JAVELLANA VS- EXECUTIVE SECRETARY, 50 SCRA 30 (1973)

Constitutional Law. Political Law. Ratification Cases. Date of effectivity of the 1973
Constitution.
JAVELLANA VS THE EXECUTIVE SECRETARY
50 SCRA 30; March 31, 1973
Ponente: Concepcion, C.J
FACTS:
On January 20, 1973, Josue Javellana filed a prohibition case to restrain respondents
from implementing any of the provisions of the proposed constitution not found in
the present constitution. Javellana maintained that the respondents are acting
without or in excess of jurisdiction in implementing proposed constitution and that
the president is without power to proclaim the ratification of the constitution. Similar
actions were filed by Vidal Tan, Gerardo Roxas, among others. Petitioners pray for
the nullification of Proclamation 1102 (Citizens Assemblies) and any order, decree,
and proclamation which are similar in objective.
ISSUES:
1. Is the validity of Proclamation No. 1102 justiciable?
2. Was the constitution proposed by the 1971 Constitutional Convention ratified
validly in compliance to applicable laws?
3. Was the proposed Constitution acquiesced by the people?
4. Are the petitioners entitled relief?
5. Is the proposed Constitution in force?
HELD:
Whether a constitutional amendment has been properly adopted according to an
existing constitution is a judicial question as it is the absolute duty of the judiciary
to determine whether the Constitution has been amended in the manner required
by the constitution. The Constitution proposed by the 1971 Convention was not
validly ratified in accordance with Article XV section 1 of the 1935 Constitution
which provides only one way for ratification (election or plebiscite held in
accordance with law and only with qualified voters). Due to the environmental and
social conditions in the Philippines (i.e. martial law) the Court cannot honestly say
that the people acquiesced to the proposed Constitution. The majority ruled to
dismiss the cases as the effectivity of the proposed Constitution is the basic issue
posed by the cases which considerations other than judicial are relevant and
unavoidable. The new constitution is in force as there are not enough votes to say
otherwise.
-------------------Javellana vs. The Executive Secretary 50 SCRA 30
Ponente:

Chief Justice Roberto Concepcion

The Facts:
The Plebiscite Case

JAVELLANA VS- EXECUTIVE SECRETARY, 50 SCRA 30 (1973)

A Convention to propose amendments to the Constitution of the Philippines was
approved on August 24, 1970 and began to perform its functions on June 1, 1971.
On September 21, 1972, the President issued Proclamation No. 1081 placing the
entire Philippines under Martial Law.
On November 29, 1972, the 1971 Constitutional Convention approved its Proposed
Constitution of the Republic of the Philippines. The next day,President Marcos
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.
On December 7, 1972, Charito Planas filed a case against the Commission on
Elections, the Treasurer of the Philippines and the Auditor General, to enjoin said
respondents or their agents from implementing Presidential Decree No. 73, in any
manner, until further orders of the Court, upon the grounds, inter alia, that said
Presidential Decree has no force and effect as law because the calling of such
plebiscite, the setting of guidelines for the conduct of the same, the prescription of
the ballots to be used and the question to be answered by the voters, and the
appropriation of public funds for the purpose, are, by the Constitution, lodged
exclusively in Congress and there is no proper submission to the people of said
Proposed Constitution set for January 15, 1973, there being no freedom of speech,
press and assembly, and there being no sufficient time to inform the people of the
contents thereof.
On December 23, the President announced the postponement of the plebiscite for
the ratification or rejection of the Proposed Constitution and temporarily suspending
the effects of Proclamation No. 1081 for purposes of free and open debate on the
proposed Constitution.
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.
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.
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 and set the motion for hearing on January 17, 1973, at 9:30
a.m.
While the case was being heard, the President issued Proclamation No. 1102.
ANNOUNCING THE RATIFICATION BY THE FILIPINO PEOPLE OF THE CONSTITUTION
PROPOSED BY THE 1971 CONSTITUTIONAL CONVENTION

JAVELLANA VS- EXECUTIVE SECRETARY, 50 SCRA 30 (1973)

Citizens Assemblies were created in barrios, in municipalities and in districts/wards
in chartered cities. The said Citizens Assemblies were established 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.
The Ratification Case
On January 20, 1973, Josue Javellana filed Case G.R. No. L-36142, as a Filipino
citizen, and a qualified and registered voter and as a class suit, for himself, and in
behalf of all citizens and voters similarly situated 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. Javellana alleged that the President ordered the
immediate implementation of the New Constitution, thru his Cabinet, and that the
latter are acting without or in excess of jurisdiction in implementing the said
proposed Constitution. He construed that the President is without authority to
create the Citizens Assemblies; to approve the proposed Constitution; proclaim the
ratification; and that the election held to ratify the proposed Constitution was not a
free election, hence null and void.
The Issue:
Is the issue of the validity of Proclamation No. 1102 a justiciable, or political and
therefore non-justiciable, question?
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?
Has the aforementioned proposed Constitution acquiesced in (with or without valid
ratification) by the people? (acquiesced permission given by silence or
passiveness. Acceptance or agreement by keeping quiet or by not making
objections.)
Are petitioners entitled to relief?
Is the aforementioned proposed Constitution in force?
Decision and Ratio:
The court was severely divided on the issues raised in the petition but when the
crucial question of whether the petitioners are entitled to relief, six members of the
court (Justices Makalintal, Castro, Barredo, Makasiar, Antonio and Esguerra) voted to
dismiss the petition. Concepcion, together Justices Zaldivar, Fernando and
Teehankee, voted to grant the relief being sought, thus upholding the 1973
Constitution.
The Court held that the issue is political and beyond the ambit of judicial inquiry.
Court held 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

JAVELLANA VS- EXECUTIVE SECRETARY, 50 SCRA 30 (1973)

registered voters. However, 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.
On the fourth question, 6 justices voted to DISMISS the petition. Justice 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.
On the fifth question of whether the new Constitution of 1973 is 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.
Dissenting Opinion:
Justice Barredo qualified his vote, stating that As 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, especially in the manner the votes therein
were cast, reported and canvassed, falls short of the requirements thereof.
However, the fact that 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, 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.

----------------50 SCRA 30 Political law Constitutional Law Political Question Validity of the
1973 Constitution Restriction to Judicial Power
In 1973, Marcos ordered the immediate implementation of the new 1973
Constitution. Javellana, a Filipino and a registered voter sought to enjoin the Exec
Sec and other cabinet secretaries from implementing the said constitution. Javellana
averred that the said constitution is void because the same was initiated by the
president. He argued that the President is w/o power to proclaim the ratification by

JAVELLANA VS- EXECUTIVE SECRETARY, 50 SCRA 30 (1973)

the Filipino people of the proposed constitution. Further, the election held to ratify
such constitution is not a free election there being intimidation and fraud.
ISSUE: Whether or not the SC must give due course to the petition.
HELD: The SC ruled that they cannot rule upon the case at bar. Majority of the SC
justices expressed the view that they were concluded by the ascertainment made
by the president of the Philippines, in the exercise of his political prerogatives.
Further, there being no competent evidence to show such fraud and intimidation
during the election, it is to be assumed that the people had acquiesced in or
accepted the 1973 Constitution. The question of the validity of the 1973
Constitution is a political question which was left to the people in their sovereign
capacity to answer. Their ratification of the same had shown such acquiescence.
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