Aquino v.

Enrile, 59 SCRA 183, September 17, 1974

En Banc (all Justices wrote their opinion)
Petitioners are: Ninoy, Mitra, F. Rordrigo, N. Rama, J. Roces, Locsin, Fadul,
Galang, Go Eng Guan, Maximo Soliven, Constantino, Luis Mauricio, Jose
Diokno and wife, Carmen, Voltaire Garcia (case were withdrawn bec.
Petitioner died), Yuyitung, Tan Chin Hian, Doronila, Mercado, Abaya, Granada,
Beltran, Bren Guiao, Cusipag, Ordonez, Almario, Baun, Guiao and T. Guiao
(also died) and Rondon.
Respondents are: Enrile as Sec. Natl Defense, Espino as Chief of Staff AFP,
Ramos as Chief, Phil. Constabulary
FACTS
According to Chief Justice Makalintal:
These nine cases are all about the petitions for habeas corpus, the petitioners
having been arrested and detained unlawfully by the military by virtue of
Proclamation no. 1081 dated September 21, 1972 through the President
exercising his powers he assumed by virtue of Martial Law.
The petitioners were arrested pursuant to Gen. Order no 2 for participants
or for having giving aid and comfort in the conspiracy to seize political and
state power in the country and to take over the Government by force
(September 22, 1972).
The provision of the 1935 constitution reads the President shall be
commander-in-chief of all armed forces in the Philippines and, whenever it
becomes necessary, he may call out such armed forces to prevent or
suppress lawless violence, invasion, insurrection or rebellion. In case of
invasion, insurrection, or rebellion, or imminent danger thereof, when the
public safety requires it, he may suspend the privilege of writ of habeas
corpus or place the Philippines or any part thereof under martial law. Art VII
Section 10(2)
Accdg to Castro, J.:
On Sept 21 1972, the country was placed under Martial Law. From Sept 22 to
30, petitioners were arrested by the military authorities and detained, some
at Fort Bonifacio, Rizal, Camp Aguinaldo and Camp Crame. They aver that the
arrest and detention were illegal having been effected without valid order of a
court of justice. Writ of habeas corpus were directed by the Court directing
respondents to produce the bodies of the petitioners in Court. Respondents,
through the Solicitor General, answered that such arrests were legally
ordered by the President pursuant to Proclamation of Martial Law as
participant or as having giving aid and comfort in the conspiracy to seize
political and state power and to take the government by force. Hearings
were held on 26 and 29 September and October 6. Meanwhile, some of the

petitioners, with leave of Court, withdrew their petitions, others were released
from custody under certain restrictive conditions. Voltaire died after his
release, the action was deemed abated.
Only Diokno AND Benigno Aquino was still in military custody (September 9,
1972the date of the supposed promulgation of the nine cases.) On
September 11 1972, the petitioner Diokno was released. Eleven members
voted to dismiss Dioknos petition as being moot and academic except
Castro, who find Dioknos derogatory imputations grave and highly insulting.
On August 23 1973, petitioner Ninoy filed an action for certiorari and
prohibition with this Court, alleging that on 11 August 1973 charges of
murder, subversion and illegal possession of firearm were filed against him,
that his trial held on August 27, 29, 31 was illegal because the proclamation
of Martial law was unconstitutional and that he could not expect a fair trial
because the President could reverse any judgment of acquittal by the military
court and sentence him to death. Benigno S. Aquino, Jr. vs. Military
Commission No. 2
On the other hand, December 28 1973, Jose Diokno filed a motion to
withdraw his petition filed in his behalf, imputing the (1) delay in the
disposition of the case, (2) that the decision of the Court in the Ratification
cases contrary to the Courts ruling that the 1973 Constitution was not
validly ratified and (3) the action of the members of the Court taking an oath
to the new Constitution and which becomes a different court in which he filed
his petition.
Diokno asserts that a conscience that allows man to rot behind bars for
more than one year and three months without trialof course, without any
charges at allis a conscience that has become stunted, if not stultified..
and I can not continue to entrust my case to them; and I have become
thoroughly convinced that our quest for justice in my case is futile.
Issue(s):
1. Whether or not this court may inquire into the validity of Proclamation
no 1081. Is the existence of conditions claimed to justify the exercise
of power to declare martial law subject to judicial inquiry? Is the
question political or justiciable in character?
Ruling:
YES. Five justices held that the question is political and should not be
determined by court. (Makasiar, Antonio, Esguerra, Fernandez and Aquino)
Fernandez adds that as a member of the 1973 Convention he believes that
the as a member of the Convention, they have put an imprimatur on the
proposition of the validity of a martial law proclamation Barredo believes
that political question are not per se beyond the courts jurisdiction, judicial
power vested in it by the Constitution being all-embracing and plenary but as
a matter of policy should abstain from interfering with the Executives
Proclamation. Esguerra finds that the declaration of martial law is final and
conclusive upon the courts. Antonio finds that there is no dispute as to the
existence of a state of rebellion and on that premise emphasizes the factor of

necessity for the exercise of the president under the 1935 Constitution to
declare martial law.
Four on the side of justiciability: Castro, Fernando, Teehanke and Munoz
Palma. The constitutional sufficiency may be inquired into by court and would
thus apply the principle laid down by Lansang although the case refers to the
power of President to suspend habeas corpus. The recognition of justiciability
in Lansang is there distinguished from the power of judicial review and is
limited to ascertaining whether the President has gone beyond the
constitutional limits of his jurisdiction, not to exercise the power vested in him
or to determine the wisdom of the act. The Test is whether in suspending the
writ of habeas corpus, the president he did or did not acted arbitrarily (bias,
capricious). Applying the test, the Justices find no arbitrariness in the
Presidents proclamation of martial law pursuant to the 1935 Constitution.
The bases for the suspension of the privilege of writ of habeas corpus, with
regards to the existence of a state rebellion in the country, had not
disappeared but had even worsened.
The question of the validity of the Proclamation no 1081 has been foreclosed
by the transitory provision of the 1973 Constitution (Art XVII. Sec 3 (2)) that
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 the
ratification of this Constitution.
The political or justiciable question controversy has become moot and
purposeless as a consequence of the referendum of July 27-28, 1973. The
question which was overwhelmingly voted upon by a majority of voters, even
between 15 and 18 years of age in affirmative: Under the 1973 Constitution,
the President, if he so desires, can continue in office beyond 1973 and finish
the reforms he initiated under martial law?
***If you want a more nakaka-nosebleed facts of the Case, refer to page
326 up to 336
2. Whether or not the petitions for writ of habeas corpus should be
suspended contending that the proclamation of Martial Law was
unconstitutional.
YES. The petitions should be dismissed with respect to petitioners who have
been released from detention but have not withdrawn their petitions because
they are still subject to certain restrictions. Implicit in the state of martial law
is the suspension of the privilege of writ of habeas corpus with respect to
persons arrested or detained for acts related to the basic objective of the
proclamation: to suppress invasion, insurrection, rebellion or to safeguard
public safety against imminent danger thereof.
RULING SUMMARIZED (Castro):

1. That the proclamation of Martial Law in September 1972 by the

President was within the 1932 Constitution
2. That because the Communist rebellion had not been abated and
instead the subversion had proliferated throughout the country, the
imposition of martial law was an imperative of national survival.
3. that the arrest and detention of the persons who were participants or
gave aid and comfort in the conspiracy to seize political and state
power in the country and to take over the Government by force were
not unconstitutional nor arbitrary
4. that subsumed in the declaration of martial law is the suspension of
the writ of habeas corpus
5. that the fact that the regular courts are open cannot be accepted as
evidence that rebellion and insurrection no longer imperil the safety of
the state
6. that actual armed combat has been and still raging in parts of
Mindanao, Bicol and Cagayan
7. that the hosts of doubts with respect to the validity of the ratification
and effectivity of the 1973 Constitution has been dispelled by the
national referendum of July 1973
8. that the issue of the validity and constitutionality of the arrest and
detention of all the petitioners and of the restrictions imposed upon
those who were freed, is now foreclosed by the transitory provision of
1973 CONSTITUTION (Article XVII Sec 3 (2)) which validates all acts
made by the President.
**Habeas Corpus- the purpose of the writ is to inquire into the cause or
reason why a person is being restrained of his liberty against his will and if
there is no legal and/or valid justification shown for such restraint the writ will
forthwith issue to restore to that person his liberty or freedom.

Javellana vs. Executive Secretary

Facts:
The Plebiscite Case
On March 16, 1967, Congress of the Philippines passed Resolution No. 2, as amended
by Resolution No. 4, calling for a Constitutional Convention to propose amendments to
the Philippine Constitution. Said Resolution was implemented by Republic Act No. 6132,
for the election of delegates of the said Convention. Hence, 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, which is an order for setting and
appropriating of funds for a plebiscite for the ratification or rejection of the proposed
Constitution as drafted by the 1971 Constitutional Convention.
On December 7, 1972, Charito Planas filed a case against the Commission on Elections,

the Treasurer of the Philippines and the Auditor General, to enjoin said respondents or
their agents from implementing Presidential Decree No. 73, on the grounds that the
President does not have the legislative authority to call a plebiscite and the appropriation
of public funds for the purpose are lodged exclusively by the Constitution in Congress
and there is no proper submission to the people of said Proposed Constitution set for
January 15, 1973, there being no freedom of speech, press and assembly, and there
being no sufficient time to inform the people of the contents thereof.
On December 23, 1972, the President announced the postponement of the plebiscite for
the ratification or rejection of the Proposed Constitution. The Court deemed it fit to
refrain, for the time being, from deciding the aforementioned case.
In the afternoon of January 12, 1973, the petitioners in Case G.R. No. L-35948 filed an
"urgent motion," praying that said case be decided "as soon as possible, preferably not
later than January 15, 1973." The next day, January 13, 1973, the Court issued a
resolution requiring the respondents to comment and file an answer to the said "urgent
motion" not later than Tuesday noon, January 16, 1973." When the case was being
heard, the Secretary of Justice called on and said that, upon instructions of the
President, he is delivering a copy of Proclamation No. 1102, which had just been signed
by the President earlier that morning.
Proclamation No. 1102, declares that Citizen Assemblies referendum was conducted,
and that the result shows that more than 95% of the members of the Citizens
Assemblies are in favor of the new Constitution and majority also answered that there
was no need for a plebiscite and that the vote of the Citizens Assemblies should be
considered as a vote in a plebiscite. The then President of the Philippines, Marcos,
hereby certify and proclaim that the Constitution proposed by the 1971 Constitutional
Convention has been ratified by an overwhelming majority of all of the votes cast by the
members of the Citizens Assemblies throughout the Philippines, and has thereby come
into effect.
The Ratification Case
On January 20, 1973, Josue Javellana filed case against the Executive Secretary and
the Secretaries of National Defense, Justice and Finance, to restrain said respondents
"and their subordinates or agents from implementing any of the provisions of the
propose Constitution not found in the present Constitution" referring to that of 1935.
Javellana alleged that the President 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."
Issue:
1. Whether or not the issue of the validity of Proclamation No. 1102 involves a justiciable
or political question.
2. Whether or not the proposed new or revised Constitution been ratified to said Art. XV
of the 1935 Constitution.
3. Whether or not the proposed Constitution aforementioned been approved by a
majority of the people in Citizens' Assemblies allegedly held throughout the Philippines.
4. Whether or not the people acquiesced in the proposed Constitution.
5. Whether or not the parties are entitled to any relief.
Ruling:
The court was severely divided on the following issues raised in the petition: but when
the crucial question of whether the petitioners are entitled to relief, six members of the
court (Justices Makalintal, Castro, Barredo, Makasiar, Antonio and Esguerra) voted to
dismiss the petition. Concepcion, together Justices Zaldivar, Fernando and Teehankee,
voted to grant the relief being sought, thus upholding the 1973 Constitution.
First Issue
On the first issue involving the political-question doctrine Justices Makalintal, Zaldivar,
Castro, Fernando, Teehankee and myself, or six (6) members of the Court, hold that the
issue of the validity of Proclamation No. 1102 presents a justiciable and non-political
question. Justices Makalintal and Castro did not vote squarely on this question, but, only
inferentially, in their discussion of the second question. Justice Barredo qualified his
vote, stating that "inasmuch as it is claimed there has been approval by the people, the
Court may inquire into the question of whether or not there has actually been such an

approval, and, in the affirmative, the Court should keep hands-off out of respect to the
people's will, but, in negative, the Court may determine from both factual and legal
angles whether or not Article XV of the 1935 Constitution been complied with." Justices
Makasiar, Antonio, Esguerra, or three (3) members of the Court hold that the issue is
political and "beyond the ambit of judicial inquiry."
Second Issue
On the second question of validity of the ratification, Justices Makalintal, Zaldivar,
Castro, Fernando, Teehankee and myself, or six (6) members of the Court also hold that
the Constitution proposed by the 1971 Constitutional Convention was not validly 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.
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.
Third Issue

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 myself hold that there can
be no free expression, and there has even been no expression, by the people qualified
to vote all over the Philippines, of their acceptance or repudiation of the proposed
Constitution under Martial Law.
Justice Fernando states that "(I)f it is conceded that the doctrine stated in some
American decisions to the effect that independently of the validity of the ratification, a
new Constitution once accepted acquiesced in by the people must be accorded
recognition by the Court, I am not at this stage prepared to state that such doctrine calls
for application in view of the shortness of time that has elapsed and the difficulty of
ascertaining what is the mind of the people in the absence of the freedom of debate that
is a concomitant feature of martial law."
Three (3) members of the Court express their lack of knowledge and/or competence to
rule on the question. Justices Makalintal and Castro are joined by Justice Teehankee in
their statement that "Under a regime of martial law, with the free expression of opinions
through the usual media vehicle restricted, (they) have no means of knowing, to the
point of judicial certainty, whether the people have accepted the Constitution."
Fourth Issue
On the fourth question of relief, six (6) members of the Court, namely, Justices
Makalintal, Castro, Barredo, Makasiar, Antonio and Esguerra voted to DISMISS the
petition. 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, and therefore
beyond the competence of this Court, are relevant and unavoidable."
Four (4) members of the Court, namely, Justices Zaldivar, Fernando, Teehankee and
myself voted to deny respondents' motion to dismiss and to give due course to the
petitions.

Fifth Issue
Four (4) members of the Court, namely, Justices Barredo, Makasiar, Antonio and
Esguerra hold that it is in force by virtue of the people's acceptance thereof;
Four (4) members of the Court, namely, Justices Makalintal, Castro, Fernando and
Teehankee cast no vote thereon on the premise stated in their votes on the third
question that they could not state with judicial certainty whether the people have
accepted or not accepted the Constitution; and
Two (2) members of the Court, namely, Justice Zaldivar and myself voted that the
Constitution proposed by the 1971 Constitutional Convention is not in force; with the
result that there are not enough votes to declare that the new Constitution is not in force.
ACCORDINGLY, by virtue of the majority of six (6) votes of Justices Makalintal, Castro,
Barredo, Makasiar, Antonio and Esguerra with the four (4) dissenting votes of the Chief
Justice and Justices Zaldivar, Fernando and Teehankee, all the aforementioned cases
are hereby dismissed. This being the vote of the majority, there is no further judicial
obstacle to the new Constitution being considered in force and effect. It is so ordered.

OR
FACTS:
On January 20, 1973, Josue Javellana filed a prohibition case to restrain
respondents from implementing any of the provisions of the proposed
constitution not found in the present constitution. Javellana maintained
that the respondents are acting without or in excess of jurisdiction in
implementing proposed constitution and that the president is without
power to proclaim the ratification of the constitution. Similar actions
were filed by Vidal Tan, Gerardo Roxas, among others. Petitioners pray
for the nullification of Proclamation 1102 (Citizens Assemblies) and any
order, decree, and proclamation which are similar in objective.
ISSUES:

1.

Is the validity of Proclamation No. 1102 justiciable?

2.

Was the constitution proposed by the 1971 Constitutional

Convention ratified validly in compliance to applicable laws?

3.

Was the proposed Constitution acquiesced by the people?

4.

Are the petitioners entitled relief?

5.

Is the proposed Constitution in force?

HELD:
Whether a constitutional amendment has been properly adopted
according to an existing constitution is a judicial question as it is the
absolute duty of the judiciary to determine whether the Constitution
has been amended in the manner required by the constitution. The
Constitution proposed by the 1971 Convention was not validly ratified
in accordance with Article XV section 1 of the 1935 Constitution which
provides only one way for ratification (election or plebiscite held in
accordance with law and only with qualified voters). Due to the
environmental and social conditions in the Philippines (i.e. martial law)
the Court cannot honestly say that the people acquiesced to the
proposed Constitution. The majority ruled to dismiss the cases as the
effectivity of the proposed Constitution is the basic issue posed by the
cases which considerations other than judicial are relevant and
unavoidable. The new constitution is in force as there are not enough
votes to say otherwise.