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G.R. No.

L-36142
G.R. No. L-36142

March 31, 1973

JOSUE JAVELLANA, petitioner,


vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF NATIONAL DEFENSE, THE SECRETARY
OF JUSTICE AND THE SECRETARY OF FINANCE, respondents.
G.R. No. L-36164

March 31, 1973

VIDAL TAN, J. ANTONIO ARANETA, ALEJANDRO ROCES, MANUEL CRUDO, ANTONIO U. MIRANDA,
EMILIO DE PERALTA AND LORENZO M. TAADA, petitioners,
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF FINANCE , THE SECRETARY OF JUSTICE, THE
SECRETARY OF LAND REFORM, THE SECRETARY OF NATIONAL DEFENSE, THE AUDITOR GENERAL,
THE BUDGET COMMISSIONER, THE CHAIRMAN OF PRESIDENTIAL COMMISSION ON
REORGANIZATION, THE TREASURER OF THE PHILIPPINES, THE COMMISSION ON ELECTIONS AND
THE COMMISSIONER OF CIVIL SERVICE, respondents.
G.R. No. L-36165

March 31, 1973.

GERARDO ROXAS, AMBROSIO PADILLA, JOVITO R. SALONGA, SALVADOR H. LAUREL, RAMON V.


MITRA, JR. and EVA ESTRADA-KALAW, petitioners,
vs.
ALEJANDRO MELCHOR, in his capacity as Executive Secretary; JUAN PONCE ENRILE, in his
capacity as Secretary of National Defense; General ROMEO ESPINO, in his capacity as Chief of
Staff of the Armed Forces of the Philippines; TANCIO E. CASTAEDA, in his capacity as Secretary
General Services; Senator GIL J. PUYAT, in his capacity as President of the Senate; and Senator
JOSE ROY, his capacity, as President Pro Tempore of the of the Senate, respondents.
G.R. No. L-36236

March 31, 1973

EDDIE B. MONTECLARO, [personally and in his capacity as President of the National Press Club of
the Philippines], petitioner,
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF PUBLIC INFORMATION, THE AUDITOR GENERAL,
THE BUDGET COMMISSIONER & THE NATIONAL TREASURER, respondents.
G.R. No. L-36283

March 31, 1973

NAPOLEON V. DILAG, ALFREDO SALAPANTAN, JR., LEONARDO ASODISEN, JR., and RAUL M.
GONZALEZ, petitioners,
vs.
THE HONORABLE EXECUTIVE SECRETARY, THE HONORABLE SECRETARY OF NATIONAL DEFENSE,
THE HONORABLE BUDGET COMMISSIONER, THE HONORABLE AUDITOR GENERAL, respondents.
Ramon A. Gonzales for petitioner Josue Javellana.
Lorenzo M. Taada and Associates for petitioners Vidal Tan, et al.
Taada, Salonga, Ordoez, 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 and Associates for petitioners Napoleon V. Dilag, et al.
Arturo M. Tolentino for respondents Gil J. Puyat and Jose Roy.
Office of the Solicitor General Estelito P. Mendoza, Solicitor Vicente V. Mendoza and Solicitor
Reynato S. Puno for other respondents.
RESOLUTION
CONCEPCION, C.J.:
The above-entitled five (5) cases are a sequel of cases G.R. Nos. L-35925,
L-35929, L-35940, L-35941, L-35942, L-35948, L-35953, L-35961, L-35965 and
L-35979, decided on January 22, 1973, to which We will hereafter refer collectively as the
plebiscite cases.

Background of the Plebiscite Cases.


The factual setting thereof is set forth in the decision therein rendered, from which We quote:
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 ... of such plebiscite, the setting of
guidelines for the conduct of the same, the prescription of the ballots to be used and the
question to be answered by the voters, and the appropriation of public funds for the purpose,
are, by the Constitution, lodged exclusively in Congress ...," and "there is no proper submission
to the people of said Proposed Constitution set for January 15, 1973, there being no freedom of
speech, press and assembly, and there being no sufficient time to inform the people of the
contents thereof."
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 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. L-35942);
on December 12, 1972, by Vidal Tan, et al., against the Commission on Elections, the Treasurer of
the Philippines, the Auditor General and the Director of Printing (Case G.R. No. L-35948) and by
Jose W. Diokno and Benigno S. Aquino against the Commission on Elections (Case G.R. No. 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 (o'clock) noon of Saturday, December 16, 1972." Said cases were,
also, set for hearing and partly heard on Monday, December 18, 1972, at 9:30 a.m. The hearing
was continued on December 19, 1972. By agreement of the parties, the aforementioned last
case G.R. No. L-35979 was, also, heard, jointly with the others, on December 19, 1972. At
the conclusion of the hearing, on that date, the parties in all of the aforementioned cases were
given a short period of time within which "to submit their notes on the points they desire to
stress." Said notes were filed on different dates, between December 21, 1972, and January 4,
1973.
Meanwhile, or on December 17, 1972, the President had issued an order temporarily suspending
the effects of Proclamation No. 1081, for the purpose of free and open debate on the Proposed
Constitution. On December 23, the President announced the postponement of the plebiscite for
the ratification or rejection of the Proposed Constitution. No formal action to this effect was taken
until January 7, 1973, when General Order No. 20 was issued, directing "that the plebiscite
scheduled to be held on January 15, 1978, be postponed until further notice." Said General Order
No. 20, moreover, "suspended in the meantime" the "order of December 17, 1972, temporarily
suspending the effects of Proclamation 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.]
"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?
[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.
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.
If the Citizens Assemblies approve of the New Constitution, then the new Constitution should be
deemed ratified.
This, we are afraid, and therefore allege, is pregnant with ominous possibilities.
14.
That, in the meantime, speaking on television and over the radio, on January 7, 1973, the
President announced that the limited freedom of debate on the proposed Constitution was being
withdrawn and that the proclamation of martial law and the orders and decrees issued
thereunder would thenceforth strictly be enforced [Daily Express, January 8, 1973];
15.
That petitioners have reason to fear, and therefore state, that the question added in the
last list of questions to be asked to the Citizens Assemblies, namely:
Do you approve of the New Constitution?
in relation to the question following it:
Do you still want a plebiscite to 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' 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
"... 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 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]
"It should be recalled that the Citizens' Assemblies were ordered formed only at the beginning of
the year [Daily Express, January 1, 1973], and considering the lack of experience of the local
organizers of said assemblies, as well as the absence of sufficient guidelines for organization, it is
too much to believe that such assemblies could be organized at such a short notice.
"5.
That for lack of material time, the appropriate amended petition to include the additional
officials and government agencies mentioned in paragraph 3 of this Supplemental Urgent Motion
could not be completed because, as noted in the Urgent Motion of January 12, 1973, the
submission of the proposed Constitution to the Citizens' Assemblies was not made known to the
public until January 11, 1973. But be that as it may, the said additional officials and agencies
may be properly included in the petition at bar because:
[a]
The herein petitioners have prayed in their petition for the annulment not only of
Presidential Decree No. 73, but also of "any similar decree, proclamation, order or instruction.
so that Presidential Decree No. 86, insofar at least as it attempts to submit the proposed
Constitution to a plebiscite by the so-called Citizens' Assemblies, is properly in issue in this case,
and those who enforce, implement, or carry out the said Presidential Decree No. 86. and the
instructions incidental thereto clearly fall within the scope of this petition;
[b]
In their petition, petitioners sought the issuance of a writ of preliminary injunction
restraining not only the respondents named in the petition but also their "agents" from
implementing not only Presidential Decree No. 73, but also "any other similar decree, order,
instruction, or proclamation in relation to the holding of a plebiscite on January 15, 1973 for the
purpose of submitting to the Filipino people for their ratification or rejection the 1972 Draft or
proposed Constitution approved by the Constitutional Convention on November 30, 1972"; and
finally,
[c]

Petitioners prayed for such other relief which may be just and equitable. [p. 39, Petition].

"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."
On the same date January 15, 1973 the Court passed a resolution requiring the respondents
in said case G.R. No. L-35948 to file "file an answer to the said motion not later than 4 P.M.,
Tuesday, January 16, 1973," and setting the motion for hearing "on January 17, 1973, at 9:30
a.m." While the case was being heard, on the date last mentioned, at noontime, the Secretary of
Justice called on the writer of this opinion and said that, upon instructions of the President, he
(the Secretary of Justice) was delivering to him (the writer) a copy of Proclamation No. 1102,
which had just been signed by the President. Thereupon, the writer returned to the Session Hall
and announced to the Court, the parties in G.R. No. L-35948 inasmuch as the hearing in
connection therewith was still going on and the public there present that the President had,
according to information conveyed by the Secretary of Justice, signed said Proclamation No.
1102, earlier that morning. Thereupon, the writer read Proclamation No. 1102 which is of the
following tenor:
"BY THE PRESIDENT OF THE PHILIPPINES
"PROCLAMATION NO. 1102
"ANNOUNCING THE RATIFICATION BY THE FILIPINO PEOPLE OF THE CONSTITUTION PROPOSED BY
THE 1971 CONSTITUTIONAL CONVENTION.
"WHEREAS, the Constitution proposed by the nineteen hundred seventy-one Constitutional
Convention is subject to ratification by the Filipino people;
"WHEREAS, Citizens Assemblies were created in barrios, in municipalities and in districts/wards in
chartered cities pursuant to Presidential Decree No. 86, dated December 31, 1972, composed of
all persons who are residents of the barrio, district or ward for at least six months, fifteen years
of age or over, citizens of the Philippines and who are registered in the list of Citizen Assembly
members kept by the barrio, district or ward secretary;
"WHEREAS, the said Citizens Assemblies were established precisely to broaden the base of
citizen participation in the democratic process and to afford ample opportunity for the citizenry
to express their views on important national issues;
"WHEREAS, responding to the clamor of the people and pursuant to Presidential Decree No. 86-A,
dated January 5, 1973, the following questions were posed before the Citizens 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"
Such is the background of the cases submitted determination. After admitting some of the
allegations made in the petition in L-35948 and denying the other allegations thereof,
respondents therein alleged in their answer thereto, by way affirmative defenses: 1) that the
"questions raised" in said petition "are political in character"; 2) that "the Constitutional
Convention acted freely and had plenary authority to propose not only amendments but a
Constitution which would supersede the present Constitution"; 3) that "the President's call for a
plebiscite and the appropriation of funds for this purpose are valid"; 4) that "there is not an
improper submission" and "there can be a plebiscite under Martial Law"; and 5) that the
"argument that the Proposed Constitution is vague and incomplete, makes an unconstitutional
delegation of power, includes a referendum on the proclamation of Martial Law and purports to
exercise judicial power" is "not relevant and ... without merit." Identical defenses were set up in
the other cases under consideration.
Immediately after the hearing held on January 17, 1973, or since the afternoon of that date, the
Members of the Court have been deliberating on the aforementioned cases and, after extensive
discussions on the merits thereof, have deemed it best that each Member write his own views
thereon and that thereafter the Chief Justice should state the result or the votes thus cast on the
points in issue. Hence, the individual views of my brethren in the Court are set forth in the
opinions attached hereto, except that, instead of writing their separate opinions, some Members
have preferred to merely concur in the opinion of one of our colleagues.
Then the writer of said decision expressed his own opinion on the issues involved therein, after
which he recapitulated the views of the Members of the Court, as follows:
1.
There is unanimity on the justiciable nature of the issue on the legality of Presidential
Decree No. 73.
2.
On the validity of the decree itself, Justices Makalintal, Castro, Fernando, Teehankee,
Esguerra and myself, or six (6) Members of the Court, are of the opinion that the issue has
become moot and academic, whereas Justices Barredo, Makasiar and Antonio voted to uphold
the validity of said Decree.
3.
On the authority of the 1971 Constitutional Convention to pass the proposed Constitution
or to incorporate therein the provisions contested by the petitioners in L-35948, Justices
Makalintal, Castro, Teehankee and Esguerra opine that the issue has become moot and
academic. Justices Fernando, Barredo, Makasiar, Antonio and myself have voted to uphold the
authority of the Convention.
4.
Justice Fernando, likewise, expressed the view that the 1971 Constitutional Convention
had authority to continue in the performance of its functions despite the proclamation of Martial
Law. In effect, Justices Barredo, Makasiar and Antonio hold the same view.
5.
On the question whether the proclamation of Martial Law affected the proper submission
of the proposed Constitution to a plebiscite, insofar as the freedom essential therefor is
concerned, Justice Fernando is of the opinion that there is a 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 ... based on the referendum among Citizens' Assemblies falls short of
being in strict conformity with the requirements of Article XV of the 1935 Constitution," but that
such unfortunate drawback notwithstanding, "considering all other related relevant
circumstances, ... the new Constitution is legally recognizable and should be recognized as
legitimately in force."

c.
Justice Zaldivar maintains unqualifiedly that the Proposed Constitution has not been
ratified in accordance with Article XV of the 1935 Constitution, and that, accordingly, it has no
force and effect whatsoever.
d.
Justice Antonio feels "that the Court is not competent to act" on the issue whether the
Proposed Constitution has been ratified by the people or not, "in the absence of any judicially
discoverable and manageable standards," since the issue "poses a question of fact.
7.
On the question whether or not these cases should be dismissed, Justices Makalintal,
Castro, Barredo, Makasiar, Antonio and Esguerra voted in the affirmative, for the reasons set
forth in their respective opinions. Justices Fernando, Teehankee, and the writer similarly voted,
except as regards Case No. L-35948 as to which they voted to grant to the petitioners therein a
reasonable period of time within which to file appropriate pleadings should they wish to contest
the legality of Presidential Proclamation No. 1102. Justice Zaldivar favors the granting of said
period to the petitioners in said Case No. L-35948 for the aforementioned purpose, but he
believes, in effect, that the Court should go farther and decide on the merits everyone of the
cases under consideration.
Accordingly, the Court acting in conformity with the position taken by six (6) of its members, 1
with three (3) members dissenting, 2 with respect to G.R. No. L-35948, only and another member
3 dissenting, as regards all of the cases dismissed the same, without special pronouncement as
to costs.
The Present Cases
Prior thereto, or on January 20, 1973, Josue Javellana filed Case G.R. No. L-36142 against the
Executive Secretary and the Secretaries of National Defense, Justice and Finance, to restrain said
respondents "and their subordinates or agents from implementing any of the provisions of the
propose Constitution not found in the present Constitution" referring to that of 1935. The
petition therein, filed by Josue Javellana, as a "Filipino citizen, and a qualified and registered
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 Service 4 on February 3, 1973, by Eddie Monteclaro, personally and as
President of the National Press Club of the Philippines, against the Executive Secretary, the
Secretary of Public Information, the Auditor General, the Budget Commissioner and the National
Treasurer 5 and on February 12, 1973, by Napoleon V. Dilag, Alfredo Salapantan, Jr., Leonardo
Asodisen, Jr. and Raul M. Gonzales, 6 against the Executive Secretary, the Secretary of National
Defense, the Budget Commissioner and the Auditor General.
Likewise, on January 23, 1973, Gerardo Roxas, Ambrosio Padilla, Jovito R. Salonga, Salvador H.
Laurel, 7 Ramon V. Mitra, Jr. and Eva Estrada-Kalaw, the first as "duly elected 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 petitioners 8 would expire on December 31, 1975, and that of the others 9 on
December 31, 1977; that pursuant to our 1935 Constitution, "which is still in force Congress of
the Philippines "must convene for its 8th Session on Monday, January 22, 1973, at 10:00 A.M.,
which is 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 ... are occupied by and are under the physical control of the elements military
organizations under the direction of said respondents"; that, as per "official reports, the
Department of General Services ... 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 ... 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 ...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 ... continue such inaction up to this
time and ... a writ of mandamus is warranted in order to compel them to comply with the duties
and functions 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."
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 ... 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 ... and any order,
decree, proclamation having the same import and objective, issuing writs of prohibition and
mandamus, as prayed for against above-mentioned respondents, and making the writ injunction
permanent; and that a writ of mandamus be issued against the respondents Gil J. Puyat and Jose
Roy directing them to comply with their duties and functions as President and President Pro
Tempore, respectively, of the Senate of Philippines, as provided by law and the Rules of the
Senate."
Required to comment on the above-mentioned petitions and/or amended petitions, respondents
filed, with the leave Court first had and obtained, a consolidated comment on said petitions
and/or amended petitions, alleging that the same ought to have been dismissed outright;
controverting petitioners' allegations concerning the alleged lack impairment of the freedom of
the 1971 Constitution Convention to approve the proposed Constitution, its alleged lack of
authority to incorporate certain contested provisions thereof, the alleged lack of authority of the
President to create and establish Citizens' Assemblies "for the purpose submitting to them the
matter of ratification of the new Constitution," the alleged "improper or inadequate submiss of
the proposed constitution," the "procedure for ratification adopted ... 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 1 Constitution"; 4) "(t)he Constitution was properly
submitted the people in a free, orderly and honest election; 5) "Proclamation No. 1102, certifying
the results of the election, is conclusive upon the courts"; and 6) "(t)he amending process
outlined in Article XV of the 1935 Constitution is not exclusive of other modes of amendment."
Respondents Puyat and Roy, in said Case G.R. No. L-36165, filed their separate comment therein,
alleging that "(t)he subject matter" of said case "is a highly political question which, under the
circumstances, this ...Court would not be in a position to act upon judicially," and that, in view of
the opinions expressed by three members of this Court in its decision in the plebiscite cases, in
effect upholding the validity of Proclamation No. 1102, "further proceedings in this case may only
be an academic exercise in futility."
On February 5, 1973, the Court issued a resolution requiring respondents in L-36236 to comment
on the petition therein not later than Saturday, February 10, 1973, and setting the case for

10

hearing on February 12, 1973, at 9:30 a.m. By resolution dated February 7, 1973, this Court
resolved to consider the comments of the respondents in cases G.R. Nos. L-36142, L-36164, and
L-36165, as motions to dismiss the petitions therein, and to set said cases for hearing on the
same date and time as L-36236. On that date, the parties in G.R. No. L-36283 10 agreed that the
same be, likewise, heard, as it was, in fact, heard jointly with the aforementioned cases G.R. Nos.
L-36142, L-36164, L-36165 and L-36236. The hearing, which began on February 12, 1973, shortly
after 9:30 a.m., was continued not only that afternoon, but, also, on February 13, 14, 15 and 16,
morning and afternoon, after which the parties were granted up to February 24, 1973, noon,
within which to submit their notes of oral arguments and additional arguments, as well as the
documents required of them or whose presentation was reserved by them. The same resolution
granted the parties until March 1, 1973, to reply to the notes filed by their respective opponents.
Counsel for the petitioners in G.R. Nos. L-36164 and L-36165 filed their aforementioned notes on
February 24, 1973, on which date the Solicitor General sought an extension of time up to March
3, 1973, within which to file his notes, which was granted, with the understanding that said notes
shall include his reply to the notes already filed by the petitioners in G.R. Nos. L-36164 a L36165. Counsel for the petitioners, likewise, moved and were granted an extension of time, to
expire on March 10, 1973, within which to file, as they did, their notes in reply to those submitted
by the Solicitor General on March 3, 1973. On March 21, 1973, petitioners in L-36165 filed a
"Manifestation a Supplemental Rejoinder," whereas the Office of the Solicitor General submitted
in all these cases a "Rejoinder Petitioners' Replies."
After deliberating on these cases, the members of the Court agreed that each would write his
own opinion and serve a copy thereof on his colleagues, and this they did. Subsequently, the
Court discussed said opinions and votes were cast thereon. Such individual opinions are
appended hereto.
Accordingly, the writer will first express his person opinion on the issues before the Court. After
the exposition his aforesaid opinion, the writer will make, concurrently with his colleagues in the
Court, a resume of summary of the votes cast by them in these cases.
Writer's Personal Opinion
I.
Alleged academic futility of further proceedings in G.R. L-36165.
This defense or theory, set up by counsel for respondents Gil J. Puyat and Jose Roy in G.R. No. L36165, 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 ..."; 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 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 ... 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:

11

All cases involving the constitutionality of a treaty or law shall be heard and decided by the
Supreme Court in banc, and no treaty or law may be declared unconstitutional without the
concurrence of two thirds of all the members of the Court.
Pursuant to this section, the concurrence of two-thirds of all the Members of the Supreme Court
is required only to declare "treaty or law" unconstitutional. Construing said provision, in a
resolution dated September 16, 1949, then Chief Justice Moran, voicing the unanimous view of
the Members of this Court, postulated:
... There is nothing either in the Constitution or in the Judiciary Act requiring the vote of eight
Justices to nullify a rule or regulation or an executive order issued by the President. It is very
significant that in the previous drafts of section 10, Article VIII of the Constitution, "executive
order" and "regulation" were included among those that required for their nullification the vote of
two-thirds of all the members of the Court. But "executive order" and "regulation" were later
deleted from the final draft (Aruego, The Framing of the Philippine Constitution, Vol. I, pp. 495,
496), and thus a mere majority of six members of this Court is enough to nullify them. 11
The distinction is not without reasonable foundation. The two thirds vote (eight [8] votes)
requirement, indeed, was made to apply only to treaty and law, because, in these cases, the
participation of the two other departments of the government the Executive and the
Legislative is present, which circumstance is absent in the case of rules, regulations and
executive orders. Indeed, a law (statute) passed by Congress is subject to the approval or veto of
the President, whose disapproval cannot be overridden except by the vote of two-thirds (2/3) of
all members of each House of Congress. 12 A treaty is entered into by the President with the
concurrence of the Senate, 13 which is not required in the case of rules, regulations or executive
orders which are exclusive acts of the President. Hence, to nullify the same, a lesser number of
votes is necessary in the Supreme Court than that required to invalidate a law or treaty.
Although the foregoing refers to rules, regulations and executive orders issued by the President,
the dictum applies with equal force to executive proclamation, like said Proclamation No. 1102,
inasmuch as the authority to issue the same is governed by section 63 of the Revised
Administrative Code, which provides:
Administrative acts and commands of the (Governor-General) President of the Philippines
touching the organization or mode of operation of the Government or rearranging or readjusting
any of the districts, divisions, parts or ports of the (Philippine Islands) Philippines and all acts and
commands governing the general performance of duties by public employees or disposing of
issues of general concern shall be made effective in executive orders.
Executive orders fixing the dates when specific laws, resolutions, or orders are to have or cease
to (have) effect and any information concerning matters of public moment determined by law,
resolution, or executive orders, may be promulgated in an executive proclamation, with all the
force of an executive order. 14
In fact, while executive order embody administrative acts or commands of the President,
executive proclamations are mainly informative and declaratory in character, and so does
counsel for respondents Gil J. Puyat and Jose Roy maintain in G.R. No.
L-36165. 15 As consequence, an executive proclamation has no more than "the force of an
executive order," so that, for the Supreme Court to declare such proclamation unconstitutional,
under the 1935 Constitution, the same number of votes needed to invalidate an executive order,
rule or regulation namely, six (6) votes would suffice.
As regards the applicability of the provisions of the proposed new Constitution, approved by the
1971 Constitutional Convention, in the determination of the question whether or not it is now in
force, it is obvious that such question depends upon whether or not the said new Constitution
has been ratified in accordance with the requirements of the 1935 Constitution, upon the
authority of which said Constitutional Convention was called and approved the proposed
Constitution. It is well settled that the matter of ratification of an amendment to the Constitution
should be settled by applying the provisions of the Constitution in force at the time of the alleged
ratification, or the old Constitution. 16
II
Does the issue on the validity of Proclamation No. 1102 partake of the nature of a political, and,
hence, non-justiciable question?
The Solicitor General maintains in his comment the affirmative view and this is his main defense.
In support thereof, he alleges that "petitioners would have this Court declare as invalid the New
Constitution of the Republic" from which he claims "this Court now derives its authority";
that "nearly 15 million of our body politic from the age of 15 years have mandated this
Constitution to be the New Constitution and the prospect of unsettling acts done in reliance on it
caution against interposition of the power of judicial review"; that "in the case of the New

12

Constitution, the government has been recognized in accordance with the New Constitution";
that "the country's foreign relations are now being conducted in accordance with the new
charter"; that "foreign governments have taken note of it"; that the "plebiscite cases" are "not
precedents for holding questions regarding proposal and ratification justiciable"; and that "to
abstain from judgment on the ultimate issue of constitutionality is not to abdicate duty."
At the outset, it is obvious to me that We are not being asked to "declare" the new Constitution
invalid. What petitioners dispute is the theory that it has been validly ratified by the people,
especially that they have done so in accordance with Article XV of the 1935 Constitution. The
petitioners maintain that the conclusion reached by the Chief Executive in the dispositive portion
of Proclamation No. 1102 is not borne out by the whereases preceding the same, as the
predicates from which said conclusion was drawn; that the plebiscite or "election" required in
said Article XV has not been held; that the Chief Executive has no authority, under the 1935
Constitution, to dispense with said election or plebiscite; that the proceedings before the
Citizens' Assemblies did not constitute and may not be considered as such plebiscite; that the
facts of record abundantly show that the aforementioned Assemblies could not have been held
throughout the Philippines from January 10 to January 15, 1973; and that, in any event, the
proceedings in said Assemblies are null and void as an alleged ratification of the new
Constitution proposed by the 1971 Constitutional Convention, not only because of the
circumstances under which said Assemblies had been created and held, but, also, because
persons disqualified to vote under Article V of the Constitution were allowed to participate
therein, because the provisions of our Election Code were not observed in said Assemblies,
because the same were not held under the supervision of the Commission on Elections, in
violation of section 2 of Article X of the 1935 Constitution, and because the existence of Martial
Law and General Order No. 20, withdrawing or suspending the limited freedom to discuss the
merits and demerits of said proposed Constitution, impaired the people's freedom in voting
thereon, particularly a viva voce, as it was done in many instances, as well as their ability to
have a reasonable knowledge of the contents of the document on which they were allegedly
called upon to express their views.
Referring now more specifically to the issue on whether the new Constitution proposed by the
1971 Constitutional Convention has been ratified in accordance with the provisions of Article XV
of the 1935 Constitution is a political question or not, I do not hesitate to state that the answer
must be in the negative. Indeed, such is the position taken by this Court, 17 in an endless line of
decisions, too long to leave any room for possible doubt that said issue is inherently and
essentially justiciable. Such, also, has been the consistent position of the courts of the United
States of America, whose decisions have a persuasive effect in this jurisdiction, our constitutional
system in the 1935 Constitution being patterned after that of the United States. Besides, no
plausible reason has, to my mind, been advanced to warrant a departure from said position,
consistently with the form of government established under said Constitution..
Thus, in the aforementioned plebiscite cases, 18 We rejected the theory of the respondents
therein that the question whether Presidential Decree No. 73 calling a plebiscite to be held on
January 15, 1973, for the ratification or rejection of the proposed new Constitution, was valid or
not, was not a proper subject of judicial inquiry because, they claimed, it partook of a political
nature, and We unanimously declared that the issue was a justiciable one. With identical
unanimity, We overruled the respondents' contention in the 1971 habeas corpus cases, 19
questioning Our authority to determine the constitutional sufficiency of the factual bases of the
Presidential proclamation suspending the privilege of the writ of habeas corpus on August 21,
1971, despite the opposite view taken by this Court in Barcelona v. Baker 20 and Montenegro v.
Castaeda, 21 insofar as it adhered to the former case, which view We, accordingly, abandoned
and refused to apply. For the same reason, We did not apply and expressly modified, in Gonzales
v. Commission on Elections, 22 the political-question theory adopted in Mabanag v. Lopez Vito.
23 Hence, respondents herein urge Us to reconsider the action thus taken by the Court and to
revert to and follow the views expressed in Barcelon v. Baker and Mabanag v. Lopez Vito. 24
The reasons adduced in support thereof are, however, substantially the same as those given in
support of the political-question theory advanced in said habeas corpus and plebiscite cases,
which were carefully considered by this Court and found by it to be legally unsound and
constitutionally untenable. As a consequence, Our decision in the 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,

13

which are apportioned to courts of justice. Within its own sphere but only within such sphere
each department is supreme and independent of the others, and each is devoid of authority,
not only to encroach upon the powers or field of action assigned to any of the other departments,
but, also, to inquire into or pass upon the advisability or wisdom of the acts performed, measures
taken or decisions made by the other departments provided that such acts, measures or
decisions are within the area allocated thereto by the Constitution. 25
This principle of separation of powers under the presidential system goes hand in hand with the
system of checks and balances, under which each department is vested by the Fundamental Law
with some powers to forestall, restrain or arrest a possible or actual misuse or abuse of powers
by the other departments. Hence, the appointing power of the Executive, his pardoning power,
his veto power, his authority to call the Legislature or Congress to special sessions and even to
prescribe or limit the object or objects of legislation that may be taken up in such sessions, etc.
Conversely, Congress or an agency or arm thereof such as the commission on 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 ... such inferior courts as may be established by law," may
settle or decide with finality, not only justiciable controversies between private individuals or
entities, but, also, disputes or conflicts between a private individual or entity, on the one hand,
and an officer or branch of the government, on the other, or between two (2) officers or branches
of service, when the latter officer or branch is charged with acting without jurisdiction or in
excess thereof or in violation of law. And so, when a power vested in said officer or branch of the
government is absolute or unqualified, the acts in the exercise of such power are said to be
political in nature, and, consequently, non-justiciable or beyond judicial review. Otherwise, courts
of justice would be arrogating upon themselves a power conferred by the Constitution upon
another branch of the service to the exclusion of the others. Hence, in Taada v. Cuenco, 26 this
Court quoted with approval from In re McConaughy, 27 the following:
"At the threshold of the case we are met with the assertion that the questions involved are
political, and not judicial. If this is correct, the court has no jurisdiction as the certificate of the
state canvassing board would then be final, regardless of the actual vote upon the amendment.
The question thus raised is a fundamental one; but it has been so often decided contrary to the
view contended for by the Attorney General that it would seem to be finally settled.
xxx

xxx

xxx

"... What is generally meant, when it is said that a question is political, and not judicial, is that it
is a matter which is to be exercised by the people in their primary political capacity, or that it has
been specifically delegated to some other department or particular officer of the government,
with discretionary power to act. See State vs. Cunningham, 81 Wis. 497, N.W. 724, 15 L.R.A. 561;
In re Gunn, 50 Kan. 155; 32 Pac. 470, 948, 19 L.R.A. 519; Green vs. Mills, 69 Fed. 852, 16 C.C.A.
516, 30 L.R.A. 90; Fletcher vs. Tuttle 151 Ill. 41, 37 N.E. 683, 25 L.R.A. 143, 42 Am. St. Rep. 220.
Thus the Legislature may in its discretion determine whether it will pass 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." (Emphasis supplied.)
and, in an attempt to describe the nature of a political question in terms, it was hoped,
understandable to the laymen, We added that "... the term "political question" connotes, in legal
parlance, what it means in ordinary parlance, namely, a question of policy" in matters concerning
the government of a State, as a body politic. "In other words, in the language of Corpus Juris
Secundum (supra), it refers to "those questions which, under the Constitution, are to be decided
by the people in their sovereign capacity, or in regard to which full discretionary authority has
been delegated to the Legislature or executive branch of the government." It is concerned with
issues dependent upon the wisdom, not legality, of a particular measure."
Accordingly, when the grant of power is qualified, conditional or subject to limitations, the issue
on whether or not the prescribed qualifications or conditions have been met, or the limitations

14

respected, is justiciable or non-political, the crux of the problem being one of legality or validity
of the contested act, not its wisdom. Otherwise, said qualifications, conditions or limitations
particularly those prescribed or imposed by the Constitution would be set at naught. What is
more, the judicial inquiry into such issue and the settlement thereof are the main functions of
courts of justice under the Presidential form of government adopted in our 1935 Constitution,
and the system of checks and balances, one of its basic predicates. As a consequence, We have
neither the authority nor the discretion to decline passing upon said issue, but are under the
ineluctable obligation made particularly more exacting and peremptory by our oath, as
members of the highest Court of the land, to support and defend the Constitution to settle it.
This explains why, in Miller v. Johnson, 28 it was held that courts have a "duty, rather than a
power", to determine whether another branch of the government has "kept within constitutional
limits." Not satisfied with this postulate, the court went farther and stressed that, if the
Constitution provides how it may be amended as it is in our 1935 Constitution "then, unless
the manner is followed, the judiciary as the interpreter of that constitution, will declare the
amendment invalid." 29 In fact, this very Court speaking through Justice Laurel, an
outstanding authority on Philippine Constitutional Law, as well as one of the highly respected and
foremost leaders of the Convention that drafted the 1935 Constitution declared, as early as
July 15, 1936, that "(i)n times of social disquietude or political excitement, the great landmarks of
the Constitution are apt to be forgotten or marred, if not entirely obliterated. In cases of conflict,
the judicial department is the only constitutional organ which can be called upon to determine
the proper allocation of powers between the several departments" of the government. 30
The Solicitor General has invoked Luther v. Borden 31 in support of his stand that the issue under
consideration is non-justiciable in nature. Neither the factual background of that case nor the
action taken therein by the Federal Supreme Court has any similarity with or bearing on the
cases under consideration.
Luther v. Borden was an action for trespass filed by Luther with the Circuit Court of the United
States against Borden and others for having forcibly entered into Luther's house, in Rhode Island,
sometime in 1842. The defendants who were in the military service of said former colony of
England, alleged in their defense that they had acted in obedience to the commands of a
superior officer, because Luther and others were engaged in a conspiracy to overthrow the
government by force and the state had been placed by competent authority under Martial Law.
Such authority was the charter government of Rhode Island at the time of the Declaration of
Independence, for unlike other states which adopted a new Constitution upon secession from
England Rhode Island retained its form of government under a British Charter, making only
such alterations, by acts of the Legislature, as were necessary to adapt it to its subsequent
condition as an independent state. It was under this form of government when Rhode Island
joined other American states in the Declaration of Independence and, by subsequently ratifying
the Constitution of the United States, became a member of the Union. In 1843, it adopted a new
Constitution.
Prior thereto, however, many citizens had become dissatisfied with the charter government.
Memorials addressed by them to the Legislature having failed to bring about the desired effect,
meetings were held and associations formed by those who belonged to this segment of the
population which eventually resulted in a convention called for the drafting of a new
Constitution to be submitted to the people for their adoption or rejection. The convention was not
authorized by any law of the existing government. The delegates to such convention framed a
new Constitution which 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.

15

About a year before, or in May 1842, Dorr, at the head of a military force, had made an
unsuccessful attempt to take possession of the state arsenal in Providence, but he was repulsed,
and, after an "assemblage of some hundreds of armed men under his command at Chepatchet in
the June following, which dispersed upon approach of the troops of the old government, no
further effort was made to establish" his government. "... until the Constitution of 1843"
adopted under the auspices of the charter government "went into operation, the charter
government continued to assert its authority and exercise its powers and to enforce obedience
throughout the state ... ."
Having offered to introduce evidence to prove that the constitution of the rebels had been
ratified by the majority of the people, which the Circuit Court rejected, apart from rendering
judgment for the defendants, the plaintiff took the case for review to the Federal Supreme Court
which affirmed the action of the Circuit Court, stating:
It is worthy of remark, however, when we are referring to the authority of State decisions, that
the trial of Thomas W. Dorr took place after the constitution of 1843 went into operation. The
judges who decided that case held their authority under that constitution and it is admitted on all
hands that it was adopted by the people of the State, and is the lawful and established
government. It is the decision, therefore, of a State court, whose judicial authority to decide upon
the constitution and laws of Rhode Island is not questioned by either party to this controversy,
although the government under which it acted was framed and adopted under the sanction and
laws of the charter government.
The point, then, raised here has been already decided by the courts of Rhode Island. The
question relates, altogether, to the constitution and laws of that State, and the well settled rule
in this court is, that the courts of the United States adopt and follow the decisions of the State
courts in questions which concern merely the constitution and laws of the State.
Upon what ground could the Circuit Court of the United States which tried this case have
departed from this rule, and disregarded and overruled the decisions of the courts of Rhode
Island? Undoubtedly the courts of the United States have certain powers under the Constitution
and laws of the United States which do not belong to the State courts. But the power of
determining that a State government has been lawfully established, which the courts of the State
disown and repudiate, is not one of them. Upon such a question the courts of the United States
are bound to follow the decisions of the State tribunals, and must therefore regard the charter
government as the lawful and established government during the time of this contest. 32
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, 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

16

has not the slightest application to the case at bar. When carefully analyzed, it appears that it
merely determines that the federal courts will accept as final and controlling a decision of the
highest court of a state upon a question of the construction of the Constitution of the state. ... .
33
Baker v. Carr, 34 cited by respondents, involved an action to annul a Tennessee statute
apportioning the seats in the General Assembly among the counties of the State, upon the
theory that the legislation violated the equal protection clause. A district court dismissed the
case upon the ground, among others, that the issue was a political one, but, after a painstaking
review of the jurisprudence on the matter, the Federal Supreme Court reversed the appealed
decision and held that said issue was justiciable and non-political, inasmuch as:"... (d)eciding
whether a matter has in any measure been committed by the Constitution to another branch of
government, or whether the action of that branch exceeds whatever authority has been
committed, is itself a delicate exercise in constitutional interpretation, and is a responsibility of
this Court as ultimate interpreter of the Constitution ... ."
Similarly, in Powell v. McCormack, 35 the same Court, speaking through then Chief Justice
Warren, reversed a decision of the Court of Appeals of New York affirming that of a Federal
District Court, dismissing Powell's action for a declaratory judgment declaring thereunder that he
whose qualifications were uncontested had been unlawfully excluded from the 90th
Congress of the U.S. Said dismissal was predicated upon the ground, inter alia, that the issue was
political, but the Federal Supreme Court held that it was clearly a justiciable one.
The Supreme Court of Minnessota undertook a careful review of American jurisprudence on the
matter. Owing to the lucidity of its appraisal thereof, We append the same to this opinion as
Annex A thereof.
After an, exhaustive analysis of the cases on this subject, the Court concluded:
The authorities are thus practically uniform in holding that whether a constitutional amendment
has been properly adopted according to the requirements of an existing Constitution is a judicial
question. There can be little doubt that the consensus of judicial opinion is to the effect that it is
the absolute duty of the judiciary to determine whether the Constitution has been amended in
the manner required by the Constitution, unless a special tribunal has been created to determine
the question; and even then many of the courts hold that the tribunal cannot be permitted to
illegally amend the organic law. ... . 36
In the light of the foregoing, and considering that Art. XV of our 1935 Constitution prescribes the
method or procedure for its amendment, it is clear to my mind that the question whether or not
the revised Constitution drafted by the 1971 Constitutional Convention has been ratified in
accordance with said Art. XV is a justiciable one and non-political in nature, and that it is not only
subject to judicial inquiry, but, also, that it is the Court's bounden duty to decide such question.
The Supreme Court of the United States has meaningfully postulated that "the courts cannot
reject as 'no law suit' " because it allegedly involves a political question "a bona fide
controversy as to whether some action denominated "political" exceeds constitutional authority."
37
III
Has the proposed new or revised Constitution been ratified conformably to said Art. XV of the
1935 Constitution?
Petitioners in L-36142 maintain the negative view, upon ground: 1) that the President "is without
authority to create the Citizens' Assemblies" through which, respondents maintain, the proposed
new Constitution has been ratified; 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 ... 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

17

concentrate on the matter submitted to them when the 1972 draft was supposedly submitted to
the Citizens' Assemblies for ratification."
Petitioner in L-36236 added, as arguments in support of the negative view, that : 1) "(w)ith a
government-controlled press, there can never be a fair and proper submission of the proposed
Constitution to the people"; and 2) Proclamation No. 1102 is null and void "(i)nasmuch as the
ratification process" prescribed "in the 1935 Constitution was not followed."
Besides adopting substantially some of the grounds relied upon by the petitioners in the abovementioned cases, the petitioners in L-36283 argue that "(t)he creation of the Citizens' Assemblies
as the vehicle for the ratification of the Constitution was a deception upon the people since the
President announced the postponement of the January 15, 1973 plebiscite to either February 19
or March 5, 1973." 38
The reasons adduced by the petitioners in L-36165 in favor of the negative view have already
been set forth earlier in this opinion. Hence, it is unnecessary to reproduce them here. So it is,
with respect to the positions taken in L-36165 by counsel for therein respondents Gil J. Puyat and
Jose Roy although more will be said later about them and by the Solicitor General, on behalf
of the other respondents in that case and the respondents in the other cases.
1.

What is the procedure prescribed by the 1935 Constitution for its amendment?

Under section 1 of Art. XV of said Constitution, three (3) steps are essential, namely:
1.
That the amendments to the Constitution be proposed either by Congress or by a
convention called for that purpose, "by a vote of three-fourths of all the Members of the Senate
and the House of Representatives voting separately," but "in joint session assembled";
2.
and

That such amendments be "submitted to the people for their ratification" at an "election";

3.

That such amendments be "approved by a majority of the votes cast" in said election.

Compliance with the first requirement is virtually conceded, although the petitioners in L-36164
question the authority of the 1971 Constitutional Convention to incorporate certain provisions
into the draft of the new or revised Constitution. The main issue in these 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 instrumentalities of the Government, when so
required by the Commission, shall act as its deputies for the purpose of insuring fee, orderly, and
honest elections. The decisions, orders, and rulings of the Commission shall be subject to review
by the Supreme Court.
xxx

xxx

xxx 39

18

a.

Who may vote in a plebiscite under Art. V of the Constitution?

Petitioners maintain that section 1 of Art. V of the Constitution is a limitation upon the exercise of
the right of suffrage. They claim that no other persons than "citizens of the Philippines not
otherwise disqualified by law, who are twenty-one years of age or over and are able to read and
write, and who shall have resided in the Philippines for one year and in the municipality wherein
they propose to vote for at least six months preceding the election," may exercise the right of
suffrage in the Philippines. Upon the other hand, the Solicitor General contends that said
provision merely guarantees the right of suffrage to persons possessing the aforementioned
qualifications and none of the disqualifications, prescribed by law, and that said right may be
vested by competent authorities in persons lacking some or all of the aforementioned
qualifications, and possessing some of the aforesaid disqualifications. In support of this view, he
invokes the permissive nature of the language "(s)uffrage may be exercised" used in
section 1 of Art. V of the Constitution, and the provisions of the Revised Barrio Charter, Republic
Act No. 3590, particularly sections 4 and 6 thereof, providing that citizens of the Philippines
"eighteen years of age or over," who are registered in the list of barrio assembly members, shall
be members thereof and may participate as such in the plebiscites prescribed in said Act.
I cannot accept the Solicitor General's theory. Art. V of the Constitution declares who may
exercise the right of suffrage, so that those lacking the qualifications therein prescribed may not
exercise such right. This view is borne out by the records of the Constitutional Convention that
drafted the 1935 Constitution. Indeed, section 1 of Art. V of the 1935 Constitution was largely
based on the report of the committee on suffrage of the Convention that drafted said
Constitution which report was, in turn, "strongly influenced by the election laws then in force in
the Philippines ... ." 40 " Said committee had recommended: 1) "That the right of suffrage should
exercised only by male citizens of the Philippines." 2) "That should be limited to those who could
read and write." 3) "That the duty to vote should be made obligatory." It appears that the first
recommendation was discussed extensively in the Convention, and that, by way of compromise,
it was eventually agreed to include, in section 1 of Art. V of the Constitution, the second
sentence thereof imposing upon the National Assembly established by the original Constitution
instead of the bicameral Congress subsequently created by amendment said Constitution
the duty to "extend the right of suffrage women, if in a plebiscite to, be held for that purpose
within two years after the adoption of this Constitution, not less than three hundred thousand
women possessing the necessary qualifications shall vote affirmatively on the question." 41
The third recommendation on "compulsory" voting was, also debated upon rather extensively,
after which it was rejected by the Convention. 42 This accounts, in my opinion, for the permissive
language used in the first sentence of said Art. V. Despite some debates on the age qualification
amendment having been proposed to reduce the same to 18 or 20, which were rejected, and
the residence qualification, as well as the disqualifications to the exercise of the right of suffrage
the second recommendation limiting the right of suffrage to those who could "read and write"
was in the language of Dr. Jose M. Aruego, one of the Delegates to said Convention "readily
approved in the Convention without any dissenting vote," although there was some debate on
whether the Fundamental Law should specify the language or dialect that the voter could read
and write, which was decided in the negative. 43
What is relevant to the issue before Us is the fact that the constitutional provision under
consideration was meant to be and is a grant or conferment of a right to persons possessing the
qualifications and none of the disqualifications therein mentioned, which in turn, constitute a
limitation of or restriction to said right, and cannot, accordingly, be dispensed with, except by
constitutional amendment. Obviously, every such constitutional grant or conferment of a right is
necessarily a negation of the authority of Congress or of any other branch of the Government to
deny said right to the subject of the grant and, in this sense only, may the same partake of the
nature of a guarantee. But, this does not imply not even remotely, that the Fundamental Law
allows Congress or anybody else to vest in those lacking the qualifications and having the
disqualifications mentioned in the Constitution the right of suffrage.
At this juncture, it is noteworthy that the committee on suffrage responsible for the adoption of
section 1 of Art. V of the Constitution was "strongly influenced by the election laws then in force
in the Philippines." Our first Election Law was Act 1582, passed on January 9, 1907, which was
partly amended by Acts 1669, 1709, 1726 and 1768, and incorporated into the Administrative
Code of 1916 Act 2657 as chapter 20 thereof, and then in the Administrative Code of 1917
Act 2711 as chapter 18 thereof, which, in turn, was amended by Act 3387, approved on
December 3, 1927. Sections 431 and 432 of said Code of 1917, prescribing, respectively, the
qualifications for and disqualifications from voting, are quoted below. 44 In all of these legislative
acts, the provisions concerning the qualifications of voters partook of the nature of a grant or
recognition of the right of suffrage, and, hence, of a 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.

19

This view is further bolstered by the fact that the 1971 Constitutional Convention sought the
submission to a plebiscite of a "partial amendment" to said section 1 of Art. V of the 1935
Constitution, by reducing the voting age from twenty-one (21) years to eighteen (18) years,
which, however, did not materialize on account of the decision of this Court in Tolentino v.
Commission on Elections, 45 granting the writs, of prohibition and injunction therein applied for,
upon the ground that, under the Constitution, all of the amendments adopted by the Convention
should be submitted in "an election" or a single election, not separately or in several or distinct
elections, and that the proposed amendment sought to be submitted to a plebiscite was not
even a complete amendment, but a "partial amendment" of said section 1, which could be
amended further, after its ratification, had the same taken place, so that the aforementioned
partial amendment was, for legal purposes, no more than a provisional or temporary
amendment. Said partial amendment was predicated upon the generally accepted contemporary
construction that, under the 1935 Constitution, persons below twenty-one (21) years of age
could not exercise the right of suffrage, without a previous amendment of the Constitution.
Upon the other hand, the question, whether 18-year-old members of barrio assemblies may vote
in barrio assembly plebiscites is, to say the least, a debatable one. Indeed, there seems to be a
conflict between the last paragraph of said section 6 of Rep. Act No. 3590, 46 pursuant to which
the "majority vote of all the barrio assembly members" (which include all barrio residents 18
years of age or over, duly registered in the list of barrio assembly members) is necessary for the
approval, in an assembly plebiscite, of "any budgetary, supplemental appropriations or special
tax ordinances," whereas, according to the paragraph preceding the penultimate one of said
section, 47 "(a)ll duly registered barrio assembly 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 ..." just like the
provisions of present and past election codes of the Philippines and Art. V of the 1935
Constitution "may vote in the plebiscite."
I believe, however, that the apparent conflict should resolved in favor of the 21-year-old
members of the assembly, not only because this interpretation is in accord with Art. V the
Constitution, but, also, because provisions of a Constitution particularly of a written and rigid
one, like ours generally accorded a mandatory status unless the intention to the contrary is
manifest, which is not so as regards said Art. V for otherwise they would not have been
considered sufficiently important to be included in the Fundamental Law of the land. 48 Besides,
it would be illogical, if not absurd, believe that Republic Act No. 3590 requires, for the most
important measures for which it demands in addition to favorable action of the barrio council
the approval of barrio assembly through a plebiscite, 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 decades, and to
affect the way of life of the nation and, accordingly, demands greater experience and maturity
on the part of the electorate than that required for the election of public officers, 49 whose
average term ranges from 2 to 6 years.
It is admitted that persons 15 years of age or over, but below 21 years, regardless of whether or
not they possessed the other qualifications laid down in both the Constitution and the present
Election Code, 50 and of whether or not they are disqualified under the provisions of said
Constitution and Code, 51 or those of Republic Act No. 3590, 52 have participated 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 ... 743,869 who
voted for its rejection," whereas, on the question whether or not the people still wanted a
plebiscite to be called to ratify the new Constitution, "... 14,298,814 answered that there was no
need for a plebiscite and that the vote of the Barangays (Citizens Assemblies) should be
considered as a vote in a plebiscite." In other words, it is conceded that the number of people
who allegedly voted at the Citizens' Assemblies for exceeded the number of registered voters
under the Election Code in force in January 1973.
It is thus clear that the proceedings held in such Citizens' Assemblies and We have more to
say on this point in subsequent pages were fundamentally irregular, in that persons lacking

20

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. 53
It has been held that "(t)he power to reject an entire poll ... should be exercised ... in a case
where it is impossible to ascertain with reasonable certainty the true vote," as where "it is
impossible to separate the legal votes from the illegal or spurious ... ." 54
In Usman v. Commission on Elections, et al., 55 We held:
Several circumstances, defying exact description and dependent mainly on the factual milieu of
the particular controversy, have the effect of destroying the integrity and authenticity of
disputed election returns and of avoiding their prima facie value and character. If satisfactorily
proven, although in a summary proceeding, such circumstances as alleged by the affected or
interested parties, stamp the election returns with the indelible mark of falsity and irregularity,
and, consequently, of unreliability, and justify their exclusion from the canvass.
Then, too, the 1935 Constitution requires "a majority of the votes cast" for a proposed
amendment to the Fundamental Law to be "valid" as part thereof, and the term "votes cast" has
a well-settled meaning.
The term "votes cast" ... was held in Smith v. Renville County Commissioners, 65 N.W. 956, 64
Minn. 16, to have been used as an equivalent of "ballots cast." 56
The word "cast" is defined as "to deposit formally or officially." 57
It seems to us that a vote is cast when a ballot is deposited indicating a "choice." ... The word
"cast" means "deposit (a ballot) formally or officially ... .
... In simple words, we would define a "vote cast" as the exercise on a ballot of the choice of the
voter on the measure proposed. 58
In short, said Art. XV envisages with the term "votes cast" choices made on ballots not
orally or by raising by the persons taking part in plebiscites. This is but natural and logical, for,
since the early years of the American regime, we had adopted the Australian Ballot System, with
its major characteristics, namely, uniform official ballots prepared and furnished by the
Government and secrecy in the voting, with the advantage of keeping records that permit judicial
inquiry, when necessary, into the accuracy of the election returns. And the 1935 Constitution has
been consistently interpreted in all plebiscites for the ratification rejection of proposed
amendments thereto, from 1935 to 1967. Hence, the viva voce voting in the Citizens' Assemblies
was and is null and void ab initio.
b.
How should the plebiscite be held? (COMELEC supervision indispensable; essential
requisites)
Just as essential as compliance with said Art. V of the 19 Constitution is that of Art. X thereof,
particularly its sections 1 and 2. Indeed, section 1 provides that "(t)here shall be an independent
Commission on Elections ... ." 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 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

21

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 appointed 59 the longest under the
Constitution, second only to that of the Auditor General 60; by 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" only 61; that "(n)o pardon, parole, or suspension sentence for the violation of
any election law may be granted without the favorable recommendation of the Commission" 62;
and, that its chairman and members "shall not, during the continuance in office, engage in the
practice of any profession or intervene, directly or indirectly, in the management or control of
any private enterprise which in anyway may affected by the functions of their office; nor shall
they, directly or indirectly, be financially interested in any contract with the Government or any
subdivision or instrumentality thereof." 63 Thus, the framers of the amendment to the original
Constitution of 1935 endeavored to do everything possible protect and insure the independence
of each member of the Commission.
With respect to the functions thereof as a body, section 2 of said Art. X ordains that "(t)he
Commission on Elections shall have exclusive charge of the enforcement and administration all
laws relative to the conduct of elections," apart from such other "functions which may be
conferred upon it by law." It further provides that the Commission "shall decide, save those
involving the right to vote, all administrative question affecting elections, including the
determination of the number and location of polling places, and the appointment of election
inspectors and of other election officials." And, to forests possible conflicts or frictions between
the Commission, on one hand, and the other offices or agencies of the executive department, on
the other, said section 2 postulates that "(a)ll law enforcement agencies and instrumentalities of
the Government, when so required by the Commission, shall act as its deputies for the purpose
of insuring free, orderly, and honest elections." Not satisfied with this, it declares, in effect, that
"(t)he decisions, orders, and ruling of the Commission" shall not be subject to review, except by
the Supreme Court.
In accordance with the letter and spirit of said Art. X of the Constitution, Rep. Act No. 6388,
otherwise known as the Election Code of 1971, implements the constitutional powers of the
Commission on Elections and grants additional powers thereto, some of which are enumerated in
sections 5 and 6 of said Act, quoted below. 64 Moreover, said Act contains, inter alia, detailed
provisions regulating contributions and other (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 even sought to be given
therefor. In many, if not most, instances, the election were held a viva voce, thus depriving the
electorate of the right to vote secretly one of the most, fundamental and critical features of
our election laws from time immemorial particularly at a time when the same was of utmost
importance, owing to the existence of Martial Law.
In Glen v. Gnau, 65 involving the casting of many votes, openly, without complying with the
requirements of the law pertinent thereto, it was held that the "election officers" involved
"cannot be too strongly condemned" therefor and that if they "could legally dispense with such
requirement ... they could with equal propriety dispense with all of them, including the one that
the vote shall be by secret ballot, or even by ballot
at all ... ."

22

Moreover, upon the formal presentation to the Executive of the proposed Constitution drafted by
the 1971 Constitutional Convention, or on December 1, 1972, Presidential Decree No. 73 (on the
validity of which which was contested in the plebiscite cases, as well as in the 1972 habeas
corpus cases 66 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 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
... temporarily suspending effects of Proclamation No. 1081 for the purposes of free open dabate
on the proposed Constitution ... ." This specific mention of the portions of the decrees or orders
or instructions suspended by General Order No. 20 necessarily implies that all other portions of
said decrees, orders or instructions and, hence, the provisions of Presidential Decree No. 73
outlining the procedure to be followed in the plebiscite for ratification or rejection of the
proposed Constitution remained in force, assuming that said Decree is valid.
It is claimed that by virtue of Presidential Decree No. 86-A the text of which is quoted below 67
the Executive declared, inter alia, that the collective views expressed in the Citizens'
Assemblies "shall be considered in the formulation of national policies or programs and,
wherever practicable, shall be translated into concrete and specific decision"; that such Citizens'
Assemblies "shall consider vital national issues ... like the holding of the plebiscite on the new
Constitution ... and others in the future, which shall serve as guide or basis for action or decision
by the national government"; and that the Citizens' Assemblies "shall conduct between January
10 and 15, 1973, a referendum on important national issues, including those specified in
paragraph 2 hereof, and submit the results thereof to the Department of Local Governments and
Community Development immediately thereafter, ... ." As in Presidential Decree No. 86, this
Decree No. 86-A does not and cannot exclude the exercise of the constitutional supervisory
power of the Commission on Elections or its participation in the proceedings in said Assemblies,
if the same had been intended to constitute the "election" or Plebiscite required 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. 86B, 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 No. 73. What is more, they were held under the
supervision of the very officers and agencies of the Executive Department sought to be excluded
therefrom by Art. X of the 1935 Constitution. Worse still, said officers and agencies of the 1935
Constitution would be favored thereby, owing to the practical indefinite extension of their
respective terms of office in consequence of section 9 of the Transitory Provisions, found in Art.
XVII of the proposed Constitution, without any elections therefor. And the procedure therein
mostly followed is such that there is no reasonable means of checking the accuracy of the
returns files by the officers who conducted said plebiscites. This is another patent violation of Art.
of the Constitution which can hardly be sanctioned. And, since the provisions of this article form
part of the fundamental scheme set forth in the 1935 Constitution, as amended, to insure the
"free, orderly, and honest" expression of the people's will, the aforementioned violation thereof

23

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. "... (a)ll the authorities agree that the legal definition of an election,
as well as that which is usually and ordinarily understood by the term, is a choosing or as
election by those having a right to participate (in the selection) of those who shall fill the offices,
or of the adoption or rejection of any public measure affecting the territory involved. 15 Cyc. 279;
Lewis v. Boynton, 25 Colo. 486, 55 Pac. 732; Saunders v. Haynes, 13 Cal. 145; Seaman v.
Baughman, 82 Iowa 216, 47 N.W. 1091, 11 L.R.A. 354; State v. Hirsh, 125 Ind. 207, 24 N.E. 1062,
9 L.R.A. 170; Bouvier's Law Dictionary. 68
IV
Has the proposed Constitution aforementioned
been approved by a majority of the people in
Citizens' Assemblies allegedly held
throughout the Philippines?
Respondents maintain the affirmative, relying upon Proclamation No. 1102, the validity of which
is precisely being contested by petitioners herein. Respondents claim that said proclamation is
"conclusive" upon this Court, or is, at least, entitled to full faith and credence, as an enrolled bill;
that the proposed Constitution has been, in fact, ratified, approved or adopted by the
"overwhelming" majority of the people; that Art. XV of the 1935 Constitution has thus been
"substancially" 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
... 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. ... .
Accordingly, the issue boils downs to whether or not the Executive acted within the limits of his
authority when he 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. Franciso Cruz,
as President or acting President of the National Association or Federation, whereupon Mr. Cruz,
acting in a ceremonial capacity, reported said results (tabulated by the Department of
Governments and Community Development) to the Chief Executive, who, accordingly, issued
Proclamation No. 1102.

24

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 provided in the
Constitution, 69 is not conclusive upon the courts. It is no more than prima facie evidence of
what is attested to by said resolution. 70 If assailed directly in appropriate proceedings, such as
an election protest, if and when authorized by law, as it is in the Philippines, the Court may
receive evidence and declare, in accordance therewith, who was duly elected to the office
involved. 71 If prior to the creation of the Presidential Electoral Tribunal, no such protest could be
filed, it was not because the resolution of Congress declaring who had been elected President or
Vice-President was conclusive upon courts of justice, but because there was no law permitting
the filing of such protest and declaring what court or body would hear and decide the same. So,
too, a declaration to the effect that a given amendment to the Constitution or revised or new
Constitution has been ratified by a majority of the votes cast therefor, may be duly assailed in
court and be the object of judicial inquiry, in direct proceedings therefor such as the cases at
bar and the issue raised therein may and should be decided in accordance with the evidence
presented.
The case of In re McConaughy 72 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 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. "...
The correctness of the conclusion of the state board rests upon the correctness of the returns
made by the county boards and it is inconceivable that it was intended that this statement of
result should be final and conclusive regardless of the actual facts. The proclamation of the
Governor adds nothing in the way of conclusiveness to the legal effect of the action of the
canvassing board. Its purpose is to formally notify the people of the state of the result of the
voting as found by the canvassing board. James on Const. Conv. (4th Ed.) sec. 523."
In Bott v. Wartz, 73 the Court reviewed the statement of results of the election made by the
canvassing board, in order that the true results could be judicially determined. And so did the
court in Rice v. Palmer. 74
Inasmuch as Art. X of the 1935 Constitution places under the "exclusive" charge of the
Commission on Elections, "the enforcement and administration of all laws relative to the conduct
of elections," independently of the Executive, and there is not even a certification by the
Commission in support of the alleged results of the citizens' assemblies relied upon in

25

Proclamation No. 1102 apart from the fact that on January 17, 1973 neither the alleged
president of the Federation of Provincial or City Barangays nor the Department of Local
Governments had certified to the President the alleged result of the citizens' assemblies all over
the Philippines it follows necessarily that, from a constitutional and legal viewpoint,
Proclamation No. 1102 is not even prima facie evidence of the alleged ratification of the
proposed Constitution.
Referring particularly to the cases before Us, it will be noted that, as pointed out in the discussion
of the preceding topic, the new or revised Constitution proposed by the 1971 Constitutional
Convention was not ratified in accordance with the provisions of the 1935 Constitution. In fact, it
has not even been, ratified in accordance with said proposed Constitution, the minimum age
requirement therein for the exercise of the right of suffrage being eighteen (18) years, apart from
the fact that Art. VI of the proposed Constitution requires "secret" voting, which was not
observed in many, if not most, Citizens' Assemblies. Besides, both the 1935 Constitution and the
proposed Constitution require a "majority of the votes cast" in an election or plebiscite called for
the ratification of an amendment or revision of the first Constitution or the effectivity of the
proposed Constitution, and the phrase "votes cast" has been construed to mean "votes made in
writing not orally, as it was in many Citizens' Assemblies. 75
Even counsel for Gil J. Puyat and Jose Roy, as respondents in L-36165, asserts openly that Art. XV
of the Constitution has not been complied with, and since the alleged substantial compliance
with the requirements thereof partakes of the 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, pursuant to the 1935 Constitution, scheduled to meet in
regular session on January 22, 1973, and since the main objection to Presidential Decree No. 73
was that the President does not have the legislative authority to call a plebiscite and appropriate
funds therefor, which Congress unquestionably could do, particularly in view of the formal
postponement of the plebiscite by the President reportedly after consultation with, among
others, the leaders of Congress and the Commission on Elections the Court deemed it more
imperative to defer its final action on these cases.
And, apparently, the parties in said cases entertained the same belief, for, on December 23,
1972 four (4) days after the last hearing of said cases 76 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

26

"plebiscite" postponed by General Order No. 20? Under these circumstances, it was only
reasonable for the people who attended such assemblies to believe that the same were not an
"election" or plebiscite for the ratification or adoption of said proposed Constitution.
And, this belief is further bolstered up by the questions propounded in the Citizens' Assemblies,
namely:
[1]

Do you like the New Society?

[2]

Do you like the reforms under martial law?

[3]

Do you like Congress again to hold sessions?

[4]

Do you like the plebiscite to be held later?

[5]
Do you like the way President Marcos is running the affairs of the government? [Bulletin
Today, January 10, 1973; emphasis an additional question.]
[6]
Do you approve of the citizens assemblies as the base of popular government to decide
issues of national interests?
[7]

Do you approve of the new Constitution?

[8]

Do you want a plebiscite to be called to ratify the new Constitution?

[9]
Do you want the elections to be held in November, 1973 in accordance with the provisions
of the 1935 Constitution?
[10]

If the elections would not be held, when do you want the next elections to be called?

[11]

Do you want martial law to continue? [Bulletin Today, January 11, 1973]

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

... 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, ... 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

27

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

28

Department is inherently, basically and fundamentally executive in nature to "take care that
the laws be faithfully executed," in the language of our 1935 Constitution. 79
Consequently, I am not prepared to concede that the acts the officers and offices of the
Executive Department, in line with Proclamation No. 1102, connote a recognition thereof o an
acquiescence thereto. Whether they recognized the proposed Constitution or acquiesce thereto
or not is something that cannot legally, much less necessarily or even normally, be deduced from
their acts in accordance therewith, because the are bound to obey and act in conformity with the
orders of the President, under whose "control" they are, pursuant to the 1935 Constitution. They
have absolutely no other choice, specially in view of Proclamation No. 1081 placing the
Philippines under Martial Law. Besides, by virtue of the very decrees, orders and instructions
issued by the President thereafter, he had assumed all powers of Government although some
question his authority to do so and, consequently, there is hardly anything he has done since
the issuance of Proclamation No. 1102, on January 17, 1973 declaring that the Constitution
proposed by the 1971 Constitutional Convention has been ratified by the overwhelming majority
of the people that he could not do under the authority he claimed to have under Martial Law,
since September 21, 1972, except the power of supervision over inferior courts and its
personnel, which said proposed Constitution would place under the Supreme Court, and which
the President has not ostensibly exercised, except as to some minor routine matters, which the
Department of Justice has continued to handle, this Court having preferred to maintain the status
quo in connection therewith pending final determination of these cases, in which the effectivity
of the aforementioned Constitution is disputed.
Then, again, a given department of the Government cannot generally be said to have
"recognized" its own acts. Recognition normally connotes the acknowledgment by a party of the
acts of another. Accordingly, when a subordinate officer or office of the Government complies
with the commands of a superior officer or office, under whose supervision and control he or it is,
the former merely obeys the latter. Strictly speaking, and from a legal and constitutional
viewpoint, there is no act of recognition involved therein. Indeed, the lower officer or office, if he
or it acted otherwise, would just be guilty of insubordination.
Thus, for instance, the case of Taylor v. Commonwealth 80 cited by respondents herein in
support of the theory of the people's acquiescence involved a constitution ordained in 1902
and "proclaimed by a convention duly called by a direct vote of the people of the state to revise
and amend the Constitution of 1869. The result of the work of that Convention has been
recognized, accepted and acted upon as the only valid Constitution of the State" by
1.
The "Governor of the State in swearing fidelity to it and proclaiming it, as directed
thereby";
2.
The "Legislature in its formal official act adopting a joint resolution, July 15, 1902,
recognizing the Constitution ordained by the Convention ...";
3.
The "individual oaths of its members to support it, and by its having been engaged for
nearly a year, in legislating under it and putting its provisions into
operation ...";
4.
The "judiciary in taking the oath prescribed thereby to support it and by enforcing its
provisions ..."; and
5.
The "people in their primary capacity by peacefully accepting it and acquiescing in it, by
registering as voters under it to the extent of thousands throughout the State, and by voting,
under its provisions, at a general election for their representatives in the Congress of the United
States."
Note that the New Constitution of Virginia, drafted by a convention whose members were elected
directly by the people, was not submitted to the people for 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

29

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.
It is further alleged that a majority of the members of our House of Representatives and Senate
have acquiesced in the new or revised Constitution, by filing written statements opting to serve
in the Ad Interim Assembly established in the Transitory Provisions of said Constitution. Individual
acts of recognition by members of our legislature, as well as of other collegiate bodies under the
government, are invalid as acts of said legislature or bodies, unless its members have performed
said acts in session duly assembled, or unless the law provides otherwise, and there is no such
law in the Philippines. This is a well-established principle of Administrative Law and of the Law of
Public Officers, and no plausible reason has been adduced to warrant departure therefrom. 81
Indeed, if the members of Congress were generally agreeable to the proposed Constitution, why
did it become necessary to padlock its premises to prevent its meeting in session on January 22,
1973, and thereafter as provided in the 1935 Constitution? It is true that, theoretically, the
members of Congress, if bent on discharging their functions under said Constitution, could have
met in any other place, the building in which they perform their duties being immaterial to the
legality of their official acts. The force of this argument is, however, offset or dissipated by the
fact that, on or about December 27, 1972, immediately after a conference between the
Executive, on the one hand, and members of Congress, on the other, some of whom expressed
the wish to meet in session on January 22, 1973, as provided in the 1935 Constitution, a Daily
Express columnist (Primitivo Mijares) attributed to Presidential Assistant Guillermo de Vega a
statement to the effect that "'certain members of the Senate appear to be missing the point in
issue' when they reportedly insisted on taking up first the question of convening Congress." The
Daily Express of that date, 82 likewise, headlined, on its front page, a "Senatorial Plot Against
'Martial Law Government' Disclosed". Then, in its issue of December 29, 1972, the same paper
imputed to the Executive an appeal "to diverse groups involved in a conspiracy to undermine"
his powers" under martial law to desist from provoking a constitutional crisis ... which may result
in the exercise by me of authority I have not exercised."
No matter how good the intention behind these statement may have been, the idea implied
therein was too clear an ominous for any member of Congress who thought of organizing,
holding or taking part in a session of Congress, not to get the impression that he could hardly do
so without inviting or risking the application of Martial Law to him. Under these conditions, I do
not feel justified in holding that the failure of the members of Congress to meet since January 22,
1973, was due to their recognition, acquiescence in or conformity with the provisions of the
aforementioned Constitution, or its alleged ratification.
For the same reasons, especially because of Proclamation No. 1081, placing the entire Philippines
under Martial Law, neither am I prepared to declare that the people's inaction as regards
Proclamation No. 1102, and their compliance with a number of Presidential orders, decrees
and/or instructions some or many of which have admittedly had salutary effects issued
subsequently thereto amounts, constitutes or attests to a ratification, adoption or approval of
said Proclamation No. 1102. In the words of the Chief Executive, "martial law connotes power of
the gun, meant coercion by the military, and compulsion and intimidation." 83 The failure to use
the gun against those who comply with the orders of the party wielding the weapon does not
detract from the intimidation that Martial Law necessarily connotes. It may reflect the good,
reasonable and wholesome attitude of the person who has the gun, either pointed at others,
without pulling the trigger, or merely kept in its holster, but not without warning that he may or
would use it if he deemed it necessary. Still, the intimidation is there, and inaction or obedience
of the people, under these conditions, is not necessarily an act of conformity or acquiescence.
This is specially so when we consider that the masses are, by and 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

30

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 Citizens Assemblies
allegedly held all over the Philippines and the records do not show that any such certification,
to the President of the Philippines or to the President Federation or National Association of
presidents of Provincial Associations of presidents of municipal association presidents of barrio or
ward assemblies of citizens would not, legally and constitutionally, be worth the paper on
which it is written. Why? Because said Department Secretary is not the officer designated by law
to superintend plebiscites or elections held for the ratification or rejection of a proposed
amendment or revision of the Constitution and, hence, to tabulate the results thereof. Worse still,
it is the department which, according to Article X of the Constitution, should not and must not be
all participate in said plebiscite if plebiscite there was.
After citing approvingly its ruling in United States v. Sandoval, 84 the Highest Court of the United
States that courts "will not stand impotent before an obvious instance of a manifestly
unauthorized exercise of power." 85
I cannot honestly say, therefore, that the people impliedly or expressly indicated their conformity
to the 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 the transcendental nature of the main issue raised, the necessity of deciding the
same with utmost dispatch, and the main defense set up by respondents herein, namely, the
alleged political nature of said issue, placing the same, according to respondents, beyond the
ambit of judicial inquiry and determination. If this defense was sustained, the cases could readily
be dismissed; but, owing to the importance of the questions involved, a reasoned resolution was
demanded by public interest. At the same time, respondents had cautioned against a judicial
inquiry into the merits of the issues posed on account of the magnitude of the evil
consequences, it was claimed, which would result from a decision thereon, if adverse to the
Government.
As a matter of fact, some of those issues had been raised in the plebiscite cases, which were
dismissed as moot and academic, owing to the issuance of Proclamation No. 1102 subsequently
to the filing of said cases, although before the rendition of judgment therein. Still one of the
members of the Court (Justice Zaldivar) was of the opinion that the aforementioned issues should
be settled in said cases, and he, accordingly, filed an opinion passing upon the merits thereof. On
the other hand, three (3) members of the Court Justices Barredo, Antonio and Esguerra filed
separate opinions favorable to the respondents in the plebiscite cases, Justice Barredo holding
"that the 1935 Constitution has pro tanto passed into history and has been legitimately
supplanted by the Constitution in force by virtue of Proclamation 1102." 86 When the petitions at
bar were filed, the same three (3) members of the Court, consequently, voted for the dismissal of
said petitions. The majority of the members of the Court did not share, however, either view,
believing that the main question that arose before the rendition of said judgment had not been
sufficiently discussed and argued as the nature and importance thereof demanded.
The parties in the cases at bar were accordingly given every possible opportunity to do so and to
elucidate on and discuss said question. Thus, apart from hearing the parties in oral argument for
five (5) consecutive days morning and 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

31

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 L36142, 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 Fundamental Law of the Land,
without prejudice to the submission of said proposed Constitution to the people at a plebiscite for
its ratification or rejection in accordance with Articles V, X and XV of the 1935 Constitution and
the provisions of the Revised Election Code in force at the time of such plebiscite.
Perhaps others would feel that my position in these cases overlooks what they might consider to
be the demands of "judicial statesmanship," whatever may be the meaning of such phrase. I am
aware of this possibility, if not probability; but "judicial statesmanship," though consistent with
Rule of Law, cannot prevail over the latter. Among consistent ends or consistent values, there
always is a hierarchy, a rule of priority.
We must realize that the New Society has many achievements which would have been very
difficult, if not impossible, to accomplish under the old dispensation. But, in and for the judiciary,
statesmanship should not prevail over the Rule of Law. Indeed, the primacy of the law or of the
Rule of Law and faithful adherence thereto are basic, fundamental and essential parts of
statesmanship itself.
Resume of the Votes Cast and the Court's Resolution
As earlier stated, after the submittal by the members of the Court of their individual opinions
and/or concurrences as appended hereto, the writer will now make, with the concurrence of his
colleagues, a resume or summary of the votes cast by each of them.
It should be stated that by virtue of the various approaches and views expressed during the
deliberations, it was agreed to synthesize the basic issues at bar in broad general terms in five
questions for purposes of taking the votes. It was further agreed of course that each member of
the Court would expound in his individual opinion and/or concurrence his own approach to the
stated issues and deal with them and state (or not) his opinion thereon singly or jointly and with
such priority, qualifications and modifications as he may deem proper, as well as discuss thereon
other related issues which he may consider vital and relevant to the cases at bar.
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

32

discussion of the second question. Justice Barredo qualified his vote, stating that "inasmuch as it
is claimed there has been approval by the people, the Court may inquire into the question of
whether or not there has actually been such an approval, and, in the affirmative, the Court
should keep hands-off out of respect to the people's will, but, in negative, the Court may
determine from both factual and legal angles whether or not Article XV of the 1935 Constitution
been complied with." Justices Makasiar, Antonio, Esguerra, or three (3) members of the Court
hold that the issue is political and "beyond the ambit of judicial inquiry."
2.
On the second question of validity of the ratification, Justices Makalintal, Zaldivar, Castro,
Fernando, Teehankee and myself, or six (6) members of the Court also hold that the Constitution
proposed by the 1971 Constitutional Convention was not validly ratified in accordance with
Article XV, section 1 of the 1935 Constitution, which provides only one way for ratification, i.e.,
"in an election or plebiscite held in accordance with law and participated in only by qualified and
duly registered voters. 87
Justice Barredo qualified his vote, stating that "(A)s to whether or not the 1973 Constitution has
been validly ratified pursuant to Article XV, I still maintain that in the light of traditional concepts
regarding the meaning and intent of said Article, the referendum in the Citizens' Assemblies,
specially in the manner the votes therein were cast, reported and canvassed, falls short of the
requirements thereof. In view, however, of the fact that I have no means of refusing to recognize
as a judge that factually there was voting and that the majority of the votes were for considering
as approved the 1973 Constitution without the necessity of the usual form of plebiscite followed
in past ratifications, I am constrained to hold that, in the political sense, if not in the orthodox
legal sense, the people may be deemed to have cast their favorable votes in the belief that in
doing so they did the part required of them by Article XV, hence, it may be said that in its
political aspect, which is what counts most, after all, said Article has been substantially complied
with, and, in effect, the 1973 Constitution has been constitutionally ratified."
Justices Makasiar, Antonio and Esguerra, or three (3) members of the Court hold that under their
view there has been in effect substantial compliance with the constitutional requirements for
valid ratification.
3.
On the third question of acquiescence by the Filipino people in the aforementioned
proposed Constitution, no majority vote has been reached by the Court.
Four (4) of its members, namely, Justices Barredo, Makasiar, Antonio and Esguerra hold that "the
people have already accepted the 1973 Constitution."
Two (2) members of the Court, namely, Justice Zaldivar and myself hold that there can be no free
expression, and there has even been no expression, by the people qualified to vote all over the
Philippines, of their acceptance or repudiation of the proposed Constitution under Martial Law.
Justice Fernando states that "(I)f it is conceded that the doctrine stated in some American
decisions to the effect that independently of the validity of the ratification, a new Constitution
once accepted acquiesced in by the people must be accorded recognition by the Court, I am not
at this stage prepared to state that such doctrine calls for application in view of the shortness of
time that has elapsed and the difficulty of ascertaining what is the mind of the people in the
absence of the freedom of debate that is a concomitant feature of martial law." 88
Three (3) members of the Court express their lack of knowledge and/or competence to rule on
the question. Justices Makalintal and Castro are joined by Justice Teehankee in their statement
that "Under a regime of martial law, with the free expression of opinions through the usual media
vehicle restricted, (they) have no means of knowing, to the point of judicial certainty, whether
the people have accepted the Constitution." 89
4.
On the fourth question of relief, six (6) members of the Court, namely, Justices Makalintal,
Castro, Barredo, Makasiar, Antonio and Esguerra voted to DISMISS the petition. Justice Makalintal
and Castro so voted on the strength of their view that "(T)he effectivity of the said Constitution,
in the final analysis, is the basic and ultimate question posed by these cases to resolve which
considerations other than judicial, an therefore beyond the competence of this Court, 90 are
relevant and unavoidable." 91
Four (4) members of the Court, namely, Justices Zaldivar, Fernando, Teehankee and myself voted
to deny respondents' motion to dismiss and to give due course to the petitions.
5.

On the fifth question of whether the new Constitution of 1973 is in force:

Four (4) members of the Court, namely, Justices Barredo, Makasiar, Antonio and Esguerra hold
that it is in force by virtue of the people's acceptance thereof;
Four (4) members of the Court, namely, Justices Makalintal, Castro, Fernando and Teehankee cast
no vote thereon on the premise stated in their votes on the third question that they could not

33

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.
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 been judicially determined whether a proposed amendment
received the constitutional majority of votes (Dayton v. St. Paul, 22 Minn. 400; Rice v. Palmer, 78
Ark. 432, 96 S.W. 396; Bott v. Wurtz, 63 N.J. Law, 289, 43 Atl. 744, 881, 45 L.R.A. 251; State v.
Foraker, 46 Ohio St. 677, 23 N.E. 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. 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

34

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 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
people in convention or in a mode described by the Constitution itself, and that if the latter mode
is adopted every requisite of the Constitution must be observed. 'It has been said," says the
court, "that certain acts are to be done, certain requisitions are to be observed, before a change
can be effected; but to what purpose are these acts required, or these requisitions enjoined, if
the Legislature or any other department of the government can dispense with them. To do so
would be to violate the instrument which they are sworn to support; and every principle of public
law and sound constitutional policy requires the court to pronounce against every amendment
which is shown not to have been made in accordance with the rules prescribed by the
fundamental law.'
"In State v. Swift, 69 Ind. 505, it was said that: 'The people of a state may form an original
Constitution, or abrogate an old one and form a new one, at any time, without any political
restriction, except the Constitution of the United States, but if they undertake to add an
amendment, by the authority of legislation to a Constitution already in existence, they can do it
only by the method pointed out by the Constitution to which the amendment is added. The
power to amend a Constitution by legislative action does not confer the power to break it, any
more than it confers the power to legislate on any other subject contrary to its prohibitions.' So,
in State v. Timme, 54 Wis. 318, 11 N.W. 785, it was held that no amendments can be made to the
Constitution of the state without a compliance with the provisions thereof, both in the passage of
such amendment by the Legislature and the manner of submitting it to the people. The courts
have not all agreed as to the strictness of compliance which should be required.
"In the Prohibition and Amendment Case, 24 Kan. 700, the court determined judicially whether
an amendment to the Constitution had been legally adopted. After approving the statement
quoted from Collier v. Frierson, supra, that 'we entertain no doubt that, to change the
Constitution in 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 reasoning by which the learned court reached the conclusion it did is not
based on any sound legal principles, but contrary to them. Neither the argument nor the
conclusion can command our assent or approval. The argument is illogical, and based on
premises which are without any sound foundation, and rests merely on assumption.' See, also,
the well-considered case of Kadderly v. Portland, 44 Or. 118, 74 Pac. 710, 75 Pac. 222. All these
cases concede the jurisdiction of the court to determine whether, in submitting a proposed
amendment to the people, the Legislature legally observed the constitutional provisions as to the
manner of procedure. In Livermore v. Waite, 102 Cal. 113, 36 Pac. 424, 25 L.R.A. 312, the court,
at the instance of a citizen and a taxpayer, restrained the Secretary of State from taking steps to
submit to the people a proposed amendment to the Constitution agreed to by the Legislature on

35

the ground that the Legislature had not acted in conformity with the Constitution and that the
proposed amendment was of such a character that it could not properly become a part of the
Constitution. The Supreme Court of Colorado, in People v. Sours, supra, refused to exercise this
authority.
"The entire question received elaborate consideration in Koehler v. Hill, 60 Iowa, 543, 14 N.W.
738, 15 N.W. 609. The amendment, which concededly had been adopted by the people, had not,
before its submission, been entered in full upon the legislative journals, as required by the
Constitution, and it was held that this was a material variance in both form and substance from
the constitutional requirements, and that the amendment did not, therefore, become a part of
the Constitution. As to the claim that the question was political, and not judicial, it was said that,
while it is not competent for courts to inquire into the validity of the Constitution and the form of
government under which they themselves exist, and from which they derive their powers, yet,
where the existing Constitution prescribes a method for its own amendment, an amendment
thereto, to be valid, must be adopted in strict conformity to that method; and it is the duty of the
courts in a proper case, when an amendment does not relate to their own power or functions, to
inquire whether, in the adoption of the amendment, the provisions of the existing Constitution
have been observed, and, if not, to declare the amendment invalid and of no force. This case was
followed in State v. Brookhart, 113 Iowa, 250, 84 N.W. 1064.
"In University v. McIver, 72 N.C. 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 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

36

us a most difficult and embarrassing duty, one which we have not sought, but one which, like all
others, must be discharged."
"In Bott v. Wurtz, 63 N.J. Law, 289, 43 Atl. 744, 881, 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
functions placed the subject-matter beyond the cognizance of the judicial department of the
state. The Court of Appeals, after a full review of the authorities, reversed this decision, and held
that the questions were of a judicial nature, and properly determinable by the court on their
merits. Mr. Justice Dixon, after stating the facts, said: 'It thus becomes manifest that there was
present in the Supreme Court, and is now pending in this court, every element tending to
maintain jurisdiction over the subject-matter, unless it be true, as insisted, that the judicial
department of the government has not the right to consider whether the legislative department
and its agencies have observed constitutional injunctions in attempting to amend the
Constitution, and to annul their acts in case that they have not done so. That such a proposition
is not true seems to be indicated by the whole history of jurisprudence in this country.' The court,
after considering the case on the merits, held that the proper conclusion had been drawn
therefrom, and that the amendment in question was legally submitted and adopted.
"The recent case of Rice v. Palmer, 78 Ark. 432, 96 S.W. 396, presented the identical question
which we have under consideration. In reference to the contention that the Constitution intended
to delegate to the Speaker of the House of Representatives the power to determine whether an
amendment had been adopted, and that the question was political, and not judicial, the court
observed: "The argument has often been made in similar cases to the courts, and it is found in
many dissenting opinions; but, with probably a few exceptions, it is not found in any prevailing
opinion."
"In State v. Tooker, 15 Mont. 8, 37 Pac. 840, 25 L.R.A. 560, it was held that the constitutional
requirement of publication of a proposed constitutional provision for three months prior to the
election at which it is to be submitted to the people is mandatory and that noncompliance
therewith renders the adoption of an amendment of no effect."
ANNEX B
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;

37

WHEREAS, one of the questions persistently mention refers to the ratification of the Constitution
proposed by the 1971 Constitutional Convention;
WHEREAS, on the basis of the said petitions, it is evident that the people believe that the
submission of the proposed Constitution to the Citizens Assemblies or Barangays should taken as
a plebiscite in itself in view of the fact that freedom of debate has always been limited to the
leadership in political, economic and social fields, and that it is now necessary to bring this down
to the level of the people themselves through the Barangays or Citizens Assemblies;
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the powers
in me vested by the Constitution, do hereby order that important national issues shall from time
to time be referred to the Barangays (Citizens Assemblies) for resolution in accordance with
Presidential Decree No. 86-A dated January 5, 1973 an that the initial referendum shall include
the matter of ratification of the Constitution proposed by the 1971 Constitutional Convention.
The Secretary of the Department of Local Government and Community Development shall insure
the implementation of this Order.
Done in the City of Manila, this 7th day of January in the year of Our Lord, nineteen hundred and
seventy-three.
(SGD.) FERDINAND E. MARCOS
By the President:
(SGD.) ALEJANDRO MELCHOR Executive Secretary
Separate Opinions
MAKALINTAL, J., concurring:
CASTRO, J., concurring:
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.
Article XV, Section 1, of the 1935 Constitution provides that amendments (proposed either by
Congress in joint session or by a Convention called by it for the purpose) "shall be valid part of
this Constitution when approved by a majority of votes cast at an election at which the
amendments submitted to the people for their ratification." At the time Constitution was
approved by the Constitutional Convention on February 8, 1935, and ratified in a plebiscite held
on following May 14, the word "election" had already a definite meaning in our law and
jurisprudence. It was not a vague and amorphous concept, but a procedure prescribed by statute
ascertaining the people's choices among candidates for public offices, or their will on important
matters submitted to the pursuant to law, for approval. It was in this sense that word was used
by the framers in Article XV (also in Articles VI and VII), and in accordance with such procedure
that plebiscites were held to ratify the very same Constitution in 1935 as well as the subsequent
amendments thereto, thus: in 1939 (Ordinance appended to the Constitution); 1940
(establishment of a bicameral legislature; eligibility of the President and the Vice President for re
election; creation of the Commission of Elections); 1947 (Parity Amendment); and 1967 (increase
in membership of the House of Representatives and eligibility of members of Congress to run for
the Constitutional Convention without forfeiture of their offices).
The Election Code of 1971, in its Section 2, states that "all elections of public officers except
barrio officials and plebiscites shall be conducted in the manner provided by this Code." This is a
statutory requirement designed, as were the other election laws previously in force, to carry out
the constitutional mandate relative to the exercise of the right suffrage, and with specific
reference to the term "plebiscites," the provision of Article XV regarding ratification of
constitutional amendments.

38

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 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 Constitutional Convention on November
30, 1972 the said body adopted Resolution No. 5843, proposing "to President Ferdinand E.
Marcos that a decree be issued calling a plebiscite for the ratification of the proposed New
Constitution on such appropriate date as he shall determine and providing for the necessary
funds therefor." Pursuant to said Resolution the President issued Decree No. 73 on the same day,
calling a plebiscite to be held on January 15, 1973, at which the proposed Constitution "shall be
submitted to the people for ratification or rejection." The Decree had eighteen (18) sections in
all, prescribing in detail the different steps to be taken to carry out the process of ratification,
such as: (a) publication of the proposed Constitution in English and Pilipino; (b) freedom of
information and discussion; (c) registration of voters: (d) appointment of boards of election
inspectors and designation of watchers in each precinct; (e) printing of official ballots; (f) manner
of voting to insure freedom and secrecy thereof; (g) canvass of plebiscite returns; and (h) in
general, compliance with the provisions of the Election Code of 1971, with the Commission on
Elections exercising its constitutional and statutory powers of supervision of the entire process.
There can hardly be any doubt that in everybody's view from the framers of the 1935
Constitution through all the Congresses since then to the 1971 Constitutional Convention
amendments to the Constitution should be ratified in only one way, that is, in an election or
plebiscite held in accordance with law and participated in only by qualified and duly registered
voters. Indeed, so concerned was this Court with the importance and indispensability of
complying with the mandate of the (1935) Constitution in this respect that in the recent case of
Tolentino vs. Commission on Elections, No. L-34150, October 16, 1971 (41 SCRA 702), a
resolution of the (1971) Constitutional Convention submitting a proposed amendment for
ratification to a plebiscite to be held in November 1971 was declared null and void. The
amendment sought to reduce the voting age from twenty-one to eighteen years and was
approved by the Convention for submission to a plebiscite ahead of and separately from other
amendments still being or to be considered by it, so as to enable the youth to be thus
enfranchised to participate in the plebiscite for the ratification of such other amendments later.
This Court held 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.

39

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."
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 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].
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
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
If the Citizens Assemblies approve of the New Constitution, then the new Constitution should be
deemed ratified.
The vote of the Citizens Assemblies should already be considered the plebiscite on the New
Constitution.
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.

40

QUESTION No. 5
Probably a period of at least seven (7) years moratorium on elections will be enough for stability
to be established in the country, for reforms to take root and normalcy to return.
QUESTION No. 6
We want President Marcos to continue with Martial Law. We want him to exercise his powers with
more authority. We want him to be strong and firm so that he can accomplish all his reform
program and establish normalcy in the country. If all other measures fail, we want President
Marcos to declare a revolutionary government along the lines of the new Constitution without the
ad interim Assembly.
So it was that on January 11, 1973, the second day of the purported referendum, the suggestion
was broached, for the first time, that the plebiscite should be done away with and a favorable
vote by the Assemblies deemed equivalent 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 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 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

41

the power of judicial review. Respondents Gil J. Puyat and Jose Roy (in L-36165), in their
respective capacities as President and President Pro Tempore of the Senate of the Philippines,
and through their counsel, Senator Arturo Tolentino, likewise invoke the political question
doctrine, but on a ground not concurred in by the Solicitor General, namely, that approval of the
1973 Constitution by the people was made under a revolutionary government, in the course of a
successful political revolution, which was converted by act of the people to the present de jure
government under the 1973 Constitution."
Heretofore, constitutional disputes which have come before this Court for adjudication proceeded
on the assumption, conceded by all, that the Constitution was in full force and effect, with the
power and authority of the entire Government behind it; and the task of this Court was simply to
determine whether or not the particular act or statute that was being challenged contravened
some rule or mandate of that Constitution. The process employed was one of interpretation and
synthesis. In the cases at bar there is no such assumption: the Constitution (1935) has been
derogated and its continued existence as well as the validity of the act of derogation is issue. The
legal problem posed by the situation is aggravated by the fact that the political arms of the
Government the Executive Departments and the two Houses of Congress have accepted the
new Constitution as effective: the former by organizing themselves and discharging their
functions under it, and the latter by not convening on January 22, 1973 or at any time thereafter,
as ordained by the 1935 Constitution, and in the case of a majority of the members by
expressing their option to serve in the Interim National Assembly in accordance with Article XVIII,
Section 2, of the 1973 Constitution. *
The theory advanced by Senator Tolentino, as counsel for respondents Puyat and Roy, may be
taken up and restated at same length if only because it would constitute, if sustained, the most
convenient ground for the invocation of the political-question doctrine. In support of his theory,
Senator Tolentino contends that after President Marcos declared martial law on September 21,
1972 (Proclamation No. 1081) he established a revolutionary government when he issued
General Order No. 1 the next day, wherein he proclaimed "that I shall govern the nation and
direct the operation of the entire government, including all its agencies and instrumentalities, in
my capacity, and shall exercise all the powers and prerogatives appurtenant and incident to my
position as such Commander-in-Chief of all the Armed Forces of the Philippines." By this order, it
is pointed out, the Commander-in-Chief of the Armed Forces assumed all the powers of
government executive, legislative, and judicial; and thereafter proceeded to exercise such
powers by a series of Orders and Decrees which amounted to legislative enactments not justified
under martial law and, in some instances, trenched upon the domain of the judiciary, by
removing from its jurisdiction certain classes of cases, such as "those involving the validity,
legality, or constitutionality of Proclamation No. 1081, or of any decree, order or act issued,
promulgated or performed by me or by my duly designated representative pursuant thereto."
(General Order No. 3 as amended by General Order No. 3-A, dated September 24, 1972.) The
ratification by the Citizens Assemblies, it is averred, was the culminating act of the revolution,
which thereupon converted the government into a de jure one under the 1973 Constitution.
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 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

42

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 a 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 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 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

43

disqualify the people from speaking on what we and the people consider purely political matters
especially those that affect the fundamental law of the land.
... The political questions that were presented to the people are exactly those that refer to the
form of government which the people want ... The implications of disregarding the people's will
are too awesome to be even considered. For if any power in government should even dare to
disregard the people's will there would be valid ground for revolt.
... Let it be known to everybody that the people have spoken and they will no longer tolerate any
attempt to undermine the stability of their Republic; they will rise up in arms not in revolt against
the Republic but in protection of the Republic which they have installed. It is quite clear when the
people say, we ratify the Constitution, that they mean they will not discard, the Constitution.
On January 19, 1973 the Daily Express published statement of the President made the day
before, from which the following portion is quoted:
... the times are too grave and the stakes too high for us permit the customary concessions to
traditional democratic process to hold back our people's clear and unequivocal resolve and
mandate to meet and overcome the extraordinary challenges presented by these extraordinary
times.
On the same occasion of the signing of Proclamation No. 1102 the President made pointed
reference to "the demand of some of our citizens ... that when all other measures should fail, that
the President be directed to organize and establish a Revolutionary Government," but in the next
breath added: "... if we do ratify the Constitution, how can we speak of Revolutionary
Government? They cannot be compatible ..." "(I)t is my feeling," he said, "that the Citizens'
Assemblies which submitted this recommendation merely sought articulate their impatience with
the status quo that has brought about anarchy, confusion and misery to the masses ..." The only
alternatives which the President clearly implied by the foregoing statements were the ratification
of the new Constitution and the establishment of a revolutionary government, the latter being
unnecessary, in his opinion, because precisely the Constitution had been ratified. The third
obvious alternative was entirely ruled out, namely, a return to the 1935 Constitution, for it was
the status quo under that Constitution that had caused "anarchy, confusion and misery." The
message seems clear: rather than return to such status quo, he would heed the recommendation
of the Citizens' Assemblies to establish a revolutionary government, because that would be the
only other way to carry out the reforms he had envisioned and initiated reforms which, in all
fairness and honesty, must be given credit for the improved quality of life in its many aspects,
except only in the field of civil liberties.
If there is any significance, both explicit and implicit, and certainly unmistakable, in the foregoing
pronouncements, it is that the step taken in connection with the ratification of the Constitution
was meant to be irreversible, and that nothing anyone could say would make the least
difference. And if this is a correct and accurate assessment of the situation, then we would say
that since it has been brought about by political action and is now maintained by the government
that is in undisputed authority and dominance, the matter lies beyond the power of judicial
review.
On the other hand, by avowals no less significant if not so emphatic in terms, President Marcos
has professed fealty to the Constitution. In "Today's Revolution: Democracy" he says:
I believe, therefore, in the necessity of Revolution as an instrument of individual and social
change ... but that in a democratic society, revolution is of necessity, constitutional, peaceful,
and legal.
In his TV address of September 23, 1972, President Marcos told the nation:
I have proclaimed martial law in accordance with the powers vested in the President by the
Constitution of the Philippines.
xxx

xxx

xxx

I repeat, this is not a military takeover of civil government functions. The Government of the
Republic of the Philippines which was established by our people in 1946 continues.
xxx

xxx

xxx

I assure you that I am utilizing this power vested in me by the Constitution to save the Republic
and reform our society...
I have had to use this constitutional power in order that we may not completely lose the civil
rights and freedom which we cherish...

44

... 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).
In the report of an interview granted by the President to the Newsweek Magazine (published in
the issue of January 29, 1973), the following appears:
xxx

xxx

xxx

Q.
Now that you have gotten off the constitutional track, won't you be in serious trouble if
you run into critical problems with your programs?
R.
I have never gotten off the constitutional track. Everything I am doing is in accordance
with the 1935 Constitution. The only thing is that instead of 18-year-olds voting, we have allowed
15-year-olds the right to vote. But the 15-year-olds of today are high-school students, if not
graduates, and they are better informed than my contemporaries at that age. On the matter of
whether it is constitutional to proclaim martial law, it is constitutional because the Constitution
provides for it in the event of invasion, insurrection, rebellion or immediate danger thereof. We
may quarrel about whether what we have gone through is sufficient cause to proclaim martial
law but at the very least there is a danger of rebellion because so many of our soldiers have
been killed. You must remember this (martial law provision) was lifted from the American
legislation that was the fundamental law of our country.
xxx

xxx

xxx

In the light of this seeming ambivalence, the choice of what course of action to pursue belongs to
the President. We have earlier made reference to subjective factors on which this Court, to our
mind, is in no position to pass judgment. Among them is the President's own assessment of the
will of the people as expressed through the Citizens Assemblies and of the importance of the
1973 Constitution to the successful implementation of the social and economic reforms he has
started or envisioned. If he should decide that there is no turning back, that what the people
recommended through the Citizens Assemblies, as they were reported to him, demand that the
action he took pursuant thereto be final and irrevocable, then judicial review is out of the
question.
In articulating our view that the procedure of ratification that was followed was not in accordance
with the 1935 Constitution and related statutes, we have discharged our sworn duty as we
conceive it to be. The President should now perhaps decide, if he has not already decided,
whether adherence to such procedure is weighty enough a consideration, if only to dispel any
cloud of doubt that may now and in the future shroud the nation's Charter.
In the deliberations of this Court one of the issues formulated for resolution is whether or not the
new Constitution, since its submission to the Citizens Assemblies, has found acceptance among
the people, such issue being related to the political question theory propounded by the
respondents. We have not tarried on the point at all since we find no reliable basis on which to
form a judgment. Under a regime of martial law, with the free expression of opinions through the
usual media vehicles restricted, we have no means of knowing, to the point of judicial certainty,
whether the people have accepted the Constitution. In any event, we do not find the issue
decisive insofar as our vote in these cases is concerned. To interpret the Constitution that is
judicial. That the Constitution should be deemed in effect because of popular acquiescence
that is political, and therefore beyond the domain of judicial review.
We therefore vote not to give due course to the instant petitions.
BARREDO, J., concurring:
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 five-day hearing
that was held from February 12 to 16 last, more extensive and illuminating arguments were
heard by Us, but, in my estimation, and with due recognition of the sincerety, brilliance and
eloquence of counsels, nothing more cogent and compelling than what had 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

45

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

46

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".
In the meanwhile also, on January 5, 1973, the President issued Presidential Decree, No. 86-A
providing as follows:
PRESIDENTIAL DECREE NO. 86-A
STRENGTHENING AND DEFINING THE ROLE OF BARANGAYS (CITIZENS ASSEMBLIES)
WHEREAS, on the basis of preliminary and initial reports from the field as gathered from
barangays (citizens assemblies) that have so far been established, the people would like to
decide for themselves questions or issues, both local and national, affecting their day-to-day
lives and their future;
WHEREAS, the barangays (citizens assemblies) would like themselves to be the vehicle for
expressing the views of the people on important national issues;
WHEREAS, such barangays (citizens assemblies) desire that they be given legal status and due
recognition as constituting the genuine, legitimate and valid expression of the popular will; and
WHEREAS, the people would like the citizens assemblies to conduct immediately a referendum
on certain specified questions such as the ratification of the new Constitution, continuance of
martial law, the convening of Congress on January 22, 1973, and the elections in November 1973
pursuant to the 1935 Constitution.
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the powers
vested in me by the Constitution as Commander-in-Chief of all Armed Forces of the Philippines,
do hereby declare as part of the law of the land the following:
1.
The present barangays (citizens assemblies) are created under Presidential Decree No. 86
dated December 31, 1972, shall constitute the base for citizen participation in governmental
affairs and their collective views shall be considered in the formulation of national policies or
programs and, wherever practicable, shall be translated into concrete and specific decision;
2.
Such barangays (citizens assemblies) shall consider vital national issues now confronting
the country, like the holding of the plebiscite on the new Constitution, the continuation of martial
rule, the convening of Congress on January 22, 1973, and the holding of elections in November
1973, and others in the future, which shall serve as guide or basis for action or decision by the
national government;
3.
The barangays (citizens assemblies) shall conduct between January 10 and 15, 1973, a
referendum on important national issues, including those specified in paragraph 2 hereof, and
submit results thereof to the Department of Local Governments Community Development
immediately thereafter, pursuant to express will of the people as reflected in the reports
gathered from the many thousands of barangays (citizens assemblies) throughout the country.
4.

This Decree shall take effect immediately.

Done in the City of Manila, this 5th day of January, in the year of Our Lord, nineteen hundred and
seventy three.
And on January 7, 1973, this was followed by Presidential Decree No. 86-B reading thus:
PRESIDENTIAL DECREE NO. 86-B
DEFINING FURTHER THE ROLE OF BARANGAYS (CITIZENS ASSEMBLIES)
WHEREAS, since their creation pursuant to Presidential Decree No. 86 dated December 31, 1972,
the Barangays (Citizens Assemblies) have petitioned the Office of the President to submit them
for resolution important national issues;
WHEREAS, one of the questions persistently mentioned refers to the ratification of the
Constitution proposed by the 1971 Constitutional Convention;
WHEREAS, on the basis of the said petitions, it is evident that the people believe that the
submission of the proposed Constitution to the Citizens Assemblies or Barangays should be taken
as a plebiscite in itself in view of the fact that freedom of debate has always been limited to the
leadership in political, economic and social fields, and that it is now necessary to bring this down
to the level of the people themselves through the Barangays or Citizens Assemblies;

47

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 government to decide
issues of national interests?
(2)

Do you approve of the New Constitution?

(3)

Do you want a plebiscite to be called to ratify the new Constitution?

(4)
Do you want the elections to be held in November, 1973 in accordance with the provisions
of the 1935 Constitution?
(5)

If the elections would not be held, when do you want it to be called?

(6)

Do you want martial law to continue?

It is not seriously denied that together with the question the voters were furnished "comments"
on the said questions more or less suggestive of the answer desired. It may assumed that the
said "comments" came from official sources, albeit specifically unidentified. As petitioners point
out, the most relevant of these "comments" were the following:
COMMENTS ON
xxx

xxx

xxx

QUESTION No. 2
But we do not want the Ad Interim Assembly to be convoke. 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.
The Solicitor General claims, and there seems to be 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

48

Weather Bureau Communication System connecting all provincial capitals and the National Civil
Defense Network connecting all provincial capitals. The certificates of results were then flown to
Manila to confirm the previous figures received by the aforementioned means of transmission.
The certificates of results tallied with the previous figures taken with the exception of few cases
of clerical errors.
The Department adopted a system of regionalizing the receiving section of the Citizens
Assemblies operation at the Department wherein the identity of the barrio and the province was
immediately given to a staff in charge of each region. Every afternoon at 2:00 o'clock, the 11
regions submitted the figures they received from the field to the central committee to tabulate
the returns. The last figures were tabulated at 12 midnight of January 16, 1973 and early
morning of January 17, 1973 and were then communicated to the President by the Department of
Local Governments.
The development culminated in the issuance by the President of Proclamation 1102 on January
17, 1973. Said proclamation reads:
PROCLAMATION NO. 1102 ANNOUNCING THE RATIFICATION BY THE FILIPINO PEOPLE OF THE
CONSTITUTION PROPOSED BY THE 1971 CONSTITUTIONAL CONVENTION.
WHEREAS, the Constitution proposed by the nineteen hundred seventy-one Constitutional
Convention is subject to ratification by the Filipino people;
WHEREAS, Citizens Assemblies were created in barrios in municipalities and in districts/wards in
chartered cities pursuant to Presidential Decree No. 6, dated December 31, 1972, composed of
all persons who are residents of the barrio, district or ward for at least six months, fifteen years
of age or over, citizens of the Philippines and who are registered in the list of Citizen Assembly
members kept by the barrio, district or ward secretary;
WHEREAS, the said Citizens Assemblies were establish precisely to broaden the base of citizen
participation in the democratic process and to afford ample opportunity for the citizen to express
their views on important national issues;
WHEREAS, responding to the clamor of the people an pursuant to Presidential Decree No. 86-A,
dated January 5, 1973, the following questions were posed before Citizens' Assemblies or
Barangays: Do you approve of the New Constitution? Do you still want a plebiscite to be called to
ratify the new Constitution?
WHEREAS, fourteen million nine hundred seventy-six thousand five hundred sixty one
(14,976,561) members of all the Barangays (Citizens Assemblies) voted for the adoption of the
proposed Constitution, as against seven hundred forty-three thousand eight hundred sixty nine
(743,869) who voted for its rejection; while on the question as to whether or not the people
would still like a plebiscite to be called to ratify the new Constitution fourteen million two
hundred ninety-eight thousand eight hundred fourteen (14,298,814) answered that there was no
need for plebiscite and that the vote of the Barangays (Citizens Assemblies) should be
considered as a vote in a plebiscite;
WHEREAS, since the referendum results show that more than ninety-five (95) percent of the
members of the Barangays (Citizen Assemblies) are in favor of the New Constitution, the
Katipunan ng Mga Barangay has strongly recommended that the new Constitution should already
be deemed ratified by the Filipino people;
NOW, THEREFORE, I, FERDINAND E. MARCOS, President 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 overwhelmingly majority of all of the votes cast by the members of all the Barangays (Citizens
Assemblies) throughout the Philippines, and has thereby come into effect.
IN WITNESS WHEREOF, I have hereunto set my hand and caused the seal of the Republic of the
Philippines to be affixed.
Done in the City of Manila, this 17th day of January, in the year of Our Lord, nineteen hundred
and seventy-three.
The first attempt to question the steps just enumerated taken by the President was in the socalled Plebiscite Cases, ten in number, which were filed by different petitioners during the first
half of December 1972. 1 Their common target then was Presidential Decree No. 73, but before
the said cases could be decided, the series of moves tending in effect to make them moot and
academic insofar as they referred exclusively to the said Presidential Decree began to take shape
upon the issuance of Presidential Decree No. 86-A, quoted above. And when Presidential Decree
No. 86-B, also above quoted, was issued and the six additional questions which were first
publicized on January 11, 1973 were known, together with the "comments", petitioners sensed

49

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 respondents to answer the same the next Wednesday,
January 17th, before the hour of the hearing of the petition which set for 9:30 o'clock in the
morning of that day. The details what happened that morning form part of the recital of facts the
decision rendered by this Court in the ten cases on January 22, 1973 and need not be repeated
here. Suffice it to state no that before the hearing could be closed and while Counsel 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 o'clock that same morning. In other words, the valiant and persistent
efforts of petitioners and their counsels were overtaken by adverse developments, and in the
mind of the majority of the members of the Court, the cases had become academic. For my part,
I took the view that even on the basis of the supplemental petition and the answer thereto filed
by respondents, the Court could already decide on the fundamental issue of the validity
Proclamation 1102, as Justices Zaldivar, Antonio and Esguerra also believed, inasmuch as
Counsel Taada's pleading and argument had anticipated its issuance, but the majority felt it was
not ready to resolve the matter, for lack, according them, of full ventilation, and so, the decision
reserved petitioners the filing of the "appropriate" cases, evidently, the present ones.
II
At the threshold, I find myself confronted by a matter which, although believed to be
inconsequential by my learned brethren, I strongly feel needs special attention. I refer to the
point raised by Counsel Arturo M. Tolentino for respondent Gil J. Puyat and Jose Roy, who have
been sued as President and President Pro Tempore of the Senate, to the effect that change in the
composition of the Supreme Court provided for the 1973 Constitution, from the 11-man tribunal
under the 1935 Constitution to a 15-man Court, makes of these cases which were filed after
January 17, 1973 the date when Proclamation 1102 declared the new Constitution as ratified,
political nature and beyond our jurisdiction. The main consideration submitted in this connection
is that inasmuch as the number votes needed for a decision of this Court has been increased
from six to eight in ordinary cases and from eight to ten for the declaration of unconstitutionality
of a treaty, executive agreement 2 or law, the Court would have to resolve first as a prejudicial
question whether the Court is acting in these cases as the 15-man or the 11-man Court, in which
event, it would be faced with the dilemma that if it acts either as the former or as the latter, it
would be prejudging the very matter in issue one way or the other, and, in effect, it would be
choosing between two constitutions, which is a political determination not within the Court's
competence.
While I agree that the problem is at first blush rather involved, I do not share the view that the
premises laid down by counsel necessarily preclude this Court from taking a definite stand on
whether the Court is acting in these cases as the 15-Man or the 11-man Court. I feel very
strongly that the issue should not be ignored or dodged, if only to make the world know that the
Supreme Court of the Philippines is never incognizant of the capacity in which it is acting, much
less lacking in courage or wisdom to resolve an issue that relates directly to its own composition.
What a disgrace it would be to admit that this Supreme Court does not know, to use a common
apt expression, whether it is fish or fowl. Withal, scholars and researchers who might go over our
records in the future will inevitably examine minutely how each of us voted and upon what
considerations we have individually acted, and, indeed, doubts may arise as to whether or not,
despite the general result we might announce, there had been the requisite number of votes for
a valid collegiate action.
For instance, it may be argued that the present cases do not involve an issue of
unconstitutionality, hence, if we are acting as the 11-man Court, only six votes would suffice to
declare Proclamation 1102 ineffective, and if upon analysis of our respective opinions it should
be inferable therefrom that six of us have considered the matter before the Court as justiciable
and at the same time have found the procedure of ratification adopted in Presidential Decrees
86-A and 86-B and related orders of the President as not being in conformity with Article 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

50

Court which is precisely being looked upon as the haven in which doubts are supposed to be
authoritatively dispelled. Besides, from very nature of things, one thing is indubitably beyond
dispute we cannot act in both capacities of a 15-man and an 11-man Court at the same time,
in like manner that it is inconceivable that the 1935 and 1973 Constitution can be considered by
Us both in force. Our inescapable duty is to make a choice between them, according to what law
and other considerations inherent to our function dictate. I cannot bear the thought that
someone may someday say that the Supreme Court of the Philippines once decided a case
without knowing the basis of its author to act or that it was ever wanting in judicial courage to
define the same.
Accordingly, with full consciousness of my limitations but compelled by my sense of duty and
propriety to straighten out this grave of issue touching on the capacity in which the Court acting
in these cases, I hold that we have no alternative but adopt in the present situation the orthodox
rule that when validity of an act or law is challenged as being repugnant constitutional mandate,
the same is allowed to have effect until the Supreme Court rules that it is unconstitutional.
Stated differently, We have to proceed on the assumption that the new Constitution is in force
and that We are acting in these cases as the 15-man Supreme Court provided for there Contrary
to counsel's contention, there is here no prejudgment for or against any of the two constitutions.
The truth of matter is simply that in the normal and logical conduct governmental activities, it is
neither practical nor wise to defer the course of any action until after the courts have ascertained
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 Supreme Court is holding, as it were, their effectivity at bay if it is not being indifferent to or
ignoring them.
It is suggested that the President, being a man of law, committed to abide by the decision of the
Supreme Court, and if the Court feels that it cannot in the meantime consider the enforcement of
the new Constitution, he can wait for its decision. Accepting the truth of this assertion, it does
necessarily follow that by this attitude of the President, considers the Supreme Court as still
operating under the Constitution. Quite on the contrary, it is a fact that he has given instructions
for the payment of the justices in accordance with the rate fixed in the New Constitution. Not
only that, official alter ego, the Secretary of Justice, has been shoving this Court, since January
18, 1973, all matters related to the administrative supervision of the lower courts which by the
new charter has been transferred from the Department of Justice to the Supreme Court, and as
far as I know, President has not countermanded the Secretary's steps in that direction. That, on
the other hand, the President has not augmented the justices of the Court to complete the
prescribed number of fifteen is, in my appraisal, of no consequence considering that with the
presence of ten justices who are the Court now, there is a working quorum, and the addition of
new justices cannot in anyway affect the voting on the constitutional questions now before Us
because, while there sufficient justices to declare by their unanimous vote illegality of
Proclamation 1102, the votes of the justices to added would only be committed to upholding the
same, since they cannot by any standard be expected to vote against legality of the very
Constitution under which they would be appointed.
Moreover, what makes the premise of presumptive valid preferable and, even imperative, is that
We are dealing here with a whole constitution that radically modifies or alters only the form of
our government from presidential parliamentary but also other constitutionally institutions vitally
affecting all levels of society. It is, to mind, unrealistic to insist on that, fundamentally, the 1973

51

Constitution is the same 1935 Constitution, with a few improvements. A cursory perusal of the
former should convince anyone that it is in essence a new one. While it does retain republicanism
as the basic governmental tenet, the institutional changes introduced thereby are rather radical
and its social orientation is decidedly more socialistic, just as its nationalistic features are
somewhat different in certain respects. One cannot but note that the change embraces
practically every part of the old charter, from its preamble down to its amending and effectivity
clauses, involving as they do the statement of general principles, the citizenship and suffrage
qualifications, the articles on the form of government, the judiciary provisions, the spelling out of
the duties and responsibilities not only of citizens but also of officers of the government and the
provisions on the national economy as well as the patrimony of the nation, not to mention the
distinctive features of the general provisions. What is more, the transitory provisions notably
depart from traditional and orthodox views in that, in general, the powers of government during
the interim period are more or less concentrated in the President, to the extent that the
continuation or discontinuance of what is now practically a one-man-rule, is even left to his
discretion. Notably, the express ratification of all proclamations, orders, decrees and acts
previously issued or done by the President, obviously meant to encompass those issued during
martial law, is a commitment to the concept of martial law powers being implemented by
President Marcos, in defiance of traditional views and prevailing jurisprudence, to the effect that
the Executive's power of legislation during a regime of martial law is all inclusive and is not
limited to the matters demanded by military necessity. In other words, the new constitution
unlike any other constitution countenances the institution by the executive of reforms which
normally is the exclusive attribute of the legislature.
Withal, the best proofs that by its expressed and implied intent, the Constitution of 1973 is a new
one, are that (1) Section 16 of its Article XVII which provides that this constitution shall
"supersede the Constitution of nineteen hundred and thirty-five and all amendments thereto"
and (2) its transitory provisions expressly continue the effectivity of existing laws, offices and
courts as well as the tenure of all incumbent officials, not adversely affected by it, which would
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-manCourt, otherwise, We would just continue to be in our membership in the 15-man-Court, unless
We feel We cannot in conscience accept the legality of existence. On the other hand, if it is
assumed that We are the 11-man-Court and it happens that Our collective decision is in favor of
the new constitution, it would be problematical for any dissenting justice to consider himself as
included automatically in the 15-man-Court, since that would tantamount to accepting a position
he does not honestly believe exists.
III
In brief, the main contention of the petitioners is that Proclamation 1102 is invalid because the
ratification of the 1973 Constitution it purports to declare as having taken place as a result of the
referendum above-referred to is ineffective since it cannot be said on the basis of the said
referendum that said Constitution has been "approved by a majority of the votes cast at an
election" in the manner prescribed by Article XV the Constitution of 1935. More specifically, they
maintain that the word "election" in the said Article has already acquired a definite accepted
meaning out of the consistent holding in the past of ratification plebiscites, and accordingly, no
other form of ratification can be considered contemplated by the framers of the Old Constitution
than that which had been followed 1935, 1937, 1939, 1940, 1946 and 1967, the last three or four
which were held under the supervision of the Commission on 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.

52

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

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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 objective in having a new constitution is to establish new
directions in the pursuit of the national aspirations and the carrying out of national policies. Only
by bearing these considerations in mind can the "comments" already referred to be properly
appreciated. To others said "comments" may appear as evidence of corruption of the will of those
who attended the assemblies, but actually, they may also be viewed in the same light as the
sample ballots commonly resorted to in the elections of officials, which no one can contend are
per se means of coercion. Let us not forget that the times are abnormal, and prolonged dialogue
and exchange of ideas are not generally possible, nor practical, considering the need for faster
decisions and more resolute action. After all voting on a whole new constitution is different from
voting on one, two or three specific proposed amendments, the former calls for nothing more
than a collective view of all the provisions of the whole charter, for necessarily, one has to take
the good together with the bad in it. It is rare for anyone to reject a constitution only because of
a few specific objectionable features, no matter how substantial, considering the ever present
possibility that after all it may be cured by subsequent amendment. Accordingly, there was need
to indicate to the people the paths open to them in their quest for the betterment of their
conditions, and as long as it is not shown that those who did not agree to the suggestions in the
"comments" were actually compelled to vote against their will, I am not convinced that the
existence of said "comments" should make any appreciable difference in the court's appraisal of
the result of the referendum.
I must confess that the fact that the referendum was held during martial law detracts somehow
from the value that the referendum would otherwise have had. As I intimated, however, in my
former opinion, it is not fair to condemn and disregard the result of the referendum barely
because of martial law per se. For one thing, many of the objectionable features of martial law
have not actually materialized, if only because the implementation of martial law since its
inception has been generally characterized by restraint and consideration, thanks to the
expressed wishes of the President that the same be made "Philippine style", which means
without 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

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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.
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 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.
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"

55

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

56

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

57

Supreme Court are being true to our duty to our people by refusing to follow suit and accept the
realities of the moment, despite our being convinced of the sincerity and laudableness of their
objectives, only because we feel that by the people's own act of ratifying the 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 people's faith in the government, I cannot agree, albeit my
admiration and respect are all theirs for their zeal and tenacity, their industry and wisdom, their
patriotism and devotion to principle. Verily, they have brought out everything in the Filipino that
these cases demand.
In times of national emergencies and crises, not arising from foreign invasion, we need not fear
playing opposite roles, as long as we are all animated by sincere love of country and aim
exclusively at the attainment of the national destiny. Our heroes of the past, Rizal, Bonifacio,
Aguinaldo, Antonio Luna, Mabini and so also with our patriots of the recent generations, Quezon,
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.
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 quasijudicial 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).
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

58

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 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:
... 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 ... . 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, whether submission, intervening procedure or
Congressional determination of ratification conforms to the commands of the Constitution, calls
for decisions by a "political department" of questions of a type which this Court has frequently
designated "political." And decision of a "political question" by the "political department" to
which the Constitution has committed it "conclusively binds the judges, as well as all other
officers, citizens and subjects of...government." Proclamation under authority of Congress that an
amendment has been ratified will carry with it a solemn assurance by the Congress that
ratification has taken place as the Constitution commands. Upon this assurance a proclaimed
amendment must be accepted as a part of the Constitution, leaving to the judiciary its traditional
authority of interpretation. To the extent that the Court's opinion in the present case even
impliedly assumes a power to make judicial interpretation of the exclusive constitutional
authority of Congress over submission and ratification of amendments, we are unable to agree...
(American Constitutional Issues, by Pritchett, 1962 Ed., p. 44).
The doctrine in the aforesaid case of Coleman vs. Miller was adopted by Our Supreme Court in
toto in Mabanag vs. Lopez Vito (78 Phil. 1).
The ruling in the cases of Gonzales vs. Comelec, et al. (L-28224, Nov. 29, 1967, 21 SCRA 774)
and Tolentino vs. Comelec, et al. (L-34150, Oct. 16, 1971, 41 SCRA 702) on which petitioners
place great reliance that the courts may review the propriety of a submission of a proposed
constitutional amendment before the ratification or adoption of such proposed amendment by
the sovereign people, hardly applies to the cases at bar; because the issue involved in the
aforesaid cases refers to only the propriety of the submission of a proposed constitutional
amendment to the people for ratification, unlike the present petitions, which challenge inevitably

59

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:
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
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 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

60

thereafter, the Congress of the Confederation passed a resolution on February 21, 1787 calling
for a Federal Constitutional Convention "for the sole and express purpose of revising the articles
of confederation ... ." (Appendix I, 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 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 ... . (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 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

61

power, the people, a new constitution. In this manner was the constitution of the United States
submitted to the people and it became operative as the organic law of this nation when it had
been properly adopted by the people.
Pomeroy's Constitutional Law, p. 55, discussing the convention that formulated the constitution
of the United States, has this to say: "The convention proceeded to do, and did accomplish, what
they were not authorized to do by a resolution of Congress that called them together. That
resolution plainly contemplated amendments to the articles of confederation, to be submitted to
and passed by the Congress, and afterwards ratified by all the State legislatures, in the manner
pointed out by the existing organic law. But the convention soon became convinced that any
amendments were powerless to effect a cure; that the disease was too deeply seated to be
reached such tentative means. They saw that the system they were called to improve must be
totally abandoned, and that the national idea must be re-established at the center of their
political society. It was 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."
xxx

xxx

xxx

... When the people adopt a completely revised or new constitution, the framing or submission of
the instrument is not what gives it binding force and effect. The fiat of the people and only the
fiat of the people, can breathe life into a constitution.
xxx

xxx

xxx

... 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; ... ." (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 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

62

character of government, even though they do not involve the violent overthrow of an
established order, ... ." (R.M. MacIver, The Web of Government, 1965 ed., p. 203).
It is rather ridiculous to refer to the American Constitution as a revolutionary constitution. The
Articles of Confederation and Perpetual Union that was in force from July 12, 1776 to 1788,
forged as it was during the war of independence was a revolutionary constitution of the thirteen
(13) states. In the existing Federal Constitution of the United States which was adopted seven (7)
or nine (9) years after the thirteen (13) states won their independence and long after popular
support for the government of the Confederation had stabilized was not a product of a revolution.
The Federal Constitution was a "creation of the brain and purpose of man" in an era of peace. It
can only be considered revolutionary in the sense that it is a radical departure from its
predecessor, the Articles of Confederation and Perpetual Union.
It is equally absurd to 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, 133151, 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 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.
xxx

xxx

xxx

... 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."
xxx

xxx

xxx

"The fourth section of the fourth article of the Constitution of the United States shall guarantee to
every state in the Union a republican form of government, and shall protect each of them against
invasion; and on the application of the Legislature or of the Executive (when the legislature
cannot be convened) against domestic violence.
"Under this article of the Constitution it rests with Congress to decide what government is
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 placed
there and not in the courts."
xxx

xxx

xxx

63

... We do not stop to cite other cases which indirectly or incidentally refer to the subject, but
conclude by directing attention to the statement by the court, speaking through Mr. Chief Justice
Fuller, in Taylor vs. Beckham, 178 U.S. 548, 44 L.ed. 1187, 20 Sup. Ct. Rep. 890, 1009, where,
after disposing of a contention made concerning the 14th Amendment, and coming to consider a
proposition which was necessary to be decided concerning the nature and effect of the guaranty
of S 4 of article 4, it was said (p. 578):
"But it is said that the 14th Amendment must be read with S 4 of article 4, of the Constitution,
providing that the United States shall guarantee to every state in this Union a republican form of
government, and shall protect each of them against invasion; and on application of the
legislature, or the Executive (when the legislature cannot be convened), against domestic
violence."
xxx

xxx

xxx

"It was long ago settled that the enforcement of this guaranty belonged to the political
department. Luther v. Borden, 7 How. 1, 12 L.ed. 581. In that case it was held that the question,
which of the two opposing governments of Rhode Island, namely, the charter government or the
government established by a voluntary convention, was the legitimate one, was a question for
the determination of the political department; and when that department had decided, the courts
were bound to take notice of the decision and follow it."
xxx

xxx

xxx

As the issues presented, in their very essence, are, and have long since by this Court been,
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 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. ... 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:
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

64

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 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 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. Ninetyfive (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

65

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

66

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. (emphasis supplied).
If this Court inquires into the validity of Proclamation No. 1102 and consequently of the adoption
of the 1973 Constitution it would be exercising a veto power on the act of the sovereign people,
of whom this Court is merely an agent, which to say the least, would be anomalous. This Court
cannot dictate to our principal, the sovereign people, as to how the approval of the new
Constitution should be manifested or expressed. The sovereign people have spoken and we must
abide by their decision, regardless of our notion as to what is the proper method of giving assent
to the new Charter. In this respect, WE cannot presume to know better than the incumbent Chief
Executive, who, unlike the members of this Court, only last January 8, 1973, We affirmed in
Osmea vs. Marcos (Pres. Election Contest No. 3, Jan. 8, 1973), was re-elected by the vote of
over 5 million electors in 1969 for another term of four years until noon of December 30, 1973
under the 1935 Constitution. This Court, not having a similar mandate by direct fiat from the
sovereign people, to execute the law and administer the affairs of government, must restrain its
enthusiasm to sally forth into the domain of political action expressly and exclusively reserved by
the sovereign people themselves.
The people in Article XV of the 1935 Constitution did not intend to tie their hands to a specific
procedure for popular ratification of their organic law. That would be incompatible with their
sovereign character of which We are reminded by Section 1, of Article II of both the 1935 and the
1973 Constitutions.
The opinion of Judge Thomas McIntire Cooley that the sovereign people cannot violate the
procedure for ratification which they themselves define in their Constitution, cannot apply to a
unitary state like the Republic of the Philippines. His opinion expressed in 1868 may apply to a
Federal State like the United States, in order to secure and preserve the existence of the Federal
Republic of the United States against any radical innovation initiated by the citizens of the fifty
(50) different states of the American Union, which states may be jealous of the powers of the
Federal government presently granted by the American Constitution. This dangerous possibility
does not obtain in the case of our Republic.
Then again, Judge Cooley advanced the aforesaid opinion in 1868 when he wrote his opus
"Constitutional Limitations." * (Vol. 6, Encyclopedia Brit., 1969 ed. pp. 445 446). It is possible
that, were he live today, in a milieu vastly different from 1868 to 1898, he might have altered his
views on the matter.
Even if conclusiveness is to be denied to the truth of the declaration by the President in
Proclamation No. 1102 that the people through their Citizens' Assemblies had overwhelmingly
approved the new Constitution due regard to a separate, coordinate and co-equal branch of the
government demands adherence to the presumption of correctness of the President's
declaration. Such presumption is accorded under the law and jurisprudence to officials in the
lower levels of the Executive branch, there is no over-riding reason to deny the same to the Chief
of State as head of the Executive Branch. WE cannot reverse the rule on presumptions, without
being presumptuous, in the face of the certifications by the Office the Secretary of the
Department of Local Government and Community Development. (Annexes 1, to 1-E, Annexes 2
to 2-O to the compliance with manifestation filed by the Solicitor General on behalf of the
respondents public officers dated March 7, 1973). There is nothing in the records that
contradicts, much less overthrow the results of the referendum as certified. Much less are We
justified in reversing the burden of proof by shifting it from the petitioners to the respondents.

67

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 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 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 Annex 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. 112-11 citing Lorenzo vs. Dir., etc., [1927] 50 Phil.
595 and O'Gonmore, et al: vs. Hartford, etc., [1931] 282 U.S. 251), it should likewise be
presumed that the President was in possession of the fact upon which Proclamation No. 1102
was based. This presumption is further strengthened by the fact that the Department of Local
Governments, the Department National Defense and the Philippine Constabulary as well the
Bureau of Posts are all under the President, which offices as his alter ego, are presumptively
acting for and in behalf of the President and their acts are valid until disapproved or reprobated
by the President (Planas vs. Gil, 67 Phil. 62; Villen vs. Secretary of Interior, 67 Phil. 451). To deny
the truth or the proclamation of the President as to the overwhelming majority vote in the
Citizens' Assemblies in favor of the new Constitution, is to charge the President with falsification,
which is a most grievous accusation. Under the, rules of pleadings and evidence, the petitioners
have the burden of proof by preponderance of evidence in civil cases and by proof beyond
reasonable doubt in criminal prosecutions, where the accused is always presumed to be
innocent. Must this constitutional right be reversed simply because the petitioner all assert the
contrary? Is the rule of law they pretend invoke only valid as long as it favors them?
The presumption of regularity in the performance of official functions is accorded by the law and
jurisprudence to acts of public officers whose category in the official hierarchy is very much lower
than that of the Chief of State. What reason is there to withhold such a presumption in favor of
the President? Does the fact that the President belong to the party in power and that four (4) of
the five (5) senators who are petitioners in 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

68

liberties of his people, inevitable concomitants of martial law, which necessarily entail some
degree of sacrifice on the part of the citizenry. Until the contrary is established or demonstrated,
herein petitioners should grant that the Chief Executive is motivated by what is good for the
security and stability of the country, for the progress and happiness of the people. All the
petitioners herein cannot stand on the proposition that the rights under the 1935 Constitution are
absolute and invulnerable to limitations that may be needed for the purpose of bringing about
the reforms for which the petitioners pretend to be clamoring for and in behalf of the people. The
five (5) petitioners in L-36165 and four (4) of the seven (7) petitioners in L-36164 were all
participants in the political drama of this country since 1946. They are witness to the frustrations
of well-meaning Presidents who wanted to effect the reforms, especially for the benefit of the
landless and the laboring class how politics and political bargaining had stymied the
effectuation of such reforms thru legislation. The eight (8) petitioners in L-36164 and L-36165
may not have participated in the systematic blocking of the desired reforms in Congress or
outside of it; but the question may be asked as to what exactly they did to support such reforms.
For the last seven (7) decades since the turn of the century, for the last thirty-five (35) years
since the establishment of the Commonwealth government in 1935 and for the last twenty seven
(27) years since the inauguration of the Republic on July 4, 1946, no tangible substantial reform
had been effected, funded and seriously implemented, despite the violent uprisings in the
thirties, and from 1946 to 1952, and the violent demonstrations of recent memory. Congress and
the oligarchs acted like ostriches, "burying their heads in timeless sand. "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 negotiations. As heretofore stated, both the executive
branch and the legislative branch established under the 1935 Constitution had been supplanted
by the government functioning under the 1973 Constitution as of January 17, 1973. The vice
president elected under the 1935 Constitution does not asset any claim to the leadership of the
Republic of the Philippines. Can this Supreme Court legally exist without being part of any
government?
Brilliant counsel for petitioners in L-36165 has been quite extravagant in his appraisal of Chief
Justice Roger Brooke Taney whom he calls the "hero of the American Bar," because during the
American civil war he apparently had the courage to nullify the proclamation of President Lincoln
suspending the privileges of the writ of habeas corpus in Ex parte Merryman (Federal Case No.
9487 [1861]). But who exactly was Chief Justice Roger Brooke Taney? The Editorial Board of Vol.
21 of the Encyclopedia Brit., 1966 ed. (pp. 778-779, 1969 ed., pp. 654-657), briefly recounts that
he was born in 1777 in Calvert County, Maryland, of parents who were landed aristocrats as well
as slave owners. Inheriting the traditional conservatism of his parents who belonged to the
landed aristocracy, Taney became a lawyer in 1799, practiced law and was later appointed
Attorney General of Maryland. He also was a member of the Maryland state legislature for
several terms. He was a leader of the Federalist Party, which disintegrated after the war of 1812,
compelling him to join the Democratic Party of Andrew Jackson, also a slave owner and landed
aristocrat, who later appointed him first as Attorney General of the United States, then Secretary
of the Treasury and in 1836 Chief Justice of the United States Supreme Court to succeed Chief
Justice John Marshall, in which position he continued for 28 years until he died on October 21,
1864. His death "went largely unnoticed and unregretted." Because he himself was a slave owner
and a landed aristocrat, Chief Justice Taney sympathized with the Southern States and, even
while Chief Justice, hoped that the Southern States would be allowed to secede peacefully from

69

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 therefore discern his hostility towards President Lincoln when he
decided Ex parte Merryman, which animosity to say the least does no befit a judicial mind. Such
a man could hardly be spoken of as a hero of the American Bar, least of all of the American
nation. The choice of heroes should not be expressed indiscriminately just to embellish one's
rhetoric.
Distinguished counsel in L-36165 appears to have committed another historical error, which may
be due to his rhetorical in the Encyclopedia Britannica (Vol. 9, 1969 ed., pp. 508-509) to this
effect. On the contrary, Encyclopedia Britannica (Vol. 17 Encyclopedia Brit., 1966 & 1969 eds.,
732-733), refers to Marshal Henri Philippe Petain as the genuine hero or "Savior of Verdun";
because he held Verdun against the 1916 offensive of the German army at the cost of 350,000 of
his French soldiers, who were then demoralized and plotting mutiny. Certainly, the surviving
members of the family of Marshal Petain would not relish the error. And neither would the
members of the clan of Marshal Foch acknowledge the undeserved accolade, although Marshal
Foch has a distinct place in history on his own merits. The foregoing clarification is offered in the
interest of true scholarship and historical accuracy, so that the historians, researchers and
students may not be led astray or be confused by esteemed counsel's eloquence and mastery of
the spoken and written word as well as by his eminence as law professor, author of law books,
political leader, and member of the newly integrated Philippine Bar.
It is quite intriguing why the eminent counsel and co-petitioner in L-36164 did not address
likewise his challenge to the five (5) senators who are petitioners in L-36165 to also act as
"heroes and idealists," to defy the President by holding sessions by themselves alone in a hotel
or in their houses if they can muster a quorum or by causing the arrest of other senators to
secure a quorum and thereafter remove respondents Puyat and Roy (Avelino, et al. vs. Cuenco,
et al. [1949] 83 Phil. 17), if they believe most vehemently in the justice and correctness of their
position that the 1973 Constitution has not been validly ratified, adopted or acquiesced in by the
people since January 18, 1973 until the present. The proclaimed conviction of petitioners in L36165 on this issue would have a ring of 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., concurring:
Pursuant to Our reservation, We now discuss the other issues raised by the petitioners.
II
EVEN IF ISSUE IS JUSTICIABLE, PEOPLE'S RATIFICATION, ADOPTION OR ACQUIESCENCE CREATES
STRONG PRESUMPTION OF VALIDITY OF 1973 CONSTITUTION.
As intimated in the aforecited cases, even the courts, which affirm the proposition that the
question as to whether a constitutional amendment or the revised or new Constitution has been
validly submitted to the people for ratification in accordance with the procedure prescribed by
the existing Constitution, is a justiciable question, accord all presumption of validity to the
constitutional amendment or the revised or new Constitution after the government officials or
the people have adopted or ratified or acquiesced in the new Constitution or amendment,
although there was an illegal or irregular or no submission at all to the people. (Collier vs. Gray,
4th Dec. Dig. 935 [1934], Hammond vs. Clark, 71 SE 482-483; People vs. Sours, 31 Colo. 369, 74
Pac. 167, 102 Am. St. Rep. 34; Thompson vs. Winneth, 78 Neb. 379, 110 NW 1113, 10 L.R.A.
[N.S.] 149; State vs. Laylin, 69 Ohio St. Rep. 1, 68 NE 574; Weston vs. Ryan, 70 Neb. 211, 97 NW
347; Combs vs. State, 81 Ga. 780, 8 SE 318; Woodward vs. State, 103 Ga. 496, 30 SE 522; Corre
vs. Cooney, 70 Mont. 355, 225 P 1007, 1009). As late as 1971, the courts stressed that the
constitutional amendment or the new Constitution should not be condemned "unless our
judgment its nullity is manifest beyond reasonable doubt" (1971 case of Moore vs. Shanahan,
486 Pac. 2d 506, 207 Kan. 1, 645; and the 1956 case of Tipton vs. Smith, et al., supra).

70

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
EXECUTIVE AND JUDICIARY.

AND INDEPENDENT OF CONGRESS,

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 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 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, ...," 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 ... ." (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' Assemblies for consultation on the 1973
Constitution or on whether there was further need of a plebiscite thereon, both issues of

71

national concern is still within the delegated authority reposed in him by the Constitutional
Convention as aforesaid.
It should be noted that Resolution No. 29, which superseded Resolution No. 5843, does not
prescribe that the plebiscite must be conducted by the Commission on Elections in accordance
with the provisions of the 1971 Revised Election Code. If that were the intention of the
Constitutional Convention in making the delegation, it could have easily included the necessary
phrase for the purpose, some such phrase like "to call a plebiscite to be supervised by the
Commission on Elections in accordance with the provisions of the 1971 Revised Election Code (or
with existing laws)." That the Constitutional Convention omitted such phrase, can only mean that
it left to the President the determination of the manner by which the plebiscite should be
conducted, who shall supervise the plebiscite, and who can participate in the plebiscite. The fact
that said Resolution No. 29 expressly states "that copies of this resolution as approved in plenary
session be transmitted to the President of the Philippines and the Commission on Elections for
implementation," did not in effect designate the Commission on Elections as supervisor of the
plebiscite. The copies of said resolution that were transmitted to the Commission on Elections at
best serve merely to notify the Commission on Elections about said resolution, but not to direct
said body to supervise the plebiscite. The calling as well as conduct of the plebiscite was left to
the discretion of the President, who, because he is in possession of all the facts funnelled to him
by his intelligence services, was in the superior position to decide when the plebiscite shall be
held, how it shall be conducted and who shall oversee it.
It should be noted that in approving said Resolution No. 29, the Constitutional Convention itself
recognized the validity of, or validated Presidential Proclamation No. 1081 placing the entire
country under martial law by resolving to "propose to President Ferdinand E. Marcos that a
decree be issued calling a plebiscite ... ." The use of the term "decree" is significant for the basic
orders regulating the conduct of all inhabitants are issued in that form and nomenclature by the
President as the Commander in Chief and enforcer of martial law. Consequently, the issuance by
the President of Presidential Decree No. 73 on December 1, 1972 setting the plebiscite on
January 15, 1973 and appropriating funds therefor pursuant to said Resolution No. 29, is a valid
exercise of such delegated authority.
Such delegation, unlike the delegation by Congress of the rule-making power to the Chief
Executive or to any of his subalterns, does not need 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:
... 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 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

72

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 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.
xxx

xxx

xxx

Sec. 12.
All treaties, executive agreements, and contracts entered into by the Government,
or any subdivision, agency, or instrumentality thereof, including government-owned or controlled
corporations, are hereby recognized as legal, valid and binding. When the national interest so
requires, the incumbent President of the Philippines or the interim Prime Minister may review all
contracts, concessions, permits, or other forms of privileges for the exploration, development,
exploitation, or utilization of natural resources entered into, granted, issued or acquired before
the ratification of this Constitution.
In the Plebiscite Cases (L-35925, L-35929, L-35940, L-35942, L-35948, L-35953, L-35961, L35965, & L-35979), Chief Justice Roberto Concepcion, concurred in by Justices Fernando, Barredo,
Antonio and the writer, overruled this objection, thus:
... Regardless of the wisdom and moral aspects of the contested provisions of the proposed
Constitution, it is my considered view that the Convention was legally 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.).

73

This Court likewise enunciated in Del Rosario vs. Comelec (L-32476, Oct. 20, 1970, 35 SCRA 367)
that the Constitutional Convention has the authority to "entirely overhaul the present
Constitution and propose an entirely new Constitution based on an ideology foreign to the
democratic system ...; because the same will be submitted to the people for 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: "... it seems to me a sufficient answer that once
convened, the area open for deliberation to a constitutional convention ..., is practically limitless"
(citing Cf. Koehler vs. Hill, 14 NW 738, 60 Iowa 543 [1883]; Hatch Stoneman, 6 P 734, 66 Cal. 632
[1885]; MacMillan v. Blattner, 25 NW 245, 67 Iowa 287 [1895]; State v. Powell, 27 SO 297, 77
Miss. 543 [1900]; Hammond v. Clark, 71 SE 479, 136 Ga. 313 [1911]; Hamilton v. Vaughan, 179
NW 533, 212 Mich. 31 [1920]; State v. Smith, 138 NE 881, 105 Ohio St. 570 [1922]; Looney vs.
Leeper, 292 P 365, 145 Okl. 202 [1930]; School District vs. City of Pontiac, 247 NW 474, 262
Mich. 338 [1933]).
Mr. Justice Barredo, in his concurring opinion in said Plebiscite Cases, expressed the view "that
when the people elected the delegates to the Convention and when the delegates themselves
were campaigning, such limitation of the scope of their function and objective was not in their
minds."
V
1973 CONSTITUTION DULY ADOPTED AND PROMULGATED.
Petitioners next claim that the 1971 Constitutional Convention adjourned on November 30, 1972
without officially promulgating the said Constitution in Filipino as required by Sections 3(1) of
Article XV on General Provisions of the 1973 Constitution. This claim is without merit because
their Annex "M" is the Filipino version of the 1973 Constitution, like the English version, contains
the certification by President Diosdado Macapagal of the Constitutional Convention, duly attested
by its Secretary, that the proposed Constitution, approved on second reading on the 27th day of
November, 1972 and on third reading in the Convention's 291st plenary session on November
29, 1972 and accordingly signed on November 1972 by the delegates whose signatures are
thereunder affixed. It should be recalled that Constitutional Convention President Diosdado
Macapagal was, as President of the Republic 1962 to 1965, then the titular head of the Liberal
Party to which four (4) of the petitioners in L-36165 including their counsel, former Senator Jovito
Salonga, belong. Are they repudiating and disowning their former party leader and benefactor?
VI
ARTICLE XV OF 1935 CONSTITUTION DOES NOT
PRESCRIBE ANY PROCEDURE FOR RATIFICATION OF
1973 CONSTITUTION.
(1)
Article XV of the 1935 Constitution simply provides that "such amendments shall be valid
as part of this Constitution when approved by a majority of the votes cast at an election at which
the amendments are submitted to the people for ratification."
But petitioners construe the aforesaid provision to read: "Such amendments shall be valid as part
of this Constitution when approved by a majority of the votes cast at an election called by
Congress at which the amendments are submitted for ratification by the qualified electors
defined in Article V hereof, supervised by the Commission on Elections in accordance with the
existing election law and after such amendments shall have been published in all the
newspapers of general circulation for at least four months prior to such election."
This position certainly imposes limitation on the sovereign people, who have the sole power of
ratification, which imposition by the Court is never justified (Wheeler vs. Board of Trustees,
supra).
In effect, petitioners and their counsels are amending by a strained and tortured construction
Article XV of the 1935 Constitution. This is a clear case of usurpation of sovereign power they do
not possess through some kind of escamotage. This Court should not commit such a grave
error in the guise of judicial interpretation.
In all the cases where the court held that illegal or irregular submission, due to absence of
substantial compliance with the procedure prescribed by the Constitution and/or the law, nullifies
the proposed amendment or the new Constitution, the procedure prescribed by the state
Constitution is so detailed that it specifies that the submission should be at a general or special
election, or at the election for members of the State legislature only or of all state officials only or
of local officials only, or of both state and local officials; fixes the date of the election or plebiscite
limits the submission to only electors or qualified electors; prescribes the publication of the

74

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

Miscellaneous Provisions.

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

75

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

Amendments to the Constitution.

Sec. 1.
Proposal in general assembly; publication; submission to voters; governor's
proclamation. The General Assembly may propose Amendments to this Constitution; provided
that each Amendment shall be embraced in a separate bill, embodying the Article or Section, as
the same will stand when amended and passed by three fifths of all the members elected to each
of the two Houses, by yeas and nays, to be entered on the Journals with the proposed
Amendment. The bill or bills proposing amendment or amendments shall be published by order
of the Governor, in at least two newspapers, in each County, where so many may be published,
and where not more than one may be published, then in the newspaper, and in three
newspapers published in the City of Baltimore, once a week for four weeks immediately
preceding the next ensuing general election, at which the proposed amendment or amendments
shall be submitted, in a form to be prescribed by the General Assembly, to the qualified voters of
the State for adoption or rejection. The votes cast for and against said proposed amendment or
amendments, severally, shall be returned to the Governor, in the manner prescribed in other
cases, and if it shall appear to the Governor that a majority of the votes cast at said election on
said amendment or amendments, severally, were cast in favor thereof, the Governor shall, by his
proclamation, declare the said amendment or amendments having received said majority of
votes, to have been adopted by the people of Maryland as part of the Constitution thereof, and
henceforth said amendment or amendments shall be part of the said Constitution. When two or
more amendments shall be submitted in the manner aforesaid, to the voters of this State at the
same election, they shall be so submitted as that each amendment shall be voted on separately.
Constitution of Missouri (1945):
Article XII.

Amending the Constitution.

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

76

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 woman's suffrage, the 1939 amendment
to the Ordinance appended to the 1935 Constitution (Tydings-Kocialkowski Act of the U.S.
Congress) and the three 1940 amendments on the establishment of a bicameral Congress, the
re-election of the President and the Vice-President, and the creation of the Commission on
Elections (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.
When the 1935 Constitution wants to limit action or the exercise of a right to the electorate, it
does so expressly as the case of the election of senators and congressmen. Section 2 Article VI
expressly provides that the senators "shall be chosen at large by the qualified electors of the
Philippines as may provided by law." Section 5 of the same Article VI specifically provides that
congressmen shall "be elected by the qualified electors." The only provision that seems to
sustain the theory of petitioners that the term "people" in Article XV should refer to the qualified
electors as defined in Article V of the 1935 Constitution is the provision that the President and
Vice-President shall be elected "by direct vote of the people." (Sec. 2 of Art. VII of the 1935
Constitution). But this alone cannot be conclusive as to such construction, because of explicit
provisions of Sections 2 and 5 of Article VI, which specifically prescribes that the senators and
congressmen shall be elected by the qualified electors.
As aforesaid, most of the constitutions of the various states of the United States, specifically
delineate in detail procedure of ratification of amendments to or revision of said Constitutions
and expressly require ratification by qualified electors, not by the generic term "people".
The proposal submitted to the Ozamis Committee on the Amending Process of the 1934-35
Constitutional Convention satisfied that the amendment shall be submitted to qualified election
for ratification. This proposal was not accepted indicating that the 1934-35 Constitutional
Convention did intend to limit the term "people" in Article XV of the 1935 Constitution to
qualified electors only. As above demonstrated, the 1934-35 Constitutional Convention limits the
use of the term "qualified electors" to elections of public officials. It did not want to tie the hands
of succeeding future constitutional conventions as to who should ratify the proposed amendment
or revision.
(4)
It is not exactly correct to opine that Article XV of 1935 Constitution on constitutional
amendment contemplates the automatic applicability of election laws to plebiscites on proposed
constitutional amendments or revision.

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The very phraseology of the specific laws enacted by the National Assembly and later by
Congress, indicates that there is need of a statute expressly authorizing the application of the
election laws to plebiscites of this nature. Thus, Com. Act No. 34 on the woman's suffrage
amendment enacted on September 30, 1936, consists of 12 sections and, aside from providing
that "there shall be held a plebiscite on Friday, April 30, 1937, on the question of woman's
suffrage ... 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, ... 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)1; 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 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 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.

78

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.
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.
follows:

Powers of the barrio assembly. The powers of the barrio assembly shall be as

a.

To recommend to the barrio council the adoption of measures for the welfare of the barrio;

b.

To decide on the holding of a plebiscite as provided for in Section 6 of this Act;

c.
To act on budgetary and supplemental appropriations and special tax ordinances
submitted for its approval by the barrio council; and
d.

To 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.

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For taking action on any of the above enumerated measures, majority vote of all the barrio
assembly members registered in the list of barrio secretary is necessary.
xxx

xxx

xxx

Sec 10.
Qualifications of voters and candidates. Every citizen of the Philippines, twentyone 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 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 ... 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 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

80

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 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 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 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

81

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

82

of government to people consultation in shaping up government policies." (Annex-Bataan to


Rejoinder of Petitioners in L-36165).
As heretofore stated, it is not necessary that voters ratifying the new Constitution are registered
in the book of voters; it is enough that they are electors voting on the new Constitution (Bott vs.
Wurts, 40 A 740 [1898]; 43 A 744, 881 [1899]; 45 LRA 251). The fact that the number of actual
voters in the referendum in certain localities may exceed the number of voters actually
registered for the 1971 elections, can only mean that the excess represents the qualified voters
who are not yet registered including those who are at least 15 years of age and the illiterates.
Although ex-convicts may have voted also in the referendum, some of them might have been
granted absolute pardon or were sentenced to less than one year imprisonment to qualify them
to vote (Sec. 201, 1971 Rev. Election Code). At any rate, the ex-convicts constitute a negligible
number, discounting which would not tilt the scale in favor of the negative votes.
Similarly, the fact that Mayor Marcial F. Samson of Caloocan City, who belongs to the Liberal
Party, stated in his letter dated March 13, 1973 that he does not "feel authorized by the proper
authorities to confirm or deny the data" concerning the number of participants, the Yes votes and
No votes in the referendum on the new Constitution among the members of the Citizens'
Assemblies in Caloocan City, does not necessarily give rise to the inference that Mayor Samson
of Caloocan City is being intimidated, having been recently released from detention; because in
the same letter of Mayor Samson, he suggested to counsel for petitioners in L-36165 that he can
secure "the true and legitimate results of the referendum" from the Office of the President
(Annex Caloocan-B to Rejoinder of Petitioners in L-36165). Why did not learned and eminent
counsel heed such suggestion?
Counsel for petitioners in L-36165, to sustain their position, relies heavily on the computation of
the estimated turnover in the Citizens' Assemblies referendum on January 10 to 15, 1973 by a
certain Professor Benjamin R. Salonga, of the Mapua Institute of Technology, ostensibly a close
relative of former Senator Jovito R. Salonga, eminent counsel for petitioners in L-36165 (Annex Mas 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 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 15-20year-old youths (1972) will have to be estimated in order to give a 101.9% estimate of the
percentage participation of the "15-20 year old plus total number of qualified voters" which does
not deem to answer the problem. This computation apparently fails to account for some 5.6
million persons "21 years old and over" who were not registered voters (COMELEC), but who
might be qualified to participate at the Citizen's Assembly.
2)
The official population projection of this office (medium assumption) for "15 year olds and
over" as of January 1, 1973 is 22.506 million. If total number of participants at the Citizens'
Assembly Referendum held on January 10-15, 1973 was 16.702 million, participation rate will
therefore be the ratio of the latter figure to the former which gives 74.2%.
3)
1 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.
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).

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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 15year 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 necessarily inconsistent with
freedom of choice, because the people fear to disagree with the President and Commander-inChief of the Armed Forces of the Philippines and therefore cannot voice views opposite to or
critical of the position of the President on the 1973 Constitution and on the mode of its
ratification.
It is also claimed or urged that there can be no free choice during martial law which inevitably
generates fear in the individual. Even without martial law, the penal, civil or administrative
sanction provided for the violation of ordinarily engenders fear in the individual which persuades
the individual to comply with or obey the law. But before martial law was proclaimed, many
individuals fear such sanctions of the law because of lack of effective equal enforcement or
implementation thereof in brief, compartmentalized justice and extraneous pressures and
influences frustrated the firm and just enforcement of the laws. The fear that is generated by
martial law is merely the fear of immediate execution and swift enforcement of the law and
therefore immediate infliction of the punishment or sanction prescribed by the law whenever it is
transgressed during the period of martial law. This is not the fear that affects the voters' freedom
of choice or freedom to vote for or against the 1973 Constitution. Those who cringe in fear are
the criminals or the law violators. Surely, petitioners do not come under such category.
(7)
Petitioners likewise claim that open voting by viva voce or raising of hands violates the
secrecy of the ballot as by the election laws. But the 1935 Constitution does not require secret
voting. We search in vain for such guarantee or prescription in said organic law. The Commission
on Elections under the 1940 Amendment, embodied as Article X is merely mandated to insure
"free, orderly and honest election." Congress, under its plenary law-making authority, could have
validly prescribed in the election law open voting in the election of public officers, without
trenching upon the Constitution. Any objection to such a statute concerns its wisdom or
propriety, not its legality or constitutionality. Secret balloting was demanded by partisan strife in
elections for elective officials. Partisanship based on party or personal loyalties does not
generally obtain in a plebiscite on proposed constitutional amendments or on a new Constitution.
We have seen even before and during martial law that voting in meetings of government
agencies or private organizations is usually done openly. This is specially true in sessions of
Congress, provincial boards, city councils, municipal boards and barrio councils when voting on
national or local issues, not on personalities.
Then again, open voting was not a universal phenomenon in the Citizens' Assemblies. It might
have been true in certain areas, but that does not necessarily mean that it was done throughout
the country.
The recent example of an open voting is the last election on March 3, 1973 of the National Press
Club officers who were elected by acclamation presided over by its former president, petitioner
Eduardo Monteclaro in L-36236 (see Bulletin Today, p. 8, March 3, 1973 issue). There can be no
more hardboiled group of persons than newspapermen, who cannot say that voting among them
by acclamation was characterized by fear among the members of the National Press Club.
Moreover, petitioners would not be willing to affirm that all the members of the citizenry of this
country are against the new Constitution. They will not deny that there are those who favor the
same, even among the 400,000 teachers among whom officers of the Department of Education
campaigned for the ratification of the new Constitution.

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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 Constitutional Convention
convened in June, 1971, specific reforms advanced by the delegates were discussed both in
committee hearings as well as in the tri-media the press, radio and television. Printed
materials on the proposed reforms were circulated by their proponents. From June, 1971 to
November 29, 1972, reforms were openly discussed and debated except for a few days after the
proclamation of martial law on September 21, 1972. From the time the Constitutional Convention
reconvened in October, 1972 until January 7, 1973, the provisions of the new Constitution were
debated and discussed in forums sponsored by private organizations universities and debated
over the radio and on television. The Philippines is a literate country, second only to Japan in the
Far East, and more literate perhaps than many of mid-western and southern states of the
American Union and Spain. Many residents in about 1,500 towns and 33,000 barrios of the
country have radios. Even the illiterates listened to radio broadcasts on and discussed the
provisions of the 1973 Constitution.
As reported by the eminent and widely read columnist, Teodoro Valencia in his column in Bulletin
Today, March 4, 1973 issue, "Otto Lang, Hollywood producer director (Tora, Tora, Tora) went
around the country doing a 30-minute documentary on the Philippines for American television
stated that what impressed him most in his travel throughout the country was the general
acceptance of the New Society by the people which he saw in his 6-week travel from Aparri to
Jolo."
The report of Frank Valeo (Bulletin Today, March 3 and 4, 1973 and Daily Express, March 3, and
Sunday Express, March 4), Secretary of the United States Senate, who conducted a personal
survey of the country as delegate of Senator Mike Mansfield, Chairman, Committee on USPhilippine relations, states:
Martial law has paved the way for a re-ordering of the basic social structure of the Philippines.
President Marcos has been prompt and sure-footed in using the power of presidential decree
under martial law for this purpose. He has zeroed in on areas which have been widely recognized
as prime sources of the nation's difficulties land tenancy, official corruption, tax evasion and
abuse of oligarchic economic power. Clearly, he knows the targets. What is not yet certain is how
accurate have been his shots. Nevertheless, there is marked public support for his leadership
and tangible alternatives have not been forthcoming. That would suggest that he may not be
striking too far from the mark.
The United States business community in Manila seems to have been re-assured by recent
developments ... . (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 undermartial 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

85

October 2, 1945 (23 Encyc. Brit. 1969 ed., p. 799) and hence no more martial law in the
Philippines.
... Consequently, in the promulgation and enforcement of Executive Order No. 68, the President
of the Philippines has acted in conformity with the generally accepted principles and policies of
international law which are part of our Constitution.
The promulgation of said executive order is an exercise by the President of his powers as
Commander in Chief of all our armed forces, as upheld by this Court in the case of Yamashita vs.
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; emphasis supplied).
Chief Justice Stone of the United States Supreme Court likewise appears to subscribe to this view,
when, in his concurring opinion in Duncan vs. Kahanamoku (327 U.S. 304 [1946]), he 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." (Emphasis 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 ... threaten the public safety." It is possible
that the courts, in asserting their authority to pass upon questions which may adversely affect
the conduct of the punitive campaign against rebels, secessionists, dissidents as well as
subversives, martial law may restrict such judicial function until the danger to the security of the
state and of the people shall have been decimated.
The foregoing view appears to be shared by Rossiter when he stated:
Finally, this strong government, which in some instances might become an outright dictatorship,
can have no other purposes than the preservation of the independence of the state, the
maintenance of the existing constitutional order, and the defense of the political and social
liberties of the people. It is important to recognize the true and limited ends of any practical
application of the principle of constitutional dictatorship. Perhaps the matter may be most clearly
stated in this way: the government of a free state is proceeding on its way and meeting the usual
problems of peace and normal times within the limiting framework of its established
constitutional order. The functions of government are parceled out among a number of mutually
independent offices and institutions; the power to exercise those functions is circumscribed by
well-established laws, customs, and constitutional prescriptions; and the people for whom this
government was instituted are in possession of a lengthy catalogue of economic, political, and
social rights which their leaders recognize as inherent and inalienable. A severe crisis arises
the country is invaded by a hostile power, or a dissident segment of the citizenry revolts, or the
impact of a world-wide depression threatens to bring the nation's economy in ruins. The
government meets the crisis by assuming more powers and respecting fewer rights. The result is
a regime which can act arbitrarily and even dictatorially in the swift adaption 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; emphasis
supplied.)

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Finally, Rossiter expressly recognizes that during martial law, the Chief Executive exercises
legislative power, whether of temporary or permanent character, thus:
The measures adopted in the prosecution of a constitutional dictatorship should never be
permanent in character or effect. Emergency powers are strictly conditioned by their purpose
and this purpose is the restoration of normal conditions. The actions directed to this end should
therefore be provisional. For example, measures of a legislative nature which work a lasting
change in the structure of the state or constitute permanent derogations from existing law
should not be adopted under an emergency enabling act, at least not without the positively
registered approval of the legislature. Permanent laws, whether adopted in regular or irregular
times, are for parliaments to enact. By this same token, the decisions and sentences of
extraordinary courts should be reviewed by the regular courts after the termination of the crisis.
But what if a radical act of permanent character, one working lasting changes in the political and
social fabric, is indispensable to the successful prosecution of the particular constitutional
dictatorship? The only answer can be: it must be resolutely taken and openly acknowledged.
President Lincoln found it necessary to proceed to the revolutionary step of emancipation in aid
of his conservative purpose of preserving the Union; as a constitutional dictator he had a moral
right to take this radical action. Nevertheless, it is imperative that any action with such lasting
effects should eventually receive the positive approval of the people or of their representatives in
the legislature. (P. 303, emphasis 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 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

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word in its noble sense." (Frankfurter, Law and Politics, 1939 ed., pp. 3 & 6; emphasis supplied).
Justice Brandeis gave utterance to the truth that "Our Constitution is not a straight jacket. It is a
living organism. As such, it is capable of growth or expansion and adaptation to new
conditions. Growth implies changes, political, economic and social." (Brandeis Papers, Harvard
Law School; emphasis supplied). Harvard Professor Thomas Reed Powell emphasizes "practical
wisdom," for "the logic of constitutional law is the common sense of the Supreme Court." (Powell,
the Validity of State Legislation, under the Webb-Kenyon Law, 2 Southern Law Quarterly, pp. 112,
138-139, cited in Bickel's Opus, supra; emphasis 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 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. ... But I know also, that laws
and institutions must go hand in hand with the progress of the human mind. As that becomes
more developed, more enlightened, as new discoveries are made, new truths disclosed and
manners and opinions change, with the change of circumstances, institutions must also advance,
and keep pace with the times." (Vol. 12, Encyclopedia 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

88

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

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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-inChief 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.
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 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
vert 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,

90

secessionists and communists for their own personal or political purposes and how many of them
are being used in turn by the aforesaid enemies of the State for their own purposes?
If the petitioners are sincere in their expression of concern for the greater mass of the populace,
more than for their own selves, they should be willing to give the incumbent Chief Executive a
chance to implement the desired reforms. The incumbent President assured the nation that he
will govern within the framework of the Constitution and if at any time, before normalcy is
restored, the people thru their Citizens' Assemblies, cease to believe in his leadership, he will
step down voluntarily from the Presidency. But if, as apprehended by the petitioners, he abuses
and brutalizes the people, then to the battlements we must go to man the ramparts against
tyranny. This, it is believed, he knows only too well; because he is aware that he who rides the
tiger will eventually end inside the tiger's stomach. He who toys with revolution will be swallowed
by that same revolution. History is replete with examples of libertarians who turned tyrants and
were burned at stake or beheaded or hanged or guillotined by the very people whom they at 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., concurring:
These petitions seek to stop and prohibit the respondents Executive Officers from implementing
the Constitution signed on November 30, 1972; in L-36165, to compel respondents Gil Puyat and
Jose J. Roy, President and President Pro-Tempore, respectively, of the Senate under the 1935
Constitution, to convene the Senate in regular session which should have started on January 22,
1973; to nullify Proclamation No. 1102 of the President, issued on January 17, 1973, which
declared the ratification of the Constitution on November 30, 1972, by the Filipino people,
through the barangays or Citizens Assemblies established under Presidential Decree No. 86
issued on December 31, 1972, which were empowered under Presidential Decree No. 86-A,
issued on January 5, 1973, to act in connection with the ratification of said Constitution.
Grounds for the petitions are as follows:
1.
That the Constitutional Convention was not a free forum for the making of a Constitution
after the declaration of Martial Law on September 21, 1972.
2.
The Convention was not empowered to incorporate certain provisions in the 1972
Constitution because they are highly unwise and objectionable and the people were not
sufficiently informed about them.
3.
The President had no authority to create and empower the Citizens' Assemblies to ratify
the new Constitution at the 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?

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II.
The pivotal question in these cases is whether the issue raised is highly political and, therefore,
not justiciable. I maintain that this Court should abstain from assuming jurisdiction, but, instead,
as an act of judicial statesmanship, should dismiss the petitions. In resolving whether or not the
question presented is political, joint discussion of issues Nos. 1, 3 and 4 is necessary so as to
arrive at a logical conclusion. For after the acceptance of a new Constitution and acquiescence
therein by the people by putting it into practical operation, any question regarding its validity
should 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 86A, 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 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 ... 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 have to declare that it is governed by one Constitution or the 1935 Constitution, and the
legislative and executive branches by another or the 1972 Constitution.
If it declares that the 1972 Constitution is now operative, how can it exercise judicial discretion in
these cases when it would have no other choice but to uphold the new Constitution as against
any other one? In the circumstances it would be bereft of judicial attributes as the matter would
then be not meet for judicial determination, but one addressed to the sovereign power of the
people who have already spoken and delivered their mandate by accepting the fundamental law
on which the government of this Republic is now functioning. To deny that the new Constitution
has been accepted and actually is in operation would be flying in the face of reason and
pounding one's bare head against a veritable stone wall or a heavily reinforced concrete, or
simply "kicking the deadly pricks" with one's bare foot in an effort to eliminate the lethal points.

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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:
... But it is a case where a new constitution has been formed and promulgated according to the
forms of law. Great interests have already arisen under it; important rights exist by virtue of it;
persons have been convicted of the highest crimes known to the law, according to its provisions;
the political power of the government has in many ways recognized it; and, under such
circumstances, it is our duty to treat and regard it as a valid constitution, and now the organic
law of our state. We need not consider the validity of the amendments made after the
convention reassembled. If the making of them was in excess of its power, yet as the entire
instrument has been recognized as valid in the manner suggested, it would be equally an abuse
of power by the judiciary, and violative of the rights of the people, who can and 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 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:

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The Court's authority possessed neither of the purse nor the sword ultimately rests on
sustained public confidence in its moral sanction. Such feeling must be nourished by the Court's
complete detachment, in fact and appearance, from political entanglements and abstention from
injecting itself into the clash of political forces in political settlement. ..." (Emphasis supplied)
The people have accepted and submitted to a Constitution to replace the 1935 Constitution. The
new organic law is now in the plenitude of its efficacy and vigor. We are now living under its aegis
and protection and only the cynics will deny this. This Court should not in the least attempt to act
as a super-legislature or a super-board of canvassers and sow confusion and discord among our
people by pontificating there was no valid ratification of the new Constitution. The sober
realization of its proper role and delicate function and its consciousness of the limitations on its
competence, especially situations like this, are more in keeping with the preservation of our
democratic tradition than the blatant declamations of those who wish the Court to engage in
their brand of activism and would not mind plunging it into the whirlpool of passion and emotion
in an effort to capture the intoxicating applause of the multitude.
For all the foregoing, I vote to dismiss all petitions.
ZALDIVAR, J., concurring and dissenting:
In these five cases, the main issue to be resolved by Court is whether or not the Constitution
proposed by the Constitutional Convention of 1971 had been ratified in accordance with the
provisions of Article XV of the 1935 Constitution. In the plebiscite cases, which were decided by
this Court on January 22, 1973 1, I held the view that this issue could be properly resolved by this
Court, and that it was in the public interest that this Court should declare then whether or not the
proposed Constitution had been validly ratified. The majority of this Court, however, was of the
view that the issue was not squarely raised in those cases, and so the Court, as a body, did make
any categorical pronouncement on the question of whether or not the Constitution proposed by
the 1971 Convention was validly ratified. I was the only one who expressed the opinion that the
proposed Constitution was not validly ratified and therefore "it should not be given force and
effect."
The Court is now called upon to declare, and to inform the people of this country, whether or not
that proposed Constitution had been validly ratified and had come into effect.
The Solicitor General, however, contends that this Court has no jurisdiction to resolve the issue
that we have mentioned because that issue is a political question that cannot be decided by this
Court. This contention by the Solicitor General is untenable. A political question relates to "those
questions which under the Constitution are to be decided by the people in their sovereign
capacity or in regard to which full discretionary authority has been delegated to the legislative,
or to the executive, branch of the government. 2 The courts have the power to determine
whether the acts of the executive are authorized by the Constitution and the laws whenever they
are brought before the court in a judicial proceeding. The judicial department of the government
exercises a sort of controlling, or rather restraining, power over the two other departments of the
government. Each of the three departments, within its proper constitutional sphere, acts
independently of the other, and restraint is only placed on one department when that sphere is
actually transcended. While a court may not restrain the executive from committing an unlawful
act, it may, when the legality of such an act is brought before it in a judicial proceeding, declare
it to be void, the same as it may declare a law enacted by the legislature to be unconstitutional.
3 It is a settled doctrine that every officer under a constitutional government must act according
to law and subject to its restrictions, and every departure therefrom, or disregard thereof, must
subject him to the restraining and controlling power of the people, acting through the agency of
the judiciary. It must be remembered that the people act through the courts, as well as through
the executive or the legislature. One department is just as representative as the other, and
judiciary is the department which is charged with the special duty of determining the limitations
which the law places upon all official actions 4. In the case of Gonzales v. Commission on
Elections 5, this Court ruled that the issue as to whether or not a resolution of Congress acting as
a constituent assembly violates the Constitution is not a political question and is therefore
subject to judicial review. In the case of Avelino v. Cuenco 6, this Court held that the exception to
the rule that courts will not interfere with a political question affecting another department is
when such political question involves an issue as to the construction and interpretation of the
provision of the constitution. And so, it has been held that the question of whether a constitution
shall be amended or not is a political question which is not in the power of the court to decide,
but whether or not the constitution has been legally amended is a justiciable question. 7
My study on the subject of whether a question before the court is political or judicial, based on
decisions of the courts in the United States where, after all, our constitutional system has been
patterned to a large extent made me arrive at the considered view that it is in the power of
this Court, as the ultimate interpreter of the Constitution, to determine the validity of the
proposal, the submission, and the ratification of any change in the Constitution. Ratification or
non-ratification of a constitutional amendment is a vital element in the procedure to amend the

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

xxx

xxx

"As to matters not related to its internal operation and the performance of its assigned mission to
propose amendments to the Constitution, the Convention and its 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 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.

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

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Provided, that no person shall register more than once without first applying for cancellation of
his previous registration." (Emphasis supplied). (Please see also Sections 100-102, Election Code
of 1971, R.A. No. 6388)
It is stated in Proclamation No. 1102 that the voting was done by the members of citizens
assemblies who are 15 years of age or over. Under the provision of Section I of Article V of the
1935 Constitution, the age requirement to be a qualified voter is 21 years or over.
But what is more noteworthy is the fact that the voting in the barangays, except in very few
instances, was done by the raising of hands by the persons indiscriminately gathered to
participate in the voting, where even children below 15 years of age were included. This is a
matter of common observation, or of common knowledge, which the Court may take judicial
notice of. To consider the votes in the barangays as expressive of the popular will and use them
as the basis in declaring whether a Constitution is ratified or rejected is to resort to a voting by
demonstrations, which is would mean the rule of the crowd, which is only one degree higher than
the rule by the mob. Certainly, so important a question as to whether the Constitution, which is
the supreme law of the land, should be ratified or not, must not be decided by simply gathering
people and asking 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." (BIack's Constitutional
Law, Second Edition, pp. 47-48).
"The theory of our political system is that the ultimate sovereignty is in the people, from whom
springs all legitimate authority. The people of the Union created a national constitution, and
conferred upon it powers of sovereignty on certain subjects, and the people of each State
created a State government, to exercise the remaining powers of sovereignty so far as they were
disposed to allow them to be exercised at all. By the constitution which they establish, they not
only tie up the hands of their official agencies, but their own hands as well; and neither the
officers of the State, nor the whole people as an aggregate body, are at liberty to take action in
opposition to this fundamental law." (Cooley's Constitutional Limitations, 8th Edition, Vol. I, p. 81
cited in Graham v. Jones, 3 So. 2d. 761, 782).
"The theory that a favorable vote by the electorate, however unanimous, on a proposal to amend
a constitution, may cure, render innocuous, all or any antecedent failures to observe commands
of that Constitution in respect of the formulation or submission of proposed amendments thereto,
does not prevail in Alabama, where the doctrine of the stated theory was denied, in obvious
effect, by the pronouncement 60 years ago of broad, wholesome constitutional principles in
Collier v. Frierson, supra, as quoted in the original opinion, ante. The people themselves are
bound by the Constitution; and, being so bound, are powerless, whatever their numbers, to
change or thwart its mandates, except through the peaceful means of a constitutional
convention, or of an amendment according to the mode therein prescribed, or through the
exertion of the original right of revolution. "The Constitution may be set aside by revolution, but
it can only be amended in the way it provides," said Hobson, C.J., in McCreary v. Speer, 156 Ky.
783, 791, 162 S.W. 99, 103. (Johnson vs. Craft, et al., 87 So. 375, 385, 387, On Rehearing).
"The fact that a majority voted for the amendment, unless the vote was taken as provided by the
Constitution, is not sufficient to make a change in that instrument. Whether a proposed
amendment has been legally adopted is a judicial question, for the court must uphold and
enforce the Constitution as written until it is amended in the way which it provides for." Wood v.
Tooker, 15 Mont. 8, 37 Pac 840, 25 L.R.A. 560; McConaughty v. State, 106 Minn. 409, 119 N.W.

97

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 on the legislature, and the former are powerless by
vote of acceptance to give legal sanction to an amendment the submission of which was made in
disregard of the limitations contained in the constitution." (16 C.J.S. 35-36. cited in Graham v.
Jones, 3 So. 2d 761, 782).
"It is said that chaos and confusion in the government affairs of the State will result from the
Court's action in declaring the proposed constitutional amendment void. This statement is
grossly and manifestly inaccurate. If confusion and chaos should ensue, it will not be due to the
action of the Court but will be the result of the failure of the drafters joint resolution to observe,
follow and obey the plain essential provisions of the Constitution. Furthermore, to say that, the
Court disregards its sworn duty to enforce the Constitution, chaos and confusion will result, is an
inherently weak argument in favor of the alleged constitutionality of the proposed amendment. It
is obvious that, if the Court were to countenance the violations of the sacramental provisions
Constitution, those who would thereafter desire to violate it disregard its clear mandatory
provisions would resort to the scheme of involving and confusing the affairs of the State then
simply tell the Court that it was powerless to exercise one of its primary functions by rendering
the proper decree to make the Constitution effective." (Graham v. Jones, 3 So. 2d. 761, 793-794).
In our jurisprudence I find an instance where this Court did not allow the will of the majority to
prevail, because the requirements of the law were not complied with. In the case of Monsale v.
Nico, 83 Phil. 758, Monsale and Nico were both candidates for the office of Municipal Mayor of
Miagao, Iloilo, in the elections of November 11, 1947. Monsale had duly filed his certificate of
candidacy before the expiration of the period for the filing of the same. However, on October 10,
1947, after the period for the filing of the certificate of candidacy, Monsale withdrew his
certificate of candidacy. But on November 7, 1947 Monsale attempted to revive his certificate of
candidacy by withdrawing the withdrawal of certificate of candidacy. The Commission on
Elections, November 8, 1947, ruled that Monsale could no longer be a candidate. Monsale
nevertheless proceeded with his candidacy. The boards of inspectors in Miagao, however, did not
count the votes cast for Monsale upon the ground that the votes cast for him were stray votes,
because he was considered as having no certificate of candidacy. On the other hand, the boards
of inspectors credited Nico with 2,291 votes, and Nico was proclaimed elected. Monsale filed a
protest against the election of Nico in the Court of First Instance of Iloilo. In the count of the
ballots during the proceedings in the trial court, it appeared that Monsale had obtained 2,877
votes while Nico obtained 2,276 votes, or a margin of 601 votes in favor of Monsale. The Court of
First Instance of Iloilo decided the election protest in favor of Monsale. Upon appeal by Nico, this
Court reversed the decision of the lower court. This Court declared that because Monsale
withdrew his certificate of candidacy, his attempt to revive it by withdrawing his withdrawal of
his certificate of candidacy did not restore the effectiveness of his certificate of candidacy, and
this Court declared Nico the winner in spite of the fact that Monsale had obtained more votes
than he.
We have cited this Monsale case to show that the will of the majority of the voters would not be
given effect, as declared by this Court, if certain legal requirements have not been complied with
in order to render the votes valid and effective to decide the result of an election.
And so, in the cases now before this Court, the fact that the voting in the citizens assemblies
(barangays) is not the election that is provided for in the 1935 Constitution for the ratification of
the amendment to the Constitution, the affirmative votes cast in those assemblies can not be
made the basis for declaring the ratification of the proposed 1972 Constitution, in spite of the
fact that it was reported that 14,976,561 members of the citizens assemblies voted for the
adoption as against 743,869 for the rejection, because the votes thus obtained were not in
accordance with the provisions of Section 1 of Article XV of the 1935 Constitution of the
Philippines. The rule of law mast be upheld.
My last observation: One of the valid grounds against the holding of the plebiscite on January 15,
1973, as provided in Presidential Decree No. 73, is that there is no freedom on the part of the
people to exercise their right of choice because of the existence of martial law in our country. The
same ground holds true as regards to the voting of the barangays on January 10 to 15, 1973.
More so, because by General Order No. 20, issued on January 7, 1973, the President of the
Philippines ordered "that the provisions of Section 3 of Presidential Decree No. 73 in so far as
they allow free public discussion of the proposed constitution, as well as my order of December
17, 1972 temporarily suspending the effects of Proclamation No. 1081 for the purpose of free and
open debate on the proposed constitution, be suspended in the meantime." It is, 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.

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It is my view, therefore, that Proclamation No. 1102 repugnant to the 1935 Constitution, and so it
is invalid, and should not be given effect. The Constitution of 1972 proposed by the 1971
Constitutional Convention should be considered as not yet ratified by the people of this Republic,
and so it should not be given force and effect.
It is urged by the Solicitor General, however, that the voting in the citizens assemblies was a
substantial compliance with the provisions of Article XV of the 1935 Constitution. The Solicitor
General maintains that the primary thrust of the provision of Article XV of the 1935 Constitution
is that "to be valid, amendments must gain the approval of the majority recognition of the
democratic postulate that sovereign resides in the people." It is not disputed that in a democratic
sovereignty resides in the people. But the term "people" must be understood in its constitutional
meaning, and they are "those persons who are permitted by the Constitution to exercise the
elective franchise." 8 Thus, in Section 2 of Article VII of the 1935 Constitution, it is provided that
"the President shall hold his office during a term of four years and, together with the VicePresident 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 case of Garchitorena vs.
Crescini 9, this Court, speaking through Mr. Justice Johnson, said, "In democracies, the people,
combined, represent the sovereign power of the State. Their sovereign authority is expressed
through the ballot, of the qualified voters, in duly appointed elections held from time to time, by
means of which they choose their officials for definite fixed periods, and to whom they entrust,
for the time being, as their representatives, the exercise of the powers of government." In the
case of Moya v. Del Fierro, 10 this Court, speaking through Mr. Justice Laurel, said, "As long as
popular government is an end to be achieved and safeguarded, suffrage, whatever may be the
modality and form devised, must continue to be the means by which the great reservoir of power
must be emptied into the receptacular agencies wrought by the people through their Constitution
in the interest of good government and the common weal. Republicanism, in so far as it implies
the adoption of a representative type of government, necessarily points to the enfranchised
citizen as a particle of popular sovereignty and as the ultimate source of the established
authority." And in the case of Abanil v. Justice of the Peace of Bacolod, 11 this Court said: "In the
scheme of our present republican government, the people are allowed to have a voice therein
through the instrumentality of suffrage to be availed of by those possessing certain prescribed
qualifications. The people, in clothing a citizen with the elective franchise for the purpose of
securing a consistent and perpetual administration of the government they ordain, charge him
with the performance of a duty in the nature of a public trust, and in that respect constitute him
a representative of the whole people. This duty requires that the privilege thus bestowed
exclusively for the benefit of the citizen or class of citizens professing it, but in good faith and
with an intelligent zeal for the general benefit and welfare of the state. (U.S. v. Cruikshauk, 92
U.S. 588)..." There is no question, therefore, that when we talk of sovereign people, what is
meant are the people who act through the duly qualified and registered voters who vote during
an election that is held as provided in the Constitution or in the law.
The term "election" as used in Section 1 of Article XV of the 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

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

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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 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 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.
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.

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FERNANDO, J., dissenting:


No question more momentous, none impressed with such transcendental significance is likely to
confront this Court in the near or distant future as that posed by these petitions. For while the
specific substantive issue is the validity of Presidential Proclamation No. 1102, an adverse
judgment may be fraught with consequences that, to say the least, are far-reaching in its
implications. As stressed by respondents, "what petitioners really seek to invalidate is the new
Constitution." 1 Strict accuracy would of course qualify such statement that what is in dispute, as
noted in the opinion of the Chief Justice, goes only as far as the validity of its ratification. It could
very well be though that the ultimate outcome is not confined within such limit, and this is not to
deny that under its aegis, there have been marked gains in the social and economic sphere, but
given the premise of continuity in a regime under a fundamental law, which itself explicitly
recognizes the need for change and the process for bringing it about, 2 it seems to me that the
more appropriate course is this Court to give heed to the plea of petitioners that the most serious
attention be paid to their submission that the challenged executive act fails to meet the test of
constitutionality. Under the circumstances, with regret and with due respect for the opinion of my
brethren, I must perforce dissent. It would follow therefore that the legal position taken by the
Chief Justice as set forth with his usual lucidity and thoroughness has, on the whole, my
concurrence, subject, of course, to reservations insofar as it contains views and nuances to which
I have in the past expressed doubts. Nonetheless, I feel that a brief expression of the reasons for
the stand I take would not be amiss.
In coping with its responsibility arising from the function of judicial review, this Court is not
expected to be an oracle given to utterances of eternal verities, but certainly it is more than just
a keen but passive observer of the contemporary scene. It is, by virtue of its role under the
separation of powers concept, involved not necessarily as a participant in the formation of
government policy, but as an arbiter of its legality. Even then, there is realism in what Lerner did
say about the American Supreme Court as "the focal point of a set of dynamic forces which
[could play] havoc with the landmarks of the American state and determine the power
configuration of the day." 3 That is why there is this caveat. In the United States as here, the
exercise of the power of judicial review is conditioned on the necessity that the decision of a case
or controversy before it so requires. To repeat, the Justices of the highest tribunal are not, as
Justice Frankfurter made clear, "architects of policy. They can nullify the policy of others, they are
incapable of fashioning their own solutions for social problems." 4 Nonetheless, as was stressed
by Professors Black 5 and Murphy, 6 a Supreme Court by the conclusion it reaches and the
decision it renders does not merely check the coordinate branches, but also by its approval
stamps with legitimacy the action taken. Thus in affirming constitutional supremacy, the political
departments could seek the aid of the judiciary. For the assent it gives to what has been done
conduces to its 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 to be tested in the light of the fundamental doctrine of separation of powers that it
is not only the function but the solemn duty of the judiciary to determine what the law is and to
apply it in cases and controversies that call for decision. 7 Since the Constitution pre-eminently
occupies the highest rung in the hierarchy of legal norms, it is in the judiciary, ultimately this
Tribunal, that such a responsibility is vested. With the 1935 Constitution containing, as above
noted, an explicit article on the subject of amendments, it would follow that the presumption to

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be indulged in is that the question of whether there has been deference to its terms is for this
Court to pass upon. What is more, the Gonzales, 8 Tolentino 9 and Planas 10 cases speak
unequivocally to that effect. Nor is it a valid objection to this conclusion that what was involved
in those cases was the legality of the submission and not ratification, for from the very language
of the controlling article, the two vital steps are proposal and ratification, which as pointed out in
Dillon v. Gloss, 11 "cannot be treated as unrelated acts, but as succeeding steps in a single
endeavor." 12 Once an aspect thereof is viewed as judicial, there would be no justification for
considering the rest as devoid of that character. It would be for me then an indefensible retreat,
deriving no justification from circumstances of weight and gravity, if this Court were to accede to
what is sought by respondents and rule that the question before us is political.
On this point, it may not be inappropriate to refer to a separate opinion of mine in Lansang v.
Garcia. 13 Thus: "The term has been made applicable to controversies clearly non-judicial and
therefore beyond its jurisdiction or to an issue involved in a case appropriately subject to its
cognizance, as to which there has been a prior legislative or executive determination to which
deference must be paid. It has likewise been employed loosely to characterize a suit where the
party proceeded against is the President or Congress, or any branch thereof. If to be delimited
with accuracy, "political questions" should refer to such as would under the Constitution be
decided by the people in their sovereign capacity or in regard to full discretionary authority is
vested either in the President or Congress. It is thus beyond the competence of the judiciary to
pass upon. Unless clearly falling within the formulation, the decision reached by the political
branches whether in the form of a congressional act or an executive order could be tested in
court. Where private rights are affected, the judiciary has no choice but to look into its validity. It
is not to be lost sight of that such a power comes into play if there be an appropriate proceeding
that may be filed only after each coordinate branch has acted. Even when the Presidency or
Congress possesses plenary powers, its improvident exercise or the abuse thereof, if shown, may
give rise to a justiciable controversy. For the constitutional grant of authority is usually
unrestricted. There are limits to what may be done and how it is to be accomplished. Necessarily
then, the courts in the proper exercise of judicial review could inquire into the question of
whether or not either of the two coordinate branches has adhered to what is laid down by the
Constitution. The question thus posed is judicial rather than political." 14 The view entertained
by Professor Dodd is not too dissimilar. For him such a term "is employed to designate certain
types of functions committed to the political organs of government (the legislative and executive
departments, or either of them) and not subject to judicial investigation." 15 After a thorough
study of American judicial decisions, both federal and state, he could conclude: "The field of
judicial nonenforceability is important, but is not large when contrasted with the whole body of
written constitutional texts. The exceptions from judicial enforceability fall primarily within the
field of public or governmental interests." 16 Nor was Professor Weston's formulation any
different. As was expressed by him: "Judicial questions, in what may be thought the more useful
sense, are those which the sovereign has set to be decided in the courts. Political questions,
similarly, are those which the sovereign has entrusted to the so-called political departments of
government or has reserved to be settled by its own extra-governmental action." 17 What
appears undeniable then both from the standpoint of Philippine as well as American decisions is
the care and circumspection required before the conclusion is warranted that the matter at issue
is beyond judicial cognizance, a political question being raised.
2.
The submission of respondents on this subject of political question, admittedly one of
complexity and importance, deserves to be pursued further. They would derive much aid and
comfort from the writings of both Professor Bickel 18 of Yale and Professor Freund 19 of Harvard,
both of whom in turn are unabashed admirers of Justice Brandeis. Whatever be the merit
inherent in their lack of enthusiasm for a more active and positive role that must be played by
the United States Supreme Court in constitutional litigation, it must be judged in the light of our
own history. It cannot be denied that from the well nigh four decades of constitutionalism in the
Philippines, even discounting an almost similar period of time dating from the inception of
American sovereignty, there has sprung a tradition of what has been aptly termed as judicial
activism. Such an approach could be traced to the valedictory address before the 1935
Constitutional Convention of Claro M. Recto. He spoke of the trust reposed in the judiciary in
these words: "It is one of the paradoxes of democracy that the people at times place more
confidence in instrumentalities of the State other than those directly chosen by them for the
exercise of their sovereignty." 20 It would thus appear that even then this Court was expected
not to assume an attitude of timidity and hesitancy when a constitutional question is posed.
There was the assumption of course that it would face up to such a task, without regard to
political considerations and with no thought except that of discharging its trust. Witness these
words Justice Laurel in an early landmark case, People v. Vera, 21 decided in 1937: "If it is ever
necessary for us to make vehement affirmance during this formative period of political history, it
is that we are independent of the Executive no less than of the Legislative department of our
government independent in the performance of our functions, undeterred by any
consideration, free from politics, indifferent to popularity, and unafraid of criticism in the
accomplishment of our sworn duty as we see it and as we understand it." 22 The hope of course
was that such assertion of independence impartiality was not mere rhetoric. That is a matter
more appropriately left to others to determine. It suffices to stake that what elicits approval on
the part of our people of a judiciary ever alert to inquire into alleged breaches of the

103

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 Angara v. Electoral
Commission 23 to Planas v. Commission on Elections. 24 It should continue to exercise its
jurisdiction, even in the face of a plausible but not sufficiently persuasive insistence that the
matter before it is political.
Nor am I persuaded that the reading of the current drift in American legal scholarship by the
Solicitor-General and his equally able associates presents the whole picture. On the question of
judicial review, it is not a case of black and white; there are shaded areas. It goes too far, in my
view, if the perspective is one of dissatisfaction, with its overtones of distrust. This expression of
disapproval has not escaped Dean Rostow of Yale, who began one of his most celebrated legal
essays. The Democratic Character of Judicial Review, thus: "A theme of uneasiness, and even of
guilt, colors the literature about judicial review. Many of those who have talked, lectured, and
written about the Constitution have been troubled by a sense that judicial review is
undemocratic." 25 He went on to state: "Judicial review, they have urged, is an undemocratic
shoot on an otherwise respectable tree. It should be cut off, or at least kept pruned and
inconspicuous." 26 His view was precisely the opposite. Thus: "The power of constitutional
review, to be exercised by some part of the government, is implicit in the conception of a written
constitution delegating limited powers. A written constitution would promote discord rather than
order in society if there were no accepted authority to construe it, at the least in case of
conflicting action by different branches of government or of constitutionally unauthorized
governmental action against individuals. The limitation and separation of powers, if they are to
survive, require a procedure for independent mediation and construction to reconcile the
inevitable disputes over the boundaries of constitutional power which arise in the process of
government." 27 More than that, he took pains to emphasize: "Whether another method of
enforcing the Constitution could have been devised, the short answer is that no such method
developed. The argument over the constitutionality of judicial review has long since been settled
by history. The power and duty of the Supreme Court to declare statutes or executive action
unconstitutional in appropriate cases is part of the living Constitution. 'The course of
constitutional history,' Mr. Justice Frankfurter recently remarked, 'has cast responsibilities upon
the Supreme Court which it would be "stultification" for it to evade.' " 28 Nor is it only Dean
Rostow who could point Frankfurter, reputed to belong to the same school of thought opposed to
judicial activism, if not its leading advocate during his long stay in the United States Supreme
Court, as one fully cognizant of the stigma that attaches to a tribunal which neglects to meet the
demands of judicial review. There is a statement of similar importance from Professor Mason: "In
Stein v. New York Frankfurter remarked, somewhat self-consciously perhaps, that the 'duty of
deference cannot be allowed imperceptibly to slide into abdication.' " 29 Professor Konefsky, like
Dean Rostow, could not accept characterization of judicial review as undemocratic. Thus his
study of Holmes and Brandeis, the following appears: "When it is said that judicial review is an
undemocratic feature of our political system, it ought also to be remembered that architects of
that system did not equate constitutional government with unbridled majority rule. Out of their
concern for political stability and security for private rights, ..., they designed a structure whose
keystone was to consist of barriers to the untrammeled exercise of power by any group. They
perceived no contradiction between effective government and constitutional checks. To James
Madison, who may legitimately be regarded as the philosopher of the Constitution, the scheme of
mutual restraints was the best answer to what he viewed as the chief problem in erecting a
system of free representative government: 'In framing a government which is to be administered
by men over men, the great difficulty lies in this: you must first enable the government to control
the governed; and in the next place oblige it to control itself.' " 30
There is thus an inevitability to the flowering of judicial review. Could it be that the tone of
discontent apparent in the writings of eminent authorities on the subject evince at the most fears
that the American Supreme Court might overstep the bounds allotted to the judiciary? It cannot
be a denial of the fitness of such competence being vested in judges and of their being called
upon to fulfill such a trust whenever appropriate to the decision of a case before them. That is
why it has been correctly maintained that notwithstanding the absence of any explicit provision
in the fundamental law of the United States Constitution, that distinguished American
constitutional historian, Professor Corwin, could rightfully state that judicial review "is simply
incidental to the power of courts to interpret the law, of which the Constitution is part, in
connection with the decision of cases." 31 This is not to deny that there are those who would
place the blame or the credit, depending upon one's predilection, on Marshall's epochal opinion

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in Marbury v. Madison. 32 Curtis belonged to that persuasion. As he put it: "The problem was
given no answer by the Constitution. A hole was left where the Court might drive in the peg of
judicial supremacy, if it could. And that is what John Marshall did." 33 At any rate there was
something in the soil of American juristic thought resulting in this tree of judicial power so
precariously planted by Marshall striking deep roots and showing wonderful vitality and
hardiness. It now dominates the American legal scene. Through it, Chief Justice Hughes, before
occupying that exalted position, could state in a lecture: "We are under a Constitution, but the
Constitution is what the judges say it is ... ." 34 The above statement is more than just an
aphorism that lends itself to inclusion in judicial anthologies or bar association speeches. It could
and did provoke from Justice Jackson, an exponent of the judicial restraint school of thought, this
meaningful query: "The Constitution nowhere provides that it shall be what the judges say it is.
How, did it come about that the statement not only could be but could become current as the
most understandable comprehensive summary of American Constitutional law?" 35 It is no
wonder that Professor Haines could pithily and succinctly sum up the place of the highest
American tribunal in the scheme of things in this wise: "The Supreme Court of the United States
has come to be regarded as the unique feature of the American governmental system." 36 Let
me not be misunderstood. There is here no attempt to close one's eyes to a discernible tendency
on the part of some distinguished faculty minds to look askance at what for them may be
inadvisable extension of judicial authority. For such indeed is the case as reflected in two leading
cases of recent vintage, Baker v. Carr, 37 decided in 1962 and Powell v. MacCormack, 38 in 1969,
both noted in the opinion of the Chief Justice. The former disregarded the warning of Justice
Frankfurter in Colegrove v. Green 39 about the American Supreme Court declining jurisdiction on
the question of apportionment as to do so would cut very deep into the very being of Congress."
40 For him, the judiciary "ought not to enter this political thicket." Baker has since then been
followed; it has spawned a host of cases. 41 Powell, on the question of the power of a legislative
body to exclude from its ranks a person whose qualifications are uncontested, for many the very
staple of what is essentially political, certainly goes even further than the authoritative Philippine
decision of Vera v. Avelino, 42 It does look then that even in the United States, the plea for
judicial self-restraint, even if given voice by those competent in the field of constitutional law,
has fallen on deaf ears. There is in the comments of respondents an excerpt from Professor
Freund quoting from one of his essays appearing in a volume published in 1968. It is not without
interest to note that in another paper, also included therein, he was less than assertive about the
necessity for self-restraint and apparently mindful of the claims of judicial activism. Thus: "First of
all, the Court has a responsibility to maintain the constitutional order, the distribution of public
power, and the limitations on that power." 43 As for Professor Bickel, it has been said that as
counsel for the New York Times in the famous Vietnam papers case, 44 he was less than insistent
on the American Supreme Court exercising judicial self-restraint. There are signs that the
contending forces on such question, for some an unequal contest, are now quiescent. The fervor
that characterized the expression of their respective points of view appears to have been
minimized. Not that it is to be expected that it will entirely disappear, considering how dearly
cherished are, for each group, the convictions, prejudices one might even say, entertained. At
least what once was fitly characterized as the booming guns of rhetoric, coming from both
directions, have been muted. Of late, scholarly disputations have been centered on the
standards that should govern the exercise of the power of judicial review. In his celebrated
Holmes lecture in 1959 at the Harvard Law School, Professor Wechsler advocated as basis for
decision what he termed neutral principles of constitutional law. 45 It has brought forth a
plethora of law review articles, the reaction ranging from guarded conformity to caustic criticism.
46 There was, to be sure, no clear call to a court in effect abandoning the responsibility
incumbent on it to keep governmental agencies within constitutional channels. The matter has
been put in temperate terms by Professor Frank thus: "When allowance has been made for all
factors, it nevertheless seems to me that the doctrine of political questions ought to be very
sharply confined to where the functional reasons justify it and that in a give involving its
expansion there should be careful consideration also of the social considerations which may
militate against it. The doctrine has a certain specious charm because of its nice intellectualism
and because of the fine deference it permits to expertise, to secret knowledge, and to the
prerogatives of others. It should not be allowed to grow as a merely intellectual plant." 47
It is difficult for me at least, not to be swayed by appraisal, coming from such impeccable
sources of the worth and significance of judicial review in the United States. I cannot resist the
conclusion then that the views advanced on this subject by distinguished counsel for petitioners,
with 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 due recognition of its force in constitutional litigation, 48 if my reading of the events and the
process that led to such proclamation, so clearly set forth in the opinion of the Chief Justice, is
not inaccurate, then it cannot be confidently asserted that there was such compliance. It would
be to rely on conjectural assumptions that did founder on the rock of the undisputed facts. Any

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other conclusion would, for me, require an interpretation that borders on the strained. So it has
to be if one does not lose sight of how the article on amendments is phrased. A word, to
paraphrase Justice Holmes may not be a crystal, transparent and unchanged, but it is not, to
borrow from Learned Hand, that eminent jurist, a rubber band either. It would be unwarranted in
my view then to assert that the requirements of the 1935 Constitution have been met. There are
American decisions, 49 and they are not few in number, which require that there be obedience to
the literal terms of the applicable provision. It is understandable why it should be thus. If the
Constitution is the supreme law, then its mandate must be fulfilled. No evasion is tolerated.
Submission to its commands can be shown only if each and every word is given meaning rather
than ignored or disregarded. This is not to deny that a recognition conclusive effect attached to
the electorate manifesting its will to vote affirmatively on the amendments proposed poses an
obstacle to the judiciary being insistent on the utmost regularity. Briefly stated, substantial
compliance is enough. A great many American State decisions may be cited in support of such a
doctrine. 50
Even if the assumption be indulged in that Article XV is not phrased in terms too clear to be
misread, so that this Court is called upon to give meaning and perspective to what could be
considered words of vague generality, pregnant with uncertainty, still whatever obscurity it
possesses is illumined when the light of the previous legislation is thrown on it. In the first
Commonwealth Act, 51 submitting to the Filipino people for approval or disapproval certain
amendments to the original ordinance appended to the 1935 Constitution, it was made that the
election for such purpose was to "be conducted in conformity with the provisions of the Election
Code insofar as the same may be applicable." 52 Then came the statute, 53 calling for the
plebiscite on the three 1940 amendments providing for the plebiscite on the three 1930
amendments providing for a bicameral Congress or a Senate and a House of Representatives to
take the place of a unicameral National Assembly, 54 reducing the term of the President to four
years but allowing his re-election with the limitation that he cannot serve more than eight
consecutive years, 55 and creating an independent Commission on Elections. 56 Again, it was
expressly provided that the election "shall be conducted in conformity with the provisions of the
Election Code in so far as the same may be applicable." 57 The approval of the present parity
amendment was by virtue of a Republic Act 58 which specifically made applicable the then
Election Code. 59 There is a similar provision in the
legislation, 60 which in cotemplation of the 1971 Constitutional Convention, saw to it that there
be an increase in the membership of the House of Representatives a maximum of one hundred
eighty and assured the eligibility of senators and representatives to become members of such
constituent body without forfeiting their seats, as proposed amendments to be voted on in the
1967 elections. 61 That is the consistent course of interpretation followed by the legislative
branch. It is most persuasive, if not controlling. The restraints thus imposed would set limits to
the Presidential action taken, even on the assumption that either as an agent of the
Constitutional Convention or under his martial law prerogatives, he was not devoid of power to
specify the mode of ratification. On two vital points, who can vote and how they register their
will, Article XV had been given a definitive construction. That is why I fail to see sufficient
justification for this Court affixing the imprimatur of its approval on the mode employed for the
ratification of the revised Constitution as reflected in Proclamation No. 1102.
4.
Nor is the matter before us solely to be determined by the failure to comply with the
requirements of Article XV. Independently of the lack of validity of the ratification of the new
Constitution, if it be accepted by the people, in whom sovereignty resides according to the
Constitution, 62 then this Court cannot refuse to yield assent to such a political decision of the
utmost gravity, conclusive in its effect. Such a fundamental principle is meaningless if it does not
imply, to follow Laski, that the nation as a whole constitutes the "single center of ultimate
reference," necessarily the possessor of that "power that is able to resolve disputes by saying the
last word." 63 If the origins of the democratic polity enshrined in the 1935 Constitution with the
declaration that the Philippines is a republican state could be traced back to Athens and to Rome,
it is no doubt true, as McIver pointed out, that only with the recognition of the nation as the
separate political unit in public law is there the juridical recognition of the people composing it
"as the source of political authority." 64 From them, as Corwin did stress, emanate "the highest
possible embodiment of human will," 65 which is supreme and must be obeyed. To avoid any
confusion and in the interest of clarity, it should be expressed in the manner ordained by law.
Even if such is not the case, however, once it is manifested, it is to be accepted as final and
authoritative. The government which is merely an agency to register its commands has no choice
but to submit. Its officials must act accordingly. No agency is exempt such a duty, not even this
Court. In that sense, the lack of regularity in the method employed to register its wishes is fatal
in its consequences. Once the fact of acceptance by people of a new fundamental law is made
evident, the judiciary is left with no choice but to accord it recognition. The obligation to render it
obeisance falls on the courts as well.
There are American State decisions that enunciate such a doctrine. While certainly not
controlling, they are not entirely bereft of persuasive significance. In Miller v. Johnson, 66 decided
in 1892, it was set forth in the opinion of Chief Justice Holt that on May 3, 1890, an act was
passed in Kentucky, providing for the calling of a convention for the purpose of framing a new
constitution and the election of delegates. It provided that before any form of constitution made

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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 action was brought to challenge its validity. It failed in the
lower court. In affirming such judgment dismissing the action, Chief Justice Holt stated: "If a set
of men, not selected by the people according to the forms of law, were to formulate an
instrument and declare it the constitution, it would undoubtedly be the duty of the courts to
declare its work a nullity. This would be revolution, and this the courts of the existing government
must resist until they are overturned by power, and a new government established. The
convention, however, was the offspring of law. The instrument which we are asked to declare
invalid as a constitution has been made and promulgated according to the forms of law. It is a
matter of current history that both the executive and legislative branches of the government
have recognized its validity as a constitution, and are now daily doing so. ... While the judiciary
should protect the rights of the people with great care and jealousy, because this is its duty, and
also because; in times of great popular excitement, it is usually their last resort, yet it should at
the same time be careful not to overstep the proper bounds of its power, as being perhaps
equally dangerous; and especially where such momentous results might follow as would be likely
in this instance, if the power of the judiciary permitted, and its duty requires, the overthrow of
the work of the convention." 67 In Taylor v. Commonwealth, 68 a 1903 decision, it was contended
that the Virginia Constitution reclaimed in 1902 is invalid as it was ordained and promulgated by
the convention without being submitted for ratification or rejection by the people. The Court
rejected such a view. As stated in the opinion of Justice Harrison: "The Constitution of 1902 was
ordained and proclaimed by a convention duly called by direct vote of the people of the state to
revise and amend the Constitution of 1869. The result of the work of the convention has been
recognized, accepted, and acted upon as the only valid Constitution of the state by the Governor
in swearing fidelity to it and proclaiming it, as directed thereby; by the Legislature in its formal
official act adopting a joint resolution, July 15, 1902, recognizing the Constitution ordained by the
convention which assembled in the city of Richmond on the 12th day of June, 1901, as the
Constitution of Virginia; by the individual oaths of members to support it, and by enforcing its
provisions; and the people in their primary capacity by peacefully accepting it and acquiescing in
it, by registering as voters under it to the extent of thousands throughout the state, and by
voting, under its provisions, at a general election for their representatives in the Congress of the
United States. The Constitution having been thus acknowledged and accepted by the office
administering the government and by the people of the state, and there being no government in
existence under the Constitution of 1869 opposing or denying its validity, we have no difficulty in
holding that the Constitution in question, which went into effect at noon on the 10th day of July,
1902, is the only rightful, valid, and existing Constitution of this state, and that to it all the
citizens of Virginia owe their obedience and loyal allegiance." 69
It cannot be plausibly asserted then that premises valid in law are lacking for the claim that the
revised Constitution has been accepted by the Filipino people. What is more, so it has been
argued, it is not merely a case of its being implied. Through the Citizens Assemblies, there was a
plebiscite with the result as indicated in Proclamation No. 1102. From the standpoint of
respondents then, they could allege that there was more than just mere acquiescence by the
sovereign people. Its will was thus expressed formally and unmistakably. It may be added that
there was nothing inherently objectionable in the informal method followed in ascertaining its
preference. Nor is the fact that Filipinos of both sexes above the age of fifteen were given the
opportunity to vote to be deplored. The greater the base of mass participation, the more there is
fealty to the democratic concept. It does logically follow likewise that such circumstances being
conceded, then no justifiable question may be raised. This Court is to respect what had thus
received the people's sanction. That is not for me though whole of it. Further scrutiny even then
is not entirely foreclosed. There is still an aspect that is judicial, an inquiry may be had as to
whether such indeed was the result. This is 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

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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 considerations that exert a compulsion
not easy to resist. It can be asserted with truth, especially in the field of social and economic
rights, that with the revised Constitution, there is an auspicious beginning for further progress.
Then too it could resolve what appeared to be the deepening contradictions of political life,
reducing at times governmental authority to near impotence and imparting a sense of
disillusionment in democratic processes. It is not too much to say therefore that there had indeed
been the revision of a fundamental law to vitalize the very values out of which democracy grows.
It is one which has all the earmarks of being responsive to the dominant needs of the times. It
represents an outlook cognizant of the tensions of a turbulent era that is the present. That is why
for some what was done represented an act of courage and faith, coupled with the hope that the
solution arrived at is a harbinger of a bright and rosy future.
It is such a comfort then that even if my appraisal of the situation had commanded a majority,
there is not, while these lawsuits are being further considered, the least interference, with the
executive department. The President in the discharge of all his functions is entitled to obedience.
He remains commander-in-chief with all the constitutional powers it implies. Public officials can
go about their accustomed tasks in accordance with the revised Constitution. They can pursue
even the tenor of their ways. They are free to act according to its tenets. That was so these past
few weeks, even petitions were filed. There was not at any time any thought of any restraining
order. So it was before. That is how things are expected to remain even if the motions to dismiss
were not granted. It might be asked though, suppose the petitions should prevail? What then?
Even so, the decision of this Court need not be executory right away. Such a disposition of a case
before this Court is not novel. That was how it was done in the Emergency Powers Act
controversy. 70 Once compliance is had with the requirements of Article XV of the 1935
Constitution, to assure that the coming force of the revised charter is free from any taint of
infirmity, then all doubts are set at rest.
For some, to so view the question before us is to be caught in a web of unreality, to cherish
illusions that cannot stand the test of actuality. What is more, it may give the impression of
reliance on what may, for the practical man of affairs, be no more than gossamer distinctions
and sterile refinements unrelated to events. That may be so, but I find it impossible to transcend
what for me are the implications of traditional constitutionalism. This is not to assert that an
occupant of the bench is bound to apply with undeviating rigidity doctrines which may have
served their day. He could at times even look upon them as mere scribblings in the sands to be
washed away by the advancing tides of the present. The introduction of novel concepts may be
carried only so far though. As Cardozo put the matter: "The judge, even when he is free, is still
not wholly free. He is not to innovate at pleasure. He is not a knight-errant, roaming at will in
pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated
principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He
is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system,
and subordinated to "the primordial necessity of order in the social life." Wide enough in all
conscience is the field of discretion that remains." 71 Moreover what made it difficult for this
Court to apply settled principles, which for me have not lost their validity, is traceable to the fact
that the revised Constitution was made to take effect immediately upon ratification. If a period of
time were allowed to elapse precisely to enable the judicial power to be exercised, no
complication would have arisen. Likewise, had there been only one or two amendments, no such
problem would be before us. That is why I do not see sufficient justification for the orthodoxies of
constitutional law not to operate.
Even with full realization then that the approach pursued is not all that it ought to have been and
the process of reasoning not without its shortcomings, the basic premises of a constitutional
democracy, as I understand them and as set forth in the preceding pages, compel me to vote the
way I did.
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.

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The unprecedented and precedent-setting issue submitted by petitioners for the Court's
resolution is the validity and constitutionality of Presidential Proclamation No. 1102 issued on
January 17, 1973, certifying and proclaiming that the Constitution proposed by the 1971
Constitutional Convention "has been ratified by an overwhelming majority of all the votes cast by
the members of all the Barangays (Citizens Assemblies) throughout the Philippines, and has
thereby come into effect."
More specifically, the issue submitted is whether the purported ratification of the proposed
Constitution by means of the Citizens Assemblies has substantially complied with the mandate of
Article XV of the existing Constitution of 1935 that duly proposed amendments thereto, in toto or
parts thereof, "shall be valid as part of this Constitution when approved by a majority of the
votes cast at an election at which the amendments are submitted to the people for their
ratification." 1
A necessary corollary issue is whether the purported ratification of the proposed Constitution as
signed on November 30, 1972 by the 1971 Constitutional Convention may be said also to have
substantially complied with its own mandate that "(T)his Constitution shall take immediately
upon its ratification by a majority of the votes cast in a plebiscite called for the purpose and
except as herein provided, shall supersede the Constitution of Nineteen hundred and thirty-five
and all amendments thereto." 2
Respondents contend that "(A)lthough apparently what is 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. ... Alternatively, or contemporaneously, he did so as "agent" of the Constitutional
Convention;"
"alleged defects, such as absence of secret voting, enfranchisement of persons less than 21
years, non supervision (by) the Comelec are matters not required by Article XV of the 1935
Constitution"; (sic)
"after ratification, whatever defects there might have been in the procedure are overcome and
mooted (and muted) by the fact of ratification"; and
"(A)ssuming finally that Article XV of the 1935 Constitution was not strictly followed, the
ratification of the new Constitution must nonetheless be respected. For the procedure outlined in
Article XV was not intended to be exclusive of other procedures, especially one which
contemplates popular and direct participation of the citizenry ... ." 3
To test the validity of respondents' submittal that the Court, in annulling Proclamation No. 1102
would really be "invalidating the new Constitution", the terms and premises of the issues have to
be defined.
Respondents themselves assert that "Proclamation No. 1102 ... is plainly merely declaratory of
the fact that the 1973 Constitution has been ratified and has come into force. 4
The measure of the fact of ratification is Article XV of the 1935 Constitution. This has been
consistently held by the Court in the Gonzales: 5 and Tolentino 6 cases.
In the Tolentino case, this Court emphasized "that the provisions of Section 1 of Article XV of
the Constitution, dealing with the procedure or manner of amending the fundamental law are
binding upon the Convention and the other departments of the government. It must be added
that ... they are no less binding upon the people." 7
In the same Tolentino case, this Court further proclaimed that "as long as any amendment is
formulated and submitted under the aegis of the present Charter, any proposal for such
amendment which is not in conformity with the letter, spirit and intent of the Charter for
effecting amendments, cannot receive the sanction of this Court." 8
As continues to be held by a majority of this Court, proposed amendments to the Constitution
"should be ratified in only one way, that is, in an election or plebiscite held in accordance with

109

law and participated in only by qualified and duly registered voters" 9 and under the supervision
of the Commission on Elections. 10
Hence, if the Court declares Proclamation 1102 null and void because on its face, the
purported ratification of the proposed Constitution has not faithfully nor substantially observed
nor complied with the mandatory requirements of Article XV of the (1935) Constitution, it would
not be "invalidating" the proposed new Constitution but would be simply declaring that the
announced fact of ratification thereof by means of the Citizens Assemblies referendums does not
pass the constitutional test and that the proposed new Constitution has not constitutionally come
into existence.
Since Proclamation 1102 is acknowledged by respondent to be "plainly merely declaratory" of
the disputed fact of ratification, they cannot assume the very fact to be established and beg the
issue by citing the self-same declaration as proof of the purported ratification therein declared.
What complicates the cases at bar is the fact that the proposed 1972 Constitution was enforced
as having immediately taken effect upon the issuance on January 17, 1973 of Proclamation 1102
and the question of whether "confusion and disorder in government affairs would (not) result"
from a judicial declaration of nullity of the purported ratification is raised by the Solicitor-General
on behalf of respondents.
A comparable precedent of great crisis proportions is found in the Emergency Powers cases, 11
wherein the Court in its Resolution of September 16, 1949 after judgment was initially not
obtained on August 26, 1949 for lack of the required six (6) votes, finally declared in effect that
the pre-war emergency powers delegated by Congress to the President, under Commonwealth
Act 671 in pursuance of Article VI, section 26 of the Constitution, had ceased and became
inoperative at the latest in May, 1946 when Congress met in its first regular session on May 25,
1946.
Then Chief Justice Manuel V. Moran recited the great interests and important rights that had
arisen under executive orders "issued in good faith and with the best of intentions by three
successive Presidents, and some of them may have already produced extensive effects on the
life of the nation" in the same manner as may have arisen under the bona fide acts of the
President now in the honest belief that the 1972 Constitution had been validly ratified by means
of the Citizens Assemblies referendums and indicated the proper course and solution therefor,
which were duly abided by and confusion and disorder as well as harm to public interest and
innocent parties thereby avoided as follows:
Upon the other hand, while I believe that the emergency powers had ceased in June 1945, I am
not prepared to hold that all executive orders issued thereafter under Commonwealth Act No.
671, are per se null and void. It must be borne in mind that these executive orders had been
issued in good faith and with the best of intentions by three successive Presidents, and some of
them may have already produced extensive effects in the life of the nation. We have, for
instance, Executive Order No. 73, issued on November 12, 1945, appropriating the sum of
P6,750,000 for public works; Executive Order No. 86, issued on January 7, 1946, amending a
previous order regarding the organization of the Supreme Court; Executive Order No. 89, issued
on January 1, 1946, reorganizing Courts of First Instance; Executive Order No. 184, issued on
November 19, 1948, controlling rice and palay to combat hunger; and other executive orders
appropriating funds for other purposes. The consequences of a blanket nullification of all these
executive orders will be unquestionably serious and harmful. And I hold that before nullifying
them, other important circumstances should be inquired into, as for instance, whether or not
they have been ratified by Congress expressly or impliedly, whether their purposes have already
been accomplished entirely or partially, and in the last instance, to what extent; acquiescence of
litigants; de facto officers; acts and contracts of parties acting in good faith; etc. It is my opinion
that each executive order must be viewed in the light of its peculiar circumstances, and, if
necessary and possible, nullifying it, precautionary measures should be taken to avoid harm to
public interest and innocent parties. 12
Initially, then Chief Justice Moran voted with a majority of the Court to grant the Araneta and
Guerrero petitions holding null and void the executive orders on rentals and export control but to
defer judgment on the Rodriguez and Barredo petitions for judicial declarations of nullity of the
executive orders appropriating the 1949-1950 fiscal year budget for the government and P6
million for the holding of the 1949 national elections. After rehearsing, he further voted to also
declare null and void the last two executive orders appropriating funds for the 1949 budget and
elections, completing the "sufficient majority" of six against four dissenting justices "to
pronounce a valid judgment on that matter." 13
Then Chief Justice Moran, who penned the Court's majority resolution, explained his vote for
annulment despite the great difficulties and possible "harmful consequences" in the following
passage, which bears re-reading:

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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 session till it approves the legislative measures
most needed by the country.
Democracy is on trial in the Philippines, and surely it will emerge victorious as a permanent way
of life in this country, if each of the great branches of the Government, within its own allocated
sphere, complies with its own constitutional duty, uncompromisingly and regardless of
difficulties.
Our Republic is still young, and the vital principles underlying its organic structure should be
maintained firm and strong, hard as the best of steel, so as to insure its growth and development
along solid lines of a stable and vigorous democracy. 14
The late Justice Pedro Tuason who penned the initial majority judgment (declaring null and void
the rental and export control executive orders) likewise observed that "(T)he truth is that under
our concept of constitutional government, in times of extreme perils more than in normal
circumstances 'the various branches, executive, legislative, and judicial,' given the ability to act,
are called upon 'to perform the duties discharge the responsibilities committed to respectively.' "
15
It should be duly acknowledged that the Court's task of discharging its duty and responsibility
has been considerably lightened by the President's public manifestation of adherence to
constitutional processes and of working within the proper constitutional framework as per his
press conference of January 20,1973, wherein he stated that "(T)he Supreme Court is the final
arbiter of the Constitution. It can and will probably determine the validity of this Constitution. I
did not want to talk about this because actually there is a case pending before the Supreme
Court. But suffice it to say that I recognize the power of the Supreme Court. With respect to
appointments, the matter falls under a general provision which authorizes the Prime Minister to
appoint additional members to the Supreme Court. Until the matter of the new Constitution is
decided, I have no intention of utilizing that power." 16
Thus, it is that as in an analogous situation wherein the state Supreme Court of Mississippi held
that the questions of whether the submission of the proposed constitutional amendment of the
State Constitution providing for an elective, instead of an appointive, judiciary and whether the
proposition was in fact adopted, were justifiable and not political questions, we may echo the
words therein of Chief Justice Whitfield that "(W)e do not seek a jurisdiction not imposed upon us
by the Constitution. We could not, if we would, escape the exercise of that jurisdiction which the
Constitution has imposed upon us. In the particular instance in which we are now acting, our
duty to know what the Constitution of the state is, and in accordance with our oaths to support
and maintain it in its integrity, imposed on us a most difficult and embarrassing duty, one which
we have not sought, but one which, like all others, must be discharged." 17
In confronting the issues at bar, then, with due regard for my colleagues' contrary views, we are
faced with the hard choice of maintaining a firm and strict perhaps, even rigid stand that
the Constitution is a "superior paramount law, unchangeable by ordinary means" save in the
particular mode and manner prescribed therein by the people, who, in Cooley's words, so "tied
up (not only) the hands of their official agencies, but their own hands as well" 18 in the exercise
of their sovereign will or a liberal and flexible stand that would consider compliance with the
constitutional article on the amending process as merely directory rather than mandatory.

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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 cast an
election at which the amendments are submitted to the people for their ratification", 19
participated in only by qualified and duly registered voters twenty-one years of age or over 20
and duly supervised by the Commission on Elections, 21 in accordance with the cited mandatory
constitutional requirements.
The alternative choice of a liberal stand would permit a disregard of said requirements on the
theory urged by respondents that "the procedure outlined in Article XV was not intended to be
exclusive of other procedures especially one which contemplates popular and direct participation
of the citizenry", 22 that the constitutional age and literacy requirements and other statutory
safeguards for ascertaining the will of the majority of the people may likewise be changed as
"suggested, if not prescribed, by the people (through the Citizens Assemblies) themselves", 23
and that the Comelec is constitutionally "mandated to oversee ... elections (of public officers)
and not plebiscites." 24
To paraphrase U.S. Chief Justice John Marshall who first declared in the historic 1803 case of
Marbury vs. Madison 25 the U.S. Supreme Court's power of judicial review and to declare void
laws repugnant to the Constitution, there is no middle ground between these two alternatives. As
Marshall expounded it: "(T)he Constitution is either a superior paramount law, unchangeable by
ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, alterable
when the legislature shall please to alter it. If the former part of the alternative be true, then a
legislative act, contrary to the Constitution, is not law; if the latter part be true, then written
constitutions are absurd attempts on the part of a people, to limit a power, in its own nature,
illimitable."
As was to be restated by Justice Jose P. Laurel a century and a third later in the 1936 landmark
case of Angara vs. Electoral Commission, 26 "(T)he Constitution sets forth in no uncertain
language the restrictions and limitations upon governmental powers and agencies. If these
restrictions and limitations are transcended it would be inconceivable if the Constitution had not
provided for a mechanism by which to direct the course of government along constitutional
channels, for then the distribution of powers would be mere verbiage, the bill of rights mere
expressions of sentiment, and the principles of good government mere political apothegms.
Certainly, the limitations of good government and restrictions embodied in our Constitution are
real as they should be in any living Constitution."
Justice Laurel pointed out that in contrast to the United States Constitution, the Philippine
Constitution as "a definition of the powers of government" placed upon the judiciary the great
burden of "determining the nature, scope and extent of such powers" and stressed that "when
the judiciary mediates to allocate constitutional boundaries, it does not assert any superiority
over the other departments ... but only asserts the solemn and sacred obligation entrusted to it
by the Constitution to determine conflicting claims of authority under the Constitution and to
establish for the parties in an actual controversy the rights which the instrument secures and
guarantees to them."
II
Marshall was to utter much later in the equally historic 1819 case of McCulloch vs. Maryland 27
the "climactic phrase," 28 "we must never forget that it is a constitution we are expounding,"
termed by Justice Frankfurter as "the single most important utterance in the literature of
constitutional law most important because most comprehensive and comprehending." 29 This
enduring concept to my mind permeated to this Court's exposition and rationale in the hallmark
case of Tolentino, wherein we rejected the contentions on the Convention's behalf "that the issue
... is a political question and that the Convention being a legislative body of the highest order is
sovereign, and as such, its acts impugned by petitioner are beyond the control of Congress and
the Courts." 30
This Court therein made its unequivocal choice of strictly requiring faithful (which really includes
substantial) compliance with the mandatory requirements of the amending process.
1.
In denying reconsideration of our judgment of October 16, 1971 prohibiting the submittal
in an advance election of 1971 Constitutional Convention's Organic Resolution No. 1 proposing to
amend Article V, section 1 of the Constitution by lowering the voting age to 18 years (vice 21
years) 30a "without prejudice to other amendments that will be proposed in the future ... on
other portions of the amended section", this Court stated that "the constitutional provision in
question (as proposed) presents no doubt which may be resolved in favor of respondents and
intervenors. We do not believe such doubt can exist only because it is urged that the end sought
to be achieved is to be desired. Paraphrasing no less than the President of Constitutional
Convention of 1934, Claro M. Recto, let those who would put aside, invoking grounds at best
controversial, any mandate of the fundamental law purportedly in order to attain some laudable
objective bear in mind that someday somehow others with purportedly more laudable objectives
may take advantage of the precedent and continue the destruction of the Constitution, making

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those who laid down the precedent of justifying deviations from the requirements of the
Constitution the victims of their own folly." 31
2.

This Court held in Tolentino that:

... 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 lie
in the delegates of any subsequent convention to claim that they may ignore and disregard such
conditions because they are powerful and omnipotent as their original counterparts. 32
3.
This Court in Tolentino likewise formally adopted the doctrine of proper submission first
advanced in Gonzales vs. Comelec 33, thus:
We are certain no one can deny that in order that a plebiscite for the ratification of an
amendment to the Constitution may be validly held, it must provide the voter not only sufficient
time but ample basis for an intelligent appraisal of the nature of amendment per se as well as its
relation to the other parts of the Constitution with which it has to form a harmonious whole. In
the context of the present state of things, where the Convention hardly started considering the
merits of hundreds, if not thousands, proposals to amend the existing Constitution, to present to
people any single proposal or a few of them cannot comply with this requirement. We are of the
opinion that the present Constitution does not contemplate in Section 1 of Article XV a plebiscite
or "election" wherein the people are in the dark as to frame of reference they can base their
judgment on. We reject the rationalization that the present Constitution is a possible frame of
reference, for the simple reason that intervenors themselves are stating the sole purpose of the
proposed amendment is to enable the eighteen year olds to take part in the election for the
ratification of the Constitution to be drafted by the Convention. In brief, under the proposed
plebiscite, there can be, in the language of Justice Sanchez, speaking for the six members of the
Court in Gonzales, supra, 'no proper submission.' " 34
4.
Four other members of the Court 35 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:
... 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

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submission and another is ratification. There must be fair submission, intelligent consent or
rejection. 36
They stressed further the need for undivided attention, sufficient information and full debate,
conformably to the intendment of Article XV, section 1 of the Constitution, in this wise:
A number of doubts or misgivings could conceivably and logically assail the average voter. Why
should the voting age be lowered at all, in the first place? Why should the new voting age be
precisely 18 years, and not 19 or 20? And why not 17? Or even 16 or 15? Is the 18-year old as
mature as the 21-year old, so that there is no need of an educational qualification to entitle him
to vote? In this age of permissiveness and dissent, can the 18-year old be relied upon to vote
with judiciousness when the 21-year old, in the past elections, has not performed so well? If the
proposed amendment is voted down by the people, will the Constitutional Convention insist on
the said amendment? Why is there an unseemly haste on the part of the Constitutional
Convention in having this particular proposed amendment ratified at this particular time? Do
some of the members of the Convention have future political plans which they want to begin to
subserve by the approval this year of this amendment? If this amendment is approved, does it
thereby mean that the 18-year old should not also shoulder the moral and legal responsibilities
of the 21-year old? Will he be required to compulsory military service under the colors? Will the
contractual consent be reduced to 18 years? If I vote against the amendment, will I not be unfair
to my own child who will be 18 years old, come 1973?
The above are just samplings from here, there and everywhere from a domain (of searching
questions) the bounds of which are not immediately ascertainable. Surely, many more questions
can be added to the already long litany. And the answers cannot except as the questions are
debated fully, pondered upon purposefully, and accorded undivided attention.
Scanning the contemporary scene, we say that the people are not, and by election time will not
be, sufficiently informed of the meaning, nature and effects of the proposed constitutional
amendment. They have not been afforded ample time to deliberate thereon conscientiously.
They have been and are effectively distracted from a full and dispassionate consideration of the
merits and demerits of the proposed amendment by their traditional pervasive involvement in
local elections and politics. They cannot thus weigh in tranquility the need for and the wisdom
proposed
amendment. 37
5.
This Court therein dismissed the plea of disregarding mandatory requirements of the
amending process "in favor of allowing the sovereign people to express their decision on the
proposed amendments" as "anachronistic in the real constitutionalism and repugnant to the
essence of the rule of law," in the following terms:
... 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.' ... Accordingly, the real issue here cannot be whether or not the amending process
delineated by the present Constitution may be disregarded in favor of allowing the sovereign
people to express their decision on the proposed amendments, if only because it is evident that
the very idea of departing from the fundamental law is anachronistic in the realm of
constitutionalism and repugnant to the essence of the rule of law; rather, it is whether or not the
provisional nature of the proposed amendment and the manner of its submission to the people
for ratification or rejection conform with the mandate of the people themselves in such regard, as
expressed in, the Constitution itself. 38
6.
This Court, in not heeding the popular clamor, thus stated its position: "(I)t would be tragic
and contrary to the plain compulsion of these perspectives, if the Court were to allow itself in
deciding this case to be carried astray by considerations other than the imperatives of the rule of
law and of the applicable provisions of the Constitution. Needless to say, in a larger measure
than when it binds other departments of the government or any other official or entity, the
Constitution imposes upon the Court the sacred duty to give meaning and vigor to the
Constitution, by interpreting and construing its provisions in appropriate cases with the proper
parties and by striking down any act violative thereof. Here, as in all other cases, We are resolved
to discharge that duty. 39
7.
The Chief Justice, in his separate opinion in Tolentino concurring with this Court's denial of
the motion for reconsideration, succinctly restated this Court's position on the fundamentals, as
follows:
On the premature submission of a partial amendment proposal, with a "temporary provisional
or tentative character": "... 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

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for their ratification or rejection. ... 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 unduly
exaggerate the pros and cons of the partial amendment proposed. In short, it is apt to breed
false hopes and create wrong impressions. As a consequence, it is bound to unduly strain the
people's faith in the soundness and validity of democratic processes and institutions.
On the plea to allow submission to the sovereign people of the "fragmentary and incomplete"
proposal, although inconsistent with the letter and spirit of the Constitution: "The view, has, also,
advanced that the foregoing considerations are not decisive on the issue before Us, inasmuch as
the people are sovereign, and the partial amendment involved in this case is being submitted to
them. The issue before Us is whether or not said partial amendment may be validly submitted to
the people for ratification "in a plebiscite coincide with the local elections in November 1971,"
and this particular issue will not be submitted to the people. What is more, the Constitution does
not permit its submission to the people. The question sought to be settled in the scheduled
plebiscite is whether or not the people are in favor of the reduction of the voting age.
On a "political" rather than "legalistic" approach: "Is this approach to the problem too
"legalistic?" This term has possible connotations. It may mean strict adherence to the law, which
in the case at bar is the Supreme Law of the land. On point, suffice it to say that, in compliance
with the specific man of such Supreme Law, the members of the Supreme Court taken the
requisite "oath to support and defend the Constitution." ... 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 a political approach, inasmuch as the
advisability of the amendment and an appraisal of the people's feeling thereon political matters.
In fact, apart from the obvious message of the mass media, and, at times, of the pulpit, the Court
has been literally bombarded with scores of handwritten letters, almost all of which bear the
penmanship and the signature of girls, as well as letterhead of some sectarian educational
institutions, generally stating that the writer is 18 years of age and urging that she or he be
allowed to vote. Thus, the pressure of public opinion has brought to bear heavily upon the Court
for a reconsideration of its decision in the case at bar.
As above stated, however, the wisdom of the amendment and the popularity thereof are political
questions beyond our province. In fact, respondents and the intervenors originally maintained
that We have no jurisdiction to entertain the petition herein, upon the ground that the issue
therein raised is a political one. Aside from the absence of authority to pass upon political
question, it is obviously improper and unwise for the bench to develop into such questions owing
to the danger of getting involved in politics, more likely of a partisan nature, and, hence, of
impairing the image and the usefulness of courts of justice as objective and impartial arbiters of
justiciable controversies.
Then, too, the suggested course of action, if adopted, would constitute a grievous disservice to
the people and the very Convention itself. Indeed, the latter and the Constitution it is in the
process of drafting stand essentially for the Rule of Law. However, as the Supreme Law of the
land, a Constitution would not be worthy of its name, and the Convention called upon to draft it
would be engaged in a futile undertaking, if we did not exact faithful adherence to the
fundamental tenets set forth in the Constitution and compliance with its provisions were not
obligatory. If we, in effect, approved, consented to or even overlooked a circumvention of said
tenets and provisions, because of the good intention with which Resolution No. 1 is animated, the
Court would thereby become the Judge of the good or bad intentions of the Convention and thus
be involved in a question essentially political in nature.
This is confirmed by the plea made in the motions for reconsideration in favor of the exercise of
judicial statesmanship in deciding the present case. Indeed, "politics" is the word commonly used
to epitomize compromise, even with principles, for the sake of political expediency or the
advancement of the bid for power of a given political party. Upon the other hand, statesmanship
is the expression usually availed of to refer to high politics or politics on the highest level. In any
event, politics, political approach, political expediency and statesmanship are generally
associated, and often identified, with the dictum that "the end justifies the means." I earnestly
hope that the administration of justice in this country and the Supreme Court, in particular, will
adhere to or approve or indorse such dictum." 40
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, ... those urging the vitality and importance of the proposed
constitutional amendment and its approval ahead of the complete and final draft of the

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Constitution must seek a valid solution to achieve it in a manner sanctioned by the amendatory
process ordained by our people in the present Constitution" 41 so that there may be
"submitted, not piece-meal, but by way of complete and final amendments as an integrated
whole (integrated either with the subsisting Constitution or with the new proposed
Constitution)..."
9.
The universal validity of the vital constitutional precepts and principles above-enunciated
can hardly be gainsaid. I fail to see the attempted distinction of restricting their application to
proposals for amendments of particular provisions of the Constitution and not to so-called
entirely new Constitutions. Amendments to an existing Constitution presumably may be only of
certain parts or in toto, and in the latter case would rise to an entirely new Constitution. Where
this Court held in Tolentino that "any amendment of the Constitution is of no less importance
than the whole Constitution itself and perforce must be conceived and prepared with as much
care and deliberation", it would appeal that the reverse would equally be true; which is to say,
that the adoption of a whole new Constitution would be of no less importance than any particular
amendment and therefore the necessary care and deliberation as well as the mandatory
restrictions and safeguards in the amending process ordained by the people themselves so that
"they (may) be insulated against precipitate and hasty actions motivated by more or less passing
political moods or fancies" must necessarily equally apply thereto.
III
1.
To restate the basic premises, the people provided in Article XV of the Constitution for the
amending process only "by approval by a majority of the votes cast at an election at which the
(duly proposed) amendments are submitted to the people for their ratification."
The people ordained in Article V, section 1 that only those thereby enfranchised and granted the
right of suffrage may speak the "will of the body politic", viz, qualified literate voters twenty one
years of age or over with one year's residence in the municipality where they have registered.
The people, not as yet satisfied, further provided by amendment duly approved in 1940 in
accordance with Article XV, for the creation of an independent Commission on Elections with
"exclusive charge" for the purpose of "insuring free, orderly and honest elections" and
ascertaining the true will of the electorate and more, as ruled by this Court in Tolentino, in the
case of proposed constitutional amendments, insuring proper submission to the electorate of
such proposals. 42
2.
A Massachussets case 43 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 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
intrusted with the exercise of the sovereign power and the conduct of government. The 'people'
in the Constitution in a practical sense means those who under the existing Constitution possess
the right to exercise the elective franchise and who, while that instrument remains in force
unchanged, will be the sole organs through which the will of the body politic can be expressed.
'People' for political purposes must be considered synonymous with qualified voters.' "
As was also ruled by the U.S. Supreme Court, "... While the people are thus the source of political
power, their governments, national and state, have been limited by constitutions, and they have
themselves thereby set bounds to their own power, as against the sudden impulse of mere
majorities." 44

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From the text of Article XV of our Constitution, requiring approval of amendment proposals "by a
majority of the votes cast at an election at which the amendments are submitted to the people
for their ratification", it seems obvious as above-stated that "people" as therein used must be
considered synonymous with "qualified voters" as enfranchised under Article V, section 1 of the
Constitution since only "people" who are qualified voters can exercise the right of suffrage and
cast their votes.
3.
Sound constitutional policy and the sheer necessity of adequate safeguards as ordained by
the Constitution and implementing statutes to ascertain and record the will of the people in free,
orderly and honest elections supervised by the Comelec make it imperative that there be strict
adherence to the constitutional requirements laid down for the process of amending in toto or in
part the supreme law of the land.
Even at barrio level 45 the Revised Barrio Charter fixes certain safeguards for the holding of
barrio plebiscites thus: "SEC. 6. Plebiscite. A plebiscite may be held in the barrio when
authorized by a majority vote of the members present in the barrio assembly, there being a
quorum, or when called by at least four members of the barrio council: Provided, however, That
no plebiscite shall be held until after thirty days from its approval by either body, and such
plebiscite has been given the widest publicity in the barrio, stating the date, time and place
thereof, the questions or issues to be decided, action to be taken by the voters, and such other
information relevant to the holding of the plebiscite." 46
As to voting at such barrio plebiscites, the Charter further requires that "(A)ll duly registered
barrio assembly members qualified to vote may vote in the plebiscite. Voting procedures may be
made either in writing as in regular elections, and/or declaration by the voters to the board of
election tellers." 47
The subjects of the barrio plebiscites are likewise delimited thus: "A plebiscite may be called to
decide on the recall of any member of the barrio council. A plebiscite shall be called to approve
any budgetary, supplemental appropriations or special tax ordinances" and the required majority
vote is specified: "(F)or taking action on any of the above enumerated measures, majority vote of
all the barrio assembly members registered in the list of the barrio secretary is necessary." 48
The qualifications for voters in such barrio plebiscites and elections of barrio officials 49 comply
with the suffrage qualifications of Article V, section 1 of the Constitution and provide that "(S)EC.
10. Qualifications of Voters and Candidates. Every citizen of the Philippines, twenty one years
of age or over, able to read and write, who has been a resident of the barrio during the six
months immediately preceding the election, duly registered in the list of voters by the barrio
secretary, who is not otherwise disqualified, may vote or be a candidate in the barrio elections."
50
IV
1.
Since it appears on the face of Proclamation 1102 that the mandatory requirements under
the above-cited constitutional articles have not been complied with and that no election or
plebiscite for ratification as therein provided as well as in section 16 of Article XVII of the
proposed Constitution itself 51 has been called or held, there cannot be said to have been a valid
ratification.
2.
Petitioners raised serious questions as to the veracity and genuineness of the reports or
certificates of results purportedly showing unaccountable discrepancies in seven figures in just
five provinces 52 between the reports as certified by the Department of Local Governments and
the reports as directly submitted by the provincial and city executives, which latter reports
respondents disclaimed inter alia as not final and complete or as not signed; 53 whether the
reported votes of approval of the proposed Constitution conditioned upon the non-convening of
the interim National Assembly provided in Article XVII, section 1 thereof, 54 may be considered
as valid; the allegedly huge and uniform votes reported; and many others.
3.
These questions only serve to justify and show the basic validity of the universal principle
governing written constitutions that proposed amendments thereto or in replacement thereof
may be ratified only in the particular mode or manner prescribed therein by the people. Under
Article XV, section 1 of our Constitution, amendments thereto may be ratified only in the one way
therein provided, i.e. in an election or plebiscite held in accordance with law and duly supervised
by the Commission on Elections, and which is participated in only by qualified and duly
registered voters. In this manner, the safeguards provided by the election code generally assure
the true ascertainment of the results of the 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

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bar need not reach the stage of answering the host of questions, raised by petitioners against
the procedure observed by the Citizens Assemblies and the reported referendum results since
the purported ratification is rendered nugatory by virtue of such non-observance.
5.
Finally, as to respondents' argument that the President issued Proclamation 1102 "as
"agent" of the Constitutional Convention" 55 under Resolution No. 5844 approved on November
22, 1973, and "as agent of the Convention the President could devise other forms of plebiscite to
determine the will of the majority vis-a-vis the ratification of the proposed Constitution." 56
The minutes of November 22, 1972, of the Convention, however, do not at all support this
contention. On the contrary, the said minutes fully show that the Convention's proposal and
"agency" was that the President issue a decree precisely calling a plebiscite for the ratification of
the proposed new Constitution on an appropriate date, under the charge of the Comelec, and
with a reasonable period for an information campaign, as follows:
12.
Upon recognition by the Chair, Delegate Duavit moved for the approval of the resolution,
the resolution portion of which read as follows:
"RESOLVED, AS IT IS HEREBY RESOLVED, that the 1971 Constitutional Convention propose to
President Ferdinand E. Marcos that a decree be issued calling a plebiscite for the ratification of
the proposed New Constitution on such appropriate date as he shall determine and providing for
the necessary funds therefor, and that copies of this resolution as approved in plenary session be
transmitted to the President of the Philippines and the Commission on Elections for
implementation."
He suggested that in view of the expected approval of the final draft of the new Constitution by
the end of November 1972 according to the Convention's timetable, it would be necessary to lay
the groundwork for the appropriate agencies of the government to undertake the necessary
preparation for the plebiscite.
xxx

xxx

xxx

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.
xxx

xxx

xxx

12.4 Interpellating, Delegate Madarang suggested that a reasonable period for an information
campaign was necessary in order to properly apprise the people of the implications and
significance of the new charter. Delegate Duavit agreed, adding that this was precisely why the
resolution was modified to give the President the discretion to choose the most appropriate date
for the plebiscite.
12.5 Delegate Laggui asked whether a formal communication to the President informing him of
the adoption of the new Constitution would not suffice considering that under Section 15 of the
Transitory Provisions, the President would be duty-bound to call a plebiscite for its ratification.
Delegate Duavit replied in the negative, adding that the resolution was necessary to serve notice
to the proper authorities to prepare everything necessary for the plebiscite.
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.

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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 approved by a show of
hands. 57
I, therefore, vote to deny respondents' motion to dismiss and to give due course to the petitions.
Promulgated: June 4, 1973 *
ANTONIO, J., concurring:
In conformity with my reservation, I shall discuss the grounds for my concurrence.
I
It is my view that to preserve the independence of the State, the maintenance of the existing
constitutional order and the defense of the political and social liberties of the people, in times of
a grave emergency, when the legislative branch of the government is unable to function or its
functioning would itself threaten the public safety, the Chief Executive may promulgate
measures legislative in character, for the successful prosecution of such objectives. For the
"President's power as Commander- in-chief has been transformed from a simple power of military
command to a vast reservoir of indeterminate powers in time of emergency. ... In other words,
the principal canons of constitutional interpretation are ... set aside so far as concerns both the
scope of the national power and the capacity of the President to gather unto himself all
constitutionally available powers in order the more effectively to focus them upon the task of the
hour." (Corwin, The President: Office & Powers, pp. 317, 318, [1948]).
1.
The proclamation of martial rule, ushered the commencement of a crisis government in
this country. In terms of power, crisis government in a constitutional democracy entails the
concentration of governmental power. "The more complete the separation of powers in a
constitutional system, the more difficult, and yet the more necessary" according to Rossiter, "will
be their fusion in time of crisis... The power of the state in crisis must not only be concentrated
and expanded, it must be freed from the normal system of constitutional and legal limitations.
One of the basic features of emergency powers is the release of the government from the
paralysis of constitutional restraints" (Rossiter, Constitutional Dictatorship, p. 290).
It is clearly recognized that in moments of peril the effective action of the government is
channeled through the person of the Chief Executive. "Energy in the executive," according to
Hamilton, "is essential to the protection of the community against foreign attacks ... to the
protection of property against those irregular and high-handed combinations which sometimes
interrupt the ordinary course of justice; to the security of liberty against the enterprises and
assaults of ambition, of faction, and of anarchy." (The Federalist, Number 70). "The entire
strength of the nation", said Justice Brewer in the Debs case (158 U.S. 564; 39 L. ed. 1092), "may
be used to enforce in any part of the land the full and free exercise of all national powers and the
security of all rights entrusted by the constitution to its care." The marshalling and employment
of the "strength of the nation" are matters for the discretion of the Chief Executive. The
President's powers in time of emergency defy precise definition since their extent and limitations
are largely dependent upon conditions and circumstances.
2.
The power of the President to act decisively in a crisis has been grounded on the broad
conferment upon the Presidency of the Executive power, with the added specific grant of power
under the "Commander-in-Chief" clause of the constitution. The contours of such powers have
been shaped more by a long line of historical precedents of Presidential action in times of crisis,
rather than judicial interpretation. Lincoln wedded his powers under the "commander-in-chief"
clause with his duty "to take care that the laws be faithfully executed," to justify the series of
extraordinary measures which he took the calling of volunteers for military service, the
augmentation of the regular army and navy, the payment of two million dollars from
unappropriated funds in the Treasury to persons unauthorized to receive it, the closing of the
Post Office to "treasonable correspondence", the blockade of southern ports, the suspension of

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the writ of habeas corpus, the arrest and detention of persons "who were represented to him" as
being engaged in or contemplating "treasonable practices" all this for the most part without
the least statutory authorization. Those actions were justified by the imperatives of his logic, that
the President may, in an emergency thought by him to require it, partially suspend the
constitution. Thus his famous question: "Are all laws but one to be unexecuted, and the
Government itself go to pieces lest that one be violated?" The actions of Lincoln "assert for the
President", according to Corwin, "an initiative of indefinite scope and legislative in effect in
meeting the domestic aspects of a war emergency." (Corwin, The President: Office & Powers, p.
280 [1948]). The facts of the civil war have shown conclusively that in meeting the domestic
problems as a consequence of a great war, an indefinite power must be attributed to the
President to take emergency measures. The concept of "emergency" under which the Chief
Executive exercised extraordinary powers underwent correlative enlargement during the first and
second World Wars. From its narrow concept as an "emergency" in time of war during the Civil
War and World War I, the concept has been expanded in World War II to include the "emergency"
preceding the war and even after it. "The Second World War" observed Corwin and Koenig, was
the First World War writ large, and the quasi-legislative powers of Franklin Roosevelt as
"Commander-in-Chief in wartime"... burgeoned correspondingly. The precedents were there to be
sure, most of them from the First World War, but they proliferated amazingly. What is more,
Roosevelt took his first step toward war some fifteen months before our entrance into shooting
war. This step occurred in September, 1940, when he handed over fifty so-called overage
destroyers to Great Britain. The truth is, they were not overage, but had been recently
reconditioned and recommissioned. ... Actually, what President Roosevelt did was to take over for
the nonce Congress's power to dispose of property of the United States (Article IV, Section 3) and
to repeal at least two statutes." (Corwin & Koenig, The Presidency Today, New York University
Press, 1956; sf Corwin, The President: Office and Powers, 1948.)
The creation of public offices is a power confided by the constitution to Congress. And yet
President Wilson, during World War I on the basis of his powers under the "Commander-in-Chief"
clause created "offices" which were copied in lavish scale by President Roosevelt in World War II.
In April 1942, thirty-five "executive agencies" were purely of Presidential creation. On June 7,
1941 on the basis of his powers as "Commander-in-Chief", he issued an executive order seizing
the North American Aviation plant of Inglewood, California, where production stopped as a
consequence of a strike. This was justified by the government as the exercise of presidential
power growing out of the "duty constitutionally and inherently resting upon the President to exert
his civil and military as well as his moral authority to keep the defense efforts of the United
States a going concern" as well as "to obtain supplies for which Congress has appropriated
money, and which it has directed the President to obtain." On a similar justification, other plants
and industries were taken over by the government. It is true that in Youngstown Sheet & Tube vs.
Sawyer (343 U.S. 579; 72 S. Ct. 863; 96 L. Ed. 1153, [1952]), the Supreme Court of the United
States did not sustain the claims that the President could, as the Nation's Chief Executive and
Commander-in-Chief of the armed forces, validly order the seizure of most of the country's steel
mills. The Court however did not face the naked question of the President's power to seize steel
plants in the absence of any congressional enactment or expressions of policy. The majority of
the Court found that this legislative occupation of the field made untenable the President's claim
of authority to seize the plants as an exercise of inherent executive power or as Commander-inChief. 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
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).

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In the light of the accumulated precedents, how could it be reasonably argued therefore, that the
President had no power to issue Presidential Decree Nos. 86 and 86-A as well as Proclamation No.
1102, since these measures were considered indispensable to effect the desired reforms at the
shortest time possible and hasten the restoration of normalcy? It is unavailing for petitioners to
contend that we are not faced by an actual "shooting war" for today's concept of the emergency
which justified the exercise of those powers has of necessity been expanded to meet the
exigencies of new dangers and crisis that directly threaten the nation's continued and
constitutional existence. For as Corwin observed: "... today the concept of 'war' as a special type
of emergency warranting the realization of constitutional limitations tends to spread, as it were,
in both directions, so that there is not only "the war before the war," but the 'war after the war.'
Indeed, in the economic crisis from which the New Deal may be said to have 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 supervision of the Commission on Elections, the
new Constitution, should therefore be a nullity. Such an argument is predicated upon an
assumption, that Article XV of the 1935 Constitution provides the method for the revision of the
constitution, and automatically apply in the final approval of such proposed new Constitution the
provisions of the election law and those of Article V and X of the old Constitution. We search in
vain for any provision in the old charter specifically providing for such procedure in the case of a
total revision or a rewriting of the whole constitution.
1.
There is clearly a distinction between revision and amendment of an existing constitution.
Revision may involve a rewriting of the whole constitution. The act of amending a constitution,
on the other hand, envisages a change of only specific provisions. The intention of an act to
amend is not the change of the entire constitution but only the improvement of specific parts of
the existing constitution of the addition of provisions deemed essential as a consequence of new
constitutions or the elimination of parts already considered obsolete or unresponsive to the
needs of the times. 1 The 1973 Constitution is not a mere amendment to the 1935 Constitution.
It is a completely new fundamental charter embodying new political, 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

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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 N.E. 408) relied upon in one of the dissenting opinions involved in the
application of the provisions of the state Constitution of Minnesota which clearly prescribed in
detail the procedure under which the Constitution may be amended or revised. 2 This is not true
with our Constitution. In the case of revision there are no "standards meet for judicial judgment."
3
The framers of our Constitution were free to provide in the Constitution the method or procedure
for the revision or rewriting of the entire constitution, and if such was their intention, they could
and should have so provided. Precedents were not wanting. The constitutions of the various
states of the American Union did provide for procedures for their amendment and methods for
their revision. 4
Certainly We cannot, under the guise of interpretation, modify, revise, amend, remodel or rewrite
the 1935 Charter. To declare what the law is, or has been, is a judicial power, but to declare what
the law shall be is not within Our judicial competence and authority.
Upon the other hand, since our fundamental charter has not provided the method or procedure
for the revision or complete change of the Constitution, it is evident that the people have
reserved such power in themselves. They decided to exercise it not through their legislature, but
through a Convention expressly chosen for that purpose. The Convention as an independent and
sovereign body has drafted not an amendment but a completely new Constitution, which decided
to submit to the people for approval, not through an act of Congress, but by means of decrees to
be promulgated by the President. In view of the inability of Congress to act, it was within the
constitutional powers of the President, either as agent of the Constitutional Convention, or under
his authority under martial law, to promulgate the necessary measures for the 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. 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

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restrictions required for the security of the State, the people are free to pursue their ordinary
concerns.
In short, the existing regime in this Country, does not contain the oppressive features, generally
associated with a regime of Martial law in other countries. "Upon the other hand the masses of
our people have accepted it, because of its manifold blessings. The once downtrodden rice
tenant has at long last been emancipated a consummation devoutly wished by every
Philippine President since the 1930's. The laborer now holds his head high because his rights are
amply protected and respected." * A new sense of discipline has swiftly spread beyond the
corridors of government into the social order. Responding to the challenges of the New Society,
the people have turned in half a million loose firearms, paid their taxes on undeclared goods and
income in unprecedented numbers and amount, lent their labors in massive cooperation in
land reform, in the repair of dikes, irrigation ditches, roads and bridges, in reforestation, in the
physical transformation of the environment to make ours a cleaner and greener land. "The entire
country is turning into one vast garden growing food for the body, for thought and for the soul." *
More important the common man has at long last been freed from the incubus of fear.
"Martial law has paved the way for a re-ordering of the basic social structure of the Philippines"
reported Frank Valeo to the United States Senate. "President Marcos has been prompt and surefooted in using the power of presidential decree under martial law for this purpose. He has
zeroed in on areas which have been widely recognized as prime sources of the nation's
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 middleclass to replace the archaic sharecropper-absentee landlord relationship. He is even pushing for a
birth control program with the tacit acceptance of the Catholic Church. He has started labor
reforms and increased wages. (Daily Express, April 15, 1973)
As explained in this writer's opinion of April 24, 1973 on the "Constancia" and "Manifestation" of
counsel for petitioners:
The new Constitution is considered effective "if the norms created in conformity with it are by
and large applied and obeyed. As soon as the old Constitution loses its effectiveness 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.)

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In other words, where a complete change in the fundamental law has been effected through
political action, the Court whose existence is affected by such change is, in the words of Mr.
Melville Fuller Weston, "precluded from passing upon the fact of change by a logical difficulty
which is not to be surmounted." 5 Such change in the organic law relates to the existence of a
prior point in the Court's "chain of title" to its authority and "does not relate merely to a question
of the horizontal distribution of powers." 6 It involves in essence a matter which "the sovereign
has entrusted to the so-called political departments of government or has reserved to be settled
by its own extra governmental action." 7
The non-judicial character of such a question has been recognized in American law. "From its
earliest opinions this Court has consistently recognized," said Justice Frankfurter, in his
illuminating dissent in Baker v. Carr, 369 U.S. 186, 7 L. Ed. 2d. 633, 722, 726, 727), "a class of
controversies which do not lend themselves to judicial standards and judicial remedies. To
classify the various instances as "political questions" is rather a form of stating this conclusion
than revealing of analysis ... The crux of the matter is that courts are not fit instruments of
decision where what is essentially at stake is the composition of those large contests of policy
traditionally fought out in non-judicial forums, by which governments and the actions of
governments are made and unmade."
The diversity of views contained in the opinions of the members of this Court, in the cases at bar,
cannot be a case on "right" or "wrong" views of the Constitution. It is one of attitudes and values.
For there is scarcely any principle, authority or interpretation which has not been countered by
the opposite. At bottom, it is the degree of one's faith in the nation's leadership and in the
maturity of judgment of our people.
IN VIEW OF THE FOREGOING, the dismissal of these five cases, and the conclusion of this Court in
its judgment of March question becomes wholly moot except for this consideration, that, when
the judges as individuals or as a body of individuals come to decide which king or which
constitution they will support and assert to represent, it may often be good judgment for them to
follow the lead of the men who as a practical matter are likely to be looked to by the people as
more representative of themselves and conversely are likely to be more directly in touch with
popular sentiment. If, however, the judges hold too strong views of their own to be able to take
this course, they may follow their own leads at their own hazard. No question of law is involved.
(Political Questions, 38 Harvard Law Review [1924-25], pp. 305-309.)
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, including, but not limited to, number of members, districts, election and
certification of delegates, and submission and ratification of revisions and ordinances. ... .

124

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 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 such revisions, 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 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

125

the same as though but one amendment was submitted. But the general assembly shall have no
power to propose amendments to more than six articles of this constitution at the same session.
4.

Delaware (1897) Art. XVI. Amendments and Conventions.

Sec. 1.
Proposal of constitutional amendments in general assembly; procedure. Any
amendment or amendments to this Constitution may be proposed in the Senate or House of
Representatives; and if the same shall be agreed to by two-thirds of all the members elected to
each House, such proposed amendment or amendments shall be entered on their journals, with
the yeas and nays taken thereon, and the Secretary of State shall cause such proposed
amendment or amendments to be published three months before the next general election in at
least three newspapers in each County in which such newspaper shall be published; and if in the
General Assembly next after the said election such proposed amendment or amendments shall
upon yea and nay vote be agreed to by two-thirds of all the members elected to each House, the
same shall thereupon become part of the Constitution.
Sec. 2.
Constitutional conventions; procedure; compensation of delegates; quorum; powers
and duties; vacancies. The General Assembly by a two-thirds vote of all the members elected to
each House may from time to time provide for the submission to the qualified electors of the
State at the general election next thereafter the question, "Shall there be a Convention to revise
the Constitution and amend the same?;" and upon such submission, if a majority of those voting
on said question shall decide in favor of a Convention for such purpose, the General Assembly at
its next session shall provide for the election of delegates to such convention at the next general
election. Such Convention shall be composed of forty-one delegates, one of whom shall be
chosen from each Representative District by the qualified electors thereof, and two of whom shall
be chosen from New Castle County, two from Kent County and two from Sussex County by the
qualified electors thereof respectively. The delegates so chosen shall convene at the Capital of
the State on the first Tuesday in September next after their election. Every delegate shall receive
for his services such compensation as shall be provided by law. A majority of the Convention
shall constitute a quorum for the transaction of business. The Convention shall have the power to
appoint such officers, employees and assistants as it may be deem necessary, and fix their
compensation, and provide for the printing of its documents, journals, debates and proceedings.
The Convention shall determine the rules of its proceedings, and be the judge of the elections,
returns and qualifications of its members. Whenever there shall be a vacancy in the office of
delegate from any district or county by reason of failure to elect, ineligibility, death, resignation
or otherwise, a writ of election to fill such vacancy shall be issued by the Governor, and such
vacancy shall be filled by the qualified electors of such district or county.
5.

Florida (1887) Art. XVII. Amendments.

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

126

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.

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 is entitled. The Delegates so elected shall convene at the Capital City on the First
Tuesday in October next succeeding such election, and shall continue their sessions until the
business of the convention shall be completed. A majority of the delegates elected shall
constitute a quorum for the transaction of business. ... No proposed constitution 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

127

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.
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 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
holden 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 Hamspire (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 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.

128

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 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 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.

129

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 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 twothirds 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.
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.
Separate Opinions
MAKALINTAL, J., concurring:
CASTRO, J., concurring:
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.
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

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approved by the Constitutional Convention on February 8, 1935, and ratified in a plebiscite held
on following May 14, the word "election" had already a definite meaning in our law and
jurisprudence. It was not a vague and amorphous concept, but a procedure prescribed by statute
ascertaining the people's choices among candidates for public offices, or their will on important
matters submitted to the pursuant to law, for approval. It was in this sense that word was used
by the framers in Article XV (also in Articles VI and VII), and in accordance with such procedure
that plebiscites were held to ratify the very same Constitution in 1935 as well as the subsequent
amendments thereto, thus: in 1939 (Ordinance appended to the Constitution); 1940
(establishment of a bicameral legislature; eligibility of the President and the Vice President for re
election; creation of the Commission of Elections); 1947 (Parity Amendment); and 1967 (increase
in membership of the House of Representatives and eligibility of members of Congress to run for
the Constitutional Convention without forfeiture of their offices).
The Election Code of 1971, in its Section 2, states that "all elections of public officers except
barrio officials and plebiscites shall be conducted in the manner provided by this Code." This is a
statutory requirement designed, as were the other election laws previously in force, to carry out
the constitutional mandate relative to the exercise of the right suffrage, and with specific
reference to the term "plebiscites," the provision of Article XV regarding ratification of
constitutional amendments.
The manner of conducting elections and plebiscites provided by the Code is spelled out in other
sections thereof. Section 99 requires that qualified voters be registered in a permanent list, the
qualifications being those set forth in Article V, Section 1, of the 1935 Constitution on the basis of
age (21), literacy and residence. These qualifications are reiterated 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 Constitutional Convention on November
30, 1972 the said body adopted Resolution No. 5843, proposing "to President Ferdinand E.
Marcos that a decree be issued calling a plebiscite for the ratification of the proposed New
Constitution on such appropriate date as he shall determine and providing for the necessary
funds therefor." Pursuant to said Resolution the President issued Decree No. 73 on the same day,
calling a plebiscite to be held on January 15, 1973, at which the proposed Constitution "shall be
submitted to the people for ratification or rejection." The Decree had eighteen (18) sections in
all, prescribing in detail the different steps to be taken to carry out the process of ratification,
such as: (a) publication of the proposed Constitution in English and Pilipino; (b) freedom of
information and discussion; (c) registration of voters: (d) appointment of boards of election
inspectors and designation of watchers in each precinct; (e) printing of official ballots; (f) manner
of voting to insure freedom and secrecy thereof; (g) canvass of plebiscite returns; and (h) in
general, compliance with the provisions of the Election Code of 1971, with the Commission on
Elections exercising its constitutional and statutory powers of supervision of the entire process.
There can hardly be any doubt that in everybody's view from the framers of the 1935
Constitution through all the Congresses since then to the 1971 Constitutional Convention
amendments to the Constitution should be ratified in only one way, that is, in an election or
plebiscite held in accordance with law and participated in only by qualified and duly registered
voters. Indeed, so concerned was this Court with the importance and indispensability of
complying with the mandate of the (1935) Constitution in this respect that in the recent case of
Tolentino vs. Commission on Elections, No. L-34150, October 16, 1971 (41 SCRA 702), a
resolution of the (1971) Constitutional Convention submitting a proposed amendment for

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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 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."
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 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].
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.

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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
If the Citizens Assemblies approve of the New Constitution, then the new Constitution should be
deemed ratified.
The vote of the Citizens Assemblies should already be considered the plebiscite on the New
Constitution.
QUESTION No. 4
We are sick and tired of too frequent elections. We are fed up with politics, of so many debates
and so much expenses.
QUESTION No. 5
Probably a period of at least seven (7) years moratorium on elections will be enough for stability
to be established in the country, for reforms to take root and normalcy to return.
QUESTION No. 6
We want President Marcos to continue with Martial Law. We want him to exercise his powers with
more authority. We want him to be strong and firm so that he can accomplish all his reform
program and establish normalcy in the country. If all other measures fail, we want President
Marcos to declare a revolutionary government along the lines of the new Constitution without the
ad interim Assembly.
So it was that on January 11, 1973, the second day of the purported referendum, the suggestion
was broached, for the first time, that the plebiscite should be done away with and a favorable
vote by the Assemblies deemed equivalent 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 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.

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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 ultimate
question posed by these cases, to resolve which considerations other than judicial, and therefore
beyond the competence of this Court, are relevant and unavoidable.
Several theories have been advanced respectively by the parties. The petitioners lay stress on
the invalidity of the ratification process adopted by the Citizens Assemblies and on that premise
would have this Court grant the reliefs they seek. The respondents represented by the Solicitor
General, whose theory may be taken as the official position of the Government, challenge the
jurisdiction of this Court on the ground that the questions raised in the petitions are political and
therefore non-justiciable, and that in any case popular acquiescence in the new Constitution and
the prospect of unsettling acts done in reliance thereon should caution against interposition of
the power of judicial review. Respondents Gil J. Puyat and Jose Roy (in L-36165), in their
respective capacities as President and President Pro Tempore of the Senate of the Philippines,
and through their counsel, Senator Arturo Tolentino, likewise invoke the political question
doctrine, but on a ground not concurred in by the Solicitor General, namely, that approval of the
1973 Constitution by the people was made under a revolutionary government, in the course of a
successful political revolution, which was converted by act of the people to the present de jure
government under the 1973 Constitution."
Heretofore, constitutional disputes which have come before this Court for adjudication proceeded
on the assumption, conceded by all, that the Constitution was in full force and effect, with the
power and authority of the entire Government behind it; and the task of this Court was simply to
determine whether or not the particular act or statute that was being challenged contravened
some rule or mandate of that Constitution. The process employed was one of interpretation and
synthesis. In the cases at bar there is no such assumption: the Constitution (1935) has been
derogated and its continued existence as well as the validity of the act of derogation is issue. The
legal problem posed by the situation is aggravated by the fact that the political arms of the
Government the Executive Departments and the two Houses of Congress have accepted the
new Constitution as effective: the former by organizing themselves and discharging their
functions under it, and the latter by not convening on January 22, 1973 or at any time thereafter,
as ordained by the 1935 Constitution, and in the case of a majority of the members by
expressing their option to serve in the Interim National Assembly in accordance with Article XVIII,
Section 2, of the 1973 Constitution. *
The theory advanced by Senator Tolentino, as counsel for respondents Puyat and Roy, may be
taken up and restated at same length if only because it would constitute, if sustained, the most
convenient ground for the invocation of the political-question doctrine. In support of his theory,
Senator Tolentino contends that after President Marcos declared martial law on September 21,
1972 (Proclamation No. 1081) he established a revolutionary government when he issued
General Order No. 1 the next day, wherein he proclaimed "that I shall govern the nation and
direct the operation of the entire government, including all its agencies and instrumentalities, in
my capacity, and shall exercise all the powers and prerogatives appurtenant and incident to my
position as such Commander-in-Chief of all the Armed Forces of the Philippines." By this order, it
is pointed out, the Commander-in-Chief of the Armed Forces assumed all the powers of
government executive, legislative, and judicial; and thereafter proceeded to exercise such
powers by a series of Orders and Decrees which amounted to legislative enactments not justified
under martial law and, in some instances, trenched upon the domain of the judiciary, by
removing from its jurisdiction certain classes of cases, such as "those involving the validity,
legality, or constitutionality of Proclamation No. 1081, or of any decree, order or act issued,
promulgated or performed by me or by my duly designated representative pursuant thereto."
(General Order No. 3 as amended by General Order No. 3-A, dated September 24, 1972.) The
ratification by the Citizens Assemblies, it is averred, was the culminating act of the revolution,
which thereupon converted the government into a de jure one under the 1973 Constitution.
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

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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 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 a 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 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

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Barangay, was intended to be definite and irrevocable, regardless of non-compliance with the
pertinent constitutional and statutory provisions prescribing the procedure for ratification. We
must confess that after considering all the available evidence and all the relevant circumstances
we have found no reasonably reliable answer to the question. On one hand we read, for instance,
the following public statements of the President:
Speaking about the proclamation of martial law, he said:
I reiterate what I have said in the past: there is no turning back for our people.
We have committed ourselves to this revolution. We have pledged to it our future, our fortunes,
our lives, our destiny. We have burned our bridges behind us. Let no man misunderstand the
strength of our resolution. (A Report to the Nation, Jan. 7, 1973.)
On the occasion of the signing of Proclamation No. 1102 on January 17, 1973, the President said
the following, among other things:
... We can, perhaps delimit the power of the people to speak on legal matters, on justiciable
matters, on matters that may come before the experts and interpreters of the law. But we cannot
disqualify the people from speaking on what we and the people consider purely political matters
especially those that affect the fundamental law of the land.
... The political questions that were presented to the people are exactly those that refer to the
form of government which the people want ... The implications of disregarding the people's will
are too awesome to be even considered. For if any power in government should even dare to
disregard the people's will there would be valid ground for revolt.
... Let it be known to everybody that the people have spoken and they will no longer tolerate any
attempt to undermine the stability of their Republic; they will rise up in arms not in revolt against
the Republic but in protection of the Republic which they have installed. It is quite clear when the
people say, we ratify the Constitution, that they mean they will not discard, the Constitution.
On January 19, 1973 the Daily Express published statement of the President made the day
before, from which the following portion is quoted:
... the times are too grave and the stakes too high for us permit the customary concessions to
traditional democratic process to hold back our people's clear and unequivocal resolve and
mandate to meet and overcome the extraordinary challenges presented by these extraordinary
times.
On the same occasion of the signing of Proclamation No. 1102 the President made pointed
reference to "the demand of some of our citizens ... that when all other measures should fail, that
the President be directed to organize and establish a Revolutionary Government," but in the next
breath added: "... if we do ratify the Constitution, how can we speak of Revolutionary
Government? They cannot be compatible ..." "(I)t is my feeling," he said, "that the Citizens'
Assemblies which submitted this recommendation merely sought articulate their impatience with
the status quo that has brought about anarchy, confusion and misery to the masses ..." The only
alternatives which the President clearly implied by the foregoing statements were the ratification
of the new Constitution and the establishment of a revolutionary government, the latter being
unnecessary, in his opinion, because precisely the Constitution had been ratified. The third
obvious alternative was entirely ruled out, namely, a return to the 1935 Constitution, for it was
the status quo under that Constitution that had caused "anarchy, confusion and misery." The
message seems clear: rather than return to such status quo, he would heed the recommendation
of the Citizens' Assemblies to establish a revolutionary government, because that would be the
only other way to carry out the reforms he had envisioned and initiated reforms which, in all
fairness and honesty, must be given credit for the improved quality of life in its many aspects,
except only in the field of civil liberties.
If there is any significance, both explicit and implicit, and certainly unmistakable, in the foregoing
pronouncements, it is that the step taken in connection with the ratification of the Constitution
was meant to be irreversible, and that nothing anyone could say would make the least
difference. And if this is a correct and accurate assessment of the situation, then we would say
that since it has been brought about by political action and is now maintained by the government
that is in undisputed authority and dominance, the matter lies beyond the power of judicial
review.
On the other hand, by avowals no less significant if not so emphatic in terms, President Marcos
has professed fealty to the Constitution. In "Today's Revolution: Democracy" he says:
I believe, therefore, in the necessity of Revolution as an instrument of individual and social
change ... but that in a democratic society, revolution is of necessity, constitutional, peaceful,
and legal.

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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).
In the report of an interview granted by the President to the Newsweek Magazine (published in
the issue of January 29, 1973), the following appears:
xxx

xxx

xxx

Q.
Now that you have gotten off the constitutional track, won't you be in serious trouble if
you run into critical problems with your programs?
R.
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.
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In the light of this seeming ambivalence, the choice of what course of action to pursue belongs to
the President. We have earlier made reference to subjective factors on which this Court, to our
mind, is in no position to pass judgment. Among them is the President's own assessment of the
will of the people as expressed through the Citizens Assemblies and of the importance of the
1973 Constitution to the successful implementation of the social and economic reforms he has
started or envisioned. If he should decide that there is no turning back, that what the people
recommended through the Citizens Assemblies, as they were reported to him, demand that the
action he took pursuant thereto be final and irrevocable, then judicial review is out of the
question.
In articulating our view that the procedure of ratification that was followed was not in accordance
with the 1935 Constitution and related statutes, we have discharged our sworn duty as we
conceive it to be. The President should now perhaps decide, if he has not already decided,
whether adherence to such procedure is weighty enough a consideration, if only to dispel any
cloud of doubt that may now and in the future shroud the nation's Charter.
In the deliberations of this Court one of the issues formulated for resolution is whether or not the
new Constitution, since its submission to the Citizens Assemblies, has found acceptance among
the people, such issue being related to the political question theory propounded by the
respondents. We have not tarried on the point at all since we find no reliable basis on which to
form a judgment. Under a regime of martial law, with the free expression of opinions through the
usual media vehicles restricted, we have no means of knowing, to the point of judicial certainty,
whether the people have accepted the Constitution. In any event, we do not find the issue
decisive insofar as our vote in these cases is concerned. To interpret the Constitution that is
judicial. That the Constitution should be deemed in effect because of popular acquiescence
that is political, and therefore beyond the domain of judicial review.

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We therefore vote not to give due course to the instant petitions.


BARREDO, J., concurring:
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 five-day hearing
that was held from February 12 to 16 last, more extensive and illuminating arguments were
heard by Us, but, in my estimation, and with due recognition of the sincerety, brilliance and
eloquence of counsels, nothing more cogent and compelling than what had 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 people's
right of revolution to which I made pointed reference in my previous opinion, I can see now, after
further reflection, that the vote of the people in the referendum in the Citizens Assemblies held
on January 10 to 15, 1973, upon the result of which Proclamation 1102 is based, may be viewed
more importantly as a political act than as a purely legal one with the result that such vote to
consider the 1973 Constitution as ratified without the necessity of holding a plebiscite in the
form followed in the previous ratification plebiscites in 1935 of the Constitution itself, 1937 of
women's suffrage, 1939 of the amendments to the Ordinance Appended to the Constitution,
1940 of the re-election of the President, the bicameral legislature and the Commission on
Elections, 1947 of the parity amendment and 1967, rejecting the proposed increase in the
members of the House of Representatives and eligibility of members of Congress to the
Constitutional Convention, may be deemed as a valid ratification substantially in compliance with
the basic intent of Article XV of the 1935 Constitution. If indeed this explanation may be
considered as a modification of my rationalization then, I wish to emphasize that my position as
to the fundamental issue regarding the enforceability of the new Constitution is even firmer now
than ever before. As I shall elucidate anon, paramount considerations of national import have led
me to the conviction that the best interests of all concerned would be best served by the
Supreme Court holding that the 1973 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 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

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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".
In the meanwhile also, on January 5, 1973, the President issued Presidential Decree, No. 86-A
providing as follows:
PRESIDENTIAL DECREE NO. 86-A
STRENGTHENING AND DEFINING THE ROLE OF BARANGAYS (CITIZENS ASSEMBLIES)
WHEREAS, on the basis of preliminary and initial reports from the field as gathered from
barangays (citizens assemblies) that have so far been established, the people would like to
decide for themselves questions or issues, both local and national, affecting their day-to-day
lives and their future;
WHEREAS, the barangays (citizens assemblies) would like themselves to be the vehicle for
expressing the views of the people on important national issues;
WHEREAS, such barangays (citizens assemblies) desire that they be given legal status and due
recognition as constituting the genuine, legitimate and valid expression of the popular will; and
WHEREAS, the people would like the citizens assemblies to conduct immediately a referendum
on certain specified questions such as the ratification of the new Constitution, continuance of
martial law, the convening of Congress on January 22, 1973, and the elections in November 1973
pursuant to the 1935 Constitution.
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the powers
vested in me by the Constitution as Commander-in-Chief of all Armed Forces of the Philippines,
do hereby declare as part of the law of the land the following:
1.
The present barangays (citizens assemblies) are created under Presidential Decree No. 86
dated December 31, 1972, shall constitute the base for citizen participation in governmental
affairs and their collective views shall be considered in the formulation of national policies or
programs and, wherever practicable, shall be translated into concrete and specific decision;
2.
Such barangays (citizens assemblies) shall consider vital national issues now confronting
the country, like the holding of the plebiscite on the new Constitution, the continuation of martial
rule, the convening of Congress on January 22, 1973, and the holding of elections in November
1973, and others in the future, which shall serve as guide or basis for action or decision by the
national government;
3.
The barangays (citizens assemblies) shall conduct between January 10 and 15, 1973, a
referendum on important national issues, including those specified in paragraph 2 hereof, and
submit results thereof to the Department of Local Governments Community Development
immediately thereafter, pursuant to express will of the people as reflected in the reports
gathered from the many thousands of barangays (citizens assemblies) throughout the country.
4.

This Decree shall take effect immediately.

Done in the City of Manila, this 5th day of January, in the year of Our Lord, nineteen hundred and
seventy three.
And on January 7, 1973, this was followed by Presidential Decree No. 86-B reading thus:

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PRESIDENTIAL DECREE NO. 86-B


DEFINING FURTHER THE ROLE OF BARANGAYS (CITIZENS ASSEMBLIES)
WHEREAS, since their creation pursuant to Presidential Decree No. 86 dated December 31, 1972,
the Barangays (Citizens Assemblies) have petitioned the Office of the President to submit them
for resolution important national issues;
WHEREAS, one of the questions persistently mentioned refers to the ratification of the
Constitution proposed by the 1971 Constitutional Convention;
WHEREAS, on the basis of the said petitions, it is evident that the people believe that the
submission of the proposed Constitution to the Citizens Assemblies or Barangays should be taken
as a plebiscite in itself in view of the fact that freedom of debate has always been limited to the
leadership in political, economic and social fields, and that it is now necessary to bring this down
to the level of the people themselves through the Barangays or Citizens Assemblies;
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 government to decide
issues of national interests?
(2)

Do you approve of the New Constitution?

(3)

Do you want a plebiscite to be called to ratify the new Constitution?

(4)
Do you want the elections to be held in November, 1973 in accordance with the provisions
of the 1935 Constitution?
(5)

If the elections would not be held, when do you want it to be called?

(6)

Do you want martial law to continue?

It is not seriously denied that together with the question the voters were furnished "comments"
on the said questions more or less suggestive of the answer desired. It may assumed that the
said "comments" came from official sources, albeit specifically unidentified. As petitioners point
out, the most relevant of these "comments" were the following:
COMMENTS ON
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QUESTION No. 2

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But we do not want the Ad Interim Assembly to be convoke. 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.
The Solicitor General claims, and there seems to be showing otherwise, that the results of the
referendum were determined in the following manner:
Thereafter, the results of the voting were collated and sent to the Department of Local
Governments. The transmission of the results was made by telegram, telephone, the provincial
government SSB System in each province connecting all towns; the SSB communication of the
PACD connecting most provinces; the Department of Public Information Network System; the
Weather Bureau Communication System connecting all provincial capitals and the National Civil
Defense Network connecting all provincial capitals. The certificates of results were then flown to
Manila to confirm the previous figures received by the aforementioned means of transmission.
The certificates of results tallied with the previous figures taken with the exception of few cases
of clerical errors.
The Department adopted a system of regionalizing the receiving section of the Citizens
Assemblies operation at the Department wherein the identity of the barrio and the province was
immediately given to a staff in charge of each region. Every afternoon at 2:00 o'clock, the 11
regions submitted the figures they received from the field to the central committee to tabulate
the returns. The last figures were tabulated at 12 midnight of January 16, 1973 and early
morning of January 17, 1973 and were then communicated to the President by the Department of
Local Governments.
The development culminated in the issuance by the President of Proclamation 1102 on January
17, 1973. Said proclamation reads:
PROCLAMATION NO. 1102 ANNOUNCING THE RATIFICATION BY THE FILIPINO PEOPLE OF THE
CONSTITUTION PROPOSED BY THE 1971 CONSTITUTIONAL CONVENTION.
WHEREAS, the Constitution proposed by the nineteen hundred seventy-one Constitutional
Convention is subject to ratification by the Filipino people;
WHEREAS, Citizens Assemblies were created in barrios in municipalities and in districts/wards in
chartered cities pursuant to Presidential Decree No. 6, dated December 31, 1972, composed of
all persons who are residents of the barrio, district or ward for at least six months, fifteen years
of age or over, citizens of the Philippines and who are registered in the list of Citizen Assembly
members kept by the barrio, district or ward secretary;
WHEREAS, the said Citizens Assemblies were establish precisely to broaden the base of citizen
participation in the democratic process and to afford ample opportunity for the citizen to express
their views on important national issues;
WHEREAS, responding to the clamor of the people an pursuant to Presidential Decree No. 86-A,
dated January 5, 1973, the following questions were posed before Citizens' Assemblies or
Barangays: Do you approve of the New Constitution? Do you still want a plebiscite to be called to
ratify the new Constitution?
WHEREAS, fourteen million nine hundred seventy-six thousand five hundred sixty one
(14,976,561) members of all the Barangays (Citizens Assemblies) voted for the adoption of the
proposed Constitution, as against seven hundred forty-three thousand eight hundred sixty nine
(743,869) who voted for its rejection; while on the question as to whether or not the people
would still like a plebiscite to be called to ratify the new Constitution fourteen million two
hundred ninety-eight thousand eight hundred fourteen (14,298,814) answered that there was no
need for plebiscite and that the vote of the Barangays (Citizens Assemblies) should be
considered as a vote in a plebiscite;
WHEREAS, since the referendum results show that more than ninety-five (95) percent of the
members of the Barangays (Citizen Assemblies) are in favor of the New Constitution, the
Katipunan ng Mga Barangay has strongly recommended that the new Constitution should already
be deemed ratified by the Filipino people;

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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 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.
Done in the City of Manila, this 17th day of January, in the year of Our Lord, nineteen hundred
and seventy-three.
The first attempt to question the steps just enumerated taken by the President was in the socalled Plebiscite Cases, ten in number, which were filed by different petitioners during the first
half of December 1972. 1 Their common target then was Presidential Decree No. 73, but before
the said cases could be decided, the series of moves tending in effect to make them moot and
academic insofar as they referred exclusively to the said Presidential Decree began to take shape
upon the issuance of Presidential Decree No. 86-A, quoted above. And when Presidential Decree
No. 86-B, also above quoted, was issued and the six additional questions which were first
publicized on January 11, 1973 were known, together with the "comments", petitioners sensed
that a new and unorthodox procedure was being adopted to secure approval by the people of the
new Constitution, hence Counsel 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 respondents to answer the same the next Wednesday,
January 17th, before the hour of the hearing of the petition which set for 9:30 o'clock in the
morning of that day. The details what happened that morning form part of the recital of facts the
decision rendered by this Court in the ten cases on January 22, 1973 and need not be repeated
here. Suffice it to state no that before the hearing could be closed and while Counsel 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 o'clock that same morning. In other words, the valiant and persistent
efforts of petitioners and their counsels were overtaken by adverse developments, and in the
mind of the majority of the members of the Court, the cases had become academic. For my part,
I took the view that even on the basis of the supplemental petition and the answer thereto filed
by respondents, the Court could already decide on the fundamental issue of the validity
Proclamation 1102, as Justices Zaldivar, Antonio and Esguerra also believed, inasmuch as
Counsel Taada's pleading and argument had anticipated its issuance, but the majority felt it was
not ready to resolve the matter, for lack, according them, of full ventilation, and so, the decision
reserved petitioners the filing of the "appropriate" cases, evidently, the present ones.
II
At the threshold, I find myself confronted by a matter which, although believed to be
inconsequential by my learned brethren, I strongly feel needs special attention. I refer to the
point raised by Counsel Arturo M. Tolentino for respondent Gil J. Puyat and Jose Roy, who have
been sued as President and President Pro Tempore of the Senate, to the effect that change in the
composition of the Supreme Court provided for the 1973 Constitution, from the 11-man tribunal
under the 1935 Constitution to a 15-man Court, makes of these cases which were filed after
January 17, 1973 the date when Proclamation 1102 declared the new Constitution as ratified,
political nature and beyond our jurisdiction. The main consideration submitted in this connection
is that inasmuch as the number votes needed for a decision of this Court has been increased
from six to eight in ordinary cases and from eight to ten for the declaration of unconstitutionality
of a treaty, executive agreement 2 or law, the Court would have to resolve first as a prejudicial
question whether the Court is acting in these cases as the 15-man or the 11-man Court, in which
event, it would be faced with the dilemma that if it acts either as the former or as the latter, it
would be prejudging the very matter in issue one way or the other, and, in effect, it would be
choosing between two constitutions, which is a political determination not within the Court's
competence.
While I agree that the problem is at first blush rather involved, I do not share the view that the
premises laid down by counsel necessarily preclude this Court from taking a definite stand on
whether the Court is acting in these cases as the 15-Man or the 11-man Court. I feel very
strongly that the issue should not be ignored or dodged, if only to make the world know that the
Supreme Court of the Philippines is never incognizant of the capacity in which it is acting, much
less lacking in courage or wisdom to resolve an issue that relates directly to its own composition.
What a disgrace it would be to admit that this Supreme Court does not know, to use a common

142

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

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necessarily follow that by this attitude of the President, considers the Supreme Court as still
operating under the Constitution. Quite on the contrary, it is a fact that he has given instructions
for the payment of the justices in accordance with the rate fixed in the New Constitution. Not
only that, official alter ego, the Secretary of Justice, has been shoving this Court, since January
18, 1973, all matters related to the administrative supervision of the lower courts which by the
new charter has been transferred from the Department of Justice to the Supreme Court, and as
far as I know, President has not countermanded the Secretary's steps in that direction. That, on
the other hand, the President has not augmented the justices of the Court to complete the
prescribed number of fifteen is, in my appraisal, of no consequence considering that with the
presence of ten justices who are the Court now, there is a working quorum, and the addition of
new justices cannot in anyway affect the voting on the constitutional questions now before Us
because, while there sufficient justices to declare by their unanimous vote illegality of
Proclamation 1102, the votes of the justices to added would only be committed to upholding the
same, since they cannot by any standard be expected to vote against legality of the very
Constitution under which they would be appointed.
Moreover, what makes the premise of presumptive valid preferable and, even imperative, is that
We are dealing here with a whole constitution that radically modifies or alters only the form of
our government from presidential parliamentary but also other constitutionally institutions vitally
affecting all levels of society. It is, to mind, unrealistic to insist on that, fundamentally, the 1973
Constitution is the same 1935 Constitution, with a few improvements. A cursory perusal of the
former should convince anyone that it is in essence a new one. While it does retain republicanism
as the basic governmental tenet, the institutional changes introduced thereby are rather radical
and its social orientation is decidedly more socialistic, just as its nationalistic features are
somewhat different in certain respects. One cannot but note that the change embraces
practically every part of the old charter, from its preamble down to its amending and effectivity
clauses, involving as they do the statement of general principles, the citizenship and suffrage
qualifications, the articles on the form of government, the judiciary provisions, the spelling out of
the duties and responsibilities not only of citizens but also of officers of the government and the
provisions on the national economy as well as the patrimony of the nation, not to mention the
distinctive features of the general provisions. What is more, the transitory provisions notably
depart from traditional and orthodox views in that, in general, the powers of government during
the interim period are more or less concentrated in the President, to the extent that the
continuation or discontinuance of what is now practically a one-man-rule, is even left to his
discretion. Notably, the express ratification of all proclamations, orders, decrees and acts
previously issued or done by the President, obviously meant to encompass those issued during
martial law, is a commitment to the concept of martial law powers being implemented by
President Marcos, in defiance of traditional views and prevailing jurisprudence, to the effect that
the Executive's power of legislation during a regime of martial law is all inclusive and is not
limited to the matters demanded by military necessity. In other words, the new constitution
unlike any other constitution countenances the institution by the executive of reforms which
normally is the exclusive attribute of the legislature.
Withal, the best proofs that by its expressed and implied intent, the Constitution of 1973 is a new
one, are that (1) Section 16 of its Article XVII which provides that this constitution shall
"supersede the Constitution of nineteen hundred and thirty-five and all amendments thereto"
and (2) its transitory provisions expressly continue the effectivity of existing laws, offices and
courts as well as the tenure of all incumbent officials, not adversely affected by it, which would
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-manCourt, otherwise, We would just continue to be in our membership in the 15-man-Court, unless
We feel We cannot in conscience accept the legality of existence. On the other hand, if it is
assumed that We are the 11-man-Court and it happens that Our collective decision is in favor of
the new constitution, it would be problematical for any dissenting justice to consider himself as
included automatically in the 15-man-Court, since that would tantamount to accepting a position
he does not honestly believe exists.
III
In brief, the main contention of the petitioners is that Proclamation 1102 is invalid because the
ratification of the 1973 Constitution it purports to declare as having taken place as a result of the
referendum above-referred to is ineffective since it cannot be said on the basis of the said
referendum that said Constitution has been "approved by a majority of the votes cast at an
election" in the manner prescribed by Article XV the Constitution of 1935. More specifically, they
maintain that the word "election" in the said Article has already acquired a definite accepted

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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 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 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 yo 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 expressed disapproval of
the new Constitution, the logical consequence would have been the complete abandonment of
the idea of holding any plebiscite at all. On the other hand, it is very plain to see that since the
majority has already approved the new Constitution, a plebiscite would be superfluous. Clear as
these rationalizations may be, it must have been thought that if the holding of a plebiscite was to
be abandoned, there should be a direct and expressed desire of the people to such effect in
order to forestall as much as possible any serious controversy regarding the non-holding of the
plebiscite required by the letter of Section 16 of Article XVII, the effectivity clause, of the new
Constitution. Oddly enough, the "comments" accompanying the questions do strongly suggest
this view. And as it turned out, the majority found no necessity in holding a plebiscite.
In connection with the question, Do you approve of the New Constitution? capital is being made
of the point that as so framed, the thrust of the said question does not seek an answer of fact but
of opinion. It is argued that it would have been factual were it worded categorically thus Do

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you approve the New Constitution? The contention would have been weighty were it not
unrealistic. I remember distinctly that the observation regarding the construction of the subject
question was not originally made by any of the talented counsels for petitioners. It came from Mr.
Justice Fred Ruiz Castro whose mastery of the English language can rightly be the cause of envy
of even professors of English. None of the other members of the Court, as far as I can recall, ever
noticed how the said question is phrased, or if anyone of Us did, I am not aware that he gave it
more than passing attention. What I mean is that if neither any of the distinguished and learned
counsels nor any member of the Court understood the said question otherwise than calling for a
factual answer instead of a mere opinion, how could anyone expect the millions of unlettered
members of the Citizens Assemblies to have noticed the point brought out by Justice Castro?
Truth to tell, I myself did not realize the difference until Justice Castro gave it emphasis. Besides,
reading the question in the light of the accompanying "comment" corresponding to it in
particular, I am certain that any one who answered the same understood it in no other sense
than a direct inquiry as to whether or not, as a matter of fact, he approves the New Constitution,
and naturally, 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 objective in having a new constitution is to establish new
directions in the pursuit of the national aspirations and the carrying out of national policies. Only
by bearing these considerations in mind can the "comments" already referred to be properly
appreciated. To others said "comments" may appear as evidence of corruption of the will of those
who attended the assemblies, but actually, they may also be viewed in the same light as the
sample ballots commonly resorted to in the elections of officials, which no one can contend are
per se means of coercion. Let us not forget that the times are abnormal, and prolonged dialogue
and exchange of ideas are not generally possible, nor practical, considering the need for faster
decisions and more resolute action. After all voting on a whole new constitution is different from
voting on one, two or three specific proposed amendments, the former calls for nothing more
than a collective view of all the provisions of the whole charter, for necessarily, one has to take
the good together with the bad in it. It is rare for anyone to reject a constitution only because of
a few specific objectionable features, no matter how substantial, considering the ever present
possibility that after all it may be cured by subsequent amendment. Accordingly, there was need
to indicate to the people the paths open to them in their quest for the betterment of their
conditions, and as long as it is not shown that those who did not agree to the suggestions in the
"comments" were actually compelled to vote against their will, I am not convinced that the
existence of said "comments" should make any appreciable difference in the court's appraisal of
the result of the referendum.
I must confess that the fact that the referendum was held during martial law detracts somehow
from the value that the referendum would otherwise have had. As I intimated, however, in my
former opinion, it is not fair to condemn and disregard the result of the referendum barely
because of martial law per se. For one thing, many of the objectionable features of martial law
have not actually materialized, if only because the implementation of martial law since its
inception has been generally characterized by restraint and consideration, thanks to the
expressed wishes of the President that the same be made "Philippine style", which means
without 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

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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.
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 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.

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

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

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The language of the disputed amending clause of the 1935 Constitution should not be deemed
as the be all and end all the nation. More important than even the Constitution itself with all its
excellent features, are the people living under it their happiness, their posterity and their
national destiny. There is nothing that cannot be sacrificed in the pursuit of these objectives,
which constitute the totality of the reasons for national existence. The sacred liberties and
freedom enshrined in it and the commitment and consecration thereof to the forms of democracy
we have hitherto observed are mere integral parts of this totality; they are less important by
themselves.
What seems to me to be bothering many of our countrymen now is that by denying the present
petitions, the Court would be deemed as sanctioning, not only the deviations from traditional
democratic concepts and principles but also the qualified curtailment of individual liberties now
being practiced, and this would amount, it is feared, to a repudiation of our oath to support and
defend the Constitution of 1935. This is certainly something one must gravely ponder upon.
When I consider, however, that the President, the Vice President, the members of both Houses of
Congress, not to speak of all executive departments and bureaus under them as well as all the
lower courts, including the Court of Appeals have already accepted the New Constitution as an
instrument of a meaningful nationwide-all-level change in our government and society purported
to make more realistic and feasible, rather than idealistic and cumbersomely deliberative, the
attainment of our national aspirations, I am led to wonder whether or not we, as members of the
Supreme Court are being true to our duty to our people by refusing to follow suit and accept the
realities of the moment, despite our being convinced of the sincerity and laudableness of their
objectives, only because we feel that by the people's own act of ratifying the 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 people's faith in the government, I cannot agree, albeit my
admiration and respect are all theirs for their zeal and tenacity, their industry and wisdom, their
patriotism and devotion to principle. Verily, they have brought out everything in the Filipino that
these cases demand.
In times of national emergencies and crises, not arising from foreign invasion, we need not fear
playing opposite roles, as long as we are all animated by sincere love of country and aim
exclusively at the attainment of the national destiny. Our heroes of the past, Rizal, Bonifacio,
Aguinaldo, Antonio Luna, Mabini and so also with our patriots of the recent generations, Quezon,
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.
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

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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 quasijudicial 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).
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 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:
... 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 ... . 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, 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

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which the Constitution has committed it "conclusively binds the judges, as well as all other
officers, citizens and subjects of...government." Proclamation under authority of Congress that an
amendment has been ratified will carry with it a solemn assurance by the Congress that
ratification has taken place as the Constitution commands. Upon this assurance a proclaimed
amendment must be accepted as a part of the Constitution, leaving to the judiciary its traditional
authority of interpretation. To the extent that the Court's opinion in the present case even
impliedly assumes a power to make judicial interpretation of the exclusive constitutional
authority of Congress over submission and ratification of amendments, we are unable to agree...
(American Constitutional Issues, by Pritchett, 1962 Ed., p. 44).
The doctrine in the aforesaid case of Coleman vs. Miller was adopted by Our Supreme Court in
toto in Mabanag vs. Lopez Vito (78 Phil. 1).
The ruling in the cases of Gonzales vs. Comelec, et al. (L-28224, Nov. 29, 1967, 21 SCRA 774)
and Tolentino vs. Comelec, et al. (L-34150, Oct. 16, 1971, 41 SCRA 702) on which petitioners
place great reliance that the courts may review the propriety of a submission of a proposed
constitutional amendment before the ratification or adoption of such proposed amendment by
the sovereign people, hardly applies to the cases at bar; because the issue involved in the
aforesaid cases refers to only the propriety of the submission of a proposed constitutional
amendment to the people for ratification, unlike the present petitions, which challenge inevitably
the validity of the 1973 Constitution after its ratification or adoption thru acquiescence by the
sovereign people. As heretofore stated, it is specious and pure sophistry to advance the
reasoning that the present petitions pray only for the nullification of the 1973 Constitution and
the government operating thereunder.
It should be stressed that even in the Gonzales case, supra, We held that:
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 Constit