Javellana vs. ExecSec PDF

No.
L-36142. March 31, 1973.

Josue Javellana, petitioner, vs. The Executive Secre-tary, The Secretary of
National Defense, The Secretary of Justice and The Secretary of
Fi-nance, respondents.
No. L-36164. March 31, 1973.
Vidal Tan, J. Antonio Araneta, Alejandro Roces, Ma-nuel Crudo, Antonio U.
Miranda, Emilio de Peralta and Lorenzo M. Taada, petitioners, vs. The
Executive Secretary, The Secretary of Finance, The Secretary of Justice,
The Secretary of Land Re-form, The Secretary of National Defense, The
Auditor General, The Budget Commissioner, The Chairman of
Presidential Commission on Reorga-nization, 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 De-fense; General Romeo Espino,
in his capacity as Chief of Staff of the Armed Forces of the Philippines;
Constancio E. Castaeda, 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 Philip-pines], petitioner, vs. The Executive
Secretary, The Secretary of Public Information, The Auditor General,
The Budget Commissioner & The Nation31
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
Honor-able Secretary of National Defense, The Honor-able 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
peoples 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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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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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 peoples 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
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settled applying the provisions of the Constitution in force at the time of the
alleged ratification of the old
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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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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
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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 peoples 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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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 peoples 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
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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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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, feebleminded, 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
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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
counsels 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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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
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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 Courts 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
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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 peoples 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
43
in a futile exercise of their supreme
44
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 selfevident.
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 Taada, 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
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VOL. 50, MARCH 31, 1973

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
45
change the Constitution.It is in the power of this Court, as the ultimate
interpreter of the Constitution, to determine the
46
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 Womens 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
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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
47 perspective.It can safely be said that when the
taken in its historical
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
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 L36165 (Gerardo Roxas, et al. v. Alejandro Melchor, et al.) when he said that
the members of Congress who opted to serve in the interim National
Assembly did 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
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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
49
Philippines, even discounting an almost similar period of time dating from
the inception of American
50
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 liti-gation, if my reading of the
events and the process that led to such pro-clamation, 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.
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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
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.
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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
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. Manda-mus and prohibition.
The facts are stated in the resolution of the Court.
Ramon A. Gonzales for petitioner Josue Javellana.
Lorenzo M. Taada & Associates for petitioners Vidal Tan, et al.
Taada, 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.

R E S O L U T I O N

CONCEPCION, C.J.:
The above-entitled five (5) cases are a sequel of cases G.R. Nos. L35925, L-35929, L-35940, L-35941, L-35942, L-35948, L-35953, L-35961, L35965 and L-35979, decided on January 22, 1973, to which We will hereafter
refer collectively as the plebiscite cases.
Background of the Plebiscite Cases.
The factual setting thereof is set forth in the decision therein rendered, from
which We quote:
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VOL. 50, MARCH 31, 1973

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
56

Philippines (Case G.R. No. L-35941), and by Sedfrey Ordoez, et al. against
the National Treasurer and the Commission on Elections (Case G.R. No. L35942); 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. L35953); 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 (oclock) 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
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VOL. 50, MARCH 31, 1973

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
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?
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VOL. 50, MARCH 31, 1973

[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
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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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
62
61

prayer at the plebiscite be prohibited has now collapsed and that a free
plebiscite can no longer be held.
At about the same time, a similar prayer was made in a manifestation filed
by the petitioners in L-35949, Gerardo Roxas, et al. v. Commission on

Elections, et al., and L-35942, Sedfrey A. Ordoez, et al. v. The National
Treasurer, et al.
The next day, January 13, 1973, which was a Saturday, the Court issued a
resolution requiring the respondents in said three (3) cases to comment on
said urgent motion and manifestation, not later than Tuesday noon,
January 16, 1973. Prior thereto, or on January 15, 1973, shortly before
noon, the petitioners in said Case G.R. No. L-35948 riled a supplemental
motion for issuance of restraining order and inclusion of additional
respondents, praying
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 Roo; the Department of Agrarian Reforms and
its head, Secretary Conrado Estrella; the National Ratification Coordinating
Committee and its Chairman, Guillermo de Vega; their deputies,
subordinates and substitutes, and all other officials and persons who may
be assigned such task, from collecting, certifying, and announcing and
reporting to the President or other officials concerned, the so-called
Citizens Assemblies referendum results allegedly obtained when they were
supposed to have met during the period comprised between January 10 and
January 15, 1973, on the two questions quoted in paragraph 1 of this
Supplemental Urgent Motion.
In support of this prayer, it was alleged
3. That petitioners are now before this Honorable Court in order to ask
further that this Honorable Court issue a restraining order enjoining herein
respondents, particularly respondent Commission on Elections as well as the
Department of Local Governments and its head, Secretary Jose Roo; the
Department of Agrarian Reforms and its head, Secretary Conrado Estrella;
the National Ratification Coordinating Committee and its Chairman,
Guillermo de Vega; and their deputies, subordinates and/or substitutes,
from collecting, certifying, announcing and reporting to the President the
supposed Citizens Assemblies referendum results allegedly obtained when
they were supposed to have met during the period between January 10 and
January 15, 1973, particularly
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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
64

63 that the Citizens Assemblies were ordered formed
It should be recalled
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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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
66
65

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 seventyone Constitutional Convention is subject to ratification by the Filipino
people;
WHEREAS, Citizens Assemblies were created in barrios, in municipalities
and in districts/wards in chartered cities pursuant to Presidential Decree No.
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
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VOL. 50, MARCH 31, 1973

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
68
67

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 Presidents 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
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VOL. 50, MARCH 31, 1973

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
70
69

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
1
2
(6) of its members, with three (3) members dissenting, with respect to G.R.
3
No. L-35948, only and another member 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. L36142 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.
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VOL. 50, MARCH 31, 1973

voter and as a class suit, for himself, and in behalf of all citizens and voters
similarly situated, was amended on or about January 24, 1973. After
reciting in substance the facts set forth in the decision in the plebiscite cases,
Javellana alleged that the President had announced the immediate
implementation of the New Constitution, thru his Cabinet, respondents

including, and that the latter are acting without, or in excess of jurisdiction
in implementing the said proposed Constitution upon the ground: that the
President, as Commander-in-Chief of the Armed Forces of the Philippines, is
without authority to create the Citizens Assemblies; that the same are
without power to approve the proposed Constitution ...; that the
President is without power to proclaim the ratification by the Filipino people
of the proposed Constitution; and that the election held to ratify the
proposed Constitution was not a free election, hence null and void.
Similar actions were filed, on January 23, 1973, by Vidal Tan, J. Antonio
Araneta, Alejandro Roces, Manuel Crudo, Antonio U. Miranda, Emilio de
Peralta and Lorenzo M. Taada, against the Executive Secretary, the
Secretaries of Finance, Justice, Land Reform, and National Defense, the
Auditor General, the Budget Commissioner, the Chairman of the
Presidential Commission on Reorganization, the Treasurer of the
Philippines, the Commission on Elections and the Commissioner of Civil
4
Service; 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
5
Budget Commissioner and the National Treasurer; and on February 12,
1973, by Napoleon V. Dilag, Alfredo Salapantan, Jr., Leonardo Asodisen, Jr.
6
and Raul M. Gonzales, 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.
7
Salonga, Salvador H. Laurel, 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.
71
72
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
8
9
petitioners would expire on December 31, 1975, and that of the others 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

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.
73
74
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 abovementioned 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)
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VOL. 50, MARCH 31, 1973

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, L36164, 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,
10
the parties in G.R. No. L-36283 agreed that the same be, likewise, heard,
as it was, in fact, heard jointly with the aforementioned cases G.R. Nos. L36142, 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
76
75

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.
Writers 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

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
78
77

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
11
them.
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
12
vote of two-thirds (2/3) of all members of each House of Congress. A treaty
13
is entered into by the President with the concurrence of the Senate, 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

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
14
of an executive order.
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
15
and Jose Roy maintain in G.R. No. L-36165. 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.

79
80
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
16
in force at the time of the alleged ratification, or the old Constitution.
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 countrys 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.
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VOL. 50, MARCH 31, 1973

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 peoples 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
17
Court, 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,
81
82
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.
18
Thus, in the aforementioned plebiscite cases, 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, L35953, L-35961, L-35965 and L-35979, decided on January 22, 1973.
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VOL. 50, MARCH 31, 1973

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
19
respondents contention in the 1971 habeas corpus cases, 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
20
21
in Barcelona v. Baker and Montenegro v. Castaeda, 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
22
modified, in Gonzales v. Commission on Elections, the political-question
23
theory adopted in Mabanag v. Lopez Vito. 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
24
Vito.
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.
83
24 Supra.
84
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
25
Constitution.
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

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
26
the exclusion of the others. Hence, in Taada v. Cuenco, this Court quoted
27
with approval from In re McConaughy, 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.
85
86
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

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 nonpolitical, 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
28
it. This explains why, in Miller v. Johnson, 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
29
constitution, will declare the amendment invalid. 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
30
departments of the government.
_______________
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.
87
30 Angara v. Electoral Commission, 63 Phil. 139, 157. Italics ours.
88
88
89

31
The Solicitor General has invoked Luther v. Borden 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 Luthers 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).
VOL. 50, MARCH 31, 1973


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
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
32
the lawful and established government during the time of this contest.
_______________
32 Luther v. Borden, supra, p. 598. Italics ours.
91
VOL. 50, MARCH 31, 1973

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
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
33
of the Constitution of the state. x x x.
34
Baker v. Carr, 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.
35
Similarly, in Powell v. McCormack, 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 Powells 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

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
36
amend the organic law. x x x.
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
Courts 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
37
denominated political exceeds constitutional authority.
_______________
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
94
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

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
38
to either February 19 or March 5, 1973.
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
96

95
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
97
VOL. 50, MARCH 31, 1973

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.

39
xxx xxx xxx

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 Generals 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
98
97

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
40
laws then in force in the Philippines x x x. 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
41
the question.
The third recommendation on compulsory voting was, also debated upon
42
rather extensively, after which it was rejected by the Convention. 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

43
read and write, which was decided in the negative.
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
44
qualifications for and disqualifications from voting, are quoted below. 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
99
100
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.
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VOL. 50, MARCH 31, 1973

twenty-one (21) years to eighteen (18) years, which, however, did not
materialize on account of the decision of this Court in Tolentino v.
45
Commission on Elections, 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
46
paragraph of said section 6 of Rep. Act No. 3590, 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
47
section, (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
101
council may fill the same.
102
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
48
Fundamental Law of the land. 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


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
49
that required for the election of public officers, 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
50
down in both the Constitution and the present Election Code, and of
whether or not they are disqualified under the provisions of said
51
52
Constitution and Code, or those of Republic Act No. 3590, 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
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
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

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
53
proceedings in the Citizens Assemblies must be considered null and void.
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
54
votes from the illegal or spurious x x x.
55
In Usman v. Commission on Elections, et al., 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
56
equivalent of ballots cast. The word cast is defined as
57
to deposit formally or officially.
_______________
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
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
58
ballot of the choice of the voter on the measure proposed.
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

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
59
appointed the longest under the Constitution, second only to that of
60
the Auditor General ; by
_______________
59 Art. X, section 1 of the 1935 Constitution.
60 Ten (10) years.
108
108
109

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
61
only ; that (n)o pardon, parole, or suspension sentence for the violation of
any election law may be granted without the favorable recommendation of
62
the Commission ; 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
63
the Government or any subdivision or instrumentality thereof. 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.
VOL. 50, MARCH 31, 1973


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
64
5 and 6 of said Act, quoted below. 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
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

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.
65
In Glen v. Gnau, 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
66
corpus cases 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
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
67
which is quoted below 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

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.
by virtue of the powers vested in me by the Constitution as Commander-inChief 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.
nineteen hundred and seventy-three. (Italics ours.)
114
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

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
peoples 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
68
L.R.A. 170; Bouviers Law Dictionary.
_______________
68 McKinney v. Baker, 180 Ky. 526 203 S.W. 303, 304. Italics ours.
116

IV
116
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
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certified in Proclamation No. 1102 that the Constitution proposed by the
nineteen hundred and seventy-one (1971) Constitutional Convention has
been ratified by an overwhelming majority of all of the votes cast by the
members of all the Barangays (Citizens Assemblies) throughout the
Philippines and has thereby come into effect.
In this connection, it is not claimed that the Chief Executive had personal
knowledge of the data he certified in said proclamation. Moreover, Art. X of
the 1935 Constitution was precisely inserted to place beyond the Executive
the power to supervise or even exercise any authority whatsoever over
all laws relative to the conduct of elections, and, hence, whether the
elections are for the choice or selection of public officers or for the
ratification or rejection of any proposed amendment, or revision of the
Fundamental Law, since the proceedings for the latter are, also, referred to
in said Art. XV as elections.
The Solicitor General stated, in his argument before this Court, that he had
been informed that there was in each municipality a municipal association
of presidents of the citizens assemblies for each barrio of the municipality;
that the president of each such municipal association formed part of a
provincial or city association of presidents of such municipal associations;
that the president of each one of these provincial or city associations in turn
formed part of a National Association or Federation of Presidents of such
Provincial or City Associations; and that one Francisco Cruz from Pasig, Rizal,
as President of said National Association or Federation, reported to the
President of the Philippines, in the morning of January 17, 1973, the total
result of the voting in the citizens assemblies all over the country from
January 10 to January 15, 1973. The Solicitor General further intimated that
the said municipal associations had reported the results of the citizens
assemblies in their respective municipalities to the corresponding Provincial
Association, which, in turn, transmitted the results of the voting in the to
the Department of Local Governments and Community Development, which
tabulated the results of the voting in the citizens assemblies throughout the
Philippines and then turned them over to Mr. Francisco Cruz, as President
or acting
118
118
117

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
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69
provided in the Constitution, is not conclusive upon the courts. It is no
70
more than prima facie evidence of what is attested to by said resolution. 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
71
office involved. 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.
72
The case of In re McConaughy 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.
119
72 106 Minn 392, 119 N.W. 408, 409.
120
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.
73
In Bott v. Wartz, 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.
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74
the court in Rice v. Palmer.
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
75
orally, as it was in many Citizens Assemblies.
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
122
121

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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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
76
cases 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 plebiscitepostponed 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.
123
124
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
[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
[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
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plebiscite could be held thereafter in connection therewith, even if the
majority of the answers to question No. 8 were, also, in the affirmative. If

the majority of the answers to question No. 7 were in the negative, neither
may another plebiscite be held, even if the majority of the answers to
question No. 8 were in the affirmative. In either case, not more
than one plebiscite could be held for the ratification or rejection of the
proposed Constitution. In short, the insertion of said two (2) questions
apart from the other questions adverted to above indicates strongly that
the proceedings therein did not partake of the nature of a plebiscite or
election for the ratification or rejection of the proposed Constitution.
Indeed, I can not, in good conscience, declare that the proposed
Constitution has been approved or adopted by the people in the citizens
assemblies all over the Philippines, when it is, to my mind, a matter of
judicial knowledge that there have been no such citizens assemblies
in many parts of Manila and suburbs, not to say, also, in other parts of the
Philippines. In a letter of Governor Efren B. Pascual of Bataan, dated January
15, 1973, to the Chief Executive, the former reported:

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
125
126
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
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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
77
and Amendment case, 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
78
States stressed, in Baker v. Carr, 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
128
127

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
79
of our 1935 Constitution.
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).
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VOL. 50, MARCH 31, 1973

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.
80
Thus, for instance, the case of Taylor v. Commonwealth cited by
respondents herein in support of the theory of the peoples 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
130
129

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.
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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
81
adduced to warrant departure therefrom.
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
82
convening Congress. The Daily Express of that date, 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.
131
132
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 peoples 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,
83
meant coercion by the military, and compulsion and intimidation. 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

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
134
133

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.
84
After citing approvingly its ruling in United States v. Sandoval, the Highest
Court of the United States that courts will not stand impotent before an
85
obvious instance of a manifestly unauthorized exercise of power.
I cannot honestly say, therefore, that the people impliedly or expressly
indicated their conformity to the proposed Constitution.
VI
Are the Parties entitled to any relief?
Before attempting to answer this question, a few words be said about the
procedure followed in these five (5) cases. In this connection, it should be
noted that the Court has not decided whether or not to give due course to
the petitions herein or to require the respondents to answer thereto.
Instead, it has required the respondents to comment on the respective
petitions with three (3) members of the voting to dismiss them outright
and then considers comments thus submitted by the respondents as
motions to dismiss, as well as set the same for hearing. This was due to
_______________
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

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
86
Proclamation 1102. 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 Barredos opinion in the plebiscite cases.
136
136
135

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
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VOL. 50, MARCH 31, 1973

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 Courts 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
138

137

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 peoples 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
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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
87
registered voters.
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
140
139

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
88
feature of martial law.
Three (3) members of the Court express their lack of knowledge and/or
competence to rule on the question. Justices Makalintal and Castro are
joined by Justice Teehankee in their statement that Under a regime of
martial law, with the free expression of opinions through the usual media
vehicle restricted, (they) have no means of knowing, to the point of judicial

89
certainty, whether the people have accepted the Constitution.
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
90
91
competence of this Court, are relevant and unavoidable.

_______________
88 Justice Barredos 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

Four (4) members of the Court, namely, Justices Zaldivar, Fernando,
Teehankee and myself voted to deny respondents motion to dismiss and to
give due course to the petitions.
5. On the fifth question of whether the new Constitution of 1973 is in force:
Four (4) members of the Court, namely, Justices Barredo, Makasiar, Antonio
and Esguerra hold that it is in force by virtue of the peoples acceptance
thereof;
Four (4) members of the Court, namely, Justices Makalintal, Castro,
Fernando and Teehankee cast no vote thereon on the premise stated in
their votes on the third question that they could not state with judicial
certainty whether the people have accepted or not accepted the
Constitution; and
Two (2) members of the Court, namely, Justice Zaldivar and myself voted
that the Constitution proposed by the 1971 Constitutional Convention is not
in force;
with the result that there are not enough votes to declare that the new
Constitution is not in force.
ACCORDINGLY, by virtue of the majority of six (6) votes of Justices
Makalintal, Castro, Barredo, Makasiar, Antonio and Esguerra with the four
(4) dissenting votes of the Chief Justice and Justices Zaldivar, Fernando and
Teehankee, all the aforementioned cases are hereby dismissed. This being
the vote of the majority, there is no further judicial obstacle to the new
Constitution being considered in force and effect.
It is so ordered.
Makalintal, Castro, Barredo, Makasiar, Antonio and Esguerra, JJ.,
concur.
Concepcion, C.J., dissents.
Zaldivar, J., dissents in line with the personal opinion of
142
142

the Chief Justice, and also dissents in a separate opinion.
Fernando, J., dissents in conformity with the personal views of the
141
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 Justices
personal opinion and files a separate dissent.

143
VOL. 50, MARCH 31, 1973

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
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

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
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
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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
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
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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.
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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
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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
152

ANNEX B
MALACAANG
MANILA
BY THE PRESIDENT OF THE PHILIPPINES
PRESIDENTIAL DECREE NO. 86-B
Defining Further the Role of Barangays (Citizens Assemblies)
WHEREAS, since their creation pursuant to Presidential Decree No. 86 dated
December 31, 1972, the Barangays (Citizens Assemblies) have petitioned
the Office of the President to submit to them for resolution important
national issues;
WHEREAS, one of the questions persistently mention refers to the
ratification of the Constitution proposed by the 1971 Constitutional
Convention;
WHEREAS, on the basis of the said petitions, it is evident that the people
believe that the submission of the proposed Constitution to the Citizens
Assemblies or Barangays should taken as a plebiscite in itself in view of the
fact that freedom of debate has always been limited to the leadership in
political, economic and social fields, and that it is now necessary to bring this
down to the level of the people themselves through the Barangays or
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.
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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,
(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
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
peoples 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
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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
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 everybodys 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.
157
158
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 accordance
(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
160

revolutionary government along the lines of the new Constitution without
the ad interim Assembly.
So it was that 159
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
162
161

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 L36165), 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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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 Commanderin-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.
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164
163

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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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
166
165

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 peoples will are too awesome to be even
considered. For if any power in government should even dare to disregard
the peoples 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.
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168

167
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
peoples 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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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 Todays
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
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
169
Q. Now that you have gotten off the constitutional track, wont 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 Presidents 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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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
nations 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.
Taada on January 15, 1973 in the so called Plebiscite Cases decided by this
Court on January 22, 1978. Of course, there are amplifications of some of
the grounds previously alleged and in the course of the unprecedented fiveday hearing that was held from February 12 to 16 last, more extensive and
illuminating arguments were
172
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 171
already been previously presented by Counsel Taada is
before Us now. Accordingly, I cannot see any reason why I should change
the position I took in regard to the earlier cases. I reiterate, therefore, the
vote I cast when these petitions were initially considered by the Court;
namely, to dismiss them.
In view, however, of the transcendental importance of the issues before the
Court and the significance to our people and in history of the individual
stands of the members of the Court in relation to said issues and to the final
outcome of these cases, and considering that I reserved before the filing of
a more extended opinion, I will take this opportunity to explain further why
I hold that the 1973 Constitution is already in force, if only to clarify that
apart from the peoples 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 womens 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
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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
174
173

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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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.
by virtue of the powers vested in me by the Constitution as Commander-inChief 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
175
January 22, 1973, and the holding of elections in November 1973, and others
in the future, which shall
176
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.
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
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NOW THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines,
by virtue of the powers in me vested by the Constitution, do hereby order
that important national issues shall from time to time be referred to the
Barangays (Citizens Assemblies) for resolution in accordance with
Presidential Decree No. 86-A dated January 5, 1973 and that the initial
referendum shall include the matter of ratification of the Constitution
proposed by the 1971 Constitutional Convention.
The Secretary of the Department of Local Governments and Community
Development shall insure the implementation of this Order.
Done in the City of Manila, this 7th day of January in the year of Our Lord,
nineteen hundred and seventy-three."
And so it was that by January 10, 1973, when the Citizens Assemblies thus
created started the referendum which was held from said date to January
15, 1973, the following questions were submitted to them:
(1) Do you like the New Society?
(2) Do you like the reforms under martial law?
(3) Do you like Congress again to hold sessions?
(4) Do you like the plebiscite to be held later?
(5) Do you like the way President Marcos is running the affairs of the
government?.
but on January 11, 1973, six questions were added as follows:
(1) Do you approve of the citizens assemblies as the base of popular
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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 accordance
(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
177
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
The Solicitor General claims, and there seems to be no
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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 oclock, 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
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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
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;
by virtue of the powers in me vested by the Constitution, do hereby certify
and proclaim that the Constitution proposed by the nineteen hundred and
seventy-one (1971) Constitutional Convention has been ratified by an
overwhelmingly majority of all of the votes cast by the members of all the
Barangays (Citizens Assemblies) throughout the Philippines, and has thereby
come into effect.
IN WITNESS WHEREOF, I have hereunto set my hand and caused the seal of
the Republic of the Philippines to be affixed.
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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
1
filed by different petitioners during the first half of December 1972. Their
common target then was Presidential Decree No. 73, but before the said
cases could be decided, the series of moves tending in effect to make them
moot and academic insofar as they referred exclusively to the said
Presidential Decree began to take shape upon the issuance of Presidential
Decree No. 86-A, quoted above. And when Presidential Decree No. 86-B,
also above quoted, was issued and the six additional questions which were
first publicized on January 11, 1973 were known, together with the
comments, petitioners sensed that a new and unorthodox procedure was
being adopted to secure approval by the people of the new Constitution,
hence Counsel Taada, not being satisfied with the fate of his urgent motion
for early decision of the above ten cases dated January 12, 1973, filed on
January 15, 1973, his supplemental motion seeking the prohibition against
and injunction of the proceedings going on. Principal objective was to
prevent that the President be furnished the report of the results of the
referendum and thereby disable him from carrying out what petitioners
were apprehensively foreseeing would be done the issuance of some kind
of proclamation, order or decree, declaring that the new Constitution had
been ratified. Reacting swiftly, the Court resolved on the same day, January
15, which was Monday, to consider the supplemental motion as a
supplemental petition and to require the
_______________
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. Ordoez, 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.
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respondents to answer the same the next Wednesday, January 17th, before
the hour of the hearing of the petition which set for 9:30 oclock in the
morning of that day. The details what happened that morning form part of
the recital of facts the decision rendered by this Court in the ten cases on
January 22, 1973 and need not be repeated here. Suffice it to state no that
before the hearing could be closed and while Counsel Taada was still
insisting on his prayer for preliminary injunction or restraining order, the
Secretary of Justice arrived and personally handed to the Chief Justice a copy
Proclamation 1102 which had been issued at about 11:00 oclock 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 Taadas 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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from six to eight in ordinary cases and from eight to ten for the declaration
2
of unconstitutionality of a treaty, executive agreement 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 Courts 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.
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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 15man 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
counsels 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
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their legality, not only because if that were to be the rule, the functioning of
government would correspondingly be undesirably hesitative and
cumbersome, but more importantly, because the courts must at the first
instance accord due respect to the acts of the other departments, as
otherwise, the smooth running of the government would have to depend
entirely on the unanimity of opinions among all its departments, which is
hardly possible, unless it is assumed that only the judges have the exclusive
prerogative of making and enforcing the law, aside from being its sole
interpreter, which is contrary to all norms of juridical and political thinking.
To my knowledge, there is yet no country in the world that has recognized
judicial supremacy as its basic governmental principle, no matter how
desirable we might believe the idea to be.
Indeed, it is not hard to visualize the difficulty if not absurdity of Our acting
on the assumption that this Court is still functioning under the 1935
Constitution. It is undeniable that the whole government, including the
provincial, municipal and barrio units and not excluding the lower courts up
to the Court of Appeals, is operating under the 1973 Constitution. Almost
daily, presidential orders and decrees of the most legislative character
affecting practically every aspect of governmental and private activity as
well as the relations between the government and the citizenry are pouring
out from Malacaang under the authority of said Constitution. On the other
hand, taxes are being exacted and penalties in connection therewith are
being imposed under said orders and decrees. Obligations have been
contracted and business and industrial plans have been and are being
projected pursuant to them. Displacements of public officials and
employees in big numbers are going on in obedience to them. For the ten
justices of the Supreme Court to constitute an island of resistance in the
midst of these developments, which even unreasoning obstinacy cannot
ignore, much less impede, is unimaginable, let alone the absurd and
complicated consequences such a position entails in the internal workings
within the judiciary amount its different components, what with the lower
courts considering such orders and decrees as forming part of the law of the
land in making their orders and decisions, whereas the
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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 Secretarys 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
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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 Executives 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
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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-manCourt, 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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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
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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 nonholding 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,
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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 courts 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
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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
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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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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
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3
constitution. 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 peoples 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 peoples 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 piecemeal 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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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,
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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 selfevident. 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
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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 peoples own act of ratifying the
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Constitution of 1935, they have so encased themselves within its provisions
and may, therefore, no longer take measures to redeem themselves from
the situation brought about by the deficiencies of the old order, unless they
act in strict conformity therewith. I cannot believe that any people can be
so stifled and enchained. In any event, I consider it a God-given attribute of
the people to disengage themselves, if necessary, from any covenant that
would obstruct their taking what subsequently appears to them to be the
better road to the promotion and protection of their welfare. And once they
have made their decision in that respect, whether sophisticatedly or crudely,
whether in legal form or otherwise, certainly, there can be no court or
power on earth that can reverse them.
I would not be human if I should be insensitive to the passionate and
eloquent appeals of Counsels Taada and Salonga that these cases be
decided on the basis of conscience. That is exactly what I am doing. But if
counsel mean that only by granting their petitions can this Court be worthily
the bulwark of the peoples faith in the government, I cannot agree, albeit
my admiration and respect are all theirs for their zeal and tenacity, their
industry and wisdom, their patriotism and devotion to principle. Verily, they
have brought out everything in the Filipino that these cases demand.
In times of national emergencies and crises, not arising from foreign
invasion, we need not fear playing opposite roles, as long as we are all
animated by sincere love of country and aim exclusively at the attainment
of the national destiny. Our heroes of the past, Rizal, Bonifacio, Aguinaldo,
Antonio Luna, Mabini and so also with our patriots of the recent
generations, Quezon, Osmea, Roxas, Laurel and Recto, to mention only
some of them, had their differences of views and they did not hesitate to
take diametrically opposing sides that even reached tragic proportions,
but all of them are admired and venerated.
It is my faith that to act with absolute loyalty to our country and people is
more important than loyalty to any particular precept or provision of the
Constitution or to the Constitution itself. My oath to abide by the
Constitution binds me to whatever course of action I feel sincerely is
demanded by the welfare and best interests of the people.
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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 Taada, 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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In 1957, Mr. Chief Justice Roberto Concepcion, then Associate Justice, in
behalf of the Court, defined a political question as one which, under the
Constitution, is to be decided by the people in their sovereign capacity, or
in regard to which full discretionary authority had been delegated to the
Legislature or Executive branch of the government. (Taada, et al. vs.
Cuenco, et al., supra).
Article XV of the 1935 Constitution provides: Such amendments shall be
valid as part of this Constitution when approved by a majority of the votes
cast at an election at which the amendments are submitted to the people
for ratification. Under Article XV of the 1935 Constitution, the power to
propose constitutional amendments is vested in Congress or in a
constitutional convention; while the power to ratify or reject such proposed
amendments or new Constitution is reserved by the sovereign people. The
nullification of Proclamation No. 1102 would inevitably render inoperative
the 1973 Constitution, which is in fact the express prayer of the petitioners
in G.R. No. L-36164. Regardless of the modality of submission or ratification
or adoption even if it deviates from or violates the procedure delineated
therefore by the old Constitution once the new Constitution is ratified,
adopted and/or acquiesced in by the people or ratified even by a body or
agency not duly authorized therefor but is subsequently adopted or
recognized by the people and by the other official organs and functionaries
of the government established under such a new Constitution, this Court is
precluded from inquiring into the validity of such ratification, adoption or
acquiescence and of the consequent effectivity of the new Constitution. This
is as it should be in a democracy, for the people are the repository of all
sovereign powers as well as the source of all governmental authority (Pole
vs. Gray, 104 SO 2nd 841 [1958]). This basic democratic concept is expressly
restated in Section 1 of Article II of the Declaration of Principles of the 1935
and 1973 Constitutions, thus: Sovereignty resides in the people and all
government authority emanates from them.
The legality of the submission is no longer relevant; because the ratification,
adoption and/or acquiescence by the people cures any infirmity in its
submission or any other irregularities therein which are deemed mandatory
before
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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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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 Courts 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:
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Indeed, the power to amend the Constitution or to propose amendments
thereto is not included in the general grant of legislative powers to Congress.
It is part of the inherent powers of the people as the repository of

sovereignty in a republican state, such as ours to make, and hence, to
amend their own Fundamental Law. Congress may propose amendments to
the same explicitly grants such power. Hence, when exercising the same, it
is said that Senators and Members of the House of Representatives
act, not as members, but as component elements of a constituent assembly.
When acting as such, the members of Congress derive their authority from
the Constitution, unlike the people, when performing the same function, for
their authority does not emanate from the Constitution they are the very
source of all powers of government, including the Constitution itself. (21
SCRA 787)
We did not categorically and entirely overturn the doctrine in Mabanag vs.
Lopez Vito (78 Phil. 1) that both the proposal to amend and the ratification
of such a constitutional amendment are political in nature forming as they
do the essential parts of one political scheme the amending process. WE
merely stated therein that the force of the ruling in the said case
of Mabanag vs. Lopez Vito has been weakened by subsequent cases. Thus,
We pronounced therein:
It is true that in Mabanag vs. Lopez Vito, this Court characterizing the issue
submitted thereto as a political one, declined to pass upon the question
whether or not a given number of votes cast in Congress in favor of a
proposed amendment to the Constitution which was being submitted to
the people for ratification satisfied the three fourths vote requirement of
the fundamental law. The force of this precedent has been weakened,
however, by Suanes vs. Chief Accountant of the Senate, Avelino vs. Cuenco,
Taada vs. Cuenco and Macias vs. Commission on Elections. In the first, we
held the officers and employees of the Senate Electoral Tribunal are
supervision and control, not of that of the Senate President, claimed by the
latter; in the second, this Court proceeded to determine the number of
Senators necessary for a quorum in the Senate; in the third we nullified the
election, by Senators belonging to the party having the largest number of
votes in said chamber purporting to act on behalf of the party having the
second largest number of votes therein, of two (2) Senators belonging to the
first party, as members, for the second party, of the Senate Electoral
Tribunal; and in the fourth, we declared unconstitutional an act of
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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
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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
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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
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211

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.
Pomeroys 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
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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
213
214
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
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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
216

215
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
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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
218
217

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:
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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
220
219

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
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of martial law. In both situations, there is no total blackout of human rights
and civil liberties.
All the local governments, dominated either by Nacionalistas or Liberals, as
well as officials of the Legislative and Executive branches of the government
elected and/or appointed under the 1935 Constitution have either
recognized or are now functioning under the 1973 Constitution, aside from
the fact of its ratification by the sovereign people through the Citizens
Assemblies. Ninety-five (95) of a total of one hundred ten (110) members of
the House of Representatives including the Speaker and the Speaker Pro
Tempore as well as about eleven (11) Congressmen who belong to the

Liberal Party and fifteen (15) of a total of twenty-four (24) senators including
Liberal senators Edgar U. Ilarde and John Osmea opted to serve in the
Interim Assembly, according to the certification of the Commission on
Elections dated February 19, 1973 (Annex Rejoinder-3 to Consolidated
Rejoinder of petitioners in L-36165). Only the five (5) petitioners in L-36165
close their eyes to a fait accompli. All the other functionaries recognize the
new government and are performing their duties and exercising their
powers under the 1973 Constitution, including the lower courts. The civil
courts, military tribunals and quasi-judicial bodies created by presidential
decrees have decided some criminal, civil and administrative cases pursuant
to such decrees. The foreign ambassadors who were accredited to the
Republic of the Philippines before martial law continue to serve as such in
our country; while two new ambassadors have been accepted by the
Philippines after the ratification of the 1973 Constitution on January 17,
1973. Copies of the 1973 Constitution had been furnished the United
Nations Organization and practically all the other countries with which the
Philippines has diplomatic relations. No adverse reaction from the United
Nations or from the foreign states has been manifested. On the contrary,
our permanent delegate to the United Nations Organization and our
diplomatic representatives abroad appointed before martial law continue to
remain in their posts and are performing their functions as such under the
1973 Constitution.
Even the Commission on Elections is now implementing the provisions of
the 1973 Constitution by requiring all election
222
222
221

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
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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
223
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
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
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method of giving assent to the new Charter. In this respect, WE cannot

presume to know better than the incumbent Chief Executive, who, unlike
the members of this Court, only last January 8, 1973, We affirmed
in Osmea vs. Marcos (Pres. Election Contest No. 3, Jan. 8, 1973), was reelected 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
226
225

(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 Presidents 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
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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
228
227

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 OGonmore, 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
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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 wellmeaning 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.
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230
229

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
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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. 778779, 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
232
231

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 ones 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., 732733), 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 counsels
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
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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, PEOPLES 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
234

has been validly submitted to the people for ratification in accordance with
the procedure 233
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
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aforesaid branches of the Government in its proceedings, including the
printing of its own journals (Taada and Fernando, Constitution of the
Philippines, 1952 ed., Vol. I, pp. 8-9; Malcolm and Laurel, Phil. Const. Law, p.
22; Frantz vs. Autry, 91 Pac. 193). Implicit in that independence, for the
purpose of maintaining the same unimpaired and in order that its work will
not be frustrated, the Convention has the power to fix the date for the
plebiscite and to provide funds therefor. To deny the Convention such
prerogative, would leave it at the tender mercy of both legislative and
executive branches of the Government. An unsympathetic Congress would
not be disposed to submit the proposed Constitution drafted by the
Constitutional Convention to the people for ratification, much less
appropriate the necessary funds therefor. That could have been the fate of
the 1973 Constitution, because the same abolished the Senate by creating
a unicameral National Assembly to be presided by a Prime Minister who
wields both legislative and executive powers and is the actual Chief
Executive, for the President contemplated in the new Constitution exercises

primarily ceremonial prerogatives. The new Constitution likewise shortened
abruptly the terms of the members of the present Congress (whose terms
end on December 31, 1973, 1975 and 1977) which provides that the new
Constitution shall take effect immediately upon its ratification (Sec. 16,
Article XVII, 1973 Constitution). The fact that Section 2 of the same Article
XVIII secures to the members of Congress membership in the interim
National Assembly as long as they opt to serve therein within thirty (30) days
after the ratification of the proposed Constitution, affords them little
comfort; because the convening of the interim National Assembly depends
upon the incumbent President (under Sec. 3[1], Art. XVII, 1973 Constitution).
Under the foregoing circumstances, the members of Congress, who were
elected under the 1935 Constitution, would not be disposed to call a
plebiscite and appropriate funds therefor to enable the people to pass upon
the 1973 Constitution, ratification of which means their elimination from
the political scene. They will not provide the means for their own liquidation.
Because the Constitutional Convention, by necessary implication as it is
indispensable to its independence and effectiveness, possesses the power
to call a plebiscite and to
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236
235

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
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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
238
237

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
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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
240
239

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
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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, L35953, 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
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242
241

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 Conventions 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?
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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
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
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244

legislature only or of all state officials only or of local officials only, or of both
243
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
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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
245 general election for Senators and Representatives, at
which time the same shall be submitted to the electors of the State for
246
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;
governors 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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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
247
stated, it does not
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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 Taada & Carreon, Political Law of the Philippines, Vol. I, 1961 ed., pp.
475-476; Sumulong vs. Commission, 170 Phil. 703, 708-715; 73 Phil. 288,
290-300; Taada & Fernando, Constitution of the Philippines, 1953 ed., Vol.
I, p. 5, Vol. II, pp. 11-19).
Because before August, 1940 the Commission on Election was not yet in
existence, the former Department of Interior (now Department of Local
Governments and Community Development) supervised the plebiscites on
the 1937 amendment on womans 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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1940 amendments on the establishment of a bicameral Congress, the reelection of the President and the Vice-President, and the creation of the
Commission on Elections (ratified on June 18, 1940). The supervision of said
plebiscites by the then Department of Interior was not automatic, but by
virtue of an express authorization in Commonwealth Act Nos. 34, 49 and
517.
If the National Assembly then intended that the Commission on Elections
should also supervise the plebiscite for ratification of constitutional
amendments or revision, it should have likewise proposed the
corresponding amendment to Article XV by providing therein that the
plebiscite on amendments shall be supervised by the Commission on
Elections.
3) If the framers of the 1935 Constitution and the people in ratifying the
same on May 14, 1935 wanted that only the qualified voters under Article V
of the 1935 Constitution should participate in the referendum on any
amendment or revision thereof, they could have provided the same in 1935
or in the 1940 amendment by just adding a few words to Article XV by
changing the last phrase to submitted for ratification to the qualified
electors as defined in Article V hereof, or some such similar phrases.
Then again, the term people in Article XV cannot be understood to
exclusively refer to the qualified electors under Article V of the 1935
Constitution because the said term people as used in several provisions of

the 1935 Constitution, does not have a uniform meaning. Thus in the
preamble, the term Filipino people refer, to all Filipino citizens of all ages
of both sexes. In Section 1 of Article II on the Declaration of Principles, the
term people in whom sovereignty resides and from whom all government
authority emanates, can only refer also to Filipino citizens of all ages and of
both sexes. But in Section 5 of the same Article II on social justice, the term
people comprehends not only Filipino citizens but also all aliens residing
in the country of all ages and of both sexes. Likewise, that is the same
connotation of the term people employed in Section 1(3) of Article III on
the Bill of Rights concerning searches and seizures.
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250
249

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 womans 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
womans 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
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252
251

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
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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.
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253

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
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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
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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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they are 18 years of age or above; and that only those who are 21 years of
age or over and can read and write, can vote in the elections of barrio
officials.
Otherwise there was no sense in extending membership in the barrio
assembly to those who are at least 18 years of age, whether literate or not.
Republic Act No. 3590 could simply have restated Section 4 of Republic Act
No. 2370, the old Barrio Charter, which provided that only those who are 21
and above can be members of the barrio assembly.
Counsels Salonga and Taada as well as all the petitioners in L-36165 and
two of the petitioners in L-36164 participated in the enactment of Republic
Act No. 3590 and should have known the intendment of Congress in
expanding the membership of the barrio assembly to include all those 18
years of age and above, whether literate or not.
If Congress in the exercise of its ordinary legislative power, not as a
constituent assembly, can include 18-year olds as qualified electors for
barrio plebiscites, this prerogative can also be exercised by the Chief
Executive as delegate of the Constitutional Convention in regard to the
plebiscite on the 1973 Constitution.
As heretofore stated, the statement by the President in Presidential
Proclamation No. 1102 that the 1973 Constitution was overwhelmingly
ratified by the people through the Citizens Assemblies in a referendum
conducted from January 10 to 15, 1973, should be accorded the
presumption of correctness; because the same was based on the
certification by the Secretary of the Department of Local Government and
Community Development who tabulated the results of the referendum all
over the country. The accuracy of such tabulation and certification by the
said Department Secretary should likewise be presumed; because it was
done in the regular performance of his official functions aside from the fact
that the act of the Department Secretary, as an alter ego of the President, is
presumptively the act of the President himself unless the latter disapproves
or reprobates the same (Villena vs. Secretary of Interior, 67 Phil. 451). The
truth of the certification by the Department Secretary and the Chief
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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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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 Roo of the Department of Local Government
and Community Development showing the results of the referendum in
Pasay City; that on the same day, there were still in any Citizens Assemblies
holding referendum in Pasay City, for which reason he did not send the
aforesaid letter pending submittal of the other results from the said Citizens
Assemblies; and that in the afternoon of January 15, 1973, he indorsed the
complete certificate of results on the referendum in Pasay City to the Office
of the President (Annex 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
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259
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
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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 (AnnexCamarines 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 exconvicts 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
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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 Citizens
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 Osmea, Jr., garnering
a majority of from about 896,498 to 1,436,118 (Osmea, Jr. vs. Marcos,
Presidential Election Contest No. 3, Jan. 8, 1973).
The petitioners in all the cases at bar cannot state with justification that
those who voted for the incumbent President in 1969 did not vote in favor
of the 1973 Constitution during the referendum from January 10 to 15,
1973. It should also be stressed that many of the partisans of the President
in the 1969 Presidential elections, have several members in their families
and relatives who are qualified to participate in the referendum because
they are 15 years or above including illiterates, which fact should necessarily
augment the number of votes who voted for the 1973 Constitution.
(6) It is also urged that martial law being the rule of force, is
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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 lawmaking 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 L36236 (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
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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 30minute 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 6week 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 nations
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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 reassured 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
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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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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 nations economy in ruins. The government meets the crisis by
assuming more powers and respecting fewer rights. The result is a regime
which can act
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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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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
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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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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 Bickels 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
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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
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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 lifeand-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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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.
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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
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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 tigers 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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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 L36165, 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
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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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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
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
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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
ones bare head against a veritable stone wall or a heavily reinforced
concrete, or simply kicking the deadly pricks with ones 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
288
287

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
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and no state with which we maintain diplomatic relations has withdrawn its
recognition of our government. (For particulars about executive acts done
under the new Constitution, see pages 22-25 of the Comments of the
Solicitor General, dated February 3, 1973.)
Certainly the invalidation of Proclamation No. 1102 and Presidential Decrees
Nos. 86 and 86-A by this Court would smack of plain political meddling which
is described by the United States Supreme Court as entering a political
thicket in Colegrove vs. Green, 328 U.S. p. 549. At this juncture it would be
the part of wisdom for this Court to adopt the proper attitude towards
political upheavals and realize that the question before Us is political and
not fit for judicial determination. For a political question is one entrusted to
the people for judgment in their sovereign capacity (Taada vs. Cuenco, G.R.
No. L-10520, Feb. 28,1967, 100 Phil. 1101), or to a co-equal and coordinate
branch of the Government (Vera vs. Arellano, 77 Phil. 192; Mabanag vs.
Lopez Vito, 78 Phil. 1; Alejandrino vs. Quezon, 46 Phil. 35; Cabili vs.
Francisco, G.R. No. 4638, May 8, 1931). A case involves a political question
when there would be the impossibility of undertaking independent
resolutions without expressing a lack of respect due to coordinate branches
of government, or when there is the potentiality of embarrassment from
multifarious pronouncements by various departments on one question.
To preserve the prestige and eminence that this Court has long enjoyed as
the ultimate organ of the Supreme Law of the Land in that vast range of
legal problems often strongly entangled in popular feeling on which this
Court must pronounce, let us harken to the following admonition of Justice
Frankfurter in his dissent in Baker vs. Carr, 369 U.S. 186; 82 S. Ct. 691; 7 L.
Ed. 2d. 663:
The Courts 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 Courts 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
290
289

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
1
January 22, 1973, 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. Ordoez, 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., L35961; Raul M. Gonzales v. The Honorable Commission on Elections, et al.,
L-35965; Ernesto Hidalgo v. Commission Elections, et al., L-35979.
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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
2
government. 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
3
unconstitutional. 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 Taada, 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
292
291

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
4
determining the limitations which the law places upon all official actions. In
5
the case of Gonzales v. Commission on Elections, 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
6
subject to judicial review. In the case of Avelino v. Cuenco, 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
7
been legally amended is a justiciable question.
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.
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VOL. 50, MARCH 31, 1973

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
294

It follows that from the very resolution of the Congress of the Philippines
which called for 293
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 detat. 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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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 Womens 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
295
followed in the case of the Constitution proposed by the 1971 Constitutional
Convention.
296
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
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VOL. 50, MARCH 31, 1973

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 100102, 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
298
297

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. (Blacks 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
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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. (Cooleys 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
299
300
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 Courts 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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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
301
the purpose of free and open debate on the proposed constitution, be
suspended in the meantime. It is,
302
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
8
elective franchise. Thus, in Section 2 of Article VII of the 1935 Constitution,
it is provided that the President shall hold his office during a term of four
years and, together with the Vice-President chosen for the same term, shall
be elected by direct vote of the people... Certainly under that constitutional
provision, the people who elect directly the President and the VicePresident are no other than the persons who, under the provisions of the
same Constitution, are granted the right to vote. In like manner the
provision in Section 1 of Article II of the 1935 Constitution which says
Sovereignty resides in the people and all government authority emanates
from them, the people who exercise the sovereign power are no other
than the persons who have the right to vote under the Constitution. In the
9
case of Garchitorena vs. Crescini, 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.
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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.
10
In the case of Moya v. Del Fierro, 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
11
authority. And in the case of Abanil v. Justice of the Peace of Bacolod, 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.
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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.
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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 nonsubstantial 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
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306
305

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
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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
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308
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
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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
310

309
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
1
invalidate is the new Constitution. 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
2
the process for bringing it about, 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
majority of the votes cast at an election at which the amendments are
submitted to the people for their ratification. Art. XV, Section 1.
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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
3
and determine the power configuration of the day. 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
4
own solutions for social problems. Nonetheless, as was stressed by
5
6
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. 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).
311
312
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
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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
7
for decision. 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
8
9
10
Court to pass upon. What is more, the Gonzales, Tolentino and Planas
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
11
out in Dillon v. Gloss, cannot be treated as unrelated acts, but as
12
succeeding steps in a single endeavor. 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
13
mine in Lansang v. Garcia. 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); Taada 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.
313
314
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
14
political. 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
15
investigation. 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
16
primarily within the field of public or governmental interests. Nor was
Professor Westons 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

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
17
action. 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
18
19
Professor Bickel of Yale and Professor Freund 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
20
by them for the exercise of their sovereignty. 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.
315
316
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
21
v. Vera, 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
22
duty as we see it and as we understand it. 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

23
24
Angara v. Electoral Commission to Planas v. Commission on Elections. 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
25
undemocratic. He went on to state: Judicial review, they have urged, is
an undemocratic shoot on an otherwise respectable tree. It should be cut
26
off, or at least kept pruned and inconspicuous. 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
27
constitutional power which arise in the process of government. 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
317
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
28
it would be stultification for it to evade. 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 selfconsciously perhaps, that the duty of deference cannot be allowed
29
imperceptibly to slide into abdication. 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

this: you must first enable the government to control the governed; and in
30
the next place oblige it to control itself.
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
31
which the Constitution is part, in connection with the decision of cases.
This is not to deny that there are those who would place the blame or the
credit, depending upon ones predilection, on Marshalls epochal opinion in
32
Marbury v. Madison. 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
33
what John Marshall did. 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
34
judges say it is * * *. 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
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
35
comprehensive summary of American Constitutional law? 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
36
of the American governmental system. Let me not be misunderstood.
There is here no attempt to close ones 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
37
the case as reflected in two leading cases of recent vintage, Baker v. Carr,
38
decided in 1962 and Powell v. MacCormack, in 1969, both noted in the
opinion of the Chief Justice. The former disregarded the warning of Justice
39
Frankfurter in Colegrove v. Green about the American Supreme Court
declining jurisdiction on the question of apportionment as to do so would
40
cut very deep into the very being of Congress. For him, the judiciary
ought not to enter this political thicket. Baker has since then been
41
followed; it has spawned a host of cases. 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

are uncontested, for many the very staple of what is essentially political,
certainly goes even further than the authoritative Philippine decision
42
of Vera v. Avelino, 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
43
limitations on that power. As for Professor Bickel, it has been said that as
44
counsel for the New York Times in the famous Vietnam papers case, 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
45
neutral principles of constitutional law. 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
322

review articles, the reaction ranging from guarded conformity to caustic
46
criticism. 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
47
grow as a merely intellectual plant.
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 Harts 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

Senators Lorenzo M. Taada and Jovito Salonga at the van, rather than the
advocacy of the Solicitor-General, possess the greater weight and carry
persuasion. So much then for the invocation of the political question
principle as a bar to the exercise of our jurisdiction.
3. That brings me to the issue of the validity of the ratification. The crucial
point that had to be met is whether Proclamation No. 1102 manifests fidelity
to the explicit terms of Article XV. There is, of course, the view not offensive
to reason that a sense of the realities should temper the rigidity of devotion
to the strict letter of the text to allow deference to its spirit to control. With
48
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 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
49
Constitution have been met. There are American decisions, and they are
not
_______________
48 Cf. Taada 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
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
50
State decisions may be cited in support of such a doctrine.
_______________
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

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
51
Commonwealth Act, 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
Teachers Assn. 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
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
52
the Election Code insofar as the same may be applicable. Then came the
53
statute, 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
54
unicameral National Assembly, reducing the term of the President to four
years but allowing his re-election with the limitation that he cannot serve
55
more than eight consecutive years, and creating an independent

56
Commission on Elections. Again, it was expressly provided that the
election shall be conducted in conformity with the provisions of the
57
Election Code in so far as the same may be applicable. The approval of
58
the present parity amendment was by virtue of a Republic Act which
59
specifically made applicable the then Election Code. There is a similar
60
provision in the legislation, 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
61
proposed amendments to be voted on in the 1967 elections. 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

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
62
according to the Constitution, 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
63
disputes by saying the last word. 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
64
authority. 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, L28196, 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
328

65
did stress, emanate the highest possible embodiment of human will,
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
66
significance. In Miller v. Johnson, 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

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
67
68
convention. In Taylor v. Commonwealth, 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
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
69
obedience and loyal allegiance.
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 peoples 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

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
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
70
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.
_______________
70 Araneta v. Dinglasan, 84 Phil. 368 (1949).
333
VOL. 50, MARCH 31, 1973

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
71
conscience is the field of discretion that remains. 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
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 Courts 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
1
are submitted to the people for their ratification.
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
2
Nineteen hundred and thirty-five and all amendments thereto.
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

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
3
popular and direct participation of the citizenry x x x.
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
336

4
Constitution has been ratified and has come into force.
The measure of the fact of ratification is Article XV of the 1935
5
Constitution. This has been consistently held by the Court in the Gonzales
6
and Tolentino 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
7
are no less binding upon the people.
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
8
receive the sanction of this Court.
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
9
only by qualified and duly registered voters and under the supervision of
10
the Commission on Elections.
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

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
11
Emergency Powers cases, 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
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
12
harm to public interest and innocent parties.
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

and void the last two executive orders appropriating funds for the 1949
budget and elections, completing the sufficient majority of six against four
13
dissenting justices to pronounce a valid judgment on that matter.
Then Chief Justice Moran, who penned the Courts 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
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
14
vigorous democracy.
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
15
responsibilities committed to respectively.
It should be duly acknowledged that the Courts task of discharging its duty
and responsibility has been considerably lightened by the Presidents 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

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
16
that power.
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
17
which, like all others, must be discharged.
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 Cooleys words,
so tied up (not only) the hands of their official agencies, but their own
18
hands as well 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 Monteclaros 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 Cooleys Constitutional Limitations, 8th Ed., Vol. I, p. 81.
342
342

cast an election at which the amendments are submitted to the people for
19
their ratification, participated in only by qualified and duly registered
20
voters twenty-one years of age or over and duly supervised by the
21
Commission on Elections, 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
22
citizenry, 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
23
(through the Citizens Assemblies) themselves, and that the Comelec is
constitutionally mandated to oversee ... elections (of public officers)
24
andnot plebiscites.
To paraphrase U.S. Chief Justice John Marshall who first declared in the
25
historic 1803 case of Marbury vs. Madison the U.S. Supreme Courts 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

As was to be restated by Justice Jose P. Laurel a century and a third later in
26
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 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
27
28
McCulloch vs. Maryland the climactic phrase, 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 Pollaks The Constitution and the Supreme Court, Vol. 1, p. 221.
344
344

29
comprehending. This enduring concept to my mind permeated to this
Courts exposition and rationale in the hallmark case of Tolentino, wherein
we rejected the contentions on the Conventions 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
30
beyond the control of Congress and the Courts.

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
Conventions Organic Resolution No. 1 proposing to amend Article V, section
30a
1 of the Constitution by lowering the voting age to 18 years (vice 21 years)
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

destruction of the Constitution, making those who laid down the precedent
of justifying deviations from the requirements of the Constitution the
31
victims of their own folly.
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
346

lie in the delegates of any subsequent convention to claim that they may
ignore and disregard such conditions because they are powerful and
32
omnipotent as their original counterparts.
3. This Court in Tolentino likewise formally adopted the doctrine of proper
33
submission first advanced in Gonzales vs. Comelec, 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
34
Court in Gonzales, supra, no proper submission.
35
4. Four other members of the Court 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

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,
36
intelligent consent or rejection.
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
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
37
weigh in tranquility the need for and the wisdom proposed amendment.
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

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
38
Constitution itself.
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,
39
We are resolved to discharge that duty.
7. The Chief Justice, in his separate opinion in Tolentino concurring with this
Courts denial of the motion for reconsideration, succinctly restated this
Courts 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.

349
350
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 peoples 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 peoples 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

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
40
Court, in particular, will adhere to or approve or indorse such dictum.
_______________
351
40 All quotations are from the Chief Justices concurring opinion
in Tolentino, pp. 4-7.
352
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
41
Constitution 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

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 years 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
42
submission to the electorate of such proposals.
43
2. A Massachussets case 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
354
353

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

44
majorities.
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.
45
Even at barrio level 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
46
relevant to the holding of the plebiscite.
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
356
355

may be made either in writing as in regular elections, and/or declaration by
47
the voters to the board of election tellers.
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
48
barrio secretary is necessary.
The qualifications for voters in such barrio plebiscites and elections of barrio
49
officials 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
50
or be a candidate in the barrio elections.
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
51
itself 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.
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VOL. 50, MARCH 31, 1973

valid ratification.
2. Petitioners raised serious questions as to the veracity and genuineness of
the reports or certificates of results purportedly showing unaccountable
52
discrepancies in seven figures in just five provinces 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
53
signed; whether the reported votes of approval of the proposed
Constitution conditioned upon the non-convening of the interim National
54
Assembly provided in Article XVII, section 1 thereof, 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.
357
358
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
55
Proclamation 1102 as agent of the Constitutional Convention 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
56
Constitution.
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 Conventions 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.
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VOL. 50, MARCH 31, 1973

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
Conventions 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
359 notice to the proper authorities to prepare everything
necessary for the plebiscite.
360
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 Ordoez moved for nominal voting. Submitted to a vote, the
motion was lost.

14.2. Thereupon, the Chair submitted the resolution to a vote. It was
57
approved by a show of hands.
_______________
57 Convention Minutes of Nov. 22, 1972 submitted as Annex A of
petitioner-delegate Sedfrey A. Ordoez, et al. in the plebiscite case L359042, par. 12 of petition and admitted in par. 4 of answer of therein
respondents dated Dec. 15, 1972.
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VOL. 50, MARCH 31, 1973

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 Presidents 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
362

concentrated and expanded, it must be freed from the normal system of
361
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 Presidents 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

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 Congresss 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
364
363

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 Nations Chief Executive and Commander-in-Chief of the
armed forces, validly order the seizure of most of the countrys steel mills.
The Court however did not face the naked question of the Presidents 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 Presidents 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

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 todays 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 nations
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
366
365

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

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
1
times. 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
367
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
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

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
2
be amended or revised. This is not true with our Constitution. In the case
3
of revision there are no standards meet for judicial judgment. The framers
of our Constitution were free to provide in the Constitution the method or
procedure for the revision or rewriting of the entire constitution, and if such
was their intention, they could and should have so provided. Precedents
were not wanting. The constitutions of the various states of the American
Union did provide for procedures for their amendment and methods for
4
their revision.
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
370
369

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

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 1930s. 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
372
371

have been widely recognized as prime sources of the nations difficulties
land tenancy, official corruption, tax evasion and abuse of oligarchic
economic power. Clearly he knows his targets ... there is marked public
support for his leadership... (Bulletin Today, March 3 and 4, 1973).
In a similar vein, C.L. Sulzberger, a foreign affairs columnist wrote, in the
April 11 issue of The New York Times:

During his first Presidential term (1965-1969), Mr. Marcos was discouraged
by the failure of legislators to approve urgently needed reforms. He found
his second term further frustrated by spread riots, a Maoist uprising in Luzon
and a much more serious Moslem insurrection in the southern islands from
Mindanao across the Sulu archipelago to the frontier regions of Malaysia
and Indonesia. Manila claims this war is Maoist-coordinated.
Mr. Marcos has now in effect taken all the reins of power and makes no
promise as to when he will relinquish them. But, while fettering a free press,
terminating Congress and locking up some opponents (many of whom were
later amnestied), he has hauled the Philippines out of stagnation.
Sharecropping is being ended as more than three million acres of arable land
are redistributed with state funds. New roads have been started. The
educational system is undergoing revision, a corruption is diminished. In
non-communist Asia it is virtually impossible to wholly end it and this
disagreeable phenomenon still reaches very high.
Mr. Marcos, an imaginative, gifted man, hopes to reshape society by
creating an agrarian middle-class to replace the archaic sharecropperabsentee landlord relationship. He is even pushing for a birth control
program with the tacit acceptance of the Catholic Church. He has started
labor reforms and increased wages. (Daily Express, April 15, 1973)
As explained in this writers 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
374
VOL. 50, MARCH 31, 1973

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
5
surmounted. 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
373


existence of a prior point in the Courts 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 Yorkscase. 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

6
horizontal distribution of powers. 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 Yorks 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
375
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
376

political departments of government or has reserved to be settled by its own
7
extra governmental action.
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 ones faith in the nations
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

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
378

including, but not limited to, number of members, districts, election and
377
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

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
380
379

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


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 twothirds 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
382
381


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 governors 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 yeas and nays 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

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
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
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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.
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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 amendment or
amendments to this Constitution may be proposed in the Senate or
Assembly; and if the same shall be agreed to by a Majority of all the
members elected to each of the two houses, such proposed amendment or
amendments shall be entered on their respective journals, with the Yeas and
Nays taken thereon, and referred to the Legislature then next to be chosen,
and shall be published for three months next preceding the time of making
such choice. And if in the Legislature next chosen as aforesaid, such
proposed amendment or amendments shall be agreed to by a majority of all
the members elected to each house, then it shall be the duty of the
Legislature to submit such proposed amendment
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VOL. 50, MARCH 31, 1973

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
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

proposals or proposition
Sec. 2. Constitutional convention to propose amendments or new
constitution. No convention shall be called by the Legislature to propose
alterations, revisions, or amendments to this Constitution, or to propose a
new Constitution, unless the law providing for such convention shall first be
approved by the people on a referendum vote at a regular or special
election, and any amendments, alterations, revisions, or new Constitution,
proposed by such convention, shall be submitted to the electors of the State
at a general or special election and be approved by a majority of the electors
voting thereon, before the same shall become effective Provided, That the
question of such proposed convention shall be submitted to the people at
least once in every twenty years.
13. Oregon (1859) Art. XVII. Amendments and Revisions.
Sec. 1. Method of amending constitution. Any amendment or amendments
to this Constitution may be proposed in either branch of the legislative
assembly, and if the same shall be agreed to by a majority of all the members
elected to each of the two houses, such proposed amendment or

amendments shall, with the yeas and nays thereon, be entered in their
journals and referred by the secretary of state to the people for their
approval or rejection, at the next regular election, except when the
legislative assembly shall order a special election for that purpose. If a
majority of the electors voting on any such amendment shall vote in favor
thereof, it shall thereby become a part of this Constitution. The votes for
and against such amendment, or amendments, severally, whether proposed
by the legislative assembly or by initiative petition, shall be canvassed by the
secretary of state in the presence of the governor, and if it shall appear to
the governor that the majority of the votes cast at said election on said
amendment, or amendments, severally, are cast in favor thereof, it shall be
his duty forthwith after such canvass, by his proclamation, to declare the
said amendment, or amendments, severally, having received said majority
of votes to have been adopted by the people of Oregon as part of the
Constitution thereof, and the same shall be in effect as a part of the
Constitution from the date of such proclamation. When two or more
amendments
390
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

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
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.
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No.

L-36142. March 31, 1973.

ratification of the proposed Constitution) is a justiciable question; four

expressed themselves; one Justice thinks the doctrine of Constitution by

Constitution of 1973 is in force: Justices Barredo, Makasiar, Antonio and

SUPREME COURT REPORTS ANNOTATED

to persons possessing the qualifications and none of the disqualifications

Comelec is void.The point is that, such of the Barrio Assemblies as were

either strictly or substantially, or has been acquiesced in by the people or a

counsels contention, there is here no prejudgment for or against any of the

Same; Result of referendum is as the President stated.In my

SUPREME COURT REPORTS ANNOTATED

conclusions. I take it that when they answered that by their significant

Same; Acceptance by the people of the 1973 Constitution cures any

executive, branch of the government.

amendment to the Constitution providing for Womens Suffrage was

Constitution.What appears to me, however, is that practically it is only the

has reason to be happy because, according to the President, we still have a

SUPREME COURT REPORTS ANNOTATED

even on the assumption that either as an agent of the Constitutional

the United States Constitution, the Philippine Constitution as a definition

Solicitor General Estelito P. Mendoza, Solicitor Vicente V. Mendoza

government? [Bulletin Today, January 10, 1973; emphasis an additional

Javellana vs. The Executive Secretary

by the petitioners in L-35949, Gerardo Roxas, et al. v. Commission on

on the two questions quoted in paragraph 1 of this Supplemental Urgent

as well as the absence of sufficient guidelines for organization, it is too much

amendments but a Constitution which would supersede the present

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

implementation of the New Constitution, thru his Cabinet, respondents

Armed Forces of the Philippines, the Secretary of General Services, the

prevented, and continue to so exclude and prevent the petitioners from

pending hearing on the merits, a writ of preliminary mandatory injunction

the 1935 Constitution is not exclusive of other modes of amendment.

petitioners, likewise, moved and were granted an extension of time, to

x x x There is nothing either in the Constitution or in the Judiciary Act

the Philippines touching the organization or mode of operation of the

States. Besides, no plausible reason has, to my mind, been advanced to

claimed, it partook of a political nature, and We unanimously declared that

Javellana vs. The Executive Secretary

VOL. 50, MARCH 31, 1973

SUPREME COURT REPORTS ANNOTATED

SUPREME COURT REPORTS ANNOTATED

Has the proposed new or revised Constitution been ratified

Javellana vs. The Executive Secretary

Constitutional Convention to incorporate certain provisions into the draft of

subject to review by the Supreme Court.

laws then in force in the Philippines x x x. Said committee had

a grant or conferment of a right to persons possessing the qualifications and

Javellana vs. The Executive Secretary

SUPREME COURT REPORTS ANNOTATED

VOL. 50, MARCH 31, 1973

or more of imprisonment, within two years after service of his sentence;

Glenn v. Gnau, 64 S.W. 2d. 168. Italics ours.

VOL. 50, MARCH 31, 1973

attendance is required. The Commission shall have the power to punish

with the Rules of Court or such applicable laws as may enacted.

Defense, et al.; L-35573, Randon v. Hon. Enrile, et al.

valid expression of the popular will; and

specified in paragraph 2 hereof, and submit the results thereof to the

authority to repeal Art. X of our Fundamental Law which he does not

Has the proposed Constitution aforementioned been approved by a

President of the National Association or Federation, whereupon Mr. Cruz,