This case is based off of 5 plebescite cases decided on 22 Jan 1973 with the following

background:

(16 Mar 1967): Resolution 2 was passed by Congress to form a Constitutional

Convention

(17 June 1969): Resolution 4 amended Resolution 2 RA 6132 (approved 24 Aug 1970)
to implement Res 2 as amended by Res 4.

(1 June 1971): Convention began

(21 Sept 1972): While Convention in session, Marcos issued Proclamation 1081
declaring the Philippines under Martial Law; he then issued PD 73 “submitting to the
Filipino people for ratification or rejection” of the Constitution proposed by 1971
Constitutional Convention “and appropriating funds therefor”.

A Charito Planas filed a case against COMELEC, Treasurer of Philippines and Auditor
General at the SC to enjoin them from implementing PD 73 because calling for a
plebiscite is a power lodged in Congress plus there has been no proper submission of a
Constitution proposal for the people to accept/reject

9 similar cases followed and respondents for 8 of those cases were required to file
answers. The last one (Ernesto Hidalgo v COMELEC, Sec. of Edu., Nat’l Treasurer,
Auditor General), weren’t.

(17 Dec 72): Marcos suspended effects of Proclamation 1081 for the purpose of holding
an open event RE: Proposed Constitution; so SC refrained from deciding on the cases it
had before it

However, one of the petitioners asked for an urgent ruling because Marcos issued PD 86
organizing “Citizens Assemblies” to survey on whether or not they approve of martial
law, of the new Constitution, and other related questions. The other petitioners joined and
added that the creation for such “Citizens Assemblies” had no legal basis and therefore
invalid, yet with the threat of possible adverse results with respect to the
Constitution/martial law issues.

On Jan 15, 1973, the SC required respondents to submit their answer regarding the urgent
motion. And on the following day, the Secretary of Justice Alejandro Melchor sent C.J.
Concepcion (writer of this opinion) a copy of Proclamation 1102, “ANNOUNCING
THE RATIFICATION BY THE FILIPINO PEOPLE OF THE CONSTITUTION
PROPOSED BY THE 1971 CONSTITUTIONAL CONVENTION”

The basis for Proclamation 1102 was based on the favorable results of the Citizens
Assemblies’ (made up of barrio/district/ward residents of at least 6 months, 15 years old
and above) responses.
Respondents’ responses to petitioners’ cases against them:
1. questions raised were political in character
2. Constitutional Convention acted freely and had plenary authority to propose not
only amendments but a Constitution which would supersede the present
Constitution
3. The President’s call for a plebiscite and the appropriation of funds were valid
4. No improper submission, and there can be a plebiscite under martial law
5. 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

After Proclamation 1102 (around January 20, 1973), Josue Javellana filed a case against
the Exec. Sec. and Secretaries of National Defense to restrain respondents from
implementing provisions from the proposed Constitution not found in the present
constitution; further, Marcos had no authority to create the Citizens Assemblies; and
immediate implementation of New Constitution was done without or in excess of
jurisdiction.

The SC decided to write their separate opinions regarding the matter because of mixed
opinions on the different, yet related cases.

CJ Concepcion’s personal opinion:

Alleged academic futility of further proceedings

Respondents posit that the issues have become moot and academic with the ratification of
the New Constitution. So even if there was no authority to hold plebiscites with the
creation of Citizens’ Assemblies, the Constitution has nevertheless already been ratified
and there is currently no satisfactory evidence to refute its validity. Furthermore, the 1935
Constitution required 8 opposing votes for ratification, which was made 10 in the New
Constitution, seemed a highly unlikely achievement for the petitioners in order to get the
relief they sought.

Concepcion disagrees with the last position because he has seen Justices change their
minds or opinions regarding their support for Proclamation 1102. Even more importantly,
the Constitution requires a 2/3 (8 votes) vote from the SC to declare a law or a treaty
unconstitutional, but it doesn’t say that about the Proclamation 1102. Because
Proclamations are of an EO nature, which are mainly informative and/or declaratory,
declaring them as unconstitutional, a total vote of 6 from the SC would suffice.

As for the ratification of the New Constitution itself, it had to be done with the
procedures laid down in the 1935 Constitution.

Does the issue on the validity of Proclamation 1102 partake of the nature of a political,
and, hence, non-justiciable question?
The respondents hold that even foreign countries respect plebiscites concerning the
proposal and ratification of the New Constitution especially because it was voiced by the
majority of the Citizens Assemblies’ participants.

CJ Concepcion’s personal opinion:

Petitioners aren’t seeking the nullification of the New Constitution, only the manner in
which it was ratified, which was not in accordance with the pertinent provisions from the
1935 Constitution for not being supervised by the COMELEC, for permitting the votes of
otherwise disqualified persons.

The validity of the ratification of the New Constitution is not a political question but a
valid judicial one.

Has the proposed new Constitution been ratified according to 1935 Constitution Article
XV?

Petitioners assert the negative on the grounds that the President neither had the power to
make the Citizens Assemblies nor the power to proclaim the ratification by the Filipino
people of the proposed Constitution, and the plebiscite was not a free vote and therefore,
null and void.

3 requirements on new Constitution:

1. made by Congress or convention for the purpose
2. sent to the Filipino people for ratification
3. approval because of majority votes cast

1st requisite has been met, but as for the second, it may have been impaired by the
constitutionally disqualified voters who were part of the Citizens Assemblies. For
example, those practicing right to suffrage must be able to read and write and at least 24
years of age. The Citizens Assemblies allowed 15-year-olds among other irregularities in
proceedings.

The 3rd requisites involves the COMELEC as a constitutional body vested with the
responsibility of supervising and regulating elections to ensure free, orderly, and honest
elections. The votes cast by the Citizens Assemblies were without the assistance of
COMELEC in contravention to the Constitution as well as the Election Code of 1971.

Was new Constitution approved of by majority of Filipinos?

No. Because plebiscite consisted of questions not appropriate for the occasion. Instead of
voting over something, the Citizens Assemblies were being asked questions not directly
to give a vote for or against the new Constitution’s ratification.

Have the people acquiesced in the proposed Constitution?

Concepcion refuses to accept that the failure of the Congress to meet again after
Proclamation 1102 meant that they acquiesced to it, but rather they were confused/unsure
about the meaning and effects of Proclamation 1081.
Are the parties entitled to any relief?
There is prima facie showing that the proper procedure for the ratification of the proposed
new Constitution weren’t followed and be given due course. This is part of the judicial
statesmanship that is consistent with the Rule of Law.