed by Congress on March 16, 1967,
which provides:
“Sec. 7. The amendments proposed by the Convention shall be

valid and considered part of the Constitution when approved by a
majority of the votes cast in an election at which they are
submitted to the people for their ratification pursuant to Article
XV of the Constitution.”
(2) Article XVII, Section 16, of the draft itself states:
“Sec. 16. This Constitution shall take effect immediately upon

its ratification by a majority of the votes cast in a plebiscite called
for the purpose and, except as herein provided, shall supersede
the Constitution of nineteen hundred and thirty-five and all
amendments thereto.”
The same procedure is prescribed in Article XVI, Section

2, for the ratification of any future amendment to or
revision of the said Constitution.
(3) After the draft Constitution was approved by the
156

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 ratification of the proposed New
Constitution on such appropriate date as he shall
determine and providing for the necessary funds therefor.”
Pursuant to said Resolution the President issued Decree
No. 73 on the same day, calling a plebiscite to be held on
January 15, 1973, at which the proposed Constitution
“shall be submitted to the people for ratification or
rejection.” The Decree had eighteen (18) sections in all,
prescribing in detail the different steps to be taken to carry
out the process of ratification, such as: (a) publication of the
proposed Constitution in English and Pilipino; (b) freedom
of information and discussion; (c) registration of voters: (d)
appointment of boards of election inspectors and
designation of watchers in each precinct; (e) printing of
official ballots; (f) manner of voting to insure freedom and
secrecy thereof; (g) canvass of plebiscite returns; and (h) in
general, compliance with the provisions of the Election
Code of 1971, with the Commission on Elections exercising
its constitutional and statutory powers of supervision of the
entire process.
There can hardly be any doubt that in everybody’s view
— from the framers of the 1935 Constitution through all
the Congresses since then to the 1971 Constitutional
Convention — amendments to the Constitution should be
ratified in only one way, that is, in an election or plebiscite
held in accordance with law and participated in only by
qualified and duly registered voters. Indeed, so concerned
was this Court with the importance and indispensability of
complying with the mandate of the (1935) Constitution in
this respect that in the recent case of Tolentino vs.
Commission on Elections, No. L-34150, October 16, 1971
(41 SCRA 702), a resolution of the (1971) Constitutional
Convention submitting a proposed amendment for
ratification to a plebiscite to be held in November 1971 was
declared null and void. The amendment sought to reduce
the voting age from twenty-one to eighteen years and was
approved by the Convention for submission to a plebiscite
ahead of and separately from other amendments still being
or to be considered by it, so as to enable the youth to be
thus enfranchised to participate in the plebiscite for the
ratification of such other amendments later. This Court
held
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that such separate submission was violative of Article XV,

Section 1, of the Constitution, which contemplated that “all
the amendments to be proposed by the same Convention
must be submitted to the people in a single “election” or
plebiscite.”* Thus a grammatical construction based on a
singular, instead of plural, rendition of the word “election”
was considered a sufficient ground to rule out the plebiscite
which had been called to ratify a proposed amendment in
accordance with the procedure and under all the
safeguards provided in the Election Law.
In the cases now before Us what is at issue is not merely
the ratification of just one amendment, as in Tolentino vs.
COMELEC, but the ratification of an entire charter setting
up a new form of government; and the issue has arisen not
because of a disputed construction of one word or one
provision in the 1935 Constitution but because no election
or plebiscite in accordance with that Constitution and with
the Election Code of 1971 was held for the purpose of such
ratification.
The Citizens Assemblies which purportedly ratified the
draft Constitution were created by Presidential Decree No.
86 dated December 31, 1972, “to broaden the base of citizen
participation in the democratic process and to afford ample
opportunities for the citizenry to express their views on
important national issues.” The Assemblies “shall consist of
all persons who are residents of the barrio, district or ward
for at least six months, fifteen years of age or over, citizens
of the Philippines and who are registered in the lists of
Citizen Assembly members kept by the barrio, district or
ward secretary.” By Presidential Decree No. 86-A, dated
January 5, 1973, the Assemblies were convened for a
referendum between January 10 and 15, to “consider vital
national issues now confronting the country, like the
holding of the plebiscite on the new Constitution, the
continuation of martial rule, the convening of Congress on
January 22, 1973, and the holding of elections in November
1973.”
_______________
* The undersigned (Justice Querube C. Makalintal) who had reserved
his right to do so, filed 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.
158


On January 5, 1973 the newspapers came out with a list
of four questions to be submitted to the Citizens
Assemblies, the fourth one being as follows: “How soon
would you like plebiscite on the new Constitution to be
held?” It should be noted in this connection that the
President had previously announced that he had ordered
the postponement of plebiscite which he had called for
January 15, 1973 (Presidential Decree No. 73) for the
ratification of the Constitution, and that he was
considering two new dates for the purpose — February 19
or March 5; that he had ordered that the registration of
voters (pursuant to Decree No. 73) be extended to
accommodate new voters; and that copies of the new
Constitution would be distributed in eight dialects the
people. (Bulletin Today, December 24, 1972.)
On January 10, 1973 it was reported that one more
question would be added to the original four which were to
be submitted to the Citizens Assemblies. The question
concerning plebiscite was reworded as follows: “Do you like
the plebiscite to be held later?” The implication, it may
likewise be noted, was that the Assemblies should express
their views as to the plebiscite should be held, not as to
whether or not it should be held at all.
The next day, January 11, it was reported that six
additional questions would be submitted, namely:
“(1) Do you approve of the citizens assemblies as the base of

popular government to decide issues of national interest?
“(2) Do you approve of the new Constitution?
“(3) Do you want a plebiscite to be called to ratify the new
Constitution?
“(4) Do you want the elections to be held in November, 1973
“(5) If the elections would not be held, when do you want the
next elections to be called?
“(6) Do you want martial law to continue? [Bulletin Today,
January 11, 1973; emphasis supplied].
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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
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
160

revolutionary government along the lines of the new

Constitution without the ad interim Assembly.”
So it was that on January 11, 1973, the second day of

the purported referendum, the suggestion was broached,
for the first time, that the plebiscite should be done away
with and a favorable vote by the Assemblies deemed
equivalent ratification. This was done, not in the
questionnaire itself, but in the suggested answer to
question No. 3. Strangely, however, it was not similarly
suggested that an unfavorable vote be considered as
rejection.
There should be no serious dispute as to the fact that the
manner in which the voting was conducted in the Citizen
Assemblies, assuming that such voting was held, was not
within the intendment of Article XV, Section 1, of the 1935
Constitution nor in accordance with the Election Code of
1971. The referendum can by no means be considered as
the plebiscite contemplated in Section 2 of said Code and in
Article XVII, Section 16, of the draft Constitution itself, or
as the election intended by Congress when it passed
Resolution No. 2 on March 16, 1967 calling a Convention
for the revision of the 1935 Constitution. The Citizens
Assemblies were not limited to qualified, let alone
registered voters, but included all citizens from the age of
fifteen, and regardless of whether or not they were
illiterates, feeble-minded, or ex convicts* — these being the
classes of persons expressly disqualified from voting by
Section 102 of the Election Code. In short, the
constitutional and statutory qualifications were not
considered in the determination of who should participate.
No official ballots were used in the voting; it was done
mostly by acclamation or open show of hands. Secrecy,
which is one of the essential features of the election
process, was not therefore observed. No set of rules for
counting the votes or of tabulating them and
_______________
* Thus by Presidential Decree No. 86 what the Constitutional
Convention itself had proposed unsuccessfully as an amendment to the
1935 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.
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reporting the figures was prescribed or followed. The

Commission on Elections, which is the constitutional body
charged with the enforcement and administration of all
laws relative to the conduct of elections, took no part at all,
either by way of supervision or in the assessment of the
results.
It has been suggested that since according to
Proclamation No. 1102 the overwhelming majority of all
the members of the Citizens Assemblies had voted for the
adoption of the proposed Constitution there was a
substantial compliance with Article XV, Section 1, of the
1935 Constitution and with the Election Code of 1971. The
suggestion misses the point entirely. It is of the essence of
a valid exercise of the right of suffrage that not only must a
majority or plurality of the voters carry the day but that
the same must be duly ascertained in accordance with the
procedure prescribed by law. In other words the very
existence of such majority or plurality depends upon the
manner of its ascertainment, and to conclude that it exists
even if it has not been ascertained according to law is
simply to beg the issue, or to assume the very fact to be
established. Otherwise no election or plebiscite could be
questioned for non-compliance with the provisions of the
Election Law as long as it is certified that a majority of the
citizens had voted favorably or adversely on whatever it
was that was submitted to them to vote upon.
However, a finding that the ratification of the draft
Constitution by the Citizens Assemblies, as certified by the
President in Proclamation No. 1102, was not in accordance
with the constitutional and statutory procedure laid down
for the purpose does not quite resolve the questions raised
in these cases. Such a finding, in our opinion, is on a
matter which is essentially justiciable, that is, within the
power of this Court to inquire into. It imports nothing more
than a simple reading and application of the pertinent
provisions of the 1935 Constitution, of the Election Code
and of other related laws and official acts. No question of
wisdom or of policy is involved. But from this finding it
does not necessarily follow that this Court may justifiably
declare that the Constitution has not become effective, and
for that reason give due course to these petitions or grant
the writs herein prayed for. The effectivity of the said
Constitution, in the final analysis, is the basic and
162

ultimate question posed by these cases, to resolve which

considerations other than judicial, and therefore beyond
the competence of this Court, are relevant and
unavoidable.
Several theories have been advanced respectively by the
parties. The petitioners lay stress on the invalidity of the
ratification process adopted by the Citizens Assemblies and
on that premise would have this Court grant the reliefs
they seek. The respondents represented by the Solicitor
General, whose theory may be taken as the official position
of the Government, challenge the jurisdiction of this Court
on the ground that the questions raised in the petitions are
political and therefore non-justiciable, and that in any case
popular acquiescence in the new Constitution and the
prospect of unsettling acts done in reliance thereon should
caution against interposition of the power of judicial
review. Respondents Gil J. Puyat and Jose Roy (in L-
36165), in their respective capacities as President and
President Pro Tempore of the Senate of the Philippines,
and through their counsel, Senator Arturo Tolentino,
likewise invoke the political question doctrine, but on a
ground not concurred in by the Solicitor General, namely,
that approval of the 1973 Constitution by the people was
made under a revolutionary government, in the course of a
successful political revolution, which was converted by act
of the people to the present de 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 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,
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VOL. 50, MARCH 31, 1973 163
and the latter by not convening on January 22, 1973 or at

any time thereafter, as ordained by the 1935 Constitution,
and in the case of a majority of the members by expressing
their option to serve in the Interim National Assembly in
accordance with Article XVIII, Section 2, of the 1973
Constitution.*
The theory advanced by Senator Tolentino, as counsel
for respondents Puyat and Roy, may be taken up and
restated at same length if only because it would constitute,
if sustained, the most convenient ground for the invocation
of the political-question doctrine. In support of his theory,
Senator Tolentino contends that after President Marcos
declared martial law on September 21, 1972 (Proclamation
No. 1081) he established a revolutionary government when
he issued General Order No. 1 the next day, wherein he
proclaimed “that I shall govern the nation and direct the
operation of the entire government, including all its
agencies and instrumentalities, in my capacity, and shall
exercise all the powers and prerogatives appurtenant and
incident to my position as such Commander-in-Chief of all
the Armed Forces of the Philippines.” By this order, it is
pointed out, the Commander-in-Chief of the Armed Forces
assumed all the powers of government — executive,
legislative, and judicial; and thereafter proceeded to
exercise such powers by a series of Orders and Decrees
which amounted to legislative enactments not justified
under martial law and, in some instances, trenched upon
the domain of the judiciary, by removing from its
jurisdiction certain classes of cases, such as “those
involving the validity, legality, or constitutionality of
Proclamation No. 1081, or of any decree, order or act
issued, promulgated or performed by me or by my duly
designated representative pursuant thereto.” (General
Order No. 3 as amended by General Order No. 3-A, dated
September 24, 1972.) The ratification by the Citizens
Assemblies, it is averred, was the culminating act of the
revolution, which thereupon converted the government into
a de jure one under the 1973 Constitution.
_______________
* According to the Solicitor General 92 Congressmen and 15 Senators
(both numbers constituting majorities) have expressed their option.
164


If indeed it be accepted that the Citizens Assemblies had
ratified the 1973 Constitution and that such ratification as
well as the establishment of the government thereunder
formed part of a revolution, albeit peaceful, then the issue
of whether or not that Constitution has become effective
and, as necessary corollary, whether or not the government
legitimately functions under it instead of under the 1935
Constitution, is political and therefore non-judicial in
nature. Under such a postulate what the people did in the
Citizen Assemblies should be taken as an exercise of the
ultimate sovereign power. If they had risen up in arms and
by force deposed the then existing government and set up a
new government in its place, there could not be the least
doubt that their act would be political and not subject to
judicial review but only to the judgment of the same body
politic act, in the context just set forth, is based on
realities. If a new government gains authority and
dominance through force, it can be effectively challenged
only by a stronger force; judicial dictum can prevail against
it. We do not see that situation would be any different, as
far as the doctrine of judicial review is concerned, if no
force had been resorted to and the people, in defiance of the
existing Constitution but peacefully because of the absence
of any appreciable opposition, ordained a new Constitution
and succeeded in having the government operate under it.
Against such a reality there can be no adequate judicial
relief; and so courts forbear to take cognizance of the
question but leave it to be decided through political means.
The logic of the political-question doctrine is illustrated
in statement of the U.S. Supreme Court in a case* relied
upon, curiously enough, by the Solicitor General, who
disagrees with the revolutionary government theory of
Senator Tolentino. The case involved the issue of which of
two opposing governments struggling for supremacy in the
State of Rhode Island was the lawful one. The issue had
previously come up in several other cases before the courts
of the State, which uniformly held that the inquiry
belonged to the political power and not to the judicial.
Commenting on the ruling thus arrived at, the U.S.
Supreme Court said: “And if a State court should
_______________
* Luther v. Borden, 48 U.S. (7 Haw.) 1, 12 L. Ed. 581 (1849).
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VOL. 50, MARCH 31, 1973 165

enter upon the inquiry proposed in this case, and should

come to the conclusion that the government under which it
acted had been put aside and displaced by an opposing
government, it would cease to be a court, and incapable of
pronouncing a judicial decision upon the question it
undertook to try. If it decides at all as a court, it
necessarily affirms the existence and authority of the
government under which it is exercising judicial power.” In
other words, since the court would have no choice but to
decide in one way alone in order to be able to decide at all,
the question could not be considered proper for judicial
determination.
It should be noted that the above statement from Luther
vs. Borden would be applicable in the cases at bar only on
the premise that the ratification of the Constitution was a
revolutionary act and that the government now functioning
it is the product of such revolution. However, we are not
prepared to agree that the premise is justified.
In the first, place, with specific reference to the
questioned ratification, several significant circumstances
may be noted. (1) The Citizens Assemblies were created,
according to Presidential Decree No. 86, “to broaden the
base of citizen participation in the democratic process and
to afford ample opportunities for the citizenry to express
their views on important national issues.” (2) The President
announced, according to the Daily Express of January 2,
1973, that “the referendum will be in the nature of a loose
consultation with the people.” (3) The question, as
submitted to them on the particular point at issue here,
was “Do you approve of the Constitution?” (4) President
Marcos, in proclaiming that the Constitution had been
ratified, stated as follows: “(S)ince the referendum results
show that more than ninety-five (95) per cent of the
members of the Barangays (Citizens Assemblies) are in
favor of the new Constitution, the Katipunan ng mga
Barangay has strongly recommended that the new
Constitution should already be deemed ratified by the
Filipino people.” (5) There was not enough time for the
Citizens Assemblies to really familiarize themselves with
the Constitution, much less with the many other subjects
that were submitted to them. In fact the plebiscite planned
for January 15, 1973 under Presidential Decree No. 73 had
been postponed
166

to an indefinite date, the reasons for the postponement

being, as attributed to the President in the newspapers,
that “there was little time to campaign for or against
ratification” (Daily Express, Dec. 22, 1972); that he would
base his decision (as to the date, of the plebiscite) on the
compliance by the Commission (on Elections) on the
publication requirement of the new Charter and on the
position taken by national leaders” (Daily Express, Dec. 23,
1972); and that “the postponement would give us more time
to debate on the merits of the Charter.” (Bulletin Today,
Dec. 24, 1972.)
The circumstances above enumerated lead us to the
conclusion that the Citizens Assemblies could not have
understood the referendum to be for the ratification of the
Constitution, but only for the expression of their views on a
consultative basis. Indeed, if the expression of those views
had been intended as an act of ratification (or of rejection
as a logical corollary) — there would have been no need for
the Katipunan ng mga Barangay to recommend that the
Constitution should already be deemed ratified, for
recommendation imports recognition of some higher
authority in whom the final decision rests.
But then the President, pursuant to such
recommendation, did proclaim that the Constitution had
been ratified and had come into effect. The more relevant
consideration, therefore, as far as we can see, should be as
to what the President had in mind in convening the
Citizens Assemblies, submitting the Constitution to them
and proclaiming that the favorable expression of their
views was an act of ratification. In this respect subjective
factors, which defy judicial analysis and adjudication, are
necessarily involved.
In positing the problem within an identifiable frame of
reference we find no need to consider whether or not the
regime established by President Marcos since he declared
martial law and under which the new Constitution was
submitted to the Citizens Assemblies was a revolutionary
one. The pivotal question is rather whether or not the
effectivity of the said Constitution by virtue of Presidential
Proclamation No. 1102, upon the recommendation of the
Katipunan ng mga Barangay, was intended to be definite
and irrevocable, regardless of
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non-compliance with the pertinent constitutional and

statutory provisions prescribing the procedure for
ratification. We must confess that after considering all the
available evidence and all the relevant circumstances we
have found no reasonably reliable answer to the question.
On one hand we read, for instance, the following public
statements of the President:
Speaking about the proclamation of martial law, he
said:
“I reiterate what I have said in the past: there is no turning

back for our people.
“We have committed ourselves to this revolution. We have
pledged to it our future, our fortunes, our lives, our destiny. We
have burned our bridges behind us. Let no man misunderstand
the strength of our resolution.” (A Report to the Nation, Jan. 7,
1973.)
On the occasion of the signing of Proclamation No. 1102

on January 17, 1973, the President said the following,
among other things:
“... We can, perhaps delimit the power of the people to speak on

legal matters, on justiciable matters, on matters that may come
before the experts and interpreters of the law. But we cannot
disqualify the people from speaking on what we and the people
consider purely political matters especially those that affect the
fundamental law of the land.
“... The political questions that were presented to the people
are exactly those that refer to the form of government which the
people want ... The implications of disregarding the people’s will
are too awesome to be even considered. For if any power in
government should even dare to disregard the people’s will there
would be valid ground for revolt.
“... Let it be known to everybody that the people have spoken
and they will no longer tolerate any attempt to undermine the
stability of their Republic; they will rise up in arms not in revolt
against the Republic but in protection of the Republic which they
have installed. It is quite clear when the people say, we ratify the
Constitution, that they mean they will not discard, the
Constitution.”
168


On January 19, 1973 the Daily Express published
statement of the President made the day before, from
which the following portion is quoted:
“... the times are too grave and the stakes too high for us
permit the customary concessions to traditional democratic
process to hold back our people’s clear and unequivocal resolve
and mandate to meet and overcome the extraordinary challenges
presented by these extraordinary times.”
On the same occasion of the signing of Proclamation No.

1102 the President made pointed reference to “the demand
of some of our citizens ... that when all other measures
should fail, that the President be directed to organize and
establish a Revolutionary Government,” but in the next
breath added: “... if we do ratify the Constitution, how can
we speak of Revolutionary Government? They cannot be
compatible ...” “(I)t is my feeling,” he said, “that the
Citizens’ Assemblies which submitted this recommendation
merely sought articulate their impatience with the status
quo that has brought about anarchy, confusion and misery
to the masses ...” The only alternatives which the President
clearly implied by the foregoing statements were the
ratification of the new Constitution and the establishment
of a revolutionary government, the latter being
unnecessary, in his opinion, because precisely the
Constitution had been ratified. The third obvious
alternative was entirely ruled out, namely, a return to the
1935 Constitution, for it was the status quo under that
Constitution that had caused “anarchy, confusion and
misery.” The message seems clear: rather than return to
such status quo, he would heed the recommendation of the
Citizens’ Assemblies to establish a revolutionary
government, because that would be the only other way to
carry out the reforms he had envisioned and initiated —
reforms which, in all fairness and honesty, must be given
credit for the improved quality of life in its many aspects,
except only in the field of civil liberties.
If there is any significance, both explicit and implicit,
and certainly unmistakable, in the foregoing
pronouncements, it is that the step taken in connection
with the ratification of the Constitution was meant to be
irreversible, and that nothing
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VOL. 50, MARCH 31, 1973 169

anyone could say would make the least difference. And if

this is a correct and accurate assessment of the situation,
then we would say that since it has been brought about by
political action and is now maintained by the government
that is in undisputed authority and dominance, the matter
lies beyond the power of judicial review.
On the other hand, by avowals no less significant if not
so emphatic in terms, President Marcos has professed
fealty to the Constitution. In “Today’s Revolution:
Democracy” he says:
“I believe, therefore, in the necessity of Revolution as an

instrument of individual and social change ... but that in a
democratic society, revolution is of necessity, constitutional,
peaceful, and legal.”
In his TV address of September 23, 1972, President

Marcos told the nation:
“I have proclaimed martial law in accordance with the

powers vested in the President by the Constitution of the
Philippines.
“xxx xxx xxx
“I repeat, this is not a military takeover of civil government
functions. The Government of the Republic of the Philippines
which was established by our people in 1946 continues.
“xxx xxx xxx
“I assure you that I am utilizing this power vested in me by the
Constitution to save the Republic and reform our society...
“I have had to use this constitutional power in order that we
may not completely lose the civil rights and freedom which we
cherish...
“... We are against the wall. We must now defend the
Republic with the stronger powers of the Constitution.”
(Vital Documents, pp. 1-12; emphasis supplied).
170


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 1935 Constitution. The only
thing is that instead of 18-year-olds voting, we have allowed 15-
year-olds the right to vote. But the 15-year-olds of today are high-
school students, if not graduates, and they are better informed
than my contemporaries at that age. On the matter of whether it
is constitutional to proclaim martial law, it is constitutional
because the Constitution provides for it in the event of invasion,
insurrection, rebellion or immediate danger thereof. We may
quarrel about whether what we have gone through is sufficient
cause to proclaim martial law but at the very least there is a
danger of rebellion because so many of our soldiers have been
killed. You must remember this (martial law provision) was lifted
from the American legislation that was the fundamental law of
our country.
“xxx xxx xxx.”
In the light of this seeming ambivalence, the choice of

what course of action to pursue belongs to the President.
We have earlier made reference to subjective factors on
which this Court, to our mind, is in no position to pass
judgment. Among them is the President’s own assessment
of the will of the people as expressed through the Citizens
Assemblies and of the importance of the 1973 Constitution
to the successful implementation of the social and economic
reforms he has started or envisioned. If he should decide
that there is no turning back, that what the people
recommended through the Citizens Assemblies, as they
were reported to him, demand that the action he took
pursuant thereto be final and irrevocable, then judicial
review is out of the question.
In articulating our view that the procedure of
ratification
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VOL. 50, MARCH 31, 1973 171

that was followed was not in accordance with the 1935

Constitution and related statutes, we have discharged our
sworn duty as we conceive it to be. The President should
now perhaps decide, if he has not already decided, whether
adherence to such procedure is weighty enough a
consideration, if only to dispel any cloud of doubt that may
now and in the future shroud the nation’s Charter.
In the deliberations of this Court one of the issues
formulated for resolution is whether or not the new
Constitution, since its submission to the Citizens
Assemblies, has found acceptance among the people, such
issue being related to the political question theory
propounded by the respondents. We have not tarried on the
point at all since we find no reliable basis on which to form
a judgment. Under a regime of martial law, with the free
expression of opinions through the usual media vehicles
restricted, we have no means of knowing, to the point of
judicial certainty, whether the people have accepted the
Constitution. In any event, we do not find the issue decisive
insofar as our vote in these cases is concerned. To interpret
the Constitution — that is judicial. That the Constitution
should be deemed in effect because of popular acquiescence
— that is political, and therefore beyond the domain of
judicial review.
We therefore vote not to give due course to the instant
petitions.
SEPARATE OPINION
BARREDO, J.:
As far as I am concerned, I regard the present petitions
as no more than mere reiterations of the Supplemental
Petitions filed by Counsel Lorenzo M. Tañada on January
15, 1973 in the so called Plebiscite Cases decided by this
Court on January 22, 1978. Of course, there are
amplifications of some of the grounds previously alleged
and in the course of the unprecedented five-day hearing
that was held from February 12 to 16 last, more extensive
and illuminating arguments were
172

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 significance to our
people and in history of the individual stands of the
members of the Court in relation to said issues and to the
final outcome of these cases, and considering that I
reserved before the filing of a more extended opinion, I will
take this opportunity to explain further why I hold that the
1973 Constitution is already in force, if only to clarify that
apart from the people’s right of revolution to which I made
pointed reference in my previous opinion, I can see now,
after further reflection, that the vote of the people in the
referendum in the Citizens Assemblies held on January 10
to 15, 1973, upon the result of which Proclamation 1102 is
based, may be viewed more importantly as a political act
than as a purely legal one with the result that such vote to
consider the 1973 Constitution as ratified without the
necessity of holding a plebiscite in the form followed in the
previous ratification plebiscites in 1935 of the Constitution
itself, 1937 of women’s suffrage, 1939 of the amendments to
the Ordinance Appended to the Constitution, 1940 of the
re-election of the President, the bicameral legislature and
the Commission on Elections, 1947 of the parity
amendment and 1967, rejecting the proposed increase in
the members of the House of Representatives and
eligibility of members of Congress to the Constitutional
Convention, may be deemed as a valid ratification
substantially in compliance with the basic intent of Article
XV of the 1935 Constitution. If indeed this explanation may
be considered as a modification of my rationalization then,
I wish to emphasize that my position as to the fundamental
issue regarding the enforceability of the new Constitution
is even firmer now than ever before. As I shall elucidate
anon, paramount considerations of national import have
led me to the conviction that the best interests of all
concerned would be best served by the Supreme Court
holding that the 1973
173
VOL. 50, MARCH 31, 1973 173

Constitution is now in force, not necessarily as a

consequence of the revolutionary concept previously
suggested by me, but upon the ground that as a political,
more than as a legal, act of the people, the result of the
referendum may be construed as a compliance with the
substantiality of Article XV of the 1935 Constitution.
I
The facts that gave rise to these proceedings are
historical and well known. Generally, they may be taken
judicial notice of. They revolve around the purported
ratification of the Constitution of 1973 declared in
Proclamation 1102 issued by the President on January 17,
1973.
Pursuant to a joint resolution of the Congress sitting as
a constituent assembly approved on March 16, 1967,
delegates to a constitutional convention to propose
amendments to the Constitution of 1935 were elected in
accordance with the implementing law, Republic Act 6132,
on November 10, 1970. Known as the Constitutional
Convention of 1971, the assembly began its sessions on
June 1, 1971. After encountering a lot of difficulties, due to
bitter rivalries over important positions and committees
and an incomprehensible fear of overconcentrating powers
in their officers, the delegates went about their work in
comparatively slow pace, and by the third quarter of 1972
had finished deliberations and second-reading voting only
on an insignificant number of proposals — until September
21, 1972, when the President, not altogether unexpectedly,
yet abruptly, issued Proclamation 1081 declaring martial
law throughout the country. An attempt was made to have
the Convention recessed until after the lifting of martial
law, and not long after the motion of Delegate Kalaw to
such effect was turned down, the activities within the
assembly shifted to high gear. As if unmindful of the arrest
and continued detention of several of its members, the
convention gathered swift momentum in its work, and on
November 30, 1972, it approved by overwhelming vote the
draft of a complete constitution, instead of mere specific
amendments of particular portions of the Constitution of
1935. Needless to say, before martial law was declared,
there was full and unlimited coverage of the workings in
the convention by the mass media. At the same
174

time, public debates and discussions on various aspects of

proposed amendments were not uncommon.
Earlier, on November 22, 1972, the Convention had
Resolution No. 5843 proposing “to President Ferdinand
Marcos that a decree be issued calling a plebiscite for
ratification of the proposed new Constitution on
appropriate date as he shall determine and providing for
necessary funds therefor.” Acting under this authority,
December 1, 1972, the President issued Presidential Decree
No. 73 submitting the draft constitution for ratification by
the people at a plebiscite set for January 15, 1973. This
order contained provisions more or less similar to the
plebiscite laws passed by Congress relative to the past
plebiscites held in connection with previous proposed
amendments.
In connection with the plebiscite thus contemplated,
General Order No. 17 was issued ordering and enjoining
the authorities to allow and encourage public and free
discussions on proposed constitution. Not only this,
subsequently, under date of December 17, 1972, the
President ordered the suspension the effects of martial law
and lifted the suspension of privilege of the writ of habeas
corpus insofar as activities connected with the ratification
of the draft constitution were concerned. These two orders
were not, however, to last very long. On January 7, 1973,
the President, invoking information related to him that the
area of public debate and discussion had opened by his
previous orders was being taken advantage of by
subversive elements to defeat the purposes for which they
were issued and to foment public confusion, withdrew said
orders and enjoined full and stricter implementation of
martial law.
In the meantime, the President had issued on December
3, 1972 Presidential Decree No. 86 creating Citizens
Assemblies “so as to afford ample opportunities for the
citizenry to express their views on important national
issues” and one of the questions presented to said
assemblies was: “Do you like the plebiscite on the proposed
Constitution to be held later” So, the same order of January
7, 1973, General Order No. 20, the President ordered, “that
the plebiscite scheduled to be held January 15, 1973, be
postponed until further notice.”
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VOL. 50, MARCH 31, 1973 175


In the meanwhile also, on January 5, 1973, the
President issued Presidential Decree, No. 86-A providing as
follows:
“PRESIDENTIAL DECREE NO. 86-A

STRENGTHENING AND DEFINING THE ROLE OF
BARANGAYS (CITIZENS ASSEMBLIES)
WHEREAS, on the basis of preliminary and initial reports
from the field as gathered from barangays (citizens assemblies)
that have so far been established, the people would like to decide
for themselves questions or issues, both local and national,
affecting their day-to-day lives and their future;
WHEREAS, the barangays (citizens assemblies) would like
themselves to be the vehicle for expressing the views of the people
on important national issues;
WHEREAS, such barangays (citizens assemblies) desire that
they be given legal status and due recognition as constituting the
genuine, legitimate and valid expression of the popular will; and
WHEREAS, the people would like the citizens assemblies to
conduct immediately a referendum on certain specified questions
such as the ratification of the new Constitution, continuance of
martial law, the convening of Congress on January 22, 1973, and
the elections in November 1973 pursuant to the 1935
Constitution.
NOW, THEREFORE, I, FERDINAND E. MARCOS, President
of the Philippines, by virtue of the powers vested in me by the
Constitution as Commander-in-Chief of all Armed Forces of the
Philippines, do hereby declare as part of the law of the land the
following:
1. The present barangays (citizens assemblies) are created
under Presidential Decree No. 86 dated December 31, 1972, shall
constitute the base for citizen participation in governmental
affairs and their collective views shall be considered in the
formulation of national policies or programs and, wherever
practicable, shall be translated into concrete and specific decision;
2. Such barangays (citizens assemblies) shall consider vital
national issues now confronting the country, like the holding of
the plebiscite on the new Constitution, the continuation of martial
rule, the convening of Congress on January 22, 1973, and the
holding of elections in November 1973, and others in the future,
which shall
176
serve as guide or basis for action or decision by the national

government;
3. The barangays (citizens assemblies) shall conduct between
January 10 and 15, 1973, a referendum on important national
issues, including those specified in paragraph 2 hereof, and
submit results thereof to the Department of Local Governments
Community Development immediately thereafter, pursuant to
express will of the people as reflected in the reports gathered from
the many thousands of barangays (citizens assemblies)
throughout the country.
4. This Decree shall take effect immediately.
Done in the City of Manila, this 5th day of January, in the year
of Our Lord, nineteen hundred and seventy three.
And on January 7, 1973, this was followed by Presidential

Decree No. 86-B reading thus:
“PRESIDENTIAL DECREE NO. 86-B

DEFINING FURTHER THE ROLE OF BARANGAYS
(CITIZENS ASSEMBLIES)
WHEREAS, since their creation pursuant to Presidential
Decree No. 86 dated December 31, 1972, the Barangays (Citizens
Assemblies) have petitioned the Office of the President to submit
them for resolution important national issues;
WHEREAS, one of the questions persistently mentioned refers
to the ratification of the Constitution proposed by the 1971
Constitutional Convention;
WHEREAS, on the basis of the said petitions, it is evident that
the people believe that the submission of the proposed
Constitution to the Citizens Assemblies or Barangays should be
taken as a plebiscite in itself in view of the fact that freedom of
debate has always been limited to the leadership in political,
economic and social fields, and that it is now necessary to bring
this down to the level of the people themselves through the
Barangays or Citizens Assemblies;
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VOL. 50, MARCH 31, 1973 177


NOW THEREFORE, I, FERDINAND E. MARCOS, President
Constitution, do hereby order that important national issues shall
from time to time be referred to the Barangays (Citizens
Assemblies) for resolution in accordance with Presidential Decree
No. 86-A dated January 5, 1973 and that the initial referendum
shall include the matter of ratification of the Constitution
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?
178


“(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
“(5) If the elections would not be held, when do you want it to
be called?
“(6) Do you want martial law to continue?”
It is not seriously denied that together with the question

the voters were furnished “comments” on the said
questions more or less suggestive of the answer desired. It
may assumed that the said “comments” came from official
sources, albeit specifically unidentified. As petitioners point
out, the most relevant of these “comments” were the
following:
“COMMENTS ON
“xxx xxx xxx
“QUESTION No. 2
“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
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VOL. 50, MARCH 31, 1973 179

showing otherwise, that the results of the referendum were

determined in the following manner:
“Thereafter, the results of the voting were collated and sent to

the Department of Local Governments. The transmission of the
results was made by telegram, telephone, the provincial
government SSB System in each province connecting all towns;
the SSB communication of the PACD connecting most provinces;
the Department of Public Information Network System; the
Weather Bureau Communication System connecting all provincial
capitals and the National Civil Defense Network connecting all
provincial capitals. The certificates of results were then flown to
Manila to confirm the previous figures received by the
aforementioned means of transmission. The certificates of results
tallied with the previous figures taken with the exception of few
cases of clerical errors.
“The Department adopted a system of regionalizing the
receiving section of the Citizens Assemblies operation at the
Department wherein the identity of the barrio and the province
was immediately given to a staff in charge of each region. Every
afternoon at 2:00 o’clock, the 11 regions submitted the figures
they received from the field to the central committee to tabulate
the returns. The last figures were tabulated at 12 midnight of
January 16, 1973 and early morning of January 17, 1973 and
were then communicated to the President by the Department of
Local Governments.”
The development culminated in the issuance by the

President of Proclamation 1102 on January 17, 1973. Said
proclamation reads:
“PROCLAMATION NO. 1102 ANNOUNCING THE

RATIFICATION BY THE FILIPINO PEOPLE OF THE
CONSTITUTION PROPOSED BY THE 1971
CONSTITUTIONAL CONVENTION.
WHEREAS, the Constitution proposed by the nineteen
hundred seventy-one Constitutional Convention is subject to
ratification by the Filipino people;
WHEREAS, Citizens Assemblies were created in barrios in
municipalities and in districts/wards in chartered cities pursuant
to Presidential Decree No. 6, dated December 31, 1972, composed
of all
180

persons who are residents of the barrio, district or ward for at

least six months, fifteen years of age or over, citizens of the
Philippines and who are registered in the list of Citizen Assembly
members kept by the barrio, district or ward secretary;
WHEREAS, the said Citizens Assemblies were establish
precisely to broaden the base of citizen participation in the
democratic process and to afford ample opportunity for the citizen
to express their views on important national issues;
WHEREAS, responding to the clamor of the people an
pursuant to Presidential Decree No. 86-A, dated January 5, 1973,
the following questions were posed before Citizens’ Assemblies or
Barangays: Do you approve of the New Constitution? Do you still
want a plebiscite to be called to ratify the new Constitution?
WHEREAS, fourteen million nine hundred seventy-six
thousand five hundred sixty one (14,976,561) members of all the
Barangays (Citizens Assemblies) voted for the adoption of the
proposed Constitution, as against seven hundred forty-three
thousand eight hundred sixty nine (743,869) who voted for its
rejection; while on the question as to whether or not the people
would still like a plebiscite to be called to ratify the new
Constitution fourteen million two hundred ninety-eight thousand
eight hundred fourteen (14,298,814) answered that there was no
need for plebiscite and that the vote of the Barangays (Citizens
Assemblies) should be considered as a vote in a plebiscite;
WHEREAS, since the referendum results show that more than
ninety-five (95) percent of the members of the Barangays (Citizen
Assemblies) are in favor of the New Constitution, the Katipunan
ng Mga Barangay has strongly recommended that the new
Constitution should already be deemed ratified by the Filipino
people;
NOW, THEREFORE, I, FERDINAND E. MARCOS, President
Constitution, do hereby certify and proclaim that the Constitution
Constitutional Convention has been ratified by an
overwhelmingly majority of all of the votes cast by the members of
all the Barangays (Citizens Assemblies) throughout the
Philippines, and has thereby come into effect.
IN WITNESS WHEREOF, I have hereunto set my hand and
caused the seal of the Republic of the Philippines to be affixed.
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VOL. 50, MARCH 31, 1973 181


Done in the City of Manila, this 17th day of January, in the
year of Our Lord, nineteen hundred and seventy-three.”
The first attempt to question the steps just enumerated

taken by the President was in the so-called Plebiscite
Cases, ten in number, which were filed by different
petitioners during the first half of December 1972.1 Their
common target then was Presidential Decree No. 73, but
before the said cases could be decided, the series of moves
tending in effect to make them moot and academic insofar
as they referred exclusively to the said Presidential Decree
began to take shape upon the issuance of Presidential
Decree No. 86-A, quoted above. And when Presidential
Decree No. 86-B, also above quoted, was issued and the six
additional questions which were first publicized on
January 11, 1973 were known, together with the
“comments,” petitioners sensed that a new and unorthodox
procedure was being adopted to secure approval by the
people of the new Constitution, hence Counsel Tañada, not
being satisfied with the fate of his urgent motion for early
decision of the above ten cases dated January 12, 1973,
filed on January 15, 1973, his supplemental motion seeking
the prohibition against and injunction of the proceedings
going on. Principal objective was to prevent that the
President be furnished the report of the results of the
referendum and thereby disable him from carrying out
what petitioners were apprehensively foreseeing would be
done — the issuance of some kind of proclamation, order or
decree, declaring that the new Constitution had been
ratified. Reacting swiftly, the Court resolved on the same
day, January 15, which was Monday, to consider the
supplemental motion as a supplemental petition and to
require the
_______________
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.
182

respondents to answer the same the next Wednesday,

January 17th, before the hour of the hearing of the petition
which set for 9:30 o’clock in the morning of that day. The
details what happened that morning form part of the
recital of facts the decision rendered by this Court in the
ten cases on January 22, 1973 and need not be repeated
here. Suffice it to state no that before the hearing could be
closed and while Counsel Tañada was still insisting on his
prayer for preliminary injunction or restraining order, the
Secretary of Justice arrived and personally handed to the
Chief Justice a copy Proclamation 1102 which had been
issued at about 11:00 o’clock that same morning. In other
words, the valiant and persistent efforts of petitioners and
their counsels were overtaken by adverse developments,
and in the mind of the majority of the members of the
Court, the cases had become academic. For my part, I took
the view that even on the basis of the supplemental
petition and the answer thereto filed by respondents, the
Court could already decide on the fundamental issue of the
validity Proclamation 1102, as Justices Zaldivar, Antonio
and Esguerra also believed, inasmuch as Counsel Tañada’s
pleading and argument had anticipated its issuance, but
the majority felt it was not ready to resolve the matter, for
lack, according them, of full ventilation, and so, the
decision reserved petitioners the filing of the “appropriate”
cases, evidently, the present ones.
II
At the threshold, I find myself confronted by a matter
which, although believed to be inconsequential by my
learned brethren, I strongly feel needs special attention. I
refer to the point raised by Counsel Arturo M. Tolentino for
respondent Gil J. Puyat and Jose Roy, who have been sued
as President and President Pro Tempore of the Senate, to
the effect that change in the composition of the Supreme
Court provided for the 1973 Constitution, from the 11-man
tribunal under the 1935 Constitution to a 15-man Court,
makes of these cases which were filed after January 17,
1973 the date when Proclamation 1102 declared the new
Constitution as ratified, political nature and beyond our
jurisdiction. The main consideration submitted in this
connection is that inasmuch as the number votes needed
for a decision of this Court has been increased
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VOL. 50, MARCH 31, 1973 183

from six to eight in ordinary cases and from eight to ten for
the declaration of unconstitutionality of a treaty, executive
agreement 2 or law, the Court would have to resolve first as
a prejudicial question whether the Court is acting in these
cases as the 15-man or the 11-man Court, in which event, it
would be faced with the dilemma that if it acts either as
the former or as the latter, it would be prejudging the very
matter in issue one way or the other, and, in effect, it
would be choosing between two constitutions, which is a
political determination not within the Court’s competence.
While I agree that the problem is at first blush rather
involved, I do not share the view that the premises laid
down by counsel necessarily preclude this Court from
taking a definite stand on whether the Court is acting in
these cases as the 15-Man or the 11-man Court. I feel very
strongly that the issue should not be ignored or dodged, if
only to make the world know that the Supreme Court of
the Philippines is never incognizant of the capacity in
which it is acting, much less lacking in courage or wisdom
to resolve an issue that relates directly to its own
composition. What a disgrace it would be to admit that this
Supreme Court does not know, to use a common apt
expression, whether it is fish or fowl. Withal, scholars and
researchers who might go over our records in the future
will inevitably examine minutely how each of us voted and
upon what considerations we have individually acted, and,
indeed, doubts may arise as to whether or not, despite the
general result we might announce, there had been the
requisite number of votes for a valid collegiate action.
For instance, it may be argued that the present cases do
not involve an issue of unconstitutionality, hence, if we are
acting as the 11-man Court, only six votes would suffice to
declare Proclamation 1102 ineffective, and if upon analysis
of our respective opinions it should be inferable therefrom
that six of us have considered the matter before the Court
as justiciable and at the same time have found the
procedure of ratification adopted in Presidential Decrees
86-A and 86-B and related orders of the President as not
being in conformity with Article
_______________
2 Executive Agreements are not included in the corresponding
provision of the 1935 Constitution.
184

XV of the old Constitution, a cloud would exist as to

efficacy of the dispositive portion of Our decision dismiss
these cases, even if we have it understood that by the vote
of justices in favor of such dismissal, We intended to mean
the implementation or enforcement of the new Constitution
now being done could continue.
Be that as it may, I am against leaving such an
important point open to speculation. By nature I am averse
to ambiguity and equivocation and as a member of the
Supreme Court, last thing I should knowingly countenance
is uncertainty as to the juridical significance of any
decision of the Court which is precisely being looked upon
as the haven in which doubts are supposed to be
authoritatively dispelled. Besides, from very nature of
things, one thing is indubitably beyond dispute — we
cannot act in both capacities of a 15-man and an 11-man
Court at the same time, in like manner that it is
inconceivable that the 1935 and 1973 Constitution can be
considered by Us both in force. Our inescapable duty is to
make a choice between them, according to what law and
other considerations inherent to our function dictate. I
cannot bear the thought that someone may someday say
that the Supreme Court of the Philippines once decided a
case without knowing the basis of its author to act or that
it was ever wanting in judicial courage to define the same.
Accordingly, with full consciousness of my limitations
but compelled by my sense of duty and propriety to
straighten out this grave of issue touching on the capacity
in which the Court acting in these cases, I hold that we
have no alternative but adopt in the present situation the
orthodox rule that when validity of an act or law is
challenged as being repugnant constitutional mandate, the
same is allowed to have effect until the Supreme Court
rules that it is unconstitutional. Stated differently, We
have to proceed on the assumption that the new
Constitution is in force and that We are acting in these
cases as the 15-man Supreme Court provided for there
Contrary to counsel’s contention, there is here no
prejudgment for or against any of the two constitutions.
The truth of matter is simply that in the normal and logical
conduct governmental activities, it is neither practical nor
wise to defer the course of any action until after the courts
have ascertained
185
VOL. 50, MARCH 31, 1973 185

their legality, not only because if that were to be the rule,

the functioning of government would correspondingly be
undesirably hesitative and cumbersome, but more
importantly, because the courts must at the first instance
accord due respect to the acts of the other departments, as
otherwise, the smooth running of the government would
have to depend entirely on the unanimity of opinions
among all its departments, which is hardly possible, unless
it is assumed that only the judges have the exclusive
prerogative of making and enforcing the law, aside from
being its sole interpreter, which is contrary to all norms of
juridical and political thinking. To my knowledge, there is
yet no country in the world that has recognized judicial
supremacy as its basic governmental principle, no matter
how desirable we might believe the idea to be.
Indeed, it is not hard to visualize the difficulty if not
absurdity of Our acting on the assumption that this Court
is still functioning under the 1935 Constitution. It is
undeniable that the whole government, including the
provincial, municipal and barrio units and not excluding
the lower courts up to the Court of Appeals, is operating
under the 1973 Constitution. Almost daily, presidential
orders and decrees of the most legislative character
affecting practically every aspect of governmental and
private activity as well as the relations between the
government and the citizenry are pouring out from
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
officials and employees in big numbers are going on in
obedience to them. For the ten justices of the Supreme
Court to constitute an island of resistance in the midst of
these developments, which even unreasoning obstinacy
cannot ignore, much less impede, is unimaginable, let alone
the absurd and complicated consequences such a position
entails in the internal workings within the judiciary
amount its different components, what with the lower
courts considering such orders and decrees as forming part
of the law of the land in making their orders and decisions,
whereas the
186

Supreme Court is holding, as it were, their effectivity at

bay if it is not being indifferent to or ignoring them.
It is suggested that the President, being a man of law,
committed to abide by the decision of the Supreme Court,
and if the Court feels that it cannot in the meantime
consider the enforcement of the new Constitution, he can
wait for its decision. Accepting the truth of this assertion, it
does necessarily follow that by this attitude of the
President, considers the Supreme Court as still operating
under the Constitution. Quite on the contrary, it is a fact
that he has given instructions for the payment of the
justices in accordance with the rate fixed in the New
Constitution. Not only that, official alter ego, the Secretary
of Justice, has been shoving this Court, since January 18,
1973, all matters related to the administrative supervision
of the lower courts which by the new charter has been
transferred from the Department of Justice to the Supreme
Court, and as far as I know, President has not
countermanded the Secretary’s steps in that direction.
That, on the other hand, the President has not augmented
the justices of the Court to complete the prescribed number
of fifteen is, in my appraisal, of no consequence considering
that with the presence of ten justices who are the Court
now, there is a working quorum, and the addition of new
justices cannot in anyway affect the voting on the
constitutional questions now before Us because, while
there sufficient justices to declare by their unanimous vote
illegality of Proclamation 1102, the votes of the justices to
added would only be committed to upholding the same,
since they cannot by any standard be expected to vote
against legality of the very Constitution under which they
would be appointed.
Moreover, what makes the premise of presumptive valid
preferable and, even imperative, is that We are dealing
here with a whole constitution that radically modifies or
alters only the form of our government from presidential
parliamentary but also other constitutionally institutions
vitally affecting all levels of society. It is, to mind,
unrealistic to insist on that, fundamentally, the 1973
Constitution is the same 1935 Constitution, with a few
187
VOL. 50, MARCH 31, 1973 187

improvements. A cursory perusal of the former should

convince anyone that it is in essence a new one. While it
does retain republicanism as the basic governmental tenet,
the institutional changes introduced thereby are rather
radical and its social orientation is decidedly more
socialistic, just as its nationalistic features are somewhat
different in certain respects. One cannot but note that the
change embraces practically every part of the old charter,
from its preamble down to its amending and effectivity
clauses, involving as they do the statement of general
principles, the citizenship and suffrage qualifications, the
articles on the form of government, the judiciary
provisions, the spelling out of the duties and
responsibilities not only of citizens but also of officers of the
government and the provisions on the national economy as
well as the patrimony of the nation, not to mention the
distinctive features of the general provisions. What is more,
the transitory provisions notably depart from traditional
and orthodox views in that, in general, the powers of
government during the interim period are more or less
concentrated in the President, to the extent that the
continuation or discontinuance of what is now practically a
one-man-rule, is even left to his discretion. Notably, the
express ratification of all proclamations, orders, decrees
and acts previously issued or done by the President,
obviously meant to encompass those issued during martial
law, is a commitment to the concept of martial law powers
being implemented by President Marcos, in defiance of
traditional views and prevailing jurisprudence, to the effect
that the Executive’s power of legislation during a regime of
martial law is all inclusive and is not limited to the matters
demanded by military necessity. In other words, the new
constitution unlike any other constitution countenances the
institution by the executive of reforms which normally is
the exclusive attribute of the legislature.
Withal, the best proofs that by its expressed and implied
intent, the Constitution of 1973 is a new one, are that (1)
Section 16 of its Article XVII which provides that this
constitution shall “supersede the Constitution of nineteen
hundred and thirty-five and all amendments thereto” and
(2) its transitory provisions expressly continue the
effectivity of existing laws, offices and courts as well as the
tenure of all incumbent officials, not adversely affected by
it, which would
188

have been unnecessary if the old constitution were being

merely amended.
The new Constitution, in its Section 10, Article XVII,
provides that “(T)he incumbent members of the Judiciary
(which include the Chief Justice and Associate Justices of
Supreme Court) may continue in office (under the
constitution) until they reach the age of seventy years, etc.”
By virtue of the presumptive validity of the new charter, all
of form part of the 15-man-Court provided for therein
correspondingly, We have in legal contemplation, ceased in
the meanwhile to be members of the 11-man-Court in the
1935 Constitution. Should the Court finally decide that the
Constitution is invalid, then We would automatically revert
to our positions in the 11-man- Court, otherwise, We would
just continue to be in our membership in the 15-man-Court,
unless We feel We cannot in conscience accept the legality
of existence. On the other hand, if it is assumed that We
are the 11-man-Court and it happens that Our collective
decision is in favor of the new constitution, it would be
problematical for any dissenting justice to consider himself
as included automatically in the 15-man-Court, since that
would tantamount to accepting a position he does not
honestly believe exists.
III
In brief, the main contention of the petitioners is that
Proclamation 1102 is invalid because the ratification of the
1973 Constitution it purports to declare as having taken
place as a result of the referendum above-referred to is
ineffective since it cannot be said on the basis of the said
referendum that said Constitution has been “approved by a
majority of the votes cast at an election” in the manner
prescribed by Article XV the Constitution of 1935. More
specifically, they maintain that the word “election” in the
said Article has already acquired a definite accepted
meaning out of the consistent holding in the past of
ratification plebiscites, and accordingly, no other form of
ratification can be considered contemplated by the framers
of the Old Constitution than that which had been followed
1935, 1937, 1939, 1940, 1946 and 1967, the last three or
four which were held under the supervision of the
Commission on
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VOL. 50, MARCH 31, 1973 189

Elections. Furthermore, they emphatically deny the

veracity of the proclaimed results of the referendum
because, according to them the referendum was a farce and
its results were manufactured or prefabricated, considering
that Mr. Francisco Cruz, who is supposed to have
submitted the final report to the President, which served as
basis for Proclamation 1102, had no official authority to
render the same, and it is inconceivable and humanly
impossible for anyone to have been able to gather, tabulate
and canvass the 15 million votes allegedly reported within
the short period of time employed. Of course, they also
contend that in any event, there was no proper submission
because martial law per se creates constructive duress
which deprives the voters of the complete freedom needed
for the exercise of their right of choice and actually, there
was neither time nor opportunity for real debate before
they voted.
On the other hand, the position of the Solicitor General
as counsel for the respondents is that the matter raised in
the petitions is a political one which the courts are not
supposed to inquire into, and, anyway, there has been a
substantial compliance with Article XV of the 1935
Constitution, inasmuch as, disregarding unessential
matters of form, the undeniable fact is that the voting in
the referendum resulted in the approval by the people of
the New Constitution.
I need not dwell at length on these variant positions of
the parties. In my separate opinion in the Plebiscite Cases,
I already made the observation that in view of the lack of
solemnity and regularity in the voting as well as in the
manner of reporting and canvassing conducted in
connection with the referendum, I cannot say that Article
XV of the Old Constitution has been complied with, albeit I
held that nonetheless, the Constitution of 1973 is already
in force. In order, however, to make myself clearer on some
relevant points, I would like to add a few considerations to
what I have already said in the former cases.
In my opinion in those cases, the most important point I
took into account was that in the face of the Presidential
certification through Proclamation 1102 itself that the New
Constitution has been approved by a majority of the people
and
190

having in mind facts of general knowledge which I have

judicial notice of, I am in no position to deny that the result
of the referendum was as the President had stated. I can
believe that the figures referred to in the proclamation may
not accurate, but I cannot say in conscience that all of them
are manufactured or prefabricated, simply because I saw
with own eyes that people did actually gather and listen
discussions, if brief and inadequate for those who are
abreast of current events and general occurrences, and that
they did vote. I believe I can safely say that what I have
seen have also been seen by many others throughout the
country and unless it can be assumed, which honestly, I do
not believe to be possible, that in fact there were actually
no meetings held and no voting done in more places than
those wherein there were such meetings and votings, I am
not prepared to discredit entirely the declaration that there
was voting and that the majority of the votes were in favor
of the New Constitution. If in fact there were substantially
less than 14 million votes of approval, the real figure, in my
estimate, could still be significant enough and legally
sufficient to serve as basis for a valid ratification.
It is contended, however, that the understanding was
that the referendum among the Citizens Assemblies was to
be in the nature merely of a loose consultation and not an
outright submission for purposes of ratification. I can see
that at the outset, when the first set of questions was
released, such may have been the idea. It must not be lost
sight of, however, that if the newspaper reports are to be
believed, and I say this only because petitioners would
consider the newspapers as the official gazettes of the
administration, the last set of six questions were included
precisely because the reaction to the idea of mere
consultation was that the people wanted greater direct
participation, thru the Citizens Assemblies, in decision-
making regarding matters of vital national interest. Thus,
looking at things more understandingly and realistically
the two questions emphasized by counsel, namely, (1) Do
you approve of the New Constitution? and (2) Do you want
plebiscite to be called to ratify the new Constitution?
should be considered no longer as loose consultations but as
direct inquiries about the desire of the voters regarding the
matters mentioned. Accordingly, I take it that if the
majority had
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expressed disapproval of the new Constitution, the logical

consequence would have been the complete abandonment
of the idea of holding any plebiscite at all. On the other
hand, it is very plain to see that since the majority has
already approved the new Constitution, a plebiscite would
be superfluous. Clear as these rationalizations may be, it
must have been thought that if the holding of a plebiscite
was to be abandoned, there should be a direct and
expressed desire of the people to such effect in order to
forestall as much as possible any serious controversy
regarding the non-holding of the plebiscite required by the
letter of Section 16 of Article XVII, the effectivity clause, of
the new Constitution. Oddly enough, the “comments”
accompanying the questions do strongly suggest this view.
And as it turned out, the majority found no necessity in
holding a plebiscite.
In connection with the question, Do you approve of the
New Constitution? capital is being made of the point that
as so framed, the thrust of the said question does not seek
an answer of fact but of opinion. It is argued that it would
have been factual were it worded categorically thus — Do
you approve the New Constitution? The contention would
have been weighty were it not unrealistic. I remember
distinctly that the observation regarding the construction
of the subject question was not originally made by any of
the talented counsels for petitioners. It came from Mr.
Justice Fred Ruiz Castro whose mastery of the English
language can rightly be the cause of envy of even professors
of English. None of the other members of the Court, as far
as I can recall, ever noticed how the said question is
phrased, or if anyone of Us did, I am not aware that he
gave it more than passing attention. What I mean is that if
neither any of the distinguished and learned counsels nor
any member of the Court understood the said question
otherwise than calling for a factual answer instead of a
mere opinion, how could anyone expect the millions of
unlettered members of the Citizens Assemblies to have
noticed the point brought out by Justice Castro? Truth to
tell, I myself did not realize the difference until Justice
Castro gave it emphasis. Besides, reading the question in
the light of the accompanying “comment” corresponding to
it in particular, I am certain that any one who answered
the same understood it in no other sense than a direct
inquiry as to whether or not, as a matter of fact,
192

he approves the New Constitution, and naturally,

affirmative answer must be taken as a categorical vote of
approval thereof, considering, particularly, that according
to the reported result of the referendum said answer was
even coupled with the request that the President defer the
convening of the Interim National Assembly.
It is also contended that because of this reference in
answer to that question to the deferment of the convening
of the interim assembly, the said answer is at best a
conditional approval not proper nor acceptable for purposes
of ratification plebiscite. The contention has no basis. In
interest of accuracy, the additional answer proposed in
pertinent “comment” reads as follows: “But we do not want
Ad Interim Assembly to be convoked etc.” On the
assumption that the actual answer, as reported, was of
similar tenor, it is not fair to ascribe to it the imposition of
a condition. At most, the intention is no more than a
suggestion or a wish.
As regards said “comments,” it must be considered that
a martial law was declared, the circumstances surrounding
making of the Constitution acquired a different and more
meaningful aspect, namely, the formation of a new society.
From the point of view of the President and on the basis of
intelligence reports available to him, the only way to meet
situation created by the subversive elements was to
introduce immediately effective reforms calculated to
redeem the people from the depth of retrogression and
stagnation caused by rampant graft and corruption in high
places, influence peddling, oligarchic political practices,
private armies, anarchy, deteriorating conditions of peace
and order, the so inequalities widening the gap between
the rich and the poor, and many other deplorable long
standing maladies crying for early relief and solution.
Definitely, as in the case of rebellious movement that
threatened the Quirino Administration, the remedy was far
from using bullets alone. If a constitution was to be
approved as an effective instrument towards the
eradication of such grave problems, it had to be approved
without loss of time and sans the cumbersome processes
that, from the realistic viewpoint, have in the past
obstructed rather than hastened the progress of the people.
Stated otherwise, in the context of actualities, the evident
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objective in having a new constitution is to establish new

directions in the pursuit of the national aspirations and the
carrying out of national policies. Only by bearing these
considerations in mind can the “comments” already
referred to be properly appreciated. To others said
“comments” may appear as evidence of corruption of the
will of those who attended the assemblies, but actually,
they may also be viewed in the same light as the sample
ballots commonly resorted to in the elections of officials,
which no one can contend are per 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
specific proposed amendments, the former calls for nothing
more than a collective view of all the provisions of the
whole charter, for necessarily, one has to take the good
together with the bad in it. It is rare for anyone to reject a
constitution only because of a few specific objectionable
features, no matter how substantial, considering the ever
present possibility that after all it may be cured by
subsequent amendment. Accordingly, there was need to
indicate to the people the paths open to them in their quest
for the betterment of their conditions, and as long as it is
not shown that those who did not agree to the suggestions
in the “comments” were actually compelled to vote against
their will, I am not convinced that the existence of said
“comments” should make any appreciable difference in the
court’s appraisal of the result of the referendum.
I must confess that the fact that the referendum was
held during martial law detracts somehow from the value
that the referendum would otherwise have had. As I
intimated, however, in my former opinion, it is not fair to
condemn and disregard the result of the referendum barely
because of martial law per se. For one thing, many of the
objectionable features of martial law have not actually
materialized, if only because the implementation of martial
law since its inception has been generally characterized by
restraint and consideration, thanks to the expressed wishes
of the President that the same be made “Philippine style,”
which means without
194

the rigor that has attended it in other lands and other

times. Moreover, although the restrictions on the freedom
of speech, the press and movement during martial law do
have their corresponding adverse effects on the area of
information which should be open to a voter, in its real
sense what “chills” his freedom of choice and mars his
exercise of discretion is suspension of the privilege of the
writ of habeas corpus. The reason is simply that a man may
freely and correctly vote even if the needed information he
possesses as to the candidates or issues being voted upon is
more or less incomplete, but when he is subject to arrest
and detention without investigation and without being
informed of the cause thereof, that is something else which
may actually cause him to cast a captive vote. Thus it is the
suspension of the writ of habeas corpus accompanying
martial law that can cause possible restraint on the
freedom choice in an election held during martial law. It is
a fact, however, borne by history and actual experience,
that in the Philippines, the suspension of the privilege of
the writ habeas corpus has never produced any chilling
effect upon the voters, since it is known by all that only
those who run afoul the law, saving inconsequential
instances, have any cause for apprehension in regard to the
conduct by them of the normal activities of life. And so it is
recorded that in the elections 1951 and 1971, held while
the privilege of writ of habeas corpus was under
suspension, the Filipino voters gave the then opposition
parties overwhelming if not sweeping victories, in defiance
of the respective administrations that ordered the
suspensions.
At this juncture, I think it is fit to make it clear that I
am not trying to show that the result of the referendum
may considered as sufficient basis for declaring that the
New Constitution has been ratified in accordance with the
amending clause of the 1935 Constitution. I reiterate that
in point of law, I find neither strict nor substantial
compliance. The foregoing discussion is only to counter, if I
may, certain impression regarding the general conditions
obtaining during and in relation to the referendum which
could have in one way or another affected the exercise of
the freedom of choice and the use of discretion by the
members of the Citizens Assemblies, to the end that as far
as the same conditions may be relevant in my subsequent
discussions of the acceptance by the people of the New
Constitution they may also be considered.
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IV
It is my sincere conviction that the Constitution of 1973
has been accepted or adopted by the people. And on this
premise, my considered opinion is that the Court may no
longer decide these cases on the basis of purely legal
considerations. Factors which are non-legal but
nevertheless ponderous and compelling cannot be ignored,
for their relevancy is inherent in the issue itself to be
resolved.
In my opinion in the Plebiscite Cases, I joined my
colleagues in holding that the question of whether or not
there was proper submission under Presidential Decree No.
73 is justiciable, and I still hold that the propriety of
submission under any other law or in any other form is
constitutionally a fit subject for inquiry by the courts. The
ruling in the decided cases relied upon by petitioners are to
this effect. In view, however, of the factual background of
the cases at bar which include ratification itself, it is
necessary for me to point out that when it comes to
ratification, I am persuaded that there should be a
boundary beyond which the competence of the courts no
longer has any reason for being, because the other side is
exclusively political territory reserved for their own
dominion by the people.
The main basis of my opinion in the previous cases was
acceptance by the people. Others may feel there is not
enough indication of such acceptance in the record and in
the circumstances the Court can take judicial notice of. For
my part, I consider it unnecessary to be strictly judicial in
inquiring into such fact. Being personally aware, as I have
already stated, that the Citizens Assemblies did meet and
vote, if irregularly and crudely, it is not for me to resort, for
the purposes of these cases, to judicial tape and measure, to
find out with absolute precision the veracity of the total
number of votes actually cast. After all, the claims that
upon a comparison of conflicting reports, cases of excess
votes may be found, even if extrapolated will not, as far as I
can figure out, suffice to overcome the outcome officially
announced. Rather than try to form a conclusion out of the
raw evidence before Us which the parties did not care to
really complete, I feel safer by
196

referring to the results announced in the proclamation

itself. Giving substantial allowances for possible error and
downright manipulation, it must not be overlooked that,
after all, their having been accepted and adopted by the
President, based on official reports submitted to him in due
course of performance of duty of appropriate subordinate
officials, elevated them to the category of an act of a
coordinate department of the government which under the
principle separation of powers is clothed with presumptive
correctness or at least entitled to a high degree of
acceptability, until overcome by better evidence, which in
these cases does not exist. In any event, considering that
due to the unorthodoxy of the procedure adopted and the
difficulty of an accurate checking of all the figures, I am
unable to conceive of any manageable means of acquiring
information upon which to predicate a denial, I have no
alternative but to rely on what has been officially declared.
At this point, I would venture to express the feeling that if
it were not generally conceded that there has been
sufficient showing of the acceptance in question by this
time, there would have been already demonstrative and
significant indications of a rather widespread, if not
organized resistance in one form or another. Much as they
are to be given due recognition as magnificent
manifestations of loyalty and devotion to principles, I
cannot accord to the filing of these cases as indicative
enough of the general attitude of the people.
It is true that in the opinion I had the privilege of
penning the Court in Tolentino vs. Comelec, 41 SCRA 702,
I made strong and unequivocal pronouncements to the
effect that any amendment to the Constitution of 1935, to
be valid, must appear to have been made in strict
conformity with the requirements of Article XV thereof.
What is more, that decision asserted judicial competence to
inquire into the matter of compliance or non compliance as
a justiciable matter. I still believe in the correctness of
those views and I would even add that I sincerely feel it
reflects the spirit of the said constitutional provision.
Without trying to strain any point however, I, submit the
following considerations in the context of the peculiar
circumstances of the cases now at bar, which are entirely
different from those in the backdrop of the Tolentino
rulings I have referred to.
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VOL. 50, MARCH 31, 1973 197


1. Consider that in the present case what is involved is
not just an amendment of a particular provision of an
existing Constitution; here, it is, as I have discussed earlier
above, an entirely new Constitution that is being proposed.
This important circumstance makes a great deal of
difference.
No less than counsel Tolentino for herein respondents
Puyat and Roy, who was himself the petitioner in the case I
have just referred to is, now inviting Our attention to the
exact language of Article XV and suggesting that the said
Article may be strictly applied to proposed amendments
but may hardly govern the ratification of a new
Constitution. It is particularly stressed that the Article
specifically refers to nothing else but “amendments to this
Constitution” which if ratified “shall be valid as part of this
Constitution.” Indeed, how can a whole new constitution be
by any manner of reasoning an amendment to any other
constitution and how can it, if ratified, form part of such
other constitution? In fact, in the Tolentino case I already
somehow hinted this point when I made reference in the
resolution denying the motion for reconsideration to the
fact that Article XV must be followed “as long as any
amendment is formulated and submitted under the aegis of
the present Charter.” Said resolution even added. “(T)his is
not to say that the people may not, in the exercise of their
inherent revolutionary powers, amend the Constitution or
promulgate an entirely new one otherwise.”
It is not strange at all to think that the amending clause
of a constitution should be confined in its application only
to proposed changes in any part of the same constitution
itself, for the very fact that a new constitution is being
adopted implies a general intent to put aside the whole of
the old one, and what would be really incongrous is the
idea that in such an eventuality, the new Constitution
would subject its going into effect to any provision of the
constitution it is to supersede, to use the language precisely
of Section 6, Article XVII, the effectivity clause, of the New
Constitution. My understanding is that generally,
constitutions are self-born, they very rarely, if at all, come
into being, by virtue of any provision of another
198

constitution.3 This must be the reason why every

constitution has its own effectivity clause, so that if, the
Constitutional Convention had only anticipated the idea of
the referendum and provided for such a method to be used
in the ratification of the New Constitution, I would have
had serious doubts as to whether Article XV could have had
priority of application.
2. When an entirely new constitution is proposed to
supersede the existing one, we cannot but take into
consideration the forces and the circumstances dictating
the replacement. From the very nature of things, the
proposal to ordain a new constitution must be viewed as
the most eloquent expression of a people’s resolute
determination to bring about a massive change of the
existing order, a meaningful transformation of the old
society and a responsive reformation of the contemporary
institutions and principles. Accordingly, should any
question arise as to its effectivity and there is some
reasonable indication that the new charter has already
received in one way or another the sanction of the people, I
would hold that the better rule is for the courts to defer to
the people’s judgment, so long as they are convinced of the
fact of their approval, regardless of the form by which it is
expressed provided it be reasonably feasible and reliable.
Otherwise stated, in such instances, the courts should not
bother about inquiring into compliance with technical
requisites, and as a matter of policy should consider the
matter non-justiciable.
3. There is still another circumstance which I consider to
be of great relevancy. I refer to the ostensible reaction of
the component elements, both collective and individual, of
the Congress of the Philippines. Neither the Senate nor the
House of Representatives has been reported to have even
made any appreciable effort or attempt to convene as they
were supposed to do under the Constitution of 1935 on
January 22, 1973 for the
_______________
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 unfinished, 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.
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VOL. 50, MARCH 31, 1973 199

regular session. It must be assumed that being composed of

experienced, knowledgeable and courageous members, it
would not have been difficult for said parliamentary bodies
to have conceived some ingenious way of giving evidence of
their determined adherence to the Constitution under
which they were elected. Frankly, much as I admire the
efforts of the handful of senators who had their picture
taken in front of the padlocked portals of the Senate
chamber, I do not feel warranted to accord such act as
enough token of resistance. As counsel Tolentino has
informed the court, there was noting to stop the senators
and the congressmen to meet in any other convenient place
and somehow officially organize themselves in a way that
can logically be considered as a session, even if nothing
were done than to merely call the roll and disperse.
Counsel Tolentino even pointed out that if there were not
enough members to form a quorum, any smaller group
could have ordered the arrest of the absent members. And
with particular relevance to the present cases, it was not
constitutionally indispensable for the presiding officers to
issue any call to the members to convene, hence the present
prayers for mandamus have no legal and factual bases.
And to top it all, quite to the contrary, the records of the
Commission on Elections show that at least 15 of 24
senators and over 95 out of less than 120 members of the
House of Representatives, have officially and in writing
exercised the option given to them to join the Interim
National Assembly under the New Constitution, thereby
manifesting their acceptance of the new charter.
Now, having these facts in mind, and it being obvious
that of the three great departments of the government
under the 1935 Constitution, two, the Executive and the
Legislative, have already accepted the New Constitution
and recognized its enforceability and enforcement, I cannot
see how this Supreme Court can by judicial fiat hold back
the political developments taking place and for the sake of
being the guardian of the Constitution and the defender of
its integrity and supremacy make its judicial power prevail
against the decision of those who were duly chosen by the
people to be their authorized spokesmen and
representatives. It is not alone the physical futility of such
a gesture that concerns me. More than that,
200

there is the stark reality that the Senators and the

Congressmen, no less than the President, have taken the
same oath of loyalty to the Constitution that we, the
Justices, have taken and they are, therefore, equally bound
with Us to preserve and protect the Constitution. If as the
representatives of the people, they have already opted to
accept the New Constitution as the more effective
instrument for fulfillment of the national destiny, I really
wonder if there is even any idealistic worth in our
desperately clinging by Ourselves alone to Our sworn duty
vis-a-vis the 1935 Constitution. Conscious of the declared
objectives of the new dispensation and cognizant of the
decisive steps being with the least loss of time, towards
their accomplishment, cannot but feel apprehensive that
instead of serving the best interests of our people, which to
me is in reality the real meaning of our oath of office, the
Court might be standing in the way of the very thing our
beloved country needs to retrieve its past glory and
greatness. In other words, it is my conviction that what
these cases demand most of all is not a decision
demonstrative of our legal erudition and Solomonic wisdom
but an all rounded judgment resulting from the
consideration of all relevant circumstances, principally the
political, or, in brief, a decision more political than legal,
which a court can render only by deferring to the apparent
judgment of the people and the announcement thereof by
the political departments of the government and declaring
the matter 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 signified approval of the New
Constitution, they do not consider it necessary to hold a
plebiscite, they could not have had in mind any intent to do
what was constitutionally improper. Basically accustomed
to proceed along constitutional channels, they must have
acted in the honest conviction that what was being done
was in conformity with
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prevailing constitutional standards. We are not to assume

that the sovereign people were indulging in a futile exercise
of their supreme political right to choose the fundamental
charter by which their lives, their liberties and their
fortunes shall be safeguarded. In other words, we must
perforce infer that they meant their decision to count, and
it behooves this Court to render judgment herein in that
context. It is my considered opinion that viewed
understandingly and realistically, there is more than
sufficient ground to hold that, judged by such intent and,
particularly, from the political standpoint, the ratification
of the 1973 Constitution declared in Proclamation 1102
complies substantially with Article XV of the 1935 Charter,
specially when it is considered that the most important
element of the ratification therein contemplated is not in
the word “election,” which conceivably can be in many
feasible and manageable forms but in the word “approved”
which may be said to constitute the substantiality of the
whole article, so long as such approval is reasonably
ascertained. In the last analysis, therefore, it can be rightly
said, even if only in a broad sense, that the ratification here
in question was constitutionally justified and justifiable.
5. Finally, if any doubt should still linger as to the
legitimacy of the New Constitution on legal grounds, the
same should be dispelled by viewing the situation in the
manner suggested by Counsel Tolentino and by the writer
of this opinion in his separate opinion, oft-referred to
above, in the Plebiscite Cases — that is, as an extra
constitutional exercise by the people, under the leadership
of President Marcos, of their inalienable right to change
their fundamental charter by any means they may deem
appropriate, the moment they are convinced that the
existing one is no longer responsive to their fundamental,
political and social needs nor conducive to the timely
attainment of their national destiny. This is not only the
teaching of the American Declaration of Independence but
is indeed, a truth that is self-evident. More, it should be
regarded as implied in every constitution that regardless of
the language of its amending clause, once the people have
given their sanction to a new charter, the latter may be
deemed as constitutionally permissible even from the point
of view of the preceding constitution. Those who may feel
restrained to
202

consider this view out of respect to the import of Tolentino

vs. Comelec, supra, would be well advised to bear in mind
that the case was decided in the context of submission, not
accomplished ratification.
V
The language of the disputed amending clause of the
1935 Constitution should not be deemed as the be all and
end all the nation. More important than even the
Constitution itself with all its excellent features, are the
people living under it — their happiness, their posterity
and their national destiny. There is nothing that cannot be
sacrificed in the pursuit of these objectives, which
constitute the totality of the reasons for national existence.
The sacred liberties and freedom enshrined in it and the
commitment and consecration thereof to the forms of
democracy we have hitherto observed are mere integral
parts of this totality; they are less important by
themselves.
What seems to me to be bothering many of our
countrymen now is that by denying the present petitions,
the Court would be deemed as sanctioning, not only the
deviations from traditional democratic concepts and
principles but also the qualified curtailment of individual
liberties now being practiced, and this would amount, it is
feared, to a repudiation of our oath to support and defend
the Constitution of 1935. This is certainly something one
must gravely ponder upon. When I consider, however, that
the President, the Vice President, the members of both
Houses of Congress, not to speak of all executive
departments and bureaus under them as well as all the
lower courts, including the Court of Appeals have already
accepted the New Constitution as an instrument of a
meaningful nationwide-all-level change in our government
and society purported to make more realistic and feasible,
rather than idealistic and cumbersomely deliberative, the
attainment of our national aspirations, I am led to wonder
whether or not we, as members of the Supreme Court are
being true to our duty to our people by refusing to follow
suit and accept the realities of the moment, despite our
being convinced of the sincerity and laudableness of their
objectives, only because we feel that by the people’s own act
of ratifying the
203
VOL. 50, MARCH 31, 1973 203

Constitution of 1935, they have so encased themselves

within its provisions and may, therefore, no longer take
measures to redeem themselves from the situation brought
about by the deficiencies of the old order, unless they act in
strict conformity therewith. I cannot believe that any
people can be so stifled and enchained. In any event, I
consider it a God-given attribute of the people to disengage
themselves, if necessary, from any covenant that would
obstruct their taking what subsequently appears to them to
be the better road to the promotion and protection of their
welfare. And once they have made their decision in that
respect, whether sophisticatedly or crudely, whether in
legal form or otherwise, certainly, there can be no court or
power on earth that can reverse them.
I would not be human if I should be insensitive to the
passionate and eloquent appeals of Counsels 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.
204


In this momentous juncture of our history, what is
imperative is national unity. May God grant that the
controversies the events leading to these cases have entail
will heal after the decision herein is promulgated, so that
all us Filipinos may forever join hands in the pursuit of our
national destiny.
IN VIEW OF ALL THE FOREGOING, I vote to dismiss
these petitions for mandamus and prohibition without
costs.

MAKASIAR, J., concurring:
Assuming, without conceding, that Article XV of the
1935 Constitution prescribes a procedure for the
ratification of constitutional amendments or of a new
Constitution and that such procedure was no complied
with, the validity of Presidential Proclamation No. 1102 is
a political, not a justiciable, issue; for it is inseparably or
inextricably link with and strikes at, because it is decisive
of, the validity of ratification and adoption of, as well as
acquiescence of people in, the 1973 Constitution and the
legitimacy of the government organized and operating
thereunder. And being political, it is beyond the ambit of
judicial inquiry, tested by the definition of a political
question enunciated in Tañada, et al. vs. Cuenco, et al. (103
Phil. 1051), aside from the fact the this view will not do
violence to rights vested under the new Constitution, to
international commitments forged pursuant thereto and to
decisions rendered by the judicial as well as quasi-judicial
tribunals organized and functioning or whose jurisdiction
has been altered by the 1973 Constitution and the
government established thereunder, and will dissipate any
confusion in the minds of the citizenry, who have been
obeying the mandates of the new Constitution, as well as
exercising the rights and performing the obligations
defined by the new Constitution, and decrees and orders
issued in implementation of the same and cooperating with
the administration in the renovation of our social, economic
and political system as re-structured by the 1973
Constitution and by the implementing decrees and orders
(see Miller vs. Johnson, 18 SW 522, 522-526, 1892).
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VOL. 50, MARCH 31, 1973 205


In 1957, Mr. Chief Justice Roberto Concepcion, then
Associate Justice, in behalf of the Court, defined a political
question as one which, under the Constitution, is “to be
decided by the people in their sovereign capacity, or in
regard to which full discretionary authority had been
delegated to the Legislature or Executive branch of the
government.” (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 ratification.” Under Article XV of the 1935
Constitution, the power to propose constitutional
amendments is vested in Congress or in a constitutional
convention; while the power to ratify or reject such
proposed amendments or new Constitution is reserved by
the sovereign people. The nullification of Proclamation No.
1102 would inevitably render inoperative the 1973
Constitution, which is in fact the express prayer of the
petitioners in G.R. No. L-36164. Regardless of the modality
of submission or ratification or adoption — even if it
deviates from or violates the procedure delineated therefore
by the old Constitution — once the new Constitution is
ratified, adopted and/or acquiesced in by the people or
ratified even by a body or agency not duly authorized
therefor but is subsequently adopted or recognized by the
people and by the other official organs and functionaries of
the government established under such a new Constitution,
this Court is precluded from inquiring into the validity of
such ratification, adoption or acquiescence and of the
consequent effectivity of the new Constitution. This is as it
should be in a democracy, for the people are the repository
of all sovereign powers as well as the source of all
governmental authority (Pole vs. Gray, 104 SO 2nd 841
[1958]). This basic democratic concept is expressly restated
in Section 1 of Article II of the Declaration of Principles of
the 1935 and 1973 Constitutions, thus: “Sovereignty
resides in the people and all government authority
emanates from them.”
The legality of the submission is no longer relevant;
because the ratification, adoption and/or acquiescence by
the people cures any infirmity in its submission or any
other irregularities therein which are deemed mandatory
before
206

submission as they are considered merely directory after

such ratification or adoption or acquiescence by the people.
As Mr. Justice Brewer, then of the Kansas State Supreme
Court and later Associate Justice of the Federal Supreme
Court, stated in re Prohibitory Amendment Cases (24
Kansas 700 & 710 Reprint 499, 506): “The two important,
vital elements of the Legislature and a majority of the
popular vote. Beyond these, other provisions are mere
machineries and forms. They may not be disregarded,
because by them certainty as to the essentials is secured. But
they are not themselves the essentials.” (Cited in Larken vs.
Gronna, 285 NW 59, 61-64, 1939).
This was the ruling by the American Supreme Court in
the 1939 case of Coleman vs. Miller (307 U.S. 433, 83 L.ed.
1385), where Chief Justice Hughes, speaking for the
majority, stated that:
“x x x Thus the political departments of the government dealt

with the effect of both previous rejection and attempted
withdrawal and determined that both were ineffectual in the
presence of an actual ratification x x x. This decision by the
political departments of the Government as to the validity of the
adoption of the Fourteenth amendment has been accepted.
“We think that in accordance with this historic precedent the
question of the efficacy of ratifications by state legislatures, in the
light of previous rejection or attempted withdrawal, should be
regarded as a political question pertaining to the political
departments, with the ultimate authority in the Congress in the
exercise of its control over the promulgation of the adoption of the
amendment.”
This view was likewise emphasized by Mr. Justice Black

in his concurring opinion, in which Mr. Justices Roberts,
Frankfurter, and Douglas join, thus:
“The Constitution grants Congress exclusive power to control

submission of constitutional amendments. Final determination by
Congress that ratification by three-fourths of the States has taken
place ‘is conclusive upon the courts.’ In the exercise of that power,
Congress, of course, is governed by the Constitution. However,
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VOL. 50, MARCH 31, 1973 207

whether submission, intervening procedure or Congressional

determination of ratification conforms to the commands of the
Constitution, calls for decisions by a ‘political department’ of
questions of a type which this Court has frequently designated
‘political.’ And decision of a ‘political question’ by the ‘political
department’ to which the Constitution has committed it
‘conclusively binds the judges, as well as all other officers, citizens
and subjects of...government.’ Proclamation under authority of
Congress that an amendment has been ratified will carry with it a
solemn assurance by the Congress that ratification has taken
place as the Constitution commands. Upon this assurance a
proclaimed amendment must be accepted as a part of the
Constitution, leaving to the judiciary its traditional authority of
interpretation. To the extent that the Court’s opinion in the
present case even impliedly assumes a power to make judicial
interpretation of the exclusive constitutional authority of
Congress over submission and ratification of amendments, we are
unable to agree...” (American Constitutional Issues, by Pritchett,
1962 Ed., p. 44).
The doctrine in the aforesaid case of Coleman vs. Miller

was adopted by Our Supreme Court in toto in Mabanag vs.
Lopez Vito (78 Phil. 1).
The ruling in the cases of Gonzales vs. Comelec, et al. (L-
28224, Nov. 29, 1967, 21 SCRA 774) and Tolentino vs.
Comelec, et al. (L-34150, Oct. 16, 1971, 41 SCRA 702) on
which petitioners place great reliance — that the courts
may review the propriety of a submission of a proposed
constitutional amendment before the ratification or
adoption of such proposed amendment by the sovereign
people, hardly applies to the cases at bar; because the issue
involved in the aforesaid cases refers to only the propriety
of the submission of a proposed constitutional amendment
to the people for ratification, unlike the present petitions,
which challenge inevitably the validity of the 1973
Constitution after its ratification or adoption thru
acquiescence by the sovereign people. As heretofore stated,
it is specious and pure sophistry to advance the reasoning
that the present petitions pray only for the nullification of
the 1973 Constitution and the government operating
thereunder.
It should be stressed that even in the Gonzales
case, supra, We held that:
208

“Indeed, the power to amend the Constitution or to propose

amendments thereto is not included in the general grant of
legislative powers to Congress. It is part of the inherent powers of
the people — as the repository of sovereignty in a republican
state, such as ours — to make, and hence, to amend their own
Fundamental Law. Congress may propose amendments to the
same explicitly grants such power. Hence, when exercising the
same, it is said that Senators and Members of the House of
Representatives act, not as members, but as component elements
of a constituent assembly. When acting as such, the members
of Congress derive their authority from the Constitution, unlike
the people, when performing the same function, for their authority
does not emanate from the Constitution — they are the very
source of all powers of government, including the
Constitution itself.” (21 SCRA 787)
We did not categorically and entirely overturn the

doctrine in Mabanag vs. Lopez Vito (78 Phil. 1) that both
the proposal to amend and the ratification of such a
constitutional amendment are political in nature forming
as they do the essential parts of one political scheme — the
amending process. WE merely stated therein that the force
of the ruling in the said case of Mabanag vs. Lopez Vito has
been weakened by subsequent cases. Thus, We pronounced
therein:
It is true that in Mabanag vs. Lopez Vito, this Court

characterizing the issue submitted thereto as a political one,
declined to pass upon the question whether or not a given number
of votes cast in Congress in favor of a proposed amendment to the
Constitution — which was being submitted to the people for
ratification — satisfied the three fourths vote requirement of the
fundamental law. The force of this precedent has been weakened,
however, by Suanes vs. Chief Accountant of the Senate, Avelino
vs. Cuenco, Tañada vs. Cuenco and Macias vs. Commission on
Elections. In the first, we held the officers and employees of the
Senate Electoral Tribunal are supervision and control, not of that
of the Senate President, claimed by the latter; in the second, this
Court proceeded to determine the number of Senators necessary
for a quorum in the Senate; in the third we nullified the election,
by Senators belonging to the party having the largest number of
votes in said chamber purporting to act on behalf of the party
having the second largest number of votes therein, of two (2)
Senators belonging to the first party, as members, for the second
party, of the Senate Electoral Tribunal; and in the fourth, we
declared unconstitutional an act of
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VOL. 50, MARCH 31, 1973 209

Congress purporting to apportion the representative districts for

the House of Representatives, upon the ground that the
apportionment had not been made as may be possible according to
the number of inhabitants of each province. Thus we rejected the
theory advanced in these four (4) cases, that the issues therein
raised were political questions the determination of which is
beyond judicial review. (21 SCRA pp. 785-786);
for which reason We concluded
“In short, the issue whether or not a resolution of Congress before

acting as a constituent assembly — violates the Constitution is
essentially justiciable, not political, and, hence, subject to judicial
review, and to the extent that this view may be inconsistent with
the stand taken in Mabanag vs. Lopez Vito, the latter should be
deemed modified accordingly.” (p. 787, emphasis supplied.)
In the Tolentino case, supra, We reiterated the foregoing

statements (41 SCRA 703-714).
The inevitable consequence therefore is that the validity
of the ratification or adoption of or acquiescence by the
people in the 1973 Constitution, remains a political issue
removed from the jurisdiction of this Court to review.
One more word about the Gonzales and Tolentino cases.
Both primarily stressed on the impropriety of the
submission of a proposed constitutional amendment.
Courts do not deal with propriety or wisdom or absence of
either of an official act or of a law. Judicial power concerns
only with the legality or illegality, constitutionality or
unconstitutionality of an act: it inquires into the existence
of power or lack of it. Judicial wisdom is not to be pitted
against the wisdom of the political department of the
government.
The classic example of an illegal submission that did not
impair the validity of the ratification or adoption of a new
Constitution is the case of the Federal Constitution of the
United States. It should be recalled that the thirteen (13)
original states of the American Union — which succeeded
in liberating themselves from England after the revolution
which
210

began on April 19, 1775 with the skirmish at Lexington,

Massachusetts and ended with the surrender of General
Cornwallis at Yorktown, Virginia, on October 19,
1781(Encyclopedia Brit., Vol. I, 1933 Ed., p. 776) —
adopted their Articles of Confederation and Perpetual
Union, that was written from 1776 to 1777 and ratified on
March 1, 1781 (Encyclopedia Brit., Vol. II, 1966 Ed., p.
525). About six thereafter, the Congress of the
Confederation passed a resolution on February 21, 1787
calling for a Federal Constitutional Convention “for the sole
and express purpose of revising the articles of
confederation x x x.” (Appendix I, Federalist, Modern
Library ed., p. 577, emphasis supplied).
The Convention convened at Philadelphia on May 14,
1787. Article XIII of the Articles of Confederation and
Perpetual Union stated specifically:
“The articles of this confederation shall be inviolably observed

in every state, and the union shall be perpetual; nor shall any
alterations at any time hereafter be made in any of them; unless
such alteration be agreed to in a congress of the united states, and
be afterwards confirmed by the legislatures of every state.” (See the
Federalist, Appendix II, Modern Library Ed., 1937, p. 584;
emphasis supplied.)
But the foregoing requirements prescribed by the

Articles of Confederation and Perpetual Union for the
alteration for the ratification of the Federal Constitution as
drafted by the Philadelphia Convention were not followed.
Fearful the said Federal Constitution would not be ratified
by the legislatures as prescribed, the Philadelphia
Convention adopted a resolution requesting the Congress of
the Confederation to pass a resolution providing that the
Constitution should be submitted to elected state
conventions and if ratified by the conventions in nine (9)
states, not necessarily in all thirteen (13) states, the said
Constitution shall take effect.
Thus, history Professor Edward Earle Mead of Princeton
University recorded that:
“It would have been a counsel of perfection to consign the new
211
VOL. 50, MARCH 31, 1973 211

constitution to the tender mercies of the legislatures of each and

all of the 13 states. Experience clearly indicated that ratification
then would have had the same chance as the scriptural camel
passing through the eye of a needle. It was therefore determined to
recommend to Congress that the new Constitution be submitted to
conventions in the several states especially elected to pass upon it
and that, furthermore, the new government should go into effect if
and when it should be ratified by nine of the thirteen states x x x.”
(The Federalist, Modern Library Ed., 1937, Introduction by
Edward Earle Mead, pp. viii-ix; emphasis supplied)
Historian Samuel Eliot Morison similarly recounted:
“The Convention, anticipating that the influence of many state

politicians would be Antifederalist, provided for ratification of the
Constitution by popularly elected conventions in each state.
Suspecting that Rhode Island, at least, would prove recalcitrant,
it declared that the Constitution would go into effect as soon as
nine states ratified. The convention method had the further
advantage that judges, ministers, and others ineligible to state
legislatures, could be elected to a convention. The nine-state
provision was, of course, mildly revolutionary. But the Congress of
the Confederation, still sitting in New York to carry on federal
government until relieved, formally submitted the new
constitution to the states and politely faded out before the first
presidential inauguration.” (The Oxford History of the Am.
People, by Samuel Eliot Morison, 1965 ed., p. 312).
And so the American Constitution was ratified by nine

(9) states on June 21, 1788 and by the last four states on
May 29, 1790 (12 C.J. p. 679 footnote, 16 C.J.S., 27 — by
the state conventions and not by all thirteen (13) state
legislatures as required by Article XIII of the Articles of
Confederation and Perpetual Union aforequoted — and in
spite of the fact that the Federal Constitution as originally
adopted suffers from two basic infirmities, namely, the
absence of a bill of Rights and of a provision affirming the
power of judicial review.
The liberties of the American people were guaranteed by
subsequent amendments to the Federal Constitution. The
doctrine of judicial review has become part of American
constitutional law only by virtue of a judicial
pronouncement
212

by Chief Justice Marshall in the case of Marbury vs.

Madison (1803, 1 Cranch 137).
Until this date, no challenge has been launched against
the validity of the ratification of the American
Constitution, nor against the legitimacy of the government
organized and functioning thereunder.
In the 1946 case of Wheeler vs. Board of Trustees (37 SE
2nd 322, 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 ratification by the
people, but on the fact or fiat or approval or adoption or
acquiescence by the people which fact of ratification or
adoption or acquiescence is all that is essential, the Court
cited precisely the case of the irregular revision and
ratification by state conventions of the Federal
Constitution, thus:
“No case identical in its facts with the case now under
consideration has been called to our attention, and we have found
none. We think that the principle which we apply in the instant
case was very clearly applied in the creation of the constitution of
the United States. The convention created by a resolution of
Congress had authority to do one thing, and one only, to wit,
amend the articles of confederation. This they did not do, but
submitted to the sovereign power, the people, a new constitution. In
this manner was the constitution of the United States submitted to
the people and it became operative as the organic law of this
nation when it had been properly adopted by the people.
“Pomeroy’s Constitutional Law, p. 55, discussing the
convention that formulated the constitution of the United States,
has this to say: ‘The convention proceeded to do, and did
accomplish, what they were not authorized to do by a resolution of
Congress that called them together. That resolution plainly
contemplated amendments to the articles of confederation, to be
submitted to and passed by the Congress, and afterwards ratified
by all the State legislatures, in the manner pointed out by the
existing organic law. But the convention soon became convinced
that any amendments were powerless to effect a cure; that the
disease was too deeply seated to be reached such tentative means.
They saw that the system they were called to improve must be
totally abandoned, and that the national idea must be re-
established at the center of their political society. It was
213
VOL. 50, MARCH 31, 1973 213

objected by some members, that they had no power, no authority,

to construct a new government. They had no authority, if their
decisions were to be final; and no authority whatsoever, under the
articles of confederation, to adopt the course they did. But they
knew that their labors were only to be suggestions; and that they
as well as any private individuals, and any private individuals as
well as they, had a right to propose a plan of government to the
people for their adoption. They were, in fact, a mere assemblage of
private citizens, and their work had no more binding sanction
than a constitution drafted by Mr. Hamilton in his office would
have had. The people, by their expressed will, transformed this
suggestion, this proposal, into an organic law, and the people
might have done the same with a constitution submitted to them
by a single citizen.’
xx xx xx xx xx xx xx
“xx When the people adopt a completely revised or new
constitution, the framing or submission of the instrument is not
what gives it binding force and effect. The fiat of the people and
only the fiat of the people, can breathe life into a constitution.
xx xx xx xx xx xx
“x x x We do not hesitate to say that a court is never justified in
placing by implication a limitation upon the sovereign. This would
be an authorized exercise of sovereign power by the court. In State
v. Swift, 69 Ind. 505, 519, the Indiana Supreme Court said: ‘The
people of a State may form an original constitution, or abrogate
an old one and form a new one, at any time, without any political
restriction except the constitution of the United States; x x x.’ (37
SE 327-328, 329, emphasis supplied.)
In the 1903 case of Weston vs. Ryan, the Court held:
“It remains to be said that if we felt at liberty to pass upon this

question, and were compelled to hold that the act of February 23,
1887, is unconstitutional and void, it would not, in our opinion, by
any means follow that the amendment is not a part of our state
Constitution. In the recent case of Taylor vs. Commonwealth (Va.)
44 S.E. 754, the Supreme Court of Virginia hold that their state
Constitution of 1902, having been acknowledged and accepted by
the officers administering the state government, and by the people,
and being in force without opposition, must be regarded as an
existing Constitution irrespective of the question as to whether or
not the
214

convention which promulgated it had authority so to do without

submitting it to a vote of the people. In Brittle v. People, 2 Neb.
198, is a similar holding as to certain provisions of the Nebraska
Constitution of 1886, which were added by the Legislature at the
requirement of Congress, though never submitted to the people
for their approval.” (97 NW 349-350; emphasis supplied).
Against the decision in the Wheeler case, supra,

confirming the validity of the ratification and adoption of
the American Constitution, in spite of the fact that such
ratification was in clear violation of the prescription on
alteration and ratification of the Articles of Confederation
and Perpetual Union, petitioners in G.R. No. L-36165
dismissed this most significant historical fact by calling the
Federal Constitution of the United States as a
revolutionary one, invoking the opinion expressed in Vol.
16, Corpus Juris Secundum, p. 27, that it was a
revolutionary constitution because it did not obey the
requirement that the Articles of Confederation and
Perpetual Union can be amended only with the consent of
all thirteen (13) state legislatures. This opinion does not
cite any decided case, but merely refers to the footnotes on
the brief historic account of the United States Constitution
on p. 679 of Vol. 12, CJS. Petitioners, on p. 18 of their main
Notes, refer US to pp. 270-316 of the Oxford History of the
American People, 1965 Ed. by Samuel Eliot Morison, who
discusses the Articles of Confederation and Perpetual
Union in Chapter XVIII captioned “Revolutionary
Constitution Making, 1775-1781” (pp. 270-281). In Chapter
XX on “The Creative Period in Politics, 1785-1788,”
Professor Morison delineates the genesis of the Federal
Constitution, but does not refer to it even implicitly as
revolutionary constitution (pp. 297-316). However, the
Federal Constitution may be considered revolutionary from
the view point of McIver if the term revolution is
understood in “its wider sense to embrace decisive changes
in the character of government, even though they do not
involve the violent overthrow of an established order,
x x x.” (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
215
VOL. 50, MARCH 31, 1973 215

revolutionary constitution of the thirteen (13) states. In the

existing Federal Constitution of the United States which
was adopted seven (7) or nine (9) years after the thirteen
(13) states won their independence and long after popular
support for the government of the Confederation had
stabilized was not a product of a revolution. The Federal
Constitution was a “creation of the brain and purpose of
man” in an era of peace. It can only be considered
revolutionary in the sense that it is a radical departure
from its predecessor, the Articles of Confederation and
Perpetual Union.
It is equally absurd to affirm that the present Federal
Constitution of the United States is not the successor to the
Articles of Confederation and Perpetual Union. The fallacy
of the statement is so obvious that no further refutation is
needed.
As heretofore stated, the issue as to the validity of
Proclamation No. 1102 strikes at the validity and
enforceability of the 1973 Constitution and of the
government established and operating thereunder.
Petitioners pray for a declaration that the 1973
Constitution is inoperative (L-36164). If Proclamation No.
1102 is nullified, then there is no valid ratification of the
1973 Constitution and the inevitable conclusion is that the
government organized and functioning thereunder is not a
legitimate government.
That the issue of the legitimacy of a government is
likewise political and not justiciable, had long been decided
as early as the 1849 case of Luther vs. Borden (7 How. 1, 12
L.ed., 581), affirmed in the 1900 case of Taylor vs.
Beckham (178 U.S. 548, 44 L.ed. 1187) and re-enunciated
in 1912 in the case of Pacific States Telephone and
Telegraph Company vs. Oregon (223 U.S. 118, 133-151, 56
L.ed. 377-386). Because it reaffirmed the pronouncements
in both Borden and Beckham cases, it is sufficient for us to
quote the decision in Pacific States Telephone and
Telegraph Co., supra, penned by Mr. Chief Justice White,
who re-stated:
“In view of the importance of the subject, the apparent

misapprehension on one side and seeming misconception on the
other, suggested by the argument as to the full significance of the
216

previous doctrine, we do not content ourselves with a mere

citation of the cases, but state more at length than we otherwise
would the issues and the doctrine expounded in the leading and
absolutely controlling case — Luther v. Borden, 7 How. 1, 12 L.ed.
581.
xx xx xx xx
“x x x On this subject it was said (p. 38):
“ ‘For if this court is authorized to enter upon this inquiry,
proposed by the plaintiff, and it should be decided that the
character government had no legal existence during the period of
time above mentioned, — if it had been annulled by the adoption
of the opposing government, — then the laws passed by its
legislature during that time were nullities; its taxes wrongfully
collected, its salaries and compensations to its officers illegally
paid; its public accounts improperly settled and the judgments and
sentences of its courts in civil and criminal cases null and void,
and the officers who carried their decisions into operation
answerable as trespassers, if not in some cases as criminals.’
xx xx xx xx
“ ‘The fourth section of the fourth article of the Constitution of
the United States shall guarantee to every state in the Union a
republican form of government, and shall protect each of them
against invasion; and on the application of the Legislature or of
the Executive (when the legislature cannot be convened) against
domestic violence.
“ ‘Under this article of the Constitution it rests with Congress
to decide what government is established one in a state. For, as
the United State guarantee to each state a republican
government, Congress must necessarily decide what government is
established in the state before it can determine whether it is
republican or not. And when the senators and representatives of a
state are admitted into the Councils of the Union, the authority of
the government under which they were appointed, as well as its
republican character, is recognized by the proper constitutional
authority. And its decision is binding on every other department of
the government, and could not be questioned in a judicial tribunal.
It is true that the contest in this case did not last long enough to
bring the matter to this issue; and as no senators or
representatives were elected under the authority of the
government of which Mr. Dorr was the head, Congress was not
called upon to decide the controversy. Yet the right to decide is
217
VOL. 50, MARCH 31, 1973 217

placed there and not in the courts.”

xx xx xx
“x x x 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.”
xx xx xx xx
“ ‘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.’
xx xx xx xx
“As the issues presented, in their very essence, are, and have
long since by this Court been, definitely determined to be political
and governmental, and embraced within the scope of the scope of
the powers conferred upon Congress, and not, therefore within the
reach of judicial power, it follows that the case presented is not
within our jurisdiction, and the writ of error must therefore be,
and it is, dismissed for want of jurisdiction.” (223 U.S. pp. 142-
151; emphasis supplied).
Even a constitutional amendment that is only

promulgated by the Constitutional Convention without
authority therefor
218

and without submitting the same to the people for

ratification, becomes valid, when recognized, accepted and
acted upon the by Chief of State and other government
functionaries, as well as by the people. In the 1903 case
of Taylor vs. Commonwealth (44 SE 754-755), the Court
ruled:
“The sole ground urged in support of the contention that

Constitution proclaimed in 1902 is invalid is that it was ordained
and promulgated by the convention without being submitted for
ratification or rejection by the people of the commonwealth.
“The Constitution of 1902 was ordained and proclaimed by
convention duly called by direct vote of the people of the state to
revise and amend the Constitution of 1869. The result of the work
that the convention has been recognized, accepted, and acted
upon as the only valid Constitution of the state by the Governor in
swearing fidelity to it and proclaiming it, as directed thereby; by
the Legislature in its formal official act adopting a joint
resolution, July 15, 1902, recognizing the Constitution ordained
by the convention which assembled in the city of Richmond on the
12th day of June 1901, as the Constitution of Virginia; by the
individual oaths of members to support it, and by its having been
engaged for nearly a year in legislating under it and putting its
provisions into operation but the judiciary in taking the oath
prescribed thereby to support and by enforcing its provisions; and
by the people in their primary capacity by peacefully accepting it
and acquiescing in it, registering as voters under it to the extent
of thousands through the state, and by voting, under its
provisions, at a general election for their representatives in the
Congress of the United States.” (p. 755).
The Court in the Taylor case above-mentioned further

said:
“While constitutional procedure for adoption or proposal to

amend the constitution must be duly followed, without omitting
any requisite steps, courts should uphold amendment, unless
satisfied that the Constitution was violated in submitting the
proposal. xx xx Substance more than form must be regarded in
considering whether the complete constitutional system for
submitting the proposal to amend the constitution was observed.”
In the 1925 case of Taylor vs. King (130 A 407, 408 410),

the Court stated:
219
VOL. 50, MARCH 31, 1973 219
“There may be technical error in the manner in which a

proposed amendment is adopted, or in its advertisement, yet, if
followed, unobjected to, by approval of the electors, it becomes
part of the Constitution. Legal complaints to the submission may
be made prior to taking the vote, but, if once sanctioned, the
amendment is embodied therein, and cannot be attacked, either
directly or collaterally, because of any mistake antecedent
thereto. Even though it be submitted at an improper time, it is
effective for all purposes when accepted by the
majority. Armstrong v. King, 281 Pa. 207, 126 A. 263.” (130 A
409).
Even if the act of the Constitutional Convention is

beyond its authority, such act becomes valid upon
ratification or adoption or acquiescence by the people.
Thus, in the 1905 case of Ex parte Birmingham and A.R.
Company (42 SO pp. 118 & 123), the Alabama Supreme
Court upheld this principle and stated that: “The
authorities are almost uniform that this ratification of an
unauthorized act by the people (and the people are the
principal in this instance) renders the act valid and
binding.”
It has likewise been held that it is not necessary that
voters ratifying the new Constitution are registered in the
book of voters; it is enough that they are electors voting on
the new Constitution. (Bott vs. Wurts, 40 A 740 [1899]; 45
LRA 251, emphasis supplied).
In the 1956 case of Thomson vs. Peoples State Bank (75
NW 2nd 370, 375), the Supreme Court of Wisconsin ruled
that “irregularity in the procedure for the submission of the
proposed constitutional amendment will not defeat the
ratification by the people.”
Again, in the 1958 case of Swaim vs. Tuscaloosa
County (103 SO 2nd 769), the Alabama Supreme Court
pronounced that “the irregularity in failing to publish the
proposed constitutional amendment once in each of the 4
calendar weeks next preceding the calendar week in which
the election was held or once in each of the 7-day periods
immediately preceding the day of the election as required
by the Constitution, did not invalidate the amendment
which was ratified by the people.”
The same principle was reiterated in 1961 by
the Mississippi
220

Supreme Court in Barnes, et al. v. Ladner (131) SO 2nd 45

462), where they admitted irregularities or illegalities
committed in the procedure for submission of the proposed
constitutional amendment to the people for ratification
consisted of: “(a) the alleged failure of the county election
commissioners of the several counties to provide a
sufficient number of ballot boxes ‘secured by good and
substantial locks,’ as provided by Section 3249, Code of
1942, Rec., to be used in the holding of the special election
on the constitutional amendment, and (b) the alleged
failure of the State Election Commissioners to comply with
the requirements of Code Sections 3204 and 3205 in the
appointment of election commissioners in each of the 82
counties. The irregularities complained of, even if proved,
were not such irregularities would have invalidated the
election.” (Emphasis supplied; see also Sylvester vs.
Tindall, 8 SO 2nd 892; 154 Fla. 663).
Even prior to the election in November, 1970 of
delegates of the Constitutional Convention and during the
deliberations of the Constitutional Convention from June 1,
1971 until martial law was proclaimed on Sept. 21, 1972,
the salient reforms contained in the 1973 Constitution
which have long been desired by the people, had been
thoroughly discussed in the various committees of the
Constitutional Convention, on the floor of the Convention
itself, in civic forums and in all the media of information.
Many of the decrees promulgated by the Chief Executive
from Sept. 22, 1972 to Jan. 17, 1973 implement some of the
reforms and had been ratified in Sec. 3(2) of Article XVII of
the 1973 Constitution.
Petitioners cannot safely state that during martial law
the majority of the people cannot freely vote for these
reforms and are not complying with the implementing
decrees promulgated by the President.
Free election is not inevitably incompatible with martial
law. We had free elections in 1951 and 1971 when the
opposition won six out of eight senatorial seats despite the
suspension of the privileges of the writ of habeas
corpus (see Lansang vs. Garcia, et al., Dec. 14, 1971, 42
SCRA 448), which suspension implies constraint on
individual freedom as the proclamation
221
VOL. 50, MARCH 31, 1973 221

of martial law. In both situations, there is no total blackout

of human rights and civil liberties.
All the local governments, dominated either by
Nacionalistas or Liberals, as well as officials of the
Legislative and Executive branches of the government
elected and/or appointed under the 1935 Constitution have
either recognized or are now functioning under the 1973
Constitution, aside from the fact of its ratification by the
sovereign people through the Citizens Assemblies. Ninety-
five (95) of a total of one hundred ten (110) members of the
House of Representatives including the Speaker and the
Speaker Pro Tempore as well as about eleven (11)
Congressmen who belong to the Liberal Party and fifteen
(15) of a total of twenty-four (24) senators including Liberal
senators Edgar U. Ilarde and John Osmeña opted to serve
in the Interim Assembly, according to the certification of
the Commission on Elections dated February 19, 1973
(Annex Rejoinder-3 to Consolidated Rejoinder of petitioners
in L-36165). Only the five (5) petitioners in L-36165 close
their eyes to a fait accompli. All the other functionaries
recognize the new government and are performing their
duties and exercising their powers under the 1973
Constitution, including the lower courts. The civil courts,
military tribunals and quasi-judicial bodies created by
presidential decrees have decided some criminal, civil and
administrative cases pursuant to such decrees. The foreign
ambassadors who were accredited to the Republic of the
Philippines before martial law continue to serve as such in
our country; while two new ambassadors have been
accepted by the Philippines after the ratification of the
1973 Constitution on January 17, 1973. Copies of the 1973
Constitution had been furnished the United Nations
Organization and practically all the other countries with
which the Philippines has diplomatic relations. No adverse
reaction from the United Nations or from the foreign states
has been manifested. On the contrary, our permanent
delegate to the United Nations Organization and our
diplomatic representatives abroad appointed before martial
law continue to remain in their posts and are performing
their functions as such under the 1973 Constitution.
Even the Commission on Elections is now implementing
the provisions of the 1973 Constitution by requiring all
election
222

registrars to register 18-year olds and above whether

literates or not, who are qualified electors under the 1973
Constitution (see pars. 1-A(c), (d), & (e) of Annex A to Notes
of respondents Puyat and Roy in L-36165).
In brief, it cannot be said that the people are ignoring
the 1973 Constitution and the government which is
enforcing the same for over 10 weeks now With the
petitioners herein, secessionists, rebels and subversives as
the only possible exceptions, the rest of the citizenry are
complying with decrees, orders and circulars issued by the
incumbent President implementing the 1973 Constitution.
Of happy relevance on this point is the holding in Miller
vs. Johnson, 18 SW 522:
“If a set of men, not selected by the people according to the

forms of law, were to formulate an instrument and declare it the
constitution, it would undoubtedly be the duty of the courts
declare its work a nullity. This would be revolution, and this the
courts of the existing government must resist until they are
overturned by power, and a new government established. The
convention, however, was the offspring of law. The instrument
which we are asked to declare invalid as a constitution has been
made and promulgated according to the forms of law. It is a
matter of current history that both the executive and legislative
branches of the government have recognized its validity as a
constitution, and are now daily doing so. Is the question, therefore,
one of a judicial character? It is our undoubted duty, if a statute
be unconstitutional to so declare it; also, if a provision of the state
constitution be in conflict with the federal constitution, to hold the
former invalid. But this is a very different case. It may be said,
however, that, for every violation of or non-compliance with the
law, there should be a remedy in the courts. This is not, however,
always the case. For instance, the power of a court as to the acts of
the other departments of the government is not an absolute one,
but merely to determine whether they have kept within
constitutional limits, it is a duty rather than a power, The
judiciary cannot compel a co-equal department to perform a duty.
It is responsible to the people; but if it does act, then, when the
question is properly presented, it is the duty of the court to say
whether it has conformed to the organic law. While the judiciary
should protect the rights of the people with great care and jealousy,
because this is its duty, and also because, in times
223
VOL. 50, MARCH 31, 1973 223

of great popular excitement, it is usually their last resort, yet it

should at the same time be careful to overstep the proper bounds of
its power, as being perhaps equally dangerous; and especially
where such momentous results might follow as would be likely in
this instance, if the power of the judiciary permitted, and its duty
required, the overthrow of the work of the convention.
“After the American Revolution the state of Rhode Island
retained its colonial character as its constitution, and no law
existed providing for the making of a new one. In 1841 public
meetings were held, resulting in the election of a convention to
form a new one, — to be submitted to a popular vote. The
convention framed one, submitted it to a vote, and declared it
adopted. Elections were held for state officers, who proceeded to
organize a new government. The charter government did not
acquiesce in these proceedings, and finally declared the state
under martial law. It called another convention, which in 1843
formed a new constitution. Whether the charter government, or the
one established by the voluntary convention, was the legitimate
one, was uniformly held by the courts of the state not to be a
judicial, but a political question; and the political department
having recognized the one, it was held to be the duty of the
judiciary to follow its decision. The supreme court of the United
States, in Luther v. Borden, 7 How. 1, while not expressly deciding
the principle, as it held the federal court, yet in the argument
approves it, and in substance says that where the political
department has decided such a matter the judiciary should abide
by it.
“Let us illustrate the difficulty of a court deciding the question:
Suppose this court were to hold that the convention, when it
reassembled, had no power to make any material amendment,
and that such as were made are void by reason of the people
having theretofore approved the instrument. Then, next, this
court must determine what amendments were material; and we
find the court, in effect, making a constitution. This would be
arrogating sovereignty to itself. Perhaps the members of the court
might differ as to what amendments are material, and the result
would be confusion and anarchy. One judge might say that all the
amendments, material and immaterial, were void; another, that
the convention had then the implied power to correct palpable
errors, and then the court might differ as to what amendments
are material. If the instrument as ratified by the people could not
be corrected or altered at all, or if the court must determine what
changes were material, then the instrument, as passed upon by
the people or as fixed by the court would be lacking a
promulgation by the
224

convention; and, if this be essential, then the question would
arise, what constitution are we now living under, and what is the
organic law of the state? A suggestion of these matters shows
what endless confusion and harm to the state might and likely
would arise. If, through error of opinion, the convention exceeded
its power, and the people are dissatisfied, they have ample remedy,
without the judiciary being asked to overstep the proper limits of
its power. The instrument provides for amendment and change. If
a wrong has been done, it can, in the proper way in which it
should be remedied, is by the people acting as a body politic. It is
not a question of whether merely an amendment to a constitution,
made without calling a convention, has been adopted, as required
by that constitution. If it provides how it is to be done, then,
unless the manner be followed, the judiciary, as the interpreter of
that constitution, will declare the amendment invalid. Koehler v.
Hill, 60 Iowa, 543, 14 N.W. Rep. 738, and 15 N.W. Rep. 609; State
v. Tuffy, 1 Nev. 391, 12 Pac. Rep. 835. But it is a case where a new
constitution has been formed and promulgated according to the
forms of law. Great interests have already arisen under it;
important rights exist by virtue of it; persons have been convicted
of the highest crime known to the law, according to its provisions;
the political power of the government has in many ways recognized
it; and, under such circumstances, it is our duty to treat and
regard it as a valid constitution, and now the organic law of our
commonwealth.
“We need not consider the validity of the amendments made
after the convention reassembled. If the making of them was in
excess of its powers, yet, as the entire instrument has been
recognized as valid in the manner suggested, it would be equally
an abuse of power by the judiciary and violative of the rights of
the people, — who can and properly should remedy the matter, if
not to their liking, — if it were to declare the instrument of a
portion invalid, and bring confusion and anarchy upon the state.
(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
225
VOL. 50, MARCH 31, 1973 225

method of giving assent to the new Charter. In this respect,

WE cannot presume to know better than the incumbent
Chief Executive, who, unlike the members of this Court,
only last January 8, 1973, We affirmed 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 fiat from the sovereign people, to
execute the law and administer the affairs of government,
must restrain its enthusiasm to sally forth into the domain
of political action expressly and exclusively reserved by the
sovereign people themselves.
The people in Article XV of the 1935 Constitution did
not intend to tie their hands to a specific procedure for
popular ratification of their organic law. That would be
incompatible with their sovereign character of which We
are reminded by Section 1, of Article II of both the 1935
and the 1973 Constitutions.
The opinion of Judge Thomas McIntire Cooley that the
sovereign people cannot violate the procedure for
ratification which they themselves define in their
Constitution, cannot apply to a unitary state like the
Republic of the Philippines. His opinion expressed in 1868
may apply to a Federal State like the United States, in
order to secure and preserve the existence of the Federal
Republic of the United States against any radical
innovation initiated by the citizens of the fifty (50) different
states of the American Union, which states may be jealous
of the powers of the Federal government presently granted
by the American Constitution. This dangerous possibility
does not obtain in the case of our Republic.
Then again, Judge Cooley advanced the aforesaid
opinion in 1868 when he wrote his opus “Constitutional
Limitations.”*
_______________
* 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.
226

(Vol. 6, Encyclopedia Brit., 1969 ed., pp. 445 446). It is

possible that, were he live today, in a milieu vastly
different from 1868 to 1898, he might have altered his
views on the matter.
Even if conclusiveness is to be denied to the truth of the
declaration by the President in Proclamation No. 1102 that
the people through their Citizens’ Assemblies had
overwhelmingly approved the new Constitution due regard
to a separate, coordinate and co-equal branch of the
government demands adherence to the presumption of
correctness of the President’s declaration. Such
presumption is accorded under the law and jurisprudence
to officials in the lower levels of the Executive branch,
there is no over-riding reason to deny the same to the Chief
of State as head of the Executive Branch. WE cannot
reverse the rule on presumptions, without being
presumptuous, in the face of the certifications by the Office
the Secretary of the Department of Local Government and
Community Development. (Annexes 1 to 1-E, Annexes 2 to
2-O to the compliance with manifestation filed by the
Solicitor General on behalf of the respondents public
officers dated March 7, 1973). There is nothing in the
records that contradicts, much less overthrow the results of
the referendum as certified. Much less are We justified in
reversing the burden of proof — by shifting it from the
petitioners to the respondents. Under the rules on
pleadings, the petitioners have the duty to demonstrate by
clear and convincing evidence their claim that the people
did not ratify through the Citizens’ Assemblies nor adopt
by acquiescence the 1973 Constitution. And have failed to
do so.
No member of this Tribunal is justified in resolving the
issues posed by the cases at bar on the basis of reports
relayed to him from private sources which could be biased
and hearsay, aside from the fact that such reports are not
contained in the record. Proclamation No. 1102 is not just
an ordinary act of the Chief Executive. It is a well-nigh
solemn declaration which announces the highest act of the
sovereign people — their imprimatur to the basic Charter
that shall govern their lives hereafter — may be for
decades, if not for generations.
Petitioners decry that even 15-year olds, ex convicts and
227
VOL. 50, MARCH 31, 1973 227

illiterates were allowed to vote in the Citizens’ Assemblies,

despite their admission that the term “Filipino people” in
the preamble as well as “people” in Sections 1 and 5 of
Article II of the 1935 Constitution and in Section 1(3) of
Article III of the Bill of Rights includes all Filipino citizens
of all ages, of both sexes, whether literate or illiterate,
whether peaceful citizens, rebels, secessionists, convicts or
ex-convicts. Without admitting that ex-convicts voted in the
referendum, about which no proof was even offered, these
sectors of our citizenry, whom petitioners seem to regard
with contempt or decision and whom petitioners would
deny their sovereign right to pass upon the basic Charter
that shall govern their lives and the lives of their
progenies, are entitled as much as the educated, the law
abiding, and those who are 21 years of age or above to
express their conformity or non conformity to the proposed
Constitution, because their stake under the new Charter is
not any less than the stake of the more fortunate among us.
As a matter of fact, these citizens, whose juridical
personality or capacity to act is limited by age, civil
interdiction or ignorance deserve more solicitude from the
State than the rest of the citizenry. In the ultimate
analysis, the inclusion of those from 15 years up to below
21 years old, the ex-convicts and the ignorant, is more
democratic as it broadens the base of democracy and
therefore more faithful to the express affirmation in
Section 1 of Article II of the Declaration of Principles that
“sovereignty resides in the people and all government
authority emanates from them.”
Moreover, ex-convicts granted absolute pardon are
qualified to vote. Not all ex-convicts are banned from
voting. Only those who had been sentenced to at least one
year imprisonment are disenfranchised but they recover
their right of suffrage upon expiration of ten years after
service of sentence (Sec. 102, 1971 Rev. Elec. Code).
Furthermore, 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
228

Constitution was ratified by the overwhelming vote of close

to 15 million citizens because there was no official
certification to the results of the same from the
Department of Local Governments. But there was such
certification as per Annexes 1 to 1-A to the Notes submitted
by the Solicitor General counsel for respondents public
officers. This should suffice to dispose of this point. Even in
the absence of such certification, in much the same way
that in passing law, Congress or the legislative body is
presumed to be in possession of the facts upon which such
laws are predicated (Justice Fernando, The Power of
Judicial Review, 1967 Ed., pp. 112-113, 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 fact
upon which Proclamation No. 1102 was based. This
presumption is further strengthened by the fact that the
Department of Local Governments, the Department
National Defense and the Philippine Constabulary as well
the Bureau of Posts are all under the President, which
offices as his alter ego, are presumptively acting for and in
behalf of the President and their acts are valid until
disapproved or reprobated by the President (Planas vs. Gil,
67 Phil. 62; Villen vs. Secretary of Interior, 67 Phil. 451).
To deny the truth or the proclamation of the President as
to the overwhelming majority vote in the Citizens’
Assemblies in favor of the new Constitution, is to charge
the President with falsification, which is a most grievous
accusation. Under the, rules of pleadings and evidence, the
petitioners have the burden of proof by preponderance of
evidence in civil cases and by proof beyond reasonable
doubt in criminal prosecutions, where the accused is
always presumed to be innocent. Must this constitutional
right be reversed simply because the petitioner all assert
the contrary? Is the rule of law they pretend invoke only
valid as long as it favors them?
The presumption of regularity in the performance of
official functions is accorded by the law and jurisprudence
to acts of public officers whose category in the official
hierarchy is very much lower than that of the Chief of
State. What reason is there to withhold such a presumption
in favor of the President? Does the fact that the President
belong to the party in power and that four (4) of the five (5)
senators who are petitioners in
229
VOL. 50, MARCH 31, 1973 229

L-36165 belong to the opposition party, justify a
discrimination against the President in matters of this
nature? Unsupported as their word is by any credible and
competent evidence under the rules of evidence, must the
word of the petitioners prevail over that of the Chief
Executive, because they happen to be former senators and
delegates to the Constitutional Convention? More than any
of the petitioners herein in all these cases, the incumbent
President realizes that he risks the wrath of his people
being visited upon him and the adverse or hostile verdict of
history; because of the restrictions on the civil liberties of
his people, inevitable concomitants of martial law, which
necessarily entail some degree of sacrifice on the part of the
citizenry. Until the contrary is established or
demonstrated, herein petitioners should grant that the
Chief Executive is motivated by what is good for the
security and stability of the country, for the progress and
happiness of the people. All the petitioners herein cannot
stand on the proposition that the rights under the 1935
Constitution are absolute and invulnerable to limitations
that may be needed for the purpose of bringing about the
reforms for which the petitioners pretend to be clamoring
for and in behalf of the people. The five (5) petitioners in 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 benefit of the landless and the laboring
class — how politics and political bargaining had stymied
the effectuation of such reforms thru legislation. The eight
(8) petitioners in L-36164 and L-36165 may not have
participated in the systematic blocking of the desired
reforms in Congress or outside of it; but the question may
be asked as to what exactly they did to support such
reforms. For the last seven (7) decades since the turn of the
century, for the last thirty-five (35) years since the
establishment of the Commonwealth government in 1935
and for the last twenty- seven (27) years since the
inauguration of the Republic on July 4, 1946, no tangible
substantial reform had been effected, funded and seriously
implemented, despite the violent uprisings in the thirties,
and from 1946 to 1952, and the violent demonstrations of
recent memory. Congress and the oligarchs acted like
ostriches, “burying their heads in timeless sand.
230

“Now the hopes for the long-awaited reforms to be within a

year or to are brighter. It would seem therefore to the duty
of everyone including herein petitioners to give the present
leadership the opportunity to institute and carry out the
needed reforms as provided for in the new or 1973
Constitution and thru the means prescribed in that same
Constitution.
As stated in Wheeler vs. Board of Trustees, “a court is
never justified in placing by implication a limitation upon
the sovereign.”
This Court in the Gonzales and Tolentino cases
transcended its proper sphere and encroached upon the
province exclusively reserved to and by the sovereign
people. This Court did not heed to the principle that the
courts are not the fountain of all remedies for all wrongs.
WE cannot presume that we alone can speak with wisdom
as against the judgment of the people on the basic
instrument which affects their very lives. WE cannot
determine what is good for the people or ought to be their
fundamental law. WE can only exercise the power
delegated to Us by the sovereign people, to apply and
interpret the Constitution and the laws for the benefit of
the people, not against them nor to prejudice them. WE
cannot perform an act inimical to the interest of Our
principal, who at any time may directly exercise their
sovereign power ratifying a new Constitution in the
manner convenient to them.
It is pertinent to ask whether the present Supreme
Court can function under the 1935 Constitution without
being a part of the government established pursuant
thereto. Unlike in the Borden case, supra, where there was
at least another government claiming to be the legitimate
organ of the state of Rhode Island (although only on paper
as it had no established organ except Dorr who represented
himself to be its head; in the cases at bar there is no other
government distinct from and maintaining a position
against the existing government headed by the incumbent
Chief Executive. (See Taylor vs. Commonwealth, supra).
There is not even a rebel government duly organized as
such even only for domestic purposes, let alone a rebel
government engaged in international
231
VOL. 50, MARCH 31, 1973 231

negotiations. As heretofore stated, both the executive

branch and the legislative branch established under the
1935 Constitution had been supplanted by the government
functioning under the 1973 Constitution as of January 17,
1973. The vice president elected under the 1935
Constitution does not asset any claim to the leadership of
the Republic of the Philippines. Can this Supreme Court
legally exist without being part of any government?
Brilliant counsel for petitioners in L-36165 has been
quite extravagant in his appraisal of Chief Justice Roger
Brooke Taney whom he calls the “hero of the American
Bar,” because during the American civil war he apparently
had the courage to nullify the proclamation of President
Lincoln suspending the privileges of the writ of habeas
corpus in Ex parte Merryman (Federal Case No. 9487
[1861]). But who exactly was Chief Justice Roger Brooke
Taney? The Editorial Board of Vol. 21 of the Encyclopedia
Brit., 1966 ed. (pp. 778-779, 1969 ed., pp. 654-657), briefly
recounts that he was born in 1777 in Calvert County,
Maryland, of parents who were landed aristocrats as well
as slave owners. Inheriting the traditional conservatism of
his parents who belonged to the landed aristocracy, Taney
became a lawyer in 1799, practiced law and was later
appointed Attorney General of Maryland. He also was a
member of the Maryland state legislature for several
terms. He was a leader of the Federalist Party, which
disintegrated after the war of 1812, compelling him to join
the Democratic Party of Andrew Jackson, also a slave
owner and landed aristocrat, who later appointed him first
as Attorney General of the United States, then Secretary of
the Treasury and in 1836 Chief Justice of the United States
Supreme Court to succeed Chief Justice John Marshall, in
which position he continued for 28 years until he died on
October 21, 1864. His death “went largely unnoticed and
unregretted.” Because he himself was a slave owner and a
landed aristocrat, Chief Justice Taney sympathized with
the Southern States and, even while Chief Justice, hoped
that the Southern States would be allowed to secede
peacefully from the Union. That he had no sympathy for
the Negroes was revealed by his decision in Dred Scott vs.
Sandford (19 How. 398 [1857]) where he pronounced that
the American Negro is not entitled to the rights of an
American citizen and that his status as a slave is
determined by his returning to a slave state. One can
232

therefore discern his hostility towards President Lincoln

when he decided Ex parte Merryman, which animosity to
say the least does no befit a judicial mind. Such a man
could hardly be spoken of as a hero of the American Bar,
least of all of the American nation. The choice of heroes
should not be expressed indiscriminately just to embellish
one’s rhetoric.
Distinguished counsel in L-36165 appears to have
committed another historical error, which may be due to
his rhetorical in the Encyclopedia Britannica (Vol. 9, 1969
ed., pp. 508-509) to this effect. On the contrary,
Encyclopedia Britannica (Vol. 17 Encyclopedia Brit., 1966
& 1969 eds., 732-733), refers to Marshal Henri Philippe
Petain as the genuine hero or “Savior of Verdun”; because
he held Verdun against the 1916 offensive of the German
army at the cost of 350,000 of his French soldiers, who
were then demoralized and plotting mutiny. Certainly, the
surviving members of the family of Marshal Petain would
not relish the error. And neither would the members of the
clan of Marshal Foch acknowledge the undeserved
accolade, although Marshal Foch has a distinct place in
history on his own merits. The foregoing clarification is
offered in the interest of true scholarship and historical
accuracy, so that the historians, researchers and students
may not be led astray or be confused by esteemed counsel’s
eloquence and mastery of the spoken and written word as
well as by his eminence as law professor, author of law
books, political leader, and member of the newly integrated
Philippine Bar.
It is quite intriguing why the eminent counsel and co-
petitioner in 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., 83 Phil. 17 [1949]), if they believe most
vehemently in the justice and correctness of their position
that the 1973 Constitution has not been validly ratified,
adopted or acquiesced in by the people since January 18,
1973 until the present. The proclaimed conviction of
petitioners in L-36165 on this issue would have a ring of
233
VOL. 50, MARCH 31, 1973 233

credibility, if they proceeded first to hold a rump session

outside the legislative building; because it is not
unreasonable to demand or to exact that he who exhorts
others to be brave must first demonstrate his own courage.
Surely, they will not affirm that the mere filing of their
petition in L-36165 already made them “heroes and
idealists.” The challenge likewise seems to insinuate that
the members of this Court who disagree with petitioners’
views are materialistic cowards or mercenary fence-sitters.
The Court need not be reminded of its solemn duty and
how to perform it. WE refuse to believe that petitioners and
their learned as well as illustrious counsels, scholars and
liberal thinkers that they are, do not recognize the sincerity
of those who entertain opinions that clash with their own.
Such an attitude does not sit well with the dictum that “We
can differ without being difficult; we can disagree without
being disagreeable,” which distinguished counsel in L-
36165 is wont to quote.
WE reserve the right to prepare an extensive discussion
of the other points raised by petitioners, which We do not
find now necessary to deal with in view of Our opinion on
the main issue.
IN VIEW OF THE FOREGOING, ALL THE
PETITIONS IN THESE FIVE CASES SHOULD BE
DISMISSED.

MAKASIAR, J.:
Pursuant to Our reservation, We now discuss the other
issues raised by the petitioners.
II
EVEN IF ISSUE IS JUSTICIABLE, PEOPLE’S
RATIFICATION, ADOPTION OR ACQUIESCENCE
CREATES STRONG PRESUMPTION OF VALIDITY OF
1973 CONSTITUTION.
As intimated in the aforecited cases, even the courts,
which affirm the proposition that the question as to
whether a constitutional amendment or the revised or new
Constitution
234

has been validly submitted to the people for ratification in

accordance with the procedure prescribed by the existing
Constitution, is a justiciable question, accord all
presumption of validity to the constitutional amendment or
the revised or new Constitution after the government
officials or the people have adopted or ratified or acquiesced
in the new Constitution or amendment, although there was
an illegal or irregular or no submission at all to the people.
(Collier vs. Gray, 4th Dec. Dig. 935 [1934], Hammond vs.
Clark, 71 SE 482-483; People vs. Sours, 31 Colo. 369, 74
Pac. 167, 102 Am. St. Rep. 34; Thompson vs. Winneth, 78
Neb. 379, 110 NW 1113, 10 L.R.A. [N.S.] 149; State vs.
Laylin, 69 Ohio St. Rep. 1, 68 NE 574; Weston vs. Ryan, 70
Neb. 211, 97 NW 347; Combs vs. State, 81 Ga. 780, 8 SE
318; Woodward vs. State, 103 Ga. 496, 30 SE 522; Corre vs.
Cooney, 70 Mont. 355, 225 P 1007, 1009). As late as 1971,
the courts stressed that the constitutional amendment or
the new Constitution should not be condemned “unless our
judgment its nullity is manifest beyond reasonable doubt”
(1971 case of Moore vs. Shanahan, 486 Pac. 2d 506, 207
Kan. 1, 645; and the 1956 case of Tipton vs. Smith, et
al., supra).
Mr. Justice Enrique M. Fernando, speaking for the
Court, pronounced that the presumption of
constitutionality must persist in the absence of factual
foundation of record to overthrow such presumption
(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 the form of
the Charter that it proposes. It enjoys the same immunity
from interference or supervision by any of the
235
VOL. 50, MARCH 31, 1973 235

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 fix the date for
the plebiscite and to provide funds therefor. To deny the
Convention such prerogative, would leave it at the tender
mercy of both legislative and executive branches of the
Government. An unsympathetic Congress would not be
disposed to submit the proposed Constitution drafted by
the Constitutional Convention to the people for ratification,
much less appropriate the necessary funds therefor. That
could have been the fate of the 1973 Constitution, because
the same abolished the Senate by creating a unicameral
National Assembly to be presided by a Prime Minister who
wields both legislative and executive powers and is the
actual Chief Executive, for the President contemplated in
the new Constitution exercises primarily ceremonial
prerogatives. The new Constitution likewise shortened
abruptly the terms of the members of the present Congress
(whose terms end on December 31, 1973, 1975 and 1977)
which provides that the new Constitution shall take effect
immediately upon its ratification (Sec. 16, Article XVII,
1973 Constitution). The fact that Section 2 of the same
Article XVIII secures to the members of Congress
membership in the interim National Assembly as long as
they opt to serve therein within thirty (30) days after the
ratification of the proposed Constitution, affords them little
comfort; because the convening of the interim National
Assembly depends upon the incumbent President (under
Sec. 3[1], Art. XVII, 1973 Constitution). Under the
foregoing circumstances, the members of Congress, who
were elected under the 1935 Constitution, would not be
disposed to call a plebiscite and appropriate funds therefor
to enable the people to pass upon the 1973 Constitution,
ratification of which means their elimination from the
political scene. They will not provide the means for their
own liquidation.
Because the Constitutional Convention, by necessary
implication as it is indispensable to its independence and
effectiveness, possesses the power to call a plebiscite and to
236

appropriate funds for the purpose, it inescapably must

have the power to delegate the same to the President, who,
in estimation of the Convention can better determine
appropriate time for such a referendum as well as the
amount necessary to effect the same; for which reason the
Convention thru Resolution No. 29 approved on November
22, 1972, which superseded Resolution No. 5843 adopted on
November 16, 1972, proposed to the President “that
a decree be issued calling a plebiscite for the ratification of
the proposed new Constitution such appropriate date as he
shall determine and providing for the necessary funds
therefor, xx,” after stating in “whereas” clauses that the
1971 Constitutional Convention expected to complete its
work by the end of November, 1972 that the urgency of
instituting reforms rendered imperative the early approval
of the new Constitution, and that the national and local
leaders desire that there be continuity in the immediate
transition from the old to the new Constitution.
If Congress can legally delegate to the Chief Executive
or his subaltern the power to promulgate subordinate rules
and regulations to implement the law, this authority to
delegate implementing rules should not be denied to the
Constitutional Convention, a co-equal body.
Apart from the delegation to the Chief Executive of the
power to call a plebiscite and to appropriate funds therefor
by the Constitutional Convention thru its Resolution No.
29, the organization of the Citizens’ Assemblies for
consultation on national issues, is comprehended within
the ordinance-making power of the President under Section
63 of the Revised Administrative Code, which expressly
confers on the Chief Executive the power to promulgate
administrative acts and commands touching on the
organization or mode of operation of the government or re-
arranging or re-adjusting any district, division or part of
the Philippines “or disposing of issues of general concern xx
xx.” (Emphasis supplied). Hence, as consultative bodies
representing the localities including the barrios, their
creation by the President thru Presidential Decree No. 86
of December 31, 1972, cannot be successfully challenged.
The employment by the President of these Citizens’
237
VOL. 50, MARCH 31, 1973 237

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 x x x.” The use of the
term “decree” is significant for the basic orders regulating
the conduct of all inhabitants are
238

issued in that form and nomenclature by the President as
the Commander in Chief and enforcer of martial law.
Consequently, the issuance by the President of Presidential
Decree No. 73 on December 1, 1972 setting the plebiscite on
January 15, 1973 and appropriating funds therefor
pursuant to said Resolution No. 29, is a valid exercise of
such delegated authority.
Such delegation, unlike the delegation by Congress of
the rule-making power to the Chief Executive or to any of
his subalterns, does not need sufficient standards to
circumscribe the exercise of the power delegated, and is
beyond the competence of this Court to nullify. But even if
adequate criteria should be required, the same are
contained in the “Whereas” clauses of the Constitutional
Convention Resolution No. 29, thus:
“WHEREAS, the 1971 Constitutional Convention is expected to

complete its work of drafting a proposed new Constitution for the
Republic by the end of November, 1972;
“WHEREAS, in view of the urgency of instituting reforms, the
early approval of the New Constitution has become imperative;
“WHEREAS, it is the desire of the national and local leaders
that there be continuity in the immediate political transition from
the old to the New Constitution”; (Annex “1” of Answer, Res. No.
29, Constitutional Convention).
As Mr. Justice Fernando, with whom Messrs. Justices

Barredo, Antonio and the writer concurred in the Plebiscite
Cases, stated:
“x x x Once this work of drafting has been completed, it could

itself direct the submission to the people for ratification as
contemplated in Article XV of the Constitution. Here it did not do
so. With Congress not being in session, could the President, by the
decree under question, call for such a plebiscite? Under such
circumstances, a negative answer certainly could result in the
work of the Convention being rendered nugatory. The view has
been repeatedly expressed in many American state court
decisions that to avoid such undesirable consequence the task of
submission becomes ministerial, with the political branches
devoid of any discretion as to
239
VOL. 50, MARCH 31, 1973 239

the holding of an election for that purpose. Nor is the

appropriation by him of the amount necessary to be considered as
offensive to the Constitution. If it were done by him in his capacity
as President, such an objection would indeed have been
formidable, not to say insurmountable. If the appropriation were
made in his capacity as agent of the Convention to assure that
there be submission to the people, then such an argument loses
force. The Convention itself could have done so. It is
understandable why it should be thus. If it were otherwise, then a
legislative body, the appropriating arm of the government, could
conceivably make use of such authority to compel the Convention
to submit to its wishes, on pain of being rendered financially
distraught. The President then, if performing his role as its agent,
could be held as not devoid of such competence. (pp. 2-3,
concurring opinion of J. Fernando in L-35925, etc., emphasis
supplied).
IV
VAGUENESS OR AMBIGUITY DOES NOT INVALIDATE
THE 1973 CONSTITUTION
(1) Petitions challenge the 1973 draft as vague and
incomplete, and alluded to their arguments during the
hearings on December 18 and 19, 1972 on the Plebiscite
Cases. But the inclusion of questionable or ambiguous
provisions does not affect the validity of the ratification or
adoption of the 1973 Constitution itself (Pope vs. Gray, 104
SO, 2d 841; 7th Dec. pp. 212-219, 1956-1966).
Alexander Hamilton, one of the leading founders and
defenders of the American Constitution, answering the
critics of the Federal Constitution, stated that: “I never
expect to see a perfect work from imperfect man. The result
of the deliberations of all collective bodies must necessarily
be a compound, as well of the errors and prejudices as of
the good sense and wisdom, of the individuals of whom
they are composed. The compacts which are to embrace
thirteen distinct States in a common bond of amity and
union, must necessarily be a compromise of as many
dissimilar interests and inclinations. How can perfection
spring from such materials?” (The Federalist, Modern
Library Ed., pp. xx-xxi).
(2) The 1973 Constitution is likewise impugned on the
240

ground that it contains provisions which are ultra vires or

beyond the power of the Constitutional Convention to
propose.
This objection relates to the wisdom of changing the
form of government from Presidential to Parliamentary
and including such provisions as Section 3 of Article IV,
Section 15 of Article XIV and Sections 3(2) and 12 of Article
XVII in the 1973 Constitution.
Article IV —
“Sec. 3. The right of the people to be secure in their persons,

houses, papers, and effects against unreasonable searches and
seizures of whatever nature and for any purpose shall not be
violated, and no search warrant or warrant of arrest shall
issue except upon probable cause to be determined by the judge, or
such other responsible officer as may be authorized by law, after
examination under oath or affirmation of the complainant and the
witnesses may produce, and particularly describing the place to
be searched, and the persons or things to be seized.”
Article XIV —
“Sec. 15. Any provision of paragraph one, Section fourteen,

Article Eight and of this Article notwithstanding, the Prime
Minister may enter into international treaties or agreements as
the national welfare and interest may require.” (Without the
consent of the National Assembly.)
Article XVII —
“Sec. 3(2) All proclamations, orders, decrees, instructions, and

acts promulgated, issued, or done by the incumbent President
shall be part of the law of the land, and shall remain valid, legal,
binding and effective even after lifting of martial law or the
ratification of this Constitution, unless modified, revoked, or
superseded by subsequent proclamations, orders, decrees,
instructions, or other acts of the incumbent President, or unless
expressly and explicitly modified or repealed by the regular
National Assembly.
xx xx xx xx xx
“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
241
VOL. 50, MARCH 31, 1973 241

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:
“x x x Regardless of the wisdom and moral aspects of the

contested provisions of the proposed Constitution, it is my
considered view that the Convention was legally deemed fit
to propose — save perhaps what is or may be insistent with
what is now known, particularly in international law,
as Jus Cogens — not only because the Convention exercised
sovereign powers delegated thereto by the people —
although insofar only as the determination of the proposals
to be made and formulated by said body is concerned — but
also, because said proposals cannot be valid as part of our
Fundamental Law unless and until ‘approved by the
majority of the votes cast at an election which’ said
proposals ‘are submitted to the people for their ratification,’
as provided in Section 1 of Article XV of the 1935
Constitution.” (pp. 17-18, Decision in L-35925, etc.).
This Court likewise enunciated in Del Rosario vs.

Comelec (L-32476, Oct. 20, 1970, 35 SCRA 367) that the
Constitutional Convention has the authority to “entirely
overhaul the present Constitution and propose an entirely
new Constitution based on an ideology foreign to the
democratic system x x x; because the same will be
submitted to the people for ratification. Once ratified by the
sovereign people, there can be no debate about the validity
of the new Constitution.”
Mr. Justice Fernando, concurring in the same Plebiscite
Cases, cited the foregoing pronouncement in the Del
Rosario case, supra, and added: “xx xx it seems to me a
sufficient answer that once convened, the area open for
deliberation to a constitutional convention xx xx, is
practically limitless” (citing
242
Cf. Koehler vs. Hill, 14 NW 738, 60 Iowa 543 [1883]; Hatch

Stoneman, 6 P 734, 66 Cal. 632 [1885]; MacMillan v.
Blattner, 25 NW 245, 67 Iowa 287 [1895]; State v. Powell,
27 SO 297, 77 Miss. 543 [1900]; Hammond v. Clark, 71 SE
479, 136 Ga. 313 [1911]; Hamilton v. Vaughan, 179 NW
533, 212 Mich. 31 [1920]; State v. Smith, 138 NE 881, 105
Ohio St. 570 [1922]; Looney vs. Leeper, 292 P 365, 145 Okl.
202 [1930]; School District vs. City of Pontiac, 247 NW 474,
262 Mich. 338 [1933]).
Mr. Justice Barredo, in his concurring opinion in said
Plebiscite Cases, expressed the view “that when the people
elected the delegates to the Convention and when the
delegates themselves were campaigning, such limitation of
the scope of their function and objective was not in their
minds.”
V
1973 CONSTITUTION DULY ADOPTED AND
PROMULGATED.
Petitioners next claim that the 1971 Constitutional
Convention adjourned on November 30, 1972 without
officially promulgating the said Constitution in Filipino as
required by Sections 3(1) of Article XV on General
Provisions of the 1973 Constitution. This claim is without
merit because their Annex “M” is the Filipino version of the
1973 Constitution, like the English version, contains the
certification by President Diosdado Macapagal of the
Constitutional Convention, duly attested by its Secretary,
that the proposed Constitution, approved on second reading
on the 27th day of November, 1972 and on third reading in
the Convention’s 291st plenary session on November 29,
1972 and accordingly signed on November 1972 by the
delegates whose signatures are thereunder affixed. It
should be recalled that Constitutional Convention
President Diosdado Macapagal was, as President of the
Republic 1962 to 1965, then the titular head of the Liberal
Party to which four (4) of the petitioners in L-36165
including their counsel, former Senator Jovito Salonga,
belong. Are they repudiating and disowning their former
party leader and benefactor?
243
VOL. 50, MARCH 31, 1973 243


VI
ARTICLE XV OF 1935 CONSTITUTION DOES NOT
PRESCRIBE ANY PROCEDURE FOR RATIFICATION
OF 1973 CONSTITUTION.
(1) Article XV of the 1935 Constitution simply provides
that “such amendments shall be valid as part of this
Constitution when approved by a majority of the votes cast
at an election at which the amendments are submitted to
the people for ratification.”
But petitioners construe the aforesaid provision to read:
“Such amendments shall be valid as part of this
Constitution when approved by a majority of the votes cast
at an election called by Congress at which the amendments
are submitted for ratification by the qualified electors
defined in Article V hereof, supervised by the Commission
on Elections in accordance with the existing election law
and after such amendments shall have been published in all
the newspapers of general circulation for at least four
months prior to such election.”
This position certainly imposes limitation on the
sovereign people, who have the sole power of ratification,
which imposition by the Court is never justified (Wheeler
vs. Board of Trustees, supra).
In effect, petitioners and their counsels are amending by
a strained and tortured construction Article XV of the 1935
Constitution. This is a clear case of usurpation of sovereign
power they do not possess — through some kind of
escamotage. This Court should not commit such a grave
error in the guise of judicial interpretation.
In all the cases where the court held that illegal or
irregular submission, due to absence of substantial
compliance with the procedure prescribed by the
Constitution and/or the law, nullifies the proposed
amendment or the new Constitution, the procedure
prescribed by the state Constitution is so detailed that it
specifies that the submission should be at a general or
special election, or at the election for members of the State
244

legislature only or of all state officials only or of local

officials only, or of both state and local officials; fixes the
date of the election or plebiscite limits the submission to
only electors or qualified electors; prescribes the
publication of the proposed amendment or a new
Constitution for a specific period prior to the election or
plebiscite; and designates the officer to conduct the
plebiscite, to canvass and to certify the results, including
the form of the ballot which should so state the substance
of the proposed amendments to enable the voter to vote on
each amendment separately or authorizes expressly the
Constitutional Convention or the legislature to determine
the procedure or certain details thereof. See the State
Constitutions of Alabama [1901]; Arizona [1912]; Arkansas
[1874]; Colorado [1976]; Connecticut [1818]; Florida [1887];
Georgia [1945]; Illinois [1970]; Indiana [1851]; Iowa [1857];
Kansas [1861]; Kentucky [1891]; Louisiana [1921];
Maryland [1867]; Massachusetts [1790]; Michigan [1909];
Minnesota [1857]; Mississippi [1890]; and Missouri [1945]).
As typical examples:
Constitution of Alabama (1901):
“Article XVIII. Mode of Amending the Constitution

“Sec. 284. Legislative Proposals. Amendments may be proposed
to this Constitution by the legislature in the manner following:
The proposed amendments shall be read in the house in which
they originate on three several days, and, if upon the third
reading, three-fifths of all the members elected to that house shall
vote in favor thereof, the proposed amendments shall be sent to
the other house, in which they shall likewise be read on three
several days, and if upon the third reading, three-fifths of all the
members elected that house shall vote in favor of the proposed
amendments, the legislature shall order an election by the
qualified electors of the state upon such proposed amendments, to
be held either at the general election next succeeding the session of
the legislature at which the amendments are proposed or upon
another day appointed by the legislature, not less than three
months after the final adjournment of the session of the
legislature at which the amendments were proposed. Notice of
such election, together with the proposed amendments, shall be
given by proclamation of the governor, which shall be published in
every county in such manner as the legislature shall direct, for at
least eight successive weeks next preceding the day appointed for
such election. On the day so
245
VOL. 50, MARCH 31, 1973 245

appointed an election shall be held for the vote of the qualified

electors of the state upon the proposed amendments. If such
election be held on the day of the general election, the officers of
such general election shall open a poll for the vote of the qualified
electors upon the proposed amendments; if it be held on a day
other than that of a general election, officers for such election
shall be appointed; and the election shall be held in all things in
accordance with the law governing general elections. In all
elections upon such proposed amendments, the votes cast thereat
shall be canvassed, tabulated, and returns thereof be made to the
secretary of state, and counted, in the same manner as in elections
for representatives to the legislature; and if it shall thereupon
appear that a majority of the qualified electors who voted at such
election upon the proposed amendments voted in favor of the
same, such amendments shall be valid to all intents and purposes
as parts of this Constitution. The result of such election shall be
made known by proclamation of the governor. Representation in
the legislature shall be based upon population, and such basis of
representation shall not be changed by constitutional
amendments.
“Sec. 285. Form of ballot for amendment. Upon the ballots used
at all elections provided for in section 284 of this Constitution, the
substance or subject matter of each proposed amendment shall be
so printed that the nature thereof shall be clearly indicated.
Following each proposed amendment on the ballot shall be
printed the word “Yes” and immediately under that shall be
printed the word “No.” The choice of the elector shall be indicated
by a cross mark made by him or under his direction, opposite the
word expressing his desire, and no amendment shall be adopted
unless it receives the affirmative vote of a majority of all the
qualified electors who vote at such election.”
Constitution of Arkansas (1874):
“Article XIX. Miscellaneous Provisions.

“Sec. 22. Constitutional amendments. Either branch of the
General Assembly at a regular session thereof may propose
amendments to this Constitution, and, if the same be agreed to by
a majority of all the members, elected to each house, such
proposed amendments shall be entered on the journal with the
yeas and nays, and published in at least one newspaper in each
county, where a newspaper is published, for six months
immediately preceding the next general election for Senators and
Representatives, at which time the same shall be submitted to the
electors of the State for
246

approval or rejection, and if a majority of the electors voting at

such election adopt such amendments, the same shall become a
part of this Constitution; but no more than three amendments
shall be proposed or submitted at the same time. They shall be so
submitted as to enable the electors to vote on each amendment
separately.
Constitution of Kansas (1861):
“Article XIV. Amendments.

“Sec. 1. Proposal of amendments; publications; elections.
Propositions for the amendment of this constitution may be made
by either branch of the legislature; and if two thirds of all the
members elected to each house shall concur therein, such
proposed amendments, together with the yeas and nays, shall be
entered on the journal; and the secretary of state shall cause the
same to be published in at least one newspaper in each county of
the state where a newspaper is published, for three months
preceding the next election for representatives, at which time, the
same shall be submitted to the electors, for their approval or
rejection; and if a majority of the electors voting on said
amendments, at said election, shall adopt the amendments, the
same shall become a part of the constitution. When more than one
amendment shall be submitted at the same time, they shall be so
submitted as to enable the electors to vote on each amendments
separately; and not more than three propositions to amend shall
be submitted at the same election.”
Constitution of Maryland (1867):
“Article XIV. Amendments to the Constitution.

“Sec. 1. Proposal in general assembly; publication; submission
to voters; governor’s proclamation. The General Assembly may
propose Amendments to this Constitution; provided that each
Amendment shall be embraced in a separate bill, embodying the
Article or Section, as the same will stand when amended and
passed by three fifths of all the members elected to each of the
two Houses, by yeas and nays, to be entered on the Journals with
the proposed Amendment. The bill or bills proposing amendment
or amendments shall be published by order of the Governor, in at
least two newspapers, in each County, where so many may be
published, and where not more than one may be published, then
in the newspaper, and in three newspapers published in the City
of Baltimore, once a week for four weeks immediately preceding
the next ensuing general
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VOL. 50, MARCH 31, 1973 247

election, at which the proposed amendment or amendments shall

be submitted, in a form to be prescribed by the General Assembly,
to the qualified voters of the State for adoption or rejection. The
votes cast for and against said proposed amendment or
amendments, severally, shall be returned to the Governor, in the
manner prescribed in other cases, and if it shall appear to the
Governor that a majority of the votes cast at said election on said
amendment or amendments, severally, were cast in favor thereof,
the Governor shall, by his proclamation, declare the said
amendment or amendments having received said majority of
votes, to have been adopted by the people of Maryland as part of
the Constitution thereof, and henceforth said amendment or
amendments shall be part of the said Constitution. When two or
more amendments shall be submitted in the manner aforesaid, to
the voters of this State at the same election, they shall be so
submitted as that each amendment shall be voted on separately.
Constitution of Missouri (1945):
“Article XII. Amending the Constitution.

“Sec. 2(b). Submission of amendments proposed by general
assembly or by the initiative. All amendments proposed by the
general assembly or by the initiative shall be submitted to the
electors for their approval or rejection by official ballot title as
may be provided by law, on a separate ballot without party
designation, at the next general election, or at a special election
called by the governor prior thereto, at which he may submit any
of the amendments. No such proposed amendment shall contain
more than one amended and revised article of this constitution, or
one new article which shall not contain more than one subject and
matters properly connected therewith. If possible, each proposed
amendment shall be published once a week for two consecutive
weeks in two newspapers of different political faith in each
county, the last publication to be not more than thirty nor less
than fifteen days next preceding the election. If there be but one
newspaper in any county, publication of four consecutive weeks
shall be made. If a majority of the votes cast thereon is in favor of
any amendment, the same shall take effect at the end of thirty
days after the election. More than one amendment at the same
election shall be so submitted as to enable the electors to vote on
each amendment separately.”
Article XV of the 1935 Constitution does not require a

specific procedure, much less a detailed procedure for
submission or ratification. As heretofore stated, it does not
248

specify what kind of election at which the new Constitution

shall be submitted; nor does it designate the Commission
on Elections to supervise the plebiscite. Neither does it
limit the ratification to the qualified electors as defined in
Article V of the 1935 Constitution. Much less does it
require the publication of the proposed Constitution for any
specific period before the plebiscite nor does it even
insinuate that the plebiscite should be supervised in
accordance with the existing election law.
(2) As aforequoted, Article XV does not indicate the
procedure for submission of the proposed Constitution to
the people for ratification. It does not make any reference
to the Commission on Elections as the body that shall
supervise the plebiscite. And Article XV could not make
any reference to the Commission on Elections because the
original 1935 Constitution as ratified on May 14, 1935 by
the people did not contain Article X on the Commission on
Elections, which article was included therein pursuant to
an amendment by that National Assembly proposed only
about five (5) years later — on April 11, 1940, ratified by
the people on June 18, 1940 as approved by the President
of the United States on December 1940 (see Sumulong vs.
Commission, 70 Phil. 703, 713, 715; Gonzales, Phil. Const.
Law, 1966 ed., p. 13). So it cannot be said that the original
framers of the 1935 Constitution as ratified May 14, 1935
intended that a body known as the Commission on
Elections should be the one to supervise the plebiscite,
because the Commission on Elections was not in existence
then as was created only by Commonwealth Act No. 607
approved on August 22, 1940 and amended by
Commonwealth Act No. 657 approved on June 21, 1941
(see 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
Election was not yet in existence, the former Department of
Interior (now Department of Local Governments and
Community Development) supervised the plebiscites on the
1937 amendment on woman’s suffrage, the 1939
amendment to the Ordinance appended to the 1935
Constitution (Tydings-Kocialkowski Act of the U.S.
Congress) and the three
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VOL. 50, MARCH 31, 1973 249

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
(ratified on June 18, 1940). The supervision of said
plebiscites by the then Department of Interior was not
automatic, but by virtue of an express authorization in
Commonwealth Act Nos. 34, 49 and 517.
If the National Assembly then intended that the
Commission on Elections should also supervise the
plebiscite for ratification of constitutional amendments or
revision, it should have likewise proposed the
corresponding amendment to Article XV by providing
therein that the plebiscite on amendments shall be
supervised by the Commission on Elections.
3) If the framers of the 1935 Constitution and the people
in ratifying the same on May 14, 1935 wanted that only the
qualified voters under Article V of the 1935 Constitution
should participate in the referendum on any amendment or
revision thereof, they could have provided the same in 1935
or in the 1940 amendment by just adding a few words to
Article XV by changing the last phrase to “submitted for
ratification to the qualified electors as defined in Article V
hereof,” or some such similar phrases.
Then again, the term “people” in Article XV cannot be
understood to exclusively refer to the qualified electors
under Article V of the 1935 Constitution because the said
term “people” as used in several provisions of the 1935
Constitution, does not have a uniform meaning. Thus in
the preamble, the term “Filipino people” refer, to all
Filipino citizens of all ages of both sexes. In Section 1 of
Article II on the Declaration of Principles, the term
“people” in whom sovereignty resides and from whom all
government authority emanates, can only refer also to
Filipino citizens of all ages and of both sexes. But in
Section 5 of the same Article II on social justice, the term
“people” comprehends not only Filipino citizens but also all
aliens residing in the country of all ages and of both sexes.
Likewise, that is the same connotation of the term “people”
employed in Section 1(3) of Article III on the Bill of Rights
concerning searches and seizures.
250


When the 1935 Constitution wants to limit action or the
exercise of a right to the electorate, it does so expressly as
the case of the election of senators and congressmen.
Section 2 Article VI expressly provides that the senators
“shall be chosen at large by the qualified electors of the
Philippines as may provided by law.” Section 5 of the same
Article VI specifically provides that congressmen shall “be
elected by the qualified electors.” The only provision that
seems to sustain the theory of petitioners that the term
“people” in Article XV should refer to the qualified electors
as defined in Article V of the 1935 Constitution is the
provision that the President and Vice-President shall be
elected “by direct vote of the people.” (Sec. 2 of Art. VII of
the 1935 Constitution). But this alone cannot be conclusive
as to such construction, because of explicit provisions of
Sections 2 and 5 of Article VI, which specifically prescribes
that the senators and congressmen shall be elected by the
qualified electors.
As aforesaid, most of the constitutions of the various
states of the United States, specifically delineate in detail
procedure of ratification of amendments to or revision of
said Constitutions and expressly require ratification by
qualified electors, not by the generic term “people.”
The proposal submitted to the Ozamis Committee on the
Amending Process of the 1934-35 Constitutional
Convention satisfied that the amendment shall be
submitted to qualified election for ratification. This
proposal was not accepted indicating that the 1934-35
Constitutional Convention did intend to limit the term
“people” in Article XV of the 1935 Constitution to qualified
electors only. As above demonstrated, the 1934-35
Constitutional Convention limits the use of the term
“qualified electors” to elections of public officials. It did not
want to tie the hands of succeeding future constitutional
conventions as to who should ratify the proposed
amendment or revision.
(4) It is not exactly correct to opine that Article XV of
1935 Constitution on constitutional amendment
contemplates the automatic applicability of election laws to
plebiscites on proposed constitutional amendments or
revision.
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The very phraseology of the specific laws enacted by the
National Assembly and later by Congress, indicates that
there is need of a statute expressly authorizing the
application of the election laws to plebiscites of this nature.
Thus, Com. Act No. 34 on the woman’s suffrage
amendment enacted on September 30, 1936, consists of 12
sections and, aside from providing that “there shall be held
a plebiscite on Friday, April 30, 1937, on the question of
woman’s suffrage xx and that said amendment shall be
published in the Official Gazette in English and Spanish
for three consecutive issues at least fifteen (15) days prior to
said election, xx and shall be posted in a conspicuous place
in its municipal and provincial office building and in its
polling place not later than April 22, 1937” (Sec. 12, Com.
Act No. 34), specifies that the provisions of the Election
Law regarding, the holding of a special election, insofar as
said provisions are not in conflict 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. 73 calling for the
plebiscite on the constitutional amendments in 1939, 1940
and 1946, including the amendment creating the
Commission on Elections, specifically provided that the
provisions of the existing election law shall apply to such
plebiscites insofar as they are not inconsistent with the
aforesaid Com. Act Nos. 492 and 517, as well as Rep. Act
No. 73. Thus —
Commonwealth Act No. 492, enacted on September 19,
1939, calling for a plebiscite on the proposed amendments
to the Constitution adopted by the National Assembly on
September 15, 1939, consists of 8 sections and provides
that the proposed amendments to the Constitution adopted
in Resolution No. 39 on September 15, 1939 “shall be
submitted to the Filipino people for approval or disapproval
at a general election to be
252

held throughout the Philippines on Tuesday, October 24,

1939”; that the amendments to said Constitution proposed
in “Res. No. 38, adopted on the same date, shall be
submitted at following election of local officials,” (Sec. 1,
Com. Act No. 492) that the said amendments shall be
published in English and Spanish in three consecutive
issues of the Official Gazette at least ten (10) days prior to
the elections; that copies thereof shall be posted not later
than October 20, 1939 (Sec. 2, Com. Act 492); that the
election shall be conducted according to provisions of the
Election Code insofar as the same may be applicable; that
within thirty (30) days after the election, Speaker of the
National Assembly shall request the President to call a
special session of the Assembly for the purpose of
canvassing the returns and certify the results thereof (Sec.
6, Com. Act No. 492).
Commonwealth Act No. 517, consisting of 11 sections,
was approved on April 25, 1940 and provided, among
others: that the plebiscite on the constitutional
amendments providing bicameral Congress, re-election of
the President and Vice-President, and the creation of a
Commission on Elections shall be held at a general election
on June 18, 1940 (Sec. 1); that said amendments shall be
published in three consecutive issues of the Official Gazette
in English and Spanish at least 20 days prior to the
election and posted in every local government office
building and polling place not later than May 18, 1940 (Sec.
2); that the election shall be conducted in conformity with
the Election Code insofar as the same may be applicable
(Sec. 3) that copies of the returns shall be forwarded to the
Secretary of National Assembly and the Secretary of
Interior (Sec. 7); that the National Assembly shall canvass
the returns to certify the results at a special session to be
called by President (Sec. 8).
Republic Act No. 73 approved on October 21, 1946
calling for a plebiscite on the parity amendment consists of
8 sections provides that the Amendment “shall be
submitted to the people, for approval or disapproval, at a
general election which shall be held on March 11, 1947, in
accordance with the provisions of this Act” (Sec. 1, R.A. No.
73); that the said amendment shall be published in English
and Spanish in three
253
VOL. 50, MARCH 31, 1973 253

consecutive issues of the Official Gazette at least 20 days

prior to the election; that copies of the same shall
be posted in a conspicuous place and in every polling
place not later than February 11, 1947 (Section 2, R.A. No.
73); that the provisions of Com. Act No. 357 (Election
Code) and Com. Act No. 657 creating the Commission on
Elections, shall apply to the election insofar as they are not
inconsistent with this Act (Sec. 3, R.A. No. 73); and that
within 30 days after the election, the Senate and House of
Representatives shall hold a joint session to canvass the
returns and certify the results thereof (Section 6, R.A. No.
73).
From the foregoing provisions, it is patent that Article
XV of the 1935 Constitution does not contemplate nor
envision the automatic application of the election law; and
even at that, not all the provisions of the election law were
made applicable because the various laws aforecited
contain several provisions which are inconsistent with the
provisions of the Revised Election Code (Com. Act No. 357).
Moreover, it should be noted that the period for the
publication of the copies of the proposed amendments was
about 10 days, 15 days or 20 days, and for posting at least 4
days, 8 days or 30 days.
Republic Acts Nos. 180 and 6388 likewise expressly
provide that the Election Code shall apply to plebiscites
(See. 2, R.A. No. 180, as amended, and Section 2, Rep. Act
No. 6388).
If the Election Code ipso facto applies to plebiscites
under Article XV of the 1935 Constitution, there would be
no need for Congress to expressly provide therefor in the
election laws enacted after the inauguration of the
Commonwealth government under the 1935 Constitution.
(5) Article XV of the 1935 Constitution does not specify
who can vote and how they shall vote. Unlike the various
State Constitutions of the American Union (with few
exceptions), Article XV does not state that only qualified
electors can vote in the plebiscite. As above-intimated, most
of the Constitutions of the various states of the United
States provide for very detailed amending process and
specify that only qualified electors can vote at such
plebiscite or election.
254


Congress itself, in enacting Republic Act No. 3590,
otherwise known as the Barrio Charter, which was
approved on June 17, 1967 and superseded Republic Act
No. 2370, expanded the membership of the barrio assembly
to include citizens who are at least 18 years of age, whether
literate or not, provided they are also residents of the
barrio for at least 6 months (Sec. 4, R.A. No. 3590).
“Sec. 4. The barrio assembly. — The barrio assembly shall

consist of all persons who are residents of the barrio for at least
six months, eighteen years of age or over, citizens of the Republic
of the Philippines and who are duly registered in the list of barrio
assembly members kept by the Barrio Secretary.
“The barrio assembly shall meet at least once a year to hear the
annual report of the barrio council concerning the activities and
finances of the barrio.
“It shall meet also at the case of the barrio council or upon
written petition of at least One-Tenth of the members of the
barrio assembly.
“No meeting of the barrio assembly shall take place unless
notice is given one week prior to the meeting except in matters
involving public safety or security in which case notice within a
reasonable time shall be sufficient. The barrio captain, or in his
absence, the councilman acting as barrio captain, or any assembly
member selected during the meeting, shall act as presiding officer
at all meetings of the barrio assembly. The barrio secretary or in
his absence, any member designated by the presiding officer to act
as secretary shall discharge the duties of secretary of the barrio
assembly.
“For the purpose of conducting business and taking any official
action in the barrio assembly, it is necessary that at least one-fifth
of the members of the barrio assembly be present to constitute a
quorum. All actions shall require a majority vote of these present
at the meeting there being a quorum.
“Sec. 5. Powers of the barrio assembly. — The powers of the
barrio assembly shall be as follows:
“a. To recommend to the barrio council the adoption of
measures for the welfare of the barrio;
“b. To decide on the holding of a plebiscite as provided for
255
VOL. 50, MARCH 31, 1973 255

in Section 6 of this Act;

“c. To act on budgetary and supplemental appropriations
and special tax ordinances submitted for its approval by the
barrio council; and
“d. To hear the annual report council concerning the
activities and finances of the assembly.
“Sec. 6. Plebiscite. — A plebiscite may be held in the barrio
when authorized by a majority vote of the members present in the
barrio assembly, there being a quorum, or when called by at least
four members of the barrio council; Provided, however, That no
plebiscite shall be held until after thirty days from its approval by
either body, and such plebiscite has been given the widest
publicity in the barrio, stating the date, time, and place thereof,
the questions or issues to be decided, action to be taken by the
voters, and such other information relevant to the holding of the
plebiscite.
“All duly registered barrio assembly members qualified to vote
may vote in the plebiscite. Voting procedures may be made either
in writing as in regular election, and/or declaration by the
voters to the board of election tellers. The board of election tellers
shall be the same board envisioned by section 8, paragraph 2 of
this Act, in case of vacancies in this body, the barrio council may
fill the same.
“A plebiscite may be called to decide on the recall of any
member of the barrio council. A plebiscite shall be called to
approve any budgetary, supplemental appropriations or special
tax ordinances.
“For taking action on any of the above enumerated measures,
majority vote of all the barrio assembly members registered in the
list of barrio secretary is necessary.
xx xx xx xx xx
“Sec. 10. Qualifications of voters and candidates. — Every
citizen of the Philippines, twenty-one years of age or over, able to
read and write, who has been a resident of the barrio during the
six months immediately preceding the election, duly registered in
the list of voters kept by the barrio secretary, who is not otherwise
disqualified, may vote or be a candidate in the barrio elections.
“The following persons shall not be qualified to vote:
“a. Any person who has been sentenced by final judgment
to suffer one year or more of imprisonment, within two
years
256

after service of his sentence;

“b. Any person who has violated his allegiance to the
Republic of the Philippines; and
“c. Insane or feeble-minded persons.”
All these barrio assembly members, who are at least 18

years of age, although illiterate, may vote at the plebiscite
on the recall of any member of the barrio council or on a
budgetary, supplemental appropriation, or special
ordinances, a valid action on which requires “a majority
vote of all of the barrio assembly members registered in the
list of the barrio secretary” (par. 5, Sec. 6, R.A. No. 3590).
Such plebiscite may be authorized by a majority vote of the
members present in the barrio assembly, there being a
quorum (par. 1, Sec. 6).
However, in the case of election of barrio officials, only
Filipino citizens, who are at least 21 years of age, able to
read and write, residents of the barrio during the 6 months
immediately preceding the election and duly registered in
the list of voters kept by the barrio secretary, not otherwise
disqualified, may vote (Sec. 10, R.A. No. 3590).
Paragraph 2 of Section 6 likewise authorizes open voting
as it provides that “voting procedures may be made x x x
either in writing as in regular elections, and/or declaration
by the voters to the board of election tellers.”
That said paragraph 2 of Section 6 provides that “all
duly registered barrio assembly members qualified to vote
may vote in the plebiscite,” cannot sustain the position of
petitioners in G.R. No. L-36165 that only those who are 21
years of age and above and who possess all other
qualifications of a voter under Section 10 of R.A. No. 3590,
can vote on the plebiscites referred to in Section 6; because
paragraph 3 of Section 6 does not expressly limit the voting
to those with the qualifications under Section 10 as said
Section 6 does not distinguish between those who are 21 or
above on the one hand and those 18 or above but below 21
on the other, and whether literate or not, to constitute a
quorum of the barrio assembly.
Consequently, on questions submitted for plebiscite, all
the registered members of the barrio assembly can vote as
long as
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VOL. 50, MARCH 31, 1973 257

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-year
olds as qualified electors for barrio plebiscites, this
prerogative can also be exercised by the Chief Executive as
delegate of the Constitutional Convention in regard to the
plebiscite on the 1973 Constitution.
As heretofore stated, the statement by the President in
Presidential Proclamation No. 1102 that the 1973
Constitution was overwhelmingly ratified by the people
through the Citizens’ Assemblies in a referendum
conducted from January 10 to 15, 1973, should be accorded
the presumption of correctness; because the same was
based on the certification by the Secretary of the
Department of Local Government and Community
Development who tabulated the results of the referendum
all over the country. The accuracy of such tabulation and
certification by the said Department Secretary should
likewise be presumed; because it was done in the regular
performance of his official functions aside from the fact
that the act of the Department Secretary, as an alter ego of
the President, is presumptively the act of the President
himself unless the latter disapproves or reprobates the
same (Villena vs. Secretary of Interior, 67 Phil. 451). The
truth of the certification by the Department Secretary and
the Chief
258

Executive on the results of the referendum, is further

strengthened by the affidavits and certifications of
Governor Isidro Rodriguez of Rizal, Mayor Norberto S.
Amoranto of Quezon City and Councilor Eduardo T.
Parades of Quezon City.
The procedure for the ratification of the 1937
amendment on woman suffrage, the 1939 amendment to
the ordinance appended to the 1935 Constitution, the 1940
amendments establishing the bicameral Congress, creating
the Commission on Elections and providing for two
consecutive terms for the President, and the 1947 parity
amendment, cannot be invoked; because those amendments
were proposed by the National Assembly as expressly
authorized by Article V of the 1935 Constitution respecting
woman suffrage and as a constituent assembly in all the
other amendments aforementioned and therefore as such,
Congress had also the authority to prescribe the procedure
for the submission of the proposed amendments to the 1935
Constitution.
In the cases at bar, the 1973 Constitution was proposed
by an independent Constitutional Convention, which as
heretofore discussed, has the equal power to prescribe the
modality for the submission of the 1973 Constitution to the
people for ratification or delegate the same to the President
of the Republic.
The certification of Governor Isidro Rodriguez of Rizal
and Mayor Norberto Amoranto could be utilized as the
basis for the extrapolation of the Citizens’ Assemblies in all
the other provinces, cities and municipalities in all the
other provinces, cities and municipalities, and the
affirmative votes in the Citizens’ Assemblies resulting from
such extrapolation would still constitute a majority of the
total votes cast in favor of the 1973 Constitution.
As claimed by petitioners in L-36165, against the
certification of the Department of Local Government and
Community Development that in Rizal there were
1,126,000 Yes votes and 100,310 No votes, the certification
of Governor Isidro Rodriguez of Rizal, shows only 614,157
Yes votes against 292,530 No votes. In Cavite province,
there were
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VOL. 50, MARCH 31, 1973 259

249,882 Yes votes against 12,269 No votes as disclosed in

Annex 1-A of respondents’ Compliance (the certification by
the Department of Local Government and Community
Development), while the alleged certification of Governor
Lino Bocalan of Cavite shows only 126,163 Yes votes and
5,577 No votes. If such a ratio is extended by way of
extrapolation to the other provinces, cities and towns of the
country, the result would still be an overwhelming vote in
favor of the 1973 Constitution.
The alleged certification by Governor Lino Bocalan of
Cavite, is not true; because in his duly acknowledged
certification dated March 16, 1973, he states that since the
declaration of martial law and up to the present time, he
has been under house arrest in his residence in Urdaneta
Village, Makati, Rizal; that he never participated in the
conduct of the Citizens’ Assemblies on January 10 15, 1973
in the province of Cavite; that the acting chairman and
coordinator of the Citizens’ Assemblies at that time was
Vice-Governor Dominador Camerino; and that he was
shown a letter for his signature during the conduct of the
Citizens’ Assemblies, which he did not sign but which he
referred to Vice-Governor Camerino (Annex 1-Rejoinder of
the Sol. Gen. dated March 20, 1973).
Mayor Pablo Cuneta likewise executed an affidavit
dated March 16, 1973 stating that on January 15, 1973, he
caused the preparation of a letter addressed to Secretary
Jose 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 in any Citizens’ Assemblies holding referendum
in Pasay City, for which reason he did not send the
aforesaid letter pending submittal of the other results from
the said Citizens’ Assemblies; and that in the afternoon of
January 15, 1973, he indorsed the complete certificate of
results on the referendum in Pasay City to the Office of the
President (Annex 5-Rejoinder of Sol. Gen. dated March 20,
1973).
Pablo F. Samonte, Assistant City Treasurer and Officer
in Charge of Pasay City also issued an affidavit dated
March 15, 1973 stating that a certain Atty. Delia Sutton of
the Salonga Law Office asked him for the results of the
referendum; that he
260

informed her that he had in his possession unsigned copies

of such results which may not be considered official as they
had then no knowledge whether the original thereof had
been signed by the mayor; and that in spite of his advice
that said unsigned copies were not official, she requested
him if she could give her the unofficial copies thereof,
which he gave in good faith (Annex C-Rejoinder to the Sol.
Gen.).
There were 118,010 Yes votes as against 5,588 No votes
in the Citizens’ Assemblies of Quezon city (Annex V to
Petitioners’ Notes in L-36165). The fact that a certain Mrs.
Remedio Gutierrez, wife of alleged barrio treasurer
Faustino Gutierrez, of barrio South Triangle, Quezon City,
states that “as far as we know, there has been no Citizens’
Assembly meeting in our Area, particularly in January of
this year,” does not necessarily mean that there was no
such meeting in said barrio; for she may not have been
notified thereof and as a result she was not able to attend
said meeting. Much less can it be a basis for the claim that
there was no meeting at all in the other barrios of Quezon
City. The barrio captain or the secretary of the barrio
assembly could have been a credible witness.
Councilor Eduardo T. Paredes, chairman of the
Secretariat of Quezon City Ratification and Coordinating
Council, certified on March 12, 1973 that as such chairman
he was in charge of the compilation and tabulation of the
results of the referendum among the Citizens’ Assemblies
in Quezon City based on the results submitted to the
Secretariat by the different Citizens’ Assemblies; but many
results of the referendum were submitted direct to the
national agencies having to do with such activity and all of
which he has no knowledge, participation and control
(Annex 4 Rejoinder of the Sol. Gen.).
Governor Isidro Rodriguez of Rizal issued a certification
dated March 16, 1973 that he prepared a letter to the
President dated January 15, 1973 informing him of the
results of the referendum in Rizal, in compliance with the
instruction of the National Secretariat to submit such
letter 2 or 3 days from January 10 to show the trend of
voting in the Citizens’ Assemblies; that the figures 614,157
and 292,530 mentioned in said letter were based on the
certificates of results in his possession as of January 14,
1973, which results were made the
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basis of the computation of the percentage of voting trend in

the province; that his letter was never intended to show the
final or complete result in the referendum in the province as
said referendum was then still going on from January 14-
17, 1973, for which reason the said letter merely stated that
it was only a “summary result”; and that after January 15,
1973, he sent to the National Secretariat all the certificates
of results in 26 municipalities of Rizal for final tabulation
(Annex 3-Rejoinder of the Sol. Gen.; italics supplied).
Lydia M. Encarnacion, acting chief of the Records
Section, Department of Local Government and Community
Development, issued a certificate dated March 16, 1973
that she was shown xerox copies of unsigned letters
allegedly coming from Governor Lino Bocalan dated
January 15, 1973 and marked “Rejoinder Annex Cavite”
addressed to the President of the Philippines through the
Secretary of the Department of Local Government and
Community Development and another unsigned letter
reportedly from Mayor Pablo Cuneta dated January 15,
1973 and marked “Rejoinder Annex Pasay City” addressed
to the Secretary of the Department of Local Government
and Community Development; that both xerox copies of the
unsigned letters contain figures showing the results of the
referendum of the Citizens’ Assemblies in those areas; and
that the said letters were not received by her office and
that her records do not show any such documents received
by her office (Annex 2-Rejoinder of the Sol. Gen.).
Thus it would seem that petitioners in L-36165 have
attempted to deceive this Court by representing said
unsigned letters and/or certificates as duly signed and/or
containing the complete returns of the voting in the
Citizens’ Assemblies.
The observation We made with respect to the
discrepancy between the number of Yes votes and No votes
contained in the summary report of Governor Rodriguez of
Rizal as well as those contained in the alleged report of
Governor Lino Bocalan of Cavite who repudiated the same
as not having been signed by him for he was then under
house arrest, on the one hand, and the number of votes
certified by the Department of Local Government and
Community Development, on the other, to the effect that
even assuming the correctness of the figures
262

insisted on by counsel for petitioners in L-36165, if they

were extrapolated and applied to the other provinces and
cities of the country, the Yes votes would still be
overwhelmingly greater than the No votes, applies equally
to the alleged discrepancy between the figures contained in
the certification of the Secretary of the Department of Local
Government and Community Development and the figures
furnished to counsel for petitioners in L-36165 concerning
the referendum in Camarines Sur, Bataan and Negros
Occidental.
The fact that the referendum in the municipality of
Pasacao, Camarines Sur, shows that there were more
votes in favor of the plebiscite to be held later than those
against, only serve to emphasize that there was freedom of
voting among the members of the Citizens’ Assemblies all
over the country during the referendum from January 10 to
15, 1973 (Annex-6 Camarines Sur to Rejoinder of
Petitioners in L-36165). If there was no such freedom of
choice, those who wanted a plebiscite would not outnumber
those against holding such plebiscite.
The letter of Governor Felix O. Alfelor, Sr. dated
January 1973 confirms the “strong manifestation of
approval of the new Constitution by almost 97% by the
members of the Citizens’ Assemblies in Camarines Sur”
(Annex-Camarines Sur to Rejoinder of Petitioners in L-
36165).
The report of Governor Efren B. Pascual of Bataan
shows that the members of the Citizens’ Assemblies voted
overwhelmingly in favor of the new Constitution despite
the fact that the second set of questions including the
question “Do you approve of the new Constitution?” was
received only on January 10. Provincial Governor Pascual
stated that “orderly conduct and favorable results of the
referendum” were due not only to the coordinated efforts
and cooperation of all teachers and government employees
in the area but also to the enthusiastic participation by the
people, showing “their preference and readiness to accept
this new method of government to people consultation in
shaping up government policies.” (Annex-Bataan to
Rejoinder of Petitioners in L-36165).
As heretofore stated, it is not necessary that voters
ratifying
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the new Constitution are registered in the book of voters; it

is enough that they are electors voting on the new
Constitution (Bott vs. Wurts, 40 A 740 [1898]; 43 A 744,
881 [1899]; 45 LRA 251). The fact that the number of
actual voters in the referendum in certain localities may
exceed the number of voters actually registered for the
1971 elections, can only mean that the excess represents
the qualified voters who are not yet registered including
those who are at least 15 years of age and the illiterates.
Although ex-convicts may have voted also in the
referendum, some of them might have been granted
absolute pardon or were sentenced to less than one year
imprisonment to qualify them to vote (Sec. 201, 1971 Rev.
Election Code). At any rate, the ex-convicts constitute a
negligible number, discounting which would not tilt the
scale in favor of the negative votes.
Similarly, the fact that Mayor Marcial F. Samson of
Caloocan City, who belongs to the Liberal Party, stated in
his letter dated March 13, 1973 that he does not “feel
authorized by the proper authorities to confirm or deny the
data” concerning the number of participants, the Yes votes
and No votes in the referendum on the new Constitution
among the members of the Citizens’ Assemblies in
Caloocan City, does not necessarily give rise to the
inference that Mayor Samson of Caloocan City is being
intimidated, having been recently released from detention;
because in the same letter of Mayor Samson, he suggested
to counsel for petitioners in L-36165 that he can secure “the
true and legitimate results of the referendum” from the
Office of the President (Annex Caloocan-B to Rejoinder of
Petitioners in L-36165). Why did not learned and eminent
counsel heed such suggestion?
Counsel for petitioners in L-36165, to sustain their
position, relies heavily on the computation of the estimated
turnover in the Citizens’ Assemblies referendum on
January 10 to 15, 1973 by a certain Professor Benjamin R.
Salonga, of the Mapua Institute of Technology, ostensibly a
close relative of former Senator Jovito R. Salonga, eminent
counsel for petitioners in L-36165 (Annex M-as amended,
to Consolidated Rejoinder of petitioners in L-36165 to the
Notes of Arguments and Memorandum of respondents).
Professor Salonga is not a qualified statistician, which all
the more impairs his
264

credibility. Director Tito A. Mijares of the Bureau of
Census and Statistics, in his letter dated March 16, 1973
address to the Secretary of the Department of Local
Government and Community Development, refutes the
said computation of Professor Benjamin R. Salonga, thus:
“1) I do not quite understand why (Problem 1) all qualified

registered voters and the 15-20-year-old youths (1972) will have
to be estimated in order to give a 101.9% estimate of the
percentage participation of the ‘15-20 year old plus total number
of qualified voters’ which does not deem to answer the problem.
This computation apparently fails to account for some 5.6 million
persons ‘21 years old and over’ who were not registered voters
(COMELEC), but who might be qualified to participate at the
Citizen’s Assembly.
“2) The official population projection of this office (medium
assumption) for ‘15 year olds and over’ as of January 1, 1973 is
22.506 million. If total number of participants at the Citizens’
Assembly Referendum held on January 10-15, 1973 was 16.702
million, participation rate will therefore be the ratio of the latter
figure to the former which gives 74.2%.
“3) 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 Citizens’ Assembly. Hence, the ‘estimate
percentage participation of 15-20 years olds’ of 105.6% does not
seem to provide any meaningful information.
“To obtain the participation rate of ‘15-20 years old’ one must
divide the number in this age group, which was estimated to be
4.721 million as of January 1, 1973 by the population of ‘15 years
old and over’ for the same period which was estimated to be
22.506 million, giving 21.0%.
“In Problem III, it should be observed that registered voters
also include names of voters who are already dead. It cannot
therefore be assumed that all of them participated at the Citizens’
Assembly. It can therefore be inferred that ‘a total number of
persons 15 and over unqualified/disqualified to vote’ will be more
than 10,548,197 and hence the ‘difference or implied number of
registered voters that participated’ will be less than 6,153,618.
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“I have reservations on whether an ‘appropriate number of
qualified voters that supposedly voted’ could be meaningfully
estimated.
“5) The last remark will therefore make the ratio (a) [Solution
to Problem] more than 1.71 and that for (b), accordingly, will also
be less than 36.8%.” (Annex F Rejoinder).
From the foregoing analysis of the Director of Census

and Statistics as of January 21, 1973, the official
population projection for 15-year olds and over is
22,506,000. If 16,702,000 voted in the referendum, the
participation ratio would be 74.2% of 22,506,000.
If the registered electors as of the election of November
8, 1971 numbered 11,661,909, the difference between
16,702,000 who participated in the referendum and the
registered electors of 11,661,909 for the November 8, 1971
elections, is 5,040,091, which may include not only the 15-
year olds and above but below 21 but also the qualified
electors who were not registered before the November 8,
1971 elections as well as illiterates who are 15 years old
and above but below 21.
Moreover, in the last Presidential election in November,
1969, We found that the incumbent President obtained
over 5,000,000 votes as against about 3,000,000 votes for
his rival LP Senator Sergio 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
justification that those who voted for the incumbent
President in 1969 did not vote in favor of the 1973
Constitution during the referendum from January 10 to 15,
1973. It should also be stressed that many of the partisans
of the President in the 1969 Presidential elections, have
several members in their families and relatives who are
qualified to participate in the referendum because they are
15 years or above including illiterates, which fact should
necessarily augment the number of votes who voted for the
1973 Constitution.
(6) It is also urged that martial law being the rule of
force, is
266

necessarily inconsistent with freedom of choice, because the

people fear to disagree with the President and Commander-
in-Chief of the Armed Forces of the Philippines and
therefore cannot voice views opposite to or critical of the
position of the President on the 1973 Constitution and on
the mode of its ratification.
It is also claimed or urged that there can be no free
choice during martial law which inevitably generates fear
in the individual. Even without martial law, the penal, civil
or administrative sanction provided for the violation of
ordinarily engenders fear in the individual which
persuades the individual to comply with or obey the law.
But before martial law was proclaimed, many individuals
fear such sanctions of the law because of lack of effective
equal enforcement or implementation thereof — in brief,
compartmentalized justice and extraneous pressures and
influences frustrated the firm and just enforcement of the
laws. The fear that is generated by martial law is merely
the fear of immediate execution and swift enforcement of
the law and therefore immediate infliction of the
punishment or sanction prescribed by the law whenever it
is transgressed during the period of martial law. This is not
the fear that affects the voters’ freedom of choice or
freedom to vote for or against the 1973 Constitution. Those
who cringe in fear are the criminals or the law violators.
Surely, petitioners do not come under such category.
(7) Petitioners likewise claim that open voting by viva
voce or raising of hands violates the secrecy of the ballot as
by the election laws. But the 1935 Constitution does not
require secret voting. We search in vain for such guarantee
or prescription in said organic law. The Commission on
Elections under the 1940 Amendment, embodied as Article
X is merely mandated to insure “free, orderly and honest
election.” Congress, under its plenary law-making
authority, could have validly prescribed in the election law
open voting in the election of public officers, without
trenching upon the Constitution. Any objection to such a
statute concerns its wisdom or propriety, not its legality or
constitutionality. Secret balloting was demanded by
partisan strife in elections for elective officials.
Partisanship based on party or personal loyalties
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does not generally obtain in a plebiscite on proposed

constitutional amendments or on a new Constitution. We
have seen even before and during martial law that voting
in meetings of government agencies or private
organizations is usually done openly. This is specially true
in sessions of Congress, provincial boards, city councils,
municipal boards and barrio councils when voting on
national or local issues, not on personalities.
Then again, open voting was not a universal
phenomenon in the Citizens’ Assemblies. It might have
been true in certain areas, but that does not necessarily
mean that it was done throughout the country.
The recent example of an open voting is the last election
on March 3, 1973 of the National Press Club officers who
were elected by acclamation presided over by its former
president, petitioner Eduardo Monteclaro in L-36236 (see
Bulletin Today, p. 8, March 3, 1973 issue). There can be no
more hardboiled group of persons than newspapermen, who
cannot say that voting among them by acclamation was
characterized by fear among the members of the National
Press Club.
Moreover, petitioners would not be willing to affirm that
all the members of the citizenry of this country are against
the new Constitution. They will not deny that there are
those who favor the same, even among the 400,000
teachers among whom officers of the Department of
Education campaigned for the ratification of the new
Constitution.
Not one of the petitioners can say that the common man
— farmer, laborer, fisherman, lowly employee, jeepney
driver, taxi driver, bus driver, pedestrian, salesman, or
salesgirl — does not want the new Constitution, or the
reforms provided for therein.
(8) Petitioners likewise claim that there was no
sufficient publicity given to the new Constitution. This is
quite inaccurate; because even before the election in
November, 1970 of delegates to the Constitutional
Convention, the proposed reforms were already discussed
in various forums and through the press as well as other
media of information. Then after the
268

Constitutional Convention convened in June, 1971, specific
reforms advanced by the delegates were discussed both in
committee hearings as well as in the tri-media — the press,
radio and television. Printed materials on the proposed
reforms were circulated by their proponents. From June,
1971 to November 29, 1972, reforms were openly discussed
and debated except for a few days after the proclamation of
martial law on September 21, 1972. From the time the
Constitutional Convention reconvened in October, 1972
until January 7, 1973, the provisions of the new
Constitution were debated and discussed in forums
sponsored by private organizations universities and
debated over the radio and on television. The Philippines is
a literate country, second only to Japan in the Far East,
and more literate perhaps than many of mid-western and
southern states of the American Union and Spain. Many
residents in about 1,500 towns and 33,000 barrios of the
country have radios. Even the illiterates listened to radio
broadcasts on and discussed the provisions of the 1973
Constitution.
As reported by the eminent and widely read columnist,
Teodoro Valencia in his column in Bulletin Today, March 4,
1973 issue, “Otto Lang, Hollywood producer director (Tora,
Tora, Tora) went around the country doing a 30-minute
documentary on the Philippines for American television
stated that what impressed him most in his travel
throughout the country was the general acceptance of the
New Society by the people which he saw in his 6-week
travel from Aparri to Jolo.”
The report of Frank Valeo (Bulletin Today, March 3 and
4, 1973 and Daily Express, March 3, and Sunday Express,
March 4), Secretary of the United States Senate, who
conducted a personal survey of the country as delegate of
Senator Mike Mansfield, Chairman, Committee on 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
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VOL. 50, MARCH 31, 1973 269

difficulties — land tenancy, official corruption, tax evasion and

abuse of oligarchic economic power. Clearly, he knows the targets.
What is not yet certain is how accurate have been his
shots. Nevertheless, there is marked public support for his
leadership and tangible alternatives have not been forthcoming.
That would suggest that he may not be striking too far from the
mark.
“The United States business community in Manila seems to
have been re-assured by recent developments xx. (Emphasis
supplied.)
Petitioners cannot safely assume that all the peaceful

citizens of the country, who constitute the majority of the
population, do not like the reforms stipulated in the new
Constitution, as well as the decrees, orders and circulars
issued to implement the same. It should be recalled, as
hereinbefore stated, that all these reforms were the subject
of discussion both in the committee hearings and on the
floor of the Constitutional Convention, as well as in public
forums sponsored by concerned citizens or civic
organizations at which Con-Con delegates as well as other
knowledgeable personages expounded their views thereon
and in all the media of information before the proclamation
of martial law on September 21, 1972. This is the reason
why the Constitutional Convention, after spending close to
P30 million during the period from June 1, 1971 to
November 29, 1972, found it expedient to accelerate their
proceedings in November, 1972 because all views that
could possibly be said on the proposed provisions of the
1973 Constitution were already expressed and circulated.
The 1973 Constitution may contain some unwise
provisions. But this objection to such unwise or vague
provisions, as heretofore stated, refers to the wisdom of the
aforesaid provisions, which issue is not for this Court to
decide; otherwise We will be substituting Our judgment for
the judgment of the Constitutional Convention and in effect
acting as a constituent assembly.
VI
PRESIDENT AS COMMANDER IN CHIEF EXERCISES
LEGISLATIVE POWERS DURING MARTIAL LAW.
The position of the respondent public officers that under
270

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.

“x x x Consequently, in the promulgation and enforcement of

Executive Order No. 68, the President of the Philippines has
acted in conformity with the generally accepted principles and
policies of international law which are part of our Constitution.
“The promulgation of said executive order is an exercise by the
President of his powers as Commander in Chief of all our armed
forces, as upheld by this Court in the case of Yamashita vs.
Styver (L-129, 42 Off. Gaz., 664) when we said —
“ ‘War is not ended simply because hostilities have
ceased. After cessation of armed hostilities, incidents of war
may remain pending which should be disposed of as in time
of war. ‘An important incident to a conduct of war is the
adoption measures by the military command not only to
repel and defeat the enemies but to seize and subject to
disciplinary measures those enemies who in their attempt to
thwart or impede our military effort have violated the law of
war.’ (Ex parte Quirin, 317 U.S., 1; 63 Sup. Ct., 2.) Indeed,
the power to create a military commission for the trial and
punishment of war criminals is an aspect of waging war.
And, in the language of a writer, a military commission ‘has
jurisdiction so long as the technical state of war continues.
This includes the period of an armistice, or military
occupation, up to the effective date of treaty of peace, and
may extend beyond, by treaty agreement.’ (Cowles, Trial of
War Criminals by Military Tribunals, American Bar
Association Journal, June, 1944).’
“Consequently, the President as Commander-in-Chief is fully
empowered to consummate this unfinished aspect of war, namely
the trial and punishment of war criminals, through the issuance
and enforcement of Executive Order No. 68.” (83 Phil. 177-178;
italics supplied).
Chief Justice Stone of the United States Supreme Court

likewise appears to subscribe to this view, when, in his
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VOL. 50, MARCH 31, 1973 271

concurring opinion in Duncan vs. Kahanamoku (327 U.S.

304 [1946]), he defined martial law as “the exercise of the
power which resides in the executive branch of the
government to preserve order and insure the public safety in
times of emergency, when other branches of the government
are unable to function, or their functioning would itself
threaten the public safety.” (Italics supplied). There is an
implied recognition in the aforesaid definition of martial
law that even in places where the courts can function, such
operation of the courts may be affected by martial
law should their “functioning x x x threaten the public
safety.” It is possible that the courts, in asserting their
authority to pass upon questions which may adversely
affect the conduct of the punitive campaign against rebels,
secessionists, dissidents as well as subversives, martial law
may restrict such judicial function until the danger to the
security of the state and of the people shall have been
decimated.
The foregoing view appears to be shared by Rossiter
when he stated:
“Finally, this strong government, which in some instances

might become an outright dictatorship, can have no other purposes
than the preservation of the independence of the state, the
maintenance of the existing constitutional order, and the defense of
the political and social liberties of the people. It is important to
recognize the true and limited ends of any practical application of
the principle of constitutional dictatorship. Perhaps the matter
may be most clearly stated in this way: the government of a free
state is proceeding on its way and meeting the usual problems of
peace and normal times within the limiting framework of its
established constitutional order. The functions of government are
parceled out among a number of mutually independent offices and
institutions; the power to exercise those functions is
circumscribed by well-established laws, customs, and
constitutional prescriptions; and the people for whom this
government was instituted are in possession of a lengthy
catalogue of economic, political, and social rights which their
leaders recognize as inherent and inalienable. A severe crisis
arises — the country is invaded by a hostile power, or a dissident
segment of the citizenry revolts, or the impact of a world-wide
depression threatens to bring the nation’s economy in ruins. The
government meets the crisis by assuming more powers and
respecting fewer rights. The result is a regime which can act
272

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 cannot
be eradicated with the restoration of normal times. In short, the
aim of constitutional dictatorship is the complete restoration of
the status quo ante bellum. This historical fact does not comport
with philosophical theory, that there never has been a perfect
constitutional dictatorship, is an assertion that can be made
without fear of contradiction. But this is true of all institutions of
government, and the principle of constitutional dictatorship
remains eternally valid no matter how often and seriously it may
have been violated in practice. (Constitutional Dictatorship, 1948
ed., by Clinton L. Rossiter, p. 7; 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
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VOL. 50, MARCH 31, 1973 273

dictator he had a moral right to take this radical

action. Nevertheless, it is imperative that any action with such
lasting effects should eventually receive the positive approval of the
people or of their representatives in the legislature. (p. 303, italics
supplied).
From the foregoing citations, under martial law

occasioned by severe crisis generated by revolution,
insurrection or economic depression or dislocation, the
government exercises more powers and respects fewer
rights in order “to end the crisis and restore normal times.”
The government can assume additional powers
indispensable to the attainment of that end — the complete
restoration of peace. In our particular case, eradication of
the causes that incited rebellion and subversion as
secession, is the sine qua non to the complete restoration of
normalcy. Exercise of legislative power by the President as
Commander in Chief, upon his proclamation of martial law,
is justified because, as he professes, it is directed towards
the institution of radical reforms essential to the
elimination of the causes of rebellious, insurgent or
subversive conspiracies and the consequent dismantling of
the rebellious, insurgent or subversive apparatus.
Hence, the issuance of Presidential Decree Nos. 86 and
86-A as well as Proclamation No. 1102 is indispensable to
the effectuation of the reforms within the shortest possible
time to hasten the restoration of normalcy.
“Must the government be too strong for the liberties of the

people; or must it be too weak to maintain its existence?” That
was the dilemma that vexed President Lincoln during the
American Civil War, when without express authority in the
Constitution and the laws of the United States, he suspended one
basic human freedom — the privilege of the writ of habeas
corpus — in order to preserve with permanence the American
Union, the Federal Constitution of the United States and all the
civil liberties of the American people. This is the same dilemma
that presently confronts the Chief Executive of the Republic of the
Philippines, who, more than the Courts and Congress, must, by
express constitutional mandate, secure the safety of our Republic
and the rights as well as lives of the
274

people against open rebellion, insidious subversion secession. The

Chief Executive announced repeatedly that in choosing to
proclaim martial law, the power expressly vested in him by the
1935 Constitution (Sec. 10[2], Art. VII, 1935 Constitution) to
insure our national and individual survival in peace and freedom,
he is in effect waging a peaceful, democratic revolution from the
center against the violent revolution and subversion being
mounted by the economic oligarchs of the extreme right, who
resist reforms to maintain their economic hegemony, and the
communist rebels a Maoist oriented secessionists of the extreme
left who demand swift institution of reforms. In the exercise of his
constitutional and statutory powers, to save the state and to
protect the citizenry against actual and threatened assaults from
insurgents, secessionists and subversives, doctrinaire concepts
and principles, no matter how revered they may be by
jurisprudence and time, should not be regarded as peremptory
commands; otherwise the dead hand of the past will regulate and
control the security and happiness of the living present. A
contrary view would be to deny the self-evident proposition that
constitutions and laws are mere instruments for the well-being,
peace, security and prosperity of the country and its citizenry. The
law as a means of social control is not static but dynamic.
Paraphrasing Mr. Justice Frankfurter, the Constitution is neither
a printed finality nor the imprisonment of the past, but the
enfolding of the future. In the vein of Mr. Justice Holmes, the
meaning of the words of the Constitution is not to be determined
by merely opening a dictionary. Its terms must be construed in
the context of the realities in the life of a nation it is intended to
serve. Because experience may teach one generation to doubt the
validity and efficacy of the concepts embodied in the existing
Constitution and persuade another generation to abandon them
entirely, heed should be paid to the wise counsel of some learned
jurists that in the resolution of constitutional questions — like
those posed before Us — the blending of idealism and practical
wisdom or progressive legal realism should be applied (see
Alexander M. Bickel, the Supreme Court and the Idea of Progress,
1970 ed., pp. 19-21). To Justice Frankfurter, law is “a vital agency
for human betterment” and constitutional law “is applied politics
using the word in its noble sense.” (Frankfurter, Law and Politics,
1939 ed., pp. 3 & 6; italics supplied). Justice Brandeis
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VOL. 50, MARCH 31, 1973 275

gave utterance to the truth that “Our Constitution is not a

straight jacket. It is a living organism. As such, it is capable of
growth — or expansion and adaptation to new conditions. Growth
implies changes, political, economic and social.” (Brandeis Papers,
Harvard Law School; emphasis supplied). Harvard Professor
Thomas Reed Powell emphasizes “practical wisdom,” for “the logic
of constitutional law is the common sense of the Supreme Court.”
(Powell, the Validity of State Legislation, under the Webb-Kenyon
Law, 2 Southern Law Quarterly, pp. 112, 138-139, cited in
Bickel’s Opus, supra; italics supplied).
The eternal paradox in this finite world of mortal and

fallible men is that nothing is permanent except change.
Living organisms as well as 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 modified to suit the needs of a given society
at a particular given epoch. This is true of constitutions
and laws because they are not “the infallible instruments of
a manifest destiny.” No matter how we want the law to be
stable, it cannot stand still. As Mr. Justice Holmes aptly
observed, every “constitution is an experiment as all life is
an experiment,” (Abrahms vs. U.S., 250 US 616, 631) for
“the life of the law is not logic, but experience.” In the
pontifical tones of Mr. Justice Benjamin Nathan Cardozo,
“so long as society is inconstant, there can be no constancy
in law,” and “there will be change whether we will it or
not.” As Justice Jose P. Laurel was wont to say, “We
cannot, Canute-like, command the waves of progress to
halt.”
Thus, political scientists and jurists no longer exalt with
vehemence a “government that governs least.” Adherents
there are to the poetic dictum of Alexander Pope: “For
forms
276

of government let fools contest; whatever is best

administered is best.” (Poems of Pope, 1931 Cambridge ed.,
p. 750). In between, the shades vary from direct democracy,
representative democracy, welfare states, socialist
democracy, mitigated socialism, to outright communism
which degenerated in some countries into totalitarianism
or authoritarianism.
Hence, even the scholar, who advances academic
opinions unrelated to factual situations in the seclusion of
his ivory tower, must perforce submit to the inexorable law
of change in his views, concepts, methods and techniques
when brought into the actual arena of conflict as a public
functionary — face to face with the practical problems of
state, government and public administration. And so it is
that some learned jurists, in the resolution of constitutional
issues that immediately affect the lives, liberties and
fortunes of the citizens and the nation, recommend the
blending of idealism with practical wisdom which legal
thinkers prefer to identify as progressive legal realism. The
national leader, who wields the powers of government,
must and has to innovate if he must govern effectively to
serve the supreme interests of the people. This is especially
true in times of great crises where the need for a leader
with vision, imagination, capacity for decision and
courageous action is greater, to preserve the unity of
people, to promote their well-being, and to insure the safety
and stability of the Republic. When the methods of
rebellion and subversion have become covert, subtle and
insidious, there should be a recognition of the
corresponding authority on the part of the Commander-in-
Chief of the Armed Forces to utilize all the available
techniques to suppress the peril to the security of the
government and the State.
Over a century and a half ago, Thomas Jefferson, one of
the founding fathers of the American Constitution and
former President of the United States, who personifies the
progressive liberal, spoke the truth when he said that some
men “ascribe men of the preceding age a wisdom more than
human, and suppose what they did to be beyond
amendment. xx xx 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
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truths disclosed and manners and opinions change, with
the change of circumstances, institutions must also
advance, and keep pace with the times.” (Vol. 12,
Encyclopedia Britanica, 1969 ed., p. 989).
The wisdom of the decision of the Chief Executive can
only be judged in the perspective of history. It cannot be
adequately and fairly appraised within the present
ambience, charged as it is with so much tension and
emotion, if not partisan passion. The analytical, objective
historians will write the final verdict in the same way that
they pronounced judgment on President Abraham Lincoln
who suspended the privilege of the writ of habeas 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 Pacific — which
protected the United States mainland not only from actual
invasion but also from aerial or naval bombardment by the
enemy. Parenthetically, the impartial observer cannot
accurately conclude that the American Supreme Court
acted with courage in its decision in the cases of Ex parte
Milligan and Duncan vs. Kahanamoku (filed on May 10,
1865 argued on March 5 to 13, 1866, decided on April 3,
1866, and opinion delivered on December 17, 1866) after
the lifting of the proclamation suspending the privilege of
the writ of habeas corpus, long after the Civil War and the
Second World ended respectively on April 9 or 26, 18-65
(Vol. 1, Encyclopedia Britannica, 1969 ed., pp. 730, 742)
and on September 2, 1945 (Vol. 23, Encyclopedia
Britannica, 1969 ed., p. 799). Was the delay on the part of
the American Supreme Court in deciding these cases
against the position of the United States President — in
suspending the privilege of the writ of habeas corpus in
278

one case and approving the proclamation of martial law in

the other — deliberate as an act of judicial statesmanship
and recognition on their part that an adverse court ruling
during the period of such a grave crisis might jeopardize
the survival of the Federal Republic of the United States in
its life-and-death struggle against an organized and well
armed rebellion within its own borders and against a
formidable enemy from without its territorial confines
during the last global armageddon?
VIII
DOCTRINE OF SEPARATION OF POWERS
PRECLUDES MANDAMUS AGAINST SENATORS.
In G.R. No. L-36165, mandamus will not lie to compel
respondents Gil Puyat and Jose Roy to convene the Senate
of the Philippines even on the assumption that the 1935
Constitution still subsists; because pursuant to the doctrine
of separation of powers under the 1935 Constitution, the
processes of this Court cannot legally reach a coordinate
branch of the government or its head. This is a problem
that is addressed to the Senate itself for resolution; for it is
purely an internal problem of the Senate. If a majority of
the senators can convene, they can elect a new Senate
President and a new Senate President Pro Tempore. But if
they have no quorum, those present can order the arrest of
the absent members (Sec. 10[2], Art. VI, 1935
Constitution). If this fails, then there is no remedy except
an appeal to the people. The dictum ubi jus, ubi remedium,
is not absolute and certainly does not justify the invocation
of the power of this Court to compel action on the part of a
co-equal body or its leadership. This was emphasized with
sufficient clarity by this Court in the 1949 case of Avelino
vs. Cuenco (83 Phil. 17, 22, 24), with which the
distinguished counsels for the petitioners in L-36164 and
L-36165 are familiar. We stress that the doctrine of
separation of powers and the political nature of the
controversy such as this, preclude the interposition of the
Judiciary to nullify an act of a coordinate body or to
command performance by the head of such a co-ordinate
body of his functions.
Mystifying is the posture taken by counsels for
petitioners
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VOL. 50, MARCH 31, 1973 279

in referring to the political question doctrine — almost in

mockery — as a magic formula which should be
disregarded by this Court, forgetting that this magic
formula constitutes an essential skein in the constitutional
fabric of our government, which, together with other basic
constitutional precepts, conserves the unity of our people,
strengthens the structure of the government and assures
the continued stability of the country against the forces of
division, if not of anarchy.
Moreover, if they have a quorum, the senators can meet
anywhere. Validity of the acts of the Senate does not
depend on the place of session; for the Constitution does
not designate the place of such a meeting. Section 9 of
Article VI imposes upon Congress to convene in regular
session every year on the 4th Monday of January, unless a
different date is fixed by law, or on special session called by
the President. As former Senator Arturo Tolentino, counsel
for respondents Puyat and Roy in L-36165, stated, the duty
to convene is addressed to all members of Congress, not
merely to its presiding officers. The fact that the doors of
Congress are padlocked, will not prevent the senators —
especially the petitioners in L-36165 — if they are minded
to do so, from meeting elsewhere — at the Sunken
Gardens, at the Luneta Independence Grandstand, in any
of the big hotels or theaters, in their own houses, or at the
Araneta Coliseum, which is owned by the 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.
280


The Constitutional provision on the convening of
Congress, is addressed to the individual members of the
legislative body (Sec. 9, Art. VI of 1935 Constitution).
IX
TO NULLIFY PROCLAMATION NO. 1102 AND 1973
CONSTITUTION REQUIRES EIGHT OR TEN VOTES OF
SUPREME COURT.
The petitioners in L-36164 and L-36236 specifically pray
for a declaration that the alleged ratification of the 1973
Constitution is null and void and that the said 1973
Constitution be declared unenforceable and inoperative.
As heretofore stated, Proclamation No. 1102 is an
enactment of the President as Commander-in-Chief during
martial law as directly delegated to him by Section 10(2) of
Article VII of the 1935 Constitution.
A declaration that the 1973 Constitution is
unenforceable and inoperative is practically deciding that
the same is unconstitutional. The proposed Constitution is
an act of the Constitutional Convention, which is co-equal
and coordinate with as well as independent of either
Congress or the Chief Executive. Hence, its final act, the
1973 Constitution, must have the same category at the
very least as the act of Congress itself.
Consequently, the required vote to nullify Proclamation
No. 1102 and the 1973 Constitution should be eight (8)
under Section 10 of Article VIII of the 1935 Constitution in
relation to Section 9 of the Judiciary Act or Republic Act
No. 296, as amended, or should be ten (10) under Section
2(2) of Article X of the 1973 Constitution. Should the
required vote of eight (8) or ten (10), as the case may be, for
the declaration of invalidity or unconstitutionality be not
achieved, the 1973 Constitution must be deemed to be
valid, in force and operative.
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X
ARTICLE OF FAITH
WE yield to no man as devotees of human rights and
civil liberties. Like Thomas Jefferson, We swear “eternal
hostility towards any form of tyranny over the mind of
man” as well as towards bigotry and intolerance, which are
anathema to a free spirit. But human rights and civil
liberties under a democratic or republican state are never
absolute and never immune to restrictions essential to the
common weal. A civilized society cannot long endure
without peace and order, the maintenance of which is the
primary function of the government. Neither can civilized
society survive without the natural right to defend itself
against all dangers that may destroy its life, whether in the
form of invasion from without or rebellion and subversion
from within. This is the first law of nature and ranks
second to none in the hierarchy of all values, whether
human or governmental. Every citizen, who prides himself
in being a member or a civilized society under an
established government, impliedly submits to certain
constraints on his freedom for the general welfare and the
preservation of the State itself, even as he reserves to
himself certain rights which constitute limitations on the
powers of government. But when there is an inevitable
clash between an exertion of governmental authority and
the assertion of individual freedom, the exercise of which
freedom imperils the State and the civilized society to
which the individual belongs, there can be no alternative
but to submit to the superior right of the government to
defend and preserve the State. In the language of Mr.
Justice Holmes — often invoked by herein petitioners —
“when it comes to a decision involving its (state life, the
ordinary rights of individuals must yield to what he (the
President) deems the necessities of the moment. Public
danger warrants the substitution of executive process for
judicial process. (See Keely vs. Sanders, 99 U.S. 441, 446,
25 L ed. 327, 328). This was admitted with regard to killing
men in the actual clash of arms. And we think it is obvious,
although it was disputed, that the same is true of
temporary detention to prevent apprehended harm.”
(Moyer vs. Peabody, 212 U.S. 77, 85, 53 L ed., 411, 417).
The rhetoric of freedom alone is not enough. It must be
the
282

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 avert 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
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VOL. 50, MARCH 31, 1973 283

beheaded or hanged or guillotined by the very people whom

they at first championed and later deceived. The most
bloody of such mass executions by the wrath of a wronged
people, was the decapitation by guillotine of about 15,000
Frenchmen including the leaders of the French revolution,
like Robespierre, Danton, Desmoulins and Marat. He is
fully cognizant of the lessons of history.
HENCE, THE DISMISSAL OF THESE FIVE CASES IS
JUSTIFIED.

ESGUERRA, J.: For Dismissal of Petitions
These petitions seek to stop and prohibit the
respondents Executive Officers from implementing the
Constitution signed on November 30, 1972; in L-36165, to
compel respondents Gil Puyat and Jose J. Roy, President
and President Pro-Tempore, respectively, of the Senate
under the 1935 Constitution, to convene the Senate in
regular session which should have started on January 22,
1973; to nullify Proclamation No. 1102 of the President,
issued on January 17, 1973, which declared the ratification
of the Constitution on November 30, 1972, by the Filipino
people, through the barangays or Citizens Assemblies
established under Presidential Decree No. 86 issued on
December 31, 1972, which were empowered under
Presidential Decree No. 86-A, issued on January 5, 1973, to
act in connection with the ratification of said Constitution.
Grounds for the petitions are as follows:
1. That the Constitutional Convention was not a free
forum for the making of a Constitution after the
declaration of Martial Law on September 21, 1972.
2. The Convention was not empowered to incorporate
certain provisions in the 1972 Constitution because they
are highly unwise and objectionable and the people were
not sufficiently informed about them.
3. The President had no authority to create and
empower the Citizens’ Assemblies to ratify the new
Constitution at the
284

referendum conducted in connection therewith, as said

assemblies were merely for consultative purposes, and
4. The provisions of Article XV of the 1935 Constitution
prescribing the manner of amending the same were not
duly observed.
The petitions were not given due course immediately but
were referred to the Solicitor General as counsel for the
respondents for comment, with three members of the
Court, including the undersigned, voting to dismiss them
outright. The comments were considered motions to
dismiss which were set for hearing and extensively argued.
Thereafter both parties submitted their notes and
memoranda on their oral arguments.
I.
The issues raised for determination, on which the
resolution of the Motion to Dismiss hinges, are as follows:
1. Is the question presented political and, hence, beyond
the competence of this Court to decide, or is it justiciable
and fit for judicial determination?
2. Was the new Constitution of November 30, 1972,
ratified in accordance with the amending process
prescribed by Article XV of the 1935 Constitution?
3. Has the new Constitution been accepted and
acquiesced in by the Filipino people?
4. Is the new Constitution actually in force and effect?
5. If the answers to questions Nos. 3 and 4 be in the
affirmative, are petitioners entitled to the reliefs prayed
for?
II.
The pivotal question in these cases is whether the issue
raised is highly political and, therefore, not justiciable. I
maintain that this Court should abstain from assuming
jurisdiction, but, instead, as an act of judicial
statesmanship,
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VOL. 50, MARCH 31, 1973 285

should dismiss the petitions. In resolving whether or not

the question presented is political, joint discussion of issues
Nos. 1, 3 and 4 is necessary so as to arrive at a logical
conclusion. For after the acceptance of a new Constitution
and acquiescence therein by the people by putting it into
practical operation, any question regarding its validity
should be foreclosed and all debates on whether it was duly
or lawfully ushered into existence as the organic law of the
state become political and not judicial in character.
The undisputed facts that led to the issuance of
Proclamation No. 1102 and Presidential Decrees Nos. 86
and 86-A are fully set forth in the majority and dissenting
opinions in the Plebiscite cases decided on January 22,
1973, and need not be repeated here.
Petitioners seek to set at naught Proclamation No. 1102
and Presidential Decrees Nos. 86 and 86-A, claiming that
the ratification of the new Constitution pursuant to the
said decrees is invalid and of no effect. Presidential Decree
No. 86 organized the barangays or Citizens Assemblies
composed of all citizens at least fifteen years of age, and
through these assemblies the proposed 1972 Constitution
was submitted to the people for ratification. Proclamation
No. 1102 of the President announced or declared the result
of the referendum or plebiscite conducted through the
Citizens Assemblies, and that 14,976,561 members thereof
voted for the ratification of the new Constitution and
743,869 voted against it. Petitioners assail these two acts of
the President as unauthorized and devoid of legal effect.
But looking through the veneer of judicial conformity
with which the petitions have been adroitly contrived, what
is sought to be invalidated is the new Constitution itself —
the very framework of the present Government since
January 17, 1973. The reason is obvious. The Presidential
decrees set up the means for the ratification and
acceptance of the new Constitution and Proclamation No.
1102 simply announced the result of the referendum or
plebiscite by the people through the Citizens Assemblies.
The Government under the new Constitution has been
running on its tracks normally and apparently without
obstruction in the form of organized
286

resistance capable of jeopardizing its existence and

disrupting its operation. Ultimately the issue is whether
the new Constitution may be set aside by this Court. But
has it the power and authority to assume such a
stupendous task when the result of such invalidation would
be to subject this nation to divisive controversies that may
totally destroy the social order which the Government
under the new Constitution has been admirably protecting
and promoting under Martial Law? That the new
Constitution has taken deep root and the people are happy
and contended with it is a living reality which the most
articulate critics of the new order cannot deny. 95 out of
108 members of the House of Representatives have opted to
serve in the interim National Assembly provided for under
the new Constitution. 15 out of 24 Senators have done
likewise. The members of the Congress did not meet
anymore last January 22, 1973, not because they were
really prevented from so doing but because of no serious
effort on their parts to assert their offices under the 1935
Constitution. In brief, the Legislative Department under
the 1935 Constitution is a thing of the past. The Executive
Department has been fully reorganized; the appointments
of key executive officers including those of the Armed
Forces were extended and they took an oath to support and
defend the new Constitution. The courts, except the
Supreme Court by reason of these cases, have administered
justice under the new constitution. All government offices
have dealt with the public and performed their functions
according to the new Constitution and laws promulgated
thereunder.
If the real purpose of the petitions is to set aside the new
Constitution, how can this Court justify its assumption of
jurisdiction when no power has x x x conferred upon it the
jurisdiction to declare the Constitution or any part thereof
null and void? It is the height of absurdity and impudence
for a court to wage open war against the organic act to
which it owes its existence. The situation in which this
Court finds itself does not permit it to pass upon the
question whether or not the new Constitution has entered
into force and has superseded the 1935 Constitution. If it
declares that the present Constitution has not been validly
ratified, it has to uphold the 1935 Constitution as still the
prevailing organic law. The result would be too anomalous
to describe, for then this Court would
287
VOL. 50, MARCH 31, 1973 287

have to declare that it is governed by one Constitution or

the 1935 Constitution, and the legislative and executive
branches by another or the 1972 Constitution.
If it declares that the 1972 Constitution is now
operative, how can it exercise judicial discretion in these
cases when it would have no other choice but to uphold the
new Constitution as against any other one? In the
circumstances it would be bereft of judicial attributes as
the matter would then be not meet for judicial
determination, but one addressed to the sovereign power of
the people who have already spoken and delivered their
mandate by accepting the fundamental law on which the
government of this Republic is now functioning. To deny
that the new Constitution has been accepted and actually
is in operation would be flying in the face of reason and
pounding one’s bare head against a veritable stone wall or
a heavily reinforced concrete, or simply “kicking the deadly
pricks” with one’s bare foot in an effort to eliminate the
lethal points.
When a Constitution has been in operation for
sometime, even without popular ratification at that,
submission of the people thereto by the organization of the
government provided therein and observance of its
prescriptions by public officers chosen thereunder, is
indicative of approval. Courts should be slow in nullifying a
Constitution claimed to have been adopted not in
accordance with constitutional or statutory directives
[Miller vs. Johnson, 92 Ky. 589; 189 S.W. 522; Taylor vs
Commonwealth, 101; Va. 829; 44 S.E. 754; Smith vs. Good,
34 F 204, 207; Wiston vs. Ryan, 70 Neb. 211; 97 N.W. 347].
In Miller vs. Johnson, supra, the Court said:
“x x x 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
288

reassembled. If the making of them was in excess of its power, yet

as the entire instrument has been recognized as valid in the
manner suggested, it would be equally an abuse of power by the
judiciary, and violative of the rights of the people, — who can and
properly should remedy the matter, if not to their liking, — if it
were to declare the instrument or a portion invalid, and bring
confusion and anarchy upon the state.” (Emphasis supplied)
In Smith vs. Good, supra, the Court said:
“It is said that a state court is forbidden from entering upon

such an inquiry when applied to a new constitution, and not an
amendment, because the judicial power presupposes an
established government, and if the authority of that government
is annulled and overthrown, the power of its courts is annulled
with it; therefore, if a state court should enter upon such an
inquiry, come to the conclusion that the government under which
it acted had been displaced by an opposing government, it would
cease to be a court, and it would be incapable of pronouncing a
judicial decision upon the question before it; but, if it decides at
all, it must necessarily affirm the existence of the government
under which it exercises its judicial powers.” (Emphasis supplied)
These rules are all traceable to Luther vs. Borden, 48

U.S (7 How.), 12 L. Ed. 581, 598 (1849) where it was held:
“Judicial power presupposes an established government

capable of enacting laws and enforcing their execution, and
appointing judges to expound and administer them. The
acceptance of the judicial office is a recognition of the authority of
government from which it is derived. And if the authority of the
government is annulled and overthrown, the power of its courts
and other officers is annulled with it. And if a State court should
enter upon the inquiry proposed in this case, and should come to
conclusion that the government under which it acted had been
put aside and displaced by an opposing government it would cease
to be a court, and be incapable of pronouncing a judicial decision
upon the question it undertook to try. If it decides at all as a
court, it necessarily affirms the existence and authority of the
government under which it is exercising judicial power.”
The foreign relations of the Republic of the Philippines

have been normally conducted on the basis of the new
Constitution
289
VOL. 50, MARCH 31, 1973 289

and no state with which we maintain diplomatic relations

has withdrawn its recognition of our government. (For
particulars about executive acts done under the new
Constitution, see pages 22-25 of the Comments of the
Solicitor General, dated February 3, 1973.)
Certainly the invalidation of Proclamation No. 1102 and
Presidential Decrees Nos. 86 and 86-A by this Court would
smack of plain political meddling which is described by the
United States Supreme Court as “entering a political
thicket” in Colegrove vs. Green, 328 U.S. p. 549. At this
juncture it would be the part of wisdom for this Court to
adopt the proper attitude towards political upheavals and
realize that the question before Us is political and not fit
for judicial determination. For a political question is one
entrusted to the people for judgment in their sovereign
capacity (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 embarrassment from
multifarious pronouncements by various departments on
one question.”
To preserve the prestige and eminence that this Court
has long enjoyed as the “ultimate organ of the “Supreme
Law of the Land” in that vast range of legal problems often
strongly entangled in popular feeling on which this Court
must pronounce,” let us harken to the following admonition
of Justice Frankfurter in his dissent in Baker vs. Carr, 369
U.S. 186; 82 S. Ct. 691; 7 L. Ed. 2d. 663:
“The Court’s authority — possessed neither of the purse nor

the sword — ultimately rests on sustained public confidence in its
moral sanction. Such feeling must be nourished by the Court’s
complete detachment, in fact and appearance, from political
entanglements and abstention from injecting itself into the clash of
political forces in political settlement....” (Emphasis supplied)
290


The people have accepted and submitted to a
Constitution to replace the 1935 Constitution. The new
organic law is now in the plenitude of its efficacy and vigor.
We are now living under its aegis and protection and only
the cynics will deny this. This Court should not in the least
attempt to act as a super-legislature or a super-board of
canvassers and sow confusion and discord among our
people by pontificating there was no valid ratification of the
new Constitution. The sober realization of its proper role
and delicate function and its consciousness of the
limitations on its competence, especially situations like
this, are more in keeping with the preservation of our
democratic tradition than the blatant declamations of those
who wish the Court to engage in their brand of activism
and would not mind plunging it into the whirlpool of
passion and emotion in an effort to capture the intoxicating
applause of the multitude.
For all the foregoing, I vote to dismiss all petitions.
ZALDIVAR, J., concurring and dissenting:
In these five cases, the main issue to be resolved by
Court is whether or not the Constitution proposed by the
Constitutional Convention of 1971 had been ratified in
accordance with the provisions of Article XV of the 1935
Constitution. In the plebiscite cases, which were decided by
this Court on January 22, 1973,1 I held the view that this
issue could be properly resolved by this Court, and that it
was in the public interest that this Court should declare
then whether or not the proposed Constitution had been
validly ratified. The
_______________
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., Sedfrey A. Ordoñez, et al. v. The National
Treasurer of 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 Elections, et al., L-35979.
291
VOL. 50, MARCH 31, 1973 291

majority of this Court, however, was of the view that the

issue was not squarely raised in those cases, and so the
Court, as a body, did make any categorical pronouncement
on the question of whether or not the Constitution proposed
by the 1971 Convention was validly ratified. I was the only
one who expressed the opinion that the proposed
Constitution was not validly ratified and therefore “it
should not be given force and effect.”
The Court is now called upon to declare, and to inform
the people of this country, whether or not that proposed
Constitution had been validly ratified and had come into
effect.
The Solicitor General, however, contends that this Court
has no jurisdiction to resolve the issue that we have
mentioned because that issue is a political question that
cannot be decided by this Court. This contention by the
Solicitor General is untenable. A political question relates
to “those questions which under the Constitution are to be
decided by the people in their sovereign capacity or in
regard to which full discretionary authority has been
delegated to the legislative, or to the executive, branch of
the government.2 The courts have the power to determine
whether the acts of the executive are authorized by the
Constitution and the laws whenever they are brought
before the court in a judicial proceeding. The judicial
department of the government exercises a sort of
controlling, or rather restraining, power over the two other
departments of the government. Each of the three
departments, within its proper constitutional sphere, acts
independently of the other, and restraint is only placed on
one department when that sphere is actually transcended.
While a court may not restrain the executive from
committing an unlawful act, it may, when the legality of
such an act is brought before it in a judicial proceeding,
declare it to be void, the same as it may declare a law
enacted by the legislature to be unconstitutional.3 It is a
settled doctrine that every officer under a constitutional
government must act according to law and subject to its
restrictions, and every departure therefrom, or disregard
_______________
2 See Tañada, et al. v. Cuenco, L-10520, Feb. 28, 1957; Baker v. Carr,
369 U.S. 186 (1962).
3 See 16 Am. Jur. 2d. p. 468, Note 14, and cases cited therein.
292

thereof, must subject him to the restraining and controlling

power of the people, acting through the agency of the
judiciary. It must be remembered that the people act
through the courts, as well as through the executive or the
legislature. One department is just as representative as the
other, and judiciary is the department which is charged
with the special duty of determining the limitations which
the law places upon all official actions.4 In the case
of Gonzales v. Commission on Elections,5 this Court ruled
that the issue as to whether or not a resolution of Congress
acting as a constituent assembly violates the Constitution
is not a political question and is therefore subject to judicial
review. In the case of Avelino v. Cuenco,6 this Court held
that the exception to the rule that courts will not interfere
with a political question affecting another department is
when such political question involves an issue as to the
construction and interpretation of the provision of the
constitution. And so, it has been held that the question of
whether a constitution shall be amended or not is a
political question which is not in the power of the court to
decide, but whether or not the constitution has been legally
amended is a justiciable question.7
My study on the subject of whether a question before the
court is political or judicial, based on decisions of the courts
in the United States — where, after all, our constitutional
system has been patterned to a large extent — made me
arrive at the considered view that it is in the power of this
Court, as the ultimate interpreter of the Constitution, to
determine the validity of the proposal, the submission, and
the ratification of any change in the Constitution.
Ratification or non-ratification of a constitutional
amendment is a vital element in the procedure to amend
the constitution, and I believe that the Court can inquire
into, and decide on, the question of whether or not an
amendment to the constitution, as in the present cases, has
been ratified in accordance with the
_______________
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.
293
VOL. 50, MARCH 31, 1973 293

requirements prescribed in the Constitution that was

amended. And so, in the cases now before Us, I believe that
the question of whether or not the Constitution proposed by
the 1971 Constitutional Convention had been validly
ratified or not is a justiciable question.
The Chief Justice, in his opinion, has discussed lengthily
the subject on whether or not, the cases, before Us involve
a political, or a judicial, question. I fully concur with his
conclusion that the question involved in these cases is
justiciable.
On the question now of whether or not the Constitution
proposed by the 1971 Constitutional Convention has been
validly ratified, I am reproducing herein pertinent portions
of my dissenting opinion in the plebiscite cases:
“The ratification of the Constitution proposed by the 1971

Constitutional Convention must be done in accordance with the
provisions of Section 1, Article XV of the 1935 Constitution of the
Philippines, which reads:
‘Section 1. The Congress in joint session assembled by a
vote of three fourths of all the Members of the Senate and of
the House of Representatives voting separately, may
propose amendments to the Constitution or call a
convention for that purpose. Such amendments shall be
valid as part of this Constitution when approved by a
majority of the votes cast at an election at which the
amendments are submitted to the people for their
ratification.’
“It is in consonance with the abovequoted provision of the 1935
Constitution that on March 16, 1967, the Congress of the
Philippines Resolution No. 2 calling a convention to propose
amendments to the Constitution of the Philippines. Sec. 7 of said
Resolution No. 2 reads as follows:
‘Section 7. The amendments proposed by the Convention
shall be valid and considered part of the Constitution when
approved by a majority of the votes cast in an election at
which they are submitted to the people for their ratification
pursuant to Article XV of the Constitution.’
294


“It follows that from the very resolution of the Congress of the
Philippines which called for the 1971 Constitutional Convention,
there was a clear mandate that the amendments proposed by the
1971 Convention, in order to be valid and considered part of the
Constitution, must be approved by majority of the votes cast in an
election at which they are submitted to the people for the
ratification as provided in the Constitution.
“This Court, in the case of Tolentino vs. Commission Elections,
L-35140, October 16, 1971 (41 SCRA 715), speaking through Mr.
Justice Barredo, said:
‘The Constitutional Convention of 1971, as any other
convention of the same nature, owes its existence and all its
authority and power from the existing Constitution of the
Philippines. This Convention has not been called by the
people directly as in the case of a revolutionary convention
which drafts the first Constitution of an entirely new
government born of either a war of liberation from a mother
country or of revolution against an existing government or
of a bloodless seizure of power a la coup d’etat. As to such
kind of conventions, it is absolutely true that the convention
is completely without restraint and omnipotent all wise,
and it as to such conventions that the remarks of Delegate
Manuel Roxas of the Constitutional Convention of 1934
quoted by Senator Pelaez refer. No amount of
rationalization can belie the fact that the current
convention came into being only because it was called by a
resolution of a joint session of Congress acting as a
constituent assembly by authority of Section 1, Article XV of
the present Constitution x x x.’
x x x
‘As to matters not related to its internal operation and
the performance of its assigned mission to propose
amendments to the Constitution, the Convention and its
officers and members are all subject to all the provisions of
the existing Constitution. Now we hold that even as to its
latter task of proposing amendments to the Constitution, it
is subject to the provisions of Section 1 of Article XV.’
“In Proclamation No. 1102, issued on January 17, 1973, the
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VOL. 50, MARCH 31, 1973 295

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

before the barangays (Citizens Assemblies) 14,976,561 members
of the barangays voted for the adoption of the proposed
Constitution, as against 743,869 who voted for its rejection, and
on the basis of the overwhelming majority of the votes cast by the
members of all the barangays throughout the Philippines, the
President proclaimed that the Constitution proposed by the 1971
Convention has been ratified and has thereby come into effect.
“It is very plain from the very wordings of Proclamation No.
1102 that the provisions of Section 1 of Article XV of the
Constitution of 1935 were not complied with. It is not necessary
that evidence be produced before this Court to show that no
elections were held in accordance with the provisions of the
Election Code. Proclamation No. 1102 unequivocally states that
the proposed Constitution of 1972 was voted upon by the
barangays. It is very clear, therefore, that the voting held in these
barangays is not the election contemplated in the provisions of
Section 1, Article XV, of the 1935 Constitution. The election
contemplated in said constitutional provision is an election held in
accordance with the provisions of the election law, where only the
qualified and registered voters of the country would cast their
votes, where official ballots prepared for the purpose are used,
where the voters would prepare their ballots in secret inside the
voting booths in the polling places established in the different
election precincts throughout the country, where the election is
conducted by election inspectors duly appointed in accordance
with the election law, where the votes are canvassed and reported
in a manner provided for in the election law. It was this kind of
election that was held on May 14, 1935, when the Constitution of
1935 was ratified; on April 30, 1937, when the amendment to the
Constitution providing for Women’s Suffrage was ratified; on
June 18, 1940, when the 1940 Amendments to the Constitution
were ratified; on March 11, 1947 when the Parity Amendment to
the Constitution was ratified; and on November 14, 1967 when
the amendments to the Constitution to increase the number of
Members of the House of Representatives and to allow the
Members of Congress to run in the elections for Delegates to the
Constitutional Convention of 1971 were rejected.
“I cannot see any valid reason why the practice or procedure in
the past, in implementing the constitutional provision requiring
the holding, of an election to ratify or reject an amendment to the
Constitution, has not been followed in the case of the Constitution
296


“It is my view that the President of the Philippines cannot by
decree order the ratification of the proposed 1972 Constitution
thru a voting in the barangays and make said result the basis for
proclaiming the ratification of the proposed constitution. It is very
clear, to me, that Proclamation No. 1102 was issued in complete
disregard or in violation, of the provisions of Section 1 of Article X
of the 1935 Constitution.
“Proclamation No. 1102 mentions, furthermore, that on the
question as to whether or not the people would still like a
plebiscite to be called to ratify the new Constitution, 14,298,814
members of the barangays answered that there was no need for a
plebiscite but that the vote of the barangays should be considered
a vote in a plebiscite. It would thus appear that the barangays
assumed the power to determine whether a plebiscite as ordained
in the Constitution be held or not. Indeed, the provision of Section
1, Article XV of the Constitution was completely disregarded.
“The affirmative votes cast in the barangays are not the votes
contemplated in Section 1 of Article XV of the 1935 Constitution.
The votes contemplated in said constitutional provision are votes
obtained through the election processes as provided by law.
‘An election is the embodiment of the popular will, the
expression of the sovereign power of the people. In common
parlance, an election is the act of casting and receiving the
ballots, counting them, and making the return.’ (Hontiveros
vs. Altavas, 24 Phil. 632, 637).
‘Election’ implies a choice by an electoral body at the
time and substantially in the manner and with the
safeguards provided by law with respect to some question or
issue. (Leffel v. Brown, Com. P1., 159 N.E. 2d 807, 808 cited
in 29 C.J.S. 13 at footnote 6.5).
‘* * * the statutory method whereby qualified voters or
electors pass on various public matters submitted to them
— the election of officers, national, state, county, township
— the passing on various other questions submitted for
their determination.’ (29 C.J.S. 13, citing Iowa-Illinois 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
297
VOL. 50, MARCH 31, 1973 297

Phrases, Permanent Edition, p. 234).

‘The right to vote may be exercised only on compliance
with such statutory requirements as have been set by the
legislature.’ (People ex rel. Rago v. Lipsky, 63 N.E. 2d 642,
327 III. App. 63; Rothfels v. Southworth, 356 P. 2d 612, 11
Utah 2d 169 in 29 C.J.S. 38). (Emphasis supplied).
“In this connection I herein quote the pertinent provisions of
the Election Code of 1971:
‘Sec. 2. Applicability of this Act. — All elections of public
officers except barrio officials and plebiscites shall be
conducted in the manner provided by this Code.’
‘Sec. 99. Necessity of registration to be entitled to vote. —
In order that a qualified voter may vote in any regular or
special election or in any plebiscite, he must be registered in
the permanent list of voters for the city, municipality or
municipal district in which he resides: Provided, that no
person shall register more than once without first applying
for cancellation of his previous registration.’ (Italics
supplied). (Please see also Sections 100-102, Election Code
of 1971, R.A. No. 6388)
“It is stated in Proclamation No. 1102 that the voting was done
by the members of citizens assemblies who are 15 years of age or
over. Under the provision of Section I of Article V of the 1935
Constitution, the age requirement to be a qualified voter is 21
years or over.
“But what is more noteworthy is the fact that the voting in the
barangays, except in very few instances, was done by the raising
of hands by the persons indiscriminately gathered to participate
in the voting, where even children below 15 years of age were
included. This is a matter of common observation, or of common
knowledge, which the Court may take judicial notice of. To
consider the votes in the barangays as expressive of the popular
will and use them as the basis in declaring whether a
Constitution is ratified or rejected is to resort to a voting by
demonstrations, which is would mean the rule of the crowd, which
is only one degree higher than the rule by the mob. Certainly, so
important a question as to whether the Constitution, which is the
supreme law of the land, should be ratified or not, must not be
decided by simply gathering people and asking
298

them to raise their hands in answer to the question of whether

the vote for or against a proposed Constitution. The election as
provided by law should be strictly observed in determining the
will of the sovereign people in a democracy. In our Republic, the
will of the people must be expressed through the ballot in a
manner that is provided by law.
“It is said that in a democracy, the will of the people is the
supreme law. Indeed, the people are sovereign, but the will of the
people must be expressed in a manner as the law and the
demands a well-ordered society require. The rule of law must
prevail even over the apparent will of the majority of the people, if
that will had not been expressed, or obtained, in accordance with
the law. Under the rule of law, public questions must be decided
in accordance with the Constitution and the law. This is specially
true in the case of adoption of a constitution or in the ratification
of an amendment to the Constitution.
“The following citations are, to me, very relevant in the effort
to determine whether the proposed Constitution of 1972 had been
validly ratified, or not:
‘When it is said that ‘the people’ have the right to alter or
amend the constitution, it must not be understood that term
necessarily includes all the inhabitants of the state. Since
the question of the adoption or rejection of a proposed new
constitution or constitutional amendment must be answered
a vote, the determination of it rests with those who, by
existing constitution, are accorded the right of suffrage. But
the qualified electors must be understood in this, as in
many other cases, as representing those who have not the
right to participate in the ballot. If a constitution should be
abrogated and a new one adopted, by the whole mass of
people in a state acting through representatives not chosen
by the ‘people’ in political sense of the term, but by the
general body of the populace, the movement would be extra-
legal.’ (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 on certain subjects, and the people of each State
created a State government, to exercise the remaining
powers of sovereignty so
299
VOL. 50, MARCH 31, 1973 299

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

all. By the constitution which they establish, they not only
tie up the hands of their official agencies, but their own
hands as well; and neither the officers of the State, nor the
whole people as an aggregate body, are at liberty to take
action in opposition to this fundamental law.’ (Cooley’s
Constitutional Limitations, 8th Edition, Vol. I, p. 81 cited in
Graham v. Jones, 3 So. 2d. 761, 782).
‘The theory that a favorable vote by the electorate,
however unanimous, on a proposal to amend a constitution,
may cure, render innocuous, all or any antecedent failures
to observe commands of that Constitution in respect of the
formulation or submission of proposed amendments thereto,
does not prevail in Alabama, where the doctrine of the
stated theory was denied, in obvious effect, by the
pronouncement 60 years ago of broad, wholesome
constitutional principles in Collier v. Frierson, supra, as
quoted in the original opinion, ante. The people themselves
are bound by the Constitution; and, being so bound, are
powerless, whatever their numbers, to change or thwart its
mandates, except through the peaceful means of a
constitutional convention, or of an amendment according to
the mode therein prescribed, or through the exertion of the
original right of revolution. ‘The Constitution may be set
aside by revolution, but it can only be amended in the way
it provides,’ said Hobson, C.J., in McCreary v. Speer, 156
Ky. 783, 791, 162 S.W. 99, 103. (Johnson vs. Craft, et al., 87
So. 375, 385, 387, On Rehearing).
‘The fact that a majority voted for the amendment,
unless the vote was taken as provided by the Constitution,
is not sufficient to make a change in that instrument.
Whether a proposed amendment has been legally adopted is
a judicial question, for the court must uphold and enforce
the Constitution as written until it is amended in the way
which it provides for.’ Wood v. Tooker, 15 Mont. 8, 37 Pac
840, 25 L.R.A. 560;McConaughty v. State, 106 Minn. 409,
119 N.W. 408; Oakland Paving Company v. Hilton, 69 Cal.
499, 11 Pac. 3; Utter v. Mosely, 16 Idaho 274, 100 Pac. 1958,
133 Am. St. Rep. 94, 18 Ann. Cas. 723. (McCreary v. Speer,
162 S.W. 99, 104).
‘Provisions of a constitution regulating its own
amendment, * * * are not merely directory, but are
mandatory; and a strict observance of every substantial
mandatory; and a strict observance of every substantial
requirement is essential to the validity of the proposed
amendment. These provisions are as binding on the people
as
300

on the legislature, and the former are powerless by vote of

acceptance to give legal sanction to an amendment the
submission of which was made in disregard of the
limitations contained in the constitution.’ (16 C.J.S. 35-36.
cited in Graham v. Jones, 3 So. 2d 761, 782).
‘It is said that chaos and confusion in the government
affairs of the State will result from the Court’s action in
declaring the proposed constitutional amendment void. This
statement is grossly and manifestly inaccurate. If confusion
and chaos should ensue, it will not be due to the action of
the Court but will be the result of the failure of the drafters
joint resolution to observe, follow and obey the plain
essential provisions of the Constitution. Furthermore, to
say that, the Court disregards its sworn duty to enforce the
Constitution, chaos and confusion will result, is an
inherently weak argument in favor of the alleged
constitutionality of the proposed amendment. It is obvious
that, if the Court were to countenance the violations of the
sacramental provisions Constitution, those who would
thereafter desire to violate it disregard its clear mandatory
provisions would resort to the scheme of involving and
confusing the affairs of the State then simply tell the Court
that it was powerless to exercise one of its primary
functions by rendering the proper decree to make the
Constitution effective.’ (Graham v. Jones, 3 So. 2d. 761, 793-
794).
“In our jurisprudence I find an instance where this Court did
not allow the will of the majority to prevail, because the
requirements of the law were not complied with. In the case
of Monsale v. Nico, 83 Phil. 758, Monsale and Nico were both
candidates for the office of Municipal Mayor of Miagao, Iloilo, in
the elections of November 11, 1947. Monsale had duly filed his
certificate of candidacy before the expiration of the period for the
filing of the same. However, on October 10, 1947, after the period
for the filing of the certificate of candidacy, Monsale withdrew his
certificate of candidacy. But on November 7, 1947 Monsale
attempted to revive his certificate of candidacy by withdrawing
the withdrawal of certificate of candidacy. The Commission on
Elections, November 8, 1947, ruled that Monsale could no longer
be a candidate. Monsale nevertheless proceeded with his
candidacy. The boards of inspectors in Miagao, however, did not
count the votes cast for Monsale upon the ground that the votes
cast for him were stray votes, because he was considered as
having no certificate of candidacy. On the other hand, the boards
of inspectors credited Nico
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VOL. 50, MARCH 31, 1973 301

with 2,291 votes, and Nico was proclaimed elected. Monsale filed
a protest against the election of Nico in the Court of First
Instance of Iloilo. In the count of the ballots during the
proceedings in the trial court, it appeared that Monsale had
obtained 2,877 votes while Nico obtained 2,276 votes, or a margin
of 601 votes in favor of Monsale. The Court of First Instance of
Iloilo decided the election protest in favor of Monsale. Upon
appeal by Nico, this Court reversed the decision of the lower
court. This Court declared that because Monsale withdrew his
certificate of candidacy, his attempt to revive it by withdrawing
his withdrawal of his certificate of candidacy did not restore the
effectiveness of his certificate of candidacy, and this Court
declared Nico the winner in spite of the fact that Monsale had
obtained more votes than he.
“We have cited this Monsale case to show that the will of the
majority of the voters would not be given effect, as declared by
this Court, if certain legal requirements have not been complied
with in order to render the votes valid and effective to decide the
result of an election.
“And so, in the cases now before this Court, the fact that the
voting in the citizens assemblies (barangays) is not the election
that is provided for in the 1935 Constitution for the ratification of
the amendment to the Constitution, the affirmative votes cast in
those assemblies can not be made the basis for declaring the
ratification of the proposed 1972 Constitution, in spite of the fact
that it was reported that 14,976,561 members of the citizens
assemblies voted for the adoption as against 743,869 for the
rejection, because the votes thus obtained were not in accordance
with the provisions of Section 1 of Article XV of the 1935
Constitution of the Philippines. The rule of law mast be upheld.
“My last observation: One of the valid grounds against the
holding of the plebiscite on January 15, 1973, as provided in
Presidential Decree No. 73, is that there is no freedom on the part
of the people to exercise their right of choice because of the
existence of martial law in our country. The same ground holds
true as regards to the voting of the barangays on January 10 to
15, 1973. More so, because by General Order No. 20, issued on
January 7, 1973, the President of the Philippines ordered ‘that
the provisions of Section 3 of Presidential Decree No. 73 in so far
as they allow free public discussion of the proposed constitution,
as well as my order of December 17, 1972 temporarily suspending
the effects of Proclamation No. 1081 for the purpose of free and
open debate on the proposed constitution, be suspended in the
meantime.’ It is,
302

therefore, my view that voting in the barangays on January 10,

1973 was not free, and so this is one added reason why the results
of the voting in the barangays should not be made the basis for
proclamation of the ratification of the proposed Constitution.
“It is my view, therefore, that Proclamation No. 1102
repugnant to the 1935 Constitution, and so it is invalid, and
should not be given effect. The Constitution of 1972 proposed by
the 1971 Constitutional Convention should be considered as not
yet ratified by the people of this Republic, and so it should not be
given force and effect.”
It is urged by the Solicitor General, however, that the

voting in the citizens assemblies was a substantial
compliance with the provisions of Article XV of the 1935
Constitution. The Solicitor General maintains that the
primary thrust of the provision of Article XV of the 1935
Constitution is that “to be valid, amendments must gain
the approval of the majority recognition of the democratic
postulate that sovereign resides in the people.” It is not
disputed that in a democratic sovereignty resides in the
people. But the term “people” must be understood in its
constitutional meaning, and they are “those persons who
are permitted by the Constitution to exercise the elective
franchise.”8 Thus, in Section 2 of Article VII of the 1935
Constitution, it is provided that “the President shall hold
his office during a term of four years and, together with the
Vice-President chosen for the same term, shall be elected
by direct vote of the people...” Certainly under that
constitutional provision, the “people” who elect directly the
President and the 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,
_______________
8 Cooley, Constitutional Limitation, 8th Ed., Vol. I, p. 82.
9 39 Phil. 258, 268.
303
VOL. 50, MARCH 31, 1973 303

represent the sovereign power of the State. Their sovereign

authority is expressed through the ballot, of the qualified
voters, in duly appointed elections held from time to time,
by means of which they choose their officials for definite
fixed periods, and to whom they entrust, for the time being,
as their representatives, the exercise of the powers of
government.” In the case of Moya v. Del Fierro,10 this
Court, speaking through Mr. Justice Laurel, said, “As long
as popular government is an end to be achieved and
safeguarded, suffrage, whatever may be the modality and
form devised, must continue to be the means by which the
great reservoir of power must be emptied into the
receptacle agencies wrought by the people through their
Constitution in the interest of good government and the
common weal. Republicanism, in so far as it implies the
adoption of a representative type of government,
necessarily points to the enfranchised citizen as a particle
of popular sovereignty and as the ultimate source of the
established authority.” And in the case of Abanil v. Justice
of the Peace of Bacolod,11 this Court said: “In the scheme of
our present republican government, the people are allowed
to have a voice therein through the instrumentality of
suffrage to be availed of by those possessing certain
prescribed qualifications. The people, in clothing a citizen
with the elective franchise for the purpose of securing a
consistent and perpetual administration of the government
they ordain, charge him with the performance of a duty in
the nature of a public trust, and in that respect constitute
him a representative of the whole people. This duty requires
that the privilege thus bestowed exclusively for the benefit
of the citizen or class of citizens professing it, but in good
faith and with an intelligent zeal for the general benefit
and welfare of the state. (U.S. v. Cruikshauk, 92 U.S.
588)...” There is no question, therefore, that when we talk
of sovereign people, what is meant are the people who act
through the duly qualified and registered voters who vote
during an election that is held as provided in the
Constitution or in the law.
The term “election” as used in Section 1 of Article XV of
the
_______________
10 69 Phil. 199, 204.
11 70 Phil. 28, 31.
304

1935 Constitution should be construed along with the term

“election” as used in the Provisions of Section 4 of the
Philippine Independence Act of the Congress of the United
States, popularly known as the Tydings-McDuffie Law
(Public Act No. 127). Said Section 4 of the Tydings-
McDuffie Law provides as follows:
“Section 4. After the President of the United States certified

that the constitution conforms with the provisions of this act, it
shall be submitted to the people of the Philippine Islands for their
ratification or rejection at an election to he held within months
after the date of such certification, on a date to be fixed by the
Philippine Legislature at which election, the qualified voters of the
Philippine Islands shall have an opportunity to vote directly or
against the proposed constitution and ordinances append thereto.
Such election shall be held in such manner as may prescribed by
the Philippine Legislature to which the return of the election shall
be made. The Philippine Legislature shall certify the result to the
Governor-General of the Philippine Islands, together with a
statement of the votes cast, and a copy of said constitution
ordinances. If a majority of the votes cast shall be for the
constitution, such vote shall be deemed an expression of the will
of the people of the Philippine Independence, and the Governor-
General shall, within thirty days after receipt of the certification
from the Philippine Legislature, issue a proclamation for
the election of officers of the government of the Commonwealth of
the Philippine Islands provided for in the Constitution...”
It can safely be said, therefore, that when the framers of

the 1935 Constitution used, the word “election” in Section I
Article XV of the 1935 Constitution they had no other idea
in mind except the elections that were periodically held in
the Philippines for the choice of public officials prior to the
drafting of the 1935 Constitution, and also the “election”
mentioned in the Independence Act at which “the qualified
voters of the Philippine Islands shall have an opportunity
to vote directly for or against the proposed constitution...”
It is but logical to expect that the framers of the 1935
Constitution would provide a mode of ratifying an
amendment to that Constitution similar to the mode of
ratifying the original Constitution itself.
305
VOL. 50, MARCH 31, 1973 305


It is clear therefore, that the ratification or any
amendment to the 1935 Constitution could only be done by
holding an election, as the term “election” was understood,
and practiced, when the 1935 Constitution as drafted. The
alleged referendum in the citizens assemblies —
participated in by persons aged 15 years or more,
regardless of whether they were qualified voters or not,
voting by raising their hands, and the results of the voting
reported by the barrio or ward captain, to the municipal
mayor, who in turn submitted the report to the provincial
Governor, and the latter forwarding the reports to the
Department of Local Governments, all without the
intervention of the Commission on Elections which is the
constitutional body which has exclusive charge of the
enforcement and administration of all laws, relative to the
conduct of elections — was not only a non-substantial
compliance with the provisions of Section 1 of Article XV of
the 1935 Constitution but a downright violation of said
constitutional provision. It would be indulging in sophistry
to maintain that the voting in the citizens assemblies
amounted to a substantial compliance with the
requirements prescribed in Section 1 of Article XV of the
1935 Constitution.
It is further contended by the Solicitor General, that
even if the Constitution proposed by the 1971
Constitutional Convention was not ratified in accordance
with the provisions of Section 1 of Article XV of the 1935
Constitution, the fact is that after the President of the
Philippines had issued Proclamation No. 1102 declaring
that the said proposed Constitution “has been ratified by
overwhelming majority of all the votes cast by the members
of all the barangays (citizens assemblies) throughout the
Philippines and had thereby come into effect” the people
have accepted the new Constitution. What appears to me,
however, is that practically it is only the officials and
employees under the executive department of the
Government who have been performing their duties
apparently in observance of the provisions of the new
Constitution. It could not be otherwise, because the
President of the Philippines, who is the head of the
executive department, had proclaimed that the new
Constitution had come into effect, and his office had taken
the steps to implement the provisions of the new
Constitution. True it is, that some 92 members of the
306

House of Representatives and 15 members of the Senate, of

the Congress of the Philippines had expressed their option
to serve in the interim National Assembly that is provided
for in Section 2 of Article XVII of the proposed
Constitution. It must be noted, however, that of the 15
senators who expressed their option to serve in the interim
National Assembly only one them took his oath of office;
and of the 92 members of the House of Representatives
who opted to serve in the interim National Assembly, only
22 took their oath of office. The fact that only one Senator
out of 24, and only 22 Representative out of 110, took their
oath of office, is an indication that only a small portion of
the members of Congress had manifested the acceptance of
the new Constitution. It is in the taking of the oath of office
where the affiant says that he swears to “support and
defend the Constitution” that the acceptance of the
Constitution is made manifest. I agree with counsel
petitioners in L-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
only ex abundante cautela, or by way of a precaution,
making sure, that in the event the new Constitution
becomes definitely effective and the interim National
Assembly convened, they can participate in legislative
work in the capacity as duly elected representatives of the
people, which otherwise they could not do if they did not
manifest their option to serve, and that option had to be
made within 30 day from January 17, 1973, the date when
Proclamation No. 110 was issued. Of course, if the proposed
Constitution does not become effective, they continue to be
members of Congress under the 1935 Constitution. Let it
be considered that the members of the House of
Representatives were elected in 1969 to serve a term which
will yet expire on December 31, 1973. Whereas, of the
Senators who opted to serve in the interim National
Assembly, the term of some of them will yet expire on
December 31, 1973, some on December 31, 1975, and the
rest on December 31, 1977. Let if be noted that 9 Senators
did not opt to serve in the interim National Assembly, and
18 members of the House of Representatives also did not
opt to serve in the interim National Assembly.
Neither can it be said that the people have accepted the
new Constitution. I cannot, in conscience, accept the
reported
307
VOL. 50, MARCH 31, 1973 307

affirmative votes in the citizens assemblies as a true and
correct expression by the people of their approval, or
acceptance, of the proposed Constitution. I have my serious
doubts regarding the freedom of the people to express their
views regarding the proposed Constitution during the
voting in the citizens assemblies, and I have also my
serious doubts regarding the truthfulness and accuracy of
the reports of the voting in the citizens assemblies. This
doubt has been engendered in my mind after a careful
examination and study of the records of these cases,
particularly with respect to the reports of the voting in the
citizens assemblies. Perhaps, it may be said that the
people, or the inhabitants of this country, have acquiesced
to the new Constitution, in the sense that they have
continued to live peacefully and orderly under the
government that has been existing since January 17, 1973
when it was proclaimed that the new Constitution came
into effect. But what could the people do? In the same way
that the people have lived under martial law since
September 23, 1972, they also have to live under the
government as it now exists, and as it has existed since the
declaration of martial law on September 21, 1972,
regardless of what Constitution is operative — whether it
is the 1935 Constitution or the new Constitution. Indeed,
there is nothing that the people can do under the
circumstances actually prevailing in our country today —
circumstances, known to all, and which I do not consider
necessary to state in this opinion. I cannot agree, therefore,
with my worthy colleagues in the Court who hold the view
that the people have accepted the new Constitution, and
that because the people have accepted it, the new
Constitution should be considered as in force, regardless of
the fact that it was not ratified in accordance with the
provisions of Section 1 of Article XV of the 1935
Constitution.
It is my honest view that the Constitution proposed by
the 1971 Constitutional Convention has not come into
effect. I do not say, however, that the proposed
Constitution is invalid. To me, the validity of the proposed
Constitution is not in issue in the cases before Us. What
the petitioners assail is not the validity of the proposed
Constitution but the validity of Presidential Proclamation
No. 1102 which declares the proposed Constitution as
having been ratified and has come into effect. It being my
considered view that the ratification of
308

the proposed Constitution, as proclaimed in Proclamation

No. 1102, is not in accordance with the provisions of
Section 1 of Article XV, of the 1935 Constitution, I hold
that Proclamation No. 1102 is invalid and should not be
given force and effect. Their proposed Constitution,
therefore, should be considered as not yet validly ratified,
and so it is not in force. The proposed Constitution may
still be submitted to a plebiscite in conformity with Section
1 of Article XV of the 1935 Constitution. Incidentally, I
must state that the Constitution is still in force, and this
Court is still functioning under the 1935 Constitution.
I sincerely believe that the proposed Constitution may
still be submitted to the people in an election or plebiscite
held in accordance with the provisions of Section 1 of
Article XV of the 1935 Constitution. In fact, as we have
adverted to in this opinion, this was the mandate of
Congress when, on March 16, 1967, it passed Resolution
No. 2 calling a convention to propose amendments to the
1935 Constitution. The Court may take judicial notice of
the fact that the President of the Philippines has reassured
the nation that the government of our Republic since the
declaration of martial law is not a revolutionary
government, and that he has been acting all the way in
consonance with his powers under the Constitution. The
people of this Republic has reason to be happy because,
according to the President, we still have a constitutional
government. It being my view that the 1935 Constitution is
still in force, I believe Congress may still convene and pass
a law calling for an election at which the Constitution
proposed by the 1971 Constitutional Convention will be
submitted to the people their ratification or rejection. A
plebiscite called pursuant to Section 1 of Article XV of the
1935 Constitution is an assurance to our people that we
still have in our country the Rule of Law and that the
democratic system of government that has been implanted
in our country by the Americans, and which has become
part of our social and political fabric, is still a reality.
The views that I have expressed in this opinion are
inspired by a desire on my part to bring about stability in
democratic and constitutional system in our country. I feel
that if this Court would give its imprimatur to the
ratification of the proposed Constitution, as announced in
Proclamation
309
VOL. 50, MARCH 31, 1973 309

No. 1102, it being very clear that the provisions of Section 1

of Article XV of the 1935 Constitution had not been
complied with, We will be opening the gates for a similar
disregard of the Constitution in the future. What I mean is
that if this Court now declares that a new Constitution is
now in force because the members of the citizens
assemblies had approved the said new Constitution,
although that approval was not in accordance with the
procedure and the requirements prescribed in the 1935
Constitution, it can happen again in some future time that
some amendments to the Constitution may be adopted,
even in a manner contrary to the existing Constitution and
the law, and then said proposed amendment is submitted
to the people in any manner and what will matter is that a
basis is claimed that there was approval by the people.
There will not be stability in our constitutional system, and
necessarily no stability in our government. As a member of
this Court I only wish to contribute my humble efforts to
prevent the happening of such a situation in the future.
It appearing to me that the announced ratification of the
proposed Constitution through the voting in the citizens
assemblies is a clear violation of the 1935 Constitution,
what I say in this opinion is simply an endeavor on my part
to be true to my oath of office to defend and support the
1935 Constitution. I am inspired by what the great jurist
and statesman, Jose P. Laurel, said:
“Let our judges be as it were the vestal keepers of the purity

and sanctity of our Constitution, and the protection and
vindication of popular rights will be safe and secure in their
reverential guardianship.”
I only wish to help prevent, if I can, democracy and the

liberties of our people from vanishing in our land, because,
as Justice George Sutherland of the U. S. Supreme Court
said:
“(t)he saddest epitaph which can be carved in memory of a

vanished liberty is that it was lost because its possessors failed to
stretch forth a saving hand while yet there was time.”
310


I concur fully with the personal views expressed by the
Chief Justice in the opinion that he has written in these
cases. Along with him, I vote to deny the motion to dismiss
and give due course to the petitions in these cases.
FERNANDO, J., dissenting:
No question more momentous, none impressed with
such transcendental significance is likely to confront this
Court in the near or distant future as that posed by these
petitions. For while the specific substantive issue is the
validity of Presidential Proclamation No. 1102, an adverse
judgment may be fraught with consequences that, to say
the least, are far-reaching in its implications. As stressed
by respondents, “what petitioners really seek to invalidate
is the new Constitution.”1 Strict accuracy would of course
qualify such statement that what is in dispute, as noted in
the opinion of the Chief Justice, goes only as far as the
validity of its ratification. It could very well be though that
the ultimate outcome is not confined within such limit, and
this is not to deny that under its aegis, there have been
marked gains in the social and economic sphere, but given
the premise of continuity in a regime under a fundamental
law, which itself explicitly recognizes the need for change
and the process for bringing it about,2 it seems to me that
the more appropriate course is this Court to give heed to
the plea of petitioners that the most serious attention be
paid to their submission that the challenged executive act
fails to meet the test of constitutionality. Under the
circumstances, with regret and with due respect for the
opinion of my brethren, I must perforce dissent. It would
follow therefore that the legal
_______________
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.
311
VOL. 50, MARCH 31, 1973 311

position taken by the Chief Justice as set forth with his

usual lucidity and thoroughness has, on the whole, my
concurrence, subject, of course, to reservations insofar as it
contains views and nuances to which I have in the past
expressed doubts. Nonetheless, I feel that a brief
expression of the reasons for the stand I take would not be
amiss.In coping with its responsibility arising from the
function of judicial review, this Court is not expected to be
an oracle given to utterances of eternal verities, but
certainly it is more than just a keen but passive observer of
the contemporary scene. It is, by virtue of its role under the
separation of powers concept, involved not necessarily as a
participant in the formation of government policy, but as
an arbiter of its legality. Even then, there is realism in
what Lerner did say about the American Supreme Court as
“the focal point of a set of dynamic forces which [could play]
havoc with the landmarks of the American state and
determine the power configuration of the day.”3 That is
why there is this caveat. In the United States as here, the
exercise of the power of judicial review is conditioned on
the necessity that the decision of a case or controversy
before it so requires. To repeat, the Justices of the highest
tribunal are not, as Justice Frankfurter made clear,
“architects of policy. They can nullify the policy of others,
they are incapable of fashioning their own solutions for
social problems.”4 Nonetheless, as was stressed by
Professors Black5 and Murphy,6 a Supreme Court by the
conclusion it reaches and the decision it renders does not
merely check the coordinate branches, but also by its
approval stamps with legitimacy the action taken. Thus in
affirming constitutional supremacy, the political
departments could seek the aid of the judiciary. For
_______________
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).
312

the assent it gives to what has been done conduces to its

support in a regime where the rule of law holds sway. In
discharging such a role, this Court must necessarily take in
account not only what the exigent needs of the present
demand but what may lie ahead in the unexplored and
unknown vistas of the future. It must guard against the
pitfall of lack of understanding of the dominant forces at
work to seek a better life for all, especially those suffering
from the pangs of poverty and disease, by a blind
determination to adhere to the status quo. It would be
tragic, and a clear case of its being recreant to its trust, if
the suspicion can with reason be entertained that its
approach amounts merely to a militant vigilantism that is
violently opposed to any form of social change. It follows
then that it does not suffice that recourse be had only to
what passes for scholarship in the law that could be
marred by inapplicable erudition and narrow legalism.
Even with due recognition, such factors, however, I cannot,
for reasons to be set more lengthily and in the light of the
opinion of the Chief Justice, reach the same result as the
majority of my brethren. For, in the last analysis, it is my
firm conviction that the institution of judicial review
speaks too clearly for the point to be missed that official
action, even with due allowance made for the good faith
that invariably inspires the step taken, has to face the
gauntlet of a court suit whenever there is a proper case
with the appropriate parties.
1. Respondents are acting in the soundest constitutional
tradition when, at the outset, they would seek a dismissal
of these petitions. For them, the question raised is political
and thus beyond the jurisdiction of this Court. Such an
approach cannot be indicted for unorthodoxy. It is implicit
in the concept of the rule of law that rights belong to the
people and the government possesses powers only.
Essentially then, unless such an authority may either be
predicated on express or implied grant in the Constitution
or the statutes, an exercise thereof cannot survive an
inquiry as to its validity. Respondents through Solicitor-
General Mendoza would deny our competence to proceed
further. It is their view, vigorously pressed and plausibly
asserted, that since what is involved is not merely the
effectivity of an amendment but the actual coming into
effect of a new constitution, the matter is not justiciable.
The immediate reaction is that such a contention is
313
VOL. 50, MARCH 31, 1973 313

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 Tolentino9 and Planas10 cases speak
unequivocally to that effect. Nor is it a valid objection to
this conclusion that what was involved in those cases was
the legality of the submission and not ratification, for from
the very language of the controlling article, the two vital
steps are proposal and ratification, which as pointed out
in Dillon v. Gloss,11 “cannot be treated as unrelated acts,
but as succeeding steps in a single endeavor.”12 Once an
aspect thereof is viewed as judicial, there would be no
justification for considering the rest as devoid of that
character. It would be for me then an indefensible retreat,
deriving no justification from circumstances of weight and
gravity, if this Court were to accede to what is sought by
respondents and rule that the question before us is
political.
On this point, it may not be inappropriate to refer to a
separate opinion of mine in Lansang v. Garcia.13 Thus:
“The term has been made applicable to controversies
clearly non-judicial and therefore beyond its jurisdiction or
to an issue involved in a case appropriately subject to its
cognizance, as to
_______________
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.
314

which there has been a prior legislative or executive

determination to which deference must be paid. It has
likewise been employed loosely to characterize a suit where
the party proceeded against is the President or Congress,
or any branch thereof. If to be delimited with accuracy,
“political questions” should refer to such as would under
the Constitution be decided by the people in their sovereign
capacity or in regard to full discretionary authority is
vested either in the President or Congress. It is thus
beyond the competence of the judiciary to pass upon.
Unless clearly falling within the formulation, the decision
reached by the political branches whether in the form of a
congressional act or an executive order could be tested in
court. Where private rights are affected, the judiciary has
no choice but to look into its validity. It is not to be lost
sight of that such a power comes into play if there be an
appropriate proceeding that may be filed only after each
coordinate branch has acted. Even when the Presidency or
Congress possesses plenary powers, its improvident
exercise or the abuse thereof, if shown, may give rise to a
justiciable controversy. For the constitutional grant of
authority is usually unrestricted. There are limits to what
may be done and how it is to be accomplished. Necessarily
then, the courts in the proper exercise of judicial review
could inquire into the question of whether or not either of
the two coordinate branches has adhered to what is laid
down by the Constitution. The question thus posed is
judicial rather than political.”14 The view entertained by
Professor Dodd is not too dissimilar. For him such a term
“is employed to designate certain types of functions
committed to the political organs of government (the
legislative and executive departments, or either of them)
and not subject to judicial investigation.”15 After a
thorough study of American judicial decisions, both federal
and state, he could conclude: “The field of judicial non-
enforceability is important, but is not large when
contrasted with the whole body of written constitutional
texts. The exceptions from judicial enforceability fall
primarily within the field of public or governmental
interests.”16 Nor was Professor Weston’s formulation any
_______________
14 Ibid., 504-505.
15 Dodd, Judicially Nonenforceable Provisions of Constitutions, in I
Selected Essays on Constitutional Law 355, 387 (1938).
16 Ibid., 395.
315
VOL. 50, MARCH 31, 1973 315

different. As was expressed by him: “Judicial questions, in

what may be thought the more useful sense, are those
which the sovereign has set to be decided in the courts.
Political questions, similarly, are those which the sovereign
has entrusted to the so-called political departments of
government or has reserved to be settled by its own extra-
governmental action.”17 What appears undeniable then
both from the standpoint of Philippine as well as American
decisions is the care and circumspection required before the
conclusion is warranted that the matter at issue is beyond
judicial cognizance, a political question being raised.
2. The submission of respondents on this subject of
political question, admittedly one of complexity and
importance, deserves to be pursued further. They would
derive much aid and comfort from the writings of both
Professor Bickel18 of Yale and Professor Freund19 of
Harvard, both of whom in turn are unabashed admirers of
Justice Brandeis. Whatever be the merit inherent in their
lack of enthusiasm for a more active and positive role that
must be played by the United States Supreme Court in
constitutional litigation, it must be judged in the light of
our own history. It cannot be denied that from the well
nigh four decades of constitutionalism in the Philippines,
even discounting an almost similar period of time dating
from the inception of American sovereignty, there has
sprung a tradition of what has been aptly termed as
judicial activism. Such an approach could be traced to the
valedictory address before the 1935 Constitutional
Convention of Claro M. Recto. He spoke of the trust
reposed in the judiciary in these words: “It is one of the
paradoxes of democracy that the people at times place more
confidence in instrumentalities of the State other than
those directly chosen by them for the exercise of their
sovereignty.”20 It would thus appear that even then this
Court was expected not to assume an attitude of timidity
and hesitancy when a constitutional question is posed.
There was
_______________
17 Weston, Political Questions, I Selected Essays an 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.
316

the assumption of course that it would face up to such a

task, without regard to political considerations and with no
thought except that of discharging its trust. Witness these
words Justice Laurel in an early landmark case, People v.
Vera,21 decided in 1937: “If it is ever necessary for us to
make vehement affirmance during this formative period of
political history, it is that we are independent of the
Executive no less than of the Legislative department of our
government — independent in the performance of our
functions, undeterred by any consideration, free from
politics, indifferent to popularity, and unafraid of criticism
in the accomplishment of our sworn duty as we see it and
as we understand it.”22 The hope of course was that such
assertion of independence impartiality was not mere
rhetoric. That is a matter more appropriately left to others
to determine. It suffices to stake that what elicits approval
on the part of our people of a judiciary ever alert to inquire
into alleged breaches of the fundamental law is the
realization that to do so is merely to do what is expected of
it and that thereby there is no invasion of spheres
appropriately belonging to the political branches. For it
needs to be kept in kind always that it can act only when
there is a suit with proper parties before it, wherein rights
appropriate for judicial enforcement are sought to be
vindicated. Then, too, it does not approach constitutional
questions with dogmatism or apodictic certainty nor view
them from the shining cliffs of perfection. This is not to say
though that it is satisfied with an empiricism untroubled
by the search for jural consistency and rational coherence.
A balance has to be struck. So juridical realism requires.
Once allowance made that for all its care and
circumspection this Court manned by human beings
fettered by fallibility, nonetheless earnestly and sincerely
striving to do right, the public acceptance of its vigorous
pursuit of the task of assuring that the Constitution be
obeyed is easy to understand. It has not in the past shirked
its responsibility to ascertain whether there has been
compliance with and fidelity to constitutional
requirements. Such is the teaching of a host of cases from
_______________
21 65 Phil. 56 (1937).
22 Ibid., 96.
317
VOL. 50, MARCH 31, 1973 317

Angara v. Electoral Commission23 to Planas v. Commission

on Elections.24 It should continue to exercise its
jurisdiction, even in the face of a plausible but not
sufficiently persuasive insistence that the matter before it
is political.
Nor am I persuaded that the reading of the current drift
in American legal scholarship by the Solicitor-General and
his equally able associates presents the whole picture. On
the question of judicial review, it is not a case of black and
white; there are shaded areas. It goes too far, in my view, if
the perspective is one of dissatisfaction, with its overtones
of distrust. This expression of disapproval has not escaped
Dean Rostow of Yale, who began one of his most celebrated
legal essays. The Democratic Character of Judicial Review,
thus: “A theme of uneasiness, and even of guilt, colors the
literature about judicial review. Many of those who have
talked, lectured, and written about the Constitution have
been troubled by a sense that judicial review is
undemocratic.”25 He went on to state: “Judicial review, they
have urged, is an undemocratic shoot on an otherwise
respectable tree. It should be cut off, or at least kept
pruned and inconspicuous.”26 His view was precisely the
opposite. Thus: “The power of constitutional review, to be
exercised by some part of the government, is implicit in the
conception of a written constitution delegating limited
powers. A written constitution would promote discord
rather than order in society if there were no accepted
authority to construe it, at the least in case of conflicting
action by different branches of government or of
constitutionally unauthorized governmental action against
individuals. The limitation and separation of powers, if
they are to survive, require a procedure for independent
mediation and construction to reconcile the inevitable
disputes over the boundaries of constitutional power which
arise in the process of government.”27 More than that, he
took pains to emphasize:
_______________
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.
318

“Whether another method of enforcing the Constitution

could have been devised, the short answer is that no such
method developed. The argument over the constitutionality
of judicial review has long since been settled by history.
The power and duty of the Supreme Court to declare
statutes or executive action unconstitutional in appropriate
cases is part of the living Constitution. ‘The course of
constitutional history,’ Mr. Justice Frankfurter recently
remarked, ‘has cast responsibilities upon the Supreme
Court which it would be “stultification” for it to evade.’ ”28
Nor is it only Dean Rostow who could point Frankfurter,
reputed to belong to the same school of thought opposed to
judicial activism, if not its leading advocate during his long
stay in the United States Supreme Court, as one fully
cognizant of the stigma that attaches to a tribunal which
neglects to meet the demands of judicial review. There is a
statement of similar importance from Professor Mason:
“In Stein v. New YorkFrankfurter remarked, somewhat
self-consciously perhaps, that the ‘duty of deference cannot
be allowed imperceptibly to slide into abdication.’ ”29
Professor Konefsky, like Dean Rostow, could not accept
characterization of judicial review as undemocratic. Thus
his study of Holmes and Brandeis, the following appears:
“When it is said that judicial review is an undemocratic
feature of our political system, it ought also to be
remembered that architects of that system did not equate
constitutional government with unbridled majority rule.
Out of their concern for political stability and security for
private rights, * * *, they designed a structure whose
keystone was to consist of barriers to the untrammeled
exercise of power by any group. They perceived no
contradiction between effective government and
constitutional checks. To James Madison, who may
legitimately be regarded as the philosopher of the
Constitution, the scheme of mutual restraints was the best
answer to what he viewed as the chief problem in erecting
a system of free representative government: ‘In framing a
government which is to be administered by men over men,
the great difficulty lies in
_______________
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).
319
VOL. 50, MARCH 31, 1973 319

this: you must first enable the government to control the

governed; and in the next place oblige it to control itself.’ ”30
There is thus an inevitability to the flowering of judicial
review. Could it be that the tone of discontent apparent in
the writings of eminent authorities on the subject evince at
the most fears that the American Supreme Court might
overstep the bounds allotted to the judiciary? It cannot be a
denial of the fitness of such competence being vested in
judges and of their being called upon to fulfill such a trust
whenever appropriate to the decision of a case before them.
That is why it has been correctly maintained that
notwithstanding the absence of any explicit provision in the
fundamental law of the United States Constitution, that
distinguished American constitutional historian, Professor
Corwin, could rightfully state that judicial review “is
simply incidental to the power of courts to interpret the
law, of which the Constitution is part, in connection with
the decision of cases.”31 This is not to deny that there are
those who would place the blame or the credit, depending
upon one’s predilection, on Marshall’s epochal opinion in
Marbury v. Madison.32 Curtis belonged to that persuasion.
As he put it: “The problem was given no answer by the
Constitution. A hole was left where the Court might drive
in the peg of judicial supremacy, if it could. And that is
what John Marshall did.”33 At any rate there was
something in the soil of American juristic thought resulting
in this tree of judicial power so precariously planted by
Marshall striking deep roots and showing wonderful
vitality and hardiness. It now dominates the American
legal scene. Through it, Chief Justice Hughes, before
occupying that exalted position, could state in a lecture:
“We are under a Constitution, but the Constitution is what
the judges say it is * * *.”34 The above statement is more
than just an aphorism that lends itself to inclusion in
judicial anthologies or bar association speeches. It could
and did provoke from Justice Jackson, an exponent of the
judicial restraint school of
_______________
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).
320

thought, this meaningful query: “The Constitution

nowhere provides that it shall be what the judges say it is.
How, did it come about that the statement not only could
be but could become current as the most understandable
comprehensive summary of American Constitutional
law?”35 It is no wonder that Professor Haines could pithily
and succinctly sum up the place of the highest American
tribunal in the scheme of things in this wise: “The Supreme
Court of the United States has come to be regarded as the
unique feature of the American governmental system.”36
Let me not be misunderstood. There is here no attempt to
close one’s eyes to a discernible tendency on the part of
some distinguished faculty minds to look askance at what
for them may be inadvisable extension of judicial authority.
For such indeed is the case as reflected in two leading cases
of recent vintage, Baker v. Carr,37 decided in 1962
and Powell v. MacCormack,38 in 1969, both noted in the
opinion of the Chief Justice. The former disregarded the
warning of Justice Frankfurter in Colegrove v. Green39
about the American Supreme Court declining jurisdiction
on the question of apportionment as to do so would cut very
deep into the very being of Congress.”40 For him, the
judiciary “ought not to enter this political thicket.” Baker
has since then been followed; it has spawned a host of
cases.41 Powell, on the question of the power of a legislative
body to exclude from its ranks a person whose
qualifications
_______________
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. (1964);
Wright v. Rockefeller, 376 US 52, 11 L ed 2d 512, 84 S Ct (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. (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, 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
321
VOL. 50, MARCH 31, 1973 321

are uncontested, for many the very staple of what is

essentially political, certainly goes even further than the
authoritative Philippine decision of Vera v. Avelino,42 It
does look then that even in the United States, the plea for
judicial self-restraint, even if given voice by those
competent in the field of constitutional law, has fallen on
deaf ears. There is in the comments of respondents an
excerpt from Professor Freund quoting from one of his
essays appearing in a volume published in 1968. It is not
without interest to note that in another paper, also
included therein, he was less than assertive about the
necessity for 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.”43 As for Professor Bickel, it has been said that as
counsel for the New York Times in the famous Vietnam
papers case,44 he was less than insistent on the American
Supreme Court exercising judicial 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 fitly characterized as the booming guns of
rhetoric, coming from both directions, have been muted. Of
late, scholarly disputations have been centered on the
standards that should govern the exercise of the power of
judicial review. In his celebrated Holmes lecture in 1959 at
the Harvard Law School, Professor Wechsler advocated as
basis for decision what he termed neutral principles of
constitutional law.45 It has brought forth a plethora of law
_______________
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.
322

review articles, the reaction ranging from guarded

conformity to caustic criticism.46 There was, to be sure, no
clear call to a court in effect abandoning the responsibility
incumbent on it to keep governmental agencies within
constitutional channels. The matter has been put in
temperate terms by Professor Frank thus: “When
allowance has been made for all factors, it nevertheless
seems to me that the doctrine of political questions ought to
be very sharply confined to where the functional reasons
justify it and that in a give involving its expansion there
should be careful consideration also of the social
considerations which may militate against it. The doctrine
has a certain specious charm because of its nice
intellectualism and because of the fine deference it permits
to expertise, to secret knowledge, and to the prerogatives of
others. It should not be allowed to grow as a merely
intellectual plant.”47
It is difficult for me at least, not to be swayed by
appraisal, coming from such impeccable sources of the
worth and significance of judicial review in the United
States. I cannot resist the conclusion then that the views
advanced on this subject by distinguished counsel for
petitioners, with
_______________
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 Reflections 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 art 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, 27U. 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 Domination and Judicial Integrity: A
Reply to Professor Wechsler, 108 U. Pa. L. Rev. 1 (1959).
47 Cahn, Supreme Court and Supreme Law, 40 (1954).
323
VOL. 50, MARCH 31, 1973 323

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
ratification. The crucial point that had to be met is whether
Proclamation No. 1102 manifests fidelity to the explicit
terms of Article XV. There is, of course, the view not
offensive to reason that a sense of the realities should
temper the rigidity of devotion to the strict letter of the text
to allow deference to its spirit to control. With due
recognition of its force in constitutional litigation,48 if my
reading of the events and the process that led to such
proclamation, so clearly set forth in the opinion of the Chief
Justice, is not inaccurate, then it cannot be confidently
asserted that there was such compliance. It would be to
rely on conjectural assumptions that did founder on the
rock of the undisputed facts. Any other conclusion would,
for me, require an interpretation that borders on the
strained. So it has to be if one does not lose sight of how the
article on amendments is phrased. A word, to paraphrase
Justice Holmes may not be a crystal, transparent and
unchanged, but it is not, to borrow from Learned Hand,
that eminent jurist, a rubber band either. It would be
unwarranted in my view then to assert that the
requirements of the 1935 Constitution have been met.
There are American decisions,49 and they are not
_______________
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, 2D 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
324

few in number, which require that there be obedience to

the literal terms of the applicable provision. It is
understandable why it should be thus. If the Constitution
is the supreme law, then its mandate must be fulfilled. No
evasion is tolerated. Submission to its commands can be
shown only if each and every word is given meaning rather
than ignored or disregarded. This is not to deny that a
recognition conclusive effect attached to the electorate
manifesting its will to vote affirmatively on the
amendments proposed poses an obstacle to the judiciary
being insistent on the utmost regularity. Briefly stated,
substantial compliance is enough. A great many American
State decisions may be cited in support of such a
doctrine.50
_______________
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 (1923); 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 So. 718 (1927); Duncan v. Record Pub. Co., 145
SC 196, 143 SE 31 (1928); Lane v. Lukens, 48 Idaho 517, 283 P. 532
(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); Palmer v. Dunn, 216 SC 558,
59 SE 158 (1950).
50 Cf. Wells v. Bain, 75 Pa. St. 39, 15 Am. Rep. 563 (1874); 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,
325
VOL. 50, MARCH 31, 1973 325


Even if the assumption be indulged in that Article XV is
not phrased in terms too clear to be misread, so that this
Court is called upon to give meaning and perspective to
what could be considered words of vague generality,
pregnant with uncertainty, still whatever obscurity it
possesses is illumined when the light of the previous
legislation is thrown on it. In the first Commonwealth
Act,51 submitting to the Filipino people for approval or
disapproval certain amendments to the original
_______________
39 So. 412 (1905); State v. Winnett, 78 Neb. 379, 110 NW 113 (1907);
Farrell v. Port of Columbia, 50 Or. 169, 93 P. 254 (1908); In re
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. 235, 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).
326

ordinance appended to the 1935 Constitution, it was

made that the election for such purpose was to “be
conducted in conformity with the provisions of the Election
Code insofar as the same may be applicable.”52 Then came
the statute,53 calling for the plebiscite on the three 1940
amendments providing for the plebiscite on the three 1930
amendments providing for a bicameral Congress or a
Senate and a House of Representatives to take the place of
a unicameral National Assembly,54 reducing the term of
the President to four years but allowing his re-election with
the limitation that he cannot serve more than eight
consecutive years,55 and creating an independent
Commission on Elections.56 Again, it was expressly
provided that the election “shall be conducted in conformity
with the provisions of the Election Code in so far as the
same may be applicable.”57 The approval of the present
parity amendment was by virtue of a Republic Act58 which
specifically made applicable the then Election Code.59
There is a similar provision in the legislation,60 which in
cotemplation of the 1971 Constitutional Convention, saw to
it that there be an increase in the membership of the House
of Representatives a maximum of one hundred eighty and
assured the eligibility of senators and representatives to
become members of such constituent body without
forfeiting their seats, as proposed amendments to be voted
on in the 1967 elections.61 That is the
_______________
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 fifty-seven, otherwise
known as the Election Code, and Commonwealth Numbered Six hundred
and fifty-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
327
VOL. 50, MARCH 31, 1973 327

consistent course of interpretation followed by the

legislative branch. It is most persuasive, if not controlling.
The restraints thus imposed would set limits to the
Presidential action taken, even on the assumption that
either as an agent of the Constitutional Convention or
under his martial law prerogatives, he was not devoid of
power to specify the mode of ratification. On two vital
points, who can vote and how they register their will,
Article XV had been given a definitive construction. That is
why I fail to see sufficient justification for this Court
affixing the imprimatur of its approval on the mode
employed for the ratification of the revised Constitution as
reflected in Proclamation No. 1102.4. Nor is the matter
before us solely to be determined by the failure to comply
with the requirements of Article XV. Independently of the
lack of validity of the ratification of the new Constitution, if
it be accepted by the people, in whom sovereignty resides
according to the Constitution,62 then this Court cannot
refuse to yield assent to such a political decision of the
utmost gravity, conclusive in its effect. Such a fundamental
principle is meaningless if it does not imply, to follow
Laski, that the nation as a whole constitutes the “single
center of ultimate reference,” necessarily the possessor of
that “power that is able to resolve disputes by saying the
last word.”63 If the origins of the democratic polity
enshrined in the 1935 Constitution with the declaration
that the Philippines is a republican state could be traced
back to Athens and to Rome, it is no doubt true, as McIver
pointed out, that only with the recognition of the nation as
the separate political unit in public law is there the
juridical recognition of the people composing it “as the
source of political authority.”64 From them, as Corwin
_______________
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. Sovereignty 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).
328

did stress, emanate “the highest possible embodiment of

human will,”65 which is supreme and must be obeyed. To
avoid any confusion and in the interest of clarity, it should
be expressed in the manner ordained by law. Even if such
is not the case, however, once it is manifested, it is to be
accepted as final and authoritative. The government which
is merely an agency to register its commands has no choice
but to submit. Its officials must act accordingly. No agency
is exempt such a duty, not even this Court. In that sense,
the lack of regularity in the method employed to register its
wishes is fatal in its consequences. Once the fact of
acceptance by people of a new fundamental law is made
evident, the judiciary is left with no choice but to accord it
recognition. The obligation to render it obeisance falls on
the courts as well.
There are American State decisions that enunciate such
a doctrine. While certainly not controlling, they are not
entirely bereft of persuasive significance. In Miller v.
Johnson,66 decided in 1892, it was set forth in the opinion
of Chief Justice Holt that on May 3, 1890, an act was
passed in Kentucky, providing for the calling of a
convention for the purpose of framing a new constitution
and the election of delegates. It provided that before any
form of constitution made by them should become
operative, it should be submitted to the vote of the state
and ratified by a majority of those voting. The constitution
then in force authorized the legislature, the preliminary
steps having been taken, to call a convention “for the
purpose of readopting, amending, or changing” it contained
no provision giving the legislature the power to require a
submission of its work to a vote of the people. The
convention met in September, 1890. By April, 1891, it
completed a draft of a constitution, submitted it to a
popular vote, and then adjourned until September
following. When the convention reassembled, the delegates
made numerous changes in instrument. As thus amended,
it was promulgated by the convention of September 28,
1891, as the new constitution. An
_______________
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.
329
VOL. 50, MARCH 31, 1973 329

action was brought to challenge its validity. It failed in

the lower court. In affirming such judgment dismissing the
action, Chief Justice Holt stated: “If a set of men, not
selected by the people according to the forms of law, were to
formulate an instrument and declare it the constitution, it
would undoubtedly be the duty of the courts to declare its
work a nullity. This would be revolution, and this the
courts of the existing government must resist until they are
overturned by power, and a new government established.
The convention, however, was the offspring of law. The
instrument which we are asked to declare invalid as a
constitution has been made and promulgated according to
the forms of law. It is a matter of current history that both
the executive and legislative branches of the government
have recognized its validity as a constitution, and are now
daily doing so. * * * While the judiciary should protect the
rights of the people with great care and jealousy, because
this is its duty, and also because; in times of great popular
excitement, it is usually their last resort, yet it should at
the same time be careful not to overstep the proper bounds
of its power, as being perhaps equally dangerous; and
especially where such momentous results might follow as
would be likely in this instance, if the power of the
judiciary permitted, and its duty requires, the overthrow of
the work of the convention.”67 In Taylor v.
Commonwealth,68 a 1903 decision, it was contended that
the Virginia Constitution reclaimed in 1902 is invalid as it
was ordained and promulgated by the convention without
being submitted for ratification or rejection by the people.
The Court rejected such a view. As stated in the opinion of
Justice Harrison: “The Constitution of 1902 was ordained
and proclaimed by a convention duly called by direct vote of
the people of the state to revise and amend the
Constitution of 1869. The result of the work of the
convention has been recognized, accepted, and acted upon
as the only valid Constitution of the state by the Governor
in swearing fidelity to it and proclaiming it, as directed
thereby; by the Legislature in its formal official act
adopting a joint resolution, July 15, 1902, recognizing the
Constitution ordained by the convention which assembled
in the city of Richmond on the 12th day of June, 1901, as
the
_______________
67 Ibid., 523.
68 101 Va. 829, 44 SE 754.
330

Constitution of Virginia; by the individual oaths of

members to support it, and by enforcing its provisions; and
the people in their primary capacity by peacefully accepting
it and acquiescing in it, by registering as voters under it to
the extent of thousands throughout the state, and by
voting, under its provisions, at a general election for their
representatives in the Congress of the United States. The
Constitution having been thus acknowledged and accepted
by the office administering the government and by the
people of the state, and there being no government in
existence under the Constitution of 1869 opposing or
denying its validity, we have no difficulty in holding that
the Constitution in question, which went into effect at noon
on the 10th day of July, 1902, is the only rightful, valid,
and existing Constitution of this state, and that to it all the
citizens of Virginia owe their obedience and loyal
allegiance.”69
It cannot be plausibly asserted then that premises valid
in law are lacking for the claim that the revised
Constitution has been accepted by the Filipino people.
What is more, so it has been argued, it is not merely a case
of its being implied. Through the Citizens Assemblies,
there was a plebiscite with the result as indicated in
Proclamation No. 1102. From the standpoint of
respondents then, they could allege that there was more
than just mere acquiescence by the sovereign people. Its
will was thus expressed formally and unmistakably. It may
be added that there was nothing inherently objectionable in
the informal method followed in ascertaining its
preference. Nor is the fact that Filipinos of both sexes
above the age of fifteen were given the opportunity to vote
to be deplored. The greater the base of mass participation,
the more there is fealty to the democratic concept. It does
logically follow likewise that such circumstances being
conceded, then no justifiable question may be raised. This
Court is to respect what had thus received the people’s
sanction. That is not for me though whole of it. Further
scrutiny even then is not entirely foreclosed. There is still
an aspect that is judicial, an inquiry may be had as to
whether such indeed was the result. This is
_______________
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).
331
VOL. 50, MARCH 31, 1973 331

no more than what the courts do in election cases. There

are other factors to bear in mind. The fact that the
President so certified is well-nigh conclusive. There is in
addition the evidence flowing from the conditions of peace
and stability. There thus appears to be conformity to the
existing order of things. The daily course of events yields
such a conclusion. What is more, the officials under the
1935 Constitution, including practically all Representatives
and a majority of the Senators, have signified their assent
to it. The thought persists, however, that as yet sufficient
time has not elapsed to be really certain.
Nor is this all. There is for me an obstacle to the
petitions being dismissed for such ascertainment of popular
will did take place during a period of martial law. It would
have been different had there been that freedom of debate
with the least interference, thus allowing a free market of
ideas. If it were thus, it could be truly said that there was
no barrier to liberty of choice. It would be a clear-cut
decision either way. One could be certain as to the fact of
the acceptance of the new or of adherence to the old. This is
not to deny that votes are cast by individuals with their
personal concerns uppermost in mind, worried about their
immediate needs and captive to their existing moods. That
is inherent in any human institution, much more so in a
democratic polity. Nor is it open to any valid objection
because in the final analysis the state exists for the
individuals who in their collectivity compose it. Whatever
be their views, they are entitled to respect. It is difficult for
me, however, at this stage to feel secure in the conviction
that they did utilize the occasion afforded to give
expression to what was really in their hearts. This is not to
imply that such doubt could not be dispelled by evidence to
the contrary. If the petitions be dismissed however, then
such opportunity is forever lost.
5. With the foregoing legal principles in mind, I find
myself unable to join the ranks of my esteemed brethren
who vote for the dismissal of these petitions. I cannot yield
an affirmative response to the plea of respondents to
consider the matter closed, the proceedings terminated
once and for all. It is not an easy decision to reach. It has
occasioned deep thought and considerable soul-searching.
For there are countervailing
332

considerations that exert a compulsion not easy to resist. It

can be asserted with truth, especially in the field of social
and economic rights, that with the revised Constitution,
there is an auspicious beginning for further progress. Then
too it could resolve what appeared to be the deepening
contradictions of political life, reducing at times
governmental authority to near impotence and imparting a
sense of disillusionment in democratic processes. It is not
too much to say therefore that there had indeed been the
revision of a fundamental law to vitalize the very values
out of which democracy grows. It is one which has all the
earmarks of being responsive to the dominant needs of the
times. It represents an outlook cognizant of the tensions of
a turbulent era that is the present. That is why for some
what was done represented an act of courage and faith,
coupled with the hope that the solution arrived at is a
harbinger of a bright and rosy future.
It is such a comfort then that even if my appraisal of the
situation had commanded a majority, there is not, while
these lawsuits are being further considered, the least
interference, with the executive department. The President
in the discharge of all his functions is entitled to obedience.
He remains commander-in-chief with all the constitutional
powers it implies. Public officials can go about their
accustomed tasks in accordance with the revised
Constitution. They can pursue even the tenor of their ways.
They are free to act according to its tenets. That was so
these past few weeks, even petitions were filed. There was
not at any time any thought of any restraining order. So it
was before. That is how things are expected to remain even
if the motions to dismiss were not granted. It might be
asked though, suppose the petitions should prevail? What
then? Even so, the decision of this Court need not be
executory right away. Such a disposition of a case before
this Court is not novel. That was how it was done in the
Emergency Powers Act controversy.70 Once compliance is
had with the requirements of Article XV of the 1935
Constitution, to assure that the coming force of the revised
charter is free from any taint of infirmity, then all doubts
are set at rest.
_______________
70 Araneta v. Dinglasan, 84 Phil. 368 (1949).
333
VOL. 50, MARCH 31, 1973 333


For some, to so view the question before us is to be
caught in a web of unreality, to cherish illusions that
cannot stand the test of actuality. What is more, it may
give the impression of reliance on what may, for the
practical man of affairs, be no more than gossamer
distinctions and sterile refinements unrelated to events.
That may be so, but I find it impossible to transcend what
for me are the implications of traditional constitutionalism.
This is not to assert that an occupant of the bench is bound
to apply with undeviating rigidity doctrines which may
have served their day. He could at times even look upon
them as mere scribblings in the sands to be washed away
by the advancing tides of the present. The introduction of
novel concepts may be carried only so far though. As
Cardozo put the matter: “The judge, even when he is free,
is still not wholly free. He is not to innovate at pleasure. He
is not a knight-errant, roaming at will in pursuit of his own
ideal of beauty or of goodness. He is to draw his inspiration
from consecrated principles. He is not to yield to spasmodic
sentiment, to vague and unregulated benevolence. He is to
exercise a discretion informed by tradition, methodized by
analogy, disciplined by system, and subordinated to “the
primordial necessity of order in the social life.” Wide
enough in all conscience is the field of discretion that
remains.”71 Moreover what made it difficult for this Court
to apply settled principles, which for me have not lost their
validity, is traceable to the fact that the revised
Constitution was made to take effect immediately upon
ratification. If a period of time were allowed to elapse
precisely to enable the judicial power to be exercised, no
complication would have arisen. Likewise, had there been
only one or two amendments, no such problem would be
before us. That is why I do not see sufficient justification
for the orthodoxies of constitutional law not to operate.
Even with full realization then that the approach
pursued is not all that it ought to have been and the
process of reasoning not without its shortcomings, the basic
premises of a constitutional democracy, as I understand
them and as set forth in the preceding pages, compel me to
vote the way I did.
_______________
71 Cardozo, The Nature of the Judicial Process, 141 (1921).
334


TEEHANKEE, J., dissenting:
The masterly opinion of the Chief Justice wherein he
painstakingly deals with the momentous issues of the cases
at bar in all their complexity commands my concurrence.
I would herein make an exposition of the fundamental
reasons and considerations for my stand.
The unprecedented and precedent-setting issue
submitted by petitioners for the Court’s resolution is the
validity and constitutionality of Presidential Proclamation
No. 1102 issued on January 17, 1973, certifying and
proclaiming that the Constitution proposed by the 1971
Constitutional Convention “has been ratified by an
overwhelming majority of all the votes cast by the members
of all the Barangays (Citizens Assemblies) throughout the
Philippines, and has thereby come into effect.”
More specifically, the issue submitted is whether the
purported ratification of the proposed Constitution by
means of the Citizens Assemblies has substantially
complied with the mandate of Article XV of the existing
Constitution of 1935 that duly proposed amendments
thereto, in toto or parts thereof, “shall be valid as part of
this Constitution when approved by a majority of the votes
cast at an election at which the amendments
are submitted to the people for their ratification.”1
A necessary corollary issue is whether the purported
ratification of the proposed Constitution as signed on
November 30, 1972 by the 1971 Constitutional Convention
may be said also to have substantially complied with its
own mandate that “(T)his Constitution shall take
immediately upon its ratification by a majority of the votes
cast in 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.”2
Respondents contend that “(A)lthough apparently what
is
_______________
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.
335
VOL. 50, MARCH 31, 1973 335

sought to be annulled is Proclamation No. 1102, what

petitioners really seek to invalidate is the new
Constitution,” and their actions must be
dismissed, because:
— “the Court may not inquire into the validity of the procedure

for ratification” which is “political in character” and that “what is
sought to be invalidated is not an act of the President but of the
people;
— “(T)he fact of approval of the new Constitution by an
overwhelming majority of the votes cast 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. x x x
Alternatively, or contemporaneously, he did so as “agent” of the
Constitutional Convention”;
— “alleged defects, such as absence of secret voting,
enfranchisement of persons less than 21 years, non
supervision (by) the Comelec are matters not required by Article
XV of the 1935 Constitution”; (sic)
— “after ratification, whatever defects there might have been
in the procedure are overcome and mooted (and muted) by the fact
of ratification”; and
— “(A)ssuming finally that Article XV of the 1935 Constitution
was not strictly followed, the ratification of the new Constitution
must nonetheless be respected. For the procedure outlined in
Article XV was not intended to be exclusive of other procedures,
especially one which contemplates popular and direct
participation of the citizenry x x x.”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
_______________
3 All quotations from respondents’ memo of arguments dated March 2, 1973,
pp. 2-5; italics supplied.
336

Constitution has been ratified and has come into force.4

— The measure of the fact of ratification is Article XV of the
1935 Constitution. This has been consistently held by the Court in
the Gonzales5 and Tolentino6 cases.
— In the Tolentino case, this Court emphasized “that the
provisions of Section 1 of Article XV of the Constitution, dealing
with the procedure or manner of amending the fundamental law
are binding upon the Convention and the other departments of
the government. It must be added that ... they are no less binding
upon the people.”7
— In the same Tolentino case, this Court further proclaimed
that “as long as any amendment is formulated and submitted
under the aegis of the present Charter, any proposal for such
amendment which is not in conformity with the letter, spirit and
intent of the Charter for effecting amendments, cannot receive the
sanction of this Court.”8
— As continues to be held by a majority of this Court, proposed
amendments to the Constitution “should be ratified in only one
way, that is, in an election or plebiscite held in accordance with
law and participated in only by qualified and duly registered
voters”9 and under the supervision of the Commission on
Elections.10
— Hence, if the Court declares Proclamation 1102 null and
void because on its face, the purported ratification of the proposed
Constitution has not faithfully nor substantially observed nor
complied with the mandatory requirements of Article XV of the
(1935) Constitution, it would not be “invalidating” the proposed
new Constitution but would be simply declaring that the
announced fact of ratification thereof by means of the Citizens
Assemblies
_______________
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 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.
337
VOL. 50, MARCH 31, 1973 337

referendums does not pass the constitutional test and that the
proposed new Constitution has not constitutionally come into
existence.
— Since Proclamation 1102 is acknowledged by respondent to
be “plainly merely declaratory” of the disputed fact of ratification,
they cannot assume the very fact to be established and beg the
issue by citing the self-same declaration as proof of the purported
ratification therein declared.
What complicates the cases at bar is the fact that the

proposed 1972 Constitution was enforced as having
immediately taken effect upon the issuance on January 17,
1973 of Proclamation 1102 and the question of whether
“confusion and disorder in government affairs would (not)
result” from a judicial declaration of nullity of the
purported ratification is raised by the Solicitor-General on
behalf of respondents.
A comparable precedent of great crisis proportions is
found in the Emergency Powers cases,11 wherein the Court
in its Resolution of September 16, 1949 after judgment was
initially not obtained on August 26, 1949 for lack of the
required six (6) votes, finally declared in effect that the pre-
war emergency powers delegated by Congress to the
President, under Commonwealth Act 671 in pursuance of
Article VI, section 26 of the Constitution, had ceased and
became inoperative at the latest in May, 1946 when
Congress met in its first regular session on May 25, 1946.
Then Chief Justice Manuel V. Moran recited the great
interests and important rights that had arisen under
executive orders “issued in good faith and with the best of
intentions by three successive Presidents, and some of
them may have already produced extensive effects on the
life of the nation” — in the same manner as may have
arisen under the bona fide acts of the President now in the
honest belief that the 1972 Constitution had been validly
ratified by means of the Citizens
_______________
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.
338

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 be borne in mind that these executive orders had
been issued in good faith and with the best of intentions by
three successive Presidents, and some of them may have
already produced extensive effects in the life of the nation.
We have, for instance, Executive Order No. 73, issued on
November 12, 1945, appropriating the sum of P6,750,000
for public works; Executive Order No. 86, issued on
January 7, 1946, amending a previous order regarding the
organization of the Supreme Court; Executive Order No. 89,
issued on January 1, 1946, reorganizing Courts of First
Instance; Executive Order No. 184, issued on November 19,
1948, controlling rice and palay to combat hunger; and
other executive orders appropriating funds for other
purposes. The consequences of a blanket nullification of all
these executive orders will be unquestionably serious and
harmful. And I hold that before nullifying them, other
important circumstances should be inquired into, as for
instance, whether or not they have been ratified by
Congress expressly or impliedly, whether their purposes
have already been accomplished entirely or partially, and
in the last instance, to what extent; acquiescence of
litigants; de facto officers; acts and contracts of parties
acting in good faith; etc. It is my opinion that each
executive order must be viewed in the light of its peculiar
circumstances, and, if necessary and possible, nullifying it,
precautionary measures should be taken to avoid harm to
public interest and innocent parties.”12
Initially, then Chief Justice Moran voted with a majority
of the Court to grant the Araneta and Guerrero petitions
holding null and void the executive orders on rentals and
export control but to defer judgment on the Rodriguez and
Barredo petitions for judicial declarations of nullity of the
executive orders appropriating the 1949-1950 fiscal year
budget for the government and P6 million for the holding of
the 1949 national elections. After rehearsing, he further
voted to also declare null
_______________
12 Idem, at pp. 384-385; italics supplied.
339
VOL. 50, MARCH 31, 1973 339

and void the last two executive orders appropriating funds

for the 1949 budget and elections, completing the
“sufficient majority” of six against four dissenting justices
“to pronounce a valid judgment on that matter.”13
Then Chief Justice Moran, who penned the Court’s
majority resolution, explained his vote for annulment
despite the great difficulties and possible “harmful
consequences” in the following passage, which bears re-
reading:
“However, now that the holding of a special session of Congress

for the purpose of remedying the nullity of the executive orders in
question appears remote and uncertain, I am compelled to, and do
hereby, give my unqualified concurrence in the decision penned
by Mr. Justice Tuason declaring that these two executive orders
were issued without authority of law.
“While in voting for a temporary deferment of the judgment I
was moved by the belief that positive compliance with the
Constitution by the other branches of the Government, which is
our prime concern in all these cases, would be effected, and
indefinite deferment will produce the opposite result because it
would legitimize a prolonged or permanent evasion of our organic
law. Executive orders which are, in our opinion, repugnant to the
Constitution, would be given permanent life, opening the way or
practices which may undermine our constitutional structure.
“The harmful consequences which, as I envisioned in my
concurring opinion, would come to pass should the said executive
orders be immediately declared null and void are still real. They
have not disappeared by reason of the fact that a special session
of Congress is not now forthcoming. However, the remedy now lies
in the hands of the Chief Executive and of Congress, for the
Constitution vests in the former the power to call a special session
should the need for one arise, and in the latter, the power to pass
a valid appropriations act.
“That Congress may again fail to pass a valid appropriations
act is a remote possibility, for under the circumstances it fully
realizes its great responsibility of saving the nation from breaking
down; and furthermore, the President in the exercise of his
constitutional powers may, if he so desires, compel Congress to
remain in special
_______________
13 Idem, at p. 437.
340

session till it approves the legislative measures most needed by

the country.
“Democracy is on trial in the Philippines, and surely it will
emerge victorious as a permanent way of life in this country, if
each of the great branches of the Government, within its own
allocated sphere, complies with its own constitutional duty,
uncompromisingly and regardless of difficulties.
“Our Republic is still young, and the vital principles underlying
its organic structure should be maintained firm and strong, hard
as the best of steel, so as to insure its growth and development
along solid lines of a stable and vigorous democracy.”14
The late Justice Pedro Tuason who penned the initial

majority judgment (declaring null and void the rental and
export control executive orders) likewise observed that
“(T)he truth is that under our concept of constitutional
government, in times of extreme perils more than in
normal circumstances ‘the various branches, executive,
legislative, and judicial,’ given the ability to act, are called
upon ‘to perform the duties discharge the responsibilities
committed to respectively.’ ”15
It should be duly acknowledged that the Court’s task of
discharging its duty and responsibility has been
considerably lightened by the President’s public
manifestation of adherence to constitutional processes and
of working within the proper constitutional framework as
per his press conference of January 20,1973, wherein he
stated that “(T)he Supreme Court is the final arbiter of the
Constitution. It can and will probably determine the
validity of this Constitution. I did not want to talk about
this because actually there is a case pending before the
Supreme Court. But suffice it to say that I recognize the
power of the Supreme Court. With respect to appointments,
_______________
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 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.”
341
VOL. 50, MARCH 31, 1973 341

the matter falls under a general provision which authorizes

the Prime Minister to appoint additional members to the
Supreme Court. Until the matter of the new Constitution is
decided, I have no intention of utilizing that power.”16
Thus, it is that as in an analogous situation wherein the
state Supreme Court of Mississippi held that the questions
of whether the submission of the proposed constitutional
amendment of the State Constitution providing for an
elective, instead of an appointive, judiciary and whether
the proposition was in fact adopted, were justifiable and
not political questions, we may echo the words therein of
Chief Justice Whitfield that “(W)e do not seek a jurisdiction
not imposed upon us by the Constitution. We could not, if
we would, escape the exercise of that jurisdiction which the
Constitution has imposed upon us. In the particular
instance in which we are now acting, our duty to know
what the Constitution of the state is, and in accordance
with our oaths to support and maintain it in its integrity,
imposed on us a most difficult and embarrassing duty, one
which we have not sought, but one which, like all others,
must be discharged.”17
In confronting the issues at bar, then, with due regard
for my colleagues’ contrary views, we are faced with the
hard choice of maintaining a firm and strict — perhaps,
even rigid — stand that the Constitution is a “superior
paramount law, unchangeable by ordinary means” save in
the particular mode and manner prescribed therein by the
people, who, in Cooley’s words, so “tied up (not only) the
hands of their official agencies, but their own hands as
well”18 in the exercise of their sovereign will or a liberal
and flexible stand that would consider compliance with the
constitutional article on the amending process as merely
directory rather than mandatory.
The first choice of a strict stand, as applied to the cases
at bar, signifies that the Constitution may be amended in
toto or otherwise exclusively “by approval by a majority of
the votes
_______________
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.
342

cast an election at which the amendments are submitted to

the people for their ratification,”19 participated in only by
qualified and duly registered voters twenty-one years of age
or over20 and duly supervised by the Commission on
Elections,21 in accordance with the cited mandatory
constitutional requirements.
The alternative choice of a liberal stand would permit a
disregard of said requirements on the theory urged by
respondents that “the procedure outlined in Article XV was
not intended to be exclusive of other procedures especially
one which contemplates popular and direct participation of
the citizenry,”22 that the constitutional age and literacy
requirements and other statutory safeguards for
ascertaining the will of the majority of the people may
likewise be changed as “suggested, if not prescribed, by the
people (through the Citizens Assemblies) themselves,”23
and that the Comelec is constitutionally “mandated to
oversee ... elections (of public officers) andnot plebiscites.”24
To paraphrase U.S. Chief Justice John Marshall who
first declared in the historic 1803 case of Marbury vs.
Madison25 the U.S. Supreme Court’s power of judicial
review and to declare void laws repugnant to the
Constitution, there is no middle ground between these two
alternatives. As Marshall expounded it: “(T)he Constitution
is either a superior paramount law, unchangeable by
ordinary means, or it is on a level with ordinary legislative
acts, and, like other acts, alterable when the legislature
shall please to alter it. If the former part of the alternative
be true, then a legislative act, contrary to the Constitution,
is not law; if the latter part be true, then written
constitutions are absurd attempts on the part of a people,
to limit a power, in its own nature, illimitable.”
_______________
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).
343
VOL. 50, MARCH 31, 1973 343


As was to be restated by Justice Jose P. Laurel a century
and a third later in the 1936 landmark case of Angara vs.
Electoral Commission,26 “(T)he Constitution sets forth in no
uncertain language the restrictions and limitations upon
governmental powers and agencies. If these restrictions
and limitations are transcended it would be inconceivable if
the Constitution had not provided for a mechanism by
which to direct the course of government along
constitutional channels, for then the distribution of powers
would be mere verbiage, the bill of rights mere expressions
of sentiment, and the principles of good government mere
political apothegms. Certainly, the limitations of good
government and restrictions embodied in our Constitution
are real as they should be in any living Constitution.”
Justice Laurel pointed out that in contrast to the United
States Constitution, the Philippine Constitution as “a
definition of the powers of government” placed upon the
judiciary the great burden of “determining the nature,
scope and extent of such powers” and stressed that “when
the judiciary mediates to allocate constitutional
boundaries, it does not assert any superiority over the
other departments ... but only asserts the solemn and
sacred obligation entrusted to it by the Constitution to
determine conflicting claims of authority under the
Constitution and to establish for the parties in an actual
controversy the rights which the instrument secures and
guarantees to them.”
II
Marshall was to utter much later in the equally historic
1819 case of McCulloch vs. Maryland27 the “climactic
phrase,”28 ”we must never forget that it is a constitution we
are expounding,” — termed by Justice Frankfurter as “the
single most important utterance in the literature of
constitutional law — most important because most
comprehensive and
_______________
26 63 Phil. 134 (1936).
27 4 Wheaton 316 (1819).
28 Dean Pollak’s “The Constitution and the Supreme Court”, Vol. 1, p.
221.
344

comprehending.”29 This enduring concept to my mind

permeated to this Court’s exposition and rationale in the
hallmark case of Tolentino, wherein we rejected the
contentions on the Convention’s behalf “that the issue ... is
a political question and that the Convention being a
legislative body of the highest order is sovereign, and as
such, its acts impugned by petitioner are beyond the
control of Congress and the Courts.”30
This Court therein made its unequivocal choice of
strictly requiring faithful (which really includes
substantial) compliance with the mandatory requirements
of the amending process.
1. In denying reconsideration of our judgment of October
16, 1971 prohibiting the submittal in an advance election of
1971 Constitutional Convention’s Organic Resolution No. 1
proposing to amend Article V, section 1 of the Constitution
by lowering the voting age to 18 years (vice 21 years)30a
“without prejudice to other amendments that will be
proposed in the future ... on other portions of the amended
section,” this Court stated that “the constitutional
provision in question (as proposed) presents no doubt which
may be resolved in favor of respondents and intervenors.
We do not believe such doubt can exist only because it is
urged that the end sought to be achieved is to be desired.
Paraphrasing no less than the President of Constitutional
Convention of 1934, Claro M. Recto, let those who would
put aside, invoking grounds at best controversial, any
mandate of the fundamental law purportedly in order to
attain some laudable objective bear in mind that someday
somehow others with purportedly more laudable objectives
may take advantage of the precedent and continue the
_______________
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.
30a Con-Con Res. No. 1 proposing the urgent lowering of the voting age
to enfranchise the 18-year olds retained the “permissive” language of
section 1, Art. V. Thus, the proposed amendment read “Section 1.
Suffrage may be exercised by (male) citizens of the Philippines not
otherwise disqualified by law, who are (twenty one) EIGHTEEN years of
age or over and are able to read and write ...”
345
VOL. 50, MARCH 31, 1973 345

destruction of the Constitution, making those who laid

down the precedent of justifying deviations from the
requirements of the Constitution the victims of their own
folly.”31
2. This Court held in Tolentino that:
“x x x as to matters not related to its internal operation and the

performance of its assigned mission to propose amendments to the
Constitution, the Convention and its officers and members are all
subject to all the provisions of the existing Constitution. Now We
hold that even as to its latter task of proposing amendments to
the Constitution, it is subject to the provisions of Section 1 of
Article XV. This must be so, because it is plain to Us that the
framers of the Constitution took care that the process of
amending the same should not be undertaken with the same ease
and facility in changing an ordinary legislation. Constitution
making is the most valued power, second to none, of the people in
a constitutional democracy such as the one our founding fathers
have chosen for this nation, and which we of the succeeding
generations generally cherish. And because the Constitution
affects the lives, fortunes, future and every other conceivable aspect
of the lives of all the people within the country and those subject
to its sovereignty, every degree of care is taken in preparing and
drafting it. A constitution worthy of the people for deliberation
and study. It is obvious that correspondingly, any amendment of
the Constitution is of no less importance than the whole
Constitution itself, and perforce must be conceived and prepared
with as much care and deliberation. From the very nature of
things, the drafters of an original constitution, as already
observed earlier, operate without any limitations, restraints or
inhibitions save those that they may impose upon themselves.
This is not necessarily true of subsequent conventions called to
amend the original constitution. Generally, the framers of the
latter see to it that their handiwork is not lightly treated and as
easily mutilated or changed, not only for reasons purely personal
but more importantly, because written constitutions are supposed
to be designed so as to last for some time, if not for ages, or for, at
least, as long as they can be adopted to the needs and exigencies
of the people, hence, they must be insulated against precipitate
and hasty actions motivated by more or less passing political
moods or fancies. Thus, as a rule, the original constitutions carry
with them limitations and conditions, more or less stringent,
made so by the people themselves, in regard to the process of their
amendment. And when such limitations or conditions are so
incorporated in the original constitution, it does not
_______________
31 Resolution of Nov. 4, 1971, per Barredo, J. at p. 15.
346

lie in the delegates of any subsequent convention to claim that

they may ignore and disregard such conditions because they are
powerful and omnipotent as their original counterparts.”32
3. This Court in Tolentino likewise formally adopted the

doctrine of proper submission first advanced in Gonzales vs.
Comelec,33 thus:
"We are certain no one can deny that in order that a plebiscite
for the ratification of an amendment to the Constitution may be
validly held, it must provide the voter not only sufficient time but
ample basis for an intelligent appraisal of the nature of
amendment per se as well as its relation to the other parts of the
Constitution with which it has to form a harmonious whole. In the
context of the present state of things, where the Convention
hardly started considering the merits of hundreds, if not
thousands, proposals to amend the existing Constitution, to
present to people any single proposal or a few of them cannot
comply with this requirement. We are of the opinion that the
present Constitution does not contemplate in Section 1 of Article
XV a plebiscite or “election” wherein the people are in the dark as
to frame of reference they can base their judgment on. We reject
the rationalization that the present Constitution is a possible
frame of reference, for the simple reason that intervenors
themselves are stating the sole purpose of the proposed
amendment is to enable the eighteen year olds to take part in the
election for the ratification of the Constitution to be drafted by the
Convention. In brief, under the proposed plebiscite, there can be,
in the language of Justice Sanchez, speaking for the six members
of the Court in Gonzales, supra, ‘no proper submission.’ ”34
4. Four other members of the Court35 in a separate

concurrence in Tolentino, expressed their “essential
agreement” with Justice Sanchez’ separate opinion in
Gonzales on the need for “fair submission (and) intelligent
rejection” as “minimum requirements that must be met in
order that there can be a proper submission to the people of
a proposed constitutional amendment” thus:
_______________
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.
347
VOL. 50, MARCH 31, 1973 347

“x x x amendments must be fairly laid before the people for

their blessing or spurning. The people are not to be mere rubber
stamps. They are not to vote blindly. They must be afforded ample
opportunity to mull over the original provisions, compare them
with the proposed amendments, and try to reach a conclusion as
the dictates of their conscience suggest, free from the incubus of
extraneous or possibly insidious influences. We believe the word
“submitted” can only mean that the government, within its
maximum capabilities, should strain every effort to inform every
citizen of the provisions to be amended, and the proposed
amendments and the meaning, nature and effects thereof. By
this, we are not to be understood as saying that, if one citizen or
100 citizens or 1,000 citizens cannot be reached, then there is no
submission within the meaning of the word as intended by the
framers of the Constitution. What the Constitution in effect
directs is that the government, in submitting an amendment for
ratification, should put every instrumentality or agency within its
structural framework to enlighten the people, educate them with
respect to their act of ratification or rejection. For as we have
earlier stated, one thing is submission and another is ratification.
There must be fair submission, intelligent consent or rejection.”36
They stressed further the need for undivided attention,

sufficient information and full debate, conformably to the
intendment of Article XV, section 1 of the Constitution, in
this wise:
“A number of doubts or misgivings could conceivably and

logically assail the average voter. Why should the voting age be
lowered at all, in the first place? Why should the new voting age
be precisely 18 years, and not 19 or 20? And why not 17? Or even
16 or 15? Is the 18-year old as mature as the 21-year old, so that
there is no need of an educational qualification to entitle him to
vote? In this age of permissiveness and dissent, can the 18-year
old be relied upon to vote with judiciousness when the 21-year old,
in the past elections, has not performed so well? If the proposed
amendment is voted down by the people, will the Constitutional
Convention insist on the said amendment? Why is there an
unseemly haste on the part of the Constitutional Convention in
having this particular proposed amendment ratified at this
particular time? Do some of the members of the Convention have
future political plans which they want to begin to subserve by the
approval this year of this
_______________
36 Idem at pp. 1-2.
348

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

that the 18-year old should not also shoulder the moral and legal
responsibilities of the 21-year old? Will he be required to
compulsory military service under the colors? Will the contractual
consent be reduced to 18 years? If I vote against the amendment,
will I not be unfair to my own child who will be 18 years old, come
1973?
“The above are just samplings from here, there and everywhere
— from a domain (of searching questions) the bounds of which are
not immediately ascertainable. Surely, many more questions can
be added to the already long litany. And the answers cannot
except as the questions are debated fully, pondered upon
purposefully, and accorded undivided attention.
“Scanning the contemporary scene, we say that the people are
not, and by election time will not be, sufficiently informed of the
meaning, nature and effects of the proposed constitutional
amendment. They have not been afforded ample time to deliberate
thereon conscientiously. They have been and are effectively
distracted from a full and dispassionate consideration of the
merits and demerits of the proposed amendment by their
traditional pervasive involvement in local elections and politics.
They cannot thus weigh in tranquility the need for and the
wisdom proposed amendment.”37
5. This Court therein dismissed the plea of disregarding

mandatory requirements of the amending process “in favor
of allowing the sovereign people to express their decision on
the proposed amendments” as “anachronistic in the real
constitutionalism and repugnant to the essence of the rule
of law,” in the following terms:
“x x x The preamble of the Constitution says that the

Constitution has been ordained by the ‘Filipino people, imploring
the aid of Divine Providence.’ Section 1 of Article XV is nothing
than a part of the Constitution thus ordained by the people.
Hence, in construing said section, We must read it as if 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
ratification only in the manner herein provided.’ x x x Accordingly,
the real issue here cannot be whether or not the amending
process delineated
_______________
37 Idem at p. 3.
349
VOL. 50, MARCH 31, 1973 349

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 ratification or rejection conform with the mandate of the
people themselves in such regard, as expressed in, the
Constitution itself.”38
6. This Court, in not heeding the popular clamor, thus

stated its position: “(I)t would be tragic and contrary to the
plain compulsion of these perspectives, if the Court were to
allow itself in deciding this case to be carried astray by
considerations other than the imperatives of the rule of law
and of the applicable provisions of the Constitution.
Needless to say, in a larger measure than when it binds
other departments of the government or any other official
or entity, the Constitution imposes upon the Court the
sacred duty to give meaning and vigor to the Constitution,
by interpreting and construing its provisions in appropriate
cases with the proper parties and by striking down any act
violative thereof. Here, as in all other cases, We are
resolved to discharge that duty.”39
7. The Chief Justice, in his separate opinion in Tolentino
concurring with this Court’s denial of the motion for
reconsideration, succinctly restated this Court’s position on
the fundamentals, as follows:
— On the premature submission of a partial amendment

proposal, with a “temporary provisional or tentative character”: —
“x x x a partial amendment would deprive the voters of the
context which is usually necessary for them to make a reasonably
intelligent appraisal of the issue submitted for their ratification or
rejection. x x x Then, too, the submission to a plebiscite of a
partial amendment, without a definite 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
_______________
38Resolution 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.
350

unduly exaggerate the pros and cons of the partial amendment

proposed. In short, it is apt to breed false hopes and create wrong
impressions. As a consequence, it is bound to unduly strain the
people’s faith in the soundness and validity of democratic
processes and institutions.”
— On the plea to allow submission to the sovereign people of
the “fragmentary and incomplete” proposal, although inconsistent
with the letter and spirit of the Constitution: “The view, has, also,
advanced that the foregoing considerations are not decisive on the
issue before Us, inasmuch as 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 ratification
“in a plebiscite coincide with the local elections in November
1971,” and this particular issue will not be submitted to the
people. What is more, the Constitution does not permit its
submission to the people. The question sought to be settled in the
scheduled plebiscite is whether or not the people are in favor of
the reduction of the voting age.
— On a “political” rather than “legalistic” approach: “Is this
approach to the problem too “legalistic?” This term has possible
connotations. It may mean strict adherence to the law, which in
the case at bar is the Supreme Law of the land. On point, suffice it
to say that, in compliance with the specific man of such Supreme
Law, the members of the Supreme Court taken the requisite “oath
to support and defend the Constitution.” x x x Then, again, the
term “legalistic” may be used to suggest inversely that the
somewhat strained interpretation of the Constitution being urged
upon this Court be tolerated or, at least, overlooked, upon the
theory that the partial amendment on voting age is badly needed
and reflects the will of the people, specially the youth. This course
of action favors, in effect, adoption of apolitical approach,
inasmuch as the advisability of the amendment and an appraisal
of the people’s feeling thereon political matters. In fact, apart from
the obvious message of the mass media, and, at times, of the
pulpit, the Court has been literally bombarded with scores of
handwritten letters, almost all of which bear the penmanship and
the signature of girls, as well as letterhead of some sectarian
educational institutions, generally stating that the writer is 18
years of age and urging that she or he be allowed to vote. Thus,
the pressure of public opinion has brought to bear heavily upon
the Court for a reconsideration of its decision in the case at bar.
351
VOL. 50, MARCH 31, 1973 351


“As above stated, however, the wisdom of the amendment and
the popularity thereof are political questions beyond our province.
In fact, respondents and the intervenors originally maintained
that We have no jurisdiction to entertain the petition herein, upon
the ground that the issue therein raised is a political one. Aside
from the absence of authority to pass upon political question, it is
obviously improper and unwise for the bench to develop into such
questions owing to the danger of getting involved in politics, more
likely of a partisan nature, and, hence, of impairing the image
and the usefulness of courts of justice as objective and impartial
arbiters of justiciable controversies.
“Then, too, the suggested course of action, if adopted, would
constitute a grievous disservice to the people and the very
Convention itself. Indeed, the latter and the Constitution it is in
the process of drafting stand essentially for the Rule of Law.
However, as the Supreme Law of the land, a Constitution would
not be worthy of its name, and the Convention called upon to
draft it would be engaged in a futile undertaking, if we did not
exact faithful adherence to the fundamental tenets set forth in the
Constitution and compliance with its provisions were not
obligatory. If we, in effect, approved, consented to or even
overlooked a circumvention of said tenets and provisions, because
of the good intention with which Resolution No. 1 is animated, the
Court would thereby become the Judge of the good or bad
intentions of the Convention and thus be involved in a question
essentially political in nature.
“This is confirmed by the plea made in the motions for
reconsideration in favor of the exercise of judicial statesmanship
in deciding the present case. Indeed, “politics” is the word
commonly used to epitomize compromise, even with principles, for
the sake of political expediency or the advancement of the bid for
power of a given political party. Upon the other hand,
statesmanship is the expression usually availed of to refer to high
politics or politics on the highest level. In any event, politics,
political approach, political expediency and statesmanship are
generally associated, and often identified, with the dictum that
“the end justifies the means.” I earnestly hope that the
administration of justice in this country and the Supreme Court,
in particular, will adhere to or approve or indorse such dictum.”40
_______________
40 All quotations are from the Chief Justice’s concurring opinion
in Tolentino, pp. 4-7.
352


Tolentino, he pointed out that although “(M)ovants’
submittal that “(T)he primary purpose for the submission
of the proposed amendment lowering the voting age to the
plebiscite on November 8, 1971 is to enable the youth 18 to
20 years who comprise more than three (3) million of our
population to participate in the ratification of the new
Constitution in so far as “to allow young people who would
be governed by the Constitution to be given a say on what
kind of Constitution they will have” is a laudable end, x x x
those urging the vitality and importance of the proposed
constitutional amendment and its approval ahead of the
complete and final draft of the Constitution must seek a
valid solution to achieve it in a manner sanctioned by the
amendatory process ordained by our people in the present
Constitution”41 — so that there may be “submitted, not
piece-meal, but by way of complete and final amendments
as an integrated whole (integrated either with the
subsisting Constitution or with the new proposed
Constitution)...”
9. The universal validity of the vital constitutional
precepts and principles above-enunciated can hardly be
gainsaid. I fail to see the attempted distinction of
restricting their application to proposals for amendments of
particular provisions of the Constitution and not to 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 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.
_______________
41 Separate op. of J. Teehankee concurring in Res. of No. 4, 1971
in Tolentino, pp. 8, 9, 10.
353
VOL. 50, MARCH 31, 1973 353


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,
qualified literate voters twenty one years of age or over with
one year’s residence in the municipality where they have
registered.
The people, not as yet satisfied, further provided by
amendment duly approved in 1940 in accordance with
Article XV, for the creation of an independent Commission
on Elections with “exclusive charge” for the purpose of
“insuring free, orderly and honest elections” and
ascertaining the true will of the electorate — and more, as
ruled by this Court in Tolentino, in the case of proposed
constitutional amendments, insuring proper submission to
the electorate of such proposals.42
2. A Massachussets case43 with a constitutional system
and provisions analogous to ours, best defined the uses of
the term “people” as a body politic and “people” in the
political sense who are synonymous with the qualified
voters granted the right to vote by the existing
Constitution and who therefore are “the sole organs
through which the will of the body politic can be
expressed.”
It was pointed out therein that “(T)he word ‘people’ may
have somewhat varying significations dependent upon the
connection in which it is used. In some connections in the
_______________
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.
354

Constitution it is confined to citizens and means the same

as citizens. It excludes aliens. It includes men, women and
children. It comprehends not only the sane, competent,
law-abiding and educated, but also those who are wholly or
in part dependents and charges upon society by reason of
immaturity, mental or moral deficiency or lack of the
common essentials of education. All these persons are
secured fundamental guarantees of the Constitution in life,
liberty and property and the pursuit of happiness, except
as these may be limited for the protection of society.”
In the sense of “body politic (as) formed by voluntary
association of individuals” governed by a constitution and
common laws in a “social compact ... for the common good”
and in another sense of “people” in a “practical sense” for
“political purposes” it was therein fittingly stated that in
this sense, “people” comprises many who, by reason of want
of years, of capacity or of the educational requirements of
Article 20 of the amendments of the Constitution, can have
no voice in any government and who yet are entitled to all
the immunities and protection established by the
Constitution. ‘People’ in this aspect is coextensive with the
body politic. But it is obvious that ‘people’ cannot be used
with this broad meaning of political signification. The
‘people’ in this connection means that part of the entire
body of inhabitants who under the Constitution are
entrusted with the exercise of the sovereign power and the
conduct of government. The ‘people’ in the Constitution in a
practical sense means those who under the existing
Constitution possess the right to exercise the elective
franchise and who, while that instrument remains in force
unchanged, will be the sole organs through which the will
of the body politic can be expressed. ‘People’ for political
purposes must be considered synonymous with qualified
voters.’ ”
As was also ruled by the U.S. Supreme Court, “... While
the people are thus the source of political power, their
governments, national and state, have been limited by
constitutions, and they have themselves thereby set bounds
to their own power, as against the sudden impulse of mere
355
VOL. 50, MARCH 31, 1973 355

majorities.”44
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 ratification,” it seems
obvious as above-stated that “people” as therein used must
be considered synonymous with “qualified voters” as
enfranchised under Article V, section 1 of the Constitution
— since only “people” who are qualified voters can exercise
the right of suffrage and cast their votes.
3. Sound constitutional policy and the sheer necessity of
adequate safeguards as ordained by the Constitution and
implementing statutes to ascertain and record the will of
the people in free, orderly and honest elections supervised
by the Comelec make it imperative that there be strict
adherence to the constitutional requirements laid down for
the process of amending in toto or in part the supreme law
of the land.
Even at barrio level45 the Revised Barrio Charter fixes
certain safeguards for the holding of barrio plebiscites thus:
“SEC. 6. Plebiscite. — A plebiscite may be held in the
barrio when authorized by a majority vote of the members
present in the barrio assembly, there being a quorum, or
when called by at least four members of the barrio council:
Provided, however, That no plebiscite shall be held until
after thirty days from its approval by either body, and such
plebiscite has been given the widest publicity in the barrio,
stating the date, time and place thereof, the questions or
issues to be decided, action to be taken by the voters, and
such other information relevant to the holding of the
plebiscite.”46
As to voting at such barrio plebiscites, the Charter
further requires that “(A)ll duly registered barrio assembly
members qualified to vote may vote in the plebiscite. Voting
procedures
_______________
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 x x.” Rep. Act 3590, sec. 2.
46 Rep. Act 3590, sec. 6, par. 1.
356

may be made either in writing as in regular elections,

and/or declaration by the voters to the board of election
tellers.”47
The subjects of the barrio plebiscites are likewise
delimited thus: “A plebiscite may be called to decide on the
recall of any member of the barrio council. A plebiscite
shall be called to approve any budgetary, supplemental
appropriations or special tax ordinances” and the required
majority vote is specified: “(F)or taking action on any of the
above enumerated measures, majority vote of all the barrio
assembly members registered in the list of the barrio
secretary is necessary.”48
The qualifications for voters in such barrio plebiscites
and elections of barrio officials49 comply with the suffrage
qualifications of Article V, section 1 of the Constitution and
provide that “(S)EC. 10. Qualifications of Voters and
Candidates. — Every citizen of the Philippines, twenty one
years of age or over, able to read and write, who has been a
resident of the barrio during the six months immediately
preceding the election, duly registered in the list of voters by
the barrio secretary, who is not otherwise disqualified, may
vote or be a candidate in the barrio elections.”50
IV
1. Since it appears on the face of Proclamation 1102 that
the mandatory requirements under the above-cited
constitutional articles have not been complied with and
that no election or plebiscite for ratification as therein
provided as well as in section 16 of Article XVII of the
proposed Constitution itself51 has been called or held, there
cannot be said to have been a
_______________
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. x x.” Idem, sec. 8.
50 Idem, sec. 10, italics supplied. The same section further disqualifies
persons convicted by final 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.
357
VOL. 50, MARCH 31, 1973 357

valid ratification.
2. Petitioners raised serious questions as to the veracity
and genuineness of the reports or certificates of results
purportedly showing unaccountable discrepancies in seven
figures in just five provinces52 between the reports as
certified by the Department of Local Governments and the
reports as directly submitted by the provincial and city
executives, which latter reports respondents disclaimed
inter alia as not final and complete or as not signed;53
whether the reported votes of approval of the proposed
Constitution conditioned upon the non-convening of the
interim National Assembly provided in Article XVII,
section 1 thereof,54 may be considered as valid; the
allegedly huge and uniform votes reported; and many
others.
3. These questions only serve to justify and show the
basic validity of the universal principle governing written
constitutions that proposed amendments thereto or in
replacement thereof may be ratified only in the particular
mode or manner prescribed therein by the people. Under
Article XV, section 1 of our Constitution, amendments
thereto may be ratified only in the one way therein
provided, i.e. in an election or plebiscite held in accordance
with law and duly supervised by the Commission on
Elections, and which is participated in only by qualified
and duly registered voters. In this manner, the safeguards
provided by the election code generally assure the true
ascertainment of the results of the
_______________
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 five 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.”
358

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”55 under Resolution No. 5844
approved on November 22, 1973, and “as agent of the
Convention the President could devise other forms of
plebiscite to determine the will of the majority vis-a-vis the
ratification of the proposed Constitution.”56
The minutes of November 22, 1972, of the Convention,
however, do not at all support this contention. On the
contrary, the said minutes fully show that the Convention’s
proposal and “agency” was that the President issue a
decree precisely calling a plebiscite for the ratification of
the proposed new Constitution on an appropriate date,
under the charge of the Comelec, and with a reasonable
period for an information campaign, as follows:
“12. Upon recognition by the Chair, Delegate Duavit moved for

the approval of the resolution, the resolution portion of which
read as follows:
_______________
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.”
359
VOL. 50, MARCH 31, 1973 359


‘RESOLVED, AS IT IS HEREBY RESOLVED, that the
1971 Constitutional Convention propose to President
Ferdinand E. Marcos that a decree be issued calling a
plebiscite for the ratification of the proposed New
Constitution on such appropriate date as he shall determine
and providing for the necessary funds therefor, and that
copies of this resolution as approved in plenary session be
transmitted to the President of the Philippines and the
Commission on Elections for implementation.’
“He suggested that in view of the expected approval of the final
draft of the new Constitution by the end of November 1972
according to the Convention’s timetable, it would be necessary to
lay the groundwork for the appropriate agencies of the
government to undertake the necessary preparation for the
plebiscite.
“x x x x x
12.2 Interpellating, Delegate Pimentel (V.) contended that the
resolution was unnecessary because section 15, Article XVII on
the Transitory Provision, which had already been approved on
second and third readings, provided that the new constitution
should be ratified in a plebiscite called for the purpose by the
incumbent President. Delegate Duavit replied that the provision
referred to did 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.
“x x x x x
“12.4 Interpellating, Delegate Madarang suggested that a
reasonable period for an information campaign was necessary in
order to properly apprise the people of the implications and
significance of the new charter. Delegate Duavit agreed, adding
that this was precisely why the resolution was modified to give
the President the discretion to choose the most appropriate date
for the plebiscite.
“12.5 Delegate Laggui asked whether a formal communication to
the President informing him of the adoption of the new
Constitution would not suffice considering that under Section 15
of the Transitory Provisions, the President would be duty-bound
to call a plebiscite for its ratification. Delegate Duavit replied in
the negative, adding that the resolution was necessary to serve
notice to the proper authorities to prepare everything necessary for
the plebiscite.
360


“12.6 In reply to Delegate Britanico, Delegate Duavit stated that
the mechanics for the holding of the plebiscite would be laid down
by the Commission on Elections in coordination with the
President.
“12.7 Delegate Catan inquired if such mechanics for the plebiscite
could include a partial lifting of martial law in order to allow the
people to assemble peaceably to discuss the new Constitution.
Delegate Duavit suggested that the Committee on Plebiscite and
Ratification could coordinate with the COMELEC on the matter.
“12.8 Delegate Guzman moved for the previous question. The
Chair declared that there was one more interpellant and that a
prior reservation had been made for the presentation of such a
motion.
1.8a Delegate Guzman withdrew his motion.
“12.9 Delegate Astilla suggested in his interpellation that there
was actually no need for such a resolution in view of the provision
of section 15, Article XVII on the Transitory Provisions. Delegate
Duavit disagreed, pointing out that the said provision did not
provide for the funds necessary for the purpose.
“13. Delegate Ozamiz then moved to close the debate and proceed
to the period of amendment.
“13.1 Floor Leader Montejo stated that there were no reservations
to amend the resolution.
“13.2 Delegate Ozamiz then moved for the previous question.
Submitted to a vote, the motion was approved.
“Upon request of the Chair, Delegate Duavit restated the
resolution for voting.
“14.1. Delegate 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.”57
_______________
57 Convention Minutes of Nov. 22, 1972 submitted as Annex A of
petitioner-delegate Sedfrey A. Ordoñez, et al. in the plebiscite case L-
359042, par. 12 of petition and admitted in par. 4 of answer of therein
respondents dated Dec. 15, 1972.
361
VOL. 50, MARCH 31, 1973 361

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 difficult, and yet the more
necessary” according to Rossiter, “will be their fusion in
time of crisis... The power of the state in crisis must not
only be
_______________
* First decision promulgated by First Division of the Supreme Court.
362

concentrated and expanded, it must be freed from the

normal system of constitutional and legal limitations. One
of the basic features of emergency powers is the release of
the government from the paralysis of constitutional
restraints” (Rossiter, Constitutional Dictatorship, p. 290).
It is clearly recognized that in moments of peril the
effective action of the government is channeled through the
person of the Chief Executive. “Energy in the executive,”
according to Hamilton, “is essential to the protection of the
community against foreign attacks ... to the protection of
property against those irregular and high-handed
combinations which sometimes interrupt the ordinary
course of justice; to the security of liberty against the
enterprises and assaults of ambition, of faction, and of
anarchy.” (The Federalist, Number 70). “The entire
strength of the nation,” said Justice Brewer in the Debs
case (158 U.S. 564; 39 L. ed. 1092), “may be used to enforce
in any part of the land the full and free exercise of all
national powers and the security of all rights entrusted by
the constitution to its care.” The marshalling and
employment of the “strength of the nation” are matters for
the discretion of the Chief Executive. The President’s
powers in time of emergency defy precise definition since
their extent and limitations are largely dependent upon
conditions and circumstances.
2. The power of the President to act decisively in a crisis
has been grounded on the broad conferment upon the
Presidency of the Executive power, with the added specific
grant of power under the “Commander-in-Chief” clause of
the constitution. The contours of such powers have been
shaped more by a long line of historical precedents of
Presidential action in times of crisis, rather than judicial
interpretation. Lincoln wedded his powers under the
“commander-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 Office to
“treasonable correspondence,” the blockade of southern
ports, the suspension of the writ of habeas corpus, the
arrest and
363
VOL. 50, MARCH 31, 1973 363

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 justified by the
imperatives of his logic, that the President may, in an
emergency thought by him to require it, partially suspend
the constitution. Thus his famous question: “Are all laws
but one to be unexecuted, and the Government itself go to
pieces lest that one be violated?” The actions of Lincoln
“assert for the President,” according to Corwin, “an
initiative of indefinite scope and legislative in effect in
meeting the domestic aspects of a war emergency.”
(Corwin, The President: Office & Powers, p. 280 [1948]).
The facts of the civil war have shown conclusively that in
meeting the domestic problems as a consequence of a great
war, an indefinite power must be attributed to the
President to take emergency measures. The concept of
“emergency” under which the Chief Executive exercised
extraordinary powers underwent correlative enlargement
during the first and second World Wars. From its narrow
concept as an “emergency” in time of war during the Civil
War and World War I, the concept has been expanded in
World War II to include the “emergency” preceding the war
and even after it. “The Second World War” observed
Corwin and Koenig, was the First World War writ large,
and the quasi-legislative powers of Franklin Roosevelt as
“Commander-in-Chief in wartime.”.. burgeoned
correspondingly. The precedents were there to be sure,
most of them from the First World War, but they
proliferated amazingly. What is more, Roosevelt took his
first step toward war some fifteen months before our
entrance into shooting war. This step occurred in
September, 1940, when he handed over fifty so-called
overage destroyers to Great Britain. The truth is, they were
not overage, but had been recently reconditioned and
recommissioned. ... Actually, what President Roosevelt did
was to take over for the nonce Congress’s power to dispose of
property of the United States (Article IV, Section 3) and to
repeal at least two statutes.” (Corwin & Koenig, The
Presidency Today, New York University Press, 1956; sf
Corwin, The President: Office and Powers, 1948.)
The creation of public offices is a power confided by the
constitution to Congress. And yet President Wilson, during
364

World War I on the basis of his powers under the

“Commander-in-Chief” clause created “offices” which were
copied in lavish scale by President Roosevelt in World War
II. In April 1942, thirty-five “executive agencies” were
purely of Presidential creation. On June 7, 1941 on the
basis of his powers as “Commander-in-Chief,” he issued an
executive order seizing the North American Aviation plant
of Inglewood, California, where production stopped as a
consequence of a strike. This was justified by the
government as the exercise of presidential power growing
out of the “duty constitutionally and inherently resting
upon the President to exert his civil and military as well as
his moral authority to keep the defense efforts of the
United States a going concern” as well as “to obtain
supplies for which Congress has appropriated money, and
which it has directed the President to obtain.” On a similar
justification, other plants and industries were taken over
by the government. It is true that in Youngstown Sheet &
Tube vs. Sawyer (343 U.S. 579; 72 S. Ct. 863; 96 L. Ed.
1153, [1952]), the Supreme Court of the United States did
not sustain the claims that the President could, as the
Nation’s Chief Executive and Commander-in-Chief of the
armed forces, validly order the seizure of most of the
country’s steel mills. The Court however did not face the
naked question of the President’s power to seize steel
plants in the absence of any congressional enactment or
expressions of policy. The majority of the Court found that
this legislative occupation of the field made untenable the
President’s claim of authority to seize the plants as an
exercise of inherent executive power or as Commander-in-
Chief. Justice Clark, in his concurrence to the main opinion
of the Court, explicitly asserted that the President does
possess, in the absence of restrictive legislation, a residual
or resultant power above or in consequence of his granted
powers, to deal with emergencies that he regards as
threatening the national security. The same view was
shared with vague qualification by Justices Frankfurter
and Jackson, two of the concurring Justices. The three
dissenting Justices, speaking through Chief Justice Vinson,
apparently went further by quoting with approval a
passage extracted from the brief of the government in the
case of United States vs. Midwest Oil Co., (236 U.S. 459 59
L. Ed. 673, 35 S. Ct. 309) where the court sustained the
power of the President to order withdrawals from the
public domain not only without Congressional sanction but
even
365
VOL. 50, MARCH 31, 1973 365

contrary to Congressional statutes.

It is evident therefore that the Steel Seizure Case,
cannot be invoked as an authority to support the view that
the President in times of a grave crisis does not possess a
residual power above or in consequence of his granted
powers, to deal with emergencies that he regards as
threatening the national security. The lesson of the Steel
Seizure case, according to Corwin and Koenig,
“Unquestionably ... tends to supplement presidential
emergency power to adopt temporary remedial legislation
when Congress has been, in the judgment of the President,
unduly remiss in taking cognizance of and acting on a
given situation.” (Corwin and Koenig, The Presidency
Today, New York University Press, 1956).
The accumulation of precedents has thus built up the
presidential power under emergency conditions to
“dimensions of executive prerogative as described by John
Locke, of a power to wit, to fill needed gaps in the law, or
even to supersede it so far as may be requisite to realize the
fundamental law of nature and government, namely, that
as much as may be all the members of society are to be
preserved.” (Corwin and Koenig, The Presidency Today).
In the light of the accumulated precedents, how could it
be reasonably argued therefore, that the President had no
power to issue Presidential Decree Nos. 86 and 86-A as
well as Proclamation No. 1102, since these measures were
considered indispensable to effect the desired reforms at
the shortest time possible and hasten the restoration of
normalcy? It is unavailing for petitioners to contend that
we are not faced by an actual “shooting war” for today’s
concept of the emergency which justified the exercise of
those powers has of necessity been expanded to meet the
exigencies of new dangers and crisis that directly threaten
the nation’s continued and constitutional existence. For as
Corwin observed: “... today the concept of ‘war’ as a special
type of emergency warranting the realization of
constitutional limitations tends to spread, as it were, in
both directions, so that there is not only “the war before the
war,” but the ‘war after the war.’ Indeed, in the economic
crisis from which the New Deal may be said to have
366

issued, the nation was confronted in the opinion of the late

President with an ‘emergency greater than war’; and in
sustaining certain of the New Deal measures the Court
invoked the justification of ‘emergency.’ In the final result
constitutional practices of wartime have moulded the
Constitution to greater or less extent for peacetime as well,
seem likely to do so still more pronouncedly under fresh
conditions of crisis.” (Corwin, Ibid. p. 318.)
The same view was expressed by Rossiter thus:
“The second crisis is rebellion, when the authority of a

constitutional government is resisted openly by large numbers of
citizens who are engaged in violent insurrection against
enforcement of its laws or are bent on capturing it illegally or
destroying it altogether. The third crisis, one recognized
particularly in modern times as sanctioning emergency action by
constitutional governments, is economic depression. The economic
troubles which plagued all the countries of the world in the early
thirties involved governmental methods of an unquestionably
dictatorial character in many democracies. It was thereby
acknowledged that an economic existence as a war or a rebellion.
And these are not the only cases which have justified
extraordinary governmental action in nations like the United
States. Fire, flood, drought, earthquake, riots, great strikes have
all been dealt with by unusual and of dictatorial methods. Wars
are not won by debating societies, rebellions are not suppressed
by judicial injunctions, reemployment of twelve million jobless
citizens will not be effected through a scrupulous regard for the
tenets of free enterprise, hardships caused by the eruptions of
nature cannot be mitigated letting nature take its course. The
Civil War, the depression of 1933 and the recent global conflict
were not and could not have been successfully resolved by
governments similar to those of James Buchanan, William
Howard Taft, or Calvin Coolidge.” (Rossiter, Constitutional
Dictatorship — Crisis of Government in the Modern Democracies,
p. 6 [1948).
II
We are next confronted with the insistence of Petitioners
that the referendum in question not having been done
inaccordance with the provisions of existing election laws,
which only qualified voters who are allowed to participate,
under the
367
VOL. 50, MARCH 31, 1973 367

supervision of the Commission on Elections, the new

Constitution, should therefore be a nullity. Such an
argument is predicated upon an assumption, that Article
XV of the 1935 Constitution provides the method for the
revision of the constitution, and automatically apply in the
final approval of such proposed new Constitution the
provisions of the election law and those of Article V and X
of the old Constitution. We search in vain for any provision
in the old charter specifically providing for such procedure
in the case of a total revision or a rewriting of the whole
constitution.
1. There is clearly a distinction between revision and
amendment of an existing constitution. Revision may
involve a rewriting of the whole constitution. The act of
amending a constitution, on the other hand, envisages a
change of only specific provisions. The intention of an act to
amend is not the change of the entire constitution but only
the improvement of specific parts of the existing
constitution of the addition of provisions deemed essential
as a consequence of new constitutions or the elimination of
parts already considered obsolete or unresponsive to the
needs of the times.1 The 1973 Constitution is not a mere
amendment to the 1935 Constitution. It is a completely new
fundamental charter embodying new political,
_______________
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 field of application not mere alternative
procedures in the same field.” (McFadden v. Jordan, 196 P. 2d 787, 797 32
Cal. 2d 330).
368

social and economic concepts.

According to an eminent authority on Political Law,
“The Constitution of the Philippines and that of the United
States expressly provide merely for methods of amendment.
They are silent on the subject of revision. But this is not a
fatal omission. There is nothing that can legally prevent a
convention from actually revising the Constitution of the
Philippines or of the United States even were such
conventions called merely for the purpose of proposing and
submitting amendments to the people. For in the final
analysis, it is the approval of the people that gives validity
to any proposal of amendment or revision.” (Sinco,
Philippine Political Law, p. 49).
Since the 1935 Constitution does not specifically provide
for the method or procedure for the revision or for the
approval of a new constitution, should it now be held, that
the people have placed such restrictions on themselves that
they are not disabled from exercising their right as the
ultimate source of political power from changing the old
constitution which, in their view, was not responsive to
their needs and in adopting a new charter of government to
enable them to rid themselves from the shackles of
traditional norms and to pursue with new dynamism the
realization of their true longings and aspirations, except in
the manner and form provided by Congress for previous
plebiscites? Was not the expansion of the base of political
participation, by the inclusion of the youth in the process of
ratification who after all constitute the preponderant
majority more in accord with the spirit and philosophy of
the constitution that political power is inherent in the
people collectively? As clearly expounded by Justice
Makasiar, in his opinion, in all the cases cited where the
Courts held that the submission of the proposed
amendment was illegal due to the absence of substantial
compliance with the procedure prescribed by the
constitution, the procedure prescribed by the state
Constitution, is so detailed, that specified the manner in
which such submission shall be made, the persons qualified
to vote for the same, the date of election and other definite
standards, from which the court could safely ascertain
whether or not the submission was in accordance with the
Constitution. Thus the case of In re McConaughy (119
369
VOL. 50, MARCH 31, 1973 369

N.E. 408) relied upon in one of the dissenting opinions

involved in the application of the provisions of the state
Constitution of Minnesota which clearly prescribed in
detail the procedure under which the Constitution may be
amended or revised.2 This is not true with our
Constitution. In the case of revision there are no “standards
meet for judicial judgment.”3The 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
_______________
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.
370

ratification of the proposed new Constitution. The adoption

the new Charter was considered as a necessary basis for all
the reforms set in motion under the new society, to root out
the causes of unrest. The imperatives of the emergency
underscored the urgency of its adoption. The people in
accepting such procedure and in voting overwhelmingly for
the approval of the new Constitution have, in effect,
ratified the method and procedure taken. “When the people
adopt completely revised or new constitution,” said the
Court in Wheeler v. Board of Trustees (37 SE 2nd 322, 326-
330), “the framing or submission of the instrument is not
what gives it binding force and effect. The fiat of the
people, and only the fiat of the people, can breathe life into
a constitution.”
This has to be so because, in our political system, all
political power is inherent in the people and free
governments are founded on their authority and instituted
for their benefit. Thus Section 1 of Article II of the 1935
Constitution declares that: “Sovereignty resides in the
people and all government authority emanate from them.”
Evidently the term people refers to the entire citizenry and
not merely to the electorate, for the latter is only a fraction
of the people and is only an organ of government for the
election of government officials.
III
The more compelling question, however is: Has this
Court the authority to nullify an entire Constitution that is
already effective as it has been accepted and acquiesced in
by the people as shown by their compliance with the decree
promulgated thereunder, their cooperation in its
implementation, and is now maintained by the
Government that is in undisputed authority and
dominance?
Of course it is argued that acquiescence by the people
can be deduced from their acts of conformity, because
under a regime of martial law the people are bound to obey
and act in conformity with the orders of the President, and
has absolutely no other choice. The flaw of this argument
lies in its application of a mere theoretical assumption
based on the experiences of other nations on an entirely
different factual setting. Such an assumption flounders on
the rock of reality.
371
VOL. 50, MARCH 31, 1973 371
It is true that as a general rule martial law is the use of

military forces to perform the functions of civil government.
Some courts have viewed it as a military regime which can
be imposed in emergency situations. In other words,
martial rule exists when the military rises superior to the
civil power in the exercise of some or all the functions of
government. Such is not the case in this country. The
government functions thru its civilian officials. The
supremacy of the civil over the military authority is
manifest. Except for the imposition of curfew hours and
other restrictions required for the security of the State, the
people are free to pursue their ordinary concerns.
In short, the existing regime in this Country, does not
contain the oppressive features, generally associated with a
regime of Martial law in other countries. “Upon the other
hand the masses of our people have accepted it, because of
its manifold blessings. The once downtrodden rice tenant
has at long last been emancipated — a consummation
devoutly wished by every Philippine President since the
1930’s. The laborer now holds his head high because his
rights are amply protected and respected.”* A new sense of
discipline has swiftly spread beyond the corridors of
government into the social order. Responding to the
challenges of the New Society, the people have turned in
half a million loose firearms, paid their taxes on undeclared
goods and income in unprecedented numbers and amount,
lent their labors in massive cooperation — in land reform,
in the repair of dikes, irrigation ditches, roads and bridges,
in reforestation, in the physical transformation of the
environment to make ours a cleaner and greener land. “The
entire country is turning into one vast garden growing food
for the body, for thought and for the soul.”* More important
the common man has at long last been freed from the
incubus of fear.
“Martial law has paved the way for a re-ordering of the basic
social structure of the Philippines” reported Frank Valeo to the
United States Senate. “President Marcos has been prompt and
sure-footed in using the power of presidential decree under
martial law for this purpose. He has zeroed in on areas which
_______________
* Leon O. Ty, Seven Months of Martial Law, Daily Express.
* Panorama, May 6, 1973.
372

have been widely recognized as prime sources of the nation’s

difficulties — land tenancy, official corruption, tax evasion and
abuse of oligarchic economic power. Clearly he knows his targets
... there is marked public support for his leadership...” (Bulletin
Today, March 3 and 4, 1973).
In a similar vein, C.L. Sulzberger, a foreign affairs

columnist wrote, in the April 11 issue of The New York
Times:

During his first Presidential term (1965-1969), Mr. Marcos was
discouraged by the failure of legislators to approve urgently
needed reforms. He found his second term further frustrated by
spread riots, a Maoist uprising in Luzon and a much more serious
Moslem insurrection in the southern islands from Mindanao
across the Sulu archipelago to the frontier regions of Malaysia
and Indonesia. Manila claims this war is Maoist-coordinated.
Mr. Marcos has now in effect taken all the reins of power and
makes no promise as to when he will relinquish them. But, while
fettering a free press, terminating Congress and locking up some
opponents (many of whom were later amnestied), he has hauled
the Philippines out of stagnation.
Sharecropping is being ended as more than three million acres
of arable land are redistributed with state funds. New roads have
been started. The educational system is undergoing revision, a
corruption is diminished. In non-communist Asia it is virtually
impossible to wholly end it and this disagreeable phenomenon
still reaches very high.
Mr. Marcos, an imaginative, gifted man, hopes to reshape
society by creating an agrarian middle-class to replace the archaic
sharecropper-absentee landlord relationship. He is even pushing
for a birth control program with the tacit acceptance of the
Catholic Church. He has started labor reforms and increased
wages. (Daily Express, April 15, 1973)
As explained in this writer’s opinion of April 24, 1973 on

the “Constancia” and “Manifestation” of counsel for
petitioners:
The new Constitution is considered effective “if the
norms created in conformity with it are by and large
applied and obeyed. As soon as the old Constitution loses
its effectiveness
373
VOL. 50, MARCH 31, 1973 373

and the new Constitution has become effective, the acts

that appear with the subjective meaning of creating or
applying legal norms are no longer interpreted by
presupposing the old basic norm, but by presupposing the
new one. The statutes issued under the old Constitution
and not taken over are no longer regarded as valid, and the
organs authorized by the old Constitution no longer
competent.” (Kelsen, Pure Theory of Law, [1967].)
The essentially political nature of the question is at once
made manifest by understanding that in the final analysis,
what is assailed is not merely the validity of Proclamation
No. 1102 of the President, which is merely declaratory of
the fact of approval or ratification, but the legitimacy of the
government. It is addressed more to the framework and
political character of this Government which now functions
under the new Charter. It seeks to nullify a Constitution
that is already effective.
In such a situation, We do not see how the question
posed by petitioners could be judicially decided. “Judicial
power presupposes an established government capable of
enacting laws and enforcing their execution, and of
appointing judges to expound and administer them. If it
decides at all as a court, it necessarily affirms the existence
and authority of the government under which it is
exercising judicial power.” (Luther v. Borden, 48 U.S. [7
How.] 1, 12 L. Ed. 598.)
In other words, where a complete change in the
fundamental law has been effected through political action,
the Court whose existence is affected by such change is, in
the words of Mr. Melville Fuller Weston, “precluded from
passing upon the fact of change by a logical difficulty which
is not to be surmounted.”5 Such change in the organic law
relates to the
_______________
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 significant,
however, that the alleged alteration does or does not purport to affect the
existence of the court itself. In
374

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
_______________
the nature of things, a revolutionary charge does not admit judicial power
as such to determine the fact of its occurrence. If 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 logical explanation of the Duke of York’scase. For the
court to give serious judicial consideration to such a question would
present “the singular spectacle of a court sitting as a court to declare that
we are not a court.” (Brittle v. People, 2 Neb. 198, 214 [1873].) And even
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 assess under which commission they are
acting. To put the matter another way, it must be true that in the first
case above — of two constitutions purporting to establish two different
courts, — the men who were judges under the old regime and the men
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 equally
obvious, the situation is logically identical where the same men are
nominated to constitute the court under both the old and 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 principles of statesmanship, upon sovereignty
and, its nature modes of action, and upon the bases of government, to
justify the 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 difficulties
disappear in one aspect, but become far more embarrassing in another.
Where the alteration purports to be made along the lines of a procedural
method laid down in the constitution, there is a standard which the court
can apply and, by so
375
VOL. 50, MARCH 31, 1973 375

horizontal distribution of powers.”6 It involves in essence

a matter which “the sovereign has entrusted to the so-
called
_______________
doing, it can perceive judicially whether or not the change has followed
the prescribed lines. If it has, there is no difficulty in pronouncing as a
matter of law its accomplishment. Only one exception is possible, namely,
the ease 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 difficulties 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 offices 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 field 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 difficulty which is not to
be surmounted. It follows that there is no room for considering whether
the court ought graciously and deferentially to look to the executive or
legislative for a decision that a change has or has not taken place.
376

political departments of government or has reserved to be
settled by its own extra governmental action.”7
The non-judicial character of such a question has been
recognized in American law. “From its earliest opinions
this Court has consistently recognized,” said Justice
Frankfurter, in his illuminating dissent in Baker v. Carr,
369 U.S. 186, 7 L. Ed. 2d. 633, 722, 726, 727), “a class of
controversies which do not lend themselves to judicial
standards and judicial remedies. To classify the various
instances as “political questions” is rather a form of stating
this conclusion than revealing of analysis ... The crux of the
matter is that courts are not fit instruments of decision
where what is essentially at stake is the composition of
those large contests of policy traditionally fought out in
non-judicial forums, by which governments and the actions
of governments are made and unmade.”
The diversity of views contained in the opinions of the
members of this Court, in the cases at bar, cannot be a case
on “right” or “wrong” views of the Constitution. It is one of
attitudes and values. For there is scarcely any principle,
authority or interpretation which has not been countered
by the opposite. At bottom, it is the degree of one’s faith —
in the nation’s leadership and in the maturity of judgment
of our people.
IN VIEW OF THE FOREGOING, the dismissal of these
five cases, and the conclusion of this Court in its judgment
of March question becomes wholly moot except for this
consideration, that, when the judges as individuals or as a
body of individuals come to decide which king or which
constitution they will support and assert to represent, it
may often be good judgment for them to follow the lead of
the men who as a practical matter are likely to be looked to
by the people as more representative of themselves and
conversely are likely to be more directly in touch with
popular sentiment. If, however, the judges hold too strong
views of their own to be able to take this course, they may
follow their own leads at their own hazard. No question of
law is involved. (Political Questions, 38 Harvard Law
Review [1924-25], pp. 305-309.)
_______________
6 & 7 Ibid., pp. 301, 305.
377
VOL. 50, MARCH 31, 1973 377


31, 1973 are fully justified.
Barredo, Makasiar and Esguerra, JJ., concur.
APPENDIX TO OPINION
(G.R. Nos. L-36142, 36164, 36165, 36236 & 36283)
PROVISIONS OF STATE CONSTITUTIONS
SPECIFICALLY PROVIDING FOR AMENDMENT AND
REVISION @

1. Alaska (1959) — Art. XIII. Amendment and Revision.
Sec. 1. Amendments. Amendments to this constitution
may be proposed by a two-thirds vote of each house of the
legislature. The secretary of state shall prepare a ballot
title and proposition summarizing each proposed
amendment, and shall place them on the ballot for the next
statewide election. If a majority of the votes cast on the
proposition favor the amendment, it becomes effective
thirty days after the certification of the election returns by
the secretary of state.
Sec. 2. Convention. The legislature may call
constitutional conventions at any time.
Sec. 3. Call by referendum. If during any ten-year period
a constitutional convention has not been held, the secretary
of state shall place on the ballot for the next general
election the question: “Shall there be a Constitutional
Convention?” If a majority of the votes cast on the question
are in the negative, the question need not be placed on the
ballot until the end of the next ten-year period. If a
majority of the votes cast on the question are in the
affirmative, delegates to the convention shall be chosen at
the next regular statewide election, unless the legislature
provides for the election of the election delegates at a
special election. The secretary of state shall issue the call
for the convention. Unless other provisions have been made
by law, the call shall conform as nearly as possible to the
act calling the Alaska Constitutional Convention of 1955,
378

including, but not limited to, number of members, districts,

election and certification of delegates, and submission and
ratification of revisions and ordinances. x x x.
Sec. 4. Powers. Constitutional conventions shall have
plenary power to amend or revise the constitution, subject
only to ratification by the people. No call for a
constitutional convention shall limit these powers of the
convention.
2. California (1879) — Art. XVIII. Amending and Revising
the Constitution.
Sec. 1. Constitutional amendments. Any amendment or
amendments to this Constitution may be proposed in the
Senate or Assembly, and if two-thirds of all the members
elected to each of the houses shall vote in favor thereof,
such proposed amendment or amendments shall be entered
in their Journals, with the yeas and nays taken thereon;
and it shall be the duty of the Legislature to submit such
proposed amendment or amendments to the people in such
manner, and at such time, and after such publication as
may be deemed expedient. Should more amendments than
one be submitted at the same election they shall be so
prepared and distinguished, by numbers or otherwise, that
each can be voted on separately. If the people shall approve
and ratify such amendment or amendments, or any of
them, by a majority of the qualified electors voting thereon
such amendment or amendments shall become a part of
this constitution.
Sec. 2. Constitutional convention. Whenever two-thirds
of the members elected to each branch of the Legislature
shall deem it necessary to revise this Constitution, they
shall recommend to the electors to vote at the next general
for or against a Convention for that purpose, and if a
majority of the electors voting at such election on the
proposition for a Convention shall vote in favor thereof, the
Legislature shall, at its next session, provide by law for
calling the same. The Convention shall consist of a number
of delegates not to exceed that of both branches of the
Legislature, who shall be chosen in the same manner, and
have the same qualifications, as Members of the
Legislature. The delegates so elected shall meet within
three months after their election at such place as
379
VOL. 50, MARCH 31, 1973 379

the Legislature may direct. At a special election to be

provided for by law, the Constitution that may be agreed
upon by such Convention shall be submitted to the people
for their ratification or rejection, in such manner as the
Convention may determine. The returns of such election
shall, in such manner as the Convention shall direct, be
certified to the Executive of the State, who shall call to his
assistance the Controller, Treasurer, and Secretary of
State, and compare the returns so certified to him; and it
shall be the duty of the Executive to declare, by his
proclamation, such Constitution, as may have been ratified
by a majority of all the votes cast at such special election,
to be the Constitution of the State of California.
3. Colorado (1876) — Art. XIX. Amendments.
Sec. 1. Constitutional convention; how called. The
general assembly may at any time be a vote of two-thirds of
the members elected to each house, recommend to the
electors of the state, to vote at the next general election for
or against a convention to revise, alter and amend this
constitution; and if a majority of those voting on the
question shall declare in favor of such convention, the
general assembly shall, at the next session, provide for the
calling thereof. The number of members of the convention
shall be twice that of the senate and they shall be elected in
the same manner, at the same places, and in the same
districts. The general assembly shall, in the act calling the
convention, designate the day, hour and place of its
meeting; fix the pay of its members and officers, and
provide for the payment of the same, together with the
necessary expenses of the convention. Before proceeding,
the members shall take an oath to support the constitution
of the United States, and of the state of Colorado, and to
faithfully discharge their duties as members of the
convention. The qualifications of members shall be the
same as of members of the senate; and vacancies occurring
shall be filled in the manner provided for filling vacancies
in the general assembly. Said convention shall meet within
three months after such election and prepare suchrevisions,
alterations or amendments to the constitution as may be
deemed necessary; which shall be submitted to the electors
for their ratification or rejection at an election appointed by
the convention for that purpose, not less
380

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
381
VOL. 50, MARCH 31, 1973 381

Secretary of State shall cause such proposed amendment or

amendments to be published three months before the next
general election in at least three newspapers in each
County in which such newspaper shall be published; and if
in the General Assembly next after the said election such
proposed amendment or amendments shall upon yea and
nay vote be agreed to by two-thirds of all the members
elected to each House, the same shall thereupon become part
of the Constitution.
Sec. 2. Constitutional conventions; procedure;
compensation of delegates; quorum; powers and duties;
vacancies. The General Assembly by a two-thirds vote of all
the members elected to each House may from time to time
provide for the submission to the qualified electors of the
State at the general election next thereafter the question,
“Shall there be a Convention to revise the Constitution and
amend the same?”; and upon such submission, if a majority
of those voting on said question shall decide in favor of a
Convention for such purpose, the General Assembly at its
next session shall provide for the election of delegates to
such convention at the next general election. Such
Convention shall be composed of forty-one delegates, one of
whom shall be chosen from each Representative District by
the qualified electors thereof, and two of whom shall be
chosen from New Castle County, two from Kent County
and two from Sussex County by the qualified electors
thereof respectively. The delegates so chosen shall convene
at the Capital of the State on the first Tuesday in
September next after their election. Every delegate shall
receive for his services such compensation as shall be
provided by law. A majority of the Convention shall
constitute a quorum for the transaction of business. The
Convention shall have the power to appoint such officers,
employees and assistants as it may be deem necessary, and
fix their compensation, and provide for the printing of its
documents, journals, debates and proceedings. The
Convention shall determine the rules of its proceedings,
and be the judge of the elections, returns and qualifications
of its members. Whenever there shall be a vacancy in the
office of delegate from any district or county by reason of
failure to elect, ineligibility, death, resignation or
otherwise, a writ of election to fill such vacancy shall be
issued by the Governor, and such vacancy shall be filled by
the
382

qualified electors of such district or county.

5. Florida (1887) — Art. XVII. Amendments.
Sec. 1. Method of amending constitution. Either branch
of the Legislature, at any regular session, or at any special
or extra-ordinary session thereof called for such purpose
either in the governor’s original call or any amendment
thereof, may propose the revision or amendment of any
portion or portions of this Constitution. Any such revision
or amendment may relate to one subject or any number of
subjects, but no amendment shall consist of more than one
revised article of the Constitution.
If the proposed revision or amendment is agreed to by
three-fifths of the members elected to each house, it shall
be entered upon their respective journals with the yeas and
nays and published in one newspaper in each county where
a newspaper is published for two times, one publication to
be made not earlier than ten weeks and the other not later
than six weeks, immediately preceding the election at
which the same is to be voted upon, and thereupon
submitted to the electors of the State for approval or
rejection at the next general election, provided, however,
that such revision or amendment may be submitted for
approval or rejection in a special election under the
conditions described in and in the manner provided by
Section 3 of Article XVII of the Constitution. If a majority
of the electors voting upon the amendment adopt such
amendment the same shall become a part of this
Constitution.
Sec. 2. Method of revising constitution. If at any time the
Legislature, by a vote of two-thirds of all the members of
both Houses, shall determine that a revision of this
Constitution is necessary, such determination shall be
entered upon their respective Journals, with yea’s and
nay’s thereon. Notice of said action shall be published
weekly in one newspaper in every county in which a
newspaper is published, for three months preceding the
next general election of Representatives, and in those
countries where no newspaper is published, notice shall be
given by posting at the several polling precincts in such
383
VOL. 50, MARCH 31, 1973 383

counties for six weeks next preceding said election. The

electors at said election may vote for or against the revision
in question. If a majority of the electors so voting be in
favor of revision, the Legislature chosen at such election
shall provide by law for a Convention to revise the
Constitution, said Convention to be held within six months
after the passage of such law. The Convention shall consist
of a number equal to the membership of the House of
Representatives, and shall be apportioned among the
several counties in the same manner as members of said
House.
6. Idaho (1890) — Art. XIX. Amendments.
Sec. 1. How amendments may be proposed. Any
amendment or amendments to this Constitution may be
proposed in either branch of the legislature, and if the
same shall be agreed to by two-thirds of all the members of
each of the two houses, voting separately, such proposed
amendment or amendments shall, with the yeas and nays
thereon, be entered on their journals, and it shall be the
duty of the legislature to submit such amendment or
amendments to the electors of the state at the next general
election, and cause the same to be published without delay
for at least six consecutive weeks, prior to said election, in
not less than one newspaper of the general circulation
published in each county; and if a majority of the electors
shall ratify the same, such amendment or amendments
shall become a part of this Constitution.
Sec. 3. Revision or amendments by convention. Whenever
two-thirds of the members elected to each branch of the
legislature shall deem it necessary to call a convention to
revise or amend this Constitution, they shall recommend to
the electors to vote at the next general election, for or
against a convention, and if a majority of all the electors
voting at said election shall have voted for a convention,
the legislature shall at the next session provide by law for
calling the same; and such convention shall consist of a
number of members, not less than double the number of
the most numerous branch of the legislature.
7. Iowa (1857) — Art. X. Amendments to the Constitution.
384


Sec. 3. Convention. At the general election to be held in
the year one thousand eight hundred and seventy, and in
each tenth year thereafter, and also at such times as the
General Assembly may, by law, provide, the question,
“Shall there be a Convention to revise the Constitution, and
amend the same?” shall be decided by the electors qualified
to vote for members of the General Assembly; and in case a
majority of the electors so qualified, voting at such election,
for and against such proposition, shall decide in favor of a
Convention for such purpose, the General Assembly, at its
next session, shall provide by law for the election of
delegates to such Convention.
8. Michigan (1909) — Art. XVII. Amendments and
Revision.
Sec. 1. Amendments to constitution; proposal by
legislature; submission to electors. Any amendment or
amendments to this constitution may be proposed in the
senate or house of representatives. If the same shall be
agreed to by 2/3 of the members elected to each house, such
amendment or amendments shall be entered on the
journals, respectively, with the yeas and nays taken
thereon; and the same shall be submitted to the electors at
the next spring or autumn election thereafter, as the
legislature shall direct; and, if a majority of the electors
qualified to vote for members of the legislature voting
thereon shall ratify and approve such amendment or
amendments, the same shall become part of the
constitution.
Sec. 4. General revision; convention; procedure. At the
Biennial Spring Election to be held in the year 1961, in
each sixteenth year thereafter and at such times as may be
provided by law, the question of a General Revision of the
Constitution shall be submitted to the Electors qualified to
vote for members of the Legislature. In case a majority of
the Electors voting on the question shall decide in favor of
a Convention for such purpose, at an Election to be held not
later than four months after the Proposal shall have been
certified as approved, the Electors of each House of
Representatives District as then organized shall Elect One
Delegate for each Electors of each Senatorial District as
then organized shall Elect One Delegate for each State
Senator to which the District
385
VOL. 50, MARCH 31, 1973 385

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. x x x No proposed
constitution or amendment adopted by such convention
shall be submitted to the electors for approval as
hereinafter provided unless by the assent of a majority of
all the delegates elected to the convention, the yeas and
nays being entered on the journal. Any proposed
constitution or amendments adopted by such convention
shall be submitted to the qualified electors in the manner
provided by such convention on the first Monday in April
following the final adjournment of the convention; but, in
case an interval of at least 90 days shall not intervene
between such final adjournment and the date of such
election. Upon the approval of such constitution or
amendments by a majority of the qualified electors voting
thereon such constitution or amendments shall take effect
on the first day of January following the approval thereof.
9. Minnesota (1857) — Art. XIV. Amendments to the
Constitution.
Sec. 1. Amendments to constitution; majority vote of
electors voting makes amendment valid. Whenever a
majority of both houses of the legislature shall deem it
necessary to alter or amend this Constitution, they may
proposed such alterations or amendments, which proposed
amendments shall be published with the laws which have
been passed at the same session, and said amendments
shall be submitted to the people for their approval or
rejection at any general election, and if it shall appear, in a
manner to be provided by law, that a majority of all the
electors voting at said election shall have voted for and
ratified such alterations or amendments, the same shall be
valid to all intents and purposes as a part of this
Constitution. If two or more alterations or amendments
shall be submitted at the same time, it shall be so
regulated that the voters shall vote for or against each
separately.
386


Sec. 2. Revision of constitution. Whenever two-thirds of
the members elected to each branch of the legislature shall
think it necessary to call a convention to revise this
Constitution, they shall recommend to the electors to vote
at the next general election for members of the legislature,
for or against a convention; and if a majority of all the
electors voting at said election shall have voted for a
convention, the legislature shall, at their next session,
provide by law for calling the same. The convention shall
consist of as many members as the House of
Representatives, who shall be chosen in the same manner,
and shall meet within three months after their election for
the purpose aforesaid.
Sec. 3. Submission to people of revised constitution
drafted at convention. Any convention called to revise this
constitution shall submit any revision thereof by said
convention to the people of the State of Minnesota for their
approval or rejection at the next general election held not
less than 90 days after the adoption of such revision, and, if
it shall appear in the manner provided by law that three-
fifths of all the electors voting on the question shall have
voted for and ratified such revision, the same shall
constitute a new constitution of the State of Minnesota.
Without such submission and ratification, said revision
shall be of no force or effect. Section 9 of Article IV of the
Constitution shall not apply to election to the convention.
10. Nevada (1864) — Art. 16. Amendments.
Sec. 1. Constitutional amendments; procedure. Any
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
387
VOL. 50, MARCH 31, 1973 387

or amendments to the people, in such manner and at such

time as the Legislature shall prescribe; and if the people
shall approve and ratify such amendment or amendments
by a majority of the electors qualified to vote for members
of the Legislature voting thereon, such amendment or
amendments shall become a part of the Constitution.
Sec. 2. Convention for revision of constitution; procedure.
If at any time the Legislature by a vote of two-thirds of the
Members elected to each house, shall determine that it is
necessary to cause a revision of this entire Constitution
they shall recommend to the electors at the next election
for Members of the Legislature, to vote for or against a
convention, and if it shall appear that a majority of the
electors voting at such election, shall have voted in favor of
calling a Convention, the Legislature shall, at its next
session provide by law for calling a Convention to be held
within six months after the passage of such law, and such
Convention shall consist of a number of Members not less
that of both branches of the legislature. In determining
what is a majority of the electors voting such election,
reference shall be had to the highest number of vote cast at
such election for the candidates of any office or on any
question.
11. New 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 first annual
meetings for the choice of senators, after the expiration of
seven years from the adoption of this constitution, as
amended, to insert expressly in the warrant this purpose,
among the others for the meeting, to wit, to take the sense
of the qualified voters on the subject of a revision of the
constitution; and, the meeting being warned accordingly,
and not otherwise, the moderator shall take the sense of
the
388

qualified voters present as to the necessity of a revision;
and a return of the number of votes for and against such
necessity, shall be made by the clerk sealed up, and
directed to the general court at their then next session; and
if, it shall appear to the general court by such return, that
the sense of the people of the state has taken, and that, in
the opinion of the majority of the qualified voters in the
state, present and voting at said meetings, there is a
necessity for a revision of the constitution, it shall be the
duty of the general court to call a convention for that
purpose, otherwise the general court shall direct the sense
of the people to be taken, and then proceed in the manner
before mentioned. The delegates to be chosen in the same
manner, and proportioned, as the representatives to the
general court; provided that no alterations shall be made in
this constitution, before the same shall be laid before the
towns and unincorporated places, and approved by two
thirds of the qualified voters present and voting on the
subject.
12. Oklahoma (1907) — Art. XXIV. Constitutional
Amendments.
Sec. 1. Amendments proposed by legislature; a
submission to vote. Any amendment or amendments to this
Constitution may be proposed in either branch of the
Legislature, and if the same shall be agreed to by a
majority of all the members elected to each of the two
houses, such proposed amendment or amendments shall,
with yeas and nays thereon, be entered in their journals
and referred by the Secretary of State to the people for
their approval or rejection, at the next regular general
election, except when the Legislature, by a two-thirds vote
of each house, shall order a special election for that
purpose. If a majority of all the electors voting at such
election shall vote in favor of any amendment thereto, it
shall thereby become a part of this Constitution.
If two or more amendments are proposed they shall be
submitted in such manner that electors may vote for or
against them separately.
No proposal for the amendment or alteration of this
Constitution which is submitted to the voters shall
embrace more than one general subject and the voters shall
vote separately for or against each proposal submitted;
provided, however, that in the submission of proposals for
the amendment of this Constitution by articles, which
embrace one general subject, each proposed article shall be
deemed a single
389
VOL. 50, MARCH 31, 1973 389

proposals or proposition
Sec. 2. Constitutional convention to propose amendments
or new constitution. No convention shall be called by the
Legislature to propose alterations, revisions, or
amendments to this Constitution, or to propose a new
Constitution, unless the law providing for such convention
shall first be approved by the people on a referendum vote
at a regular or special election, and any amendments,
alterations, revisions, or new Constitution, proposed by
such convention, shall be submitted to the electors of the
State at a general or special election and be approved by a
majority of the electors voting thereon, before the same
shall become effective Provided, That the question of such
proposed convention shall be submitted to the people at
least once in every twenty years.
13. Oregon (1859) — Art. XVII. Amendments and
Revisions.
Sec. 1. Method of amending constitution. Any
proposed in either branch of the legislative assembly, and if
the same shall be agreed to by a majority of all the
members elected to each of the two houses, such proposed
amendment or amendments shall, with the yeas and nays
thereon, be entered in their journals and referred by the
secretary of state to the people for their approval or
rejection, at the next regular election, except when the
legislative assembly shall order a special election for that
purpose. If a majority of the electors voting on any such
amendment shall vote in favor thereof, it shall thereby
become a part of this Constitution. The votes for and
against such amendment, or amendments, severally,
whether proposed by the legislative assembly or by
initiative petition, shall be canvassed by the secretary of
state in the presence of the governor, and if it shall appear
to the governor that the majority of the votes cast at said
election on said amendment, or amendments, severally, are
cast in favor thereof, it shall be his duty forthwith after
such canvass, by his proclamation, to declare the said
amendment, or amendments, severally, having received
said majority of votes to have been adopted by the people of
Oregon as part of the Constitution thereof, and the same
shall be in effect as a part of the Constitution from the date
of such proclamation. When two or more amendments
390

shall be submitted in the manner aforesaid to the voters of

this state at the same election, they shall be so submitted
that each amendment shall be voted on separately. No
convention shall be called to amend or propose
amendments to this Constitution, or to propose a new
Constitution, unless the law providing for such convention
shall first be approved by the people on a referendum vote
at a regular general election. This article shall not be
construed to impair the right of the people to amend this
Constitution by vote upon an initiative petition therefor.
Sec. 2. Method of revising constitution. (1) In addition to
the power to amend this Constitution granted by section 1,
Article IV, and section 1 of this Article, a revision of all or
part of this Constitution may be proposed in either house of
the Legislative Assembly and, if the proposed revision is
agreed to by at least two-thirds of all the members of each
house, the proposed revision shall, with the yeas and nays
thereon, be entered in their journals and referred by the
Secretary of State to the people for their approval or
rejection, notwithstanding section 1, Article IV of this
Constitution, at the next regular state-wide primary
election, except when the Legislative Assembly orders a
special election for that purpose. A proposed revision may
deal with more than one subject and shall be voted upon as
one question. The votes for and against the proposed
revision shall be canvassed by the Secretary of State in the
presence of the Governor and, if it appears to the Governor
that the majority of the votes cast in the election on the
proposed revision are in favor of the proposed revision, he
shall, promptly following the canvass, declare, by his
proclamation, that the proposed revision has received a
majority of votes and has been adopted by the people as the
Constitution of the State of Oregon, as the case may be.
The revision shall be in effect as the Constitution or as a
part of this Constitution from the date of such
proclamation.
14. Utah (1896) — Art. 23. Amendments.
Sec. 1. Amendments; method of proposal and approval.
Any amendments to his Constitution may be proposed in
either house of the Legislature, and if two-thirds of all the
members elected of the two houses, shall vote
391
VOL. 50, MARCH 31, 1973 391

in favor thereof, such proposed amendment or amendments

shall be entered on their respective journals with the yeas
and nays taken thereon; and the Legislature shall cause
the same to be published in at least one newspaper in every
county of the State, where a newspaper is published, for
two months immediately preceding the next general
election, at which time the said amendment or
amendments shall be submitted to the electors of the State,
for their approval or rejection, and if a majority of the
electors voting thereon shall approve the same, such
amendment or amendments shall become part of this
Constitution. If two or more amendments are proposed,
they shall be so submitted as to enable the electors to vote
on each of them separately.
Sec. 2. Revision of the Constitution by convention.
Whenever two-thirds of the members, elected to each
branch of the Legislature, shall deem it necessary to call a
convention to revise or amend this Constitution, they shall
recommend to the electors to vote at the next general
election, for or against a convention, and, if a majority of all
the electors, voting at such election, shall vote for a
convention. The Legislature, at its next session, shall
provide by law for calling the same. The convention shall
consist of not less than the number of members in both
branches of the Legislature.
15. Wyoming (1890) — Art. XX. Amendments.
Sec. 1. Procedure for amendments. Any amendment or
amendments to this Constitution may be proposed in either
branch of the legislature, and, if the same shall be agreed
to by two-thirds of all the members of the two houses,
voting separately, such proposed amendment or
amendments shall, with the yeas and nays thereon, be
entered on their journals, and it shall be the duty of the
legislature to submit such amendment or amendments to
the electors of the state at the next general election, in at
least one newspaper of general circulation, published in
each county, and if a majority of the electors shall ratify
the same, such amendment or amendments shall become a
part of this constitution.
392


Sec. 2. How voted for. If two or more amendments are
proposed, they shall be submitted in such manner that the
electors shall vote for or against each of them separately.
Sec. 3. Constitutional convention; provision for.
Whenever two-thirds of the members elected to each
branch of the legislature shall deem it necessary to call a
convention to revise or amend this constitution, they shall
recommend to the electors to vote at the next general
election for or against a convention, and if a majority of all
the electors voting at such election shall have voted for a
convention, the legislature shall at the next session provide
by a law for calling the same; and such convention shall
consist of a number of members, not less than double that
of the most numerous branch of the legislature.
Sec. 4. New constitution. Any constitution adopted by
such convention shall have no validity until it has been
submitted to and adopted by the people.
——o0o——
_______________
@ 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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No. L-36142. March 31, 1973.

JOSUE JAVELLANA, petitioner, vs. THE EXECUTIVE SECRETARY,

No. L-36164. March 31, 1973.

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

No. L-36165. March 31, 1973.

No. L-36236. March 31, 1973.

No. L-36283. March 31, 1973.

Constitutional law; Doctrine of Separation of powers; Six

32 SUPREME COURT REPORTS ANNOTATED

Javellana vs. The Executive Secretary

VOL. 50, MARCH 31, 1973 33

Javellana vs. The Executive Secretary

Constitution is not in force.—On the fifth question of whether the

Concepcion, C.J., dissenting:

Constitutional law; Courts; Only a majority of all the

34 SUPREME COURT REPORTS ANNOTATED

Javellana vs. The Executive Secretary

VOL. 50, MARCH 31, 1973 35

Javellana vs. The Executive Secretary

and cannot accordingly, be dispensed with, except by

Javellana vs. The Executive Secretary

Art. X of the Constitution which can be hardly sanctioned. And,

VOL. 50, MARCH 31, 1973 37

Javellana vs. The Executive Secretary

acquiescence thereto. Whether they recognized the proposed

38 SUPREME COURT REPORTS ANNOTATED

Javellana vs. The Executive Secretary

regards the applicability to these cases of the “enrolled bill” rule,

Makalintal and Castro, JJ.:

Constitutional law; Inquiry as to whether or not the act of the

VOL. 50, MARCH 31, 1973 39

Javellana vs. The Executive Secretary

the voting was conducted in the Citizens Assemblies, assuming

Constitutional law; Validity of a law presumed until otherwise

40 SUPREME COURT REPORTS ANNOTATED

Javellana vs. The Executive Secretary

under the 1973 Constitution) touching on the capacity in which

VOL. 50, MARCH 31, 1973 41

Javellana vs. The Executive Secretary

albeit I held that nonetheless, the Constitution of 1973 is already

42 SUPREME COURT REPORTS ANNOTATED

Javellana vs. The Executive Secretary

decisions and more resolute action. After all voting on a whole

VOL. 50, MARCH 31, 1973 43

Javellana vs. The Executive Secretary

requirements of Article XV thereof. What is more, that decision

44 SUPREME COURT REPORTS ANNOTATED

Javellana vs. The Executive Secretary

Constitutional law; Issue as to the validity of Proclamation

Constitutional law; Issue as to whether or not Constitution of

VOL. 50, MARCH 31, 1973 45

Javellana vs. The Executive Secretary

political and not justiciable.—Certainly, the invalidation of

Zaldivar, J., dissenting and concurring:

Constitutional law; Meaning of political question.—A political

46 SUPREME COURT REPORTS ANNOTATED

Javellana vs. The Executive Secretary

validity of the proposal, the submission, and the ratification of

VOL. 50, MARCH 31, 1973 47

Javellana vs. The Executive Secretary

consider the votes in the barangays as expressive of the popular

48 SUPREME COURT REPORTS ANNOTATED

Javellana vs. The Executive Secretary