JOSUE JAVELLANA, vs.

THE EXECUTIVE SECRETARY

50 SCRA 30
G.R. No. L-36142 March 31, 1973

G.R. No. L-35149 1988

June 23,

EDUARDO QUINTERO, petitioner, vs. THE NATIONAL BUREAU OF INVESTIGATION, HON. ELIAS ASUNCION, Judge of the Court of First Instance of Manila, and HON. JOSE FLAMINIANO, City Fiscal of Pasay City, respondents.

Quintero delivered to the Con-Con the aggregate amount of the "payola" he himself had received, the amount of eleven thousand one hundred fifty pesos (P11,150.00) in cash, preserved intact for delivery to the proper officials of the Con-Con

Our plebiscites

With this in mind, I put together this chart, which lists the plebiscites on constitutional amendments that took place from 1935 to 1987. As a kind of frame of reference, Ive also included similar data concerning presidential elections that took place soon before or after these plebiscites. And then, the figures, when available, for total registered voters and the figures for our national population as a whole.

1973-1984: The New Society Plebiscites

As for the Marcos plebiscites from 1973 to 1984, they were conducted in a manner entirely different from the 1935-1967 plebiscites and that held in 1987. So they are not part of a piece. What Marcos was trying to capitalize on was the familiarity of the public with referenda as a democratic process. Marcoss political problem was that his 1969 term expired on December 30, 1973; and that, ideally, the extinction of the 1935 Constitution should be accomplished by means of the process set out in it. An additional problem arose, when some senators tried to organize a ruckus in Congress, in time for the 1973 Regular Session scheduled to begin on January 22, 1973.

The Constitutional Convention had approved a draft acceptable to President Marcos in late 1972 and presented it to him, formally, on December 1, 1972; hed accordingly issued a proclamation calling for a plebiscite to ratify or reject the new Constitution. It seems that Marcos got wind of the possibility public opinion had swung against ratification. So if he held a plebiscite, he might lose; and win or lose, Congress or at least the Senate if not the House, seemed hell-bent on challenging martial law when it resumed session on January 22; that challenge, among other things, might stiffen the spine of the Supreme Court. So something had to be done before January 22.

This concern is reflected in his December 23, 1972 announcement postponing the plebiscite; statements in December 29 in the state-controlled media warning of a constitutional crisis if senators insisted on convening in January, 1973; then, his decree creating Barangay Assemblies on January 5; then, having created a new mechanism, his January 7 order stating that the plebiscite originally scheduled for January 15 might be held on February 19 or March 15 as alternate dates; in other words, he postponed the only option, a plebiscite, to create two tracks, the barangay or citizens assembly and plebiscite paths. Prior to martial law, Marcos had been admiringly described by his critics as engaging in Ju-Jitsu, and he handled the possibility that Congress would convene, under the provisions of the 1935 Constitution, and the difficulty represented by a plebiscite in the old manner leading to the rejection of the new constitution, by scrapping the rules.

He lowered the voting age from 18 to15 and illiterates were allowed to vote. From January 10 to 15, a series of citizens assemblies were held, in lieu of a plebiscite in the manner specified by the 1935 Constitution. The results of the January 10-15, 1973 were:

Question One: Whether to adopt the proposed (1973) Constitution:

14,976,561 (90.67%) Yes 743,869 (9.33%) No Question Two: Whether the public still wanted a plebiscite to be called to ratify the Constitution:

14,298,814 No

With total valid votes at 15,720,430 (compare this figure with the 1967 plebiscite and 1969 presidential election figures; the Supreme Court itself, in its decision on the ratification of the 1973 Constitution, mentioned 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: this suggests the boost in voting numbers provided by relaxing voting requirements such as age or literacy; except that Marcos, as a shrewd and selfconfident strategist, didnt rely on subordinates to scrounge around for a will I win by 1 million margin, but rather, created an infintely safer margin for himself of nearly 3 million votes!). Two days later (January 17), President Marcos certified that the new constitution had been ratified. And then, he padlocked Congress, which he argued, was now defunct. All that was left was for the Supreme Court to declare the process valid. This, the Supreme Court did in Javellana v. Executive Secretary on March 31, 1973. Chief Justice Concepcion wrote the decision, stated his objections, and retired ahead of schedule in muted protest.

SUPREME COURT JUSTICES

FELIX MAKASIAR -law school classmate President Ferdinand E. Marcos ROBERTO R. CONCEPCION

Claudio Teehankee

QUERUBI MAKALINTAL CALIXTO ZALDIVAR FRED RUIZ CASTRO ENRIQUE FERNANDO ANTONIO BARREDO SALVADOR ESGUERRA FELIX ANTONIO

 1. Is the issue of the validity of Proclamation No. 1102 a justiciable or political and therefore nonjusticiable question?

Six members of the court held that the issue of the validity of Proclamation No. 1102 presents a justiciable and non-political question. Two of whom did not vote squarely on this question, but only, inferentially, in their discussion of the second question. One justice qualified his vote stating that, inasmuch as it is claimed that there has been approval by the people, the court may inquire into the question of whether or not there has actually been approval and in the affirmative, the court should keep its hands off out of respect to the peoples will, but in the negative, the court may determine from both factual and legal angles whether or not Article XV of the 1935 Constitution has been complied with.

Three members held that the issue is political and beyond the ambit of judicial inquiry.


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?

Six members of the Court also considering as approved the 1973 hold that the Constitution proposed by Constitution without the necessity of the 1971 Constitutional Convention was the usual form of plebiscite followed in not validly ratified in accordance with past ratifications, I am constrained to Article XV, section 1 of the 1935 hold that, in the political sense, if not in Constitution, which provides only one the orthodox legal sense, the people way for ratification, i.e., "in an election may be deemed to have cast their or plebiscite held in accordance with favorable votes in the belief that in law and participated in only by qualified doing so they did the part required of and duly registered voters." One justice them by Article XV, hence, it may be qualified his vote, stating that "(A)s to said that in its political aspect, which is whether or not the 1973 Constitution what counts most, after all, said Article has been validly ratified pursuant to has been substantially complied with, Article XV, I still maintain that in the and, in effect, the 1973 light of traditional concepts regarding Constitution has been the meaning and intent of said Article, constitutionally ratified." Three the referendum in the Citizens' Assemblies, specially in the manner the members of the Court hold that votes therein were cast, reported and under their view there has been canvassed, falls short of the in effect substantial requirements thereof. In view, however, compliance with the of the fact that I have no means of constitutional requirements for refusing to recognize as a judge that factually there was voting and that the valid ratification. majority of the votes were for


3. Has the aforementioned proposed Constitution acquiesced in (with or without valid ratification) by the people?

No, majority vote has been reached by the Court. Four members of the court hold that "the people have already accepted the 1973 Constitution."Two members of the Court hold that there can be no free expression, and there has even been no expression, by the people qualified

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 to vote all over the Philippines, of law." Three members of the Court their acceptance or repudiation of express their lack of knowledge the proposed Constitution under and/or competence to rule on the Martial Law. Justice Fernando question. They stated that "Under a states that "(I)f it is conceded that regime of martial law, with the free the doctrine stated in some expression of opinions through the American decisions to the effect usual media vehicle restricted, that independently of the validity (they) have no means of knowing, of the ratification, a new to the point of judicial certainty, Constitution once accepted whether the people have accepted acquiesced in by the people must the Constitution." be accorded recognition by the

Are Petitioners Entitled to Relief?

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 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.

ARE PETIONERS ENTITLED TO RELIEF?

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. Is the aforementioned proposed Constitution in force?

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

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

Constitution being considered in force and effect.