G.R. No.

L-36142 March 31, 1973

G.R. No. L-36236 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.

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-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-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

appropriating funds therefor," as well as setting the

plebiscite for said ratification or rejection of the
Proposed Constitution on January 15, 1973.

CONCEPCION, C.J.:

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."

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

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. L-35953); on December
14, 1972, by Jacinto Jimenez against the Commission
on Elections, the Auditor General, the Treasurer of the
Philippines and the Director of the Bureau of Printing
(Case G.R. No. L-35961), and by Raul M. Gonzales
against the Commission on Elections, the Budget
Commissioner, the National Treasurer and the Auditor
General (Case G.R. No. L-35965); and on December
16, 1972, by Ernesto C. Hidalgo against the
Commission on Elections, the Secretary of Education,
the National Treasurer and the Auditor General (Case
G.R. No. L-35979).
In all these cases, except the last (G.R. No. L-35979),
the respondents were required to file their answers "not
later than 12:00 (o'clock) noon of Saturday, December
16, 1972." Said cases were, also, set for hearing and
partly heard on Monday, December 18, 1972, at 9:30
a.m. The hearing was continued on December 19,
1972. By agreement of the parties, the aforementioned
last case G.R. No. L-35979 was, also, heard,
jointly with the others, on December 19, 1972. At the
conclusion of the hearing, on that date, the parties in all
of the aforementioned cases were given a short period
of time within which "to submit their notes on the points
they desire to stress." Said notes were filed on different
dates, between December 21, 1972, and January 4,
1973.
Meanwhile, or on December 17, 1972, the President
had issued an order temporarily suspending the effects
of Proclamation No. 1081, for the purpose of free and
open debate on the Proposed Constitution. On
December 23, the President announced the
postponement of the plebiscite for the ratification or
rejection of the Proposed Constitution. No formal action
to this effect was taken until January 7, 1973, when
General Order No. 20 was issued, directing "that the

plebiscite scheduled to be held on January 15, 1978,

be postponed until further notice." Said General Order
No. 20, moreover, "suspended in the meantime" the
"order of December 17, 1972, temporarily suspending
the effects of Proclamation 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;

"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:

[2] Reforms instituted under Martial Law;

[1] Do you like the New Society?

[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);

[2] Do you like the reforms under martial

law?

[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;

[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
Constitution?

approve

of

the

new

[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

tion
?
in relation to the question following it:

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
app
rov
e of
the
Ne
w
Con
stitu

Do you still
want
a
plebiscite
to
be
called to
ratify the
new
Constitutio
n?"
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 socalled 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;

"By the President:

"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 seventythree.
(Sgd.)
FERDINAND
E.
MARCOS
"President of the
Philippines

"ALEJANDRO
"Executive Secretary"

MELCHOR

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.

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-inChief 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."

The Present Cases

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.

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

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

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 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 mandamusbe 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 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, L36164, 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. L36164 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 L-36165.
Counsel for the petitioners, likewise, moved and were granted an
extension of time, to expire on March 10, 1973, within which to file, as
they did, their notes in reply to those submitted by the Solicitor
General on March 3, 1973. On March 21, 1973, petitioners in L-36165
filed a "Manifestation a Supplemental Rejoinder," whereas the Office
of the Solicitor General submitted in all these cases a "Rejoinder
Petitioners' Replies."
After deliberating on these cases, the members of the Court agreed
that each would write his own opinion and serve a copy thereof on his
colleagues, and this they did. Subsequently, the Court discussed said
opinions and votes were cast thereon. Such individual opinions are
appended hereto.
Accordingly, the writer will first express his person opinion on the
issues before the Court. After the exposition his aforesaid opinion, the

writer will make, concurrently with his colleagues in the Court, a

resume of summary of the votes cast by them in these cases.
Writer's Personal Opinion
I.
Alleged academic futility of further proceedings in G.R. L-36165.
This defense or theory, set up by counsel for respondents Gil J. Puyat
and Jose Roy in G.R. No. L-36165, and, also, by the Solicitor
General, is predicated upon the fact that, in Our decision in the
plebiscite cases, Mr. Justice Barredo had expressed the view that the
1935 Constitution had "pro tanto passed into history" and "been
legitimately supplanted by the Constitution now in force by virtue of
Proclamation No. 1102 ..."; 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:
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

orders, may be promulgated in an executive

proclamation, with all the force of an executive order. 14

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.

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.

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 (GovernorGeneral) 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

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 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, 21insofar 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, 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 withinthe 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, nonjusticiable 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
question is political, and not judicial,
matter which is to be exercised by the
primary political capacity, or that

is said that a
is that it is a
people in their
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
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 mainfunctions 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, thejudicial 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.
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 noprovision 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 justiciablequestion. 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 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
37
authority."
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
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 above-mentioned cases, the petitioners in L-36283
argue that "(t)he creation of the Citizens' Assemblies as the vehicle for
the ratification of the Constitution was a deception upon the people
since the President announced the postponement of the January 15,
1973 plebiscite to either February 19 or March 5, 1973." 38
The reasons adduced by the petitioners in L-36165 in favor of the
negative view have already been set forth earlier in this opinion.
Hence, it is unnecessary to reproduce them here. So it is, with respect
to the positions taken in L-36165 by counsel for therein respondents
Gil J. Puyat and Jose Roy although more will be said later about
them and by the Solicitor General, on behalf of the other
respondents in that case and the respondents in the other cases.
1. What is the procedure prescribed by the 1935 Constitution for its
amendment?
Under section 1 of Art. XV of said Constitution, three (3) steps are
essential, namely:
1. That the amendments to the Constitution be proposed either by
Congress or by a convention called for that purpose, "by a vote of
three-fourths of all the Members of the Senate and the House of
Representatives voting separately," but "in joint session assembled";

2. That such amendments be "submitted to the people for their

ratification" at an "election"; and
3. That such amendments be "approved by a majority of the votes
cast" in said election.
Compliance with the first requirement is virtually conceded, 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, alladministrative
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
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.

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."

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.

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. 48Besides, 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.

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

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,

ranges from 2 to 6 years.

49

whose average term

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 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 impossibleto 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 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. 64Moreover, 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 utmostimportance, 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 ... ."
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. 86-B, dated 1973, ordering "that important
national issues shall from time to time; be referred to the Barangays
(Citizens Assemblies) for resolution in accordance with Presidential
Decree No. 86-A dated January 5, 1973 and that the initial
referendum include the matter of ratification of the Constitution by the
1971 Constitutional Convention" and that "(t)he Secretary of the
Department of Local Governments and Community Development shall
insure the implementation of this order." As in the case of Presidential
Decrees Nos. 86 and 86-A, the foregoing directives do not necessarily
exclude exercise of the powers vested by the 1935 Constitution in the
Commission on Elections, even if the Executive had the authority to
repeal Art. X of our Fundamental Law which he does not possess.
Copy of Presidential Decree No. 86-B is appended hereto as Annex B
hereof.
The point is that, such of the Barrio Assemblies as were held took
place without the intervention of the Commission on Elections, and
without complying with the provisions of the Election Code of 1971 or
even of those of Presidential Decree No. 73. What is more, they were
held under the supervision of the very officers and agencies of the
Executive Department sought to be excluded therefrom by Art. X of
the 1935 Constitution. Worse still, said officers and agencies of the
1935 Constitution would be favored thereby, owing to the practical
indefinite extension of their respective terms of office in consequence
of section 9 of the Transitory Provisions, found in Art. XVII of the

proposed Constitution, without any elections therefor. And the

procedure therein mostly followed is such that there is no reasonable
means of checking the accuracy of the returns files by the officers
who conducted said plebiscites. This is another patent violation of Art.
of the Constitution which can hardly be sanctioned. And, since the
provisions of this article form part of the fundamental scheme set forth
in the 1935 Constitution, as amended, to insure the "free, orderly, and
honest" expression of the people's will, the aforementioned violation
thereof renders null and void the contested proceedings or alleged
plebiscite in the Citizens' Assemblies, insofar as the same are claimed
to have ratified the revised Constitution proposed by the 1971
Constitutional Convention. "... (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

proclamation, the former would, in effect, veto the action of the people
in whom sovereignty resides and from its power are derived.

IV

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."

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

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. ... .

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.
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 legalfoundation.
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 facieevidence 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."

Inasmuch as Art. X of the 1935 Constitution places under the

"exclusive" charge of the Commission on Elections, "the enforcement
and administration of all laws relative to the conduct of
elections," independently of the Executive, and there is not even a
certification by the Commission in support of the alleged results of the
citizens' assemblies relied upon in Proclamation No. 1102 apart
from the fact that on January 17, 1973 neither the alleged president of
the Federation of Provincial or City Barangays nor the Department of
Local Governments had certified to the President the alleged result of
the citizens' assemblies all over the Philippines it follows
necessarily that, from a constitutional and legal viewpoint,
Proclamation No. 1102 is not even prima facie evidence of the alleged
ratification of the proposed Constitution.

Referring to the effect of the certification of the State Board of

Canvassers created by the Legislature and of theproclamation 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."

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

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

Even counsel for Gil J. Puyat and Jose Roy, as respondents in L36165, 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 "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 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 upgovernment 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 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, noneof the foregoing
acts of acquiescence was present. Worse still, there is martial law,
the strict enforcement of which was announced shortly before the
alleged citizens' assemblies. To top it all, in the Taylor case, the
effectivity of the contested amendment was not contested judicially
until about one (1) year after the amendment had been put into

operation in all branches of the Government, and complied with by the

people who participated in the elections held pursuant to the
provisions of the new Constitution. In the cases under consideration,
the legality of Presidential Decree No. 73 calling a plebiscite to be
held on January 15, 1973, was impugned as early as December 7,
1972, or five (5) weeks before the scheduled plebiscite, whereas the
validity of Proclamation No. 1102 declaring on January 17, 1973, that
the proposed Constitution had been ratified despite General Order
No. 20, issued on January 7, 1972, formally and officially suspending
the plebiscite until further notice was impugned as early as January
20, 1973, when L-36142 was filed, or three (3) days after the issuance
of Proclamation No. 1102.
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 PlotAgainst '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 connotespower 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 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 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.

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.

And, now, here are my views on the reliefs sought by the parties.
Resume of the Votes Cast and the Court's Resolution
In L-36165, it is clear that we should not issue the writ
of mandamus prayed for against Gil J. Puyat and Jose Roy, President
and President Pro Tempore respectively of the Senate, it being settled
in our jurisdiction, based upon the theory of separation of powers, that
the judiciary will not issue such writ to the head of a co-equal
department, like the aforementioned officers of the Senate.
In all other respects and with regard to the other respondent in said
case, as well as in cases L-36142, L-36164, L-36236 and L-36283,
my vote is that the petitions therein should be given due course, there
being more thanprima 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.

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 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

third question that they could not state with judicial

certainty whether the people have accepted or not
accepted the Constitution; and

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

with the result that there are not enough votes to declare that the new
Constitution is not in force.

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

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;

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 beenjudicially determined whether a proposed
amendment received the constitutional majority of votes (Dayton v. St.
Paul, 22 Minn. 400; Rice v. Palmer, 78 Ark. 432, 96 S.W. 396; Bott v.
Wurtz, 63 N.J. Law, 289, 43 Atl. 744, 881, 45 L.R.A. 251; State v.
Foraker, 46 Ohio St. 677, 23 N.E. 49l; 6 L.R.A. 422; Tecumseh
National Bank V. Saunders, 51 Neb. 801, 71 N.W. 779; Green v. State
Board, 5 Idaho, 130, 47 Pac. 259, 95 Am. St. Rep. 169; In re Denny,
156 Ind. 104, 59 N.E. 359, 51 L.R.A. 722; Knight v. Shelton [C.C.] 134
Fed. 423); whether a proposed amendment is a single amendment,
within the constitutional requirement that every amendment must be
separately submitted (State v. Powell, 77 Miss. 543, 27 South. 927;
Gabbert v. Chicago, etc., R. Co., 171 Mo. 84, 70 S.W. 891; State v.
Timme, 54 Wis. 318, 11 N.W. 785; In re Denny, 156 Ind. 104, 59 N.E.
359, 51 L.R.A. 722; Lobaugh v. Cook, 127 Iowa, 181, 102 N.W. 1121;
People v. Sours, 31 Colo. 369, 74 Pac. 167, 102 Am. St. Rep. 34;
State v. Board, 34 Mont. 426, 87 Pac. 450; State v. Winnett [Neb.] 110
N.W. 1113, 10 L.R.A. [N.S.] 149); whether the failure to enter the
resolution of submission upon the legislative journals invalidates the
amendment (Koehler v. Hill, 60 Iowa, 543,14 N.W. 738,15 N.W. 609;
Oakland Paving Co. v. Hilton, 69 Cal. 479, 11 Pac. 3; West v. State,

50 Fla. 154, 39 South. 412; Durfee v. Harper, 22 Mont. 354, 56 Pac.

56; State v. Tufly, 19 Nev. 391, 12 Pac. 835, 3 Am. St. Rep.
895); whether the description of the amendment and the form of the
ballot are sufficient (Russell v. Croy, 164 M 69, 63 S.W. 849; State v.
Winnett [ Neb.] 110 N.W. 1113, L.R.A. [N.S.] 149; Murphy Chair Co. v.
Attorney General [Mich.] 112 N.W. 127); whether the method of
submission sufficient (Lovett v. Ferguson,, 10 S.D. 44, 71 N.W. 765;
Russell v. Croy, 164 Mo. 69, 63 S.W. 849); whether the publication of
the amendment or of a notice relative to it is sufficient (Com. v. Griest,
196 Pa. 396, 46 Atl. 505, 50 L.R.A. 568; Russell v. Croy, 164 Mo. 69,
63 S.W. 849); whether the submission may be well by resolution as by
a legislative act approved by the executive (Com. v. Griest, 196 Pa.
396, 46 Atl. 505, 50 L.R. 568; Warfield vi Vandiver, 101 Md. 78, 60 Atl.
538; Edward Lesueur, 132 Mo. 410, 33 S.W. 1130, 31 L.R.A. 815;
Hays v. Hays, 5 Idaho, 154, 47 Pac. 732; State v. Dahl, 6 N.D. 81, 6
N.W. 418, 34 L.R.A. 97); at what election the amendment be
submitted (People v. Curry, 130 Cal. 82, 62 Pac. 516).
In Rich v. Board of Canvassers, 100 Mich. 458, 59 N.W. 183, the court
said: "It is contended that the determination of the question whether
an amendment to the Constitution has been carried involves the
exercise of political, and not judicial, power. If this be so, it follows that
the promulgation of any purported amendment by the executive or
any executive department is final, and that the action cannot be
questioned by the judiciary; but, with reference to the conditions
precedent to submitting a proposed amendment to a vote of the
people, it has been repeatedly held, by courts of the highest
respectability, that it is within the power of the judiciary to inquire into
the question, even in a collateral proceeding. ... It is to be noted that
under section 1 of article 20 of the Constitution of the state no
amendment can become a part of the Constitution until ratified by a
vote of the people. One prerequisite is equally as essential as the
other. The amendment must first receive the requisite majority in the
Legislature, and afterwards be adopted by the requisite vote. ... It is
the fact of a majority vote which makes the amendment a part of the
Constitution."

"In considering the cases it is necessary to note whether in the

particular case the court was called upon to determine between rival
governments, or whether the Legislature, or 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 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 17amendments 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, insertedinto the Constitution of the state of Mississippi as a part of
the Constitution.' In fact, the amendment was notsubmitted in the
manner prescribed by the Constitution, and it did not receive a
majority of all the qualified voters voting at the election. It was argued
that the rules prescribed by the Constitution "are all for the guidance
of the Legislature, and from the very nature of the thing the
Legislature must be the exclusive judge of all questions to be
measured or determined by these rules. Whether the question be
political, and certainly a legislative one, or judicial, to be determined
by the courts, this section of rules, not only of procedure, but of final
judgment as well, confides to the separate magistracy of
the legislative department full power to hear, consider, and adjudge
that
question.
The
Legislature
puts
the
question
to
the qualified electors. The qualified electors answer back to the
Legislature. "If it shall appear" to the Legislature that its question has
been answered in the affirmative, the amendment is inserted and
made a part of the Constitution. The Governor and the courts have no
authority to speak at any stage of the proceedings between the
sovereign and the Legislature, and when the matter is thus concluded
it is closed, and the judiciary is as powerless to interfere as the
executive.' But it was held that the question whether the proposition
submitted to the voters constituted one, or more than one,
amendment, whether the submission was according to the
requirements of the Constitution, and whether the proposition was in
fact adopted, were all judicial, and not political, questions. 'We do not,'
said Chief Justice Whitfield, 'seek a jurisdiction not imposed upon us
by the Constitution. We could not, if we would, escape the exercise of
that jurisdiction which the Constitution has imposed upon us. In the
particular instance in which we are now acting, our duty to know what
the Constitution of the state is, and in accordance with our oaths to
support and maintain it in its integrity, imposed on us a most difficult
and embarrassing duty, one which we have not sought, but one
which, like all others, must be discharged."
"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 subjectmatter 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 anyprevailing 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;
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)
FERDINAND E. MARCOS

By the President:
(SGD.)
Executive Secretary

ALEJANDRO

MELCHOR

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 andplebiscites 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 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.
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.

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.

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

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 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
juregovernment 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 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 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.

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?

In his TV address of September 23, 1972, President Marcos told the

nation:

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 highschool 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.

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

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 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 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
BARANGAYS (CITIZENS ASSEMBLIES)

THE

ROLE

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-inChief of all Armed Forces of the Philippines, do hereby
declare as part of the law of the land the following:

OF
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;
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 seventythree.
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?

xxx xxx xxx

(3) Do you like Congress again to hold sessions?

QUESTION No. 2

(4) Do you like the plebiscite to be held later?

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.

(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

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;
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 seventythree.
The first attempt to question the steps just enumerated taken by the
President was in the so-called Plebiscite Cases, ten in number, which
were filed by different petitioners during the first half of December
1972. 1 Their common target then was Presidential Decree No. 73, but
before the said cases could be decided, the series of moves tending
in effect to make them moot and academic insofar as they referred
exclusively to the said Presidential Decree began to take shape upon
the issuance of Presidential Decree No. 86-A, quoted above. And
when Presidential Decree No. 86-B, also above quoted, was issued
and the six additional questions which were first publicized on January
11, 1973 were known, together with the "comments", petitioners
sensed that a new and unorthodox procedure was being adopted to
secure approval by the people of the new Constitution, hence Counsel
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 86B 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 11man 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 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-man- Court, otherwise,
We would just continue to be in our membership in the 15-man-Court,
unless We feel We cannot in conscience accept the legality of
existence. On the other hand, if it is assumed that We are the 11-manCourt 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.
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.
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 semeans 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 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" 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-avis 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
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 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. L36164. 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 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
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)

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.

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).

In the 1946 case of Wheeler vs. Board of Trustees (37 SE 2nd 322,
326-330), which enunciated the principle that the validity of a new or
revised Constitution does not depend on the method of its submission
or ratification by the people, but on the fact or fiat or approval or
adoption or acquiescence by the people which fact of ratification or
adoption or acquiescence is all that is essential, the Court cited
precisely the case of the irregular revision and ratification by state
conventions of the Federal Constitution, thus:
No case identical in its facts with the case now under
consideration has been called to our attention, and we
have found none. We think that the principle which we
apply in the instant case was very clearly applied in the
creation of the constitution of the United States. The
convention created by a resolution of Congress had
authority to do one thing, and one only, to wit, amend
the articles of confederation. This they did not do, but
submitted to the sovereign power, the people, a new
constitution. In this manner was the constitution of the
United States submitted to the people and it became
operative as the organic law of this nation when it had
been properly adopted by the people.
Pomeroy's Constitutional Law, p. 55, discussing the
convention that formulated the constitution of the
United States, has this to say: "The convention
proceeded to do, and did accomplish, what they were
not authorized to do by a resolution of Congress that
called them together. That resolution plainly
contemplated amendments to the articles of
confederation, to be submitted to and passed by the
Congress, and afterwards ratified by all the State
legislatures, in the manner pointed out by the existing
organic law. But the convention soon became
convinced that any amendments were powerless to

effect a cure; that the disease was too deeply seated

to be reached such tentative means. They saw that the
system they were called to improve must be totally
abandoned, and that the national idea must be reestablished 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. 270281). In Chapter XX on "The Creative Period in Politics, 1785-1788,"
Professor Morison delineates the genesis of the Federal Constitution,
but does not refer to it even implicitly as revolutionary constitution (pp.
297-316). However, the Federal Constitution may be considered
revolutionary from the view point of McIver if the term revolution is
understood in "its wider sense to embrace decisive changes in the
character of government, even though they do not involve the violent
overthrow of an established order, ... ." (R.M. MacIver, The Web of
Government, 1965 ed., p. 203).

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.

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.

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.

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.

"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

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.

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 reenunciated in 1912 in the case of Pacific States Telephone and
Telegraph Company vs. Oregon (223 U.S. 118, 133-151, 56 L.ed.
377-386). Because it reaffirmed the pronouncements in both Borden
and Beckham cases, it is sufficient for us to quote the decision in
Pacific States Telephone and Telegraph Co., supra, penned by Mr.
Chief Justice White, who re-stated:

xxx xxx xxx

... On this subject it was said (p. 38):

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

... 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 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."

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.

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."

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.

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).

All the local governments, dominated either by Nacionalistas or

Liberals, as well as officials of the Legislative and Executive branches
of the government elected and/or appointed under the 1935
Constitution have either recognized or are now functioning under the
1973 Constitution, aside from the fact of its ratification by the
sovereign people through the Citizens Assemblies. Ninety-five (95) of
a total of one hundred ten (110) members of the House of
Representatives including the Speaker and the Speaker Pro Tempore
as well as about eleven (11) Congressmen who belong to the Liberal
Party and fifteen (15) of a total of twenty-four (24) senators including
Liberal senators Edgar U. Ilarde and John Osmea opted to serve in
the Interim Assembly, according to the certification of the Commission
on Elections dated February 19, 1973 (Annex Rejoinder-3 to
Consolidated Rejoinder of petitioners in L-36165). Only the five (5)
petitioners in L-36165 close their eyes to a fait accompli. All the other

functionaries recognize the new government and are performing their

duties and exercising their powers under the 1973 Constitution,
including the lower courts. The civil courts, military tribunals and
quasi-judicial bodies created by presidential decrees have decided
some criminal, civil and administrative cases pursuant to such
decrees. The foreign ambassadors who were accredited to the
Republic of the Philippines before martial law continue to serve as
such in our country; while two new ambassadors have been accepted
by the Philippines after the ratification of the 1973 Constitution on
January 17, 1973. Copies of the 1973 Constitution had been furnished
the United Nations Organization and practically all the other countries
with which the Philippines has diplomatic relations. No adverse
reaction from the United Nations or from the foreign states has been
manifested. On the contrary, our permanent delegate to the United
Nations Organization and our diplomatic representatives abroad
appointed before martial law continue to remain in their posts and are
performing their functions as such under the 1973 Constitution.
Even the Commission on Elections is now implementing the
provisions of the 1973 Constitution by requiring all election 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 noncompliance 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, 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. 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. 11211 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 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 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 L36164 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

L-36165 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 L36165 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).
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 (ErmitaMalate Hotel, etc. vs. City Mayor, L-24698, July 31, 1967, 20 SCRA
849).
III
CONSTITUTIONAL CONVENTION CO-EQUAL WITH AND
INDEPENDENT OF CONGRESS, EXECUTIVE AND JUDICIARY.
The Constitutional Convention is co-ordinate and co-equal with, as
well as independent of, the three grand departments of the
Government, namely, the legislative, the executive and the judicial. As
a fourth separate and distinct branch, to emphasize its independence,
the Convention cannot be dictated to by either of the other three
departments as to the content as well as the form of the Charter that it
proposes. It enjoys the same immunity from interference or
supervision by any of the 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 national concern is

still within the delegated authority reposed in him by the Constitutional

Convention as aforesaid.

appropriating funds therefor pursuant to said Resolution No. 29, is a

valid exercise of such delegated authority.

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.

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:

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

... 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

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:

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
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, L35948, L-35953, L-35961, L-35965, & L-35979), Chief Justice Roberto
Concepcion, concurred in by Justices Fernando, Barredo, Antonio and
the writer, overruled this objection, thus:
... Regardless of the wisdom and moral
aspects of the contested provisions of
the proposed Constitution, it is my
considered view that the Convention
was legally deemed fit to propose
save perhaps what is or may be

insistent with what is now known,

particularly in international law, as Jus
Cogens not only because the
Convention exercised sovereign powers
delegated thereto by the people
although
insofar
only
as
the
determination of the proposals to be
made and formulated by said body is
concerned but also, because said
proposals cannot be valid as part of our
Fundamental Law unless and until
"approved by the majority of the votes
cast at an election which" said proposals
"are submitted to the people for their
ratification," as provided in Section 1 of
Article XV of the 1935 Constitution. (Pp.
17-18, Decision in L-35925, etc.).
This Court likewise enunciated in Del Rosario vs. Comelec (L-32476,
Oct. 20, 1970, 35 SCRA 367) that the Constitutional Convention has
the authority to "entirely overhaul the present Constitution and
propose an entirely new Constitution based on an ideology foreign to
the democratic system ...; 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
PROMULGATED.

DULY

ADOPTED

AND

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
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
Constitution of Alabama (1901):

examples:

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

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.

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, reelection 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.
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. Powers of the barrio assembly. The powers

of the barrio assembly shall be as follows:
a. To recommend to the barrio council
the adoption of measures for the welfare
of the barrio;
b. To decide on the holding of a
plebiscite as provided for in Section 6 of
this Act;
c. To act on budgetary and supplemental
appropriations
and
special
tax
ordinances submitted for its approval by
the barrio council; and
d. To hear the annual report council
concerning the activities and finances of
the assembly.
Sec. 6. Plebiscite. A plebiscite may be held in the
barrio when authorized by a majority vote of the
members present in the barrio assembly, there being a
quorum, or when called by at least four members of the
barrio council; Provided, however, That no plebiscite
shall be held until after thirty days from its approval by
either body, and such plebiscite has been given the
widest publicity in the barrio, stating the date, time, and
place thereof, the questions or issues to be decided,
action to be taken by the voters, and such other
information relevant to the holding of the plebiscite.

All duly registered barrio assembly members qualified

to vote may vote in the plebiscite. Voting procedures
may be made either in writing as in regular election,
and/or declaration by the voters to the board of election
tellers. The board of election tellers shall be the same
board envisioned by section 8, paragraph 2 of this Act,
in case of vacancies in this body, the barrio council
may fill the same.
A plebiscite may be called to decide on the recall of
any member of the barrio council. A plebiscite shall be
called to approve any budgetary, supplemental
appropriations or special tax ordinances.
For taking action on any of the above enumerated
measures, majority vote of all the barrio assembly
members registered in the list of barrio secretary is
necessary.
xxx xxx xxx
Sec 10. Qualifications of voters and candidates.
Every citizen of the Philippines, twenty-one years of
age or over, able to read and write, who has been a
resident of the barrio during the six months
immediately preceding the election, duly registered in
the list of voters kept by the barrio secretary, who is not
otherwise disqualified, may vote or be a candidate in
the barrio elections.
The following persons shall not be qualified to vote:
a. Any person who has been sentenced
by final judgment to suffer one year or
more of imprisonment, within two years
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 L36165 and two of the petitioners in L-36164 participated in the
enactment of Republic Act No. 3590 and should have known the
intendment of Congress in expanding the membership of the barrio
assembly to include all those 18 years of age and above, whether
literate or not.
If Congress in the exercise of its ordinary legislative power, not as a
constituent assembly, can include 18-year olds as qualified electors
for barrio plebiscites, this prerogative can also be exercised by the
Chief Executive as delegate of the Constitutional Convention in regard
to the plebiscite on the 1973 Constitution.
As heretofore stated, the statement by the President in Presidential
Proclamation No. 1102 that the 1973 Constitution was overwhelmingly
ratified by the people through the Citizens' Assemblies in a
referendum conducted from January 10 to 15, 1973, should be
accorded the presumption of correctness; because the same was
based on the certification by the Secretary of the Department of Local
Government and Community Development who tabulated the results
of the referendum all over the country. The accuracy of such
tabulation and certification by the said Department Secretary should
likewise be presumed; because it was done in the regular
performance of his official functions aside from the fact that the act of
the Department Secretary, as an alter ego of the President, is
presumptively the act of the President himself unless the latter

disapproves or reprobates the same (Villena vs. Secretary of Interior,

67 Phil. 451 ). The truth of the certification by the Department
Secretary and the Chief 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.

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).

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.

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).

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,

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 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 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 exconvicts constitute a negligible number, discounting which would not
tilt the scale in favor of the negative votes.
Similarly, the fact that Mayor Marcial F. Samson of Caloocan City, who
belongs to the Liberal Party, stated in his letter dated March 13, 1973
that he does not "feel authorized by the proper authorities to confirm
or deny the data" concerning the number of participants, the Yes
votes and No votes in the referendum on the new Constitution among
the members of the Citizens' Assemblies in Caloocan City, does not
necessarily give rise to the inference that Mayor Samson of Caloocan
City is being intimidated, having been recently released from
detention; because in the same letter of Mayor Samson, he suggested
to counsel for petitioners in L-36165 that he can secure "the true and
legitimate results of the referendum" from the Office of the President
(Annex Caloocan-B to Rejoinder of Petitioners in L-36165). Why did
not learned and eminent counsel heed such suggestion?
Counsel for petitioners in L-36165, to sustain their position, relies
heavily on the computation of the estimated turnover in the Citizens'
Assemblies referendum on January 10 to 15, 1973 by a certain
Professor Benjamin R. Salonga, of the Mapua Institute of Technology,
ostensibly a close relative of former Senator Jovito R. Salonga,
eminent counsel for petitioners in L-36165 (Annex M-as amended, to
Consolidated Rejoinder of petitioners in L-36165 to the Notes of
Arguments and Memorandum of respondents). Professor Salonga is
not a qualified statistician, which all the more impairs his credibility.
Director Tito A. Mijares of the Bureau of Census and Statistics, in his
letter dated March 16, 1973 address to the Secretary of the
Department of Local Government and Community Development,
refutes the said computation of Professor Benjamin R. Salonga, thus:

1) I do not quite understand why (Problem 1) all

qualified registered voters and the 15-20-year-old
youths (1972) will have to be estimated in order to give
a 101.9% estimate of the percentage participation of
the "15-20 year old plus total number of qualified
voters" which does not deem to answer the problem.
This computation apparently fails to account for some
5.6 million persons "21 years old and over" who were
not registered voters (COMELEC), but who might be
qualified to participate at the Citizen's Assembly.
2) The official population projection of this office
(medium assumption) for "15 year olds and over" as of
January 1, 1973 is 22.506 million. If total number of
participants at the Citizens' Assembly Referendum held
on January 10-15, 1973 was 16.702 million,
participation rate will therefore be the ratio of the latter
figure to the former which gives 74.2%.
3) 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).
From the foregoing analysis of the Director of Census and Statistics
as of January 21, 1973, the official population projection for 15-year
olds and over is 22,506,000. If 16,702,000 voted in the referendum,
the participation ratio would be 74.2% of 22,506,000.
If the registered electors as of the election of November 8, 1971
numbered 11,661,909, the difference between 16,702,000 who
participated in the referendum and the registered electors of
11,661,909 for the November 8, 1971 elections, is 5,040,091, which
may include not only the 15-year olds and above but below 21 but
also the qualified electors who were not registered before the
November 8, 1971 elections as well as illiterates who are 15 years old
and above but below 21.
Moreover, in the last Presidential election in November, 1969, We
found that the incumbent President obtained over 5,000,000 votes as
against about 3,000,000 votes for his rival LP Senator Sergio
Osmea, Jr., garnering a majority of from about 896,498 to 1,436,118
(Osmea, Jr. vs. Marcos, Presidential Election Contest No. 3, Jan. 8,
1973).

The petitioners in all the cases at bar cannot state with justification
that those who voted for the incumbent President in 1969 did not vote
in favor of the 1973 Constitution during the referendum from January
10 to 15, 1973. It should also be stressed that many of the partisans
of the President in the 1969 Presidential elections, have several
members in their families and relatives who are qualified to participate
in the referendum because they are 15 years or above including
illiterates, which fact should necessarily augment the number of votes
who voted for the 1973 Constitution.
(6) It is also urged that martial law being the rule of force, is
necessarily inconsistent with freedom of choice, because the people
fear to disagree with the President and Commander-in-Chief of the
Armed Forces of the Philippines and therefore cannot voice views
opposite to or critical of the position of the President on the 1973
Constitution and on the mode of its ratification.
It is also claimed or urged that there can be no free choice during
martial law which inevitably generates fear in the individual. Even
without martial law, the penal, civil or administrative sanction provided
for the violation of ordinarily engenders fear in the individual which
persuades the individual to comply with or obey the law. But before
martial law was proclaimed, many individuals fear such sanctions of
the law because of lack of effective equal enforcement or
implementation thereof in brief, compartmentalized justice and
extraneous pressures and influences frustrated the firm and just
enforcement of the laws. The fear that is generated by martial law is
merely the fear of immediate execution and swift enforcement of the
law and therefore immediate infliction of the punishment or sanction
prescribed by the law whenever it is transgressed during the period of
martial law. This is not the fear that affects the voters' freedom of
choice or freedom to vote for or against the 1973 Constitution. Those
who cringe in fear are the criminals or the law violators. Surely,
petitioners do not come under such category.
(7) Petitioners likewise claim that open voting by viva voce or raising
of hands violates the secrecy of the ballot as by the election laws. But
the 1935 Constitution does not require secret voting. We search in
vain for such guarantee or prescription in said organic law. The

Commission on Elections under the 1940 Amendment, embodied as

Article X is merely mandated to insure "free, orderly and honest
election." Congress, under its plenary law-making authority, could
have validly prescribed in the election law open voting in the election
of public officers, without trenching upon the Constitution. Any
objection to such a statute concerns its wisdom or propriety, not its
legality or constitutionality. Secret balloting was demanded by partisan
strife in elections for elective officials. Partisanship based on party or
personal loyalties does not generally obtain in a plebiscite on
proposed constitutional amendments or on a new Constitution. We
have seen even before and during martial law that voting in meetings
of government agencies or private organizations is usually done
openly. This is specially true in sessions of Congress, provincial
boards, city councils, municipal boards and barrio councils when
voting on national or local issues, not on personalities.
Then again, open voting was not a universal phenomenon in the
Citizens' Assemblies. It might have been true in certain areas, but that
does not necessarily mean that it was done throughout the country.
The recent example of an open voting is the last election on March 3,
1973 of the National Press Club officers who were elected by
acclamation presided over by its former president, petitioner Eduardo
Monteclaro in L-36236 (see Bulletin Today, p. 8, March 3, 1973 issue).
There can be no more hardboiled group of persons than
newspapermen, who cannot say that voting among them by
acclamation was characterized by fear among the members of the
National Press Club.
Moreover, petitioners would not be willing to affirm that all the
members of the citizenry of this country are against the new
Constitution. They will not deny that there are those who favor the
same, even among the 400,000 teachers among whom officers of the
Department of Education campaigned for the ratification of the new
Constitution.
Not one of the petitioners can say that the common man farmer,
laborer, fisherman, lowly employee, jeepney driver, taxi driver, bus

driver, pedestrian, salesman, or salesgirl does not want the new

Constitution, or the reforms provided for therein.
(8) Petitioners likewise claim that there was no sufficient publicity
given to the new Constitution. This is quite inaccurate; because even
before the election in November, 1970 of delegates to the
Constitutional Convention, the proposed reforms were already
discussed in various forums and through the press as well as other
media of information. Then after the Constitutional Convention
convened in June, 1971, specific reforms advanced by the delegates
were discussed both in committee hearings as well as in the tri-media
the press, radio and television. Printed materials on the proposed
reforms were circulated by their proponents. From June, 1971 to
November 29, 1972, reforms were openly discussed and debated
except for a few days after the proclamation of martial law on
September 21, 1972. From the time the Constitutional Convention
reconvened in October, 1972 until January 7, 1973, the provisions of
the new Constitution were debated and discussed in forums
sponsored by private organizations universities and debated over the
radio and on television. The Philippines is a literate country, second
only to Japan in the Far East, and more literate perhaps than many of
mid-western and southern states of the American Union and Spain.
Many residents in about 1,500 towns and 33,000 barrios of the
country have radios. Even the illiterates listened to radio broadcasts
on and discussed the provisions of the 1973 Constitution.
As reported by the eminent and widely read columnist, Teodoro
Valencia in his column in Bulletin Today, March 4, 1973 issue, "Otto
Lang, Hollywood producer director (Tora, Tora, Tora) went around the
country doing a 30-minute documentary on the Philippines for
American television stated that what impressed him most in his travel
throughout the country was the general acceptance of the New
Society by the people which he saw in his 6-week travel from Aparri to
Jolo."

The report of Frank Valeo (Bulletin Today, March 3 and 4, 1973 and
Daily Express, March 3, and Sunday Express, March 4), Secretary of
the United States Senate, who conducted a personal survey of the
country as delegate of Senator Mike Mansfield, Chairman, Committee
on US-Philippine relations, states:
Martial law has paved the way for a re-ordering of the
basic social structure of the Philippines. President
Marcos has been prompt and sure-footed in using the
power of presidential decree under martial law for this
purpose. He has zeroed in on areas which have been
widely recognized as prime sources of the nation's
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 ConCon 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
LEGISLATIVE POWERS DURING MARTIAL LAW.

EXERCISES

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 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 (L129, 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.)
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 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 WebbKenyon 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 corpuswithout any constitutional or
statutory authority therefor and of President Franklin Delano
Roosevelt who approved the proclamation of martial law in 1941 by
the governor of Hawaii throughout the Hawaiian territory. President
Lincoln not only emancipated the Negro slaves in America, but also
saved the Federal Republic of the United States from disintegration by
his suspension of the privilege of the writ of habeas corpus, which
power the American Constitution and Congress did not then expressly
vest in him. No one can deny that the successful defense and
preservation of the territorial integrity of the United States was due in
part, if not to a great extent, to the proclamation of martial law over the
territory of Hawaii main bastion of the outer periphery or the
outpost of the American defense perimeter in the Pacific which
protected the United States mainland not only from actual invasion but
also from aerial or naval bombardment by the enemy. Parenthetically,
the impartial observer cannot accurately conclude that the American

Supreme Court acted with courage in its decision in the cases of Ex

parte Milligan and Duncan vs. Kahanamoku (filed on May 10, 1865
argued on March 5 to 13, 1866, decided on April 3, 1866, and opinion
delivered on December 17, 1866) after the lifting of the proclamation
suspending the privilege of the writ of habeas corpus, long after the
Civil War and the Second World ended respectively on April 9 or 26,
18-65 (Vol. 1, Encyclopedia Britannica, 1969 ed., pp. 730, 742) and
on September 2, 1945 (Vol. 23, Encyclopedia Britannica, 1969 ed., p.
799). Was the delay on the part of the American Supreme Court in
deciding these cases against the position of the United States
President in suspending the privilege of the writ of habeas
corpus in 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
MANDAMUS AGAINST SENATORS.

POWERS

PRECLUDES

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 L36165.

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).
IX
TO
NULLIFY
PROCLAMATION
NO.
1102
CONSTITUTION REQUIRES EIGHT OR TEN
SUPREME COURT.

AND
1973
VOTES OF

The petitioners in L-36164 and L-36236 specifically pray for a

declaration that the alleged ratification of the 1973 Constitution is null
and void and that the said 1973 Constitution be declared
unenforceable and inoperative.
As heretofore stated, Proclamation No. 1102 is an enactment of the
President as Commander-in-Chief during martial law as directly
delegated to him by Section 10(2) of Article VII of the 1935
Constitution.
A declaration that the 1973 Constitution is unenforceable and
inoperative is practically deciding that the same is unconstitutional.
The proposed Constitution is an act of the Constitutional Convention,
which is co-equal and coordinate with as well as independent of either
Congress or the Chief Executive. Hence, its final act, the 1973
Constitution, must have the same category at the very least as the act
of Congress itself.

Consequently, the required vote to nullify Proclamation No. 1102 and

the 1973 Constitution should be eight (8) under Section 10 of Article
VIII of the 1935 Constitution in relation to Section 9 of the Judiciary
Act or Republic Act No. 296, as amended, or should be ten (10) under
Section 2(2) of Article X of the 1973 Constitution. Should the required
vote of eight (8) or ten (10), as the case may be, for the declaration of
invalidity or unconstitutionality be not achieved, the 1973 Constitution
must be deemed to be valid, in force and operative.
X

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.

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

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, 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?
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 86-A, claiming that the ratification of
the new Constitution pursuant to the said decrees is invalid and of no
effect. Presidential Decree No. 86 organized the barangays or
Citizens Assemblies composed of all citizens at least fifteen years of
age, and through these assemblies the proposed 1972 Constitution
was submitted to the people for ratification. Proclamation No. 1102 of
the President announced or declared the result of the referendum or
plebiscite conducted through the Citizens Assemblies, and that
14,976,561 members thereof voted for the ratification of the new
Constitution and 743,869 voted against it. Petitioners assail these two
acts of the President as unauthorized and devoid of legal effect.
But looking through the veneer of judicial conformity with which the
petitions have been adroitly contrived, what is sought to be invalidated
is the new Constitution itself the very framework of the present

Government since January 17, 1973. The reason is obvious. The

Presidential decrees set up the means for the ratification and
acceptance of the new Constitution and Proclamation No. 1102 simply
announced the result of the referendum or plebiscite by the people
through the Citizens Assemblies. The Government under the new
Constitution has been running on its tracks normally and apparently
without obstruction in the form of organized 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.
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].

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)

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

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:
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 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.
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:
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. 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.
It is my view, therefore, that Proclamation No. 1102
repugnant to the 1935 Constitution, and so it is invalid,
and should not be given effect. The Constitution of
1972 proposed by the 1971 Constitutional Convention
should be considered as not yet ratified by the people
of this Republic, and so it should not be given force
and effect.
It is urged by the Solicitor General, however, that the voting in the
citizens assemblies was a substantial compliance with the provisions
of Article XV of the 1935 Constitution. The Solicitor General maintains
that the primary thrust of the provision of Article XV of the 1935
Constitution is that "to be valid, amendments must gain the approval
of the majority recognition of the democratic postulate that sovereign
resides in the people." It is not disputed that in a democratic
sovereignty resides in the people. But the term "people" must be

understood in its constitutional meaning, and they are "those persons

who are permitted by the Constitution to exercise the elective
franchise." 8 Thus, in Section 2 of Article VII of the 1935 Constitution, it
is provided that "the President shall hold his office during a term of
four years and, together with the Vice-President chosen for the same
term, shall be elected by direct vote of the people..." Certainly under
that constitutional provision, the "people" who elect directly the
President and the Vice-President are no other than the persons who,
under the provisions of the same Constitution, are granted the right to
vote. In like manner the provision in Section 1 of Article II of the 1935
Constitution which says "Sovereignty resides in the peopleand 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 suffrageto 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 TydingsMcDuffie Law (Public Act No. 127). Said Section 4 of the TydingsMcDuffie 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 GovernorGeneral of the Philippine Islands, together with a
statement of the votes cast, and a copy of said
constitution ordinances. If a majority of the votes cast
shall be for the constitution, such vote shall be deemed
an expression of the will of the people of the Philippine
Independence, and the Governor-General shall, within
thirty days after receipt of the certification from the
Philippine Legislature, issue a proclamation for

the election of officers of the government of the

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

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 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." 12Once
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 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
23
24
Commission to Planas v. Commission on Elections. It should

continue to exercise its jurisdiction, even in the face of a plausible but

not sufficiently persuasive insistence that the matter before it is
political.
Nor am I persuaded that the reading of the current drift in American
legal scholarship by the Solicitor-General and his equally able
associates presents the whole picture. On the question of judicial
review, it is not a case of black and white; there are shaded areas. It
goes too far, in my view, if the perspective is one of dissatisfaction,
with its overtones of distrust. This expression of disapproval has not
escaped Dean Rostow of Yale, who began one of his most celebrated
legal essays. The Democratic Character of Judicial Review, thus: "A
theme of uneasiness, and even of guilt, colors the literature about
judicial review. Many of those who have talked, lectured, and written
about the Constitution have been troubled by a sense that judicial
review is 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 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 selfrestraint 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

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." 64From 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 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." 67In 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 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.
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 thepeople 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 castin
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 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, areper
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:

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.
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 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 allsubject 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 thelives, 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 insulatedagainst
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
counterparts. 32

omnipotent

as

their

original

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 basisfor
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 "minimumrequirements 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
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 21year 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 thepeople had said, 'This
Constitution may be amended, but it is our will that the
amendment must beproposed 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 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 thepeople 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 toleratedor, 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 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 socalled 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
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.

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

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.

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:

4. At any rate, unless respondents seriously intend to question the

very statements and pronouncements in Proclamation 1102 itself
which shows on its face, as already stated, that the mandatory
amending process required by the (1935) Constitution was not
observed, the cases at bar need not reach the stage of answering the
host of questions, raised by petitioners against the procedure
observed by the Citizens Assemblies and the reported referendum
results since the purported ratification is rendered nugatory by
virtue of such non-observance.

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.

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.

xxx xxx xxx

12.6 In reply to Delegate Britanico, Delegate Duavit

stated that the mechanics for the holding of
theplebiscite would be laid down by the Commission
on Elections in coordination with the President.

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 notinclude 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

12.7 Delegate Catan inquired if such mechanics for the

plebiscite could include a partial lifting of martial law in
order to allow the people to assemble peaceably to
discuss the new Constitution. Delegate Duavit
suggested that the Committee on Plebiscite and
Ratification could coordinate with the COMELEC on
the matter.
12.8 Delegate Guzman moved for the previous
question. The Chair declared that there was one more
interpellant and that a prior reservation had been made
for the presentation of such a motion.
1.8a Delegate Guzman withdrew his motion.
12.9 Delegate Astilla suggested in his interpellation that
there was actually no need for such a resolution in view
of the provision of section 15, Article XVII on the
Transitory Provisions. Delegate Duavit disagreed,
pointing out that the said provision did not provide for
the funds necessary for the purpose.
13. Delegate Ozamiz then moved to close the debate
and proceed to the period of amendment.

13.1 Floor Leader Montejo stated that there were no

reservations to amend the resolution.
13.2 Delegate Ozamiz then moved for the previous
question. Submitted to a vote, the motion was
approved.
Upon request of the Chair, Delegate Duavit restated
the resolution for voting.
14.1. Delegate Ordoez moved for nominal voting.
Submitted to a vote, the motion was lost.
14.2. Thereupon, the Chair submitted the resolution to
a vote. It was 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-inchief" clause with his duty "to take care that the laws be faithfully
executed," to justify the series of extraordinary measures which he
took the calling of volunteers for military service, the augmentation
of the regular army and navy, the payment of two million dollars from
unappropriated funds in the Treasury to persons unauthorized to
receive it, the closing of the Post Office to "treasonable
correspondence", the blockade of southern ports, the suspension of
the writ of habeas corpus, the arrest and 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).
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
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 restrictions required for the security of the State, the people
are free to pursue their ordinary concerns.
In short, the existing regime in this Country, does not contain the
oppressive features, generally associated with a regime of Martial law
in other countries. "Upon the other hand the masses of our people
have accepted it, because of its manifold blessings. The once
downtrodden rice tenant has at long last been emancipated a
consummation devoutly wished by every Philippine President since
the 1930's. The laborer now holds his head high because his rights
are amply protected and respected." * A new sense of discipline has
swiftly spread beyond the corridors of government into the social
order. Responding to the challenges of the New Society, the people
have turned in half a million loose firearms, paid their taxes on
undeclared goods and income in unprecedented numbers and
amount, lent their labors in massive cooperation in land reform, in
the repair of dikes, irrigation ditches, roads and bridges, in
reforestation, in the physical transformation of the environment to
make ours a cleaner and greener land. "The entire country is turning
into one vast garden growing food for the body, for thought and for the
soul." * More important the common man has at long last been freed
from the incubus of fear.
"Martial law has paved the way for a re-ordering of the basic social
structure of the Philippines" reported Frank Valeo to the United States
Senate. "President Marcos has been prompt and sure-footed in using
the power of presidential decree under martial law for this purpose.
He has zeroed in on areas which have been widely recognized as
prime sources of the nation's difficulties land tenancy, official
corruption, tax evasion and abuse of oligarchic economic power.
Clearly he knows his targets ... there is marked public support for his
leadership..." (Bulletin Today, March 3 and 4, 1973)..

In a similar vein, C.L. Sulzberger, a foreign affairs columnist wrote, in

the April 11 issue of The New York Times:
During his first Presidential term (1965-1969), Mr.
Marcos was discouraged by the failure of legislators to
approve urgently needed reforms. He found his second
term further frustrated by spread riots, a Maoist
uprising in Luzon and a much more serious Moslem
insurrection in the southern islands from Mindanao
across the Sulu archipelago to the frontier regions of
Malaysia and Indonesia. Manila claims this war is
Maoist-coordinated.
Mr. Marcos has now in effect taken all the reins of
power and makes no promise as to when he will
relinquish them. But, while fettering a free press,
terminating Congress and locking up some opponents
(many of whom were later amnestied), he has hauled
the Philippines out of stagnation.
Sharecropping is being ended as more than three
million acres of arable land are redistributed with state
funds. New roads have been started. The educational
system is undergoing revision, a corruption is
diminished. In non-communist Asia it is virtually
impossible to wholly end it and this disagreeable
phenomenon still reaches very high.
Mr. Marcos, an imaginative, gifted man, hopes to
reshape society by creating an agrarian middle-class to
replace the archaic sharecropper-absentee landlord
relationship. He is even pushing for a birth control
program with the tacit acceptance of the Catholic
Church. He has started labor reforms and increased
wages. (Daily Express, April 15, 1973)

As explained in this writer's opinion of April 24, 1973 on the

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

relates to the 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.