Javel Lana

EN BANC

[G.R. No. L-36142. March 31, 1973.]

JOSUE JAVELLANA, petitioner, vs. THE EXECUTIVE SECRETARY, THESECRETARY OF NATIONAL DEFENSE, THE SECRETARY OF JUSTICEand THE SECRETARY OF FINANCE, respondents.

[G.R. No. L-36164. March 31, 1973.]

VIDAL TAN, J. ANTONIO ARANETA, ALEJANDRO ROCES, MANUELCRUDO, ANTONIO U. MIRANDA, EMILIO DE PERALTA and LORENZOM. TAÑADA, petitioners, vs. THE EXECUTIVE SECRETARY, THESECRETARY OF FINANCE, THE SECRETARY OF JUSTICE, THESECRETARY OF LAND REFORM, THE SECRETARY OF NATIONALDEFENSE, THE AUDITOR GENERAL, THE BUDGET COMMISSIONER,THE CHAIRMAN OF PRESIDENTIAL COMMISSION ONREORGANIZATION, THE TREASURER OF THE PHILIPPINES, THECOMMISSION ON ELECTIONS and THE COMMISSIONER OF CIVILSERVICE, 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 asExecutive Secretary; JUAN PONCE ENRILE, in his capacity as Secretary ofNational Defense; General ROMEO ESPINO, in his capacity as Chief of Staffof the Armed Forces of the philippines; CONSTANCIO E. CASTAÑEDA, in hiscapacity as Secretary of General Services; Senator GIL J. PUYAT, in hiscapacity as President of the Senate; and Senator JOSE ROY, in his capacity asPresident Pro Tempore of the Senate, respondents.

[G.R. No. L-36236. March 31, 1973.]

EDDIE B. MONTECLARO, [personally and in his capacity President of theNational Press Club of the Philippines], petitioner, vs, THE EXECUTIVESECRETARY, THE SECRETARY OF PUBLIC INFORMATION, THEAUDITOR GENERAL, THE BUDGET COMMISSIONER & THE NATIONALTREASURER, respondent.

[G.R. No. L-36283. March 31, 1973.]

http://www.cdasiaonline.com/search/print/29032

1 of 207 6/20/2012 8:16 AM

NAPOLEON V. DILAG, ALFREDO SALAPANTAN, JR., LEONARDOASODISEN, JR., and RAUL M. GONZALEZ, petitioners, vs. THEHONORABLE SECRETARY OF NATIONAL DEFENSE, THE HONORABLEBUDGET COMMISSIONER, THE HONORABLE AUDITOR GENERAL,respondents.

Ramon A. Gonzales for petitioner Josue Javellana.

Lorenzo M. Tañada & Associates for petitioners Vidal Tan, et al.

Tañada, Salonga, Ordoñez, Rodrigo, Sanidad Roxas Gonzales and Arroyo for petitioners GerardoRoxas, et al.

Joker P. Arroyo and Rogelio B. Padilla for petitioner Eddie Monteclaro.

Raul M. Gonzales & Associates for petitioners Napoleon V. Dilag, et al.

Arturo M. Tolentino for respondents Gil J. Puyat and Jose Roy.

Solicitor General Estelito P. Mendoza, Solicitor Vicente V . Mendoza and Solicitor Reynato S.Puno for other respondents.

R E S O L U T I O N

CONCEPCION, J p:

The above entitled five (5) cases are a sequel of cases G.R. Nos. L-35925, L-35929,L-35940, L-35941, L-35942, L-35948, L-35953, L-35961, L-35965 and L-35979, decided onJanuary 22, 1973, to which We will hereafter refer collectively plebiscite cases.

Background of the Plebiscite Cases

The factual setting thereof is set forth in the decision rendered, from which We quote:

"On March 16, 1967, Congress of the Philippines passed Resolution No. 2, which wasamended by Resolution No. 4 of said body, adopted on June 17, 1969, calling a conventionto propose amendments to the Constitution of the Philippines. Said Resolution No. 2, asamended, 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 onNovember 10, 1970, and the, 1971 Constitutional Convention began to perform its functionson June 1, 1971. While the Convention was in session on September 21, 1972, the Presidentissued Proclamation No. 1081 placing the entire Philippines under Martial Law. OnNovember 29, 1972, the Convention approved its Proposed Constitution of the Republic ofthe Philippines. The next day, November 30, 1972, the President of the Philippines issuedPresidential Decree No. 73, 'submitting to the Filipino people for ratification or rejection theConstitution of the Republic of the Philippines proposed by the 1971 ConstitutionalConvention, and appropriating funds therefor,' as well as setting the plebiscite for said


2 of 207 6/20/2012 8:16 AM

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

"Soon after, or on December 7, 1972, Charito Planas filed, with this Court, Case G.R. No.L-35925, against the Commission on Elections, the Treasurer of the Philippines and theAuditor General, to enjoin said 'respondents or their agents from implementing PresidentialDecree No. 73, in any manner, until further orders of the Court,' upon the grounds, inter aliathat said Presidential Decree 'has no force and effect as law because the calling . . . of suchplebiscite, the setting of guidelines for the conduct of the same, the prescription of the ballotsto be used and the question to be answered by the voters, and the appropriation of publicfunds 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 sufficient timeto inform the people of the contents thereof.'

"Substantially identical actions were filed, on December 8, 1972, by Pablo C. Sanidadagainst the Commission on Elections (Case G.R. No. L-35929); on December 11, 1972, byGerardo Roxas, et al., against the Commission on Elections, Director of Printing, theNational Treasurer and the Auditor General (Case G.R. L-35940), by Eddie B. Monteclaroagainst the Commission on Elections and the Treasurer of the Philippines (Case G.R. NoL-35941), and by Sedfrey A. Ordoñez, et al. against the National Treasurer and theCommission on Elections (Case G.R. No. L-35942); on December 12, 1972, by Vidal Tan, etal., against the Commission on Elections, the Treasurer of the Philippines, the AuditorGeneral and the Director of Printing (Case G.R. No. L-35948), and by Jose W. Diokno andBenigno S. Aquino against the Commission on Elections (Case G R No. L-35953); onDecember 14, 1972, by Jacinto Jimenez against the Commission on Elections, the AuditorGeneral, the Treasurer of the Philippines and the Director of the Bureau of Printing (CaseG.R. No. L-35961), and by Raul M. Gonzales against the Commission on Elections, theBudget 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 onElections, the Secretary of Education, the National Treasurer and the Auditor General (CaseG.R. No. L-35979).

"In all these cases, except the last (G.R. No. L-35979), the respondents were required to filetheir answers 'not later than 12:00 (o'clock) noon of Saturday, December 16, 1972.' Saidcases were, also, set for hearing and partly heard on Monday, December 18, 1972, at 9:30a.m. The hearing was continued on December 19, 1972. By agreement of the parties, theaforementioned 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 theaforementioned cases were given a short period of time within which 'to submit their noteson the points they desire to stress.' Said notes were filed on different dates, betweenDecember 21, 1972, and January 4, 1973.

"Meanwhile, or on December 17, 1972, the President had issued an order temporarilysuspending the effects of Proclamation No. 1081, for the purpose of free and open debate onthe Proposed Constitution. On December 23, the President announced the postponement ofthe plebiscite for ratification or rejection of the Proposed Constitution. No formal action tothis 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 furthernotice.' Said General Order No. 20, moreover, 'suspended in the meantime' the 'order ofDecember 17, 1972, temporarily suspending the effects of Proclamation No. 1081 forpurposes of free and open debate on the proposed Constitution.'


3 of 207 6/20/2012 8:16 AM

"In view of these events relative to the postponement of the aforementioned plebiscite, theCourt deemed it fit to refrain, for the time being, from deciding the aforementioned cases, forneither the date nor the conditions under which said plebiscite would be held were known orannounced 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 toPresidential Decree No. 73 was that the President does not have the legislative authority tocall 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 theCommission on Elections — the Court deemed it more imperative to defer its final action onthese 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 laterthan January 15, 1973.' It was alleged in said motion, inter alia.

'6.That the President subsequently announced the issuance of Presidential Decree No. 86organizing 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 oroppose —

"[1]The New Society;

"[2]Reforms instituted under Martial Law;

"[3]The holding of a plebiscite on proposed new Constitution and when (thetentative new dates given following postponement of the plebiscite from the originaldate of January 15 are February 19 and March 5);

"[4]The opening of the regular session on January 22 in accordance with theexisting 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 beasked 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 beheld?" [Bulletin Today, January 5, 1973].

'9.That the voting by the so-called Citizens Assemblies was announced to take place duringthe period from January 10 to January 15, 1973;

'10.That on January 10, 1973, it was reported that one more question would be added to thefour (4) questions previously announced, and that the forms of the questions would be as


4 of 207 6/20/2012 8:16 AM

follows: —

"[1]Do you like the New Society?

"[2]Do you like the reforms under martial law?

"[3]Do you like Congress again to hold sessions?

"[4]Do you like the plebiscite to be held later?

"[5]Do you like the way President Marcos is running the affairs of thegovernment?" [Bulletin Today, January 10, 1973; additional question italics.]

'11.That on January 11, 1973, it was reported that six (6) more questions would be submittedto the so called Assemblies: —

"[1]Do you approve of the citizens assemblies as the base of populargovernment 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 accordancewith the provisions of the 1935 Constitution?

"[5]If the elections would not be held, when do you want the next elections tobe called?

"[6]Do you want martial law to continue?" [Bulletin Today, January 11, 1973;italics supplied.]

'12.That according to reports, the returns with respect to the six (6) additional questionsquoted 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 citizen participation in government.

QUESTION No. 2

But we do not want the Ad Interim Assembly to be convoked. Or if it is to beconvened at all, it should not be done so until after at least seven (7) years fromthe approval of the New Constitution by the Citizens Assemblies.

QUESTION No. 3

The vote of the Citizens Assemblies should already be considered the plebisciteon the Constitution.


5 of 207 6/20/2012 8:16 AM

If the Citizens Assemblies approve of the Constitution, then the newConstitution should be deemed ratified.

QUESTION No. 4

We are sick and tired of too frequent elections. We are fed up with politics, ofso many debates and so much expenses.

QUESTION No. 5

Probably a period of at least seven (7) years moratorium on elections will beenough for stability to be established in the country, for reforms to take rootand normalcy to return.

QUESTION No. 6

We want President Marcos to continue with Martial Law. We want him toexercise his powers with more authority. We want him to be strong and firm sothat he can accomplish all his reform programs and establish normalcy in thecountry. If all other measures fail, we want President Marcos to declare arevolutionary government along the lines of the new Constitution without thead interim Assembly."

'Attention is respectfully invited to the comments on "Question No. 3," which reads: —

"QUESTION No. 3

The vote of the Citizens Assemblies should be considered the plebiscite on theNew Constitution.

If the Citizens Assemblies approve of the New Constitution, then the newConstitution 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, thePresident announced that the limited freedom of debate on the proposed Constitution wasbeing withdrawn and that the proclamation of martial law and the orders and decrees issuedthereunder 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 thelast list of questions to be asked to the Citizens Assemblies, namely: —

"Do you approve of the New Constitution?" —

in relation to the question following it: —

"Do you still want a plebiscite to becalled to ratify the new Constitution?" —

would be an attempt to by-pass and short-circuit this Honorable Court before which thequestion 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 tothe two questions just referred to will be reported then this Honorable Court and the entire


6 of 207 6/20/2012 8:16 AM

nation will be confronted with a fait accompli which has been attained in a highlyunconstitutional and undemocratic manner;

'17.That the fait accompli would consist in the supposed expression of the people approvingthe proposed Constitution;

'18.That, if such event would happen, then the case before this Honorable Court could, to allintents and purposes, become moot because, petitioners fear, and they therefore allege, thaton the basis of such supposed expression of the will of the people through the CitizensAssemblies, it would be announced that the proposed Constitution, with all its defects, bothcongenital and otherwise, has been ratified;

'19.That, in such a situation, the Philippines will be facing a real crisis and there is likelihoodof confusion if not chaos, because then, the people and their officials will not know whichConstitution is in force.

'20.That the crisis mentioned above can only be avoided if this Honorable Court willimmediately decide and announce its decision on the present petition;

'21.That with the withdrawal by the President of the limited freedom of discussion on theproposed Constitution which was given to the people pursuant to See. 3 of PresidentialDecree No. 73, the opposition of respondents to petitioners' prayer that the proposedplebiscite 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 thepetitioners in L-35949, 'Gerardo Roxas, et al, v. Commission on Elections, et al.,' andL-35942, 'Sedfrey Ordoñez, et al. v. The National Treasurer, et al.'

"The next day, January 13, 1973, which was a Saturday, the Court issued a resolutionrequiring the respondents in said three (3) cases to comment on said 'urgent motion' and'manifestation,' 'not later that Tuesday noon, January 16, 1973.' Prior thereto, or on January15, 1973, shortly before noon, the petitioners in said Case G.R. No. L-35948 filed a'supplemental motion for issuance of restraining order and inclusion of additionalrespondents,' praying —

'. . . that a restraining order be issued enjoining and restraining respondentCommission on Elections, as well as the Department of Local Governments and itshead, Secretary Jose Roño; the Department of Agrarian Reforms and its head,Secretary Conrado Estrella; the National Ratification Coordinating Committee and itsChairman, Guillermo de Vega; their deputies, subordinates and substitutes, and allother officials and persons who may be assigned such task, from collecting,certifying, and announcing and reporting to the President or other officialsconcerned, the so-called Citizens' Assemblies referendum results allegedly obtainedwhen they were supposed to have met during the period comprised between January10 and January 15, 1973, on the two questions quoted in paragraph 1 of thisSupplemental Urgent Motion.'

"In support of this prayer, it was alleged —

'3.That petitioners are now before this Honorable Court in order to ask furtherthat this Honorable Court issue a restraining order enjoining herein respondents,particularly respondent Commission on Elections as well as the Department of Local


7 of 207 6/20/2012 8:16 AM

Governments and its head, Secretary Jose Roño; the Department of AgrarianReforms and its head, Secretary Conrado Estrella; the National RatificationCoordinating Committee and its Chairman, Guillermo de Vega; and their deputies,subordinates and/or substitutes, from collecting certifying, announcing and reportingto the President the supposed Citizens' Assemblies referendum results allegedlyobtained when they were supposed to have met during the period between January10 and January 15, 1973, particularly on the two questions quoted in paragraph 1 ofthis Supplemental Urgent Motion;

'4.That the proceedings of the so-called Citizens' Assemblies are illegal, nulland void particularly insofar as such proceedings are being made the basis of asupposed consensus for the ratification of the proposed Constitution because: —

[a]The elections contemplated in the Constitution, Article XV, atwhich the proposed constitutional amendments are to be submitted forratification, are elections at which only qualified and duly registeredvoters are permitted to vote, whereas, the so called Citizens' Assemblieswere participated in by persons 15 years of age and older, regardless ofqualifications or lack thereof, as prescribed in the Election Code;

[b]Elections or plebiscites for the ratification of constitutionalamendments contemplated in Article XV of the Constitution haveprovisions for the secrecy of choice and of vote, which is one of thesafeguards of freedom of action, but votes in the Citizens' Assemblieswere open and were cast by raising hands;

[c]The Election Code makes ample provisions for free, orderlyand honest elections, and such provisions are a minimum requirementfor elections or plebiscites for the ratification of constitutionalamendments, but there were no similar provisions to guide and regulateproceedings 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 beenactually formed, because the mechanics of their organization were stillbeing discussed a day or so before the day they were supposed to beginfunctioning —

'Provincial governors and city and municipal mayors had

been meeting with barrio captains and community leaders sincelast Monday [January 8, 1973] to thresh out the mechanics inthe formation of the Citizens' Assemblies and the topics fordiscussion.' [Bulletin Today, January 10, 1973].

'It should be recalled that the Citizens' Assemblies were ordered formed onlyat the beginning of the year [Daily Express, January 1, 1973], and considering thelack of experience of the local organizers of said assemblies, as well as the absence ofsufficient guidelines for organization, it is too much to believe that such assembliescould be organized at such a short notice.

'5.That for lack of material time, the appropriate amended petition to includethe additional officials and government agencies mentioned in paragraph 3 of thisSupplemental Urgent Motion could not be completed because, as noted in the Urgent


8 of 207 6/20/2012 8:16 AM

Motion of January 12, 1973, the submission of the proposed Constitution to theCitizens' Assemblies was not made known to the public until January 11, 1973. Butbe that as it may, the said additional officials and agencies may be properly includedin the petition at bar because: —

[a]The herein petitioners have prayed in their petition for theannulment not only of Presidential Decree No. 73, but also of "anysimilar decree, proclamation, order or instruction."

so that Presidential Decree No. 86, insofar at least as it attempts to submit theproposed Constitution to a plebiscite by the so-called Citizens' Assemblies, isproperly in issue in this case, and those who enforce, implement, or carry out the saidPresidential Decree No. 86, and the instructions incidental thereto clearly fall withinthe scope of this petition;

[b]In their petition, petitioners sought the issuance of a writ ofpreliminary injunction restraining not only the respondents named in thepetition but also their "agents" from implementing not only PresidentialDecree No. 73, but also "any other similar decree, order, instruction, orproclamation in relation to the holding of a plebiscite on January 15,1973 for the purpose of submitting to the Filipino people for theirratification or rejection the 1972 Draft or proposed Constitutionapproved by the Constitutional Convention on November 30, 1972";and finally,

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

'Therefore, viewing the case from all angles, the officials and governmentagencies mentioned in paragraph 3 of this Supplemental Urgent Motion, can lawfullyhe reached by the processes of this Honorable Court by reason of this petition,considering, furthermore, that the Commission on Elections has under our laws thepower, among others, of: —

"(a)Direct and immediate supervision and control over national,provincial, city, municipal and municipal district officials required bylaw to perform duties relative to the conduct of elections on matterspertaining 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 Commissionon Elections, together with the officials and government agencies mentioned inparagraph 3 of this Supplemental Urgent Motion are restrained or enjoined fromcollecting, certifying, reporting or announcing to the President the results of thealleged voting of the so-called Citizens' Assemblies, irreparable damage will becaused to the Republic of the Philippines, the Filipino people, the cause of freedomand democracy, and the petitioners herein because:

[a]After the result of the supposed voting on the questionsmentioned in paragraph 1 hereof shall have been announced, a conflictwill arise between those who maintain that the 1935 Constitution is stillin force, on the one hand, and those who will maintain that it has beensuperseded by the proposed Constitution, on the other, thereby creating


9 of 207 6/20/2012 8:16 AM

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 proposedConstitution has been ratified by reason of the announcement of theresults of the proceedings of the so-called Citizens' Assemblies willargue that, General Order No. 3, which shall also be deemed ratifiedpursuant to the Transitory Provisions of the proposed Constitution, hasplaced Presidential Decree Nos. 73 and 86 beyond the reach andjurisdiction of this Honorable Court.'

"On the same date — January 15, 1973 — the Court passed a resolution requiring therespondents in said case G.R. No. L-35948 to file 'file an answer to the said motion not laterthan 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 ofthe President, he (the Secretary of Justice) was delivering to him (the writer) a copy ofProclamation No. 1102, which had just been signed by the President. Thereupon, the writerreturned 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 therepresent that the President had, according to information conveyed by the Secretary ofJustice, signed said Proclamation No. 1102, earlier that morning. Thereupon, the writer readProclamation 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 THECONSTITUTION PROPOSED BY THE 1971 CONSTITUTIONAL CONVENTION.

'WHEREAS, the Constitution proposed by the nineteen hundred seventy-oneConstitutional Convention is subject to ratification by the Filipino people;

'WHEREAS, Citizens Assemblies were created in barrios, in municipalitiesand 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 thePhilippines and who are registered in the list of Citizen Assembly members kept bythe barrio, district or ward secretary;

'WHEREAS, the said Citizens Assemblies were established precisely tobroaden the base of citizen participation in the democratic process and to affordample opportunity for the citizenry to express their views on important nationalissues;

'WHEREAS, responding to the clamor of the people and pursuant toPresidential Decree No. 86-A, dated January 5, 1973, the following questions wereposed before the Citizens Assemblies or Barangays: Do you approve of the NewConstitution? Do you still want a plebiscite to be called to ratify the newConstitution?

'WHEREAS, fourteen million nine hundred seventy-six thousand five


10 of 207 6/20/2012 8:16 AM

hundred sixty-one (14,976,561) members of all the Barangays (Citizens Assemblies)voted for the adoption of the proposed Constitution, as against seven hundredforty-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 tobe called to ratify the new Constitution, fourteen million two hundred ninety-eightthousand eight hundred fourteen (14,298,814) answered that there was no need for aplebiscite and that the vote of the Barangays (Citizens Assemblies) should beconsidered as a vote in a plebiscite;

'WHEREAS, since the referendum results show that more than ninety-five(95) per cent of the members of the Barangays (Citizens Assemblies) are in favor ofthe new Constitution, the Katipunan ng Mga Barangay has strongly recommendedthat the new Constitution should already be deemed ratified by the Filipino people;

'NOW, THEREFORE, I, FERDINAND E. MARCOS, President of thePhilippines, by virtue of the powers in me vested by the Constitution, do herebycertify and proclaim that the Constitution proposed by the nineteen hundred andseventy-one (1971) Constitutional Convention has been ratified by an overwhelmingmajority of all of the votes cast by the members of all the Barangays (CitizensAssemblies) throughout the Philippines, and has thereby come into effect.

'IN WITNESS WHEREOF, I have hereunto set my hand and caused the sealof the Republic of the Philippines to be affixed.

'Done in the City of Manila, this 17 th day of January, in the year of OurLord, nineteen hundred and seventy-three.

(Sgd.) FERDINAND E. MARCOS'President of the Philippines

'By the President:

'ALEJANDRO MELCHOR'Executive Secretary'

"Such is the background of the cases submitted for Our determination. After admitting someof the allegations made in the petition in L-35948 and denying the other allegations thereof,respondents therein alleged in their answer thereto, by way of affirmative defenses: 1) thatthe 'questions raised' in said petition 'are political in character'; 2) that 'the ConstitutionalConvention acted freely and had plenary authority to propose not only amendments but aConstitution which would supersede the present Constitution' as that 'the President's call fora plebiscite and the appropriation of funds for this purpose are valid'; 4) that 'there is not animproper 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 unconstitutionaldelegation of power, includes a referendum on the proclamation of Martial Law and purportsto exercise judicial power' is 'not relevant and . . . without merit.' Identical defenses were setup 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, afterextensive discussions on the merits thereof, have deemed it best that each Member write hisown views thereon and that thereafter the Chief Justice should state the result or the votes


11 of 207 6/20/2012 8:16 AM

thus cast on the points in issue. Hence, the individual views of my brethren in the Court areset forth in the opinions attached hereto, except that, instead of writing their separateopinions, some Members have preferred to merely concur in the opinion of one of ourcolleagues."

Then the writer of said decision expressed his own opinion on the issues involved therein, after whichhe 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 PresidentialDecree 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 hasbecome moot and academic, whereas Justices Barredo, Makasiar and Antonio voted touphold the validity of said Decree.

"3.On the authority of the 1971 Constitutional Convention to pass the proposed Constitutionor to incorporate therein the provisions contested by the petitioners in L-35948, JusticesMakalintal, Castro, Teehankee and Esguerra opine that the issue has become moot andacademic. Justices Fernando, Barredo, Makasiar, Antonio and myself have voted to upholdthe authority of the Convention.

"4.Justice Fernando, likewise, expressed the view that the 1971 Constitutional Conventionhad authority to continue in the performance of its functions despite the proclamation ofMartial 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 submissionof the proposed Constitution to a plebiscite, insofar as the freedom essential therefor isconcerned Justice Fernando is of the opinion that there is a repugnance between the electioncontemplated under Art. XV of the 1935 Constitution and the existence of Martial Law, andwould, 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 cannotbe predetermined, and that Martial Law per se does not necessarily preclude the factualpossibility 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 andmyself are of the opinion that the question of validity of said Proclamation has notbeen properly raised before the Court, which, accordingly, should not pass upon suchquestion.

"b.Justice Barredo holds that the issue on the constitutionality ofProclamation No. 1102 has been submitted to and should be determined by theCourt, and that the purported ratification of the Proposed Constitution . . . based onthe referendum among Citizens' Assemblies falls short of being in strict conformitywith the requirements of Article XV of the 1935 Constitution,' but that suchunfortunate drawback notwithstanding, 'considering all other related relevantcircumstances, . . . the new Constitution is legally recognizable and should berecognized as legitimately in force.'


12 of 207 6/20/2012 8:16 AM

"c.Justice Zaldivar maintains unqualifiedly that the Proposed Constitution hasnot 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 issuewhether the Proposed Constitution has been ratified by the people or not, 'in theabsence 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 setforth in their respective opinions. Justices Fernando, Teehankee, and the writer similarlyvoted, except as regards Case No. L-35948 as to which they voted to grant to the petitionerstherein a reasonable period of time within which to file appropriate pleadings should theywish to contest the legality of Presidential Proclamation No. 1102. Justice Zaldivar favorsthe granting of said period to the petitioners in said Case No. L-35948 for theaforementioned purpose, but he believes, in effect, that the Court should go farther anddecide on the merits everyone of the cases under consideration."

Accordingly, the Court — acting in conformity with the position taken by six (6) of its members, 1with 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 tocosts.

The Present Cases

Prior thereto, or on January 20, 1973, Josue Javellana filed Case G.R. No. L-36142 against theExecutive Secretary and the Secretaries of National Defense, Justice and Finance, to restrain saidrespondents "and their subordinates or agents, from implementing any of the provisions of theproposed Constitution not found in the present Constitution' — referring to that of 1935. The petitiontherein, filed by Josue Javellana, as a "Filipino citizen, and a qualified and registered voter" and as "aclass suit, for himself, and in behalf of all citizens and voters similarly situated," was amended on orabout January 24, 1973. After reciting in substance the facts set forth in the decision in the plebiscitecases, Javellana alleged that the President had announced "the immediate implementation of the NewConstitution, thru his Cabinet, respondents including," and that the latter "are acting without, or inexcess of jurisdiction in implementing the said proposed Constitution" upon the ground: "that thePresident, as Commander-in-Chief of the Armed Forces of the Philippines, is without authority tocreate the Citizens Assemblies"; that the same "are without power to approve the proposedConstitution . . ."; "that the President is without power to proclaim the ratification by the Filipinopeople of the proposed Constitution"; and "that the election held to ratify the proposed Constitutionwas not a free election, hence null and void."

Similar actions were filed, on January 23, 1973, by Vidal Tan, J. Antonio Araneta, Alejandro Roces,Manuel Crudo, Antonio U. Miranda, Emilio de Peralta and Lorenzo M. Tañada against the ExecutiveSecretary, the Secretaries of Finance Justice, Land Reform, and National Defense, the AuditorGeneral, Budget Commissioner, the Chairman of the Presidential Commission on Reorganization, theTreasurer 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 ofthe Philippines, against the Executive Secretary, the Secretary of Public Information, the AuditorGeneral, Budget Commissioner and the National Treasurer 5 ; and on February 12, 1973, by


13 of 207 6/20/2012 8:16 AM

Napoleon V. Dilag, Alfredo Salapantan, Jr., Leonardo Asodisen, Jr. and Raul M. Gonzales, 6 againstthe Executive Secretary, the Secretary of National Defense, the Budget Commissioner and theAuditor General.

Likewise, on January 23, 1973, Gerardo Roxas, Ambrosio Padilla, Jovito R. Salonga, Salvador H.Laurel, 7 Ramon V. Mitra, Jr. and Eva Estrada-Kalaw, the first as "duly elected Senator and MinorityFloor Leader of the Senate," and the others as "duly elected members" thereof, filed Case G.R. No.L-36165, against the Executive Secretary, the Secretary of National Defense, the Chief of Staff ofthe Armed Forces of the Philippines, the Secretary of General Services, the President and thePresident 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 (3) of theaforementioned petitioners 8 would expire en December 31, 1975, and that of the others 9 onDecember 31, 1977; that pursuant to our 1935 Constitution, "which is still in force," Congress of thePhilippines "must convene for its 8th Session on Monday, January 22, 1973, at 10:00 A.M., which isthe regular customary hour of its opening session"; that "on said day, from 10:00 A.M. up to theafternoon," said petitioner "along with their other colleagues, were unlawfully prevent from using theSenate Session Hall, the same having be closed by the authorities in physical possession and controlof the Legislative Building'; that "(a)t about 5:00 to 6:00 P.M. of the said day, the premises of theentire Legislative Building were ordered cleared by the same authorities, and no one was allowed toenter and have access to said premises"; that "(r)espondent Senate President Gil J. Puyat and, in hisabsence, respondent President Pro Tempore Jose Roy were asked by petitioning Senators to performtheir duties under the law and the Rules of the Senate, but unlawfully refrained and continue torefrain from doing so"; that the petitioners "are ready and willing to perform their duties as dulyelected members of the Senate of the Philippines," but respondents Secretary of National Defense,Executive Secretary and Chief of Staff, "through their agents and representatives, are preventingpetitioners from performing their duties as duly elected Senators of the Philippines"; that "the Senatepremises in the Congress of the Philippines Building . . . are occupied by and are under the physicalcontrol of the elements of military organizations under the direction of said respondents"; that, as per"official reports, the Department of General Services . . . is now the civilian agent in custody of thepremises of the Legislative Building"; that respondents "have unlawfully excluded and prevented, andcontinue 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 theso-called Citizens' Assemblies on January 10, 1973 to January 15, 197 ', as stated in and by virtue ofProclamation No. 1102 signed and issued by the President of the Philippines"; that "the allegedcreation of the Citizens' Assemblies as instrumentalities for the ratification of the Constitution of theRepublic of the Philippines" is inherently illegal and palpably unconstitutional; that respondentsSenate President and Senate President Pro Tempore "have unlawfully refrained and continue torefrain from and/or unlawfully neglected and continue to neglect the performance of their duties andfunctions as such officers under the law and the Rules of the Senate" quoted in the petition; thatbecause of events supervening the institution of the plebiscite cases, to which reference has beenmade in the preceding pages" the Supreme Court dismissed said cases on January 22, 1973, by amajority vote, upon the ground that the petitions therein had become moot and academic; that thealleged ratification of the 1972 (1973) Constitution "is illegal, unconstitutional and void and . . . cannot have superseded and revoked the 1935 Constitution," for the reasons specified in the petition asamended; that, by acting as they did, the respondents and their "agents, representatives andsubordinates . . . 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 forits 8th session, assuming general jurisdiction over the Session Hall and the premises of the Senate and


14 of 207 6/20/2012 8:16 AM

. . . continue such inaction up to this time and . . . a writ of mandamus is warranted in order tocompel them to comply with the duties and functions specifically enjoined by law"; and that "againstthe above mentioned unlawful acts of the respondents, the petitioners have no appeal nor otherspeedy and adequate remedy in the ordinary course of law except by invoking the equitableremedies of mandamus and prohibition with the provisional remedy of preliminary mandatoryinjunction."

Premised upon the foregoing allegations, said petitioners prayed that, "pending hearing on the merits,a writ of preliminary mandatory injunction be issued ordering the respondents Executive Secretary,the Secretary of National Defense, the Chief of Staff of the Armed Forces of the Philippines, and the. . . Secretary of General Services, as well as all their agents, representatives and subordinates tovacate the premises of the Senate of the Philippines and to deliver physical possession of the same tothe President of the Senate or his authorized representative"; and that "after hearing, judgment berendered declaring null and void Proclamation No. 1102 . . . and any order, decree, or proclamationhaving the same import and objective, issuing the writs of prohibition and mandamus, as prayed foragainst the above-mentioned respondents, and making the writ of injunction permanent; and that awrit of mandamus be issued against the respondents Gil J. Puyat and Jose Roy directing them tocomply with their duties and functions as President and President Pro Tempore, respectively, of theSenate of the 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 of Court first had and obtained, a consolidated comment on said petitions and/oramended petitions, a consolidated comment on said petitions and/or amended petitions, alleging thatthe same ought to have been dismissed outright; controverting petitioners' allegations concerning thealleged lack or impairment of the freedom of the 1971 Constitutional Convention to approve theproposed Constitution, its alleged lack of authority to incorporate certain contested provisionsthereof, the alleged lack of authority of the President to create and establish Citizens' Assemblies "forthe purpose of submitting to them the matter of ratification of the new Constitution," the alleged"improper or inadequate submission of the proposed constitution," the "procedure for ratificationadopted . . . through the Citizens Assemblies"; and maintaining that: 1) "(t)he Court is withoutjurisdiction to act on these petitions"; 2) the questions raised therein are "political in character andtherefore non-justiciable"; 3) "there was substantial compliance with Article XV of the 1935Constitution"; 4) "(t)he Constitution was properly submitted to the people in a free, orderly andhonest election"; 5) "Proclamation No. 1102, certifying the results of the election, is conclusive uponthe courts"; and 6) "(t)he amending process outlined in Article XV of the 1935 Constitution is notexclusive 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 thecircumstances, this . . . Court would not be in a position to act upon judicially," and that, in view ofthe opinions expressed by three members of this Court in its decision in the plebiscite cases, in effectupholding the validity of Proclamation No. 1102, "further proceedings in this case may only be anacademic exercise in futility."

On February 5, 1973, the Court issued a resolution requiring respondents in L 36236 to comment onthe petition therein not later than Saturday, February 10, 1973, and setting the case for hearing onFebruary 12, 1973, at 9:30 a.m. By resolution dated February 7, 1973, this Court resolved to


15 of 207 6/20/2012 8:16 AM

consider the comments of the respondents in cases G.R. Nos. L-36142, L-36161, L-36165, asmotions to dismiss the petitions therein, and to set said cases for hearing on the same date and timeas L-36236. On that date, the parties in G.R. No. L-36283 10 agreed that the same be, likewise,heard, as it was, in fact, heard jointly with the aforementioned cases G.R. Nos. L-36142, L-36164,L-36165 and L 36236. The hearing, which began on February 12, shortly after 9:30 a.m., wascontinued not only that after but, also, on February 13, 14, 15 and 16, morning and afternoon, afterwhich the parties were granted up to February 24, 1973, noon, within which to submit their notesarguments and additional arguments, as well as the documents required of them or whosepresentation was reserved by them. The same resolution granted the parties until March 1, 1973, toreply to the notes filed by their respective opponents. Counsel for the petitioners in G.R. Nos.L-36164 and L-36165 filed their aforementioned notes on February 24, 1973, on which date theSolicitor 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 alreadyfiled by the petitioners in G.R. Nos. L-36164 and 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, asthey did, their notes in reply to those submitted by the Solicitor General on March 3, 1973. OnMarch 21, 1973, petitioners in l-36165 filed a "Manifestation and Supplemental Rejoinder," whereasthe Office of the Solicitor General submitted in all these cases a "Rejoinder to Petitioners' Replies."

After deliberating on these cases, the members of the Court agreed that each would write his ownopinion and serve a copy thereof on his colleagues, and this they did. Subsequently, the Courtdiscussed said opinions and votes were cast thereon. Such individual opinions are appended hereto.

Accordingly, the writer will first express his personal opinion on the issues before the Court. Afterthe exposition of his aforesaid opinion, the writer will make, concurrently with his colleagues in theCourt, 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. No. 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 theplebiscite cases, Mr. Justice Barredo expressed the view that the 1935 Constitution had "pro tantopassed into history" and "been legitimately supplanted by the Constitution now in force by virtue ofProclamation No. 1102 . . . "; that Mr. Justice Antonio did not feel "that this Court is competent toact" in said cases "in the absence of any judicially discoverable and manageable standards" andbecause "the access to relevant information is insufficient to assure the correct determination of theissue," apart from the circumstance that "the new constitution has been promulgate and greatinterests have already arisen under it" and that the political organ of the Government has recognizedits 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 "thatwhat the proclamation (No. 1102) says on its face is true and until overcome by satisfactoryevidence" he could not "subscribe to the claim that such plebiscite was not held accordingly"; andthat he accepted "as a fait accompli that the Constitution adopted (by the 1971 ConstitutionalConvention) on November 30, 1972, has been duly ratified."


16 of 207 6/20/2012 8:16 AM

Counsel for respondents Gil J. Puyat and Jose Roy goes on to say that, under these circumstances, "itseems remote or improbable that the necessary eight (8) votes under the 1935 Constitution, andmuch less the ten (10) votes required by the 1972 (1973) Constitution, can be obtained for the reliefsought 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 aforementionedopinion in the plebiscite cases should be reconsidered and changed. In effect, he thus declared thathe had an open mind in connection with the cases at bar, and that in deciding the same he would notnecessarily adhere to said opinion if the petitioners herein succeeded in convincing him that theirview should be sustained.

Secondly, counsel for the aforesaid respondents had apparently assumed that, under the 1935Constitution, eigth (8) votes are necessary to declare invalid the contested Proclamation No. 1102. Ido not believe that this assumption is borne out by any provision of said Constitution. Section 10 ofArticle VIII thereof reads:

"All cases involving the constitutionality of a treaty or law shall be heard and decided by theSupreme Court in banc, and no treaty or law may be declared unconstitutional without theconcurrence 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 isrequired only to declare a "treaty or law" unconstitutional. Construing said provision, in a resolutiondated September 16, 1949, then Chief Justice Moran, voicing the unanimous view of the Members ofthis Court, postulated:

". . . There is nothing either in the Constitution or in the Judiciary Act requiring the vote ofeight Justices to nullify a rule or regulation or an executive order issued by the President. It isvery significant that in the previous drafts of section 10, Article VIII of the Constitution,'execution order' and 'regulation' were included among those that required for theirnullification 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 PhilippineConstitution, Vol. I, pp. 495, 496), and thus a mere majority of six members of this Court isenough to nullify them." 11

The distinction is not without reasonable foundation. The two thirds vote (eight [8] votes)requirement, indeed, was made to apply only to treaty and law, because, in these cases, theparticipation 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, whosedisapproval cannot be overridden except by the vote of two-thirds (2/3) of all members of eachHouse 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 actsof the President. Hence, to nullify the same, a lesser number of votes is necessary in the SupremeCourt than that required to invalidate a law or treaty.

Although the foregoing refers to rules, regulations and executive orders issued by the President, thedictum applies with equal force to executive proclamations, like said Proclamation No. 1102,


17 of 207 6/20/2012 8:16 AM

inasmuch as the authority to issue the same is governed by section 63 of the Revised AdministrativeCode, which provides:

"Administrative acts and commands of the (Governor-General) President of the Philippinestouching the organization or mode of operation of the Government or rearranging orreadjusting any of the districts, divisions, parts, or ports of the (Philippine Islands)Philippines and all acts and commands governing the general performance of duties bypublic employees or disposing of issues of general concern shall be made effective inexecutive orders.

"Executive orders fixing the dates when specific laws, resolutions, or orders are to have orcease to (have) effect and any information concerning matters of public momentdetermined by law, resolution, or executive orders, may be promulgated in an executiveproclamation, with all the force of an executive order." 14

In fact, while executive orders embody administrative acts or commands of the President, executiveproclamations are mainly informative and declaratory in character, and so does counsel forrespondents Gil J. Puyat and Jose Roy maintain in G.R. No. L-36165. 15 As consequence, anexecutive proclamation has no more than "the force of an executive order," so that, for the SupremeCourt to declare such proclamation unconstitutional, under the 1935 Constitution, the same numberof votes needed to invalidate an executive order, rule of regulation — namely, six (6) votes — wouldsuffice.

As regards the applicability of the provisions of the proposed new Constitution, approved by the 1971Constitutional Convention, in the determination of the question whether or not it is now in force, it isobvious that such question depends upon whether or not the said new Constitution has been ratifiedin accordance with the requirements of the 1935 Constitution, upon the authority of which saidConstitutional Convention was called and approved the proposed Constitution. It is well settled thatthe matter of ratification of an amendment to the Constitution should be settled by applying theprovisions of the Constitution in force at the time of the alleged ratification, or the oldConstitution. 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. Insupport thereof, he alleges that "petitioners would have this Court declare as invalid the NewConstitution 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 bethe New Constitution and the prospect of unsettling acts done in reliance on it caution againstinterposition of the power of judicial review"; that "In the case of the New Constitution, thegovernment has been recognized in accordance with the New Constitution"; that "the country'sforeign relations are now being conducted in accordance with the new charter"; that "foreigngovernments have taken note of it"; that the "plebiscite cases" are "not precedents for holdingquestions regarding proposal and ratification justiciable"; and that "to abstain from judgment on theultimate 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


18 of 207 6/20/2012 8:16 AM

invalid. What petitioners dispute is the theory that it has been validly ratified by the people, especiallythat they have done so in accordance with Article XV of the 1935 Constitution. The petitionersmaintain that the conclusion 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 saidconclusion was drawn; that the plebiscite or "election" required in said Article XV has not been held;that the Chief Executive has not authority, under the 1935 Constitution, to dispense with said electionor plebiscite; that the proceedings before the Citizens' Assemblies did not constitution and may not beconsidered as such plebiscite; that the facts of record abundantly show that the aforementionedAssemblies 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 allegedratification of the new Constitution proposed by the 1971 Constitutional Convention, not onlybecause 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 participatetherein, because the provisions of our Election Code were not observed in said Assemblies, becausethe same were not held under the supervision of the Commission on Elections, in violations of section2 of Article X of the 1935 Constitution, and because the existence of Martial Law and General OrderNo. 20, withdrawing or suspending the limited freedom to discuss the merits and demerits of saidproposed Constitution, impaired the people's freedom in voting thereon, particularly, a viva voce, asit was done in many instances, as well as their ability to have a reasonable knowledge of the contentsof 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 1971Constitutional Convention has been ratified in accordance with the provisions of Article XV of the1935 Constitution is a political question or not, I do not hesitate to state that the answer must be inthe negative. Indeed, such is the position taken by this Court, 17 in an endless line of decisions, toolong 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, whosedecisions have a persuasive effect in this jurisdiction, our constitutional system in the 1935Constitution being patterned after that of the United States. Besides, no plausible reason has, to mymind, been advanced to warrant a departure from said position, consistently with the form ofgovernment established under said Constitution.

Thus, in the aforementioned plebiscite cases, 18 We rejected the theory of the respondents thereinthat 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 aproper subject of judicial inquiry because, they claimed, it partook of a political nature; and Weunanimously declared that the issue was a justiciable one. With identical unanimity, We overruledthe respondents' contention in the 1971 habeas corpus cases, 19 questioning Our authority todetermine the constitutional sufficiency of the factual bases of the Presidential proclamationsuspending the privileges of the writ of habeas corpus on August 21, 1971, despite the opposite viewtaken by this Court in Barcelona v. Baker 20 and Montenegro v. Castañeda, 21 insofar as it adhered tothe 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 toreconsider the action thus taken by the Court and to revert to and follow the views expressed inBarcelon v. Baker and Mabanag v. Lopez Vito. 24

The reasons adduced in support thereof are, however, substantially the same as those given in


19 of 207 6/20/2012 8:16 AM

support of the political-question theory advanced in said habeas corpus and plebiscite cases, whichwere carefully considered by this Court and found by it to be legally unsound and constitutionallyuntenable. As a consequence, Our decision in the aforementioned habeas corpus cases partakes ofthe nature and effect of a stare decisis, which gained added weight by its virtual reiteration in theplebiscite 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-calledpolitical questions is the principle of separation of powers — characteristic of the Presidential systemof government — the functions of which are classified or divided, by reason of their nature, intothree (8) categories, namely: 1) those involving the making of laws, which are allocated to thelegislative department; 2) those concerned mainly with the enforcement of such laws and of judicialdecisions 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 orprerogatives 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 andindependent of the others, and each is devoid of authority, not only to encroach upon the powers orfield of action assigned to any of the other departments, but, also, to inquire into or pass upon theadvisability or wisdom of the acts performed, measures taken or decisions made by the otherdepartments — provided that such acts, measures or decisions are within the area allocated theretoby the Constitution. 25

This principle of separation of powers under the Presidential system goes hand in hand with thesystem of checks and balances, under which each department is vested by the Fundamental Lawwith some powers to forestall, restrain or arrest a possible or actual misuse or abuse of powers bythe other departments. Hence, the appointing power of the Executive, his pardoning power, his vetopower, his authority to call the Legislature or Congress to special sessions and even to prescribe orlimit 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 approveor 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 ofimpeachment. 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 decidewith 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 branchof the government, on the other, or between two (2) officers or branches of service, when the latterofficer or branch is charged with acting without jurisdiction or in excess thereof or in violation of law.And so, when a power vested in said officer or branch of the government is absolute or unqualified,the acts in the exercise of such power are said to be political in nature, and, consequently,non-justiciable beyond judicial review. Otherwise, courts of justice would be arrogating uponthemselves a power conferred by the Constitution upon another branch of the service to theexclusion of the others. Hence, in Tañada v. Cuenco, 26 this Court quoted with approval from In reMcConaughy, 27 the following:

"'At the threshold of the case we are met with the assertion that the questions involved arepolitical, and not judicial. If this is correct, the court has no jurisdiction as the certificate ofthe state canvassing board would then be final, regardless of the actual vote upon the


20 of 207 6/20/2012 8:16 AM

amendment. The question thus raised is a fundamental one; but it has been so often decidedcontrary to the view contended for by the Attorney General that it would seem to be finallysettled.

xxx xxx xxx

"'. . . What is generally meant, when it is said that a question is political, and not judicial, isthat it is a matter which is to be exercised by the people in their primary political capacity,or that it has been specifically delegated to some other department or particular officer of thegovernment, 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 determinewhether it will pass a law or submit a proposed constitutional amendment to the people. Thecourts have no judicial control over such matters, not merely because they involve politicalquestions, but because they are matters which the people have by the Constitution delegatedto the Legislature. The Governor may exercise the powers delegated to him, free fromjudicial control, so long as he observes the laws and acts within the limits of the powerconferred. His discretionary acts cannot be controllable, not primarily because they are of apolitical nature, but because the Constitution and laws have placed the particular matterunder his control. But every officer under a constitutional government must act accordingto law and subject to its restrictions, and every departure therefrom or disregard thereofmust subject him to that restraining and controlling power of the people, acting through theagency of the judiciary; for it must be remembered that the people act through courts, aswell as through the executive or the Legislature. One department is just as representative asthe other, and the judiciary is the department which is charged with the special duty ofdetermining the limitations which the law places upon all official action. The recognition ofthis principle, unknown except in Great Britain and America, is necessary, to "the end thatthe government may be one of laws and not of men" — words which Webster said were thegreatest contained in any written constitutional document.' (Italics 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 legalparlance, what it means in ordinary parlance, namely, a question of policy" in matters concerningthe government of a State, as a body politic. "In other words, in the language of Corpus JurisSecundum (supra), it refers to 'those questions which, under the Constitution, are to be decidedby the people in their sovereign capacity, or in regard to which full discretionary authority hasbeen delegated to the Legislature or executive branch of the government.' It is concerned withissues 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 onwhether or not the prescribed qualifications or conditions have been met, or the limitations respected,it justiciable or non-political, the crux of the problem being one of legality or validity of thecontested act, not its wisdom. Otherwise, said qualifications, conditions or limitations — particularlythose prescribed or imposed by the Constitution — would be set at naught. What is more, the judicialinquiry into such issue and the settlement thereof are the main functions of courts of justice underthe Presidential form of government adopted in our 1935 Constitution, and the system of checks andbalances, one of its basic predicates. As a consequence, We have neither the authority nor thediscretion to decline passing upon said issue, but are under the ineluctable obligation — madeparticularly more exacting and peremptory by our oath, as members of the highest Court of the land,


21 of 207 6/20/2012 8:16 AM

to support and defend the Constitution — to settle it. This explains why, in Miller v. Johnson, 28 itwas held that courts have a "duty, rather than a power", to determine whether another branch of thegovernment has "kept within constitutional limits." Not satisfied with this postulate, the court wentfarther and stressed that, if the Constitution provides how it may be amended — as it is in our 1935Constitution — "then, unless the manner is followed, the judiciary as the interpreter of thatconstitution, will declare the amendment invalid." 29 In fact, this very Court — speaking throughJustice Laurel, an outstanding authority on Philippine Constitutional Law, as well as one of the highlyrespected and foremost leaders of the Convention that drafted the 1935 Constitution — declared, asearly as July 15, 1936, that "(i)n times of social disquietude or political excitement, the greatlandmarks of the Constitution are apt to be forgotten or marred, if not entirely obliterated. In cases ofconflict, the judicial department is the only constitutional organ which can be called upon todetermine 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 underconsideration is non-justiciable in nature. Neither the factual background of that case nor the actiontaken therein by the Federal Supreme Court has any similarity with or bearing on the cases underconsideration.

Luther v. Borden was an action for trespass filed by Luther with the Circuit Court of the UnitedStates 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 ofEngland, alleged in their defense that they had acted in obedience to the commands of a superiorofficer, because Luther and others were engaged in a conspiracy to overthrow the government byforce and the state had been placed by competent authority under Martial Law. Such authority wasthe charter government of Rhode Island at the time of the Declaration of Independence, for — unlikeother states which adopted a new Constitution upon secession from England — Rhode Islandretained its form of government under a British Charter, making only such alterations, by acts of theLegislature, as were necessary to adapt it to its subsequent condition as an independent state. It wasunder this form of government when Rhode Island joined other American states in the Declaration ofIndependence and, by subsequently ratifying the Constitution of the United States, became a memberof 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 thepopulation — which eventually resulted in a convention called for the drafting of a new Constitutionto be submitted to the people for their adoption or rejection. The convention was not authorized byany law of the existing government. The delegates to such convention framed a new Constitutionwhich was submitted to the people. Upon the return of the votes cast by them, the conventiondeclared that said Constitution had been adopted and ratified by a majority of the people and becamethe 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 beenelected governor under the new Constitution of the rebels, prepared to assert authority by force ofarms, and many citizens assembled to support him. Thereupon, the charter government passed anAct declaring the state under Martial Law and adopted measures to repel the threatened attack andsubdue the rebels. This was the state of affairs when the defendants, who were in the military service


22 of 207 6/20/2012 8:16 AM

of the charter government and were to arrest Luther, for engaging in the support of the rebelgovernment — 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 theexisting form of government. Eventually, a new constitution was drafted by a convention held underthe 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 persons who were to be given, the receive andreturn them qualifications of the voters having all been previously authorized and provided for bylaw passed by the charter government," the latter formally surrendered all of its power to the newgovernment, established under its authority, in May 1843, which had been in operationuninterruptedly since then.

About a year before, or in May 1842, Dorr, at the head of a military force, had made anunsuccessful 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 Junefollowing which dispersed upon approach of the troops of the old government, no further effort wasmade to establish" his government. ". . . until the Constitution of 1843" — adopted under theauspices of the charter government — "went into operation, the charter government continued toasset 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 bythe majority of the people, which the Circuit Court rejected, apart from rendering judgment for thedefendants, the plaintiff took the case for review to the Federal Supreme Court which affirmed theaction 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 when intooperation. The judges who decided that the case held their authority under thatconstitution; 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 notquestioned by either party to this controversy, although the government under which it actedwas 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. Thequestion relates, altogether, to the constitution and laws of that State; and the well settledrule in this court is, that the courts of the United States adopt and follow the decisions of theState courts in questions which concern merely the constitution and laws of the State.

"Upon what ground could the Circuit Court of United States which tried this case havedeparted from this rule, and disregarded and overruled the decisions of the courts of RhodeIsland? Undoubtedly the courts of the United States have certain powers under theConstitution and laws of the United States which do not government has been lawfullyestablished, which the courts of State disown and repudiate, is not one of them. Upon such aquestion the courts of the United States are bound to follow the decisions of the Statetribunals, and must therefore regard the charter government as the lawful and establishedgovernment during the time of this contest." 32


23 of 207 6/20/2012 8:16 AM

It is thus apparent that the context within which the case of Luther v. Borden was decided is basicallyand fundamentally different from that of the cases at bar. To begin with, the case did not involve afederal question, but one purely municipal in nature. Hence, the Federal Supreme Court was "boundto follow the decisions of the State tribunals" of Rhode Island upholding the constitution adoptedunder 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 ofRhode Island exists in the cases at bar. Secondly, the states of the Union have a measure of internalsovereignty upon which the Federal Government may not encroach, whereas ours is a unitary formof government, under which our local governments derive their authority from the nationalgovernment. Again, unlike our 1935 Constitution, the charter or organic law of Rhode Islandcontained no provision on the manner, procedure or conditions for its amendment.

Then, too, the case of Luther v. Borden hinged more on the question of recognition of government,than on recognition of constitution, and there is a fundamental difference between these two (2)types of recognition, the first being generally conceded to be a political question, whereas the natureof the latter depends upon a number of factors, one of them being whether the new Constitution inforce 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, antagonisticto each other, which is absent in the present cases. Here, the Government established under the 1935Constitution is the very same government whose Executive Department has urged the adoption of thenew or revised Constitution proposed by the 1971 Constitutional Convention and now alleges that ithas been ratified by the people.

In short, the views expressed by the Federal Supreme Court in Luther v. Borden, decided in 1849, onmatters other than those referring to its power to review decisions of a state court concerning theconstitution and government of that state, not the Federal Constitution or Government, are manifestlyneither controlling, nor even persuasive in the present cases, having — as the Federal Supreme Courtadmitted — no authority whatsoever to pass upon such matters or to review decisions of said statecourt thereon. In fact, referring to that case, the Supreme Court of Minnesota had the following tosay:

"Luther v. Borden, 7 How. 1, 12 L. Ed. 581, is always cited by those who assert that thecourts have no power to determine questions of a political character. It is interestinghistorically, but it has not the slightest application to the case at bar. When carefullyanalyzed, it appears that it merely determines that the federal courts will accept as final andcontrolling a decision of the highest court of a state upon a question of the construction ofthe Constitution of the state . . ." 33

Baker v. Carr, 34 cited by respondents, involved an action to annul a Tennessee statute apportioningthe seats in the General Assembly among the counties of the State, upon the theory that thelegislation 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 jurisprudenceon the matter, the Federal Supreme Court reversed the appealed decision and held that said issuewas justiciable and non-political, inasmuch as: ". . . (d)eciding whether a matter has in any measurebeen committed by the Constitution to another branch of government, or whether the action of thatbranch exceeds whatever authority has been committed, is itself a delicate exercise in constitutionalinterpretation, 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,


24 of 207 6/20/2012 8:16 AM

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 — whosequalifications 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 theFederal Supreme Court held that it was clearly a justiciable one.

The Supreme Court of Minnessota undertook a careful review of American jurisprudence on thematter. Owing to the lucidity of its appraisal thereof, We append the same to this opinion as Annex Athereof.

After an exhaustive analysis of the cases on this subject, the Court concluded:

"The authorities are thus practically uniform in holding that whether a constitutionalamendment has been properly adopted according to the requirements of an existingConstitution is a judicial question. There can be little doubt that the consensus of judicialopinion is to the effect that it is the absolute duty of the judiciary to determine whether theConstitution has been amended in the manner required by the Constitution, unless a specialtribunal has been created to determine the question; and even then many of the courts holdthat 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 themethod or procedure for its amendment, it is clear to my mind that the question whether or not therevised Constitution drafted by the 1971 Constitutional Convention has been ratified in accordancewith said Art. XV is a justiciable one and non-political in nature, and that it is not only subject tojudicial 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 towhether some action denominated 'political' exceeds constitutional authority.'" 37

III

Has the proposed new or revised Constitution been ratified conformably to said Art. XV of the 1935Constitution?

Petitioners in L-36142 maintain the negative view, upon the ground: 1) that the President "is withoutauthority to create the Citizens' Assemblies" through which, respondents maintain, the proposed newConstitution has been ratified; 2) that said Assemblies "are without power to approve the proposedConstitution"; 3) that the President "is without power to proclaim the ratification by the Filipinopeople of the proposed Constitution"; and 4),that "the election held (in the Citizens' Assemblies) toratify 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 inL-36164 contend: 1) that the President "has no power to call a plebiscite for the ratification orrejection" of the proposed Constitution or "to appropriate funds for the holding of said plebiscite"; 2)that the proposed new or revised Constitution "is vague and incomplete," as well as "containsprovisions which are beyond the powers of the 1971 Convention to enact," thereby rendering it "unfitfor . . . submission to the people;" 3) that "(t)he period of time between November 30, 1972 whenthe 1972 draft was approved and January 11-15, 1973," when the Citizens' Assemblies supposedlyratified said draft, "was too short, worse still, there was practically no time for the Citizens'


25 of 207 6/20/2012 8:16 AM

Assemblies to discuss the merits of the Constitution which the majority of them have not read andwhich they never knew would be submitted to them for ratification until they were asked thequestion — 'do you approve of the New Constitution?' during the said days of the voting"; and that"(t)here was altogether no freedom of discussion and no opportunity to concentrate on the mattersubmitted to them when the 1972 draft was supposedly submitted to the Citizens' Assemblies forratification."

Petitioner in L-36236 added, as arguments in support of the negative view, that: 1) "(w)ith agovernment-controlled press, there can never be a fair and proper submission of the proposedConstitution to the people"; and 2) Proclamation No. 1102 is null and void "(i)nasmuch as theratification process" prescribed "in the 1935 Constitution was not followed."

Besides adopting substantially some of the grounds relied upon by the petitioners in the abovementioned cases, the petitioners in L-36283 argue that "(t)he creation of the Citizens' Assemblies asthe vehicle for the ratification of the Constitution was a deception upon the people since the Presidentannounced 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 beenset forth earlier in this opinion. Hence, it is unnecessary to reproduce them here. So it is, withrespect to the positions taken in L-36165 by counsel for therein respondents Gil J. Puyat and JoseRoy — although more will be said later about them — and by the Solicitor General, on behalf of theother 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 calledfor that purpose, "by a vote of three-fourths of all the Members of the Senate and the House ofRepresentatives 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-36164question the authority of the 1971 Constitutional Convention to incorporate certain provisions into thedraft of the new or revised Constitution The main issue in these five (5) cases hinges, therefore, onwhether 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 theirratification" conformably to Art. XV of the Constitution?

In this connection, other provisions of the 1935 Constitution concerning "elections" must, also, betaken into account, namely, section 1 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


26 of 207 6/20/2012 8:16 AM

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 whereinthey propose to vote for at least six months preceding the election. The National Assemblyshall extend the right of suffrage to women, if in a plebiscite which shall be held for thatpurpose within two years after the adoption of this Constitution, not less than three hundredthousand women possessing the necessary qualifications shall vote affirmatively on thequestion."

Sections 1 and 2 of Art. X of the Constitution ordain in part:

"Section 1.There shall be an independent Commission on Elections composedof a Chairman and two other Members to be appointed by the President with theconsent of the Commission on Appointments, who shall hold office for a term of nineyears and may not be reappointed . . .

"xxx xxx xxx

"Sec. 2.The Commission on Elections shall have exclusive charge of the enforcement andadministration of all laws relative to the conduct of elections and shall exercise all otherfunctions which may be conferred upon it by law. It shall decide, save those involving theright to vote, all administrative questions, affecting elections, including the determination ofthe number and location of polling places, and the appointment of election inspectors and ofother election officials. All law enforcement agencies and instrumentalities of theGovernment, when so required by the Commission, shall act as its deputies for the purposeof insuring free, orderly, and honest elections. The decisions, orders, and rulings theCommission 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 ofthe right of suffrage. They claim that no other persons than "citizen of the Philippines not otherwisedisqualified by law, who are twenty-one years of age or over and are able to read and write, andwho shall have resided in the Philippines for one year and in the municipality wherein they proposeto vote for at least six months preceding the election," may exercise the right of suffrage in thePhilippines. Upon the other hand, the Solicitor General contends that said provision merelyguarantees the right of suffrage to persons possessing the aforementioned qualifications and none ofthe disqualifications, prescribed by law, and that said right may be vested by competent authorities inpersons lacking some or all of the aforementioned qualifications, and possessing some of theaforesaid 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 theprovisions of the Revised Barrio Charter, Republic Act No. 3590, particularly sections 4 and 6thereof, providing that citizens of the Philippines "eighteen years of age or over," who are registeredin the list of barrio assembly members, shall be members thereof and may participate as such in theplebiscites prescribed in said Act.

I cannot accept the Solicitor General's theory. Art. V of the Constitution declares who may exercisethe right of suffrage, so that those lacking the qualifications therein prescribed may not exercise suchright. This view is borne out by the records of the Constitutional Convention that drafted the 1935Constitution. Indeed, section 1 of Art. V of the 1935 Constitution was largely based on the report of


27 of 207 6/20/2012 8:16 AM

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 hadrecommended: 1) "That the right of suffrage should be exercised only by male citizens of thePhilippines." 2) "That it should be limited to those who could read and write." 3) "That the duty tovote should be made obligatory." It appears that the first recommendation was discussed extensivelyin the Convention, and that, by way of compromise, it was eventually agreed to include, in section 1of 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 byamendment of said Constitution — the duty to "extend the right of suffrage to women, if in aplebiscite to be held for that purpose within two years after the adoption of this Constitution, not lessthan three hundred thousand women possessing the necessary qualifications shall vote affirmativelyon the question." 41

The third recommendation on "compulsory" voting was, also, debated upon rather extensively, afterwhich it was rejected by the Convention. 42 This accounts, in my opinion, for the permissivelanguage used in the first sentence of said Art. V. Despite some debates on the age qualification —amendments having been proposed to reduce the same to 18 or 20, which were rejected, and theresidence qualification, as well as the disqualifications to the exercise of the right of suffrage — thesecond recommendation limiting the right of suffrage who could "read and write" was — in thelanguage of Dr. Jose M. Aruego, one of the Delegates to said Convention — "readily approved inthe Convention without any dissenting vote," although there was some debate on whether theFundamental Law should specify the language or dialect that the voter could read and write, whichwas decided in the negative. 43

What is relevant to the issue before Us is the fact that the constitutional provision under considerationwas meant to be and is a grant or conferment of a right to persons possessing the qualifications andnone of the disqualifications therein mentioned, which in turn, constitute a limitation of or restrictionto 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 theauthority of Congress or of any other branch of the Government to deny said right to the subject ofthe grant — and, in this sense only, may the same partake of the nature of a guarantee. But, thisdoes not imply not even remotely, that the Fundamental Law allows Congress or anybody else to vestin those lacking the qualifications and having the disqualifications mentioned in the Constitution theright of suffrage.

At this juncture, it is noteworthy that the committee on suffrage responsible for the adoption ofsection 1 of Art. V of the Constitution was "strongly influenced by the election laws then in force inthe Philippines." Our first Election Law was Act 1582, passed on January 9, 1907, which was partlyamended by Acts 1669, 1709, 1726 and 1768, and incorporated into the Administrative Code of1916 — Act 2657 — as chapter 20 thereof, and then in the Administrative Code of 1971 — Act2711 — 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 anddisqualifications from voting, are quoted below. 44 In all of these legislative acts, the provisionsconcerning the qualifications of voters partook of the nature of a grant or recognition of the right ofsuffrage, and. hence, of a denial thereof to those who lacked the requisite qualifications andpossessed any of the statutory disqualifications. In short, the history of section 1, Art. V of theConstitution, shows beyond doubt that the same conferred — not guaranteed — the authority toexercise the right of suffrage to persons having the qualifications prescribed therein and none of the


28 of 207 6/20/2012 8:16 AM

disqualifications to be specified in ordinary laws and, by necessary implication, denied such right tothose lacking any of said qualifications or having any of the aforementioned disqualifications.

This view is further bolstered by the fact that the 1971 Constitutional Convention sought thesubmission to a plebiscite of a "partial amendment" to said section 1 of Art. V of the 1935Constitution, 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 onElections, 45 granting the writs of prohibition and injunction therein applied for, upon the groundthat, 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 theproposed amendment sought to be submitted to a plebiscite was not even a complete but a "partialamendment" of said section 1, which could be amended further, after its ratification had the sametaken place, so that the aforementioned partial amendment was, for legal purposes, no more than aprovisional or temporary amendment. Said partial amendment was predicated upon the generallyaccepted 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 theConstitution.

Upon the other hand, the question, whether 18-year-old members of barrio assemblies may vote inbarrio as plebiscites is, to say the least, a debatable one. Indeed, there seems to be a conflict betweenthe last paragraph of said section 6 of Rep. Act No. 3590, 46 pursuant to which the "majority vote ofall the barrio assembly members" (which include all barrio residents 18 years of age or over, dulyregistered in the list of barrio assembly members) is necessary for the approval, in an assemblyplebiscite, of "any budgetary, supplemental appropriations or special tax ordinances," whereas,according to the paragraph preceding the penultimate one of said section, 47 "(a)ll duly registeredbarrio assembly members qualified to vote" — who, pursuant to section 10 of the same Act, must becitizens "of the Philippines, twenty-one years of age or over, able to read and write," and residents ofthe barrio "during the six months immediately preceding the election, duly registered in the list ofvoters" and "not otherwise disqualified . . ." — just like the provisions of the present and past electioncodes of the Philippines and Art. V of the 1935 Constitution — "may vote in the plebiscite."

I believe, however, that the apparent conflict should be resolved in favor of the 21-year-old membersof the assembly, not only because this interpretation is in accord with Art. V of the Constitution, but,also, because provisions of a Constitution — particularly of a written and rigid one, like ours — aregenerally accorded a mandatory status — unless the intention to the contrary is manifest, which isnot so as regards said Art. V — for otherwise they would not have been considered sufficientlyimportant to be included in the Fundamental Law of the land. 48 Besides, it would be illogical, if notabsurd, to believe that Republic Act No. 3590 requires, for the most important measures for which itdemands — in addition to the favorable action of the barrio council — the approval of the barrioassembly through a plebiscite, lesser qualifications than those prescribed in dealing with ordinarymeasures for which such plebiscite need not be held.

It is similarly inconceivable that those who drafted the 1935 Constitution intended section 1 of Art. Vthereof to apply only to elections of public officers, not to plebiscites for the ratification ofamendments to the Fundamental Law or a revision thereof, or of an entirely new Constitution, and topermit the legislature to require lesser qualifications for such ratification, notwithstanding the fact thatthe subject thereof is much more important — if not fundamental, such as the basic changes


29 of 207 6/20/2012 8:16 AM

introduced in the draft of the revised Constitution adopted by the 1971 Constitutional Convention,which are intended to be in force permanently, or, at least, for many decades, and to affect the wayof life of the nation — and, accordingly demands greater experience and maturity on the part of theelectorate than that required for the election of public officers, 49 whose average term ranges from 2to 6 years.

It is admitted that persons 15 years of age or over, but below 21 years, regardless of whether or notthey possessed the other qualifications laid down in both the Constitution and the present ElectionCode, 50 and of whether or not they are disqualified under the provisions of said Constitution andCode, 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 1971Constitutional Convention.

In fact, according to the latest official data, the total number of registered voters 21 years of age orover in the entire Philippines, available in January 1973, was less than 12 million. Yet, ProclamationNo. 1102 states that 14,976,561 "members of all the Barangays (Citizens Assemblies) voted for theadoption 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 newConstitution, ". . . 14,298,814 answered that there was no need for a plebiscite and that the vote ofthe 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 forexceeded 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 onthis point in subsequent pages — were fundamentally irregular, in that persons lacking thequalifications prescribed in section 1 of Art. V of the Constitution were allowed to vote in saidAssemblies. And, since there is no means by which the invalid votes of those less than 21 years ofage 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 casewhere it is impossible to ascertain with reasonable certainty the true vote," as where "it is impossibleto 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 factualmilieu of the particular controversy, have the effect of destroying the integrity andauthenticity of disputed election returns and of avoiding their prima facie value andcharacter. If satisfactorily proven, although in a summary proceeding, such circumstances asalleged by the affected or interested parties, stamp the election returns with the indeliblemark of falsity and irregularity, and, consequently, of unreliability, and justify their exclusionfrom the canvass."

Then, too, the 1935 Constitution requires "a majority of the votes cast" for a proposed amendment tothe Fundamental Law to be "valid" as part thereof, and the term "votes cast" has a well-settledmeaning.

"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


30 of 207 6/20/2012 8:16 AM

"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.' . . . Theword '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 choiceof the voter on the measure proposed." 58

In short, said Art. XV envisages — with the term "votes cast" — choices made on ballots — notorally or by raising hands — 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, withits major characteristics, namely, uniform official ballots prepared and furnished by the Governmentand secrecy in the voting, with the advantage of keeping records that permit judicial inquiry, whennecessary, into the accuracy of the election returns. And the 1935 Constitution has been soconsistently interpreted in all plebiscites for the ratification or rejection of proposed amendmentsthereto, from 1935 to 1967. Hence, the viva voce voting in the Citizens' Assemblies was and is nulland 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 1935 Constitution is that of Art. X thereof,particularly its sections 1 and 2. Indeed, section 1 provides that "(t)here shall be an independentCommission on Elections . . ." The point to be stressed here is the term "independent." Indeed, whywas the term used?

In the absence of said constitutional provision as to the independence of the Commission, would ithave been dependent upon either Congress or the Judiciary? The answer must be in 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 Congressor courts of justice. Said functions are by their nature essentially executive, for which reason, theCommission would be under the "control" of the President, pursuant to section 10, paragraph (1) ofArt. 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 thereinsaid Art. X, on the Commission on Elections, the purpose was to make said Commissionindependent principally of the Chief Executive.

And the reason therefor is, also, obvious. Prior to the creation of the Commission on Elections as aconstitutional organ, election laws in the Philippines were enforced by the then Department of theInterior, through its Executive Bureau, one of the offices under the supervision and control of saidDepartment. 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 thePresident of the Philippines, since the effectivity of said Fundamental Law. Under the provisionsthereof, the Executive could so use his power of control over the Department of the Interior and itsExecutive Bureau as to place the minority party at such a great, if not decisive, disadvantage, as todeprive it, in effect, of the opportunity to defeat the political party in power, and, hence, to enable thesame to perpetuate itself therein. To forestall this possibility, the original 1935 Constitution was


31 of 207 6/20/2012 8:16 AM

amended by the establishment of the Commission on Elections as a constitutional body independentprimarily of the President of the Philippines.

The independence of the Commission was sought to be strengthened by the long term of office of itsmembers — 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 officeexcept by impeachment, placing them, in this respect, on the same plane as the President, theVice-President, the Justices of the Supreme Court and the Auditor General; that they may not bereappointed; that their salaries "shall be neither increased nor diminished during their term of office";that the decisions of the Commission "shall be subject to review by the Supreme Court" only 61 ; that"(n)o pardon, parole, or suspension of sentence for the violation of any election law may be grantedwithout the favorable recommendation of the Commission" 62 ; and that its chairman and members"shall not, during their 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 maybe affected by the functions of their office; nor shall they, directly or indirectly, be financiallyinterested 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 everythingpossible to 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)heCommission on Elections shall have exclusive charge of the enforcement and administration of alllaws relative to the conduct of elections," apart from such other "functions which may be conferredupon it by law." It further provides that the Commission "shall decide, save those involving the rightto vote, all administrative questions, affecting elections, including the determination of the numberand location of polling places, and the appointment of election inspectors and of other electionofficials." And, to forestall possible conflicts or frictions between the Commission, on the one hand,and the other offices or agencies of the executive department, on the other, said section 2 postulatesthat "(a)ll law enforcement agencies and instrumentalities of the Government, when so required bythe Commission, shall act as its deputies for the purpose of insuring free, orderly, and honestelections." Not satisfied with this, it declares, in effect, that "(t)he decisions, orders, and rulings of theCommission" 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 Election Code of 1971, implements the constitutional powers of the Commissionon Elections and grants additional powers thereto, some of which are enumerated in sections 5 and 6of said Act, quoted below. 64 Moreover, said Act contains, inter alia, detailed provisions regulatingcontributions and other (corrupt) practices; the establishment of election precincts; the designationand arrangement of polling places, including voting booths, to protect the secrecy of the ballot; theformation of lists of voters, the identification and registration of voters, the proceedings therefor, aswell as for the inclusion in, or exclusion or cancellation from said list and the publication thereof; theestablishment of municipal, provincial and national files of registered voters; the composition andappointment of boards of election inspectors; the particulars of the official ballots to be used and theprecautions to be taken to insure the authenticity thereof; the procedure for the casting of votes; thecounting of votes by boards of inspectors; the rules for the appreciation of ballots and the preparationand disposition of election returns; the constitution and operation of municipal, provincial andnational boards of canvassers; the representation of political parties and/or their candidates in eachelection 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 violations of the provisions of


32 of 207 6/20/2012 8:16 AM

said Election Code and penalties for such violations.

Few laws may be found with such a meticulous and elaborate set of provisions aimed at "insuringfree, orderly, and honest elections," as envisaged in section 2 of Art. X of the Constitution. Yet, noneof the foregoing constitutional and statutory provisions was followed by the so-called Barangays orCitizens' Assemblies. And no reasons have been given, or even sought to be given therefor. In many,if not most, instances, the elections were held a viva voce, thus depriving the electorate of the rightto vote secretly — one of the most fundamental and critical features of our election laws from timeimmemorial — particularly at a time when the same was of utmost importance, owing to theexistence of Martial Law.

In Glenn v. Gnau, 65 involving the casting of many votes, openly, without complying with therequirements of the law pertinent thereto, it was held that the "election officers" involved "cannot betoo strongly condemned" therefor and that if they 'could legally dispense with such requirement xxxthey could with equal propriety dispense with all of them, including the one that the vote shall be bysecret ballot, or even by ballot at all . . ."

Moreover, upon the formal presentation to the Executive of the proposed Constitution drafted by the1971 Constitutional Convention, or on December 1, 1972, Presidential Decree No. 73 (on thevalidity of which — was contested in the plebiscite cases, as well as in the 1972 habeas corpus case66 — We need not, in the cases at bar, express any opinion) was issued, calling a plebiscite, to beheld on January 15, 1973, at which the proposed Constitution would be submitted to the people forratification or rejection; directing the publication of said proposed Constitution; and declaring, interalia, that "(t)he provisions of the Election Code of 1971, insofar as they are not inconsistent" withsaid decree — excepting those "regarding rights and obligations of political parties and candidates"— "shall apply to the conduct of the plebiscite." Indeed, section 2 of said Election Code of 1971provides that "(a)ll elections of public officers except barrio officials and plebiscites shall beconducted 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," saidnothing about the procedure to be followed in the plebiscite to take place at such notice, and no otherorder or decree has been brought to Our attention, expressly or impliedly repealing the provisions ofPresidential Decree No. 73, insofar as said procedure is concerned.

Upon the other hand, said General Order No. 20 expressly suspended "the provisions of Section 3 ofPresidential Decree No. 73 insofar as they allow free public discussion of the proposed Constitution .. . temporarily suspending the effects of Proclamation No. 1081 for the purposes of free and opendebate on the proposed Constitution . . ." This specific mention of the portions of the decrees ororders or instructions suspended by General Order No. 20 necessarily implies that all other portionsof said decrees, orders or instructions — and, hence, the provisions of Presidential Decree No. 73outlining the procedure to be followed in the plebiscite for the ratification or rejection of the proposedConstitution — 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 considervital national issues . . . like the holding of the plebiscite on the new Constitution . . . and others in thefuture, which shall serve as guide or basis for action or decision by the national government"; andthat the Citizens' Assemblies "shall conduct between January 10 and 15, 1973, a referendum on


33 of 207 6/20/2012 8:16 AM

important national issues, including those specified in paragraph 2 hereof, and submit the resultsthereof to the Department of Local Governments and Community Development immediatelythereafter, . . ." As in Presidential Decree No. 86, this Decree No. 86-A does not and cannot excludethe exercise of the constitutional supervisory power of the Commission on elections or itsparticipation in the proceedings in said Assemblies, if the same had been intended to constitute the"election" or plebiscite required in Art. V of the 1935 Constitution. The provision of PresidentialDecree No. 86-A directing the immediate submission of the result thereof to the Department of LocalGovernments and Community Development is not necessarily inconsistent with, and must besubordinate to the constitutional power of the Commission on Elections to exercise its "exclusive"authority over the "enforcement and administration of all laws relative to the conduct of elections," ifthe proceedings in the Assemblies would partake of the nature of an "election" or plebiscite for theratification or rejection of the proposed Constitution.

We are told that Presidential Decree No. 86 was further amended by Presidential Decree No. 86-B,dated January 7, 1973, ordering "that important national issues shall from time to time be referred tothe Barangays (Citizens Assemblies) for resolution in accordance with Presidential Decree No. 86-Adated January 5, 1973 and that the initial referendum shall include the matter of ratification of theConstitution proposed by the 1971 Constitutional Convention" and that "(t)he Secretary of theDepartment of Local Governments and Community Development shall insure the implementation ofthis order." As in the case of Presidential Decrees Nos. 86 and 86-A, the foregoing directives do notnecessarily exclude the exercise of the powers vested by the 1935 Constitution in the Commission onElections, even if the Executive had the authority to repeal Art. X of our Fundamental Law — whichhe 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 ofthe Commission on Elections, and without complying with the provisions of the Election Code of1971 or even of those of Presidential Decree No. 73. What is more, they were held under thesupervision of the very officers and agencies of the Executive Department sought to be excludedtherefrom by Art. X of the 1935 Constitution. Worse still, said officers and agencies of the ExecutiveDepartment, who had been publicly urged and ostensibly promised to work for the ratification of theproposed revised Constitution would be favored thereby, owing to the practically indefinite extensionof their respective terms of office in consequence of section 9 of the Transitory Provisions, found inArt. XVII of the proposed Constitution, without any elections therefor. And the procedure thereinmostly followed is such that there is no reasonable means of checking the accuracy of the returnsfiled by the officers who conducted said plebiscites. This is another patent violation of Art. X of theConstitution which can hardly be sanctioned. And, since the provisions of this article form part of thefundamental scheme set forth in the 1935 Constitution, as amended, to insure the "free, orderly, andhonest" expression of the people's will, the aforementioned violation thereof renders null and void thecontested proceedings or alleged plebiscite in the Citizens' Assemblies, insofar as the same areclaimed 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 usuallyand ordinarily understood by the term, is a choosing or a selection by those having a right toparticipate (in the selection) of those who shall fill the offices, or of the adoption or rejection of anypublic measures affecting the territory involved. 15 Cyc. 279; Lewis v. Boynton, 25 Colo. 486, 55Pac. 732; Saunders v. Haynes, 13 Cal. 145; Seaman v. Baughman, 82 Iowa 216, 47 N.W. 1091, 11L.R.A. 354; State v. Hirsh, 125 Ind. 207, 24 N.E. 1062, 9 L.R.A. 170; Bouvier's Law Dictionary." 68


34 of 207 6/20/2012 8:16 AM

IVHas the proposed Constitution aforementionedbeen approved by a majority of the people in

the Citizen's Assemblies allegedly heldthroughout the Philippines?

Respondents maintain the affirmative, relying upon Proclamation No. 1102, the validity of which isprecisely 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; thatthe 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 "substantially" compliedwith; and that the Court should refrain from passing upon the validity of Proclamation No. 1102, notonly because such question is political in nature, but, also, because should the Court invalidate theproclamation, the former would, in effect, veto the action of the people in whom sovereignty residesand from whom its powers are derived.

The major flaw in this process of rationalization is that it assumes, as a fact, the very premise onwhich it is predicated, and which, moreover, is contested by the petitioners. As the Supreme Court ofMinnessota has aptly put it —

". . . every officer under a constitutional government must act according to lawand subject to its restrictions, and every departure therefrom or disregard thereof mustsubject him to the restraining and controlling power of the people, acting through theagency of the judiciary; for it must be remembered that the people act throughcourts, as well as through the executive or the Legislature. One department is just asrepresentative as the other, and the judiciary is the department which is charged withthe special duty of determining the limitations which the law places upon all officialaction. . . ."

Accordingly, the issue boils down to whether or not the Executive acted within the limits of hisauthority when he certified in Proclamation No. 1102 "that the Constitution proposed by the nineteenhundred and seventy-one (1971) Constitutional Convention has been ratified by an overwhelmingmajority of all of the votes cast by the members of all the Barangays (Citizens Assemblies)throughout the Philippines, and has thereby come into effect."

In this connection, it is not claimed that the Chief Executive had personal knowledge of the data hecertified in said proclamation. Moreover, Art. X of the 1935 Constitution was precisely inserted toplace 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 orselection of public officers or for the ratification or rejection of any proposed amendment, or revisionof 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 therewas in each municipality a municipal association of presidents of the citizens' assemblies for eachbarrio of the municipality; that the president of each such municipal association formed part of aprovincial or city association of presidents of such municipal associations; that the president of eachone of these provincial or city associations in turn formed part of a National Association orFederation of Presidents of such Provincial or City Associations; and that one Francisco Cruz from


35 of 207 6/20/2012 8:16 AM

Pasig, Rizal, as President of said National Association or Federation, reported to the President of thePhilippines, 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 furtherintimated that the said municipal associations had reported the results of the citizens' assemblies intheir respective municipalities to the corresponding Provincial Association, which, in turn, transmittedthe results of the voting in the province to the Department of Local Governments and CommunityDevelopment, which tabulated the results of the voting in the citizens' assemblies throughout thePhilippines and then turned them over to Mr. Francisco Cruz, as President or acting President of theNational Association or Federation, whereupon Mr. Cruz, acting in a ceremonial capacity, reportedsaid results (tabulated by the Department of Local Governments and Community Development) tothe 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 1972,80 that he could not possibly have been a member on January 17, 1973, of a municipal associationof presidents of barrio or ward citizens' assemblies, much less of a Provincial, City or NationalAssociation or Federation of Presidents of any such provincial or city associations.

Secondly, at the conclusion of the hearing of these cases on February 16, 1973, and in the resolutionof this Court of the same date, the Solicitor General was asked to submit, together with his notes onhis oral argument, a true copy of the aforementioned report of Mr. Cruz to the President and of the"(p)roclamation, decree, instruction, order, regulation or circular, if any, creating or directing orauthorizing the creation, establishment or organization" of said municipal, provincial and nationalassociations, but neither a copy of said alleged report to the President, nor a copy of any said"(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 isdevoid of any factual and legal foundation. Hence, the conclusion is set forth in the dispositiveportion of said Proclamation No. 1102, to the effect that the proposed new or revised Constitutionhad been ratified by the majority of the votes cast by the people, cannot possibly have any legaleffect or value.

The theory that said proclamation is "conclusive" upon the Court is clearly untenable. If it were, actsof the Executive and those of Congress could not possibly be annulled or invalidated by courts ofjustice. Yet, such is not the case. In fact, even a resolution of Congress declaring that a given personhas been elected President or Vice-President of the Philippines as provided in the Constitution 69 isnot conclusive upon the courts. It is no more than prima facie evidence of what is attested to by saidresolution. 70 If assailed directly in appropriate proceedings, such as an election protest, if and whenauthorized by law, as it is in the Philippines, the Court may receive evidence and declare, inaccordance therewith, who was duly elected to the office involved. 71 If prior to the creation of thePresidential Electoral Tribunal, no such protest could be filed, it was not because the resolution ofCongress declaring those had been elected President or Vice-President was conclusive upon courtsof justice, but because there was no law permitting the filing of such protest and declaring what courtor body would hear and decide the same. So, too, a declaration to the effect that a given amendmentto the Constitution or revised or new Constitution has been ratified by a majority of the votes casttherefor, may be duly assailed in court and be the object of judicial inquiry, in direct proceedingstherefor — such as the cases at bar — and the issue raised therein may and should be decided inaccordance with the evidence presented.


36 of 207 6/20/2012 8:16 AM

The case of In re McConaughy 72 is squarely in point. "As the Constitution stood from theorganization of the state" — of Minnesota — "all taxes were required to be raised under the systemknown as the 'general property tax.' Dissatisfaction with the results of this method and thedevelopment of more scientific and satisfactory methods of raising venue induced the Legislature tosubmit to the people an amendment to the Constitution which provided merely that taxes shall beuniform upon the same class of subjects. This proposed amendment was submitted at the generalelection held in November, 1906, and in due time it was certified by the state canvassing board andproclaimed by the Governor as having been legally adopted. Acting upon the assumption that theamendment had become a part of the Constitution, the Legislature enacted statutes providing for aState Tax Commission and a mortgage registry tax, and the latter statute, upon the same theory, washeld constitutional" by said Court. "The district court found that the amendment had not in fact beenadopted, and on this appeal" the Supreme Court was "required to determine the correctness of thatconclusion."

Referring to the effect of the certification of the State Board of Canvassers created by theLegislature and of the proclamation made by the Governor based thereon, the Court held: "It will benoted that this board does no more than tabulate the reports received from the various county boardsand 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 andthat the final decision must rest with the courts, unless the law declares that the decisions of theboard shall be final" — and there is no such law in the cases at bar. ". . . The correctness of theconclusion of the state board rests upon the correctness of the returns made by the county boardsand it is inconceivable that it was intended that this statement of result should be final andconclusive regardless of the actual facts. The proclamation of the Governor adds nothing in the wayof conclusiveness to the legal effect of the action of the canvassing board. Its purpose is to formallynotify the people of the state of the result of the voting as found by the canvassing board. James onConst. Conv. (4th Ed.) sec. 523."

In Bott v. Wartz, 73 the Court reviewed the statement of results of the election made by thecanvassing board, in order that the true results could be judicially determined. And so did the court inRice v. Palmer. 74

Inasmuch as Art. X of the 1935 Constitution places under the "exclusive" charge of the Commissionon 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 supportof the alleged results of the citizens' assemblies relied upon in Proclamation No. 1102 — apart fromthe fact that on January 17, 1973 neither the alleged president of the Federation of Provincial or CityBarangays nor the Department of Local Governments had certified to the President of the allegedresult of the citizen's assemblies all over the Philippines — it follows necessarily that, from aconstitutional and legal viewpoint, Proclamation No. 1102 is not even prima facie evidence of thealleged ratification of the proposed Constitution.

Referring particularly to the cases before Us, it will be noted that, as pointed out in the discussion ofthe preceding topic, the new or revised Constitution proposed by the 1971 Constitutional Conventionwas not ratified in accordance with the provisions of the 1935 Constitution. In fact, it has not evenbeen ratified in accordance with said proposed Constitution, the minimum age requirement thereinfor the exercise of the right of suffrage being eighteen (18) years, apart from the fact that Art. VI ofthe proposed Constitution requires "secret" voting, which was not observed in many, if not most,


37 of 207 6/20/2012 8:16 AM

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 orrevision of the first Constitution or the effectivity of the proposed Constitution, and the phrase "votescast" has been construed to mean "votes made in writing," not orally, as it was in many Citizens'Assemblies. 75

Even counsel for Gil J. Puyat and Jose Roy, as respondents in L-36165, asserts openly that Art. XVof the Constitution has not been complied with, and since the alleged substantial compliance with therequirements thereof partakes of the nature of a defense set up by the other respondents in thesecases, the burden of proving such defense — which, if true, should be within their peculiarknowledge — is clearly on such respondents. Accordingly, if despite the extensive notes anddocuments submitted by the parties herein, the members of the Court do not know or are notprepared 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 courseto 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 issuesraised thereby. Otherwise, we would be placing upon the petitioners the burden of disproving adefense 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 reasonto believe that many, if not most, of the people did not know that the Citizens' Assemblies were, atthe 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 temporarilysuspending the effects of Proclamation No. 1081, for the purpose of free and open debate onthe Proposed Constitution. On December 23, the President announced the postponement ofthe plebiscite for the ratification or rejection of the Proposed Constitution. No formal actionto 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, he postponed untilfurther notice.' Said General Order No. 20, moreover, 'suspended in the meantime' the 'orderof December 17, 1972, temporarily suspending the effects of Proclamation No. 1081 forpurposes of free and open debate on the proposed Constitution.'

"In view of these events relative to the postponement of the aforementioned plebiscite, theCourt deemed it fit to refrain, for the time being, from deciding the aforementioned cases, forneither the date nor the conditions under which said plebiscite would be held were known orannounced 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 toPresidential Decree No. 73 was that the President does not have the legislative authority tocall 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 theCommission on Elections — the Court deemed it more imperative to defer its final action onthese 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 ofthe plebiscite scheduled by Presidential Decree No. 73 to be held on January 15, 1973, afterconsultation with the Commission on Elections and the leaders of Congress, owing to doubts on the


38 of 207 6/20/2012 8:16 AM

sufficiency of the time available to translate the proposed Constitution into some local dialects and tocomply with some pre-electoral requirements, as well as to afford the people a reasonableopportunity to be posted on the contents and implications of said transcendental document. OnJanuary 7, 1973, General Order No. 20 was issued formally, postponing said plebiscite "until furthernotice." How can said postponement be reconciled with the theory that the proceedings in theCitizens' 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 theproposed Constitution? If said Assemblies were meant to be the plebiscites or elections envisaged inArt. 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 tobelieve that the same were not an "election" or plebiscite for the ratification or adoption of saidproposed 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? [BulletinToday, January 10, 1973; additional question italics.]

"[6]Do you approve of the citizens assemblies as the base of popular government to decideissues 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 theprovisions 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 theratification of a proposed Constitution or of a proposed amendment thereto. Secondly, neither is thelanguage of question No. 7 — "Do you approve of the new Constitution?" One approves "of" the actof another, which does not need such approval for the effectivity of said act, which the first person,however, finds to be good, wise or satisfactory. The approval of the majority of the votes cast in aplebiscite 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 wouldhave been unnecessary and improper, regardless of whether question No. 7 were answered


39 of 207 6/20/2012 8:16 AM

affirmatively or negatively. If the majority of the answers to question No. 7 were in the affirmative,the Constitution would have become effective and no other plebiscite could be held thereafter inconnection therewith, even if the majority of the answers to question No. 8 were, also, in theaffirmative. If the majority of the answers to question No. 7 were in the negative, neither mayanother plebiscite be held, even if the majority of the answers to question No. 8 were in theaffirmative. In either case, not more than one plebiscite could be held for the ratification or rejectionof the proposed Constitution. In short, the insertion of said two (2) questions — apart from the otherquestions adverted to above — indicates strongly that the proceedings therein did not partake of thenature 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 oradopted by the people in the citizens' assemblies all over the Philippines, when it is, to my mind, amatter of judicial knowledge that there have been no such citizens' assemblies in many parts ofManila 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 resume (sic) of the activities we undertook in effecting thereferendum on the eleven questions you wanted our people consulted on and the Summaryof 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, weurgently suspended all scheduled Citizens' Assembly meetings on that day and called allMayors, Chiefs of Offices and other government officials to another conference to discusswith them the new set of guidelines and materials to be used.

"On January 11, . . . another instruction from the top was received to include the originalfive 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 thosemanaging and supervising the holding of the Citizens' Assembly meetings throughout theprovince . . . Aside from the coordinators we had from the Office of the Governor, thesplendid cooperation and support extended by almost all government officials andemployees in the province, particularly of the Department of Education, PC and PACDpersonnel, provided us with enough hands to trouble shoot and implement sudden changes inthe instructions anytime and anywhere needed . . .

". . . As to our people, in general, their enthusiastic participation showed their preference andreadiness to accept this new method of government to people consultation in shaping upgovernment 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 ofguidelines and materials to be used . . ." Then, "on January 11 . . . another instruction from the topwas received to include the original five questions among those to be discussed and asked in theCitizens' Assembly meetings. With this latest order, we again had to make modifications in ourinstructions to all those managing and supervising the holding of the Citizens' Assembly meetingsthroughout the province . . . As to our people, in general, their enthusiastic participation showed theirpreference and readiness to accept the new method of government to people consultation in shaping


40 of 207 6/20/2012 8:16 AM

up government policies."

This communication manifestly shows: 1) that, as late as January 11, 1973, the Bataan officials hadstill to discuss — not put into operation — means and ways to carry out the changing instructionsfrom the top on how to organize the citizens' assemblies, what to do therein and even what questionsor topics to propound or touch in said assemblies; 2) that the assemblies would involve no more thanconsultations or dialogues between people and government — not decisions to be made by thepeople; 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 aproposed amendment of a new or revised Constitution for the latter does not entail the formulation ofa policy of the Government, but the making of a decision by the people on the new way of life, as anation, 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 barriosin 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 theProhibition and Amendment case, 77 attention was called to the "duty cast upon the court of takingjudicial cognizance of anything affecting the existence and validity of any law or portion of theConstitution . . ." In line with its own pronouncement in another case, the Federal Supreme Court ofthe United States stressed, in Baker v. Carr, 78 that "a court is not at liberty to shut its eyes to anobvious 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 orresolved otherwise than in the negative.

VHave 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 17,1973, under the Constitution drafted by the 1971 Constitutional Convention; that the politicaldepartment of the Government has recognized said revised Constitution; that our foreign relations arebeing conducted under such new or revised Constitution; that the Legislative Department hasrecognized the same, and that the people, in general, have, by their acts or omissions, indicated theirconformity thereto.

As regards the so called political organs of the Government, I gather that respondents refer mainly tothe offices under the Executive Department. In a sense, the latter performs some functions which,from a constitutional viewpoint, are political in nature, such as in recognizing a new state orgovernment, in accepting diplomatic representatives accredited to our Government, and even indevising administrative means and ways to better carry into effect Acts of Congress which define thegoals or objectives thereof, but are either imprecise or silent on the particular measures to be resortedto in order to achieve the said goals or delegate the power to do so, expressly or impliedly, to theExecutive. This, notwithstanding, the political organ of a government that purports to be republican isessentially the Congress or Legislative Department. Whatever may be the functions allocated to theExecutive Department — specially under a written, rigid Constitution, with a republican system of


41 of 207 6/20/2012 8:16 AM

Government like ours — the role of that Department is inherently, basically and fundamentallyexecutive in nature — to "take care that the laws be faithfully executed," in the language of our 1935Constitution. 79

Consequently, I am not prepared to concede that the acts of the officers and offices of the ExecutiveDepartment, in line with Proclamation No. 1102, connote a recognition thereof or an acquiescencethereto. Whether they recognized the proposed Constitution or acquiesce thereto or not is somethingthat cannot legally, much less necessarily or even normally, be deduced from their acts in accordancetherewith, because they 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 otherchoice, 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, hehad 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, onJanuary 17, 1973 — declaring that the Constitution proposed by the 1971 Constitutional Conventionhas been ratified by the overwhelming majority of the people — that he could not do under theauthority he claimed to have under Martial Law, since September 21, 1972, except the power ofsupervision over inferior courts and its personnel, which said proposed Constitution would placeunder the Supreme Court, and which the President has not ostensibly exercised, except as to someminor routine matters, which the Department of Justice has continued to handle, this Court havingpreferred to maintain the status quo in connection therewith pending final determination of thesecases, 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" itsown 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 ofa superior officer or office, under whose supervision and control he or it is, the former merely obeysthe latter. Strictly speaking, and from a legal and constitutional viewpoint, there is no act ofrecognition involved therein. Indeed, the lower officer or office, if he or it acted otherwise, would justbe guilty of insubordination.

Thus, for instance, the case of Taylor v. Commonwealth 80 — cited by respondents herein in supportof 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 andamend 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, recognizingthe Constitution ordained by the Convention . . .";

3.The "individual oaths of its members to support it, and by its having been engaged for nearly ayear, 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


42 of 207 6/20/2012 8:16 AM

5.The "people in their primary capacity by peacefully accepting it and acquiescing in it, byregistering as voters under it to the extent of thousands throughout the State, and by voting, under itsprovisions, 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 electeddirectly by the people, was not submitted to the people for ratification or rejection thereof. But, itwas recognized, not by the convention itself, but by other sectors of the Government, namely, theGovernor; the Legislature — not merely by individual acts of its members, but by formal jointresolution of its two (2) chambers; by the judiciary; and by the people, in the various ways specifiedabove. What is more, there was no martial law. In the present cases, none of the foregoing acts ofacquiescence was present. Worse still, there is martial law, the strict enforcement of which wasannounced shortly before the alleged citizens' assemblies. To top it all, in the Taylor case, theeffectivity of the contested amendment was not contested judicially until about one (1) year after theamendment had been put into operation in all branches of the Government, and complied with bythe 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 beheld on January 15, 1973, was impugned as early as December 7, 1972, or five (5) weeks before thescheduled 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 January7, 1972, formally and officially suspending the plebiscite until further notice — was impugned asearly as January 20, 1973, when L-36142 was filed, or three (3) daysafter the issuance ofProclamation No. 1102.

It is further alleged that a majority of the members of our House of Representatives and Senate haveacquiesced in the new or revised Constitution, by filing written statements opting to serve in the AdInterim Assembly established in the Transitory Provisions of said Constitution. Individual acts ofrecognition by members of our legislature, as well as of other collegiate bodies under thegovernment, are invalid as acts of said legislature or bodies, unless its members have performed saidacts in session duly assembled, or unless the law provides otherwise, and there is no such law in thePhilippines. This is a well-established principle of Administrative Law and of the Law of PublicOfficers, 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 didit 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 ofCongress, if bent on discharging their functions under said Constitution, could have met in any otherplace, the building in which they perform their duties being immaterial to the legality of their officialacts. The force of this argument is, however, offset or dissipated by the fact that, on or aboutDecember 27, 1972, immediately after a conference between the Executive, on the one hand, andmembers of Congress, on the other, some of whom expressed the wish to meet in session on January22, 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 membersof the Senate appear to be missing the point in issue' when they reportedly insisted on taking up firstthe question of convening Congress." The Daily Express of that date, 82 likewise, headlined, on itsfront page, a "Senatorial Plot Against 'Martial Law Government' Disclosed." Then, in its issue ofDecember 29, 1972, the same paper imputed to the Executive an appeal "to diverse groups involvedin a conspiracy to undermine" his powers "under martial law to desist from provoking aconstitutional crisis . . . which may result in the exercise by me of authority I have not exercised."


43 of 207 6/20/2012 8:16 AM

No matter how good the intention behind these statements may have been, the idea implied thereinwas too clear and ominous for any member of Congress who thought of organizing, holding or takingpart in a session of Congress, not to get the impression that he could hardly do so without inviting orrisking the application of Martial Law to him. Under these conditions, I do not feel justified in holdingthat the failure of the members of Congress to meet since January 22, 1973, was due to theirrecognition, acquiescence in or conformity with the provisions of the aforementioned Constitution, orits alleged ratification.

For the same reasons, especially because of Proclamation No. 1081, placing the entire Philippinesunder Martial Law, neither am I prepared to declare that the people's inaction as regardsProclamation No. 1102, and their compliance with a number of Presidential orders, decrees and/orinstructions — some or many of which have admittedly had salutary effects — issued subsequentlythereto amounts, constitutes or attests to a ratification, adoption or approval of said Proclamation No.1102. In the words of the Chief Executive, "martial law connotes power of the gun, meant coercionby the military, and compulsion and intimidation." 83 The failure to use the gun against those whocomply with the orders of the party wielding the weapon does not detract from the intimidation thatMartial Law necessarily connotes. It may reflect the good, reasonable and wholesome attitude of theperson who has the gun, either pointed at others, without pulling the trigger, or merely kept in itsholster, but not without warning that he may or would use it if he deemed it necessary. Still, theintimidation is there, and inaction or obedience of the people, under these conditions, is notnecessarily an act of conformity or acquiescence. This is specially so when we consider that themasses are, by and large, unfamiliar with the parliamentary system, the new form of governmentintroduced in the proposed Constitution, with the particularity that it is not even identical to thatexisting in England and other parts of the world, and that even experienced lawyers and socialscientists 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 thesame refers to a document certified to the President — for his action under the Constitution — bythe Senate President and the Speaker of the House of Representatives, and attested to by theSecretary of the Senate and the Secretary of the House of Representatives, concerning legislativemeasures 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 conclusiveupon the President and the judicial branch of the Government, why should Proclamation No. 1102merit less consideration than in enrolled bill?

Before answering this question, I would like to ask the following: If, instead of being certified by theaforementioned officers of Congress, the so-called enrolled bill were certified by, say, the Presidentof the Association of Sugar Planters and/or Millers of the Philippines, and the measure in questionwere 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, forwhich reason the officers of the Association, particularly, its aforementioned president — whosehonesty and integrity are unquestionable — were present at the deliberations in Congress when thesame approved the proposed legislation, would the enrolled bill rule apply thereto? Surely, theanswer would have to be in the negative. Why? Simply, because said Association President hasabsolutely no official authority to perform in connection therewith, and, hence, his certification is,legally, as good as non-existent.


44 of 207 6/20/2012 8:16 AM

Similarly, a certification, if any, of the Secretary of the Department of Local Governments andCommunity Development about the tabulated results of the voting in the Citizens' Assembliesallegedly held all over the Philippines — and the records do not show that any such certification,either to the President of the Philippines or to the President of the Federation or National Associationof presidents of Provincial Associations of presidents of municipal associations of presidents of barrioor ward assemblies of citizens — would not, legally and constitutionally, be worth the paper onwhich it is written. Why? Because said Department Secretary is not the officer designated by law tosuperintend plebiscites or elections held for the ratification or rejection of a proposed amendment orrevision of the Constitution and, hence, to tabulate the results thereof. Worse still, it is the officer ordepartment which, according to Article X of the 1935 Constitution, should not and must not beallowed to participate in said plebiscite — if plebiscite there was.

After citing approvingly its ruling in United States v. Sandoval, 84 the Highest Court of the UnitedStates declared that courts "will not stand impotent before an obvious instance of a manifestlyunauthorized exercise of power." 85

I cannot honestly say, therefore, that the people have impliedly or expressly indicated theirconformity to the proposed Constitution.

VIAre the Parties entitled to any relief?

Before attempting to answer this question, a few words must be said about the procedure followed inthese five (5) cases. In this connection, it should be noted that the Court has not as yet decidedwhether or not to give due course to the petitions herein or to require the respondents to answerthereto. Instead, it has required the respondents to comment on the respective petitions — with three(3) members of the Court voting to dismiss them outright — and then considered the comments thussubmitted by the respondents as motions to dismiss, as well as set the same for hearing. This was dueto the transcendental nature of the main issue raised, the necessity of deciding the same with utmostdispatch, and the main defense set up by respondents herein, namely, the alleged political nature ofsaid issue, placing the same, according to respondents, beyond the ambit of judicial inquiry anddetermination. If this defense was sustained, the cases could readily be dismissed; but, owing to theimportance of the questions involved, a reasoned resolution was demanded by public interest. At thesame time, respondents had cautioned against a judicial inquiry into the merits of the issues posed onaccount of the magnitude of the evil consequences, it was claimed, which would result from adecision thereon, if adverse to the Government.

As a matter of fact, some of those issues had been raised in the plebiscite cases, which weredismissed as moot and academic, owing to the issuance of Proclamation No. 1102 subsequently tothe filing of said cases, although before the rendition of judgment therein. Still one of the members ofthe Court (Justice Zaldivar) was of the opinion that the aforementioned issues should be settled insaid 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 opinionsfavorable to the respondents in the plebiscite cases, Justice Barredo holding "that the 1935Constitution has pro tanto passed into history and has been legitimately supplanted by theConstitution in force by virtue of Proclamation 1102." 86 When the petitions at bar were filed, thesame three (3) members of the Court, consequently, voted for the dismissal of said petitions. Themajority of the members of the Court did not share, however, either view, believing that the main


45 of 207 6/20/2012 8:16 AM

question that arose before the rendition of said judgment had not been sufficiently discussed andargued as the nature and importance thereof demanded.

The parties in the cases at bar were accordingly given every possible opportunity to do so and toelucidate 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 —their respective counsel filed extensive notes on their oral arguments, as well as on such additionalarguments as they wished to submit, and reply notes or memoranda, in addition to rejoinders thereto,aside from a sizeable number of documents in support of their respective contentions, or as requiredby the Court. The arguments, oral and written, submitted have been so extensive and exhaustive, andthe documents filed in support thereof so numerous and bulky, that, for all intents and purposes, thesituation is as if — disregarding forms — the petitions had been given due course and the cases hadbeen submitted for decision.

Accordingly, the majority of the members of the Court believe that they should express their viewson the aforementioned issues as if the same were being decided on the merits, and they have done soin their individual opinions attached hereto. Hence, the resume of the votes east and the tenor of theresolution, in the last pages hereof, despite the fact that technically the Court has not, as yet, formallygiven due course to the petitions herein.

And, now, here are my views on the reliefs sought by the parties.

In L-36165, it is clear that we should not issue the writ of mandamus prayed for against Gil J. Puyatand Jose Roy, as President and President Pro Tempore respectively of the Senate, it being settled inour jurisdiction, based upon the theory of separation of powers, that the judiciary will not issue suchwrit 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 respondents in said case, as well as in easesL-36142, L-36164, L-36236 and L-36283, my vote is that the petitions therein should be given duecourse, there being more than prima facie showing that the proposed Constitution has not beenratified in accordance with Article XV of the 1935 Constitution, either strictly, or substantially, or hasbeen acquiesced in by the people or a majority thereof; that said proposed Constitution is not in forceand effect; and that the 1935 Constitution is still the Fundamental Law of the Land, without prejudiceto the submission of said proposed Constitution to the people at a plebiscite for its ratification orrejection in accordance with Articles V, X and XV of the 1935 Constitution and the provisions of theRevised Election Code in force at the time of such plebiscite.

Perhaps others would feel that my position in these cases overlooks what they might consider to bethe demands of "judicial statesmanship," whatever may be the meaning of such phrase. I am awareof 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 ahierarchy, 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 Ruleof Law and faithful adherence thereto are basic, fundamental and essential parts of statesmanshipitself.


46 of 207 6/20/2012 8:16 AM

Resume of the Votes Cast and the Court's Resolution

As earlier stated, after the submittal by the members of the Court of their individual opinions and/orconcurrences 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 thedeliberations, it was agreed to synthesize the basic issues at bar in broad general terms in fivequestions for purposes of taking the votes. It was further agreed of course that each member of theCourt would expound in his individual opinion and/or concurrence his own approach to the statedissues and deal with them and state (or not) his opinion thereon singly or jointly and with suchpriority, qualifications and modifications as he may deem proper, as well as discuss thereon otherrelated 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 thereforenon-justiciable, question?

2.Has the Constitution proposed by the 1971 Constitutional Convention been ratified validly (withsubstantial, if not strict, compliance) conformably to the applicable constitutional and statutoryprovisions?

3.Has the aforementioned proposed Constitution been acquiesced in (with or without validratification) 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 intheir respective 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 validityof Proclamation No. 1102 presents a justiciable and non-political question. Justices Makalintal andCastro did not vote squarely on this question, but, only inferentially, in their discussion of the secondquestion. Justice Barredo qualified his vote, stating that "inasmuch as it is claimed that there has beenapproval by the people, the Court may inquire into the question of whether or not there has actuallybeen such an approval, and, in the affirmative, the Court should keep its hands-off out of respect tothe people's will, but, in the negative, the Court may determine from both factual and legal angleswhether or not Article XV of the 1935 Constitution has been complied with." Justices Makasiar,Antonio and Esguerra, or three (3) members of the Court hold that the issue is political and "beyondthe 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 Constitutionproposed by the 1971 Constitutional Convention was not validly ratified in accordance with Article


47 of 207 6/20/2012 8:16 AM

XV, section 1 of the 1935 Constitution, which provides only one way for ratification, i.e., "in anelection or plebiscite held in accordance with law and participated in only by qualified and dulyregistered voters." 87

Justice Barredo qualified his vote, stating that "(A)s to whether or not the 1973 Constitution has beenvalidly ratified pursuant to Article XV, I still maintain that in the light of traditional concepts regardingthe meaning and intent of said Article, the referendum in the Citizens' Assemblies, specially in themanner 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 factuallythere was voting and that the majority of the votes were for considering as approved the 1973Constitution without the necessity of the usual form of plebiscite followed in past ratifications, I amconstrained to hold that, in the political sense, if not in the orthodox legal sense, the people may bedeemed to have cast their favorable votes in the belief that in doing so they did the part required ofthem by Article XV, hence, it may be said that in its political aspect, which is what counts most, afterall, said Article has been substantially complied with, and, in effect, the 1973 Constitution has beenconstitutionally ratified."

Justices Makasiar, Antonio and Esguerra, or three (3) members of the Court hold that under theirview there has been in effect substantial compliance with the constitutional requirements for validratification.

3.On the third question of acquiescence by the Filipino people in the aforementioned proposedConstitution, no majority vote has been reached by the Court.

Four (4) of its members, namely, Justices Barredo, Makasiar, Antonio and Esguerra hold that "thepeople have already accepted the 1973 Constitution." 88

Two (2) members of the Court, namely, Justice Zaldivar and myself hold that there can be no freeexpression, and there has even been no expression, by the people qualified to vote all over thePhilippines, 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 decisionsto the effect that independently of the validity of the ratification, a new Constitution once accepted oracquiesced in by the people must be accorded recognition by the Court, I am not at this stageprepared to state that such doctrine calls for application in view of the shortness of time that haselapsed and the difficulty of ascertaining what is the mind of the people in the absence of thefreedom of debate that is a concomitant feature of martial law."

Three (3) members of the Court express their lack of knowledge and/or competence to rule on thequestion. 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 vehiclesrestricted, (they) have no means of knowing, to the point of judicial certainty, whether the peoplehave accepted the Constitution." 89

4.On the fourth question of relief, six (6) members of the Court, namely, Justices Makalintal, Castro,Barredo, Makasiar, Antonio and Esguerra voted to DISMISS the petition. Justices Makalintal andCastro so voted on the strength of their view that "(T)he effectivity of the said Constitution, in thefinal analysis, is the basic and ultimate question posed by these cases to resolve which considerationsother than judicial, and therefore beyond the competence of this Court, 90 are relevant andunavoidable." 91


48 of 207 6/20/2012 8:16 AM

Four (4) members of the Court, namely, Justices Zaldivar, Fernando, Teehankee and myself voted todeny 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 Esguerrahold that it is in force by virtue of the people's acceptance thereof;

Four (4) members of the Court, namely, Justices Makalintal, Castro, Fernando andTeehankee cast no vote thereon on the premise stated in their votes on the third question thatthey could not state with judicial certainty whether the people have accepted or not acceptedthe Constitution; and

Two (2) members of the Court, namely, Justice Zaldivar and myself voted that theConstitution proposed by the 1971 Constitutional Convention is not in force;

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

ACCORDINGLY, by virtue of the majority of six (6) votes of Justices Makalintal, Castro, Barredo,Makasiar, Antonio and Esguerra with the four (4) dissenting votes of the Chief Justice and JusticesZaldivar, Fernando and Teehankee, all the aforementioned cases are hereby dismissed. This beingthe vote of the majority, there is no further judicial obstacle to the new Constitution being consideredin force and effect.

It is so ordered.

Makalintal, Castro, Barredo, Makasiar, Antonio and Esguerra, JJ., concur.

Concepcion, C.J., dissents.

Zaldivar, J., dissents in line with the personal opinion of the Chief Justice, and also dissents in aseparate opinion.

Fernando, J., dissents in conformity with the personal views of the Chief Justice, except as to suchportions thereof on which he expresses his own thoughts as set forth in his dissenting opinion.

Teehankee, J., dissents in conformity with the Chief Justice's personal opinion and files a separatedissent.

ANNEX APERTINENT PORTIONS

OF THEMINNESSOTA SUPREME COURT

DECISIONON THE CASE

IN RE McCONAUGHY

"(a)An examination of the decisions shows that the courts have almost uniformly exercised theauthority to determine the validity of the proposal, submission, or ratification of constitutional


49 of 207 6/20/2012 8:16 AM

amendments. It has been judicially determined whether a proposed amendment received theconstitutional majority of votes (Dayton v. St. Paul, 22 Minn. 400; Rice v. Palmer, 78 Ark. 432, 96S.W. 396; Bott v. Wurtz, 63 N.J. Law, 289, 43 Atl. 744, 881, 45 L.R.A. 251; State v. Foraker, 46Ohio St. 677, 23 N.E. 491; 6 L.R.A. 422; Tecumseh National Bank v. Saunders, 51 Neb. 801, 71N.W. 779; Green v. State Board, 5 Idaho, 130, 47 Pac. 259, 95 Am. St. Rep. 169; In re Denny, 156Ind. 104, 59 N.E. 359, 51 L.R.A. 722; Knight v. Shelton [C.C.] 134 Fed. 423); whether a proposedamendment is a single amendment, within the constitutional requirement that every amendment mustbe 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, 31Colo. 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 ofsubmission upon the legislative journals invalidates the amendment (Koehler v. Hill, 60 Iowa, 543, 14N.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. 582; State v. Tufly, 19 Nev. 391, 12Pac. 835, 3 Am. St. Rep. 895); whether the description of the amendment and the form of the ballotare sufficient (Rugsell v. Croy, 164 Mo. 69, 63 S.W. 849; State v. Winnett [ Neb.] 110 N.W. 1113, 10L.R.A. [N.S.] 149; Murphy Chair Co. v. Attorney General [Mich.] 112 N.W. 127); whether themethod of submission is 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 issufficient (Com. v. Griest, 196 Pa. 396, 46 Atl. 505, 50 L.R.A. 568; Russell v. Croy, 164 Mo. 69, 63S.W. 849); whether the submission may be as well by resolution as by a legislative act approved bythe executive (Com. v. Griest, 196 Pa. 396, 46 Atl. 505, 50 L.R.A. 568; Warfield v. Vandiver, 101Md. 78, 60 Atl. 538; Edward v. 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, 68 N.W. 418, 34 L.R.A. 97); at what electionthe amendment must 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 thedetermination of the question whether an amendment to the Constitution has been carried involvesthe exercise of political, and not judicial, power. If this be so, it follows that the promulgation of anypurported amendment by the executive or any executive department is final, and that the actioncannot be questioned by the judiciary; but, with reference to the conditions precedent to submittinga proposed amendment to a vote of the people, it has been repeatedly held, by courts of the highestrespectability, that it is within the power of the judiciary to inquire into the question, even in acollateral proceeding. . . . It is to be noted that under section 1 of article 20 of the Constitution ofthe 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 requisitemajority in the Legislature, and afterwards be adopted by the requisite vote . . . It is the fact of amajority 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 calledupon 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, 4Mo. 303, 29 Am. Dec. 636, it was held that the General Assembly, under the power granted by theConstitution, could change the Constitution only in the manner prescribed by it, and that it was theduty 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 changed only by the people inconvention or in a mode described by the Constitution itself, and that if the latter mode is adopted


50 of 207 6/20/2012 8:16 AM

every requisite of the Constitution must be observed. 'It has been said,' says the court,' that certainacts are to be done, certain requisitions are to be observed, before a change can be effected; but towhat purpose are these acts required, or these requisitions enjoined, if the Legislature or any otherdepartment of the government can dispense with them. To do so would be to violate the instrumentwhich they are sworn to support; and every principle of public law and sound constitutional policyrequires the court to pronounce against every amendment which is shown not to have been made inaccordance 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 originalConstitution, or abrogate an old one and form a new one, at any time, without any politicalrestriction, 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 themethod pointed out by the Constitution to which the amendment is added. The power to amend aConstitution by legislative action does not confer the power to break it, any more than it confers thepower 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 statewithout a compliance with the provisions thereof, both in the passage of such amendment by theLegislature and the manner of submitting it to the people. The courts have not all agreed as to thestrictness of compliance which should be required.

"In the Prohibition and Amendment Case, 24 Kan. 100, the court determined judicially whether anamendment to the Constitution had been legally adopted. After approving the statement quoted fromCollier v. Frierson, supra, that 'we entertain no doubt that, to change the Constitution in any othermode than by a convention, every requisite which is demanded by the instrument itself must beobserved, and the omission of any one is fatal to the amendment,' the court held that, 'as substanceof right is grander and more potent than methods of form,' there had been substantial compliancewith the constitutional requirement that a proposed amendment to the Constitution must be enteredat length on the legislative journal. It appears that the joint resolution making a submission simplyprovided that a proposition should be submitted to the electors at the general election of 1880. It didnot declare that the machinery of the general election law should control, or that any particularofficers or board would receive, count, or canvass the votes cast. But the existing electionmachinery was adequate, and the votes were received, counted, and canvassed, and the resultdeclared as fully as though it had been in terms so ordered. These methods had been followed in theadoption of previous amendments, and it was held that, conceding the irregularity of the proceedingsof the Legislature and the doubtful scope of the provisions for the election, yet in view of the veryuncertainty of such provisions, the past legislative history of similar propositions, the universal prioracquiescence in the same forms of procedure, and the popular and unchallenged acceptance of thelegal pendency before the people of the question of the amendment for decision, and in view of theduty cast upon the court of taking judicial knowledge of anything affecting the existence andvalidity of any law or portion of the Constitution, it must be adjudged that the proposed amendmentbecame part of the Constitution. The effect was to hold that a provision of the Constitution requiringthe proposed amendment to be entered in full on the journals was directory, and not mandatory. Thisliberal view was approved in State v. Winnett (Neb.) 110 N.W. 1113, 10 L.R.A. (N.S.) 149, andPeople v. Sours, 31 Colo. 369, 74 Pac. 167, 102 Am. St. Rep. 34. But it has not been universallyaccepted.


51 of 207 6/20/2012 8:16 AM

"In Oakland Paving Co. v. Hilton, 69 Cal. 479, 11 Pac. 3, the court, in commenting upon the Kansascase said: 'The reasoning by which the learned court reached the conclusion it did is not based onany sound legal principles, but contrary to them. Neither the argument nor the conclusion cancommand our assent or approval. The argument is illogical, and based on premises which arewithout any sound foundation, and rests merely on assumption.' See, also, the well-considered caseof Kadderly v. Portland, 44 Or. 118, 74 Pac. 710, 75 Pac. 222. All these cases concede thejurisdiction 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. InLivermore v. Waite, 102 Cal. 113, 36 Pac. 424, 25 L.R.A. 312, the court, at the instance of a citizenand a taxpayer, restrained the Secretary of State from taking steps to submit to the people aproposed amendment to the Constitution agreed to by the Legislature on the ground that theLegislature had not acted in conformity with the Constitution and that the proposed amendment wasof such a character that it could not properly become a part of the Constitution. The Supreme Courtof 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, beforeits 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 constitutionalrequirements, and that the amendment did not, therefore, become a part of the Constitution. As tothe claim that the question was political, and not judicial, it was said that, while it is not competentfor courts to inquire into the validity of the Constitution and the form of government under whichthey themselves exist, and from which they derive their powers, yet, where the existing Constitutionprescribes a method for its own amendment, an amendment thereto, to be valid, must be adopted instrict conformity to that method; and it is the duty of the courts in a proper case, when anamendment does not relate to their own power or functions, to inquire whether, in the adoption ofthe amendment, the provisions of the existing Constitution have been observed, and, if not, todeclare the amendment invalid and of no force. This case was followed in State v. Brookhart, 113Iowa, 250, 84 N.W. 1064.

"In University v. McIver, 72 N.C. ?6, the question whether a proposed amendment to the Constitutionhad been legally adopted was treated as a judicial question. By the Constitution a proposedamendment was required to be approved by two Legislatures before its submission to the people. Inthis instance a bill was passed which contained 17 amendments. The next Legislature rejected 9 andadopted 8 of these amendments, and submitted them to the people. The majority of the people votedfor their adoption; but it was contended that the Constitution contemplated and required that thesame bill and the same amendments, without change, should be approved by both Legislatures, andthat it did not follow that, because the second Legislature adopted separately 8 out of the 17amendments adopted by the first Legislature, it would have adopted the 17, or any of them, if theyhad been voted upon by the second in the form adopted by the first body. The substance of thecontention was that there had not been a concurrence of the two Legislatures on the sameamendments, according to the letter and spirit of the Constitution. The court held that the power ofthe Legislature in submitting amendments could not be distinguished from the powers of theconvention, and that, as the people had spoken and ratified the amendments, they became a part ofthe Constitution.

"In Westinghausen v. People, 44 Mich. 265, 6 N.W. 641, it was held that prior to 1876 a proposedamendment to the Constitution could not be submitted to the people at any other than a general


52 of 207 6/20/2012 8:16 AM

election; but, as the amendment under consideration had been submitted after the Constitution hadbeen changed, it had been legally submitted and adopted.

"In State v. Powell, 77 Miss. 543, 27 South. 927, the question whether an amendment to theConstitution had been legally submitted and adopted by the people was held to be judicial, and notpolitical, in its nature. The amendment under consideration changed the Constitution by providing foran elective, instead of an appointive, judiciary. It was contended that the amendments had beenimproperly submitted, and not adopted by a majority of the qualified voters voting at the election, asrequired by the Constitution. The law did not direct how the result of the election should bedetermined. The Legislature by joint resolution recited that the election had been duly heldthroughout the state, and, as it appeared from the returns made to the Secretary of State, that 21,169votes were cast in favor of, and 8,643 votes against, the amendment, it resolved 'that said amendmentbe, and hereby is, inserted into the Constitution of the state of Mississippi as a part of theConstitution.' In fact, the amendment was not submitted in the manner prescribed by theConstitution, and it did not receive a majority of all the qualified voters voting at the election. Itwas 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 tobe measured or determined by these rules. Whether the question be political, and certainly alegislative one, or judicial, to be determined by the courts, this section of rules, not only ofprocedure, but of final judgment as well, confides to the separate magistracy of the legislativedepartment full power to hear, consider, and adjudge that question. The Legislature puts the questionto the qualified electors. The qualified electors answer back to the Legislature. "If it shall appear" tothe Legislature that its question has been answered in the affirmative, the amendment is inserted andmade a part of the Constitution. The Governor and the courts have no authority to speak at any stageof the proceedings between the sovereign and the Legislature, and when the matter is thus concludedit is closed, and the judiciary is as powerless to interfere as the executive.' But it was held that thequestion 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, andwhether the proposition was in fact adopted, were all judicial, and not political, questions. 'We donot,' said Chief Justice Whitfield, 'seek a jurisdiction not imposed upon us by the Constitution. Wecould not, if we would, escape the exercise of that jurisdiction which the Constitution has imposedupon us. In the particular instance in which we are now acting, our duty to know what theConstitution of the state is, and in accordance with our oaths to support and maintain it in itsintegrity, imposed on us a most difficult and embarrassing duty, one which we have not sought, butone which, like all others, must be discharged.'

"In Bott v. Wurtz, 63 N.J. Law, 289, 43 Atl. 744, 881, 46 L.R.A. 251, it was held that it was the dutyof the judicial department of the government to determine whether the legislative department or itsofficers had observed the constitutional injunctions in attempting to amend the Constitution, and toannul their acts if they had not done so. The case is an interesting and well-considered one. TheConstitution 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 certainproposed amendments, passed an act for submitting the same to the people. This statute provided forthe transmission to the Secretary of State of certificates showing the result of the voting throughoutthe state, and made it the duty of the Governor at the designated time to summon four or moreSenators, who, with the Governor, should constitute a board of state canvassers to canvass and


53 of 207 6/20/2012 8:16 AM

estimate the votes for and against each amendment. This board was to determine and declare whichof the proposed amendments had been adopted and to deliver a statement of the results to theSecretary of State, and 'any proposed amendment, which by said certificate and determination of theboard of canvassers shall appear to have received in its favor the majority of all the votes cast in thestate for and against said proposed amendment, shall from the time of filing such certificate be andbecome an amendment to and a part of the Constitution of the state; and it shall be the duty of theGovernor of the state forthwith, after such a determination, to issue a proclamation declaring whichof the said proposed amendments have been adopted by the people.' This board was required to filea statement of the result of the election, and the Governor to issue his proclamation declaring that theamendment had been adopted and become a part of the Constitution. At the instance of a taxpayerthe Supreme Court allowed a writ of certiorari to remove into the court for review the statement ofthe results of the election made by the canvassing board, in order that it might be judiciallydetermined whether on the facts shown in that statement the board had legally determined that theproposed amendment had been adopted. The Supreme Court decided that the concurrence of theboard of state canvassers and the executive department of the government in their respective officialfunctions placed the subject-matter beyond the cognizance of the judicial department of the state.The Court of Appeals, after a full review of the authorities, reversed this decision, and held that thequestions 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 theSupreme Court, and is now pending in this court, every element tending to maintain jurisdiction overthe subject-matter, unless it be true, as insisted, that the judicial department of the government hasnot the right to consider whether the legislative department and its agencies have observedconstitutional injunctions in attempting to amend the Constitution, and to annul their acts in case thatthey have not done so. That such a proposition is not true seems to be indicated by the whole historyof jurisprudence in this country.' The court, after considering the case on the merits, held that theproper conclusion had been drawn therefrom, and that the amendment in question was legallysubmitted and adopted.

"The recent case of Rice v. Palmer, 78 Ark. 432, 96 S.W. 396, presented the identical question whichwe have under consideration. In reference to the contention that the Constitution intended to delegateto the Speaker of the House of Representatives the power to determine whether an amendment hadbeen adopted, and that the question was political, and not judicial, the court observed: 'The argumenthas often been made in similar cases to the courts, and it is found in many dissenting opinions; but,with probably a few exceptions, it is not found in any prevailing opinion.'

"In State v. Tooker, 15 Mont. 8, 37 Pac. 840, 25 L.R.A. 560, it was held that the constitutionalrequirement of publication of a proposed constitutional provision for three months prior to theelection at which it is to be submitted to the people is mandatory and that noncompliance therewithrenders the adoption of an amendment of no effect."

ANNEX BMALACAÑANG

MANILABY THE PRESIDENT OF THE PHILIPPINES

PRESIDENTIAL DECREE NO. 86-B

Defining Further the Role of Barangays (Citizens Assemblies)


54 of 207 6/20/2012 8:16 AM

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 forresolution important national issues;

WHEREAS, one of the questions persistently mentioned refers to the ratification of the Constitutionproposed by the 1971 Constitutional Convention;

WHEREAS, on the basis of the said petitions, it is evident that the people believe that the submissionof the proposed Constitution to the Citizens Assemblies or Barangays should be taken as a plebiscitein itself in view of the fact that freedom of debate has always been limited to the leadership inpolitical, economic and social fields, and that it is now necessary to bring this down to the level of thepeople themselves through the Barangays or Citizens Assemblies;

NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of thepowers in me vested by the Constitution, do hereby order that important national issues shall fromtime to time be referred to the Barangays (Citizens Assemblies) for resolution in accordance withPresidential Decree No. 86-A dated January 5, 1973 and that the initial referendum shall include thematter of ratification of the Constitution proposed by the 1971 Constitutional Convention.

The Secretary of the Department of Local Government and Community Development shall insure theimplementation of this Order.

Done in the City of Manila, this 7th day of January in the year of Our Lord, nineteen hundred andseventy-three.

(SGD.) FERDINAND E. MARCOS

By the President:

(SGD.) ALEJANDRO MELCHORExecutive Secretary

MAKALINTAL and CASTRO, JJ.:

The preliminary question before this Court was whether or not the petitioners had madeout 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 transcendentalimportance, which suggested the need for hearing the side of the respondents before thatpreliminary 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 beorally argued. As it turned out, the hearing lasted five days, morning and afternoon, and could nothave 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 proclaimedby the President on January 17, 1973 (Proclamation No 1102) was not an act of ratification, letalone a valid one, of the proposed Constitution, because it was not in accordance with the existingConstitution (of 1935) and the Election Code of 1971. Other grounds are relied upon by thepetitioners in support of their basic proposition, but to our mind they are merely subordinate andperipheral.


55 of 207 6/20/2012 8:16 AM

Article XV, Section 1, of the 1935 Constitution provides that amendments (proposed either byCongress in joint session or by a Convention called by it for the purpose) "shall be valid as part of thisConstitution when approved by a majority of the votes cast at an election at which the amendmentsare submitted to the people for their ratification." At the time that Constitution was approved by theConstitutional Convention on February 8, 1935, and ratified in a plebiscite held on the following May14, the word "election" had already a definite meaning in our law and jurisprudence. It was not avague and amorphous concept, but a procedure prescribed by statute for ascertaining the people'schoices among candidates for public offices, or their will on important matters submitted to them,pursuant to law, for approval. It was in this sense that the word was used by the framers in ArticleXV (also in Articles VI and VII), and in accordance with such procedure that plebiscites were heldto ratify the very same Constitution in 1935 as well as the subsequent amendments thereto, thus: in1939 (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 ofElections); 1947 (Parity Amendment); and 1967 (increase in membership of the House ofRepresentatives and eligibility of members of Congress to run for the Constitutional Conventionwithout forfeiture of their offices).

The Election Code of 1971, in its Section 2, states that "all elections of public officers except barrioofficials and plebiscites shall be conducted in the manner provided by this Code." This is a statutoryrequirement designed, as were the other election laws previously in force, to carry out theconstitutional mandate relative to the exercise of the right of suffrage, and with specific reference tothe term "plebiscites," the provision of Article XV regarding ratification of constitutionalamendments.

The manner of conducting elections and plebiscites provided by the Code is spelled out in othersections thereof. Section 99 requires that qualified voters be registered in a permanent list, thequalifications being those set forth in Article V, Section 1, of the 1935 Constitution on the basis ofage (21), literacy and residence. These qualifications are reiterated in Section 101 of the ElectionCode. Section 102 enumerates the classes of persons disqualified to vote. Succeeding sectionsprescribe the election paraphernalia to be used, the procedure for registering voters, the records ofregistration and the custody thereof, the description and printing of official ballots, the actual castingof votes and their subsequent counting by the boards of inspectors, the rules for appreciation ofballots, and then the canvass and proclamation of the results.

With specific reference to the ratification of the 1972 draft Constitution, several additionalcircumstances should be considered:

(1)This draft was prepared and approved by a Convention which had been convened pursuant toResolution No. 2 passed by Congress on March 16, 1967, which provides:

"Sec. 7.The amendments proposed by the Convention shall be valid andconsidered part of the Constitution when approved by a majority of the votes cast inan election at which they are submitted to the people for their ratification pursuant toArticle XV of the Constitution."

(2)Article XVII, Section 16, of the draft itself states:


56 of 207 6/20/2012 8:16 AM

"Sec. 16.This Constitution shall take effect immediately upon its ratification by a majority ofthe votes cast in a plebiscite called for the purpose and, except as herein provided, shallsupersede 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 futureamendment 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 thata decree be issued calling a plebiscite for the ratification of the proposed New Constitution on suchappropriate date as he shall determine and providing for the necessary funds therefor." Pursuant tosaid Resolution the President issued Decree No. 73 on the same day, calling a plebiscite to be heldon January 15, 1973, at which the proposed Constitution "shall be submitted to the people forratification or rejection." The Decree had eighteen (18) sections in all, prescribing in detail thedifferent steps to be taken to carry out the process of ratification, such as: (a) publication of theproposed 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 ineach precinct; (e) printing of official ballots; (f) manner of voting to insure freedom and secrecythereof; (g) canvass of plebiscite returns; and (h) in general, compliance with the provisions of theElection Code of 1971, with the Commission on Elections exercising its constitutional and statutorypowers of supervision of the entire process.

There can hardly be any doubt that in everybody's view — from the framers of the 1935 Constitutionthrough all the Congresses since then to the 1971 Constitutional Convention — amendments to theConstitution should be ratified in only one way, that is, in an election or plebiscite held in accordancewith law and participated in only by qualified and duly registered voters. Indeed, so concerned wasthis 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 Conventionsubmitting a proposed amendment for ratification to a plebiscite to be held in November 1971 wasdeclared null and void. The amendment sought to reduce the voting age from twenty-one to eighteenyears and was approved by the Convention for submission to a plebiscite ahead of and separatelyfrom other amendments still being or to be considered by it, so as to enable the youth to be thusenfranchised to participate in the plebiscite for the ratification of such other amendments later. ThisCourt 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 besubmitted to the people in a single 'election' or plebiscite." * Thus a grammatical construction basedon a singular, instead of plural, rendition of the word "election" was considered a sufficient ground torule out the plebiscite which had been called to ratify a proposed amendment in accordance with theprocedure 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 inTolentino vs. COMELEC, but the ratification of an entire charter setting up a new form ofgovernment; and the issue has arisen not because of a disputed construction of one word or oneprovision in the 1935 Constitution but because no election or plebiscite in accordance with thatConstitution 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 byPresidential Decree No. 86 dated December 31, 1972, "to broaden the base of citizen participation in


57 of 207 6/20/2012 8:16 AM

the democratic process and to afford ample opportunities for the citizenry to express their views onimportant national issues." The Assemblies "shall consist of all persons who are residents of thebarrio, district or ward for at least six months, fifteen years of age or over, citizens of the Philippinesand who are registered in the lists of Citizen Assembly members kept by the barrio, district or wardsecretary." By Presidential Decree No. 86-A, dated January 5, 1973, the Assemblies were convenedfor a referendum between January 10 and 15, to "consider vital national issues now confronting thecountry, 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 theCitizens Assemblies, the fourth one being as follows: "How soon would you like the plebiscite on thenew Constitution to be held?" It should be noted in this connection that the President had previouslyannounced that he had ordered the postponement of the plebiscite which he had called for January15, 1973 (Presidential Decree No. 73) for the ratification of the draft Constitution, and that he wasconsidering two new dates for the purpose — February 19 or March 5; that he had ordered that theregistration of voters (pursuant to Decree No. 73) be extended to accommodate new voters; and thatcopies of the new Constitution would be distributed in eight dialects to the people. (Bulletin Today,December 24, 1972.)

On January 10, 1973 it was reported that one more question would be added to the original fourwhich were to be submitted to the Citizens Assemblies. The question concerning the plebiscite wasreworded as follows: "Do yon like the plebiscite to be held later?" The implication, it may likewise benoted, was that the Assemblies should express their views as to when 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 decideissues 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 in accordance with theprovisions 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: italicssupplied].

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


58 of 207 6/20/2012 8:16 AM


QUESTION No. 3

If the Citizens Assemblies approve of the New Constitution, then the newConstitution should be deemed ratified.

The vote of the Citizens Assemblies should already be considered the plebisciteon the New Constitution.

QUESTION No. 4

We are sick and tired of too frequent elections. We are fed up with politics, ofso many debates and so much expenses.

QUESTION No. 5

Probably a period of at least seven (7) years moratorium on elections will beenough for stability to be established in the country, for reforms to take rootand normalcy to return.

QUESTION No. 6

We want President Marcos to continue with Martial Law. We want him toexercise his powers with more authority. We want him to be strong and firm sothat he can accomplish all his reform program and establish normalcy in thecountry. If all other measures fail, we want President Marcos to declare arevolutionary government along the lines of the new Constitution without thead interim Assembly."

So it was that on January 11, 1973, the second day of the purported referendum, the suggestion wasbroached, for the first time, that the plebiscite should be done away with and a favorable vote by theAssemblies deemed equivalent to ratification. This was done, not in the questionnaire itself, but in thesuggested answer to question No. 3. Strangely, however, it was not similarly suggested that anunfavorable vote be considered as rejection.

There should be no serious dispute as to the fact that the manner in which the voting was conductedin the Citizens' Assemblies, assuming that such voting was held, was not within the intendment ofArticle 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 saidCode and in Article XVII, Section 16, of the draft Constitution itself, or as the election intended byCongress when it passed Resolution No. 2 on March 16, 1967 calling a Convention for the revisionof 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 wereilliterates, feeble-minded, or ex-convicts * — these being the classes of persons expressly disqualifiedfrom voting by Section 102 of the Election Code. In short, the constitutional and statutoryqualifications were not considered in the determination of who should participate. No official ballotswere used in the voting; it was done mostly by acclamation or open show of hands. Secrecy, whichis one of the essential features of the election process, was not therefore observed. No set of rules for


59 of 207 6/20/2012 8:16 AM

counting the votes or of tabulating them and reporting the figures was prescribed or followed. TheCommission on Elections, which is the constitutional body charged with the enforcement andadministration of all laws relative to the conduct of elections, took no part at all, either by way ofsupervision or in the assessment of the results.

It has been suggested that since according to Proclamation No. 1102 the overwhelming majority ofall the members of the Citizens Assemblies had voted for the adoption of the proposed Constitutionthere was a substantial compliance with Article XV, Section 1, of the 1935 Constitution and with theElection Code of 1971. The suggestion misses the point entirely. It is of the essence of a validexercise of the right of suffrage that not only must a majority or plurality of the voters carry the daybut that the same must be duly ascertained in accordance with the procedure prescribed by law. Inother words the very existence of such majority or plurality depends upon the manner of itsascertainment, and to conclude that it exists even if it has not been ascertained according to law issimply to beg the issue, or to assume the very fact to be established. Otherwise no election orplebiscite could be questioned for non-compliance with the provisions of the Election Law as long asit is certified that a majority of the citizens had voted favorably or adversely on whatever it was thatwas submitted to them to vote upon.

However, a finding that the ratification of the draft Constitution by the Citizens Assemblies, ascertified by the President in Proclamation No. 1102, was not in accordance with the constitutionaland statutory procedure laid down for the purpose does not quite resolve the questions raised in thesecases. Such a finding, in our opinion, is on a matter which is essentially justiciable, that is, within thepower of this Court to inquire into. It imports nothing more than a simple reading and application ofthe pertinent provisions of the 1935 Constitution, of the Election Code and of other related laws andofficial acts. No question of wisdom or of policy is involved. But from this finding it does notnecessarily 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 posedby these cases, to resolve which considerations other than judicial, and therefore beyond thecompetence of this Court, are relevant and unavoidable.

Several theories have been advanced respectively by the parties. The petitioners lay stress on theinvalidity of the ratification process adopted by the Citizens Assemblies and on that premise wouldhave 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 ofthis Court on the ground that the questions raised in the petitions are political and thereforenon-justiciable, and that in any case popular acquiescence in the new Constitution and the prospectof unsettling acts done in reliance thereon should caution against interposition of the power of judicialreview. Respondents Gil J. Puyat and Jose Roy (in L 36165) in their respective capacities asPresident 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 notconcurred in by the Solicitor General, namely, that "the approval of the 1973 Constitution by thepeople was made under a revolutionary government, in the course of a successful political revolution,which was converted by act of the people to the present de jure government under the 1973Constitution."

Heretofore, constitutional disputes which have come before this Court for adjudication proceeded on


60 of 207 6/20/2012 8:16 AM

the assumption, conceded by all, that the Constitution was in full force and effect, with the powerand authority of the entire Government behind it; and the task of this Court was simply to determinewhether or not the particular act or statute that was being challenged contravened some rule ormandate of that Constitution. The process employed was one of interpretation and synthesis. In thecases at bar there is no such assumption: the Constitution (1935) has been derogated and itscontinued existence as well as the validity of the act of derogation is the issue. The legal problemposed by the situation is aggravated by the fact that the political arms of the Government — theExecutive Departments and the two Houses of Congress — have accepted the new Constitution aseffective: the former by organizing themselves and discharging their functions under it, and the latterby 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 InterimNational Assembly in accordance with Article XVII, Section 2, of the 1973 Constitution. *

The theory advanced by Senator Tolentino, as counsel for respondents Puyat and Roy, may be takenup and restated at some length if only because it would constitute, if sustained, the most convenientground for the invocation of the political-question doctrine. In support of his theory, SenatorTolentino contends that after President Marcos declared martial law on September 21, 1972(Proclamation No. 1081) he established a revolutionary government when he issued General OrderNo. 1 the next day, wherein he proclaimed "that I shall govern the nation and direct the operation ofthe entire government, including all its agencies and instrumentalities, in my capacity, and shallexercise all the powers and prerogatives appurtenant and incident to my position as suchCommander-in-Chief of all the Armed Forces of the Philippines." By this order, it is pointed out, theCommander-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 andDecrees which amounted to legislative enactments not justified under martial law and, in someinstances, trenched upon the domain of the judiciary, by removing from its jurisdiction certain classesof 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 designatedrepresentative pursuant thereto." (General Order No. 3 as amended by General Order No. 3-A, datedSeptember 24, 1972.) The ratification by the Citizens Assemblies, it is averred, was the culminatingact of the revolution, which thereupon converted the government into a de jure one under the 1973Constitution.

If indeed it be accepted that the Citizens Assemblies had ratified the 1973 Constitution and that suchratification 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 anecessary corollary, whether or not the government legitimately functions under it instead of underthe 1935 Constitution, is political and therefore non- judicial in nature. Under such a postulate whatthe people did in the Citizens Assemblies should be taken as an exercise of the ultimate sovereignpower. If they had risen up in arms and by force deposed the then existing government and set up anew government in its place, there could not be the least doubt that their act would be political andnot subject to judicial review but only to the judgment of the same body politic act, in the context justset forth, is based on realities. If a new government gains authority and dominance through force, itcan be effectively challenged only by a stronger force; no judicial dictum can prevail against it. Wedo not see that the situation would be any different, as far as the doctrine of judicial review isconcerned, if no force had been resorted to and the people, in defiance of the existing Constitutionnot peacefully because of the absence of any appreciable opposition, ordained a new Constitutionand succeeded in having the government operate under it. Against such a reality there can be no


61 of 207 6/20/2012 8:16 AM

adequate judicial relief; and so courts forbear to take cognizance of the question but leave it to bedecided through political means.

The logic of the political-question doctrine is illustrated in a statement of the U.S. Supreme Court in acase relied upon, curiously enough, by the Solicitor General, who disagrees with the revolutionarygovernment theory of Senator Tolentino. The case involved the issue of which of two opposinggovernments struggling for supremacy in the State of Rhode Island was the lawful one. The issue hadpreviously come up in several other cases before the courts of the State, which uniformly held thatthe inquiry belonged to the political power and not to the judicial. Commenting on the ruling thusarrived at, the U.S. Supreme Court said: "And if a State court should enter upon the inquiry proposedin this case, and should come to the conclusion that the government under which it acted had beenput aside and displaced by an opposing government, it would cease to be a court, and incapable ofpronouncing a judicial decision upon the question it undertook to try. If it decides at all as a court, itnecessarily affirms the existence and authority of the government under which it is exercising judicialpower." In other words, since the court would have no choice but to decide in one way alone inorder to be able to decide at all, the question could not be considered proper for judicialdetermination.

It should be noted that the above statement from Luther vs. Borden would be applicable in the casesat bar only on the premise that the ratification of the Constitution was a revolutionary act and that thegovernment now functioning under it is the product of such revolution. However, we are notprepared to agree that the premise is justified.

In the first place, with specific reference to the questioned ratification, several significantcircumstances may be noted. (1) The Citizens Assemblies were created, according to PresidentialDecree No. 86, "to broaden the base of citizen participation in the democratic process and to affordample opportunities for the citizenry to express their views on important national issues." (2) ThePresident announced, according to the Daily Express of January 2, 1973, that "the referendum willbe in the nature of a loose consultation with the people." (3) The question, as submitted to them onthe particular point at issue here, was "Do you approve of the Constitution?" (4) President Marcos,in proclaiming that the Constitution had been ratified, stated as follows: "(S)ince the referendumresults show that more than ninety-five (95) per cent of the members of the Barangays (CitizensAssemblies) are in favor of the new Constitution, the Katipunan ng mga Barangay has stronglyrecommended 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 theConstitution, much less with the many other subjects that were submitted to them. In fact theplebiscite planned for January 15, 1973 under Presidential Decree No. 73 had been postponed to anindefinite date, the reasons for the postponement being, as attributed to the President in thenewspapers, 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 theCommission (on Elections) on the publication requirement of the new Charter and on the positiontaken by national leaders" (Daily Express, Dec. 23, 1972); and that "the postponement would giveus 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 couldnot have understood the referendum to be for the ratification of the Constitution, but only for theexpression of their views on a consultative basis. Indeed, if the expression of those views had been


62 of 207 6/20/2012 8:16 AM

intended as an act of ratification (or of rejection as a logical corollary) — there would have been noneed for the Katipunan ng mga Barangay to recommend that the Constitution should already bedeemed ratified, for recommendation imports recognition of some higher authority in whom the finaldecision rests.

But then the President, pursuant to such recommendation, did proclaim that the Constitution hadbeen ratified and had come into effect. The more relevant consideration, therefore, as far as we cansee, should be as to what the President had in mind in convening the Citizens Assemblies, submittingthe Constitution to them and proclaiming that the favorable expression of their views was an act ofratification. In this respect subjective factors, which defy judicial analysis and adjudication, arenecessarily involved.

In positing the problem within an identifiable frame of reference we find no need to consider whetheror not the regime established by President Marcos since he declared martial law and under which thenew Constitution was submitted to the Citizens Assemblies was a revolutionary one. The pivotalquestion is rather whether or not the effectivity of the said Constitution by virtue of PresidentialProclamation No. 1102, upon the recommendation of the Katipunan ng mga Barangay, wasintended to be definite and irrevocable, regardless of non-compliance with the pertinent constitutionaland statutory provisions prescribing the procedure for ratification. We must confess that afterconsidering all the available evidence and all the relevant circumstances we have found no reasonablyreliable answer to the question. On one hand we read, for instance, the following public statementsof 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, ourfortunes, our lives, our destiny. We have burned our bridges behind us. Let no manmisunderstand the strength of our resolution." (A Report to the National, Jan. 7, 1913.)

On the occasion of the signing of Proclamation No. 1102 on January 17, 1973, President said thefollowing, among other things:

". . . We can, perhaps delimit the power of the people to speak on legal matters, onjusticiable 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 considerpurely 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 tothe form of government which the people want . . . The implications of disregarding thepeople's will are too awesome to be even considered. For if any power in government shouldeven 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 longertolerate any attempt to undermine the stability of their Republic; they will rise up in arms notin revolt against the Republic but in protection of the Republic which they have installed. Itis quite clear when the people say, we ratify the Constitution, that they mean they will notdiscard, the Constitution."

On January 19, 1973 the Daily Express published a statement of the President made the day before,


63 of 207 6/20/2012 8:16 AM

from which the following portion is quoted:

". . . the times are too grave and the stakes too high for us to permit the customaryconcessions to traditional democratic process to hold back our people's clear andunequivocal resolve and mandate to meet and overcome the extraordinary challengespresented by these extraordinary times."

On the same occasion of the signing of Proclamation No. 1102 the President made pointed referenceto "the demand of some of our citizens . . . that when all other measures should fail, that thePresident be directed to organize and establish a Revolutionary Government," but in the next breathadded: ". . . if we do ratify the Constitution how can we speak of a Revolutionary Government? Theycannot be compatible . . ." "(I)t is my feeling," he said, "that the Citizens' Assemblies whichsubmitted this recommendation merely sought to articulate their impatience with the status quo thathas brought about anarchy, confusion and misery to the masses . . ." The only alternatives which thePresident clearly implied by the foregoing statements were the ratification of the new Constitutionand 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 ruledout, namely, a return to the 1935 Constitution, for it was the status quo under that Constitution thathad caused "anarchy, confusion and misery." The message seems clear: rather than return to suchstatus quo, he would need the recommendation of the Citizens' Assemblies to establish arevolutionary government, because that would be the only other way to carry out the reforms he hadenvisioned and initiated — reforms which, in all fairness and honesty, must be given credit for theimproved 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 foregoingpronouncements, it is that the step taken in connection with the ratification of the Constitution wasmeant to be irreversible, and that nothing anyone could say would make the least difference. And ifthis is a correct and accurate assessment of the situation, then we would say that since it has beenbrought about by political action and is now maintained by the government that is in undisputedauthority 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 hasprofessed 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 socialchange . . . but that in a democratic society, revolution is of necessity, constitutional,peaceful, and legal."

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

"I have proclaimed martial law in accordance with the powers vested in the President by theConstitution of the Philippines.

"xxx xxx xxx

"I repeat, this is not a military takeover of civil government functions. The Government ofthe 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


64 of 207 6/20/2012 8:16 AM

Republic and reform our society . . .

"I have had to use this constitutional power in order that we may not completely lose thecivil rights and freedom which we cherish . . .

". . . We are against the wall. We must now defend the Republic with the stronger powers ofthe Constitution."

(Vital Documents, pp. 1-12; italics supplied)

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

"xxx xxx xxx

"Q.Now that you have gotten off the constitutional track, won't you be in serioustrouble if you run into critical problems with your programs?

"A.I have never gotten off the constitutional track. Everything I am doing is inaccordance with the 1930 Constitution. The only thing is that instead of 18 yearolds voting, we have allowed 15-year-olds the night to vote. But the15-year-olds of today are high school students, if not graduates, and they arebetter informed than my contemporaries at that age. On the matter of whetherit is constitutional to proclaim martial law, it is constitutional because theConstitution provides for it in the event of invasion, insurrection, rebellion orimmediate danger thereof. We may quarrel about whether what we have gonethrough is sufficient cause to proclaim martial law but at the very least there isa danger of rebellion because so many of our soldiers have been killed. Youmust remember this (martial law provision) was lifted from the Americanlegislation that was the fundamental law of our country.

"xxx xxx xxx"

In the light of this seeming ambivalence, the choice of what course of action to pursue belongs to thePresident We have earlier made reference to subjective factors on which this Court, to our mind, is inno position to pass judgment. Among them is the President's own assessment of the will of the peopleas expressed through the Citizens Assemblies and of the importance of the 1973 Constitution to thesuccessful implementation of the social and economic reforms he has started or envisioned. If heshould decide that there is no turning back, that what the people recommended through the CitizensAssemblies, as they were reported to him, demanded that the action he took pursuant thereto be finaland irrevocable, then judicial review is out of the question.

In articulating our view that the procedure of ratification that was followed was not in accordancewith the 1935 Constitution and related statutes, we have discharged our sworn duty as we conceive itto be. The President should now perhaps decide, if he has not already decided, whether adherenceto such procedure is weighty enough a consideration, if only to dispel any cloud of doubt that maynow 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


65 of 207 6/20/2012 8:16 AM

Constitution, since its submission to the Citizens Assemblies, has found acceptance among thepeople, such issue being related to the political question theory propounded by the respondents. Wehave 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 vehiclesrestricted, we have no means of knowing, to the point of judicial certainty, whether the people haveaccepted the Constitution. In any event, we do not find the issue decisive insofar as our vote in thesecases is concerned. To interpret the Constitution — that is judicial. That the Constitution should bedeemed in effect because of popular acquiescence — that is political, and therefore beyond thedomain of judicial review.

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

Separate Opinions

BARREDO, J.:

As far as I am concerned, I regard the present petitions as no more than mere reiterationsof the Supplemental Petitions filed by Counsel Lorenzo M. Tañada on January 15, 1973 in the socalled Plebiscite Cases decided by this Court on January 22, 1973. Of course, there areamplifications of some of the grounds previously alleged, and in the course of the unprecedentedfive day hearing that was held from February 12 to 16 last, more extensive and illuminatingarguments were heard by Us, but, in my estimation, and with due recognition of the sincerity,brilliance and eloquence of counsels, nothing more cogent and compelling than what had alreadybeen previously presented by Counsel Tañada is before Us now. Accordingly, I cannot see anyreason 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 dismissthem.

In view, however, of the transcendental importance of the issues before the Court and thesignificance to our people and in history of the individual stands of the members of the Court inrelation to said issues and to the final outcome of these cases, and considering that I reserved beforethe filing of a more extended opinion, I will take this opportunity to explain further why I hold thatthe 1973 Constitution is already in force, if only to clarify that apart from the people's right ofrevolution to which I made pointed reference in my previous opinion, r can see now, after furtherreflection, that the vote of the people in the referendum in the Citizens Assemblies held on January10 to 15, 1973, upon the result of which Proclamation 1102 is based, may be viewed moreimportantly as a political act than as a purely legal one, with the result that such vote to consider the1973 Constitution as ratified without the necessity of holding a plebiscite in the form followed in theprevious ratification plebiscites in 1935 of the Constitution itself, 1937 of women's suffrage, 1939 ofthe amendments to the Ordinance Appended to the Constitution, 1940 of the reelection of thePresident, the bicameral legislature and the Commission on Elections, 1947 of the parityamendments and 1967, rejecting the proposed increase in the members of the House ofRepresentatives and eligibility of members of Congress to the Constitutional Convention, may bedeemed as a valid ratification substantially in compliance with the basic intent of Article XV of the1935 Constitution. If indeed this explanation may be considered as a modification of myrationalization then, I wish to emphasize that my position as to the fundamental issue regarding theenforceability of the new Constitution is even firmer now than ever before. As I shall elucidate anon,


66 of 207 6/20/2012 8:16 AM

paramount considerations of national import have led me to the conviction that the best interests ofall concerned would be best served by the Supreme Court holding that the 1973 Constitution is nowin 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 thereferendum may be construed as a compliance with the substantiality of Article XV of the 1935Constitution.

I.

The facts that gave rise to these proceedings are historical and well known. Generally, they may betaken judicial notice of. They revolve around the purported ratification of the Constitution of 1973declared 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 March16, 1967, delegates to a constitutional convention to propose amendments to the Constitution of 1935were 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 committeesand an incomprehensible fear of overconcentrating powers in their officers, the delegates went abouttheir work in comparatively slow pace, and by the third quarter of 1972 had finished deliberationsand 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 declaringmartial law throughout the country. An attempt was made to have the Convention recessed until afterthe lifting of martial law, and not long after the motion of Delegate Kalaw to such effect was turneddown, the activities within the assembly shifted to high gear. As if unmindful of the arrest andcontinued 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 tosay, before martial law was declared, there was full and unlimited coverage of the workings in theconvention by the mass media. At the same time, public debates and discussions on various aspectsof proposed amendments were not uncommon.

Earlier, on November 22, 1972, the Convention had approved Resolution No. 5843 proposing "toPresident Ferdinand E. Marcos that a decree be issued calling a plebiscite for the ratification of theproposed new Constitution on such appropriate date as he shall determine and providing for thenecessary funds there for." Acting under this authority, on December 1, 1972, the President issuedPresidential Decree No. 73 submitting the draft constitution for ratification by the people at aplebiscite set for January 15, 1973. This order contained provisions more or less similar to theplebiscite laws passed by Congress relative to the past plebiscites held in connection with previousproposed amendments.

In connection with the plebiscite thus contemplated, General Order No. 17 was issued ordering andenjoining the authorities to allow and encourage public and free discussions on the proposedconstitution. Not only this, subsequently, under date of December 17, 1972, the President orderedthe suspension of the effects of martial law and lifted the suspension of the privilege of the writ ofhabeas corpus insofar as activities connected with the ratification of the draft constitution wereconcerned. These two orders were not, however, to last very long. On January 7, 1973, thePresident, invoking information related to him that the area of public debate and discussion he had


67 of 207 6/20/2012 8:16 AM

opened by his previous orders was being taken advantage of by subversive elements to defeat thepurposes for which they were issued and to foment public confusion, withdrew said orders andenjoined full and stricter implementation of martial law.

In the meantime, the President had issued on December 31, 1972 Presidential Decree No. 86creating Citizens Assemblies "so as to afford ample opportunities for the citizenry to express theirviews on important national issues" and one of the questions presented to said assemblies was: "Doyou like the plebiscite on the proposed Constitution to be held later" So, in the same order of January7, 1973, General Order No. 20, the President ordered, "that the plebiscite scheduled to be held onJanuary 15, 1973, be postponed until further notice."

In the meanwhile also, on January 5, 1973, the President issued Presidential Decree No. 86-Aproviding as follows:

"PRESIDENTIAL DECREE NO. 86-A

STRENGTHENING AND DEFINING THE ROLE OF

BARANGAYS (CITIZENS ASSEMBLIES )

WHEREAS, on the basis of preliminary and initial reports from the field asgathered from barangays (citizens assemblies) that have so far been established, thepeople 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 bethe vehicle for expressing the views of the people on important national issues;

WHEREAS, such barangays (citizens assemblies) desire that they be givenlegal status and due recognition as constituting the genuine, legitimate and validexpression of the popular will; and

WHEREAS, the people would like the citizens assemblies to conductimmediately a referendum on certain specified questions such as the ratification of thenew Constitution, continuance of martial law, the convening of Congress on January22, 1973, and the elections in November 1973 pursuant to the 1935 Constitution.

NOW, THEREFORE, I, FERDINAND E. MARCOS, President of thePhilippines, by virtue of the powers vested in me by the constitution as Commander-in-Chief of all Armed Forces of the Philippines, do hereby declare as part of the law ofthe land the following:

1.The present barangays (citizens assemblies) are created under PresidentialDecree No. 86 dated December 31, 1972, shall constitute the base for citizenparticipation in governmental affairs and their collective views shall be considered inthe formulation of national policies or programs and, wherever practicable, shall betranslated into concrete and specific decision;

2.Such barangays (citizens assemblies) shall consider vital national issues nowconfronting the country, like the holding of the plebiscite on the new Constitution, the


68 of 207 6/20/2012 8:16 AM

continuation of martial rule, the convening of Congress on January 22, 1973, and theholding of elections in November 1973, and others in the future, which shall serve asguide or basis for action or decision by the national government;

3.The barangays (citizens assemblies) shall conduct between January 10 and15, 1973, a referendum on important national issues, including those specified inparagraph 2 hereof, and submit the results thereof to the Department of LocalGovernments and Community Development immediately thereafter, pursuant to theexpress will of the people as reflected in the reports gathered from the many thousandsof 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 datedDecember 31, 1972, the Barangays (Citizens Assemblies) have petitioned the Office ofthe President to submit to them for resolution important national issues;

WHEREAS, one of the questions persistently mentioned refers to theratification of the Constitution proposed by the 1971 Constitutional Convention;

"WHEREAS, on the basis of the said petitions, it is evident that the peoplebelieve that the submission of the proposed Constitution to the Citizens Assemblies orBarangays should be taken as a plebiscite in itself in view of the fact that freedom ofdebate has always been limited to the leadership in political, economic and socialfields, and that it is now necessary to bring this down to the level of the peoplethemselves through the Barangays or Citizens Assemblies;

NOW THEREFORE, I, FERDINAND E. MARCOS, President of thePhilippines, by virtue of the powers in me vested by the Constitution, do hereby orderthat important national issues shall from time to time be referred to the Barangays(Citizens Assemblies) for resolution in accordance with Presidential Decree No. 86-Adated January 5, 1973 and that the initial referendum shall include the matter ofratification of the Constitution proposed by the 1971 Constitutional Convention.

The Secretary of the Department of Local Governments and CommunityDevelopment shall insure the implementation of this Order.

Done in the City of Manila, this 7th day of January in the year of Our Lord,nineteen hundred and seventy three."

And so it was that by January 10, 1973, when the Citizens Assemblies thus created started thereferendum which was held from said date to January 15, 1973, the following questions weresubmitted to them:


69 of 207 6/20/2012 8:16 AM

"(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 thegovernment?."

but on January 11, 1973, six questions were added as follows:

"(1)Do you approve of the citizens assemblies as the base of populargovernment 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 accordancewith the provisions of the 1935 Constitution?

"(5)If the elections would not be held, when do you want the next elections tobe called?

"(6)Do you want martial law to continue?"

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

"COMMENTS ON

QUESTION No. 2


QUESTION No. 3

The vote of the Citizens Assemblies should already be considered the plebisciteon the New Constitution.

If the Citizens Assemblies approve of the new Constitution, then the newConstitution should be deemed ratified "

The Solicitor General claims, and there seems to be no showing otherwise, that the results of thereferendum were determined in the following manner:

"Thereafter, the results of the voting were collated and sent to the Department


70 of 207 6/20/2012 8:16 AM

of Local Governments. The transmission of the results was made by telegram,telephone, the provincial government SSB System in each province connecting alltowns; the SSB communication of the PACD connecting most provinces; theDepartment of Public Information Network System; the Weather BureauCommunication System connecting provincial capitals and the National Civil DefenseNetwork connecting all provincial capitals. The certificates of results were then flownto Manila to confirm the previous figures received by the aforementioned means oftransmission. The certificates of results tallied with the previous figures taken with theexception of few cases of clerical errors.

"The Department adopted a system of regionalizing the receiving section of theCitizens Assemblies operation at the Department wherein the identity of the barrio andthe province was immediately given to a staff in charge of each region. Everyafternoon at 2:00 o'clock, the 11 regions submitted the figures they received from thefield to the central committee to tabulate the returns. The last figures were tabulated at12 midnight of January 16, 1973 and early morning of January 17, 1973 and were thencommunicated to the President by the Department of Local Governments."

The development culminated in the issuance by the President of Proclamation 1102 on January 17,1978. Said proclamation reads:

"PROCLAMATION NO. 1102 ANNOUNCING THE RATIFICATION BY THEFILIPINO PEOPLE OF THE CONSTITUTION PROPOSED BY THE 1971CONSTITUTIONAL CONVENTION.

WHEREAS, the Constitution proposed by the nineteen hundred seventy-oneConstitutional Convention is subject to ratification by the Filipino people;

"WHEREAS, Citizens Assemblies were created in barrios in municipalities andin districts/wards in chartered cities pursuant to Presidential Decree No. 6, datedDecember 31, 1972, composed of all persons who are residents of the barrio, district orward for at least six months, fifteen years of age or over, citizens of the Philippines andwho are registered in the list of Citizen Assembly members kept by the barrio, districtor ward secretary;

WHEREAS, the said Citizens Assemblies were established precisely to broadenthe base of citizen participation in the democratic process and to afford ampleopportunity for the citizenry to express their views on important national issues;

WHEREAS, responding to the clamor of the people and pursuant toPresidential Decree No. 86-A, dated January 5, 1973, the following questions wereposed before Citizens' Assemblies or Barangays: Do you approve of the NewConstitution? Do you still want a plebiscite to be called to ratify the new Constitution?

WHEREAS, fourteen million nine hundred seventy six thousand five hundredsixty one (14,976,561) members of all the Barangays (Citizens Assemblies) voted forthe adoption of the proposed Constitution, as against seven hundred forty-threethousand eight hundred sixty nine (743,869) who voted for its rejection; while on thequestion as to whether or not the people would still like a plebiscite to be called toratify the new Constitution, fourteen million two hundred ninety eight thousand eighthundred fourteen (14,298,814) answered that there was no need for a plebiscite andthat the vote of the Barangays (Citizens Assemblies) should be considered as a vote in


71 of 207 6/20/2012 8:16 AM

a plebiscite;

WHEREAS, since the referendum results show that more than ninety five (95)percent of the members of the Barangays (Citizens Assemblies) are in favor of theNew Constitution, the Katipunan ng Mga Barangay has strongly recommended that thenew Constitution should already be deemed ratified by the Filipino people;

"NOW, THEREFORE, I, FERDINAND E. MARCOS, President of thePhilippines, by virtue of the powers in me vested by the Constitution, do hereby certifyand proclaim that the Constitution proposed by the nineteen hundred and seventy-one(1971) Constitutional Convention has been ratified by an overwhelmingly majority ofall 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 ofthe Republic of the Philippines to be affixed.

Done in the City of Manila, this 17th day of January, in the year of Our Lord,nineteen hundred and seventy-three."

The first attempt to question the steps just enumerated taken by the President was in the so calledPlebiscite Cases, ten in number, which were filed by different petitioners during the first half ofDecember 1972. 1 Their common target then was Presidential Decree No. 73, but before the saidcases could be decided, the series of moves tending in effect to make them moot and academicinsofar as they referred exclusively to the said Presidential Decree began to take shape upon theissuance 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 January11, 1973 were known, together with the "comments", petitioners sensed that a new and unorthodoxprocedure was being adopted to secure approval by the people of the new Constitution, henceCounsel Tañada, not being satisfied with the fate of his urgent motion for early decision of the aboveten cases dated January 12, 1973, filed on January 15, 1973, his supplemental motion seeking theprohibition against and injunction of the proceedings going on. Principal objective was to prevent thatthe President be furnished the report of the results of the referendum and thereby disable him fromcarrying out what petitioners were apprehensively foreseeing would be done — the issuance of somekind of proclamation, order or decree, declaring that the new Constitution had been ratified. Reactingswiftly, the Court resolved on the same day, January 15, which was Monday, to consider thesupplemental motion as a supplemental petition and to require the respondents to answer the samethe next Wednesday, January 17th, before the hour of the hearing of the petition which was set for9:30 o'clock in the morning of that day. The details of what happened that morning form part of therecital of facts in the decision rendered by this Court in the ten cases on January 22, 1973 and neednot be repeated here. Suffice it to state now that before the hearing could be closed and whileCounsel Tañada was still insisting on his payer for preliminary injunction or restraining order, theSecretary of Justice arrived and personally handed to the Chief Justice a copy of Proclamation 1102which had been issued at about 11:00 o'clock that same morning. In other words, the valiant andpersistent efforts of petitioners and their counsels were overtaken by adverse developments, and inthe 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 byrespondents, the Court could already decide on the fundamental issue of the validity of Proclamation1102, as Justices Zaldivar, Antonio and Esguerra also believed, inasmuch as Counsel Tañada's


72 of 207 6/20/2012 8:16 AM

pleading and argument had anticipated its issuance, but the majority felt it was not ready to resolvethe matter, for lack, according to them, of full ventilation, and so, the decision reserved to petitionersthe 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 inconsequentialby my learned brethren, I strongly feel needs special attention. I refer to the point raised by CounselArturo M. Tolentino for respondents Gil J. Puyat and Jose Roy, who have been sued as President andPresident Pro Tempore of the Senate, to the effect that the change in the composition of the SupremeCourt provided for in the 1973 Constitution, from the 11-man tribunal under the 1935 Constitution toa 15-man Court, makes of these cases which were filed after January 17, 1973, the date whenProclamation 1102 declared the new Constitution as ratified, political in nature and beyond ourjurisdiction. The main consideration submitted in this connection is that inasmuch as the number ofvotes needed for a decision of this Court has been increased from six to eight in ordinary cases andfrom 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 thesecases as the 15-man or the 11-man Court, in which event, it would be faced with the dilemma that ifit acts either as the former or as the latter, it would be prejudging the very matter in issue one way orthe other, and, in effect, it would be choosing between two constitutions, which is a politicaldetermination 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 thepremises laid down by counsel necessarily preclude this Court from taking a definite stand onwhether the Court is acting in these cases as the 15-man or the 11-man Court. I feel very stronglythat the issue should not be ignored or dodged, if only to make the world know that the SupremeCourt of the Philippines is never incognizant of the capacity in which it is acting, much less lacking incourage or wisdom to resolve an issue that relates directly to its own composition. What a disgrace itwould be to admit that this Supreme Court does not know, to use a common apt expression, whetherit is fish or fowl. Withal, scholars and researchers who might go over our records in the future willinevitably examine minutely how each of us voted and upon what considerations we have individuallyacted, and, indeed, doubts may arise as to whether or not, despite the general result we mightannounce, 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 Proclamation1102 ineffective, and if upon analysis of our respective opinions it should be inferable therefrom thatsix of us have considered the matter before the Court as justiciable and at the same time have foundthe procedure of ratification adopted in Presidential Decrees 86A and 86-B and related orders of thePresident as not being in conformity with Article XV of the old Constitution, a cloud would exist asto the efficacy of the dispositive portion of Our decision dismissing these cases, even if we have itunderstood that by the vote of six justices in favor of such dismissal, We intended to mean that theimplementation 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 amaverse to ambiguity and equivocation, and as a member of the Supreme Court, the last thing I shouldknowingly countenance is uncertainty as to the juridical significance of any decision of the Court


73 of 207 6/20/2012 8:16 AM

which is precisely being looked upon as the haven in which doubts are supposed to be authoritativelydispelled. Besides, from the very nature of things, one thing is indubitably beyond dispute — wecannot act in both capacities of a 15-man and an 11-man Court at the same time, in like manner thatit is inconceivable that the 1935 and 1973 Constitution can be considered by Us as both in force. Ourinescapable duty is to make a choice between them, according to what law and other considerationsinherent to our function dictate. I cannot bear the thought that someone may someday say that theSupreme Court of the Philippines once decided a case without knowing the basis of its authority toact 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 andpropriety to straighten out this grave issue touching on the capacity in which the Court is acting inthese cases, I hold that we have no alternative but to adopt in the present situation the orthodox rulethat when the validity of an act or law is challenged as being repugnant to a constitutional mandate,the same is allowed to have effect until the Supreme Court rules that it is unconstitutional. Stateddifferently, We have to proceed on the assumption that the new Constitution is in force and that Weare acting in these present cases as the 15-man Supreme Court provided for therein. Contrary tocounsel's contention, there is here no prejudgment for or against any of the two constitutions. Thetruth of the matter is simply that in the normal and logical conduct of governmental activities, it isneither practical nor wise to defer the course of any action until after the courts have ascertainedtheir legality, not only because if that were to be the rule, the functioning of government wouldcorrespondingly be undesirably hesitative and cumbersome, but more importantly, because the courtsmust at the first instance accord due respect to the acts of the other departments, as otherwise, thesmooth running of the government would have to depend entirely on the unanimity of opinionsamong all its departments, which is hardly possible, unless it is assumed that only the judges have theexclusive prerogative of making and enforcing the law, aside from being its sole interpreter, which iscontrary to all norms of juridical and political thinking. To my knowledge, there is yet no country inthe world that has recognized judicial supremacy as its basic governmental principle, no matter howdesirable 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 thatthis 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 theCourt of Appeals, is operating under the 1973 Constitution. Almost daily, presidential orders anddecrees of the most legislative character affecting practically every aspect of governmental andprivate activity as well as the relations between the government and the citizenry are pouring outfrom Malacañang under the authority of said Constitution. On the other hand, taxes are beingexacted 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 beingprojected pursuant to them. Displacements of public officials and employees in big numbers aregoing on in obedience to them. For the ten justices of the Supreme Court to constitute an island ofresistance 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 aposition entails in the internal workings within the judiciary amount its different components, whatwith the lower courts considering such orders and decrees as forming part of the law of the land inmaking their orders and decisions, whereas the Supreme Court is holding, as it were, their effectivityat bay if it is not being indifferent to or ignoring them.

It is suggested that the President, being a man of law, is committed to abide by the decision of the


74 of 207 6/20/2012 8:16 AM

Supreme Court, and if the Court feels that it cannot in the meantime consider the enforcement of thenew Constitution, he can wait for its decision. Accepting the truth of this assertion, it does notnecessarily follow that by this attitude of the President, he considers the Supreme Court as stilloperating under the Old Constitution. Quite on the contrary, it is a fact that he has given instructionsfor the payment of the justices in accordance with the rate fixed in the New Constitution. Not onlythat, his official alter ego, the Secretary of Justice, has been shoving to this Court, since January 18,1973, all matters related to the administrative supervision of the lower courts which by the newcharter has been transferred from the Department of Justice to the Supreme Court, and as far as Iknow, the President has not countermanded the Secretary's steps in that direction. That, on the otherhand, the President has not augmented the justices of the Court to complete the prescribed numberof fifteen is, in my appraisal, of no consequence, considering that with the presence of ten justiceswho are in the Court now, there is a working quorum, and the addition of new justices cannot inanyway affect the voting on the constitutional questions now before Us because, while there aresufficient justices to declare by their unanimous vote the illegality of Proclamation 1102, the votes ofthe justices to be added would only be committed to upholding the same, since they cannot by anystandard be expected to vote against the legality of the very Constitution under which they would beappointed.

Moreover, what makes the premise of presumptive validity preferable and, even imperative, is thatWe are dealing here with a whole constitution that radically modifies or alters not only the form ofour government from presidential to parliamentary but also other constitutionally based institutionsvitally affecting all levels of society. It is, to my mind, unrealistic to insist on that, fundamentally, the1973 Constitution is the same 1935 Constitution. with a few improvements. A cursory perusal of theformer should convince anyone that it is in essence a new one. While it does retain republicanism asthe basic governmental tenet, the institutional changes introduced thereby are rather radical and itssocial orientation is decidedly more socialistic, just as its nationalistic features are somewhat differentin certain respects. One cannot but note that the change embraces practically every part of the oldcharter, from its preamble down to its amending and effectivity clauses, involving as they do thestatement of general principles, the citizenship and suffrage qualifications, the articles on the form ofgovernment, the judiciary provisions, the spelling out of the duties and responsibilities not only ofcitizens but also of officers of the government and the provisions on the national economy as well asthe patrimony of the nation, not to mention the distinctive features of the general provisions. What ismore, 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, iseven left to his discretion. Notably, the express ratification of all proclamations, orders, decrees andacts previously issued or done by the President, obviously meant to encompass those issued duringmartial law, is a commitment to the concept of martial law powers being implemented by presidentMarcos, in defiance of traditional views and prevailing jurisprudence, to the effect that theExecutive's power of legislation during a regime of martial law is all inclusive and is not limited to thematters demanded by military necessity. In other words, the new constitution unlike any otherconstitution countenances the institution by the executive of reforms which normally is the exclusiveattribute of the legislature.

Withal, the best proofs that by its expressed and implied intent, the Constitution of 1973 is a newone, are that (1) Section 16 of its Article XVII which provides that this constitution shall "supersede


75 of 207 6/20/2012 8:16 AM

the Constitution of nineteen hundred and thirty-five and all amendments thereto" and (2) itstransitory provisions expressly continue the effectivity of existing laws, offices and courts as well asthe tenure of all incumbent officials, not adversely affected by it, which would have beenunnecessary if the old constitution were being merely amended.

The new Constitution, in its Section 10, Article XVII, provides that "(T)he incumbent members ofthe Judiciary (which include the Chief Justice and Associate Justices of the Supreme Court) maycontinue in office (under the new constitution) until they reach the age of seventy years, etc." Byvirtue of the presumptive validity of the new charter, all of Us form part of the 15-man-Courtprovided for therein and, correspondingly, We have in legal contemplation, ceased in the meanwhileto be members of the 11-man-Court in the 1935 Constitution. Should the Court finally decide that thenew 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 Wecannot in conscience accept the legality of its existence. On the other hand, if it is assumed that Weare still the 11-man-Court and it happens that Our collective decision is in favor of the newconstitution, it would be problematical for any dissenting justice to consider himself as includedautomatically in the 15-man-Court, since that would be tantamount to accepting a position he doesnot honestly believe exists.

III

In brief, the main contention of the petitioners is that Proclamation 1102 is invalid because theratification of the 1973 Constitution it purports to declare as having taken place as a result of thereferendum above-referred to is ineffective. Since it cannot be said on the basis of the saidreferendum that said Constitution has been "approved by a majority of the votes cast at an election"in the manner prescribed by Article XV of the Constitution of 1935. More specifically, they maintainthat the word "election" in the said Article has already acquired a definite accepted meaning out ofthe consistent holding in the past of ratification plebiscites, and accordingly, no other form ofratification can be considered contemplated by the framers of the Old Constitution than that whichhad been followed in 1935, 1937, 1939, 1940, 1946 and 1967, the last three or four of which wereheld under the supervision of the Commission on Elections. Furthermore, they emphatically deny theveracity of the proclaimed results of the referendum because, according to them the referendum wasa farce and its results were manufactured or prefabricated, considering that Mr. Francisco Cruz, whois supposed to have submitted the final report to the President, which served as basis forProclamation 1102, had no official authority to render the same, and it is inconceivable and humanlyimpossible for anyone to have been able to gather, tabulate and canvass the 15 million votes allegedlyreported 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 whichdeprives the voters of the complete freedom needed for the exercise of their right of choice andactually, 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 thematter 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, inasmuchas, disregarding unessential matters of form, the undeniable fact is that the voting in the referendumresulted 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 thePlebiscite Cases, I already made the observation that in view of the lack of solemnity and regularity


76 of 207 6/20/2012 8:16 AM

in the voting as well as in the manner of reporting and canvassing conducted in connection with thereferendum, I cannot say that Article XV of the Old Constitution has been complied with, albeit Iheld that nonetheless, the Constitution of 1973 is already in force. In order, however, to make myselfclearer on some relevant points, I would like to add a few considerations to what I have already saidin the former cases.

In my opinion in those cases, the most important point I took into account was that in the face of thePresidential certification through Proclamation 1102 itself that the New Constitution has beenapproved by a majority of the people and having in mind facts of general knowledge which I havetaken judicial notice of, I am in no position to deny that the result of the referendum was as thePresident had stated. I can believe that the figures referred to in the proclamation may not beaccurate, but I cannot say in conscience that all of them are manufactured or prefabricated, simplybecause I saw with my own eyes that people did actually gather and listen to discussions, if brief andinadequate for those who are not abreast of current events and general occurrences, and that theydid vote. I believe I can safely say that what I have seen have also been seen by many othersthroughout 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 thosewherein there were such meetings and votings, I am not prepared to discredit entirely the declarationthat there was voting and that the majority of the votes were in favor of the New Constitution. If infact 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 CitizensAssemblies was to be in the nature merely of a loose consultation and not an outright submission forpurposes of ratification. I can see that at the outset, when the first set of questions was released, suchmay have been the idea. It must not be lost sight of, however, that if the newspaper reports are to bebelieved, and I say this only because petitioners would consider the newspapers as the officialgazettes of the administration, the last set of six questions were included precisely because thereaction to the idea of mere consultation was that the people wanted greater direct participation, thruthe Citizens Assemblies, in decision-making regarding matters of vital national interest. Thus, lookingat things more understandingly and realistically, the two questions emphasized by counsel, namely,(1) Do you approve of the New Constitution? and (2) Do you want a plebiscite to be called to ratifythe new Constitution? should be considered no longer as loose consultations but as direct inquiriesabout the desire of the voters regarding the matters mentioned. Accordingly, I take it that if themajority had expressed disapproval of the new Constitution, the logical consequence would havebeen the complete abandonment of the idea of holding any plebiscite at all. On the other hand, it isvery plain to see that since the majority has already approved the new Constitution, a plebiscitewould be superfluous. Clear as these rationalizations may be, it must have been thought that if theholding of a plebiscite was to be abandoned, there should be a direct and expressed desire of thepeople to such effect in order to forestall as much as possible any serious controversy regarding thenon-holding of the plebiscite required by the letter of Section 16 of Article XVII, the effectivityclause, of the new Constitution. Oddly enough, the "comments" accompanying the questions dostrongly suggest this view. And as it turned out, the majority found no necessity in holding aplebiscite.

In connection with the question, Do you approve of the New Constitution? capital is being made ofthe point that as so framed, the thrust of the said question does not seek an answer of fact but ofopinion. It is argued that it would have been factual were it worded categorically thus — Do you


77 of 207 6/20/2012 8:16 AM

approve the New Constitution? The contention would have been weighty were it not unrealistic. Iremember distinctly that the observation regarding the construction of the subject question was notoriginally made by any of the talented counsels for petitioners. It came from Mr. Justice Fred RuizCastro whose mastery of the English language can rightly be the cause of envy of even professors ofEnglish. None of the other members of the Court, as far as I can recall, ever noticed how the saidquestion is phrased, or if anyone of Us did, I am not aware that he gave it more than passingattention. What I mean is that if neither any of the distinguished and learned counsels nor anymember of the Court understood the said question otherwise than calling for a factual answer insteadof a mere opinion, how could anyone expect the millions of unlettered members of the CitizensAssemblies to have noticed the point brought out by Justice Castro? Truth to tell, I myself did notrealize the difference until Justice Castro gave it emphasis. Besides, reading the question in the lightof the accompanying "comment" corresponding to it in particular, I am certain that any one whoanswered the same understood it in no other sense than a direct inquiry as to whether or not, as amatter of fact, he approves the New Constitution, and naturally, his affirmative answer must be takenas a categorical vote of approval thereof, considering, particularly, that according to the reportedresult of the referendum said answer was even coupled with the request that the President defer theconvening of the Interim National Assembly.

It is also contended that because of this reference in the answer to that question to the deferment ofthe convening of the interim assembly, the said answer is at best a conditional approval not propernor acceptable for purposes of a ratification plebiscite. The contention has no basis. In the interest ofaccuracy, the additional answer proposed in the pertinent "comment" reads as follows: "But we donot want the Ad Interim Assembly to be convoked etc." On the assumption that the actual answer, asreported, was of similar tenor, it is not fair to ascribe to it the imposition of a condition. At the most,the intention is no more than a suggestion or a wish.

As regards said "comments", it must be considered that after martial law was declared, thecircumstances surrounding the making of the Constitution acquired a different and more meaningfulaspect, namely, the formation of a new society. From the point of view of the President and on thebasis of intelligence reports available to him, the only way to meet the situation created by thesubversive elements was to introduce immediately effective reforms calculated to redeem the peoplefrom the depth of retrogression and stagnation caused by rampant graft and corruption in highplaces, influence peddling, oligarchic political practices, private armies, anarchy, deterioratingconditions of peace and order, the social inequalities widening the gap between the rich and the poor,and many other deplorable long standing maladies crying for early relief and solution. Definitely, asin the case of the rebellious movement that threatened the Quirino Administration, the remedy wasfar from using bullets alone. If a constitution was to be approved as an effective instrument towardsthe eradication of such grave problems, it had to be approved without loss of time and sans thecumbersome processes that, from the realistic viewpoint, have in the past obstructed rather thanhastened the progress of the people. Stated otherwise, in the context of actualities, the evidentobjective in having a new constitution is to establish new directions in the pursuit of the nationalaspirations and the carrying out of national policies. Only by bearing these considerations in mindcan the "comments" already referred to be properly appreciated. To others said "comments" mayappear as evidence of corruption of the will of those who attended the assemblies, but actually, theymay also be viewed in the same light as the sample ballots commonly resorted to in the elections ofofficials, which no one can contend are per se means of coercion. Let us not forget that the times are


78 of 207 6/20/2012 8:16 AM

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 newconstitution is different from voting on one, two or three specific proposed amendments, the formercalls 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 onlybecause of a few specific objectionable features, no matter how substantial, considering the everpresent possibility that after all it may be cured by subsequent amendment. Accordingly, there wasneed to indicate to the people the paths open to them in their quest for the betterment of theirconditions, 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 existenceof said "comments" should make any appreciable difference in the court's appraisal of the result ofthe referendum.

I must confess that the fact that the referendum was held during martial law detracts somehow fromthe value that the referendum would otherwise have had. As I intimated, however, in my formeropinion, it is not fair to condemn and disregard the result of the referendum barely because of martiallaw per se. For one thing, many of the objectionable features of martial law have not actuallymaterialized, if only because the implementation of martial law since its inception has been generallycharacterized by restraint and consideration, thanks to the expressed wishes of the President that thesame be made "Philippine style", which means without the rigor that has attended it in other landsand other times. Moreover, although the restrictions on the freedom of speech, the press andmovement during martial law do have their corresponding adverse effects on the area of informationwhich should be open to a voter, in its real sense what "chills" his freedom of choice and mars hisexercise of discretion is the suspension of the privilege of the writ of habeas corpus. The reason issimply that a man may freely and correctly vote even if the needed information he possesses as tothe candidates or issues being voted upon is more or less incomplete, but when he is subject to arrestand detention without investigation and without being informed of the cause thereof, that issomething else which may actually cause him to cast a captive vote. Thus it is the suspension of thewrit of habeas corpus accompanying martial law that can cause possible restraint on the freedom ofchoice in an election held during martial law. It is a fact, however, borne by history and actualexperience, that in the Philippines, the suspension of the privilege of the writ of habeas corpus hasnever produced any chilling effect upon the voters, since it is known by all that only those who runafoul of the law, saving inconsequential instances, have any cause for apprehension in regard to theconduct by them of the normal activities of life. And so it is recorded that in the elections of 1951and 1971, held while the privilege of writ of habeas corpus was under suspension, the Filipino votersgave the then opposition parties overwhelming if not sweeping victories, in defiance of the respectiveadministrations 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 thereferendum may be considered as sufficient basis for declaring that the New Constitution has beenratified in accordance with the amending clause of the 1935 Constitution. I reiterate that in point oflaw, I find neither strict nor substantial compliance. The foregoing discussion is only to counter, if Imay, certain impressions regarding the general conditions obtaining during and in relation to thereferendum which could have in one way or another affected the exercise of the freedom of choiceand the use of discretion by the members of the Citizens Assemblies, to the end that as far as thesame conditions may be relevant in my subsequent discussions of the acceptance by the people ofthe New Constitution they may also be considered.


79 of 207 6/20/2012 8:16 AM

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 onthe basis of purely legal considerations. Factors which are non-legal but nevertheless ponderous andcompelling 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 whetheror not there was proper submission under Presidential Decree No. 73 is justiciable, and I still holdthat the propriety of submission under any other law or in any other form is constitutionally a fitsubject for inquiry by the courts. The ruling in the decided cases relied upon by petitioners are to thiseffect. In view, however, of the factual background of the cases at bar which include ratificationitself, it is necessary for me to point out that when it comes to ratification, I am persuaded that thereshould be a boundary beyond which the competence of the courts no longer has any reason forbeing, because the other side is exclusively political territory reserved for their own dominion by thepeople.

The main basis of my opinion in the previous cases was acceptance by the people. Others may feelthere is not enough indication of such acceptance in the record and in the circumstances the Courtcan take judicial notice of. For my part, I consider it unnecessary to be strictly judicial in inquiringinto such fact. Being personally aware, as I have already stated, that the Citizens Assemblies didmeet and vote, if irregularly and crudely, it is not for me to resort, for the purposes of these cases, tojudicial tape and measure, to find out with absolute precision the veracity of the total number of votesactually cast. After all, the claims that upon a comparison of conflicting reports, cases of excess votesmay be found, even if extrapolated will not, as far as I can figure out, suffice to overcome theoutcome officially announced. Rather than try to form a conclusion out of the raw evidence beforeUs which the parties did not care to really complete, I feel safer by referring to the results announcedin the proclamation itself. Giving substantial allowances for possible error and downrightmanipulation, it must not be overlooked that, after all, their having been accepted and adopted by thePresident, based on official reports submitted to him in due course of the performance of duty ofappropriate subordinate officials, has elevated them to the category of an act of a coordinatedepartment of the government which under the principle of separation of powers is clothed withpresumptive correctness or at least entitled to a high degree of acceptability, until overcome by betterevidence, which in these cases does not exist. In any event, considering that due to the unorthodoxyof the procedure adopted and the difficulty of an accurate checking of all the figures, I am unable toconceive of any manageable means of acquiring information upon which to predicate a denial, I haveno alternative but to rely on what has been officially declared. At this point, I would venture toexpress the feeling that if it were not generally conceded that there has been sufficient showing of theacceptance in question, by this time, there would have been already demonstrative and significantindications of a rather widespread, if not organized resistance in one form or another. Much as theyare to be given due recognition as magnificent manifestations of loyalty and devotion to principles, Icannot 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 for the Court in Tolentino vs. Comelec, 41SCRA 702, I made strong and unequivocal pronouncements to the effect that any amendment to theConstitution of 1935, to be valid, must appear to have been made in strict conformity with therequirements of Article XV thereof. What is more, that decision asserted judicial competence to


80 of 207 6/20/2012 8:16 AM

inquire into the matter of compliance or non compliance as a justiciable matter. I still believe in thecorrectness of those views and I would even add that I sincerely feel it reflects the spirit of the saidconstitutional provision. Without trying to strain any point, however, I submit the followingconsiderations in the context of the peculiar circumstances of the cases now at bar, which areentirely 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 or a particular provisionof an existing Constitution; here, it is, as I have discussed earlier above, an entirely new Constitutionthat 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 petitionerin the case I have just referred to is, now inviting Our attention to the exact language of Article XVand suggesting that the said Article may be strictly applied to proposed amendments but may hardlygovern the ratification of a new Constitution. It is particularly stressed that the Article specificallyrefers to nothing else but "amendments to this Constitution" which if ratified "shall be valid as part ofthis Constitution." Indeed, how can a whole new constitution be by any manner of reasoning anamendment 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 theresolution denying the motion for reconsideration to the fact that Article XV must be followed "aslong as any amendment is formulated and submitted under the aegis of the present Charter." Saidresolution even added. "(T)his is not to say that the people may not, in the exercise of their inherentrevolutionary 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 itsapplication only to proposed changes in any part of the same constitution itself, for the very fact thata new constitution is being adopted implies a general intent to put aside the whole of the old one, andwhat would be really incongrous is the idea that in such an eventuality, the new Constitution wouldsubject its going into effect to any provision of the constitution it is to supersede, to use the languageprecisely of Section 6, Article XVII, the effectivity clause, of the New Constitution. Myunderstanding 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 constitutionhas its own effectivity clause, so that if, the Constitutional Convention had only anticipated the ideaof the referendum and provided for such a method to be used in the ratification of the NewConstitution, I would have had serious doubts as to whether Article XV could have had priority ofapplication.

2.When an entirely new constitution is proposed to supersede the existing one, we cannot but takeinto consideration the forces and the circumstances dictating the replacement. From the very natureof things, the proposal to ordain a new constitution must be viewed as the most eloquent expressionof a people's resolute determination to bring about a massive change of the existing order, ameaningful transformation of the old society and a responsive reformation of the contemporaryinstitutions and principles. Accordingly, should any question arise as to its effectivity and there issome reasonable indication that the new charter has already received in one way or another thesanction of the people, I would hold that the better rule is for the courts to defer to the people'sjudgment, so long as they are convinced of the fact of their approval, regardless of the form by whichit 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 amatter of policy should consider the matter non-justiciable.


81 of 207 6/20/2012 8:16 AM

3.There is still another circumstance which I consider to be of great relevancy. I refer to theostensible reaction of the component elements, both collective and individual, of the Congress of thePhilippines. Neither the Senate nor the House of Representatives has been reported to have evenmade any appreciable effort or attempt to convene as they were supposed to do under theConstitution of 1935 on January 22, 1973 for the regular session. It must be assumed that beingcomposed of experienced, knowledgeable and courageous members, it would not have been difficultfor said parliamentary bodies to have conceived some ingenious way of giving evidence of theirdetermined adherence to the Constitution under which they were elected. Frankly, much as I admirethe efforts of the handful of senators who had their picture taken in front of the padlocked portals ofthe Senate chamber, I do not feel warranted to accord such act as enough token of resistance. Ascounsel Tolentino has informed the court, there was noting to stop the senators and the congressmento meet in any other convenient place and somehow officially organize themselves in a way that canlogically be considered as a session, even if nothing were done than to merely call the roll anddisperse. Counsel Tolentino even pointed out that if there were not enough members to form aquorum, any smaller group could have ordered the arrest of the absent members. And with particularrelevance to the present cases, it was not constitutionally indispensable for the presiding officers toissue any call to the members to convene, hence the present prayers for mandamus have no legal andfactual bases. And to top it all, quite to the contrary, the records of the Commission on Electionsshow that at least 15 of 24 senators and over 95 out of less than 120 members of the House ofRepresentatives, have officially and in writing exercised the option given to them to join the InterimNational Assembly under the New Constitution, thereby manifesting their acceptance of the newcharter.

Now, having these facts in mind, and it being obvious that of the three great departments of thegovernment under the 1935 Constitution, two, the Executive and the Legislative, have alreadyaccepted the New Constitution and recognized its enforceability and enforcement, I cannot see howthis Supreme Court can by judicial fiat hold back the political developments taking place and for thesake of being the guardian of the Constitution and the defender of its integrity and supremacy makeits judicial power prevail against the decision of those who were duly chosen by the people to betheir authorized spokesmen and representatives. It is not alone the physical futility of such a gesturethat 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, theJustices, have taken and they are, therefore, equally bound with Us to preserve and protect theConstitution. If as the elected representatives of the people, they have already opted to accept theNew Constitution as the more effective instrument for the fulfillment of the national destiny, I reallywonder if there is even any idealistic worth in Our desperately clinging by Ourselves alone to Oursworn duty vis-a-vis the 1935 Constitution. Conscious of the declared objectives of the newdispensation and cognizant of the decisive steps being taken, with the least loss of time, towards theiraccomplishment, I cannot but feel apprehensive that instead of serving the best interests of ourpeople, which to me is in reality the real meaning of our oath of office, the Court might be standingin the way of the very thing our beloved country needs to retrieve its past glory and greatness. Inother words, it is my conviction that what these cases demand most of all is not a decisiondemonstrative of our legal erudition and Solomonic wisdom, but an all rounded judgment resultingfrom the consideration of all relevant circumstances, principally the political, or, in brief, a decisionmore political than legal, which a court can render only by deferring to the apparent judgment of thepeople and the announcement thereof by the political departments of the government and declaringthe matter non-justiciable.


82 of 207 6/20/2012 8:16 AM

4.Viewed from the strictly legal angle and in the light of judicial methods of ascertainment, I cannotagree with the Solicitor General that in the legal sense, there has been at least substantial compliancewith Article XV of the 1935 Constitution, but what I can see is that in a political sense, the answersto the referendum questions were not given by the people as legal conclusions. I take it that whenthey answered that by their signified approval of the New Constitution, they do not consider itnecessary to hold a plebiscite, they could not have had in mind any intent to do what wasconstitutionally improper. Basically accustomed to proceed along constitutional channels, they musthave acted in the honest conviction that what was being done was in conformity with prevailingconstitutional standards. We are not to assume that the sovereign people were indulging in a futileexercise of their supreme political right to choose the fundamental charter by which their lives, theirliberties and their fortunes shall be safeguarded. In other words, we must perforce infer that theymeant their decision to count, and it behooves this Court to render judgment herein in that context. Itis my considered opinion that viewed understandingly and realistically, there is more than sufficientground to hold that, judged by such intent and, particularly, from the political standpoint, theratification of the 1973 Constitution declared in Proclamation 1102 complies substantially withArticle XV of the 1935 Charter, specially when it is considered that the most important element ofthe ratification therein contemplated is not in the word "election", which conceivably can be in manyfeasible and manageable forms but in the word "approved" which may be said to constitute thesubstantiality of the whole article, so long as such approval is reasonably ascertained. In the lastanalysis, therefore, it can be rightly said, even if only in a broad sense, that the ratification here inquestion was constitutionally justified and justifiable.

5.Finally, if any doubt should still linger as to the legitimacy of the New Constitution on legalgrounds, the same should be dispelled by viewing the situation in the manner suggested by CounselTolentino and by the writer of this opinion in his separate opinion, oft-referred to above, in thePlebiscite Cases — that is, as an extra constitutional exercise by the people, under the leadership ofPresident Marcos, of their inalienable right to change their fundamental charter by any means theymay deem appropriate, the moment they are convinced that the existing one is no longer responsiveto their fundamental, political and social needs nor conducive to the timely attainment of theirnational destiny. This is not only the teaching of the American Declaration of Independence but isindeed, a truth that is self-evident. More, it should be regarded as implied in every constitution thatregardless of the language of its amending clause, once the people have given their sanction to a newcharter, the latter may be deemed as constitutionally permissible even from the point of view of thepreceding constitution. Those who may feel restrained to consider this view out of respect to theimport of Tolentino vs. Comelec, supra., would be well advised to bear in mind that that case wasdecided in the context of submission, not of accomplished ratification.

V

The language of the disputed amending clause of the 1935 Constitution should not be deemed as thebe all and end all of the nation. More important than even the Constitution itself, with all its excellentfeatures, 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 thetotality of the reasons for national existence. The sacred liberties and freedoms enshrined in it andthe commitment and consecration thereof to the forms of democracy we have hitherto observed aremere integral parts of this totality; they are less important by themselves.


83 of 207 6/20/2012 8:16 AM

What seems to me to be bothering many of our countrymen now is that by denying the presentpetitions, the Court would be deemed as sanctioning, not only the deviations from traditionaldemocratic concepts and principles but also the qualified curtailment of individual liberties now beingpracticed, and this would amount, it is feared, to a repudiation of our oath to support and defend theConstitution 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 tospeak of all executive departments and bureaus under them, as well as all the lower courts, includingthe Court of Appeals, have already accepted the New Constitution as an instrument of a meaningfulnationwide-all-level change in our government and society purported to make more realistic andfeasible, rather than idealistic and cumbersomely deliberative, the attainment of our nationalaspirations, I am led to wonder, whether or not we, as members of the Supreme Court are being trueto our duty to our people by refusing to follow suit and to accept the realities of the moment, despiteour being convinced of the sincerity and laudableness of their objectives, only because we feel thatby the people's own act of ratifying the Constitution of 1935, they have so encased themselves withinits provisions and may, therefore, no longer take measures to redeem themselves from the situationbrought about by the deficiencies of the old order, unless they act in strict conformity therewith. Icannot believe that any people can be so stifled and enchained. In any event, I consider it aGod-given attribute of the people to disengage themselves, if necessary, from any covenant thatwould obstruct their taking what subsequently appears to them to be the better road to the promotionand protection of their welfare. And once they have made their decision in that respect, whethersophisticatedly or crudely, whether in legal form or otherwise, certainly, there can be no court orpower on earth that can reverse them.

I would not be human if I should be insensitive to the passionate and eloquent appeals of CounselsTañada and Salonga that these cases be decided on the basis of conscience. That is exactly what Iam doing. But if counsel mean that only by granting their petitions can this Court be worthily thebulwark of the people's faith in the government, I cannot agree, albeit my admiration and respect areall theirs for their zeal and tenacity, their industry and wisdom, their patriotism and devotion toprinciple. 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 fearplaying opposite roles, as long as we are all animated by sincere love of country and aim exclusivelyat the attainment of the national destiny. Our heroes of the past, Rizal, Bonifacio, Aguinaldo, AntonioLuna, Mabini and so also with our patriots of the recent generations, Quezon, Osmeña, Roxas,Laurel and Recto, to mention only some of them, had their differences of views — and they did nothesitate to take diametrically opposing sides — that even reached tragic proportions, but all of themare admired and venerated.

It is my faith that to act with absolute loyalty to our country and people is more important thanloyalty to any particular precept or provision of the Constitution or to the Constitution itself. My oathto abide by the Constitution binds me to whatever course of action I feel sincerely is demanded bythe welfare and best interests of the people.

In this momentous juncture of our history, what is imperative is national unity. May God grant thatthe controversies the events leading to these cases have entailed will heal after the decision herein ispromulgated, so that all of us Filipinos may forever join hands in the pursuit of our national destiny.

IN VIEW OF ALL THE FOREGOING, I vote to dismiss all these petitions for mandamus and


84 of 207 6/20/2012 8:16 AM

prohibition without costs.

MAKASIAR, J.:

Assuming, without conceding, that Article XV of the 1935 Constitution prescribes a procedure forthe ratification of constitutional amendments or of a new Constitution and that such procedure wasno complied with, the validity of Presidential Proclamation No. 1102 is a political, not a justiciable,issue; for it is inseparably or inextricably linked with and strikes at, because it is decisive of, thevalidity of the ratification and adoption of, as well as acquiescence of the people in, the 1973Constitution and the legitimacy of the government organized and operating thereunder. And beingpolitical, it is beyond the ambit of judicial inquiry, tested by the definition of a political questionenunciated in Tañada, et al. vs. Cuenco, et al. (103 Phil. 1051), aside from the fact that this view willnot do violence to rights vested under the new Constitution, to international commitments forgedpursuant thereto and to decisions rendered by the judicial as well as quasi-judicial tribunals organizedand functioning or whose jurisdiction has been altered by the 1973 Constitution and by thegovernment 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 andperforming the obligations defined by the new Constitution, and decrees and orders issued inimplementation 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 implementingdecrees and orders (see Miller vs. Johnson, 18 SW 522, 522-526, 1892).

In 1957, Mr. Chief Justice Roberto Concepcion, then Associate Justice, in behalf as the court,defined a political question as one which, under the Constitution, is "to be decided by the people intheir sovereign capacity, or in regard to which full discretionary authority had been delegated to theLegislature or Executive branch of the government." (Tañada, et al. vs. Cuenco, et al., supra).

Article XV of the 1935 Constitution provides: "Such amendments shall be valid as part of thisConstitution when approved by a majority of the votes cast at an election at which the amendmentsare submitted to the people for ratification." Under Article XV of the 1935 Constitution, the power topropose constitutional amendments is vested in Congress or in a constitutional convention; while thepower to ratify or reject such proposed amendments or new Constitution is reserved by the sovereignpeople. The nullification of Proclamation No. 1102 would inevitably render inoperative the 1973Constitution, which is in fact the express prayer of the petitioners in G.R. No. L-36164. Regardlessof the modality of submission or ratification or adoption — even if it deviates from or violates theprocedure delineated there for 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 authorizedthere for but is subsequently adopted or recognized by the people and by the other official organsand functionaries of the government established under such a new Constitution, this Court isprecluded from inquiring into the validity of such ratification, adoption or acquiescence and of theconsequent effectivity of the new Constitution. This is as it should be in a democracy, for the peopleare the repository of all sovereign powers as well as the source of all governmental authority (Polevs. Gray, 104 SO 2nd 841 [1958]). This basic democratic concept is expressly restated in Section 1of Article II of the Declaration of Principles of the 1935 and 1973 Constitutions, thus: "Sovereigntyresides in the people and all government authority emanates from them."

The legality of the submission is no longer relevant; because the ratification, adoption and/oracquiescence by the people cures any infirmity in its submission or any other irregularities therein


85 of 207 6/20/2012 8:16 AM

which are deemed mandatory before submission as they are considered merely directory after suchratification or adoption or acquiescence by the people. As Mr. Justice Brewer, then of the KansasState Supreme Court and later Associate Justice of the Federal Supreme Court, stated in reProhibitory Amendment Cases (24 Kansas 700 & 710, Reprint 499, 506): "The two important, vitalelements of the Legislature, and a majority of the popular vote. Beyond these, other provisions aremere machineries and forms. They may not be disregarded, because by them certainty as to theessential is secured. But they are not themselves the essentials. " (Cited in Lark en vs. Gronna, 285N W 59, 61-64, 1939).

This was the ruling by the American Supreme Court in the 1939 case of Coleman vs. Miller (307U.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 bothprevious rejection and attempted withdrawal and determined that both were ineffectualin the presence of an actual ratification . . . This decision by the political departmentsof the Government as to the validity of the adoption of the Fourteenth amendment hasbeen accepted.

"We think that in accordance with this historic precedent the question of theefficacy of ratifications by state legislatures, in the light of previous rejection orattempted withdrawal, should be regarded as a political question pertaining to thepolitical departments, with the ultimate authority in the Congress in the exercise of itscontrol 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 ofconstitutional amendments. Final determination by Congress that ratification by three-fourths of the States has taken place 'is conclusive upon the courts.' In the exercise ofthat power Congress, of course, is governed by the Constitution. However, whethersubmission, intervening procedure or Congressional determination of ratificationconforms to the commands of the Constitution, calls for decisions by a 'politicaldepartment' of questions of a type which this Court has frequently designated'political.' And decision of a 'political question' by the 'political department' to whichthe Constitution has committed it 'conclusively binds the judges, as well as all otherofficers, citizens and subjects of . . . government.' Proclamation under authority ofCongress that an amendment has been ratified via carry with it a solemn assurance bythe Congress that ratification has taken place as the Constitution commands. Upon thisassurance 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 theCourt's opinion in the present case even impliedly assumes a power to make judicialinterpretation of the exclusive constitutional authority of Congress over submission andratification of amendments, we are unable to agree . . ." (American ConstitutionalIssues, by Pritchett, 1962 Ed., p. 44).

The doctrine in the aforesaid case of Coleman vs. Miller was adopted by Our Supreme Court in totoin Mabanag vs. Lopez Vito (78 Phil. 1).


86 of 207 6/20/2012 8:16 AM

The ruling in the cases of Gonzales vs. Comelec, et al. (L-28224, Nov. 29, 1967, 21 SCRA 774) andTolentino vs. Comelec, et al. (L-34150, Oct. 16, 1971, 41 SCRA 702) —on which petitioners placegreat reliance — that the courts may review the propriety of a submission of a proposedconstitutional amendment before the ratification or adoption of such proposed amendment by thesovereign people, hardly applies to the cases at bar; because the issue involved in the aforesaid casesrefers to only the propriety of the submission of a proposed constitutional amendment to the peoplefor ratification, unlike the present petitions, which challenge inevitably the validity of the 1973Constitution after its ratification or adoption thru acquiescence by the sovereign people. Asheretofore stated, it is specious and pure sophistry to advance the reasoning that the present petitionspray 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 amendmentsthereto is not included in the general grant of legislative powers to Congress. It is partof the inherent powers of the people — as the repository of sovereignty in arepublicans state, such as ours — to make, and hence, to amend their ownFundamental Law. Congress may propose amendments to the Constitution merelybecause the same explicitly grants such power. Hence, when exercising the same, it issaid that Senators ad Members of the House of Representatives act, not as members ofCongress, but as component elements of a constituent assembly. When acting as such,the members of Congress derive their authority from the Constitution, unlike thepeople, when performing the same function, for their authority does not emanate fromthe Constitution — they are the source of all powers of government including theConstitution itself." (21 SCRA 787)

WE did not categorically and entitle 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 politicalin nature forming as they do the essential parts of one political scheme — the amending process. WEmerely stated therein that the force of the ruling in the said case of Mabanag vs. Lopez Vito has beenweakened by subsequent cases. Thus, We pronounced therein.

"It is true that in Mabanag vs. Lopez Vito, this Court characterizing the issue submittedthereto as a political one, declined to pass upon the question whether or not a givennumber of votes cast in Congress in favor of a proposed amendment to theConstitution — which was being submitted to the people for ratification — satisfiedthe three fourths vote requirement of the fundamental law. The force of this precedenthas been weakened, however, by Suanes us. Chief Accountant of the Senate, Avelinovs. Cuenco, Tañada vs. Cuenco, and Macias vs. Commission on Elections. In the first,we held that the Officers and employees of the Senate Electoral Tribunal aresupervision and control, not of that of the Senate President, as claimed by the latter; inthe second, this Court proceeded to determine the number of Senators necessary for aquorum in the Senate; in the third we nullified the election, by Senators belonging tothe party having the largest number of votes in said chamber, purporting to act onbehalf 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 SenateElectoral Tribunal; and in the fourth, we declared unconstitutional an act of Congresspurporting to apportion the representative districts of the House of Representatives,upon the ground that the apportionment had not been made as may be possibleaccording to the number of inhabitants of each province. Thus we rejected the theory


87 of 207 6/20/2012 8:16 AM

advanced in these four (4) cases, that the issues therein raised were political questionsthe 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 aconstituent assembly — violates the Constitution is essentially justiciable, not political,and, hence, subject to judicial review, and to the extent that this view may beconsistent with the stand taken in Mabanag vs. Lopez Vito, the latter should bedeemed modified accordingly. " (p. 787, italics supplied.)

In the Tolentino case, supra, We reiterated the foregoing comments (41 SCRA 703-714).

The inevitable consequence therefore is that the validity of the ratification or adoption of oracquiescence by the people in the 1973 Constitution, remains a political issue removed from thejurisdiction of this Court to review.

One more word about the Gonzales and Tolentino cases. Both primarily stressed on the improprietyof the submission of a proposed constitutional amendment. Courts do not deal with propriety orwisdom or absence of either of an official act or of a law. Judicial power concerns only with thelegality or illegality, constitutionality or unconstitutionality of an act; it inquires into the existence ofpower or lack of it. Judicial wisdom is not to be pitted against the wisdom of the political departmentof the government.

The classic example of an illegal submission that did not impair the validity of the ratification oradoption of a new Constitution is the case of the Federal Constitution of the United States. It shouldbe recalled that the thirteen (13) original states of the American Union — which succeeded inliberating themselves from England after the revolution which began on April 19, 1775 with theskirmish at Lexington, Massachusetts and ended with the surrender of General Cornwall is atYorktown, Virginia, on October 19, 1781 (Encyclopedia Brit., Vol. I, 1933 Ed., p. 776) — adoptedtheir Articles of Confederation and Perpetual Union, that was written from 1776 to 1777 and ratifiedon March 1, 1781 (Encyclopedia Brit., Vol. II, 1966 Ed., p. 525). About six years thereafter, theCongress of the Confederation passed a resolution on February 21, 1787 calling for a FederalConstitutional Convention " for the sole and express purpose of revising the articles ofconfederation . . . " (Appendix I, The Federalist, Modern Library ed., p. 577, italics supplied).

The Convention convened at Philadelphia on May 14, 1787. Article XIII of the Articles ofConfederation and Perpetual Union stated specifically:

"The articles of this confederation shall be inviolably observed by every state, and theunion shall be perpetual; nor shall any alteration at any time hereafter be made in anyof them; unless such alteration be agreed to in a congress of the united states, and beafterwards confirmed by the legislatures of every statute." (See the Federalist,Appendix II, Modern Library Ed., 1937, p.584; italics supplied.)

But the foregoing requirements prescribed by the Articles of Confederation and Perpetual Union forthe alteration and for the ratification of the Federal Constitution as drafted by the PhiladelphiaConvention were not followed. Fearful that the said Federal Constitution would not be ratified by thestate legislatures as prescribed, the Philadelphia Convention adopted a resolution requesting theCongress of the Confederation to pass a resolution providing that the Federal Constitution should be


88 of 207 6/20/2012 8:16 AM

submitted to elected state conventions and if ratified by the conventions in nine (9) states, notnecessarily 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 tothe tender mercies of the legislatures of each and all of the 13 states. Experienceclearly indicated that ratification then would have had the some chance as thescriptural camel passing thru the eye of a needle. It was therefore determined torecommend to Congress that the new Constitution be submitted to conventions as inthe several states specially elected to pass upon it and that, furthermore, the newgovernment should go into effect if and when it should be ratified by nine of thethirteen states . . ." (The Federalist, Modern Library Ed., 1937, Introduction byEdward Earle Mead, pp. viii-ix; italics supplied).

Historian Samuel Eliot Morison similarly recounted:

"The Convention, anticipating that the influence of many state politicianswould be Antifederalist, provided for ratification of the Constitution by popularlyelected conventions in each state. Suspecting that Rhode Island, at least, would proverecalcitrant, it declared that the Constitution would go into effect as soon as nine statesratified. The convention method had the further advantage that judges, ministers, andothers ineligible to state legislatures, could be elected to a convention. The nine-stateprovision was, of course, mildly revolutionary. But the Congress of the Confederation,still sitting in New York to carry on federal government until relieved, formallysubmitted the new constitution to the states and politely faded out before the firstpresidential inauguration." (The Oxford History of the Am. People, by Samuel EliotMorison, 1965 ed., p. 312).

And so the American Constitution was ratified by nine (9) states on June 21, 1788 and by the lastfour states on May 29, 1790 (12 C.J. p. 679 footnote, 16 C.J.S. 27 — by the state conventions andnot by all thirteen (13) state legislatures as required by Article XIII of the Articles of Confederationand Perpetual Union aforequoted — and in spite of the fact that the Federal Constitution as originallyadopted suffers from two basic infirmities, namely, the absence of a bill of rights and of a provisionaffirming the power of judicial review.

The liberties of the American people were guaranteed by subsequent amendments to the FederalConstitution. The doctrine of judicial review has become part of American constitutional law only byvirtue of a judicial pronouncement by Chief Justice Marshall in the case of Marbury vs. Madison(1803, 1 Cranch 137).

Until this date, no challenge has been launched against the validity of the ratification of the AmericanConstitution, or against the legitimacy of the government organized and functioning thereunder.

In the 1946 case of Wheeler vs. Board of Trustees (37 SE 2nd 322, 326-330), which enunciated theprinciple that the validity of a new or revised Constitution does not depend on the method of itssubmission or ratification by the people, but on the fact of fiat or approval or all option oracquiescence by the people, which fact of ratification or adoption or acquiescence is all that is


89 of 207 6/20/2012 8:16 AM

essential, the Court cited precisely the case of the irregular revision and ratification by stateconventions of the Federal Constitution, thus:

"No case identical in its facts with the case now under consideration has beencalled to our attention, and we have found none. We think that the principle which weapply in the instant case was very clearly applied in the creation of the constitutionof the United States. The convention created by a resolution of Congress hadauthority 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 newconstitution. In this manner was the constitution of the United States submitted to thepeople and it became operative as the organic law of this nation when it 'had beenproperly adopted by the people.

"Pomeroy's Constitutional Law, p. 55, discussing the convention thatformulated the constitution of the United States, has this to say: 'The conventionproceeded to do, and did accomplish, what they were not authorized to do by aresolution of Congress that called them together. That resolution plainly contemplatedamendments to the articles of confederation, to be submitted to and passed by theCongress, and afterwards ratified by all the State legislatures, in the manner pointedout by the existing organic law. But the convention soon became convinced that anyamendments were powerless to effect a cure; that the disease was too deeply seated tobe reached by such tentative means. They saw that the system they were called toimprove must be totally abandoned, and that the national idea must be re-establishedat the center of their political society. It was objected by some members, that they hadno power, no authority, to construct a new government. They had no authority, if theirdecisions were to be final; and no authority whatever, under the articles ofconfederation, to adopt the course they did. But they knew that their labors were onlyto be suggestions; and that they as well as any private individuals, and any privateindividuals as well as they, had a right to propose a plan of government to the peoplefor their adoption. They were, in fact, a mere assemblage of private citizens, and theirwork had no more binding sanction than a constitution drafted by Mr. Hamilton in hisoffice, would have had. The people, by their expressed will, transformed thissuggestion, this proposal, into an organic law, and the people might have done the samewith a constitution submitted to them by a single citizen.'

xxx xxx xxx

". . . When the people adopt a completely revised or new Constitution, theframing or submission of the instrument is not what gives it binding force and effect.The fiat of the people, and only the that of the people, can breathe life into aconstitution.

xxx xxx xxx

". . . We do not hesitate to say that a court is never justified in placing byimplication a limitation upon the sovereign. This would be an authorized exercise ofsovereign power by the court. In State v. Swift, 69 Ind. 505, 519, the Indiana SupremeCourt said: 'The people of a State may form an original constitution, or abrogate an oldone and form a new one, at any time, without any political restriction except theconstitution of the United States; . . ." (37 SE 327-328, 329, italics supplied.)

In the 1903 case of Weston vs. Ryan, the Court held:


90 of 207 6/20/2012 8:16 AM

"It remains to be said that if we felt at liberty to pass upon this question, andwere 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 ofour 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, havingbeen acknowledged and accepted by the officers administering the state government,and by the people, and being in force without opposition, must be regarded as anexisting Constitution, irrespective of the question as to whether or not the conventionwhich promulgated it had authority so to do without submitting it to a vote of thepeople. In Brittle v. People, 2 Neb. 198, is a similar holding as to certain provisions ofthe Nebraska Constitution of 1886, which were added by the Legislature at therequirement of Congress, though never submitted to the people for their approval." (97NW 349-350; italics supplied).

Against the decision in the Wheeler case, supra, confirming the validity of the ratification andadoption of the American Constitution, in spite of the fact that such ratification was a clear violationof 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 FederalConstitution 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 therequirement that the Articles of Confederation and Perpetual Union can be amended only with theconsent of all thirteen (13) state legislatures. This opinion does not cite any decided case, but merelyrefers to the footnotes on the brief historical account of the United States Constitution on p. 679 ofVol. 12, CJS. Petitioners, on p. 18 of their main Notes, refer US to pp. 270-316 of the OxfordHistory of the American People, 1965 Ed. by Samuel Eliot Morison, who discusses the Articles ofConfederation and Perpetual Union in Chapter XVIII captioned "Revolutionary Constitution Making,1775 1781" (pp. 270-281). In Chapter XX on "The Creative Period in Politics, 1785-1788,"Professor Morison delineates the generals of the Federal Constitution, but does not refer to it evenimplicitly as a revolutionary constitution (pp. 297-316). However, the Federal Constitution may beconsidered revolutionary from the view point of McIver if the term revolution is understood in "itswider sense to embrace decisive changes in the character of government, even though they do notinvolve the violent overthrow of an established order, . . ." (R.M. MacIver, The Web of Government,1965 ed., p. 203).

It is rather ridiculous to refer to the American Constitution as a revolutionary constitution. TheArticles of Confederation and Perpetual Union that was in force from July 12, 1776 to 1788, forgedas 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 thegovernment of the Confederation had stabilized was not a product of a revolution. The FederalConstitution was a "creation of the brain and purpose of man" in an era of peace. It can only beconsidered revolutionary in the sense that it is a radical departure from its predecessor, the Articlesof Confederation and Perpetual Union.

It is equally absurd to affirm that the present Federal Constitution of the United States is not thesuccessor to the Articles of Confederation and Perpetual Union. The fallacy of the statement is soobvious that no further refutation is needed.


91 of 207 6/20/2012 8:16 AM

As heretofore stated, the issue as to the validity of Proclamation No. 1102 strikes at the validity andenforceability of the 1973 Constitution and of the government established and operating thereunder.Petitioners pray for a declaration that the 1973 Constitution is inoperative (L-36164). If ProclamationNo. 1102 is nullified, then there is no valid ratification of the 1973 Constitution and the inevitableconclusion is that the government organized and functioning thereunder is not a legitimategovernment.

That the issue of the legitimacy of a government is likewise political and not justiciable, had longbeen decided as early as the 1849 case of Luther vs. Borden (7 How. 1, 12 L.ed., 581), affirmed inthe 1900 case of Taylor vs. Beckham (178 U.S. 548, 44 L.ed. 1187) and re-enunciated in 1912 in thecase of Pacific States Telephone and Telegraph Company vs. Oregon (223 U.S. 118, 133-151, 56L.ed. 377-386). Because it reaffirmed the pronouncements in both Borden and Beckham cases, it issufficient for us to quote the decision in Pacific States Telephone and Telegraph Co., supra, pennedby Mr. Chief Justice White, who restated:

"In view of the importance of the subject, the apparent misapprehension on oneside and seeming misconception on the other, suggested by the argument as to the fullsignificance of the previous doctrine, we do not content ourselves with a mere citationof the cases, but state more at length than we otherwise would the issues and thedoctrine and the doctrine expounded in the leading and absolutely controlling case —Luther v. Borden, 7 How. 1, 12 L. ed 581.

xxx xxx xxx

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

"'For, if this court is authorized to enter upon this inquiry, as proposed by theplaintiff, and it should be decided that the charter government had no legal existenceduring the period of time above mentioned, — if it had been annulled by the adoptionof the opposing government, — then the laws passed by its legislature during that timewere nullities; its taxes wrongfully collected; its salaries and compensation to itsofficers illegally paid; its public accounts improperly settled; and the judgments andsentences of its courts in civil and criminal cases null and void, and the officers whocarried their decisions into operation answerable as trespassers, if not in some casesas criminals.'

xxx xxx xxx

" 'The fourth section of the fourth article of the Constitution of the UnitedStates shall guarantee to every state in the Union a republican form of government, andshall protect each of them against invasion; and on the application of the Legislature orof the Executive (when the legislature cannot be convened) against domestic violence.

" 'Under this article of the Constitution it rests with Congress to decide whatgovernment is the established one in a state. For, as the United State guarantee to eachstate a republican government, Congress must necessarily decide what government isestablished in the state before it can determine whether it is republican or not. Andwhen the senators and representatives of a state are admitted into the councils of theUnion, the authority of the government under which they are appointed, as well as itsrepublican character, is recognized by the proper constitutional authority. And itsdecision is binding on every other department of the government, and could not be


92 of 207 6/20/2012 8:16 AM

questioned in a judicial tribunal. It is true that the contest in this case did not last longenough to bring the matter to this issue; and as no senators or representatives wereelected 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 isplaced there, and not in the courts.'

xxx xxx xxx

". . . We do not stop to cite other cases which indirectly or incidentally refer tothe subject, but conclude by directing attention to the statement by the court, speakingthrough 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 concerningthe 14th Amendment, and coming to consider a proposition which was necessary to bedecided 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, ofthe Constitution, providing that 'the United States shall guarantee to every state in thisUnion a republican form of government, and shall protect each of them againstinvasion; and on application of the legislature, or the Executive (when the legislaturecannot be convened), against domestic violence.'

xxx xxx xxx

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

xxx xxx xxx

"As the issues presented, in their very essence, are, and have long since by thiscourt been, definitely determined to be political and governmental, and embracedwithin the scope of the powers conferred upon Congress, and not, therefore, within thereach of judicial power, it follows that the case presented is not within ourjurisdiction, and the writ of error must therefore be, and it is, dismissed for want ofjurisdiction. " (223 U.S. pp. 142-151; italics supplied).

Even a constitutional amendment that is only promulgated by the Constitutional Convention withoutauthority there for and without submitting the same to the people for ratification, becomes valid,when recognized, accepted and acted upon by the Chief of State an a other government functionariesas well as by the people. In the 1903 case of Taylor vs. Commonwealth (44 SE 754-755), the Courtruled:

"The sole ground urged in support of the contention that the Constitutionproclaimed in 1902 is invalid is that it was ordained and promulgated by theconvention without being submitted for ratification or rejection by the people of thecommonwealth.


93 of 207 6/20/2012 8:16 AM

"The Constitution of 1902 was ordained and proclaimed by a convention dulycalled by direct vote of the people of the state to revise and amend the Constitution of1869. The result of the work of that convention has been recognized, accepted, andacted upon as the only valid Constitution of the state by the Governor in swearingfidelity to it and proclaiming it, as directed thereby; by the Legislature in its formalofficial act adopting a joint resolution, July 15, 1902, recognizing the Constitutionordained by the convention which assembled in the city of Richmond on the 12th dayof June, 1901, as the Constitution of Virginia; by the individual oaths of its members tosupport it, and by its having been engaged for nearly a year in legislating under it andputting its provisions into operation; but the judiciary in taking the oath prescribedthereby to support it, and by enforcing its provisions; and by the people in theirprimary capacity by peacefully accepting it and acquiescing in it, by registering asvoters under it to the extent of thousands throughout the state, and by voting, under itsprovisions, at a general election for their representatives in the Congress of the UnitedStates." (p. 755).

The Court in the Taylor case above-mentioned further said:

"While constitutional procedure for adoption or proposal to amend theconstitution must be duly followed, without omitting any requisite steps, courts shoulduphold amendment, unless satisfied that the constitution was violated in submitting theproposal . . . Substance more than form must be regarded in considering whether thecomplete constitutional system or submitting the proposal to amend the constitutionwas 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 isadopted or in its advertisement, act, yet if followed, unobjected to, by approval of theelectors, it becomes part of the Constitution. Legal complaints to the submission maybe made prior to taking the vote but, if once sanctioned, the amendment is embodiedtherein and cannot be attacked, either directly or collaterally, because of any mistakeantecedent thereto. Even though it be submitted at an improper time, it is effective forall 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 uponratification or adoption or acquiescence by the people. Thus, in the 1905 case of Ex parteBirmingham and A.R. Company (42 SO pp. 118 & 123), the Alabama Supreme Court upheld thisprinciple and stated that: "The authorities are almost uniform that this ratification of an unauthorizedact 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 areregistered 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, italics supplied).

In the 1956 case of Thomson vs. Peoples State Bank (75 NW 2nd 370, 375), the Supreme Court ofWisconsin ruled that "irregularity in the procedure for the submission of the proposed constitutionalamendment will not defeat the ratification by the people."


94 of 207 6/20/2012 8:16 AM

Again, in the 1958 case of Swaim vs. Tuscaloosa County (103 SO 2nd 769), the Alabama SupremeCourt pronounced that "the irregularity in failing to publish the proposed constitutional amendmentonce in each of the 4 calendar weeks next preceding the calendar week in which the election washeld or once in each of the 7-day periods immediately preceding the day of the election as requiredby the Constitution, did not invalidate the amendment which was ratified by the people."

The same principle was reiterated in 1961 by the Mississippi Supreme Court in Barnes, et al. v.Ladner (131) SO 2nd 458, 462), where the admitted irregularities or illegalities committed in theprocedure for submission of the proposed constitutional amendment to the people for ratificationconsisted of: "(a) the alleged failure of the county election commissioners of the several counties toprovide a sufficient. number of ballot boxes 'secured by good and substantial locks,' as provided bySection 3249, Code of 1942, Rec., to be used in the holding of the special election on theconstitutional amendment, and (b) the alleged failure of the State Election Commissioners to complywith the requirements of Code Sections 3204 and 3205 in the appointment of election commissionersin each of the 82 counties. The irregularities complained of, even if proved, were not suchirregularities as would have invalidated the election. " (Italics supplied; see also Sylvester vs.Tindall, 8 SO 2nd 892; 154 Fla. 663).

Even prior to the election in November, 1970 of delegates to the Constitutional Convention andduring the deliberations of the Constitutional Convention from June 1, 1971 until martial law wasproclaimed on Sept. 21, 1972, the salient reforms contained in the 1973 Constitution which have longbeen desired by the people, had been thoroughly discussed in the various committees of theConstitutional Convention, on the floor of the convention itself, in civic forums and in all the media ofinformation. 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 theConstitution.

Petitioners cannot safely state that during martial law the majority of the people cannot freely votefor these reforms and are not complying with the implementing decrees promulgated by thePresident.

Free election is not inevitably incompatible with martial law. We had free elections in 1951 and 1971when the opposition won six out of eight senatorial seats despite the suspension of the privileges ofthe writ of habeas corpus (see Lansang vs. Garcia, et al., Dec. 14, 1971, 42 SCRA 448), whichsuspension implies constraint on individual freedom as the proclamation of martial law. In bothsituations, there is no total blackout of human rights and civil liberties.

All the local governments, dominated either by Nacionalistas or Liberals, as well as officials of theLegislative and Executive branches of the government elected and/or appointed under the I935Constitution have either recognized or are now functioning under the 1973 Constitution, aside fromthe 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 Speakerand the Speaker Pro Tempore as well as about eleven (11) Congressmen who belong to the LiberalParty and fifteen (15) of a total of twenty-four (24) senators including Liberal senators Edgar U.Ilarde and John Osmeña opted to serve in the Interim Assembly, according to the certification of theCommission on Elections dated February 19, 1973 (Annex Rejoinder-3 to Consolidated Rejoinder ofpetitioners 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 andexercising their powers under the 1973 Constitution, including the lower courts. The civil courts,


95 of 207 6/20/2012 8:16 AM

military tribunals and quasi-judicial bodies created by presidential decrees have decided somecriminal, civil and administrative cases pursuant to such decrees. The foreign ambassadors who wereaccredited to the Republic of the Philippines before martial law continue to serve as such in ourcountry; while two new ambassadors have been accepted by the Philippines after the ratification ofthe 1973 Constitution on January 17, 1973. Copies of the 1973 Constitution had been furnished theUnited Nations Organization and practically all the other countries with which the Philippines hasdiplomatic relations. No adverse reaction from the United Nation or from the foreign states has beenmanifested. On the contrary, our permanent delegate to the United Nations Organization and ourdiplomatic representatives abroad appointed before martial law continue to remain in their posts andare performing their functions as such under the 1973 Constitution.

Even the Commission on Elections is now implementing the provisions of the 1973 Constitution byrequiring all election registrars to register 18-year olds and above whether literates or not, who arequalified electors under the 1973 Constitution (see pars. 1-A(c), (d), & (e) of Annex A to Notes ofrespondents Puyat and Roy in L 36165).

In brief, it cannot be said that the people are ignoring the 1973 Constitution and the governmentwhich is enforcing the same for over 10 weeks now. With the petitioners herein, secessionists, rebelsand subversives as the only possible exceptions, the rest of the citizenry are complying with thedecrees, 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, wereto formulate an instrument and declare it the constitution, it would undoubtedly be theduty of the courts to declare its work a nullity. This would be revolution, and this thecourts of the existing government must resist until they are overturned by power, and anew government established. The convention, however, was the offspring of law. Theinstrument which we are asked to declare invalid as a constitution has been made andpromulgated according to the forms of law. It is a matter of current history that boththe executive and legislative branches of the government have recognized its validityas a constitution, and are now daily doing so. Is the question, therefore, one of ajudicial characters It is our undoubted duty, if a statute be unconstitutional, to sodeclare it; also, if a provision of the state constitution be in conflict with the federalconstitution, to hold the former invalid. But this is a very different case. It may besaid, however, that, for every violation of or non-compliance with the law, thereshould 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 other departments of the government is not anabsolute one, but merely to determine whether they have kept within constitutionallimits, it is a duty, rather than a power. The judiciary cannot compel a co-equaldepartment 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 hasconformed to the organic law. While the judiciary should protect the rights of thepeople with great care and jealousy, because this is its duty, and also because, intimes of great popular excitement, it is usually their last resort, yet it should at thesame time be careful to overstep the proper bounds of its power, as being perhapsequally dangerous; and especially where such momentous results might follow aswould be likely in this instance, if the power of the judiciary permitted, and its dutyrequired, the overthrow of the work of the convention.


96 of 207 6/20/2012 8:16 AM

"After the American Revolution the state of Rhode Island retained its colonialcharacter 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 anew one, — to be submitted to a popular vote. The convention framed one, submittedit to a vote, and declared it adopted. Elections were held for state officers, whoproceeded to organize a new government. The charter government did not acquiesce inthese proceedings, and finally declared the state under martial law. It called anotherconvention, which in 1843 formed a new constitution. Whether the chartergovernment, or the one established by the voluntary convention, was the legitimateone, 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 bethe duty of the judiciary to follow its decision. The Supreme Court of the UnitedStates, in Luther v. Borden, 7 How. 1, while not expressly deciding the principle, as itheld the federal court, yet in the argument approves it, and in substance says thatwhere the political department has decided such a matter the judiciary should abideby it.

"Let us illustrate the difficulty of a court deciding the question: Suppose thiscourt were to hold that the convention, when it reassembled, had no power to makeany material amendment, and that such as were made are void by reason of the peoplehaving theretofore approved the instrument Then, next, this court must determine whatamendments 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 mightdiffer as to what amendments are material, and the result would be confusion andanarchy. One judge might say that all the amendments, material and immaterial, werevoid; another, that the convention had then the implied power to correct palpableerrors, and then the Court might differ as to what amendments are material. If theinstrument as ratified by the people could not be corrected or altered at all or if thecourt must determine what changes were material, then the instrument, as passed uponby the people or as fixed by the court could be lacking a promulgation by theconvention; and, if this be essential, then the question would arise, what constitutionare we now living under, and what is the organic law of the state? A suggestion of thesematters shows what endless confusion and harm to the state might and likely wouldarise. If, through error of opinion, the convention exceeded its powers, and the peopleare dissatisfied, they have ample remedy, without the judiciary being asked tooverstep the proper limits of its power. The instrument provides for amendment andchange. If a wrong has been done, it can, and the proper way in which it should beremedied, is by the people acting as a body politic. It is not a question of whethermerely an amendment to a constitution, made without calling a convention, has beenadopted, 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, willdeclare the amendment invalid. Koehler v. Hill, 60 Iowa, 54.3,14 N.W. Rep. 738, and15 N.W. Rep. 609; State v. Tuffy, 19 Nev. .391, 12 Pac. Rep. 835. But it is a casewhere a new constitution has been formed and promulgated according to the forms oflaw. Great interests have already arisen under it; important rights exist by virtue ofit; persons have been convicted of the highest crimes known to the law, according toits 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 validconstitution, and now the organic law of our commonwealth.


97 of 207 6/20/2012 8:16 AM

"We need not consider the validity of the amendments made after theconvention reassembled. If the making of them was in excess of its powers, yet, as theentire instrument has been recognized as valid in the manner suggested, it would beequally 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 todeclare the instrument of a portion invalid, and bring confusion and anarchy uponstate." (italics supplied).

If this Court inquires into the validity of Proclamation No. 1102 and consequently of the adoption ofthe 1973 Constitution, it would be exercising a veto power on the act of the sovereign people, ofwhom this Court is merely an agent, which to say the least, would be anomalous. This Court cannotdictate to our principal, the sovereign people, as to how the approval of the new Constitution shouldbe 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 thisrespect, WE cannot presume to know better than the incumbent Chief Executive, who, unlike themembers of this Court, only last January 8, 1973, We affirmed in Osmeña vs. Marcos (Pres. ElectionContest No. 3, Jan. 8, 1973), was re-elected by the vote of over 5 million electors in 1969 foranother term of four years until noon of December 30, 1973 under the 1935 Constitution. ThisCourt, not having a similar mandate by direct fiat from the sovereign people, to execute the law andadminister the affairs of government, must restrain its enthusiasm to sally forth into the domain ofpolitical 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 specificprocedure for popular ratification of their organic law. That would be incompatible with theirsovereign character of which We are reminded by Section 1, of Article II of both the 1935 and the1973 Constitutions.

The Opinion of Judge Thomas McIntire Cooley that the sovereign people cannot violate theprocedure for ratification which they themselves define in their Constitution, cannot apply to aunitary state like the Republic of the Philippines. His opinion expressed in 1868 may apply to aFederal State like the United States, in order to secure and preserve the existence of the FederalRepublic 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 Federalgovernment presently granted by the American Constitution. This dangerous possibility does notobtain 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 onthe matter.

Even if conclusiveness is to be denied to the truth of the declaration by the President in ProclamationNo. 1102 that the people through their Citizens' Assemblies had overwhelmingly approved the newConstitution, due regard to a separate, coordinate and co-equal branch of the government demandsadherence to the presumption of correctness of the President's declaration. Such presumption isaccorded 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 ExecutiveBranch. WE cannot reverse the rule on presumptions, without being presumptuous, in the face of thecertifications by the Office of the Secretary of the Department of Local Government and Community


98 of 207 6/20/2012 8:16 AM

Development. (Annexes 1, to 1-E, Annexes 2 to 2-O to the compliance with manifestation filed bythe Solicitor General on behalf of the respondents public officers dated March 7,1973). There isnothing in the record 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 tothe respondents. Under the rules on pleadings, the petitioners have the duty to demonstrate by clearand convincing evidence their claim that the people did not ratify through the Citizens' Assembliesnor adopt by acquiescence the 1973 Constitution. And petitioners have failed to do so.

No member of this Tribunal is justified in resolving the issues posed by the cases at bar on the basisof reports relayed to him from private sources which could be biased and hearsay, aside from thefact that such reports are not contained in the record. Proclamation No. 1102 is not just an ordinaryact of the Chief Executive. It is a well-nigh solemn declaration which announces the highest act ofthe 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 theCitizens' Assemblies, despite their admission that the term "Filipino people" in the preamble as wellas "people" in Sections 1 and 5 of Article II of the 1935 Constitution and in Section 1(3) of Article IIIof the Bill of Rights includes all Filipino citizens of all ages, of both sexes, whether literate orilliterate, whether peaceful citizens, rebels, secessionists, convicts or ex-convicts. Without admittingthat ex-convicts voted in the referendum, about which no proof was even offered, these sectors ofour citizenry, whom petitioners seem to regard with contempt or derision and whom petitionerswould deny their sovereign right to pass upon the basic Charter that shall govern their lives and thelives of their progenies, are entitled as much as the educated, the law abiding, and those who are 21years 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 amongus. 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. Inthe ultimate analysis, the inclusion of those from 15 years up to below 21 years old, the ex-convictsand the ignorant, is more democratic as it broadens the base of democracy and therefore morefaithful 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 bannedfrom voting. Only those who had been sentenced to at least one year imprisonment aredisenfranchised but they recover their right of suffrage upon expiration of ten years after service ofsentence (Sec. 102, 1971 Rev. Elec. Code). Furthermore, ex-convicts and imbeciles constitute a verynegligible 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 resultsof the plebiscite or the voting the Citizens' Assemblies. Petitioners deny the accuracy or correctnessof Proclamation No. 1102 that the 1973 Constitution was ratified by the overwhelming vote of closeto 15 million citizens because there was no official certification as to the results of the same from theDepartment of Local Governments. But there was such certification as per Annexes 1 to 1-A to theNotes submitted by the Solicitor General as counsel for respondents public officers. This shouldsuffice to dispose of this point. Even in the absence of such a certification, in much the same waythat in passing laws, Congress or the legislative body is presumed to be in possession of the factsupon which such laws are predicated (Justice Fernando, The Power of Judicial Review, 1967 Ed.,


99 of 207 6/20/2012 8:16 AM

pp. 112-113, 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 thefacts upon which Proclamation No. 1102 was based. This presumption is further strengthened by thefact that the Department of Local Governments, the Department of National Defense and thePhilippine Constabulary as well as the Bureau of Posts are all under the President, which offices, ashis alter ego, are presumptively acting for and in behalf of the President and their acts are valid untildisapproved or reprobated by the President (Planas vs. Gil, 67 Phil. 62, Villena vs. Secretary ofInterior, 67 Phil. 451). To deny the truth of the proclamation of the President as to the overwhelmingmajority vote in the Citizens' Assemblies in favor of the new Constitution, is to charge the Presidentwith falsification, which is a most grievous accusation. Under the rules of pleadings and evidence, thepetitioners have the burden of proof by preponderance of evidence in civil cases and by proofbeyond reasonable doubt in criminal prosecutions, where the accused is always presumed to beinnocent. Must this constitutional right be reversed simply because the petitioners all assert thecontrary? Is the rule of law they pretend to invoke only valid as long as it favors them?

The presumption of regularity in the performance of official functions is accorded by the law andjurisprudence to acts of public officers whose category in the official hierarchy is very much lowerthan that of the Chief of State. What reason is there to withhold such a presumption in favor of thePresident? 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 discriminationagainst the President in matters of this nature? Unsupported as their word is by any credible andcompetent evidence under the rules of evidence, must the word of the petitioners prevail over that ofthe Chief Executive, because they happen to be former senators and delegates to the ConstitutionalConvention? More than any of the petitioners herein in all these cases, the incumbent Presidentrealizes that he risks the wrath of his people being visited upon him and the adverse or hostile verdictof history; because of the restrictions on the civil liberties of his people, inevitable concomitants ofmartial law, which necessarily entail some degree of sacrifice on the part of the citizenry. Until thecontrary is established or demonstrated, herein petitioners should grant that the Chief Executive ismotivated by what is good for the security and stability of the country, for the progress and happinessof the people. All the petitioners herein cannot stand on the proposition that the rights under the 1935Constitution are absolute and invulnerable to limitations that may be needed for the purpose ofbringing about the reforms for which the petitioners pretend to be clamoring for and in behalf of thepeople. The five (5) petitioners in L-36165 and four (4) of the seven (7) petitioners in L-36164 wereall participants in the political drama of this country since 1946. They are witness to the frustrationsof well-meaning Presidents who wanted to effect the reforms, especially for the benefit of thelandless and the laboring class — how politics and political bargaining had stymied the effectuationof such reforms thru legislation. The eight (8) petitioners in L-36164 and L-36165 may not haveparticipated in the systematic blocking of the desired reforms in Congress or outside of it; but thequestion 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 theCommonwealth government in 1935 and for the last twenty seven (27) years since the inaugurationof the Republic on July 4, 1946, no tangible substantial reform had been effected, funded andseriously implemented, despite the violent uprisings in the thirties, and from 1946 to 1952, and theviolent demonstrations of recent memory. Congress and the oligarchs acted like ostriches, "buryingtheir heads in timeless sand." Now the hopes for the long-awaited reforms to be effected within ayear or two are brighter. It would seem therefore to be the duty of everyone including hereinpetitioners to give the present leadership the opportunity to institute and carry out the needed reformsas provided for in the new or 1973 Constitution and thru the means prescribed in that same


100 of 207 6/20/2012 8:16 AM

Constitution.

As stated in Wheeler vs. Board of Trustees, "a court is never justified in placing by implication alimitation upon the sovereign."

This Court in the Gonzales and Tolentino cases transcended its proper sphere and encroached uponthe province exclusively reserved to and by the sovereign people. This Court did not pay heed to theprinciple that the courts are not the fountain spring of all remedies for all wrongs. WE cannotpresume that we alone can speak with wisdom as against the judgment of the people on the basicinstrument which affects their very lives. WE cannot determine what is good for the people or whatought to be their fundamental law. WE can only exercise the power delegated to Us by the sovereignpeople, to apply or interpret the Constitution and the laws for the benefit of the people, not againstthem nor to prejudice them. WE cannot perform an act inimical to the interest of Our principal, whoat any time may directly exercise their sovereign power of ratifying a new Constitution in the mannerconvenient to them

It is pertinent to ask whether the present Supreme Court can function under the 1935 Constitutionwithout 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 ofRhode Island (although only on paper as it had no established organ except Dorr who representedhimself to be its head; in the cases at bar there is no other government distinct from and maintaininga 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 fordomestic purposes, let alone a rebel government engaged in international negotiations. As heretoforestated, both the executive branch and the legislative branch established under the 1935 Constitutionhad 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 theleadership of the Republic of the Philippines. Can this Supreme Court legally exist without being partof any government?

Brilliant counsel for petitioners in L-36165 has been quite extravagant in his appraisal of Chief JusticeRoger Brooke Taney whom he calls the "hero of the American Bar," because during the Americancivil war he apparently had the courage to nullify the proclamation of President Lincoln suspendingthe 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 theEncyclopedia Brit., 1966 ed. (pp. 778-779, 1969 ed., pp. 654-657), briefly recounts that he was bornin 1777 in Calvert County, Maryland, of parents who were landed aristocrats as well as slaveowners. 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 ofMaryland. He also was a member of the Maryland state legislature for several terms. He was aleader of the Federalist Party, which disintegrated after the war of 1812, compelling him to join theDemocratic Party of Andrew Jackson, also a slave owner and landed aristocrat, who later appointedhim first as Attorney General of the United States, then Secretary of the Treasury and in 1836 ChiefJustice of the United States Supreme Court to succeed Chief Justice John Marshall, in which positionhe continued for 28 years until he died on October 21, 1864. His death "went largely unnoticed andunregretted." Because he himself was a slave owner and a landed aristocrat, Chief Justice Taneysympathized with the Southern States and, even while Chief Justice, hoped that the Southern States


101 of 207 6/20/2012 8:16 AM

would be allowed to secede peacefully from the Union. That he had no sympathy for the Negroeswas revealed by his decision in Dred Scott vs. Sandford (19 How. 398 [1857]) where he pronouncedthat the American Negro is not entitled to the rights of an American citizen and that his status as aslave is determined by his returning to a slave state. Once can therefore discern his hostility towardsPresident Lincoln when he decided Ex parte Merryman, which animosity to say the least does notbefit a judicial mind. Such a man could hardly be spoken of as a hero of the American Bar, least ofall of the American nation. The choice of heroes should not be expressed indiscriminately just toembellish one's rhetoric.

Distinguished counsel in L-36165 appears to have committed another historical error, which may bedue to his rhetorical in the Encyclopedia Britannica (Vol. 9, 1969 ed., pp. 508-509) to this effect. Onthe contrary, Encyclopedia Britannica (Vol. 17, Encyclopedia Brit., 1966 & 1969 eds., 732-733),refers to Marshal Henri Philippe Petain as the genuine hero or "Saviour of Verdun"; because he heldVerdun 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 ofMarshal Petain would not relish the error. And neither would the members of the clan of MarshalFoch acknowledge the undeserved accolade, although Marshal Foch has a distinct place in history onhis own merits. The foregoing clarification is offered in the interest of true scholarship and historicalaccuracy, so that the historians, researchers and students may not be led astray or be confused byesteemed counsel's eloquence and mastery of the spoken and written word as well as by hiseminence as law professor, author of law books, political leader, and member of the newly integratedPhilippine Bar.

It is quite intriguing why the eminent counsel and co-petitioner in L-36164 did not address likewisehis challenge to the five (5) senators who are petitioners in L-36165 to also act as "heroes andidealists," to defy the President by holding sessions by themselves alone in a hotel or in their houses ifthey can muster a quorum or by causing the arrest of other senators to secure a quorum andthereafter 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 1973Constitution 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 havea 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 mustfirst demonstrate his own courage. Surely, they will not affirm that the mere filing of their petition inL-36165 already made them "heroes and idealists." The challenge likewise seems to insinuate thatthe members of this Court who disagree with petitioners' views are materialistic cowards ormercenary 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 andliberal thinkers that they are, do not recognize the sincerity of those who entertain opinions that clashwith their own. Such an attitude does not sit well with the dictum that "We can differ without beingdifficult; we can disagree without being disagreeable," which distinguished counsel in L 36165 iswont 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 BEDISMISSED.


102 of 207 6/20/2012 8:16 AM

MAKASIAR, J.:

Pursuant to Our reservation, We now discuss the other issues raised by the petitioners.

IIEVEN IF ISSUE IS JUSTICIABLE, PEOPLE'S RATIFICATION, ADOPTION ORACQUIESCENCE CREATES STRONG PRESUMPTION OF VALIDITY OF 1973CONSTITUTION.

As intimated in the aforecited cases, even the courts, which affirm the proposition that the questionas to whether a constitutional amendment or the revised or new Constitution has been validlysubmitted to the people for ratification in accordance with the procedure prescribed by the existingConstitution, is a justiciable question, accord all the presumption of validity to the constitutionalamendment or the revised or new Constitution after the government officials or the people haveadopted or ratified or acquiesced in the new Constitution or amendment, although there was anillegal or irregular or no submission at all to the people. (Collier vs. Gray, 4th Dec. Dig. 935[1934]; Hammond vs. Clark, 71 SE 479, 482-483; People vs. Sours, 31 Colo. 369, 74 Pac. 167, 102Am. St. Rep. 34; Thompson vs. Winneth, 78 Neb. 379, 110 NW 1113, 10 L.R.A. [N.S.] 149; Statevs. 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, 70Mont. 355, 225 P 1007, 1009). As late as 1971, the courts stressed that the constitutionalamendment or the new Constitution should not be condemned "unless in our judgment its nullity ismanifest beyond reasonable doubt" (1971 case of Moore vs. Shanahan, 486 Pac. 2d 506, 207 Karl.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 ofconstitutionality must persist in the absence of factual foundation of record to overthrow suchpresumption (Ermita-Malate Hotel, etc. vs. City Mayor, L-24698, July 31, 1967, 20 SCRA 849).

IIICONSTITUTIONAL CONVENTION — CO-EQUAL WITH AND INDEPENDENT OFCONGRESS, EXECUTIVE AND JUDICIARY.

The Constitutional Convention is co-ordinate and co-equal with, as well as independent of, the threegrand departments of the Government, namely, the legislative, the executive and the judicial. As afourth separate and distinct branch, to emphasize its independence, the Convention cannot bedictated to by either of the other three departments as to the content as well as form of the Charterthat it proposes. It enjoys the same immunity from interference or supervision by any of the aforesaidbranches of the Government in its proceedings, including the printing of its own journals (Tañada andFernando, 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 ofmaintaining the same unimpaired and in order that its work will not be frustrated, the Convention hasthe power to fix the date for the plebiscite and to provide funds therefor. To deny the Conventionsuch prerogative, would leave it at the tender mercy of both legislative and executive branches of theGovernment. An unsympathetic Congress would not be disposed to submit the proposed Constitutiondrafted by the Constitutional Convention to the people for ratification, much less appropriate thenecessary funds therefor. That could have been the fate of the 1973 Constitution, because the sameabolished the Senate by creating a unicameral National Assembly to be presided by a Prime Minister


103 of 207 6/20/2012 8:16 AM

who wields both legislative and executive powers and is the actual Chief Executive, for the Presidentcontemplated in the new Constitution exercises primarily ceremonial prerogatives. The newConstitution likewise shortened abruptly the terms of the members of the present Congress (whoseterms end on December 31, 1913, 1975 and 1977) which provides that the new Constitution shalltake effect immediately upon its ratification (Sec. 16, Article XVII, 1973 Constitution). The fact thatSection 2 of the same Article XVII secures to the members of Congress membership in the interimNational Assembly as long as they opt to serve therein within thirty (30) days after the ratification ofthe proposed Constitution, affords them little comfort; because the convening of the interim NationalAssembly 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 1935Constitution, would not be disposed to call a plebiscite and appropriate funds therefor to enable thepeople to pass upon the 1973 Constitution, ratification of which means their elimination from thepolitical scene. They will not provide the means for their own liquidation.

Because the Constitutional Convention, by necessary implication as it is indispensable to itsindependence and effectiveness, possesses the power to call a plebiscite and to appropriate funds forthe purpose, it inescapably must have the power to delegate the same to the President, who, in theestimation of the Convention can better determine the appropriate time for such a referendum as wellas the amount necessary to effect the same, for which reason the Convention thru Resolution No. 29approved 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 theproposed new Constitution on such appropriate date as he shall determine and providing for thenecessary funds therefor, . . .," after stating in its "whereas" clauses that the 1971 ConstitutionalConvention is expected to complete its work by the end of November, 1972, that the urgency ofinstituting reforms rendered imperative the early approval of the new Constitution, and that thenational and local leaders desire that there be continuity in the immediate transition from the old tothe new Constitution.

If Congress can legally delegate to the Chief Executive or his subaltern the power to promulgatesubordinate rules and regulations to implement the law, this authority to delegate implementing rulesshould 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 appropriatefunds therefor by the Constitutional Convention thru its Resolution No. 29, the organization of theCitizens' Assemblies for consultation on national issues, is comprehended within the ordinance-making power of the President under Section 63 of the Revised Administrative Code, whichexpressly confers on the Chief Executive the power to promulgate administrative acts andcommands touching on the organization or mode of operation of the government or re-arranging orre-adjusting any district, division or part of the Philippines "or disposing of issues of general concern. . ." (Italics 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 besuccessfully challenged.

The employment by the President of these Citizens' Assemblies for consultation on the 1973Constitution or on whether there was further need of a plebiscite thereon, — both issues of nationalconcern — is still within the delegated authority reposed in him by the Constitutional Convention asaforesaid.


104 of 207 6/20/2012 8:16 AM

It should be noted that Resolution No. 29, which superseded Resolution No. 5843, does notprescribe that the plebiscite must be conducted by the Commission on Elections in accordance withthe provisions of the 1971 Revised Election Code. If that were the intention of the ConstitutionalConvention in making the delegation, it could have easily included the necessary phrase for thepurpose, some such phrase like "to call a plebiscite to be supervised by the Commission on Electionsin accordance with the provisions of the 1971 Revised Election Code (or with existing laws)." Thatthe Constitutional Convention omitted such phrase, can only mean that it left to the President thedetermination of the manner by which the plebiscite should be conducted, who shall supervise theplebiscite, and who can participate in the plebiscite. The fact that said Resolution No. 29 expresslystates "that copies of this resolution as approved in plenary session be transmitted to the President ofthe Philippines and the Commission on Elections for implementation," did not in effect designate theCommission on Elections as supervisor of the plebiscite. The copies of said resolution that weretransmitted to the Commission on Elections at best serve merely to notify the Commission onElections about said resolution, but not to direct said body to supervise the plebiscite. The calling aswell as conduct of the plebiscite was left to the discretion of the President, who, because he is inpossession of all the facts funnelled to him by his intelligence services, was in the superior position todecide when the plebiscite shall be held, how it shall be conducted and who shall oversee it.

It should be noted that in approving said Resolution No. 29, the Constitutional Convention itselfrecognized the validity of, or validated Presidential Proclamation No. 1081 placing the entire countryunder martial law by resolving to "propose to President Ferdinand E. Marcos that a decree be issuedcalling a plebiscite . . ." The use of the term "decree" is significant for the basic orders regulating theconduct of all inhabitants are issued in that form and nomenclature by the President as theCommander in Chief and enforcer of martial law. Consequently, the issuance by the President ofPresidential Decree No. 73 on December 1, 1972 setting the plebiscite on January 15, 1973 andappropriating funds therefor pursuant to said Resolution No. 29, is a valid exercise of such delegatedauthority.

Such delegation, unlike the delegation by Congress of the rule- making power to the Chief Executiveor to any of his subalterns, does not need sufficient standards to circumscribe the exercise of thepower delegated, and is beyond the competence of this Court to nullify. But even if adequate criteriashould be required, the same are contained in the "Whereas" clauses of the ConstitutionalConvention Resolution No. 29, thus:

"WHEREAS, the 1971 Constitutional Convention is expected to complete itswork of drafting a proposed new Constitution for the Republic by the end ofNovember, 1972;

"WHEREAS, in view of the urgency of instituting reforms, the early approvalof the New Constitution has become imperative;

"WHEREAS, it is the desire of the national and local leaders that there becontinuity 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 inthe Plebiscite Cases, stated:

". . . Once its work of drafting has been completed, it could itself direct the submission to thepeople for ratification as contemplated in Article XV of the Constitution. Here it did not do


105 of 207 6/20/2012 8:16 AM

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 couldresult in the work of the Convention being rendered nugatory. The view has beenrepeatedly expressed in many American state court decisions that to avoid such undesirableconsequence, the task of submission becomes ministerial, with the political branches devoidof any discretion as to the holding of an election for that purpose. Nor is the appropriation byhim of the amount necessary to be considered as offensive to the Constitution. If it weredone by him in his capacity as President, such an objection would indeed have beenformidable, not to say insurmountable. If the appropriation were made in his capacity asagent of the Convention to assure that there be submission to the people, then such anargument loses force. The Convention itself could have done so. It is understandable why itshould be thus. If it were otherwise, then a legislative body, the appropriating arm of thegovernment, could conceivably make use of such authority to compel the Convention tosubmit to its wishes, on pain of being rendered financially distraught. The President then, ifperforming 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., italics supplied).

IV

VAGUENESS OR AMBIGUITY DOES NOT INVALIDATE 1973 CONSTITUTION

(1)Petitions challenge the 1973 draft as vague and incomplete, and alluded to their arguments duringthe hearings on December 18 and 19, 1972 on the Plebiscite Cases. But the inclusion of questionableor ambiguous provisions does not affect the validity of the ratification or adoption of the 1973Constitution 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 workfrom imperfect man. The result of the deliberations of all collective bodies must necessarily be acompound, as well of the errors and prejudices as of the good sense and wisdom, of the individualsof whom they are composed. The compacts which are to embrace thirteen distinct States in acommon bond of amity and union, must necessarily be a compromise of as many dissimilar interestsand inclinations. How can perfection spring from such materials?" (The Federalist, Modern LibraryEd., pp. xx-xxi).

(2)The 1973 Constitution is likewise impugned on the ground that it contains provisions which areultra 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 toParliamentary and including such provisions as Section 3 of Article IV, Section 15 of Article XIV andSections 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 effectsagainst unreasonable searches and seizures of whatever nature and for any purpose shall notbe violated, and no search warrant or warrant of arrest shall issue except upon probable caseto be determined by the judge, or such other responsible officer as may be authorized bylaw, after examination under oath or affirmation of the complainant and the witnesses hemay produce, and particularly describing the place to be searched, and the persons or thingsto be seized."


106 of 207 6/20/2012 8:16 AM

Article XIV —

"Sec. 15.Any provision of paragraph one, Section fourteen, Article Eight and of this Articlenotwithstanding, the Prime Minister may enter into international treaties or agreements asthe national welfare and interest may require." (Without the consent of the NationalAssembly.)

Article XVII —

"Sec. 3(2)All proclamations, orders, decrees, instructions, and acts promulgated, issued, ordone 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 thisConstitution, unless modified, revoked, or superseded by subsequent proclamations, orders,decrees, instructions, or other acts of the incumbent President, or unless expressly andexplicitly 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 orcontrolled corporations, are hereby recognized as legal, valid and binding. When the nationalinterest so requires, the incumbent President of the Philippines or the interim Prime Ministermay review all -contracts, concessions, permits, or other forms of privileges for theexploration, development, exploitation, or utilization of natural resources entered into,granted, issued or acquired before the ratification of this Constitution."

In the Plebiscite Cases (L-35925, L-35929, L-35940, L-35942, L-35948, L-35953, L-35961,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 provisionsof the proposed Constitution, it is my considered view that the Convention waslegally deem fit to propose — save perhaps what is or may be insistent with what isnow known, particularly in international law, as Jus Cogens — not only because theConvention exercised sovereign powers delegated thereto by the people — althoughinsofar only as the determination of the proposals to be made and formulated by saidbody is concerned — but also, because said proposals cannot be valid as part of ourFundamental Law unless and until 'approved by the majority of the votes cast at anelection which' said proposals 'are submitted to the people for their ratification,' asprovided in Section 1 of Article XV of the 1935 Constitution." (Pp. 11-18, Decisionin 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 andpropose 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 sovereignpeople, 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 inthe Del Rosario case, supra, and added: ". . . it seems to me a sufficient answer that once convened,


107 of 207 6/20/2012 8:16 AM

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 vs. Stoneman, 6 P 734, 66 Cal. 632[1885]; MacMillan v. Blattner, 25 NW 245, 67 Iowa 287 [1895]; State v. Powell, 27 SO 297, 77Miss. 543 [1900]; Hammond v. Clark, 71 SE 479, 136 Ga. 313 [1911]; Hamilton v. Vaughan, 179NW 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, 262Mich. 338 [1933]).

Mr. Justice Barredo, in his concurring opinion in said Plebiscite Cases, expressed the view "thatwhen the people elected the delegates to the Convention and when the delegates themselves werecampaigning, such limitation of the scope of their function and objective was not in their minds"

V1973 CONSTITUTION DULY ADOPTED AND

PROMULGATED.

Petitioners next claim that the 1971 Constitutional Convention adjourned on November 30,1972without officially promulgating the said Constitution in Filipino as required by Sections 3(1) of ArticleXV on General Provisions of the 1973 Constitution. This claim is without merit because their veryAnnex "M" is the Filipino version of the 1973 Constitution, and, like the English version, contains thecertification by President Diosdado Macapagal of the Constitutional Convention, duly attested by itsSecretary, that the proposed Constitution was approved on second reading on the 27th day ofNovember, 1972 and on third reading in the Convention's 291st plenary session on November29,1972 and accordingly signed on November 30, 1972 by the delegates whose signatures arethereunder affixed. It should be recalled that Constitutional Convention President DiosdadoMacapagal was, as President of the Republic from 1962 to 1965, then the titular head of the LiberalParty to which four (4) of the petitioners in L 36165 including their counsel, former Senator JovitoSalonga, belong. Are they repudiating and disowning their former party leader and benefactor?

VIARTICLE XV OF 1935 CONSTITUTION DOES NOT PRESCRIBE ANY PROCEDURE FORRATIFICATION OF 1973 CONSTITUTION.

(1)Article XV of the 1935 Constitution simply provides that "such amendments shall be valid as partof this Constitution when approved by a majority of the votes cast at an election at which theamendments are submitted to the people for ratification."

But petitioners construe the aforesaid provision to read: "Such amendments shall be valid as part ofthis Constitution when approved by a majority of the votes cast at an election called by Congress atwhich the amendments are submitted for ratification by the qualified electors defined in Article Vhereof supervised by the Commission on Elections in accordance with the existing election law andafter such amendments shall have been published in all the newspapers of general circulation forat least four months prior to such election."

This position certainly imposes limitation on the sovereign people, who have the sole power ofratification, 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


108 of 207 6/20/2012 8:16 AM

XV of the 1935 Constitution. This is a clear case of usurpation of sovereign power they do notpossess — through some kind of escamotage. This Court should not commit such a grave error in theguise of judicial interpretation.

In all the cases where the court held that illegal or irregular submission, due to absence of substantialcompliance with the procedure prescribed by the Constitution and/or the law nullifies the proposedamendment or the new Constitution, the procedure prescribed by the state Constitution is so detailedthat it specifies that the submission should be at a general or special election, or at the election formembers of the State legislature only or of all state officials only or of local officials only, or of bothstate and local officials; fixes the date of the election or plebiscite limits the submission to onlyelectors or qualified electors; prescribes the publication of the proposed amendment or a newConstitution for specific period prior to the election or plebiscite, and designates the officer toconduct the plebiscite, to canvass and to certify the results, including the form of the ballot whichshould so state the substance of the proposed amendments to enable the voter to vote on eachamendment separately; or authorizes expressly the Constitutional Convention or the legislature todetermine the procedure or certain details thereof. See the State Constitutions of Alabama [1901];Arizona [1912]; Arkansas [1874]; Colorado [1976]; Connecticut [1818]; Florida [1887]; Georgia[1945]; Illinois [1970]; Indiana [1851]; Iowa [1857]; Kansas [1861]; Kentucky [1891]; Louisiana[1921]; Maryland [1867]; Massachusetts [1790]; Michigan [1909]; Minnesota [1857]; Mississippi[1890]; and Missouri [1945]).

As typical examples:

Constitution of Alabama (1901):

"Article XVIII.Mode of Amending the Constitution

"Sec. 284.Legislative Proposals. Amendments may be proposed to this Constitution by thelegislature in the manner following: The proposed amendments shall be read in the house inwhich they originate on three several days, and, if upon the third reading three-fifths of allthe members elected to that house shall vote in favor thereof, the proposed amendmentsshall 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 to that house shall votein favor of the proposed amendments, the legislature shall order an election by thequalified electors of the state upon such proposed amendments to be held either at thegeneral election next succeeding the session of the legislature at which the amendments areproposed or upon another day appointed by the legislature, not less than three months afterthe final adjournment of the session of the legislature at which the amendments wereproposed. Notice of such election, together with the proposed amendments, shall be given byproclamation of the governor, which shall be published in every county in such manner asthe legislature shall direct, for at least eight successive weeks next preceding the dayappointed for such election. On the day so appointed an election shall be held for the vote ofthe qualified electors of the state upon the proposed amendments. If such election be held onthe day of the general election, the officers of such general election shall open a poll for thevote of the qualified electors upon the proposed amendments; If it be held on a day otherthan that of a general election, officers for such election shall be appointed; and the electionshall be held in all things in accordance with the law governing general elections. In allelections 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 samemanner as in elections for representatives to the legislature; and if it shall thereupon appear


109 of 207 6/20/2012 8:16 AM

that a majority of the qualified electors who voted at such election upon the proposedamendments voted in favor of the same, such amendments shall be valid to all intents andpurposes as parts of this Constitution. The result of such election shall be made known byproclamation of the governor. Representation in the legislature shall be based uponpopulation, and such basis of representation shall not be changed by constitutionalamendments.

"Sec. 285.Form of ballot for amendment. Upon the ballots used at all elections provided forin section 284 of this Constitution the substance or subject matter of each proposedamendment shall be so printed that the nature thereof shall be clearly indicated. Followingeach proposed amendment on the ballot shall be printed the word "Yes" and immediatelyunder that shall be printed the word "No". The choice of the elector shall be indicated by across mark made by him or under his direction, opposite the word expressing his desire, andno amendment shall be adopted unless it receives the affirmative vote of a majority of all thequalified 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 regularsession thereof may propose amendments to this Constitution, and, if the same be agreed toby a majority of all the members elected to each house, such proposed amendments shall beentered on the journal with the yeas and nays, and published in at least one newspaper ineach county, where a newspaper is published, for six months immediately preceding thenext general election for Senators and Representatives, at which time the same shall besubmitted to the electors of the State for approval or rejection; and if a majority of theelectors voting at such election adopt such amendments the same shall become a part of thisConstitution; but no more than three amendments shall be proposed or submitted at thesame time. They shall be so submitted as to enable the electors to vote on each amendmentseparately."

Constitution of Kansas (1861):

"Article XIV.Amendments.

"Sec. 1.Proposal of amendments; publications; elections. Propositions for the amendment ofthis constitution may he made by either branch of the legislature; and if two thirds of all themembers elected to each house shall concur therein, such proposed amendments, togetherwith the yeas and nays, shall be entered on the journal; and the secretary of state shall causethe same to be published in at least one newspaper in each county of the state where anewspaper is published, for three months preceding the next election for representatives, atwhich time, the same shall be submitted to the electors, for their approval or rejection; and ifa majority of the electors voting on said amendments, at said election, shall adopt theamendments, the same shall become a part of the constitution. When more than oneamendment shall be submitted at the same time, they shall be so submitted as to enable theelectors to vote on each amendments separately; and not more than three propositions toamend shall be submitted at the same election."

Constitution of Maryland (1867):


110 of 207 6/20/2012 8:16 AM

"Article XIV.Amendments to the Constitution.

"Sec. 1.Proposal in general assembly; publication; submission to voters; governor'sproclamation. The General Assembly may propose Amendments to this Constitution;provided that each Amendment shall be embraced in a separate bill, embodying the Articleor Section, as the same will stand when amended and passed by three fifths of all themembers elected to each of the two Houses, by yeas and nays, to be entered on the Journalswith the proposed Amendment. The bill or bills proposing amendment or amendments shallbe published by order of the Governor, in at least two newspapers, in each County, where somany may be published, and where not more than one may be published, then in thenewspaper, and in three newspapers published in the City of Baltimore, once a week for fourweeks immediately preceding the next ensuing general election, at which the proposedamendment or amendments shall be submitted, in a form to be prescribed by the GeneralAssembly, to the qualified voters of the State for adoption or rejection. The votes cast forand against said proposed amendment or amendments, severally, shall be returned to theGovernor, in the manner prescribed in other cases, and if it shall appear to the Governor thata 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 saidamendment or amendments having received said majority of votes, to have been adopted bythe people of Maryland as part of the Constitution thereof, and thenceforth said amendmentor amendments shall be part of the said Constitution. When two or more amendments shallbe submitted in manner aforesaid, to the voters of this State at the same election, they shallbe 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. Allamendments proposed by the general assembly or by the initiative shall be submitted to theelectors for their approval or rejection by official ballot title as may be provided by law, on aseparate ballot without party designation, at the next general election, or at a special electioncalled by the governor prior thereto, at which he may submit any of the amendments. Nosuch proposed amendment shall contain more than one amended and revised article of thisconstitution, or one new article which shall not contain more than one subject and mattersproperly connected therewith. If possible, each proposed amendment shall be published oncea week for two consecutive weeks in two newspapers of different political faith in eachcounty, the last publication to be not more than thirty nor less than fifteen days nextpreceding the election. If there be but one newspaper in any county, publication of fourconsecutive weeks shall be made. If a majority of the votes cast thereon is in favor of anyamendment, the same shall take effect at the end of thirty days after the election. More thanone amendment at the same election shall be so submitted as to enable the electors to voteon each amendment separately."

Article XV of the 1935 Constitution does not require a specific procedure, much less a detailedprocedure for submission or ratification. As heretofore stated, it does not specify what kind ofelection at which the new Constitution shall be submitted; nor does it designate the Commission onElections to supervise the plebiscite. Neither does it limit the ratification to the qualified electors asdefined in Article V of the 1935 Constitution. Much less does it require the publication of theproposed Constitution for any specific period before the plebiscite nor does it even insinuate that theplebiscite should be supervised in accordance with the existing election law.


111 of 207 6/20/2012 8:16 AM

(2)As aforequoted, Article XV does not indicate the procedure for submission of the proposedConstitution to the people for ratification. It does not make any reference to the Commission onElections as the body that shall supervise the plebiscite. And Article XV could not make anyreference to the Commission on Elections because the original 1935 Constitution as ratified on May14, 1935 by the people did not contain Article X on the Commission on Elections, which article wasincluded therein pursuant to an amendment by the National Assembly proposed only about five (5)years later — on April 11, 1940, ratified by the people on June 18, 1940 and approved by thePresident of the United States on December 2, 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 framersof the 1935 Constitution as ratified on May 14, 1935 intended that a body known as the Commissionon Elections should be the one to supervise the plebiscite, because the Commission on Elections wasnot in existence then as it 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 Tañada &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; Tañada & Fernando, Constitution of the Philippines,1953 ed., Vol. I, p. 5, Vol. II, pp. 11-19).

Because before August, 1940 the Commission on Elections was not yet in existence, the formerDepartment 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 theOrdinance appended to the 1935 Constitution (Tydings- Kocialkowski Act of the U.S. Congress) andthe three 1940 amendments on the establishment of a bicameral Congress, the re-election of thePresident and the Vice-President, and the creation of the Commission on Elections (ratified on June18, 1940). The supervision of said plebiscites by the then Department of Interior was not axiomatic,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 theplebiscite for ratification of constitutional amendments or revision, it should have likewise proposedthe corresponding amendment to Article XV by providing therein that the plebiscite on amendmentsshall 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, 1935wanted that only the qualified voters under Article V of the 1935 Constitution should participate inthe referendum on any amendment or revision thereof, they could have provided the same in 1935 orin 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 suchsimilar phrases.

Then again, the term "people" in Article XV cannot be understood to exclusively refer to thequalified electors under Article V of the 1935 Constitution; because the said term "people" as used inseveral provisions of the 1935 Constitution, does not have a uniform meaning. Thus in the preamble,the term "Filipino people" refers to all Filipino citizens of all ages of both sexes. In Section 1 ofArticle II on the Declaration of Principles, the term "people" in whom sovereignty resides and fromwhom all government authority emanates, can only refer also to Filipino citizens of ail ages and ofboth sexes. But in Section 5 of the same Article II on social justice, the term "people" comprehendsnot 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 onthe Bill of Rights concerning searches and seizures.


112 of 207 6/20/2012 8:16 AM

When the 1935 Constitution wants to limit action or the exercise of a right to the electorate, it doesso expressly as in the case of the election of senators and congressmen. Section 2, Article VIexpressly provides that the senators "shall be chosen at large by the qualified electors of thePhilippines as may be provided by law." Section 5 of the same Article VI specifically provides thatcongressmen shall "be elected by the qualified electors." The only provision that seems to sustain thetheory of petitioners that the term "people" in Article XV should refer to the qualified electors asdefined in Article V of the 1935 Constitution is the provision that the President and Vice-Presidentshall be elected "by direct vote of the people." (Sec. 2 of Art. VII of the 1935 Constitution). But thisalone cannot be conclusive as to such construction; because of the explicit provisions of Sections 2and 5 of Article VI, which specifically prescribes that the senators and congressmen shall be electedby the qualified electors.

As aforesaid, most of the constitutions of the various states of the United States, specifically delineatein detail the procedure of ratification of amendments to or revision of state Constitutions andexpressly require ratification by qualified electors, not by the generic term "people".

The proposal submitted to the Ozamis Committee on the Amending Process of the 1934-35Constitutional Convention, specified that the amendment shall be submitted to qualified electors forratification. This proposal was not accepted, indicating that the 1934-35 Constitutional Conventiondid not intend to limit the term "people" in Article XV of the 1935 Constitution to qualified electorsonly. 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 orfuture constitutional conventions as to who should ratify the proposed amendment or revision.

(4)It is not exactly correct to opine that Article XV of the 1935 Constitution on constitutionalamendment contemplates the automatic applicability of election laws to plebiscites on proposedconstitutional 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 toplebiscites of this nature. Thus, Com. Act No. 34 on the woman's suffrage amendment enacted onSeptember 30, 1936, consists of 12 sections and, aside from providing that "there shall be held aplebiscite on Friday, April 30, 1937, on the question of woman's suffrage . . . and that saidamendment shall be published in the Official Gazette in English and Spanish for three consecutiveissues at least fifteen (15) days prior to said election, . . . and shall be posted in a conspicuousplace in its municipal and provincial office building and in its polling place not later than April22, 1937" (Sec. 12, Com. Act No. 34), specifies that the provisions of the Election Law regarding theholding of a special election, insofar as said provisions are not in conflict with it, should apply to thesaid plebiscite (Sec. 3, Com. Act No. 34); and that the votes cast according to the returns of theboard 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 RevisedAdministrative Code.

Sec. 1 of Com. Act No. 357, the previous Election Code enacted on August 22, 1938, makes itexpressly applicable to plebiscites. Yet the subsequent laws, namely, Com. Act Nos. 492 and 517and Rep. Act No. ?3 calling for the plebiscite on the constitutional amendments in 1939, 1940 and


113 of 207 6/20/2012 8:16 AM

1946, including the amendment creating the Commission on Elections, specifically provided that theprovisions of the existing election law shall apply to such plebiscites insofar as they are notinconsistent 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 theproposed 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 adoptedin Resolution No. 39 on September 15, 1939 "shall be submitted to the Filipino people for approvalor 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 samedate, shall be submitted at the following election of local officials," (Sec. 1, Com. Act No. 492); thatthe said amendments shall be published in English and Spanish in three consecutive issues of theOfficial Gazette at least ten (10) days prior to the election; that copies thereof shall be posted notlater than October 20, 1939 (Sec. 2, Com. Act No. 492); that the election shall be conductedaccording to the provisions of the Election Code insofar as the same may be applicable; that withinthirty (30) days after the election, the Speaker of the National Assembly shall request the Presidentto call a special session of the Assembly for the purpose of canvassing the returns and certify theresults thereof (Sec. 6, Com. Act No. 492).

Commonwealth Act No. 617, consisting of 11 sections, was approved on April 25,1940 andprovided, among others: that the plebiscite on the constitutional amendments providing for abicameral Congress, re- election of the President and Vice-President, and the creation of aCommission on Elections shall be held at a general election on June 18, 1940 (Sec. 1); that saidamendments shall be published in three consecutive issues of the Official Gazette in English andSpanish at least 20 days prior to the election and posted in every local government office building andpolling place not later than May 18, 1940 (Sec. 2); that the election shall be conducted in conformitywith the Election Code insofar as the same may be applicable (Sec. 3); that copies of the returnsshall be forwarded to the Secretary of National Assembly and the Secretary of Interior (Sec. 7); andthat the National Assembly shall canvass the returns and certify the results at a special session to becalled by the President (Sec. 8).

Republic Act No. 73 approved on October 21, 1946 calling for a plebiscite on the parity amendmentconsists of 8 sections and provides that the Amendment "shall be submitted to the people, forapproval or disapproval, at a general election which shall be held on March 11, 1947, in accordancewith the provisions of this Act" (Sec. 1, R.A. No. 73); that the said amendment shall be published inEnglish and Spanish in three consecutive issues of the Official Gazette at least 20 days prior to theelection; that copies of the same shall be posted in a conspicuous place and in every polling place notlater 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 theelection insofar as they are not inconsistent with this Act (Sec. 3, R.A. No. 73); and that within 30days after the election, the Senate and House of Representatives shall hold a joint session to canvassthe 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 notcontemplate nor envision the automatic application of the election law; and even at that, not all theprovisions of the election law were made applicable because the various laws aforecited containseveral provisions which are inconsistent with the provisions of the Revised Election Code (Com. ActNo. 357). Moreover, it should be noted that the period for the publication of the copies of the


114 of 207 6/20/2012 8:16 AM

proposed amendments was about 10 days, 15 days or 20 days, and for posting at least 4 days, &days or 30 days.

Republic Acts Nos. 180 and 6388 likewise expressly provide that the Election Code shall apply toplebiscites (Sec. 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, therewould be no need for Congress to expressly provide therefor in the election laws enacted after theinauguration 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 doesnot state that only qualified electors can vote in the plebiscite. As above-intimated, most of theConstitutions of the various states of the United States provide for very detailed amending processand 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, whichwas approved on June 17, 1967 and superseded Republic Act No. 2370, expanded the membershipof 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 areresidents of the barrio for at least six months, eighteen years of age or over, citizens of theRepublic of the Philippines and who are duly registered in the list of barrio assemblymembers kept by the Barrio Secretary.

"The barrio assembly shall meet at least once a year to hear the annual report of the barriocounsel 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 leastOne-Tenth of the members of the barrio assembly.

"No meeting of the barrio assembly shall take place unless notice is given one week prior tothe meeting except in matters involving public safety or security in which case notice withina reasonable time shall be sufficient. The barrio captain, or in his absence, the councilmanacting as barrio captain, or any assembly member selected during the meeting, shall act aspresiding officer at all meetings of the barrio assembly. The barrio secretary or in hisabsence, any member designated by the presiding officer to act as secretary shalldischarge 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 toconstitute a quorum. All actions shall require a majority vote of these present at the meetingthere being a quorum.

"Sec. 5.Powers of the barrio assembly. — The powers of the barrio assembly shall be asfollows:

"a.To recommend to the barrio council the adoption of measures for thewelfare of the barrio;


115 of 207 6/20/2012 8:16 AM

"b.To decide on the holding of a plebiscite as provided for in Section 6 of thisAct;

"c.To act on budgetary and supplemental appropriations and special taxordinances submitted for its approval by the barrio council; and

"d.To bear the annual report council concerning the activities and finances ofthe assembly.

"Sec. 6.Plebiscite. — A plebiscite may be held in the barrio when authorized by a majorityvote of the members present in the barrio assembly, there being a quorum, or when called byat least four members of the barrio council; Provided, however, That no plebiscite shall beheld until after thirty days from its approval by either body, and such plebiscite has beengiven the widest publicity in the barrio, stating the date, time, and place thereof, thequestions or issues to be decided, action to be taken by the voters, and such otherinformation 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 bythe voters to the board of election tellers. The board of election tellers shall be the sameboard envisioned by section 8, paragraph 2 of this Act, in case of vacancies in this body, thebarrio council may fill the same.

"A plebiscite may be called to decide on the recall of any member of the barrio council. Aplebiscite shall be called to approve any budgetary, supplemental appropriations or specialtax ordinances.

"For taking action on any of the above enumerated measures, majority vote of all the barrioassembly 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 barrioduring the six months immediately preceding the election, duly registered in the list of voterskept by the barrio secretary, who is not otherwise disqualified, may vote or be a candidate inthe barrio elections.

"The following persons shall not be qualified to vote:

"a.Any person who has been sentenced by final judgment to suffer one yearor more of imprisonment, within two years after service of his sentence;

"b.Any person who has violated his allegiance to the Republic of thePhilippines; and

"c.Insane or feeble-minded persons."

All these barrio assembly members, who are at least 18 years of age, although illiterate, may vote atthe plebiscite on the recall of any member of the barrio council or on any budgetary, supplementalappropriation, or special tax ordinances, a valid action on which requires "a majority vote of all of thebarrio assembly members registered in the list of the barrio secretary" (par. 5, Sec. 6, R.A. No.


116 of 207 6/20/2012 8:16 AM

3590). Such plebiscite may be authorized by a majority vote of the members present in the barrioassembly, 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 ofage, able to read and write, residents of the barrio during the 6 months immediately preceding theelection and duly registered in the list of voters kept by the barrio secretary, not otherwisedisqualified, may vote (Sec. 10, R.A. No. 3590).

Paragraph 2 of Section 6 likewise authorizes open voting as it provides that "voting procedures maybe made xxx either in writing as in regular elections, and/or declaration by the voters to the board ofelection tellers."

That said paragraph 2 of Section 6 provides that "all duly registered barrio assembly membersqualified 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 or above and who possess all other qualifications of avoter 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 qualificationsunder Section 10 as said Section 6 does not distinguish between those who are 21 or above on theone hand and those 18 or above but below 21 on the other, and whether literate or not, to constitutea quorum of the barrio assembly.

Consequently, on questions submitted for plebiscite, all the registered members of the barrioassembly can vote as long as they are 18 years of age or above; and that only those who are 21 yearsof 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 atleast 18 years of age, whether literate or not Republic Act No. 3590 could simply have restatedSection 4 of Republic Act No. 2370, the old Barrio Charter, which provided that only those who are21 and above can be members of the barrio assembly.

Counsels Salonga and Tañada as well as all the petitioners in L- 36165 and two of the petitioners inL-36164 participated in the enactment of Republic Act No. 3590 and should have known theintendment of Congress in expanding the membership of the barrio assembly to include all those 18years of age and above, whether literate or not.

If Congress in the exercise of its ordinary legislative power, not as a constituent assembly, caninclude 18-years old as qualified electors for barrio plebiscites, this prerogative can also be exercisedby the Chief Executive as delegate of the Constitutional Convention in regard to the plebiscite on the1973 Constitution.

As heretofore stated, the statement by the President in Presidential Proclamation No. 1102 that the1973 Constitution was overwhelmingly ratified by the people through the Citizens' Assemblies in areferendum conducted from January 10 to 15, 1973, should be accorded the presumption ofcorrectness; because the same was based on the certification by the Secretary of the Department ofLocal Government and Community Development who tabulated the results of the referendum all overthe country. The accuracy of such tabulation and certification by the said Department Secretaryshould likewise be presumed; because it was done in the regular performance of his official functionsaside from the fact that the act of the Department Secretary, as an alter ego of the President, ispresumptively the act of the President himself unless the latter disapproves or reprobates the same


117 of 207 6/20/2012 8:16 AM

(Villena vs. Secretary of Interior, 67 Phil. 451). The truth of the certification by the DepartmentSecretary and the Chief Executive on the results of the referendum, is further strengthened by theaffidavits and certifications of Governor Isidro Rodriguez of Rizal, Mayor Norberto S. Amoranto ofQuezon City and Councilor Eduardo T. Paredes of Quezon City.

The procedure for the ratification of the 1937 amendment on woman suffrage, the 1939 amendmentto the ordinance appended to the 1935 Constitution, the 1940 amendments establishing the bicameralconfess, creating the Commission on Elections and providing for two consecutive terms for thePresident, and the 1947 parity amendment, cannot be invoked; because those amendments wereproposed by the National Assembly as expressly authorized by Article V of the 1935 Constitutionrespecting woman suffrage and as a constituent assembly in all the other amendmentsaforementioned and therefore as such, confess had also the authority to prescribe the procedure forthe submission of the proposed amendments to the 1935 Constitution.

In the cases at bar, the 1973 Constitution was proposed by an independent ConstitutionalConvention, which as heretofore discussed, has the equal power to prescribe the modality for thesubmission of the 1973 Constitution to the people for ratification or delegate the same to thePresident of the Republic.

The certification of Governor Isidro Rodriguez of Rizal and Mayor Norberto Amoranto could beutilized as the basis for the extrapolation of the Citizens' Assemblies in all the other provinces, citiesand municipalities in all the other provinces, cities and municipalities, and the affirmative votes in theCitizens' Assemblies resulting from such extrapolation would still constitute a majority of the totalvotes cast in favor of the 1973 Constitution.

As claimed by petitioners in L-36165, against the certification of the Department of LocalGovernment and Community Development that in Rizal there were 1,126,000 Yes votes and 100,310No votes, the certification of Governor Isidro Rodriguez of Rizal, shows only 614,157 Yes votes asagainst 292,530 No votes. In Cavite province, there were 249,882 Yes votes against 12,269 No votesas disclosed in Annex 1-A of respondents' Compliance (the certification by the Department of LocalGovernment and Community Development), while the alleged certification of Governor Lino Bocalanof Cavite shows only 126,163 Yes votes and 5,577 No votes. If such a ratio is extended by way ofextrapolation to the other provinces, cities and towns of the country, the result would still be anoverwhelming vote in favor of the 1973 Constitution.

The alleged certification by Governor Lino Bocalan of Cavite, is not true; because in his dulyacknowledged certification dated March 16, 1973, he states that since the declaration of martial lawand 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 to15, 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 forhis signature during the conduct of the Citizens' Assemblies, which he did not sign but which hereferred to Vice-Governor Camerino (Annex 1-Rejoinder of the Sol. Gen. dated March 20, 1973).

Mayor Pablo Cuneta likewise executed an affidavit dated March 16, 1973 stating that on January 15,1973, he caused the preparation of a letter addressed to Secretary Jose Roño of the Department ofLocal Government and Community Development showing the results of the referendum in Pasay


118 of 207 6/20/2012 8:16 AM

City; that on the same day, there were still many Citizens' Assemblies holding referendum in PasayCity, for which reason he did not send the aforesaid letter pending submittal of the other results fromthe said Citizens' Assemblies; and that in the afternoon of January 15, 1973, he indorsed thecomplete certificate of results on the referendum in Pasay City to the Office of the President (Annex5-Rejoinder of Sol. Gen. dated March 20, 1973).

Pablo F. Samonte, Assistant City Treasurer and Officer in Charge of Pasay City also issued anaffidavit dated March 15, 1973 stating that a certain Atty. Delia Sutton of the Salonga Law Officeasked him for the results of the referendum; that he informed her that he had in his possessionunsigned copies of such results which may not be considered official as they had then no knowledgewhether the original thereof had been signed by the mayor; and that in spite of his advice that saidunsigned copies were not official, she requested him if she could give her the unofficial copiesthereof, 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 ofalleged barrio treasurer Faustino Gutierrez, of barrio South Triangle, Quezon City, states that "as faras we know, there has been no Citizens' Assembly meeting in our Area, particularly in January ofthis year," does not necessarily mean that there was no such meeting in said barrio; for she may nothave been notified thereof and as a result she was not able to attend said meeting. Much less can itbe a basis for the claim that there was no meeting at all in the other barrios of Quezon City. Thebarrio 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 andCoordinating Council, certified on March 12, 1973 that as such chairman he was in charge of thecompilation and tabulation of the results of the referendum among the Citizens' Assemblies inQuezon 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 withsuch activity and all of which he has no knowledge, participation and control (Annex 4 Rejoinder ofthe Sol. Gen.).

Governor Isidro Rodriguez of Rizal issued a certification dated March 16, 1973 that he prepared aletter to the President dated January 15, 1973 informing him of the results of the referendum inRizal, in compliance with the instruction of the National Secretariat to submit such letter 2 or 3 daysfrom January 10 to show the trend of voting in the Citizens' Assemblies; that the figures 614,157 and292,530 mentioned in said letter were based on the certificates of results in his possession as ofJanuary 14, 1973, which results were made the basis of the computation of the percentage of votingtrend in the province; that his letter was never intended to show the final or complete result in thereferendum 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 afterJanuary 15, 1973, he sent to the National Secretariat all the certificates of results in 26 municipalitiesof Rizal for final tabulation (Annex 3-Rejoinder of the Sol. Gen.; italics supplied).

Lydia M. Encarnacion, acting chief of the Records Section, Department of Local Government andCommunity Development, issued a certificate dated March 16, 1973 that she was shown xeroxcopies of unsigned letters allegedly coming from Governor Lino Bocalan dated January 15, 1973 andmarked "Rejoinder Annex Cavite" addressed to the President of the Philippines through the Secretaryof the Department of Local Government and Community Development and another unsigned letterreportedly from Mayor Pablo Cuneta dated January 15, 1973 and marked "Rejoinder Annex Pasay


119 of 207 6/20/2012 8:16 AM

City" addressed to the Secretary of the Department of Local Government and CommunityDevelopment; that both xerox copies of the unsigned letters contain figures showing the results of thereferendum of the Citizens' Assemblies in those areas; and that the said letters were not received byher office and that her records do not show any such documents received by her office (Annex2-Rejoinder of the Sol. Gen.).

Thus it would seem that petitioners in L-36165 have attempted to deceive this Court by representingsaid unsigned letters and/or certificates as duly signed and/or containing the complete returns of thevoting in the Citizens' Assemblies.

The observation We made with respect to the discrepancy between the number of Yes votes and Novotes contained in the summary report of Governor Rodriguez of Rizal as well as those contained inthe alleged report of Governor Lino Bocalan of Cavite who repudiated the same as not having beensigned by him for he was then under house arrest, on the one hand, and the number of votes certifiedby the Department of Local Government and Community Development, on the other, to the effectthat even assuming the correctness of the figures insisted on by counsel for petitioners in L-36165, ifthe same were extrapolated and applied to the other provinces and cities of the country, the Yes voteswould still be overwhelmingly greater than the No votes, applies equally to the alleged discrepancybetween the figures contained in the certification of the Secretary of the Department of LocalGovernment and Community Development and the figures furnished to counsel for petitioners inL-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 weremore votes in favor of a plebiscite to be held later than those against, only serves to emphasize thatthere was freedom of voting among the members of the Citizens' Assemblies all over the countryduring the referendum from January 10 to 15, 1973 (Annex-6 Cam. Sur to Rejoinder of Petitionersin L-36165). If there was no such freedom of choice, those who wanted a plebiscite later would notoutnumber those against holding such plebiscite.

The letter of Governor Felix O. Alfelor, Sr. dated January 14, 1973 confirms the "strongmanifestation 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 setof questions including the question "Do you approve of the new Constitution?" was received only onJanuary 10. Provincial Governor Pascual stated that the "orderly conduct and favorable results of thereferendum" were due not only to the coordinated efforts and cooperation of all teachers andgovernment 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 inshaping 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 thebook of voters; it is enough that they are electors voting on the new Constitution (Bott vs. Wurts, 40A 740 [1898]; 43 A 744, 881 [1899]; 45 LRA 251). The fact that the number of actual voters in thereferendum in certain localities may exceed the number of voters actually registered for the 1971elections, can only mean that the excess represents the qualified voters who are not yet registeredincluding those who are at least 15 years of age and the illiterates. Although ex-convicts may havevoted also in the referendum, some of them might have been granted absolute pardon or were


120 of 207 6/20/2012 8:16 AM

sentenced to less than one year imprisonment to qualify them to vote (Sec. 201, 1971 Rev. ElectionCode). At any rate, the ex-convicts constitute a negligible number, discounting which would not tiltthe 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 authoritiesto confirm or deny the data" concerning the number of participants, the Yes votes and No votes in thereferendum on the new Constitution among the members of the Citizens' Assemblies in CaloocanCity, does not necessarily give rise to the inference that Mayor Samson of Caloocan City is beingintimidated, having been recently released from detention; because in the same letter of MayorSamson, he suggested to counsel for petitioners in L-36165 that he can secure "the true andlegitimate results of the referendum" from the Office of the President (Annex Caloocan-B toRejoinder of Petitioners in L-36165). Why did not learned and eminent counsel heed suchsuggestion?

Counsel for petitioners in L-36165, to sustain their position, relies heavily on the computation of theestimated turnover in the Citizens' Assemblies referendum on January 10 to 15, 1973 by a certainProfessor Benjamin R. Salonga, of the Mapua Institute of Technology, ostensibly a close relative offormer Senator Jovito R. Salonga, eminent counsel for petitioners in L-36165 (Annex M-asamended, to Consolidated Rejoinder of petitioners in L-36165 to the Notes of Arguments andMemorandum of respondents). Professor Salonga is not a qualified statistician, which all the moreimpairs his credibility. Director Tito A. Mijares of the Bureau of Census and Statistics, in his letterdated March 16, 1973 addressed to the Secretary of the Department of Local Government andCommunity Development, refutes the said computation of Professor Benjamin R. Salonga, thus:

"1)I do not quite understand why (Problem I) 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 thepercentage participation of the '15-20 year old plus total number of qualified voters' whichdoes not deem to answer the problem. This computation apparently fails to account for some5.6 million persons '21 years old and over' who were not registered voters (COMELEC), butwho might be qualified to participate at the Citizen's Assembly.

"2)The official population projection of this office (medium assumption) for '15 year oldsand over' as of January 1, 1973 is 22.506 million. If total number of participants at theCitizens' 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 gives74.2%.

"3)I cannot also understand c-2 'Solution to Problem 11.' The 'difference orimplied number of 15-20 year olds' of 5,039,906 would represent really not only all 15year olds and over who participated at the Citizens' Assembly but might not have beenregistered voters at the time, assuming that all the 11,661,909 registered voted at theCitizens' 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 thenumber 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


121 of 207 6/20/2012 8:16 AM

estimated to be 22.506 million, giving 21.0%.

"In Problem III, it should be observed that registered voters also include namesof voters who are already dead. It cannot therefore be assumed that all of themparticipated at the Citizens' Assembly. It can therefore be inferred that 'a total numberof persons 15 and over unqualified/disqualified to vote' will be more than 10,548,197and hence the 'difference or implied number of registered voters that participated' willbe less than 6,153,618.

"I have reservations on whether an 'appropriate number of qualified voters thatsupposedly voted' could be meaningfully estimated.

"5)The last remark will therefore make the ratio: (a) [Solution to Problem] morethan 1.71 and that for (b), accordingly, will also be less than 36.8%." (Annex FRejoinder).

From the foregoing analysis of the Director of Census and Statistics as of January 21, 1973, theofficial population projection for 15-year olds and over is 22,506,000. If 16,702,000 voted in thereferendum, 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, thedifference between 16,702,000 who participated in the referendum and the registered electors of11,661,909 for the November 8, 1971 elections, is 5,040,091, which may include not only the15-year olds and above but below 21 but also the qualified electors who were not registered beforethe 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 incumbentPresident obtained over 5,000,000 votes as against about 3,000,000 votes for his rival LP SenatorSergio Osmeña, Jr., garnering a majority of from about 896,498 to 1,436,118 (Osmeña, 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 theincumbent President in 1969 did not vote in favor of the 1973 Constitution during the referendumfrom January 10 to 15, 1973. It should also be stressed that many of the partisans of the President inthe 1969 Presidential elections, have several members in their families and relatives who are qualifiedto participate in the referendum because they are 15 years or above including illiterates, which factshould 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 ofchoice, because the people fear to disagree with the President as Commander-in-Chief of the ArmedForces of the Philippines and therefore cannot voice views opposite to or critical of the position of thePresident 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 inevitablygenerates fear in the individual. Even without martial law, the penal, civil or administrative sanctionprovided for the violation of the law ordinarily engenders fear in the individual which fear persuadesthe individual to comply with or obey the law. But before martial law was proclaimed, manyindividuals did not fear such sanctions of the law because of lack of effective or equal enforcement orimplementation thereof — in brief, compartmentalized justice and extraneous pressures andinfluences frustrated the firm and just enforcement of the laws. The fear that is generated by martial


122 of 207 6/20/2012 8:16 AM

law is merely the fear of immediate execution and swift enforcement of the law and thereforeimmediate infliction of the punishment or sanction prescribed by the law whenever it is transgressedduring the period of martial law. This is not the fear that affects the voters' freedom of choice orfreedom to vote for or against the 1973 Constitution. Those who cringe in fear are the criminals orthe 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 ofthe ballot as secured 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 onElections 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 validlyprescribed in the election law open voting in the election of public officers, without trenching uponthe Constitution. Any objection to such a statute concerns its wisdom or propriety, not its legality orconstitutionality. 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 proposedconstitutional amendments or on a new Constitution. We have seen even before and during martiallaw 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 andbarrio 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 havebeen true in certain areas, but that does not necessarily mean that it was done throughout thecountry.

The recent example of an open voting is the last election on March 3, 1973 of the National PressClub officers who were elected by acclamation presided over by its former president, petitionerEduardo Monteclaro in L-36236 (see Bulletin Today, p. 8, March 3, 1973 issue). There can be nomore hardboiled group of persons than newspapermen, who cannot say that voting among them byacclamation 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 thiscountry are against the new Constitution. They will not deny that there are those who favor thesame, even among the 400,000 teachers among whom officers of the Department of Educationcampaigned for the ratification of the new Constitution.

Not one of the petitioners can say that the common man — farmer, laborer, fisherman, lowlyemployee, jeepney driver, taxi driver, bus driver, pedestrian, salesman, or salesgirl — does not wantthe new Constitution, or the reforms provided for therein.

(8)Petitioners likewise claim that there was no sufficient publicity given to the new Constitution. Thisis quite inaccurate; because even before the election in November, 1970 of delegates to theConstitutional Convention, the proposed reforms were already discussed in various forums andthrough the press as well as other media of information. Then after the Constitutional Conventionconvened in June, 1971, specific reforms advanced by the delegates were discussed both incommittee hearings as well as in the tri-media — the press, radio and television. Printed materials onthe 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 martiallaw 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


123 of 207 6/20/2012 8:16 AM

forums sponsored by private organizations and universities and debated over the radio and ontelevision. The Philippines is a literate country, second only to Japan in the Far East, and moreliterate perhaps than many of the 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 theilliterates listened to the 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 BulletinToday, March 4, 1973 issue, "Otto Lang, Hollywood producer director (Tora, Tora, Tora) wentaround the country doing a 30-minute documentary on the Philippines for American television andstated that what impressed him most in his travel throughout the country was the general acceptanceof 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, andSunday Express, March 4), Secretary of the United States Senate, who conducted a personal surveyof the country as delegate of Senator Mike Mansfield, Chairman, Committee on US-Philippinerelations, states:

"Martial law has paved the way for a re-ordering of the basic social structureof the Philippines. President Marcos has been prompt and sure-footed in using thepower of presidential decree under martial law for this Purpose. He has zeroed in onareas which have been widely recognized as prime sources of the nation's difficulties— land tenure, official corruption, tax evasion and abuse of oligarchic economicpower. Clearly, he knows the targets. What is not yet certain is how accurate have beenhis shots. Nevertheless, there is marked public support for his leadership and tangiblealternatives have not been forthcoming. That would suggest that he may not bestriking too far from the mark.

"The United States business community in Manila seems to have beenreassured by recent developments . . . (Italics supplied.)

Petitioners cannot safely assume that all the peaceful citizens of the country, who constitute themajority of the population, do not like the reforms stipulated in the new Constitution, as well as thedecrees, orders and circulars issued to implement the same. It should be recalled, as herein beforestated, that all these reforms were the subject of discussion both in the committee hearings and onthe floor of the Constitutional Convention, as well as in public forums sponsored by concernedcitizens or civic organizations at which Con-Con delegates as well as other knowledgeablepersonages expounded their views thereon and in all the media of information before theproclamation of martial law on September 21, 1972. This is the reason why the ConstitutionalConvention, after spending close to P30 million during the period from June 1, 1971 to November29, 1972, found it expedient to accelerate their proceedings in November, 1972 because all viewsthat could possibly be said on the proposed provisions of the 1973 Constitution were alreadyexpressed and circulated. The 1973 Constitution may contain some unwise provisions. But thisobjection to such unwise or vague provisions, as heretofore stated, refers to the wisdom of theaforesaid provisions, which issue is not for this Court to decide; otherwise We will be substituting Ourjudgment for the judgment of the Constitutional Convention and in effect acting as a constituentassembly.

VI


124 of 207 6/20/2012 8:16 AM

PRESIDENT AS COMMANDER IN CHIEF EXERCISES LEGISLATIVE POWERS DURINGMARTIAL LAW.

The position of the respondent public officers that under martial 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 (75Phil. 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 OrderNo. 68, the President of the Philippines has acted in conformity with the generallyaccepted principles and policies of international law which are part of our Constitution.

"The promulgation of said executive order is an exercise by the President ofhis powers as Commander in Chief of all our armed forces, as upheld by this Court inthe case of Yamashita vs. Styer (L-129, 42 Off. Gaz., 664) when we said —

" 'War is not ended simply because hostilities have ceased. Aftercessation of armed hostilities, incidents of war may remain pending whichshould be disposed of as in time of war. 'An important incident to a conduct ofwar is the adoption of measures by the military command not only to repel anddefeat the enemies but to seize and subject to disciplinary measures thoseenemies who in their attempt to thwart or impede our military effort haveviolated 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 warcriminals is an aspect of waging war. And, in the language of a writer, a militarycommission 'has jurisdiction so long as a technical state of war continues. Thisincludes the period of an armistice, or military occupation, up to the effectivedate of a treaty of peace, and may extend beyond, by treaty agreement.'(Cowles, Trial of War Criminals by Military Tribunals, American BarAssociation Journal, June, 1944).'

''Consequently, the President as Commander in Chief is fully empowered toconsummate this unfinished aspect of war, namely, the trial and punishment of warcriminals, through the issuance and enforcement of Executive Order No. 68." (83 Phil.177-178; italics 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 definedmartial law as "the exercise of the power which resides in the executive branch of the government topreserve order and insure the public safety in times of emergency, when other branches of thegovernment are unable to function, or their functioning would itself threaten the public safety."(Italics supplied). There is an implied recognition in the aforesaid definition of martial law that evenin places where the courts can function, such operation of the courts may be affected by martial lawshould their "functioning . . . threaten the public safety." It is possible that the courts, in assertingtheir authority to pass upon questions which may adversely affect the conduct of the punitivecampaign against rebels, secessionists, dissidents as well as subversives, martial law may restrict suchjudicial function until the danger to the security of the state and of the people shall have beendecimated.

The foregoing view appears to be shared by Rossiter when he stated:


125 of 207 6/20/2012 8:16 AM

"Finally, this strong government, which in some instances might become anoutright dictatorship, can have no other purposes than the preservation of theindependence of the state, the maintenance of the existing constitutional order, andthe defense of the political and social liberties of the people. It is important torecognize the true and limited ends of any practical application of the principle ofconstitutional 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 problemsof peace and normal times within the limiting framework of its establishedconstitutional order. The functions of government are parceled out among a number ofmutually independent offices and institutions; the power to exercise those functions iscircumscribed by well-established laws, customs, and constitutional prescriptions; andthe people for whom this government was instituted are in possession of a lengthycatalogue of economic, political, and social rights which their leaders recognize asinherent and inalienable. A severe crisis arises — the Country is invaded by a hostilepower, or a dissident segment of the citizenry revolts, or the impact of a world-widedepression threathens to bring the nation's economy in ruins. The government meetsthe crisis by assuming more powers and respecting fewer rights. The result is aregime which can act arbitrarily and even dictatorially in the swift adoption ofmeasures designed to save the state and its people from the destructive effects of theparticular crisis. And the narrow duty to be pursued by this strong government, thisconstitutional dictatorship? Simply this and nothing more: to end the crisis and restorenormal times. The government assumes no power and abridges no right unless plainlyindispensable 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 nationwhich can not be eradicated with the restoration of normal times. In short, the aim ofconstitutional dictatorship is the complete restoration of the status quo ante bellum.This historical fact does not comport with philosophical theory, that there never hasbeen a perfect constitutional dictatorship, is an assertion that can be made withoutfear of contradiction. But this is true of all institutions of government, and theprinciple of constitutional dictatorship remains eternally valid no matter how oftenand seriously it may have been violated in practice." (Constitutional Dictatorship,1948 ed., by Clinton L. Rossiter, p.7; italics supplied.)

Finally, Rossiter expressly recognizes that during martial law, the Chief Executive exerciseslegislative power, whether of temporary or permanent character, thus:

"The measures adopted in the prosecution of a constitutional dictatorshipshould never be permanent in character or effect. Emergency powers are strictlyconditioned 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 thestate or constitute permanent derogations from existing law should not be adoptedunder an emergency enabling act, at least not without the positively registeredapproval of the legislature. Permanent laws, whether adopted in regular or irregulartimes, are for parliaments to enact. By this same token, the decisions and sentences ofextraordinary courts should be reviewed by the regular courts after the termination ofthe crisis.

"But what if a radical act of permanent character, one working lasting


126 of 207 6/20/2012 8:16 AM

changes in the political and social fabric, is indispensable to the successfulprosecution of the particular constitutional dictatorship? The only answer can be: itmust be resolutely taken and openly acknowledged. President Lincoln found itnecessary to proceed to the revolutionary step of emancipation in aid of hisconservative purpose of preserving the Union; as a constitutional dictator he had amoral right to take this radical action. Nevertheless, it is imperative that any actionwith such last effects should eventually receive the positive approval of the people orof their representatives in the legislature." (P. 303, italics supplied).

From the foregoing citations, under martial law occasioned by severe crisis generated by revolution,insurrection or subversion or even by just severe economic depression or dislocation, the governmentexercises more powers and respects fewer rights in order "to end the crisis and restore normaltimes." 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 incitedrebellion and subversion as well as secession, is the sine qua non to the complete restoration ofnormalcy. Exercise of legislative power by the President as Commander in Chief, upon hisproclamation of martial law, is justified because, as he professes, it is directed towards the institutionof radical reforms essential to the elimination of the causes of rebellious, insurgent or subversiveconspiracies 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 isindispensable to the effectuation of the reforms within the shortest possible time to hasten therestoration of normalcy.

"Must the government be too strong for the liberties of the people; or must it be too weak to maintainits 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 suspendedone basic human freedom — the privilege of the writ of habeas corpus — in order to preserve withpermanence the American Union, the Federal Constitution of the United States and all the civilliberties of the American people. This is the same dilemma that presently confronts the ChiefExecutive of the Republic of the Philippines, who, more than the Courts and Congress, must, byexpress constitutional mandate, secure the safety of our Republic and the rights as well as lives of theagainst open rebellion, insidious subversion and succession. The Chief Executive announcedrepeatedly that in choosing to proclaim martial law, the power expressly vested in him by the 1935Constitution (Sec. 10[2], Art. VII, 1935 Constitution) to insure our national and individual survival inpeace and freedom, he is in effect waging a peaceful, democratic revolution from the center againstthe 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 and Moistoriented secessionists of the extreme left who demand swift institution of reforms. In the exercise ofhis constitutional and statutory powers, to save the state and to protect the citizenry against actualand threatened assaults from insurgents, secessionists and subversives, doctrinaire concepts andprinciples, no matter how revered they may be by jurisprudence and time, should not be regarded asperemptory commands; otherwise the dead hand of the past will regulate and control the securityand happiness of the living present. A contrary view would be to deny the self-evident propositionthat constitution and laws are mere instruments for the well-being, peace, security and prosperity ofthe 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 theimprisonment of the past, but the unfolding of the future. In the vein of Mr. Justice Holmes, themeaning of the words of the Constitution is not to be determined by merely opening a dictionary. Its


127 of 207 6/20/2012 8:16 AM

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 conceptsembodied 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 constitutionalquestions — like those posed before Us — the blending of idealism and practical wisdom orprogressive legal realism should be applied (see Alexander M. Bickel, the Supreme Court and theIdea of Progress, 1970 ed., pp. 19-21). To Justice Frankfurter, law is "a vital agency for humanbetterment" and constitutional law "is applied politics, using the word in its noble sense."(Frankfurter, Law and Politics, 1939 ed., pp. 3 & 6; italics supplied). Justice Brandeis gave utteranceto the truth that "Our Constitution is not a straight jacket. It is a living organism. As such, it iscapable of growth — or expansion and adaptation to new conditions. Growth implies changes,political, economic and social." (Brandeis Papers, Harvard Law School; italics supplied). HarvardProfessor Thomas Reed Powell emphasizes "practical wisdom," for "the logic of constitutional lawis the common sense of the Supreme Court." (Powell, the Validity of State Legislation, under theWebb-Kenyon Law, 2 Southern Law Quarterly, pp. 112, 138-139, cited in Bickel's Opus, supra;italics supplied).

The eternal paradox in this finite world of mortal and fallible men is that nothing is permanent exceptchange. Living organisms as well as man-made institutions are not immutable. Civilized men organizethemselves into a State only for the purpose of serving their supreme interest — their welfare. Toachieve such end, they created an agency known as the government. From the savage era thruancient times, the Middle Ages, the Dark Ages and the Renaissance to this era of sophisticatedelectronics and nuclear weaponry, states and governments have mutated in their search for the magicinstrument for their well-being. It was trial and error then as it is still now. Political philosophies andconstitutional concepts, forms and kinds of government, had been adopted, overturned, discarded,re-adopted or modified to built the needs of a given society at a particular given epoch. This is true ofconstitutions and laws because they are not "the infallible instruments of a manifest destiny." Nomatter 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. JusticeBenjamin 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, "Wecannot, Canute-like, command the waves of progress to halt."

Thus, political scientists and jurists no longer exalt with vehemence a "government that governsleast." Adherents there are to the poetic dictum of Alexander Pope: "For forms of government letfools 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 somecountries into totalitarianism or authoritarianism.

Hence, even the scholar, who advances academic opinions unrelated to factual situations in theseclusion 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 publicfunctionary — face to face with the practical problems of state, government and publicadministration. And so it is that some learned jurists, in the resolution of constitutional issues thatimmediately affect the lives, liberties and fortunes of the citizens and the nation, recommend theblending of idealism with practical wisdom, which legal thinkers prefer to identify as progressive legal


128 of 207 6/20/2012 8:16 AM

realism. The national leader, who wields the powers of government, must and has to innovate if hemust govern effectively to serve the supreme interests of the people. This is especially true in times ofgreat crises where the need for a leader with vision, imagination, capacity for decision andcourageous action is greater, to preserve the unity of the people, to promote their well-being, and toinsure the safety and stability of the Republic. When the methods of rebellion and subversion havebecome covert, subtle and insidious, there should be a recognition of the corresponding authority onthe part of the Commander-in-Chief of the Armed Forces to utilize all the available techniques tosuppress 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 AmericanConstitution and former President of the United States, who personifies the progressive liberal, spokethe truth when he said that some men "ascribe to men of the preceding age a wisdom more thanhuman, and suppose what they did to be beyond amendment . . . But I know also, that laws andinstitutions must go hand in hand with the progress of the human mind. As that becomes moredeveloped, more enlightened, as new discoveries are made, new truths disclosed and manners andopinions change, with the change of circumstances, institutions must also advance, and keep pacewith the times." (Vol. 12, Encyclopedia Britannica, 1969 ed., p. 989).

The wisdom of the decision of the Chief Executive can only be judged in the perspective of history. Itcannot be adequately and fairly appraised within the present ambiance, charged as it is with so muchtension and emotion, if not partisan passion. The analytical, objective historians will write the finalverdict in the same way that they pronounced judgment on President Abraham Lincoln whosuspended the privilege of the writ of habeas corpus without any constitutional or statutory authoritytherefor and of President Franklin Delano Roosevelt who approved the proclamation of martial lawin 1941 by the governor of Hawaii throughout the Hawaiian territory. President Lincoln not onlyemancipated the Negro slaves in America, but also saved the Federal Republic of the United Statesfrom disintegration by his suspension of the privilege of the writ of habeas corpus, which power theAmerican Constitution and Congress did not then expressly vest in him. No one can deny that thesuccessful defense and preservation of the territorial integrity of the United States was due in part, ifnot to a great extent, to the proclamation of martial law over the territory of Hawaii — main bastionof the outer periphery or the outpost of the American defense perimeter in the Pacific — whichprotected the United States mainland not only from actual invasion but also from aerial or navalbombardment by the enemy. Parenthetically, the impartial observer cannot accurately conclude thatthe American Supreme Court acted with courage in its decision in the cases of Ex parte Milligan andDuncan vs. Kahanamoku (filed on May 10, 1865 argued on March 5 to 13, 1866, decided on April3, 1866, and opinion delivered on December 17, 1866) after the lifting of the proclamationsuspending the privilege of the writ of habeas corpus, long after the Civil War and the Second Worldended respectively on April 9 or 26, 1865 (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 onthe part of the American Supreme Court in deciding these cases against the position of the UnitedStates President — in suspending the privilege of the writ of habeas corpus in one case andapproving the proclamation of martial law in the other — deliberate as an act of judicialstatesmanship and recognition on their part that an adverse court ruling during the period of such agrave crisis might jeopardize the survival of the Federal Republic of the United States in itslife-and-death struggle against an organized and well armed rebellion within its own borders andagainst a formidable enemy from without its territorial confines during the last global armageddon?


129 of 207 6/20/2012 8:16 AM

VIIIDOCTRINE OF SEPARATION OF POWERS PRECLUDES MANDAMUS AGAINSTSENATORS.

In G.R. No. L-36165, mandamus will not lie to compel respondents Gil Puyat and Jose Roy toconvene 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 processesof this Court cannot legally reach a coordinate branch of the government or its head. This is aproblem that is addressed to the Senate itself for resolution; for it is purely an internal problem of theSenate. If a majority of the senators can convene, they can elect a new Senate President and a newSenate President Pro Tempore. But if they have no quorum, those present can order the arrest of theabsent members (Sec. 10[2], Art. VI, 1935 Constitution). If this falls, then there is no remedy exceptan appeal to the people. The dictum ubi jus, ubi remedium, is not absolute and certainly does notjustify the invocation of the power of this Court to compel action on the part of a co-equal body or itsleadership. 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 andL-36165 are familiar. WE stress that the doctrine of separation of powers and the political nature ofthe controversy such as this, preclude the interposition of the Judiciary to nullify an act of acoordinate body or to command performance by the head of such a co-ordinate body of hisfunctions.

Mystifying is the posture taken by counsels for petitioners in referring to the political questiondoctrine — 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 ourgovernment, which, together with other basic constitutional precepts, conserves the unity of ourpeople, strengthens the structure of the government and assures the continued stability of the countryagainst 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 Senatedoes not depend on the place of session; for the Constitution does not designate the place of such ameeting. Section 9 of Article VI imposes upon Congress to convene in regular session every year onthe 4th Monday of January, unless a different date is fixed by law, or on special session called by thePresident. 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 presidingofficers. 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 — atthe Sunken Gardens, at the Luneta Independence Grandstand, in any of the big hotels or theaters, intheir own houses, or at the Araneta Coliseum, which is owned by the father-in-law of petitionerGerardo Roxas in L-36165.

However, a session by the Senate alone would be purely an exercise in futility, for it cannot validlymeet without the lower House (Sec. 10[5], Art. VI, 1935 Constitution). Hence, this petition by fiveformer 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 theSenate; it is not a law because it is not enacted by both Houses and approved by the President.


130 of 207 6/20/2012 8:16 AM

The Constitutional provision on the convening of Congress, is addressed to the individual members ofthe legislative body (Sec. 9, Art. VI of 1935 Constitution).

IXTO NULLIFY PROCLAMATION NO. 1102 AND 1973 CONSTITUTION REQUIRES EIGHTOR TEN VOTES OF SUPREME COURT.

The petitioners in L-36164 and L-36236 specifically pray for a declaration that the allegedratification of the 1973 Constitution is null and void and that the said 1973 Constitution be declaredunenforceable 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 1935Constitution.

A declaration that the 1973 Constitution is unenforceable and inoperative is practically deciding thatthe 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 ChiefExecutive. Hence, its final act, the 1973 Constitution, must have the same category at the very leastas the act of Congress itself.

Consequently, the required vote to nullify Proclamation No. 1102 and the 1973 Constitution shouldbe eight (8) under Section 10 of Article VIII of the 1935 Constitution in relation to Section 9 of theJudiciary Act or Republic Act No. 296, as amended, or should be ten (10) under Section 2(2) ofArticle X of the 1973 Constitution. Should the required vote of eight (8) or ten (10), as the case maybe, for the declaration of invalidity or unconstitutionality be not achieved, the 1973 Constitution mustbe deemed to be valid, in force and operative.

XARTICLE 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 andintolerance, which are anathema to a free spirit. But human rights and civil liberties under ademocratic or republican state are never absolute and never immune to restrictions essential to thecommon weal. A civilized society cannot long endure without peace and order, the maintenance ofwhich is the primary function of the government. Neither can civilized society survive without thenatural right to defend itself against all dangers that may destroy its life, whether in the form ofinvasion from without or rebellion and subversion from within. This is the first law of nature andranks 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 preservationof the State itself, even as he reserves to himself certain rights which constitute limitations on thepowers of government. But when there is an inevitable clash between an exertion of governmentalauthority and the assertion of individual freedom, the exercise of which freedom imperils the Stateand the civilized society to which the individual belongs, there can be no alternative but to submit tothe superior right of the government to defend and preserve the State. In the language of Mr. JusticeHolmes — often invoked by herein petitioners — "when it comes to a decision involving its (state


131 of 207 6/20/2012 8:16 AM

life, the ordinary rights of individuals must yield to what he (the President) deems the necessities ofthe moment. Public danger warrants the substitution of executive process for judicial process. (SeeKeely vs. Sanders, 99 U.S. 441, 446, 25 L ed. 327, 328). This was admitted with regard to killingmen in the actual clash of arms. And we think it is obvious, although it was disputed, that the same istrue of temporary detention to prevent apprehended harm." (Moyer vs. Peabody, 212 U.S. 77, 85, 53L ed., 411, 417).

The rhetoric of freedom alone is not enough. It must be the rhetoric of freedom with order andsecurity for all, that should be the shibboleth; for freedom cannot be enjoyed in an environment ofdisorder and anarchy.

The incumbent Chief Executive who was trying to gain the support for his reform program longbefore September 21, 1972, realized almost too late that he was being deceived by his partymates aswell as by the opposition, who promised him cooperation, which promises were either offered as abargaining 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 overt a terrifying bloodbath and the breakdown of the Republic, the incumbent President proclaimed martial law to save theRepublic from being overrun by communists, secessionists and rebels by effecting the desiredreforms in order to eradicate the evils that plague our society, which evils have been employed by thecommunists, the rebels and secessionists to exhort the citizenry to rise against the government. Byeliminating the evils, the enemies of the Republic will be decimated. How many of the petitioners andtheir counsels have been utilizing the rebels, secessionists and communists for their own personal orpolitical purposes and how many of them are being used in turn by the aforesaid enemies of the Statefor 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 achance to implement the desired reforms. The incumbent President assured the nation that he willgovern within the framework of the Constitution and if at any time, before normalcy is restored, thepeople thru their Citizens' Assemblies, cease to believe in his leadership, he will step down voluntarilyfrom 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, heknows only too well; because he is aware that he who rides the tiger will eventually end inside thetiger's stomach. He who toys with revolution will be swallowed by that same revolution. History isreplete with examples of libertarians who turned tyrants and were burned at stake or beheaded orhanged or guillotined by the very people whom they at first championed and later deceived. Themost bloody of such mass executions by the wrath of a wronged people, was the decapitation byguillotine of about 15,000 Frenchmen including the leaders of the French revolution, likeRobespierre, Danton, Desmoulins and Marat. He is fully cognizant of the lessons of history.

HENCE, THE DISMISSAL OF THESE FIVE CASES IS JUSTIFIED.

ESGUERRA, J.: For Dismissal of Petitions

These petitions seek to stop and prohibit the respondents Executive Officers from implementing theConstitution 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,


132 of 207 6/20/2012 8:16 AM

to convene the Senate in regular session which should have started on January 22, 1973; to nullifyProclamation No. 1102 of the President issued on January 17, 1973, which declared the ratificationof the Constitution on November 30, 1972, by the Filipino people, through the barangays or CitizensAssemblies established under Presidential Decree No. 86 issued on December 31, 1972, which wereempowered under Presidential Decree No. 86-A, issued on January 5, 1973, to act in connectionwith 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 thedeclaration of Martial Law on September 21, 1972.

2.The Convention was not empowered to incorporate certain provisions in the 1972 Constitutionbecause they are highly unwise and objectionable and the people were not sufficiently informedabout them.

3.The President had no authority to create and empower the Citizens Assemblies to ratify the newConstitution at the referendum conducted in connection therewith, as said assemblies were merelyfor consultative purposes, and

4.The provisions of Article XV of the 1935 Constitution prescribing the manner of amending thesame were not duly observed.

The petitions were not given due course immediately but were referred to the Solicitor General ascounsel for the respondents for comment, with three members of the Court, including theundersigned, voting to dismiss them outright. The comments were considered motions to dismisswhich were set for hearing and extensively argued. Thereafter both parties submitted their notes andmemoranda on their oral arguments.

I.

The issues raised for determination, on which the resolution of the Motion to Dismiss hinges, are asfollows:

1.Is the question presented political and, hence, beyond the competence of this Court to decide, or isit justiciable and fit for judicial determination?

2.Was the new Constitution of November 30, 1972, ratified in accordance with the amending processprescribed 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 reliefsprayed for?

II.

The pivotal question in these cases is whether the issue raised is highly political and, therefore, notjusticiable. I maintain that this Court should abstain from assuming jurisdiction, but, instead, as an act


133 of 207 6/20/2012 8:16 AM

of judicial statesmanship, should dismiss the petitions. In resolving whether or not the questionpresented is political, joint discussion of issues Nos. 1, 3 and 4 is necessary so as to arrive at a logicalconclusion. For after the acceptance of a new Constitution and acquiescence therein by the peopleby putting it into practical operation, any question regarding its validity should he foreclosed and alldebates on whether it was duly or lawfully ushered into existence as the organic law of the statebecome political and not judicial in character.

The undisputed facts that lead to the issuance of Proclamation No. 1102 and Presidential DecreesNos. 86 and 86-A are fully set forth in the majority and dissenting opinions in the Plebiscite casesdecided on January 22, 1973, and need not be repeated here.

Petitioners seeks to set at naught Proclamation No. 1102 and Presidential Decrees Nos. 86 and86-A, claiming that the ratification of the new Constitution pursuant to the said decrees is invalid andof no effect. Presidential Decree No. 86 organized the barangays or Citizens Assemblies composedof all citizens at least fifteen years of age, and through these assemblies the proposed 1972Constitution was submitted to the people for ratification. Proclamation No. 1102 of the Presidentannounced or declared the result of the referendum or plebiscite conducted through the CitizensAssemblies, and that 14,976,561 members thereof voted for the ratification of the new Constitutionand 743,869 voted against it. Petitioners assail these two acts of the President as unauthorized anddevoid of legal effect.

But looking through the veneer of judicial conformity with which the petitions have been adroitlycontrived, what is sought to be invalidated is the new Constitution itself — the very framework of thepresent Government since January 17, 1973. The reason is obvious. The Presidential decrees set upthe means for the ratification and acceptance of the new Constitution and Proclamation No. 1102simply announced the result of the referendum or plebiscite by the people through the CitizensAssemblies. The Government under the new Constitution has been running on its tracks normallyand apparently without obstruction in the form of organized resistance capable of jeopardizing itsexistence and disrupting its operation. Ultimately the issue is whether the new Constitution may beset aside by this Court. But has it the power and authority to assume such a stupendous task whenthe result of such invalidation would be to subject this nation to divisive controversies that may totallydestroy the social order which the Government under the new Constitution has been admirablyprotecting and promoting under Martial Law? That the new Constitution has taken deep root and thepeople are happy and contended with it is a living reality which the most articulate critics of the neworder cannot deny. 95 out of 108 members of the House of Representatives have opted to serve inthe interim National Assembly provided for under the new Constitution. 15 out of 24 Senators havedone likewise. The members of the Congress did not meet anymore last January 22, 1973, notbecause they were really prevented from so doing but because of no serious effort on their parts toassert their offices under the 1935 Constitution. In brief the Legislative Department under the 1935Constitution is a thing of the past. The Executive Department has been fully reorganized; newappointments of key executive officers including those of the Armed Forces were extended and theytook an oath to support and defend the new Constitution. The courts, except the Supreme Court byreason of these cases, have administered justice under the new Constitution. All government officeshave dealt with the public and performed their functions according to the new Constitution and lawspromulgated thereunder.

If the real purpose of the petitions is to set aside the new Constitution, how can this Court justify itsassumption of jurisdiction when no power has . . . conferred upon it the jurisdiction to declare the


134 of 207 6/20/2012 8:16 AM

Constitution or any part thereof null and void? It is the height of absurdity and impudence for a courtto wage open war against the organic act to which it owes its existence. The situation in which thisCourt finds itself does not permit it to pass upon the question whether or not the new Constitutionhas entered into force and has superseded the 1935 Constitution. If it declares that the presentConstitution has not been validly ratified, it has to uphold the 1935 Constitution as still the prevailingorganic law. The result would be too anomalous to describe, for then this Court would have todeclare that it is governed by one Constitution or the 1935 Constitution, and the legislative andexecutive branches by another or the 1972 Constitution.

If it declares that the 1972 Constitution is now operative, how can it exercise judicial discretion inthese cases when it would have no other choice but to uphold the new Constitution as against anyother one? In the circumstances it would be bereft of judicial attributes as the matter would then benot meet for judicial determination, but one addressed to the sovereign power of the people who havealready spoken and delivered their mandate by accepting the fundamental law on which thegovernment of this Republic is now functioning. To deny that the new Constitution has beenaccepted and actually is in operation would be flying in the face of reason and pounding one's barehead against a veritable stone wall or a heavily reinforced concrete, or simply "kicking the deadlypricks" 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 andobservance of its prescriptions by public officers chosen thereunder, is indicative of approval. Courtsshould be slow in nullifying a Constitution claimed to have been adopted not in accordance withconstitutional 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, 70Neb. 211; 97 N.W. 347].

In Miller vs. Johnson, supra, the Court said:

". . . But it is a case where a new constitution has been formed and promulgated according tothe forms of law. Great interests have already arisen under it; important rights exist by virtueof it; persons have been convicted of the highest crimes known to the law, according to itsprovisions; the political power of the government has in many ways recognized it; and undersuch circumstances, it is our duty to treat and regard it as a valid constitution, and now theorganic law of our state. We need not consider the validity of the amendments made afterthe convention reassembled. If the making of them was in excess of its power, yet, as theentire instrument has been recognized as valid in the manner suggested, it would be equallyan abuse of power by the judiciary, and violative of the rights of the people, — who canand property should remedy the matter, if not to their liking, — if it were to declare theinstrument 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 toa new constitution, and not an amendment, because the judicial power presupposes anestablished government, and if the authority of that government is annulled and overthrown,the power of its courts is annulled with it; and therefore, if a state court should enter upon


135 of 207 6/20/2012 8:16 AM

such an inquiry, and come to the conclusion that the government under which it acted hadbeen displaced by an opposing government, it would cease to be a court, and it would beincapable of pronouncing a judicial decision upon the question before it; but, if it decides atall, it must necessarily affirm the existence of the government under which it exercises itsjudicial powers." (Emphasis supplied)

These rules are all traceable to Luther vs. Borden, 48 U.S. (7 How.), 12 L. Ed. 581, 598 (1849)where it was held:

"Judicial power presupposes an established government capable of enacting laws andenforcing their execution, and of appointing judges to expound and administer them. Theacceptance of the judicial office is a recognition of the authority of the government fromwhich it is derived. And if the authority of that government is annulled and overthrown, thepower of its courts and other officers is annulled with it. And if a State court should enterupon the inquiry proposed in this case, and should come to the conclusion that thegovernment under which it acted had been put aside and displaced by an opposinggovernment it would cease to be a court, and be incapable of pronouncing a judicial decisionupon the question it undertook to try. If it decides at all as a court, it necessarily affirms theexistence 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 ofthe new Constitution and no state with which we maintain diplomatic relations has withdrawn itsrecognition of our government. (For particulars about executive acts done under the newConstitution, 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 bythis Court would smack of plain political meddling which is described by the United States SupremeCourt as "entering a political thicket" in Colegrove vs. Green, 328 U.S. p. 549. At this juncture itwould be the part of wisdom for this Court to adopt the proper attitude towards political upheavalsand realize that the question before Us is political and not fit for judicial determination. For a politicalquestion is one entrusted to the people for judgment in their sovereign capacity (Tañada vs. Cuenco,G.R. No. L-10520, Feb. 28, 1967; 100 Phil. 1101), or to a co-equal and coordinate branch of theGovernment (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 politicalquestion when there would be "the impossibility of undertaking independent resolutions withoutexpressing a lack of respect due to coordinate branches of government", or when there is "thepotentiality of embarassment from multifarious pronouncements by various departments on onequestion."

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 popularfeeling on which this Court must pronounce", let us harken to the following admonition of JusticeFrankfurter 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 onsustained public confidence in its moral sanction. Such feeling must be nourished by theCourt's complete detachment, in fact and appearance, from political entanglements andabstention from injecting itself into the clash of political forces in political settlement . . ."(Emphasis supplied)


136 of 207 6/20/2012 8:16 AM

The people have accepted and submitted to a new Constitution to replace the 1935 Constitution. Thenew organic law is now in the plenitude of its efficacy and vigor. We are now living under its aegisand protection and only the cynics will deny this. This Court should not in the least attempt to act asa super-legislature or a super- board of canvassers and sow confusion and discord among our peopleby pontificating that there was no valid ratification of the new Constitution. The sober realization ofits proper role and delicate function and its consciousness of the limitations on its competence,especially in situations like this, are more in keeping with the preservation of our democratic traditionthan the blatant declamations of those who wish the Court to engage in their brand of activism andwould not mind plunging it into the whirlpool of passion and emotion in an effort to capture theentoxicating 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 this Court is whether or not the Constitutionproposed by the Constitutional Convention of 1971 had been ratified in accordance with theprovisions of Article XV of the 1935 Constitution. In the plebiscite cases, which were decided by thisCourt 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 proposedConstitution had been validly ratified. The majority of this Court, however, was of the view that theissue was not squarely raised in those cases, and so the Court, as a body, did make any categoricalpronouncement on the question of whether or not the Constitution proposed by the 1971 Conventionwas validly ratified. I was the only one who expressed the opinion that the proposed Constitution wasnot 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 notthat 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 thatwe have mentioned because that issue is a political question that cannot be decided by this Court.This contention of the Solicitor General is untenable. A political question relates to "those questionswhich under the Constitution are to be decided by the people in their sovereign capacity or in regardto which full discretionary authority has been delegated to the legislative, or to the executive, branchof the government. 2 The courts have the power to determine whether the acts of the executive areauthorized by the Constitution and the laws whenever they are brought before the court in a judicialproceeding. The judicial department of the government exercises a sort of controlling, or ratherrestraining, 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 onone department when that sphere is actually transcended. While a court may not restrain theexecutive from committing an unlawful act, it may, when the legality of such an act is brought beforeit in a judicial proceeding, declare it to be void, the same as it may declare a law enacted by thelegislature to be unconstitutional. 3 It is a settled doctrine that every officer under a constitutionalgovernment 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, actingthrough the agency of the judiciary. It must be remembered that the people act through the courts, aswell 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


137 of 207 6/20/2012 8:16 AM

limitations which the law places upon all official actions 4 . In the case of Gonzales v. Commission onElections 5 , this Court ruled that the issue as to whether or not a resolution of Congress acting as aconstituent assembly violates the Constitution is not a political question and is therefore subject tojudicial review. In the case of Avelino v. Cuenco 6 , this Court held that the exception to the rule thatcourts will not interfere with a political question affecting another department is when such politicalquestion involves an issue as to the construction and interpretation of the provisions of theconstitution. And so, it has been held that the question of whether a constitution shall be amended ornot is a political question which is not in the power of the court to decide, but whether or not theconstitution 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 ondecisions of the courts in the United States — where, after all, our constitutional system has beenpatterned to a large extent — made me arrive at the considered view that it is in the power of thisCourt, as the ultimate interpreter of the Constitution, to determine the validity of the proposal, thesubmission, and the ratification of any change in the Constitution. Ratification or non-ratification of aconstitutional amendment is a vital element in the procedure to amend the constitution, and I believethat the Court can inquire into, and decide on, the question of whether or not an amendment to theconstitution, as in the present cases, has been ratified in accordance with the requirements prescribedin the Constitution that was amended. And so, in the cases now before Us, I believe that the questionof whether or not the Constitution proposed by the 1971 Constitutional Convention had been validlyratified 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 thequestion involved in these cases is justiciable.

On the question now of whether or not the Constitution proposed by the 1971 ConstitutionalConvention has been validly ratified, I am reproducing herein pertinent portions of my dissentingopinion in the plebiscite cases:

"The ratification of the Constitution proposed by the 1971 Constitutional Convention mustbe done in accordance with the provisions of Section 1, Article XV of the 1935 Constitutionof the Philippines, which reads:

'Section 1.The Congress in joint session assembled by a vote of three fourthsof all the Members of the Senate and of the House of Representatives votingseparately, may propose amendments to the Constitution or call a convention for thatpurpose. Such amendments shall be valid as part of this Constitution when approvedby a majority of the votes cast at an election at which the amendments are submittedto the people for their ratification.'

"It is in consonance with the abovequoted provision of the 1935 Constitution that on March16, 1967, the Congress of the Philippines passed Resolution No. 2 calling a convention topropose amendments to the Constitution of the Philippines. Sec. 7 of said Resolution No. 2reads as follows:

'SECTION 7.The amendments proposed by the Convention shall be valid andconsidered part of the Constitution when approved by a majority of the votes cast in


138 of 207 6/20/2012 8:16 AM

an election at which they are submitted to the people for their ratification pursuant toArticle XV of the Constitution.'

"It follows that from the very resolution of the Congress of the Philippines which called forthe 1971 Constitutional Convention there was a clear mandate that the amendmentsproposed by the 1971 Convention, in order to be valid and considered part of theConstitution, must be approved by majority of the votes cast in an election at which they aresubmitted to the people for their ratification as provided in the Constitution.

"This Court, in the case of Tolentino vs. Commission on 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 samenature, owes its existence and derives all its authority and power from the existingConstitution of the Philippines. This Convention has not been called by the peopledirectly as in the case of a revolutionary convention which drafts the firstConstitution of an entirely new government born of either a war of liberation from amother country or of a revolution against an existing government or of a bloodlessseizure of power a la coup d'etat. As to such kind of conventions, it is absolutely truethat the convention is completely without restraint and omnipotent all wise, and it isas to such conventions that the remarks of Delegate Manuel Roxas of theConstitutional Convention of 1934 quoted by Senator Pelaez refer. No amount ofrationalization can belie the fact that the current convention came into being onlybecause it was called by a resolution of a joint session of Congress acting as aconstituent assembly by authority of Section 1, Article XV of the presentConstitution . . .

xxx xxx xxx

'As to matters not related to its internal operation and the performance of itsassigned mission to propose amendments to the Constitution, the Convention and itsofficers 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 theConstitution, 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 Philippinescertified that as a result of the voting before the barangays (Citizens Assemblies) 14,976,561members of the barangays voted for the adoption of the proposed Constitution, as against743,869 who voted for its rejection, and on the basis of the overwhelming majority of thevotes cast by the members of all the barangays throughout the Philippines the Presidentproclaimed that the Constitution proposed by the 1971 Convention has been ratified and hasthereby come into effect.

"It is very plain from the very wordings of Proclamation No. 1102 that the provisions ofSection 1 of Article XV of the Constitution of 1935 were not complied with. It is notnecessary that evidence be produced before this Court to show that no elections were held inaccordance with the provisions of the Election Code. Proclamation No. 1102 unequivocablystates that the proposed Constitution of 1972 was voted upon by the barangays. It is veryclear, therefore, that the voting held in these barangays is not the election contemplated inthe provisions of Section 1, Article XV, of the 1935 Constitution. The election contemplatedin said constitutional provision is an election held in accordance with the provisions of theelection law, where only the qualified and registered voters of the country would cast their


139 of 207 6/20/2012 8:16 AM

votes, where official ballots prepared for the purpose are used, where the voters wouldprepare their ballots in secret inside the voting booths in the polling places established in thedifferent election precincts throughout the country, where the election is conducted byelection inspectors duly appointed in accordance with the election law, where the votes arecanvassed and reported in a manner provided for in the election law. It was this kind ofelection that was held on May 14, 1935, when the Constitution of 1935 was ratified; on April30, 1937, when the amendment to the Constitution providing for Women's Suffrage wasratified; on June 18, 1940, when the 1940 Amendments to the Constitution were ratified; onMarch 11, 1947 when the Parity Amendment to the Constitution was ratified; and onNovember 14, 1967 when the amendments to the Constitution to increase the number ofMembers of the House of Representatives and to allow the Members of Congress to run inthe 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 theconstitutional provision requiring the holding of an election to ratify or reject an amendmentto the Constitution, has not been followed in the case of the Constitution proposed by the1971 Constitutional Convention.

"It is my view that the President of the Philippines cannot by decree order the ratification ofthe proposed 1972 Constitution thru a voting in the barangays and make said result the basisfor proclaiming the ratification of the proposed constitution. It is very clear, to me, thatProclamation No. 1102 was issued in complete disregard or in violation, of the provisions ofSection 1 of Article XV of the 1935 Constitution.

"Proclamation No. 1102 mentions, furthermore, that on the question as to whether or not thepeople would still like a plebiscite to be called to ratify the new Constitution, 14,298,814members of the barangays answered that there was no need for a plebiscite but that the voteof the barangays should be considered a vote in a plebiscite. It would thus appear that thebarangays assumed the power to determine whether a plebiscite as ordained in theConstitution be held or not. Indeed, the provision of Section 1, Article XV of theConstitution was completely disregarded.

"The affirmative votes cast in the barangays are not the votes contemplated in Section 1 ofArticle XV of the 1935 Constitution. The votes contemplated in said constitutional provisionare votes obtained through the election processes as provided by law.

'An election is the embodiment of the popular will, the expression of thesovereign power of the people. In common parlance an election is the act of castingand 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 inthe manner and with the safeguards provided by law with respect to some question orissue. (Leffel v. Brown, Com. P1., 159 N.E. 2d 807, 808 cited in 29 C.J.S. 13 atfootnote 6.5).

'. . . the statutory method whereby qualified voters or electors pass on variouspublic 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-llinois Gas & Elec. Co. v. City of Bettendorf, 41 N.W. 2d 1,5, 241 Iowa 358).


140 of 207 6/20/2012 8:16 AM

'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 statutoryrequirements as have been set by the legislature.' (People ex rel. Rago v. Lipsky, 63N.E. 2d 642, 327 Ill. App. 63; Rothfels v. Southworth, 356 P. 2d 612, 11 Utah 2d 169in 29 C.J.S. 38). (Italics 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 exceptbarrio officials and plebiscites shall be conducted in the manner provided by thisCode.'

'Sec. 99.Necessity of registration to be entitled to vote. — In order that aqualified voter may vote in any regular or special election or in any plebiscite he mustbe registered in the permanent list of voters for the city, municipality or municipaldistrict in which he resides: Provided, That no person shall register more than oncewithout first applying for cancellation of his previous registration.' (Italics supplied).(Please see also Sections 100-102, Election Code of 1971, RA. No. 6388).

"It is stated in Proclamation No. 1102 that the voting was done by the members of citizensassemblies who are 15 years of age or over. Under the provision of Section 1 of Article V ofthe 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 fewinstances, was done by the raising of hands by the persons indiscriminately gathered toparticipate in the voting, where even children below 15 years of age were included. This is amatter of common observation, or of common knowledge, which the Court may take judicialnotice of. To consider the votes in the barangays as expressive of the popular will and usethem as the basis in declaring whether a Constitution is ratified or rejected is to resort to avoting by demonstrations, which is would mean the rule of the crowd, which is only onedegree higher than the rule by the mob. Certainly, so important a question as to whether theConstitution, which is the supreme law of the land, should be ratified or not, must not bedecided by simply gathering people and asking them to raise their hands in answer to thequestion of whether they vote for or against a proposed Constitution. The election processesas provided by law should be strictly observed in determining the will of the sovereignpeople in a democracy. In our Republic the will of the people must be expressed through theballot 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 peopleare sovereign, but the will of the people must be expressed in a manner as the law and thedemands of a well-ordered society require. The rule of law must prevail even over theapparent 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 inaccordance with the Constitution and the law. This is specially true in the case of theadoption 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 theproposed Constitution of 1972 had been validly ratified, or not:


141 of 207 6/20/2012 8:16 AM

'When it is said that 'the people' have the right to alter or amend theconstitution, it must not be understood that this term necessarily includes all theinhabitants of the state. Since the question of the adoption or rejection of a proposednew constitution or constitutional amendment must be answered by a vote, thedetermination of it rests with those who, by the existing constitution, are accordedthe right of suffrage. But the qualified electors must be understood in this, as in manyother 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 ofpeople in a state, acting through representatives not chosen by the 'people' in thepolitical sense of the term, but by the general body of the populace, the movementwould be extra-legal' (Black's Constitutional Law, Second Edition, pp. 47-48).

'The theory of our political system is that the ultimate sovereignty is in thepeople, from whom springs all legitimate authority. The people of the Union created anational constitution, and conferred upon it powers of sovereignty over certainsubjects, and the people of each State created a State government, to exercise theremaining powers of sovereignty so far as they were disposed to allow them to beexercised at all. By the constitution which they establish, they not only tie up thehands of their official agencies, but their own hands as well; and neither the officersof the State, nor the whole people as an aggregate body, are at liberty to take actionin opposition to this fundamental law.' (Cooley's Constitutional Limitations, 8thEdition, 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 aproposal to amend a constitution, may cure, render innocuous, all or any antecedentfailures to observe commands of that Constitution in respect of the formulation orsubmission of proposed amendments thereto, does not prevail in Alabama, where thedoctrine of the stated theory was denied, in obvious effect, by the pronouncement 60years ago of broad, wholesome constitutional principles in Collier v. Frierson, supra,as quoted in the original opinion, ante. The people themselves are bound by theConstitution; and, being so bound, are powerless, whatever their numbers, to changeor thwart its mandates, except through the peaceful means of a constitutionalconvention, or of amendment according to the mode therein prescribed, or throughthe exertion of the original right of revolution. 'The Constitution may be set aside byrevolution, but it can only be amended in the way it provides,' said Hobson, C.J., inMcCreary v. Speer, 156 Ky. 783, 791, 162 S. W. 99, 103. (Johnson vs. Craft, et al., 87So. 375, 385, 387, On Rehearing).

'The fact that a majority voted for the amendment, unless the vote was takenas 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, forthe court must uphold and enforce the Constitution as written until it is amended inthe 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 PavingCompany 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 merelydirectory, but are mandatory; and a strict observance of every substantialrequirement is essential to the validity of the proposed amendment. These provisionsare as binding on the people as on the legislature, and the former are powerless byvote of acceptance to give legal sanction to an amendment the submission of which


142 of 207 6/20/2012 8:16 AM

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 governmental affairs of the State willresult from the Court's action in declaring the proposed constitutional amendmentvoid. This statement is grossly and manifestly inaccurate. If confusion and chaosshould ensue, it will not be due to the action of the Court but will be the result of thefailure of the drafters of the joint resolution to observe, follow and obey the plainessential provisions of the Constitution. Furthermore, to say that, unless the Courtdisregards its sworn duty to enforce the Constitution, chaos and confusion will result,is an inherently weak argument in favor of the alleged constitutionality of theproposed amendment. It is obvious that, if the Court were to countenance theviolations of the sacramental provisions of the Constitution, those who wouldthereafter desire to violate it and disregard its clear mandatory provisions wouldresort to the scheme of involving and confusing the affairs of the State and thensimply tell the Court that it was powerless to exercise one of its primary functions byrendering the proper decree to make the Constitution effective.' (Graham v. Jones, 3So. 2d. 761, 793-794).

"In our jurisprudence I find an instance where this Court did not allow the will of themajority to prevail, because the requirements of the law were not complied with. In the caseof Monsale v. Nico, 83 Phil. 758, Monsale and Nico were both candidates for the office ofMunicipal Mayor of Miagao, Iloilo, in the elections of November 11, 1947. Monsale hadduly filed his certificate of candidacy before the expiration of the period for the filing of thesame. However, on October 10, 1947, after the period for the filing of certificate ofcandidacy, Monsale withdrew his certificate of candidacy. But on November 7, 1947Monsale attempted to revive his certificate of candidacy by withdrawing the withdrawal ofhis certificate of candidacy. e ( The Commission on Elections, on November 8, 1947, ruledthat Monsale could no longer be a candidate. Monsale nevertheless proceeded with hiscandidacy. The boards of inspectors in Miagao, however, did not count the votes cast forMonsale upon the ground that the votes cast for him were stray votes, because he wasconsidered as having no certificate of candidacy. On the other hand, the boards of inspectorscredited Nico with 2,291 votes, and Nico was proclaimed elected. Monsale filed a protestagainst the election of Nico in the Court of First Instance of Iloilo. In the count of the ballotsduring the proceedings in the trial court it appeared that Monsale had obtained 2,877 voteswhile Nico obtained 2,276 votes, or a margin of 601 votes in favor of Monsale. The Court ofFirst Instance of Iloilo decided the election protest in favor of Monsale. Upon appeal byNico, this Court reversed the decision of the lower court. This Court declared that becauseMonsale withdrew his certificate of candidacy his attempt to revive it by withdrawing hiswithdrawal of his certificate of candidacy did not restore the effectiveness of his certificateof candidacy, and this Court declared Nico the winner in spite of the fact that Monsale hadobtained more votes than he.

"We have cited this Monsale case to show that the will of the majority of the voters wouldnot be given effect, as declared by this Court, if certain legal requirements have not beencomplied with in order to render the votes valid and effective to decide the result of anelection.

"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


143 of 207 6/20/2012 8:16 AM

ratification of the amendment to the Constitution, the affirmative votes cast in thoseassemblies can not be made the basis for declaring the ratification of the proposed 1972Constitution, in spite of the fact that it was reported that 14,976,561 members of the citizensassemblies voted for the adoption as against 743,869 for the rejection, because the votes thusobtained were not in accordance with the provisions of Section 1 of Article XV of the 1935Constitution of the Philippines. The rule of law must he upheld.

"My last observation: One of the valid grounds against the holding of the plebiscite onJanuary 15, 1973, as provided in Presidential Decree No. 73, is that there is no freedom onthe part of the people to exercise their right of choice, because of the existence of martiallaw in our country. The same ground holds true as regards the voting of the barangays onJanuary 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 PresidentialDecree No. 73 in so far as they allow free public discussion of the proposed constitution, aswell as any order of December 17, 1972 temporarily suspending the effects of ProclamationNo. 1081 for the purpose of free and open debate on the proposed constitution, hesuspended in the meantime.' It is, therefore, my view that voting in the barangays on January10-15, 1973 was not free, and so this is one added reason why the results of the voting in thebarangays should not be made the basis for the proclamation of the ratification of theproposed Constitution.

"It is my view, therefore, that Proclamation No. 1102 is repugnant to the 1935 Constitution,and so it is invalid, and should not be given effect. The Constitution of 1972 proposed by the1971 Constitutional Convention should be considered as not yet ratified by the people of thisRepublic, 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 asubstantial compliance with the provisions of Article XV of the 1935 Constitution. The SolicitorGeneral-maintains that the primary thrust of the provision of Article XV of the 1935 Constitution isthat "to be valid, amendments must gain the approval of the majority in recognition of the democraticpostulate that sovereignty resides in the people." It is not disputed that in a democracy sovereigntyresides in the people. But the term "people" must be understood in its constitutional meaning, andthey are "those persons who are permitted by the Constitution to exercise the elective franchise." 8Thus, in Section 2 of Article VII of the 1935 Constitution, it is provided that "The President shall holdhis office during a term of four years and, together with the Vice- President chosen for the sameterm, shall be elected by direct vote of the people . . ." Certainly under that constitutional provisionthe "people" who elect directly the President and the Vice-President are no other than the personswho, under the provisions of the same Constitution, are granted the right to vote. In like manner theprovision in Section 1 of Article II of the 1935 Constitution which says "Sovereignty resides in thepeople and all government authority emanates from them", the "people" who exercise the sovereignpower are no other than the persons who have the right to vote under the Constitution. In the case ofGarchitorena 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 isexpressed through the ballot, of the qualified voters, in duly appointed elections held from time totime, by means of which they choose their officials for definite fixed periods, and to whom theyentrust, for the time being, as their representatives, the exercise of the powers of government." In thecase of Moya v. Del Fierro, 10 this Court, speaking through Mr. Justice Laurel, said, "As long aspopular government is an end to be achieved and safeguarded, suffrage, whatever may be themodality and form devised, must continue to be the means by which the great reservoir of powermust be emptied into the receptacular agencies wrought by the people through their Constitution in


144 of 207 6/20/2012 8:16 AM

the interest of good government and the common weal. Republicanism, in so far as it implies theadoption of a representative type of government, necessarily points to the enfranchised citizen as aparticle of popular sovereignty and as the ultimate source of the established authority." And in thecase of Abanil v. Justice of the Peace of Bacolod, 11 this Court said: "In the scheme of our presentrepublican government, the people are allowed to have a voice therein through the instrumentalityof suffrage to be availed of by those possessing certain prescribed qualifications. The people, inclothing a citizen with the elective franchise for the purpose of securing a consistent and perpetualadministration of the government they ordain, charge him with the performance of a duty in thenature of a public trust, and in that respect constitute him a representative of the whole people. Thisduty requires that the privilege thus bestowed should be exercised, not exclusively for the benefit ofthe citizen or class of citizens professing it, but in good faith and with an intelligent zeal for thegeneral 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 theduly qualified and registered voters who vote during an election that is held as provided in theConstitution or in the law.

The term "election" as used in Section 1 of Article XV of the 1935 Constitution should be construedalong with the term "election" as used in the provisions of Section 4 of the Philippine IndependenceAct of the Congress of the United States, popularly known as the Tydings-McDuffie Law (Public ActNo. 127). Said Section 4 of the Tydings-McDuffie Law provides as follows:

"Section 4.After the President of the United States has certified that the constitutionconforms with the provisions of this act, it shall be submitted to the people of the PhilippineIslands for their ratification or rejection at an election to be held within four months after thedate of such certification, on a date to be fixed by the Philippine Legislature, at whichelection the qualified voters of the Philippine Islands shall have an opportunity to votedirectly for or against the proposed constitution and ordinances appended thereto. Suchelection shall be held in such manner as may be prescribed by the Philippine Legislature, towhich the return of the election shall be made. The Philippine Legislature shall by lawprovide for the canvassing of the return and shall certify the result of the Governor- Generalof the Philippine Islands, together with a statement of the votes cast, and a copy of saidconstitution and ordinances. If a majority of the votes cast shall be for the constitution, suchvote 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 thePhilippine Legislature, issue a proclamation for the election of officers of the government ofthe 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 1 of Article XV of the 1935 Constitution they had no other idea in mind exceptthe elections that were periodically held in the Philippines for the choice of public officials prior tothe drafting of the 1935 Constitution, and also the "election" mentioned in the Independence Act atwhich "the qualified voters of the Philippine Islands shall have an opportunity to vote directly for oragainst the proposed constitution . . ." It is but logical to expect that the framers of the 1935Constitution would provide a mode of ratifying an amendment to that Constitution similar to themode of ratifying the original Constitution itself.

It is clear, therefore, that the ratification or any amendment to the 1935 Constitution could only hedone by holding an election, as the term "election" was understood, and practiced, when the 1935Constitution was drafted. The alleged referendum in the citizens assemblies — participated in by


145 of 207 6/20/2012 8:16 AM

persons aged 15 years or more, regardless of whether they were qualified voters or not, voting byraising their hands, and the results of the voting reported by the barrio or ward captain to themunicipal mayor, who in turn submitted the report to the Provincial Governor, and the latterforwarding the reports to the Department of Local Governments, all without the intervention of theCommission on Elections which is the constitutional body which has exclusive charge of theenforcement and administration of all laws relative to the conduct of elections — was not only anon-substantial compliance with the provisions of Section 1 of Article XV of the 1935 Constitutionbut a downright violation of said constitutional provision. It would be indulging in sophistry tomaintain that the voting in the citizens assemblies amounted to a substantial compliance with therequirements prescribed in Section 1 of Article XV of the 1935 Constitution, 1935 Constitution.

It is further contended by the Solicitor General, that even if the Constitution proposed by the 1971Constitutional Convention was not ratified in accordance with the provisions of Section 1 of ArticleXV of the 1935 Constitution, the fact is that after the President of the Philippines had issuedProclamation No. 1102 declaring that the said proposed Constitution "has been ratified byoverwhelming 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 newConstitution. What appears to me, however, is that practically it is only the officials and employeesunder the executive department of the Government who have been performing their duties apparentlyin observance of the provisions of the new Constitution. It could not be otherwise, because thePresident of the Philippines, who is the head of the executive department, had proclaimed that thenew Constitution had come into effect, and his office had taken the steps to implement the provisionsof the new Constitution. True it is, that some 92 members of the House of Representatives and 15members of the Senate, of the Congress of the Philippines had expressed their option to serve in theinterim National Assembly that is provided for in Section 2 of Article XVII of the proposedConstitution. It must be noted, however, that of the 15 senators who expressed their option to servein the interim National Assembly only one of them took his oath of office, and of the 92 members ofthe House of Representatives who opted to serve in the interim National Assembly, only 22 took theiroath of office. The fact, that only one Senator out of 24, and only 22 Representatives out of 110,took their oath of office, is an indication that only a small portion of the members of Congress hadmanifested their acceptance of the new Constitution. It is in the taking of the oath of office where theaffiant says that he swears to "support and defend the Constitution" that the acceptance of theConstitution is made manifest. I agree with counsel for petitioners in 1,36165 (Gerardo Roxas, et al.v. Alejandro Melchor, et al.) when he said that the members of Congress who opted to serve in theinterim National Assembly did so only ex abundante cautela, or by way of a precaution, or makingsure, that in the event the new Constitution becomes definitely effective and the interim NationalAssembly is convened they can participate in legislative work in their capacity as duly electedrepresentatives of the people, which otherwise they could not do if they did not manifest their optionto serve, and that option had to be made within 30 days from January 17, 1973, the date whenProclamation No. 1102 was issued. Of course, if the proposed Constitution does not becomeeffective, they continue to be members of Congress under the 1935 Constitution. Let it be consideredthat the members of the House of Representatives were elected in 1969 to serve a term which willyet expire on December 31, 1973. Whereas, of the Senators who opted to serve in the interimNational Assembly, the term of some of them will yet expire on December 31, 1973, some onDecember 31, 1975, and the rest on December 31, 1977. Let if be noted that 9 Senators did not optto serve in the interim National Assembly, and 18 members of the House of Representatives also did


146 of 207 6/20/2012 8:16 AM

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 bythe people of their approval, or acceptance, of the proposed Constitution. I have my serious doubtsregarding the freedom of the people to express their views regarding the proposed Constitutionduring the voting in the citizens assemblies, and I have also my serious doubts regarding thetruthfulness and accuracy of the reports of the voting in the citizens assemblies. This doubt has beenengendered 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 besaid that the people, or the inhabitants of this country, have acquiesced to the new Constitution, inthe sense that they have continued to live peacefully and orderly under the government that has beenexisting 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 sinceSeptember 23, 1972, they also have to live under the government as it now exists, and as it hasexisted since the declaration of martial law on September 21, 1972, regardless of what Constitution isoperative — whether it is the 1935 Constitution or the new Constitution. Indeed, there is nothing thatthe 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 newConstitution, and that because the people have accepted it, the new Constitution should beconsidered as in force, regardless of the fact that it was not ratified in accordance with the provisionsof Section 1 of Article XV of the 1935 Constitution.

It is my honest view that the Constitution proposed by the 1971 Constitutional Convention has notcome into effect. I do not say, however, that the proposed Constitution is invalid. To me, the validityof the proposed Constitution is not in issue in the cases before Us. What the petitioners assail is notthe validity of the proposed Constitution but the validity of Presidential Proclamation No. 1102 whichdeclares the proposed Constitution as having been ratified and has come into effect. It being myconsidered 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, Ihold that Proclamation No. 1102 is invalid and should not be given force and effect. The proposedConstitution, therefore, should be considered as not yet validly ratified, and so it is not in force. Theproposed Constitution may still be submitted to a plebiscite in conformity with Section 1 of ArticleXV of the 1935 Constitution. Incidentally, I must state that the 1935 Constitution is still in force, andthis Court is still functioning under the 1935 Constitution.

I sincerely believe that the proposed Constitution may still be submitted to the people in an electionor plebiscite held in accordance with the provisions of Section 1 of Article XV of the 1935Constitution. 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 the1935 Constitution. The Court may take judicial notice of the fact that the President of the Philippineshas reassured the nation that the government of our Republic since the declaration of martial law isnot a revolutionary government, and that he has been acting all the way in consonance with hispowers 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 1935Constitution is still in force, I believe Congress may still convene and pass a law calling for anelection at which the Constitution proposed by the 1971 Constitutional Convention will be submitted


147 of 207 6/20/2012 8:16 AM

to the people for their ratification or rejection. A plebiscite called pursuant to Section 1 of Article XVof the 1935 Constitution is an assurance to our people that we still have in our country the Rule ofLaw, and that the democratic system of government that has been implanted in our country by theAmericans, 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 aboutstability in the democratic and constitutional system in our country. I feel that if this Court would giveits 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 hadnot been complied with, We will be opening the gates for a similar disregard of the Constitution in thefuture. What I mean is that if this Court now declares that a new Constitution is now in force becausethe members of the citizens assemblies had approved said new Constitution, although that approvalwas 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 proposedamendment is submitted to the people in any manner and what will matter is that a basis is claimedthat there was approval by the people. There will not be stability in our constitutional system, andnecessarily no stability in our government. As a member of this Court I only wish to contribute myhumble 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 inthe citizens assemblies is a clear violation of the 1935 Constitution, what I say in this opinion issimply an endeavor on my part to be true to my oath of office to defend and support the 1935Constitution. 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 theirreverential guardianship."

I only wish to help prevent, if I can, democracy and the liberties of our people from vanishing in ourland, 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 lostbecause 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 haswritten in these cases. Along with him, I vote to deny the motion to dismiss and to give due course tothe petitions in these cases.

FERNANDO, J., dissenting:

No question more momentous, none impressed with such transcendental significance is likely toconfront this Court in the near or distant future as that posed by these petitions. For while thespecific substantive issue is the validity of Presidential Proclamation No. 1102, an adverse judgmentmay be fraught with consequences that, to say the least, are far-reaching in its implications. Asstressed by respondents, "what petitioners really seek to invalidate is the new Constitution." 1 Strictaccuracy would of course qualify such statement that what is in dispute, as noted in the opinion ofthe Chief Justice, goes only as far as the validity of its ratification. It could very well be though that


148 of 207 6/20/2012 8:16 AM

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 continuityin a regime under a fundamental law, which itself explicitly recognizes the need for change and theprocess for bringing it about, 2 it seems to me that the more appropriate course is for this Court togive heed to the plea of petitioners that the most serious attention be paid to their submission that thechallenged executive act fails to meet the test of constitutionality. Under the circumstances, withregret and with due respect for the opinion of my brethren, I must perforce dissent. It would followtherefore that the legal position taken by the Chief Justice as set forth with his usual lucidity andthoroughness has, on the whole, my concurrence, subject, of course, to reservations insofar as itcontains views and nuances to which I have in the past expressed doubts. Nonetheless, I feel that abrief 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 expectedto be an oracle given to utterances of eternal verities, but certainly it is more than just a keen butpassive observer of the contemporary scene. It is, by virtue of its role under the separation of powersconcept, involved not necessarily as a participant in the formation of government policy, but as anarbiter of its legality. Even then, there is realism in what Lerner did say about the American SupremeCourt as "the focal point of a set of dynamic forces which [could play] havoc with the landmarks ofthe American state and determine the power configuration of the day." 3 That is why there is thiscaveat. In the United States as here, the exercise of the power of judicial review is conditioned on thenecessity that the decision of a case or controversy before it so requires. To repeat, the Justices ofthe highest tribunal are not, as Justice Frankfurter made clear, "architects of policy. They can nullifythe 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 theconclusion it reaches and the decision it renders does not merely check the coordinate branches, butalso by its approval stamps with legitimacy the action taken. Thus in affirming constitutionalsupremacy, the political departments could seek the aid of the judiciary. For the assent it gives towhat has been done conduces to its better support in a regime where the rule of law holds sway. Indischarging such a rule, this Court must necessarily take into account not only what the exigentneeds of the present demand but what may lie ahead in the unexplored and unknown vistas of thefuture. It must guard against the pitfall of lack of understanding of the dominant forces at work toseek a better life for all, especially those suffering from the pangs of poverty and disease, by a blinddetermination to adhere to the status quo. It would be tragic, and a clear case of its being recreant toits trust, if the suspicion can with reason be entertained that its approach amounts merely to amilitant vigilantism that is violently opposed to any form of social change. It follows then that it doesnot suffice that recourse be had only to what passes for scholarship in the law that could be marredby inapplicable erudition and narrow legalism. Even with due recognition of such factors, however, Icannot, for reasons to be set more at length and in the light of the opinion of the Chief Justice, reachthe same result as the majority of my brethren. For, in the last analysis, it is my firm conviction thatthe institution of judicial review speaks too clearly for the point to be missed that official action, evenwith due allowance made for the good faith that invariably inspires the step taken, has to face thegauntlet 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 seeka dismissal of these petitions. For them, the question raised is political and thus beyond thejurisdiction of this Court. Such an approach cannot be indicted for unorthodoxy. It is implicit in theconcept of the rule of law that rights belong to the people and that government possesses powersonly. Essentially then, unless such an authority may either be predicated on express or implied grant


149 of 207 6/20/2012 8:16 AM

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. Itis their view, vigorously pressed and plausibly asserted, that since what is involved is not merely theeffectivity of an amendment but the actual coming into effect of a new constitution, the matter is notjusticiable. The immediate reaction is that such a contention is to be tested in the light of thefundamental doctrine of separation of powers that it is not only the function but the solemn duty ofthe judiciary to determine what the law is and to apply it in cases and controversies that call fordecision. 7 Since the Constitution pre-eminently occupies the highest rung in the hierarchy of legalnorms, it is in the judiciary, ultimately this Tribunal, that such a responsibility is vested. With the 1935Constitution containing, as above noted, an explicit article on the subject of amendments, it wouldfollow that the presumption to be indulged in is that the question of whether there has beendeference to its terms is for this Court to pass upon. What is more, the Gonzales, 8 Tolentino 9 andPlanas 10 cases speak unequivocally to that effect. Nor is it a valid objection to this conclusion thatwhat was involved in those cases was the legality of the submission and not ratification, for from thevery language of the controlling article, the two vital steps are proposal and ratification, which aspointed out in Dillon v. Gloss, 11 "cannot be treated as unrelated acts, but as succeeding steps in asingle endeavor." 12 Once an aspect thereof is viewed as judicial, there would be no justification forconsidering 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 towhat 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 thereforebeyond its jurisdiction or to an issue involved in a case appropriately subject to its cognizance, as towhich 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 thePresident 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 sovereigncapacity or in regard to which full discretionary authority is vested either in the Presidency orCongress. It is thus beyond the competence of the judiciary to pass upon. Unless clearly falling withinthe above formulation, the decision reached by the political branches whether in the form of acongressional 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 powercomes into play if there be an appropriate proceeding that may be filed only after either coordinatebranch has acted. Even when the Presidency or Congress possesses plenary power, its improvidentexercise or the abuse thereof, if shown, may give rise to a justiciable controversy. For theconstitutional grant of authority is not usually unrestricted. There are limits to what may be done andhow it is to be accomplished. Necessarily then, the courts in the proper exercise of judicial reviewcould inquire into the question of whether or not either of the two coordinate branches has adheredto 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 todesignate certain types of functions committed to the political organs of government (the legislativeand executive departments, or either of them), and not subject to judicial investigation." 15 After athorough study of American judicial decisions, both federal and state, he could conclude: "The fieldof judicial nonenforceability is important, but is not large when contrasted with the whole body ofwritten constitutional texts. The exceptions from judicial enforceability fall primarily within the fieldof public or governmental interests." 16 Nor was Professor Weston's formulation any different. Aswas expressed by him: "Judicial questions, in what may be thought the more useful sense, are those


150 of 207 6/20/2012 8:16 AM

which the sovereign has set to be decided in the courts. Political questions, similarly, are those whichthe sovereign has entrusted to the so called political departments of government or has reserved to besettled by its own extra-governmental action." 17 What appears undeniable then both from thestandpoint of Philippine as well as American decisions is the care and circumspection required beforethe conclusion is warranted that the matter at issue is beyond judicial cognizance, a political questionbeing raised.

2.The submission of respondents on this subject of political question, admittedly one of complexityand importance, deserves to be pursued further. They would derive much aid and comfort from thewritings of both Professor Bickel 18 of Yale and Professor Freund 19 of Harvard, both of whom inturn are unabashed admirers of Justice Brandeis. Whatever be the merit inherent in their lack ofenthusiasm for a more active and positive role that must be played by the United States SupremeCourt in constitutional litigation, it must be judged in the light of our own history. It cannot be deniedthat from the well nigh four decades of constitutionalism in the Philippines, even discounting analmost similar period of time dating from the inception of American sovereignty, there has sprung atradition of what has been aptly termed as judicial activism. Such an approach could be traced to thevaledictory address before the 1935 Constitutional Convention of Claro M. Recto. He spoke of thetrust reposed in the judiciary in these words: "It is one of the paradoxes of democracy that the peopleat times place more confidence in instrumentalities of the State other than those directly chosen bythem for the exercise of their sovereignty." 20 It would thus appear that even then this Court wasexpected 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 politicalconsiderations and with no thought except that of discharging its trust. Witness these words of JusticeLaurel in an early landmark case, People v. Vera, 21 decided in 1937: "If it is ever necessary for us tomake any vehement affirmance during this formative period of our political history, it is that we areindependent 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 seeit and as we understand it." 22 The hope of course was that such assertion of independence andimpartiality was not mere rhetoric. That is a matter more appropriately left to others to determine. Itsuffices to state that what elicits approval on the part of our people of a judiciary ever alert to inquireinto alleged breaches of the fundamental law is the realization that to do so is merely to do what isexpected of it and that thereby there is no invasion of spheres appropriately belonging to the politicalbranches. For it needs to be kept in kind always that it can act only when there is a suit with properparties 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 norview them from the shining cliffs of perfection. This is not to say though that it is satisfied with anempiricism untroubled by the search for jural consistency and rational coherence. A balance has tobe struck. So juridical realism requires. Once allowance is made that for all its care andcircumspection this Court is manned by human beings fettered by fallibility, but nonetheless earnestlyand sincerely striving to do right, the public acceptance of its vigorous pursuit of the task of assuringthat the Constitution be obeyed is easy to understand. It has not in the past shirked its responsibilityto ascertain whether there has been compliance with and fidelity to constitutional requirements. Suchis the teaching of a host of cases from Angara v. Electoral Commission 23 to Planas v. Commission onElections. 24 It should not start now. It should continue to exercise its jurisdiction, even in the face ofa plausible but not sufficiently persuasive insistence that the matter before it is political.


151 of 207 6/20/2012 8:16 AM

Nor am I persuaded that the reading of the current drift in American legal scholarship by theSolicitor-General and his equally able associates presents the whole picture. On the question ofjudicial 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 ofdisapproval has not escaped Dean Rostow of Yale, who began one of his most celebrated legalessays. The Democratic Character of Judicial Review, thus: "A theme of uneasiness, and even ofguilt, colors the literature about judicial review. Many of those who have talked, lectured, and writtenabout the Constitution have been troubled by a sense that judicial review is undemocratic." 25 Hewent on to state: "Judicial review, they have urged, is an undemocratic shoot on an otherwiserespectable tree. It should be cut off, or at least kept pruned and inconspicuous." 26 His view wasprecisely the opposite. Thus: "The power of constitutional review, to be exercised by some part ofthe government, is implicit in the conception of a written constitution delegating limited powers. Awritten constitution would promote discord rather than order in society if there were no acceptedauthority to construe it, at the least in cases of conflicting action by different branches of governmentor of constitutionally unauthorized governmental action against individuals. The limitation andseparation of powers, if they are to survive, require a procedure for independent mediation andconstruction to reconcile the inevitable disputes over the boundaries of constitutional power whicharise in the process of government." 27 More than that, he took pains to emphasize: "Whether anothermethod of enforcing the Constitution could have been devised, the short answer is that no suchmethod has developed. The argument over the constitutionality of judicial review has long since beensettled by history. The power and duty of the Supreme Court to declare statutes or executive actionunconstitutional in appropriate cases is part of the living Constitution. 'The course of constitutionalhistory,' Mr. Justice Frankfurter recently remarked, 'has cast responsibilities upon the Supreme Courtwhich it would be "stultification" for it to evade." 28 or is it only Dean Rostow who could point toFraukfurter, reputed to belong to the same school of thought opposed to judicial activism, if not itsleading advocate during his long stay in the United States Supreme Court, as one fully cognizant ofthe stigma that attaches to a tribunal which neglects to meet the demands of judicial review. There isa statement of similar import from Professor Mason: "In Stein v. New York Frankfurter remarked,somewhat self-consciously perhaps, that the 'duty of deference cannot be allowed imperceptibly toslide into abdication.'" 29 Professor Konefsky, like Dean Rostow, could not accept thecharacterization of judicial review as undemocratic. Thus in his study of Holmes and Brandeis, thefollowing appears: "When it is said that judicial review is an undemocratic feature of our politicalsystem, it ought also to be remembered that the architects of that system did not equate constitutionalgovernment with unbridled majority rule. Out of their concern for political stability and security forprivate rights, . . ., they designed a structure whose keystone was to consist of barriers to theuntrammeled exercise of power by any group. They perceived no contradiction between effectivegovernment and constitutional cheeks. To James Madison, who may legitimately be regarded as thephilosopher of the Constitution, the scheme of mutual restraints was the best answer to what heviewed as the chief problem in erecting a system of free representative government: 'In framing agovernment which is to be administered by men over men, the great difficulty lies in this: you mustfirst 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 discontentapparent in the writings of eminent authorities on the subject evince at the most fears that theAmerican Supreme Court might overstep the bounds allotted to the judiciary? It cannot be a denial ofthe fitness of such competence being vested in judges and of their being called upon to fulfill such atrust whenever appropriate to the decision of a case before them. That is why it has been correctly


152 of 207 6/20/2012 8:16 AM

maintained that notwithstanding the absence of any explicit provision in the fundamental law of theUnited 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 thelaw, of which the Constitution is part, in connection with the decision of cases." 31 This is not todeny that there are those who would place the blame or the credit, depending upon one'spredilection, on Marshall's epochal opinion in Marbury v. Madison. 32 Curtis belonged to thatpersuasion. As he put it: "The problem was given no answer by the Constitution. A hole was leftwhere the Court might drive in the peg of judicial supremacy, if it could. And that is what JohnMarshall did." 33 At any rate there was something in the soil of American juristic thought resulting inthis tree of judicial power so precariously planted by Marshall striking deep roots and showingwonderful vitality and hardiness. It now dominates the American legal scene. Through it, ChiefJustice Hughes, before occupying that exalted position, could state in a lecture: "We are under aConstitution, but the Constitution is what the judges say it is . . ." 34 The above statement is more thanjust an aphorism that lends itself to inclusion in judicial anthologies or bar association speeches. Itcould and did provoke from Justice Jackson, an exponent of the judicial restraint school thought, thismeaningful query: "The Constitution nowhere provides that it shall be what the judges say it is. How,then, did it come about that the statement not only could be made but could become current as themost understandable and comprehensive summary of American constitutional law?" 35 It is nowonder that Professor Haines could pithily and succinctly sum up the place of the highest Americantribunal in the scheme of things in this wise: "The Supreme Court of the United States has come to beregarded as the unique feature of the American governmental system." 36 Let me not bemisunderstood. There is here no attempt to close one's eyes to a discernible tendency on the part ofsome distinguished faculty minds to look askance at what for them may be inadvisable extension ofjudicial 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 ofthe 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 doso "would cut very deep into the very being of Congress." 40 For him, the judiciary "ought not toenter 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 whosequalifications are uncontested, for many the very staple of what is essentially political, certainly goeseven further than the authoritative Philippine decision of Vera v. Avelino, 42 It does look then thateven in the United States, the plea for judicial self-restraint, even if given voice by those competent inthe field of constitutional law, has fallen on deaf ears. There is in the comments of respondents anexcerpt from Professor Freund quoting from one of his essays appearing in a volume published in1968. It is not without interest to note that in another paper, also included therein, he was less thanassertive about the necessity for self-restraint and apparently mindful of the claims of judicialactivism. Thus: "First of all, the Court has a responsibility to maintain the constitutional order, thedistribution of public power, and the limitations on that power." 43 As for Professor Bickel, it hasbeen said that as counsel for the New York Times in the famous Vietnam papers case, 44 he was lessthan insistent on the American Supreme Court exercising judicial self restraint. There are signs thatthe contending forces on such question, for some an unequal contest, are now quiescent. The fervorthat 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, foreach group, the convictions, prejudices one might even say, entertained. At least what once was fitlycharacterized as the booming guns of rhetoric, coming from both directions, have been muted. Oflate, scholarly disputations have been centered on the standards that should govern the exercise ofthe power of judicial review. In his celebrated Holmes lecture in 1959 at the Harvard Law School,


153 of 207 6/20/2012 8:16 AM

Professor Wechsler advocated as basis for decision what he termed neutral principles ofconstitutional law. 45 It has brought forth a plethora of law review articles, the reaction ranging fromguarded conformity to caustic criticism. 46 There was, to be sure, no clear call to a court in effectabandoning the responsibility incumbent on it to keep governmental agencies within constitutionalchannels. The matter has been put in temperate terms by Professor Frank thus: "When allowancehas been made for all these factors, it nevertheless seems to me that the doctrine of politicalquestions ought to be very sharply confined to cases where the functional reasons justify it and thatin a given case involving its expansion there should be careful consideration also of the socialconsiderations which may militate against it. The doctrine has a certain specious charm because ofits 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 such appraisal, coming from such impeccablesources of the worth and significance of judicial review in the United States. I cannot resist theconclusion then that the views advanced on this subject by distinguished counsel for petitioners, withSenators Lorenzo M. Tañada 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 thepolitical 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 iswhether Proclamation No. 1102 manifests fidelity to the explicit terms of Article XV. There is, ofcourse, the view not offensive to reason that a sense of the realities should temper the rigidity ofdevotion to the strict letter of the text to allow deference to its spirit to control. With due recognitionof its force in constitutional litigation, 48 if my reading of the events and the process that led to suchproclamation, so clearly set forth in the opinion of the Chief Justice, is not inaccurate, then it cannotbe confidently asserted that there was such compliance. It would be to rely on conjecturalassumptions that did founder on the rock of the undisputed facts. Any other conclusion would, forme, require an interpretation that borders on the strained. So it has to be if one does not lose sight ofhow the article on amendments is phrased. A word, to paraphrase Justice Holmes may not be acrystal, transparent and unchanged, but it is not, to borrow from Learned Hand, that eminent jurist, arubber band either. It would be unwarranted in my view then to assert that the requirements of the1935 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 isunderstandable why it should be thus. If the Constitution is the supreme law, then its mandate mustbe fulfilled. No evasion is to be tolerated. Submission to its commands can be shown only if each andevery word is given meaning rather than ignored or disregarded. This is not to deny that a recognitionof the conclusive effect attached to the electorate manifesting its will to vote affirmatively on theamendments 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 becited 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 wordsof vague generality, pregnant with uncertainty, still whatever obscurity it possesses is illumined whenthe light of the previous legislation is thrown on it. In the first Commonwealth Act, 51 submitting tothe Filipino people for approval or disapproval certain amendments to the original ordinance


154 of 207 6/20/2012 8:16 AM

appended to the 1935 Constitution, it was made clear that the election for such purpose was to "beconducted in conformity with the provisions of the Election Code insofar as the same may beapplicable." 52 Then came the statute, 53 calling for the plebiscite on the three 1940 amendmentsproviding for the plebiscite on the three 1930 amendments providing for a bicameral Congress or aSenate 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 hecannot serve for more than eight consecutive years, 55 and creating an independent Commission onElections. 56 Again, it was expressly provided that the election "shall be conducted in conformity withthe provisions of the Election Code in so far as the same may be applicable." 57 The approval of thepresent parity amendment was by virtue of a Republic Act 58 which specifically made applicable thethen Election Code. 59 There is a similar provision in the legislation, 60 which in cotemplation of the1971 Constitutional Convention, saw to it that there be an increase in the membership of the Houseof Representatives to a maximum of one hundred eighty and assured the eligibility of senators andrepresentatives to become members of such constituent body without forfeiting their seats, asproposed amendments to be voted on in the 1967 elections. 61 That is the consistent course ofinterpretation followed by the legislative branch. It is most persuasive, if not controlling. Therestraints thus imposed would set limits to the Presidential action taken, even on the assumption thateither as an agent of the Constitutional Convention or under his martial law prerogatives, he was notdevoid of power to specify the mode of ratification. On two vital points, who can vote and how theyregister their will, Article XV had been given a definitive construction. That is why I fail to seesufficient justification for this Court affixing the imprimatur of its approval on the mode employed forthe 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 requirementsof Article XV. Independently of the lack of validity of the ratification of the new Constitution, if it beaccepted by the people, in whom sovereignty resides according to the Constitution, 62 then thisCourt cannot refuse to yield assent to such a political decision of the utmost gravity, conclusive in itseffect. Such a fundamental principle is meaningless if it does not imply, to follow Laski, that thenation as a whole constitutes the "single center of ultimate reference," necessarily the possessor ofthat "power that is able to resolve disputes by saying the last word." 63 If the origins of the democraticpolity enshrined in the 1935 Constitution with the declaration that the Philippines is a republican statecould be traced back to Athens and to Rome, it is no doubt true, as McIver pointed out, that onlywith the recognition of the nation as the separate political unit in public law is there the juridicalrecognition of the people composing it "as the source of political authority." 64 From them, as Corwindid stress, emanate "the highest possible embodiment of human will," 65 which is supreme and mustbe obeyed. To avoid any confusion and in the interest of clarity, it should be expressed in the mannerordained by law. Even if such were not the case, however, once it is manifested, it is to be acceptedas final and authoritative. The government which is merely an agency to register its commands hasno choice but to submit. Its officials must act accordingly. No agency is exempt from such a duty, noteven this Court. In that sense, the lack of regularity in the method employed to register its wishes isnot fatal in its consequences. Once the fact of acceptance by the people of a new fundamental law ismade evident, the judiciary is left with no choice but to accord it recognition. The obligation torender 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, itwas set forth in the opinion of Chief Justice Holt that on May 3, 1890, an act was passed inKentucky, providing for the calling of a convention for the purpose of framing a new constitution and


155 of 207 6/20/2012 8:16 AM

the election of delegates. It provided that before any form of constitution made by them shouldbecome operative, it should be submitted to the voters of the state and ratified by a majority of thosevoting. The constitution then in force authorized the legislature, the preliminary steps having beentaken, to call a convention "for the purpose of readopting, amending, or changing" it but contained noprovision 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. Its work was approvedby a majority. When the convention reassembled, the delegates made numerous changes in theinstrument. As thus amended, it was promulgated by the convention of September 28, 1891, as thenew constitution. An action was brought to challenge its validity. It failed in the lower court. Inaffirming such judgment dismissing the action, Chief Justice Holt stated: "If a set of men, not selectedby the people according to the forms of law, were to formulate an instrument and declare it theconstitution, it would undoubtedly be the duty of the courts to declare its work a nullity. This wouldbe revolution, and this the courts of the existing government must resist until they are overturned bypower, and a new government established. The convention, however, was the offspring of law. Theinstrument which we are asked to declare invalid as a constitution has been made and promulgatedaccording to the forms of law. It is a matter of current history that both the executive and legislativebranches 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, becausethis 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 beingperhaps equally dangerous; and especially where such momentous results might follow as would belikely in this instance, if the power of the judiciary permitted, and its duty requires, the overthrow ofthe work of the convention." 67 In Taylor v. Commonwealth, 68 a 1903 decision, it was contended thatthe Virginia Constitution proclaimed in 1902 is invalid as it was ordained and promulgated by theconvention without being submitted for ratification or rejection by the people. The Court rejectedsuch a view. As stated in the opinion of Justice Harrison: "The Constitution of 1902 was ordainedand proclaimed by a convention duly called by direct vote of the people of the state to revise andamend 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 swearingfidelity to it and proclaiming it, as directed thereby; by the Legislature in its formal official actadopting a joint resolution, July 15, 1902, recognizing the Constitution ordained by the conventionwhich assembled in the city of Richmond on the 12th day of June, 1901, as the Constitution ofVirginia; by the individual oaths of its members to support it, and by enforcing its provisions; and bythe people in their primary capacity by peacefully accepting it and quiescing in it, by registering asvoters under it to the extent of thousands throughout the state, and by voting, under its provisions, ata general election for their representatives in the Congress of the United States. The Constitutionhaving been thus acknowledged and accepted by the officers administering the government and bythe people of the state, and there being no government in existence under the Constitution of 1869opposing 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 existingConstitution of this state, and that to it all the citizens of Virginia owe their obedience and loyalallegiance." 69

It cannot be plausibly asserted then that premises valid in law are lacking for the claim that therevised Constitution has been accepted by the Filipino people. What is more, so it has been argued, it


156 of 207 6/20/2012 8:16 AM

is not merely a case of its being implied. Through the Citizens Assemblies, there was a plebiscitewith the result as indicated in Proclamation No. 1102. From the standpoint of respondents then, theycould allege that there was more than just mere acquiescence by the sovereign people. Its will wasthus expressed formally and unmistakably. It may be added that there was nothing inherentlyobjectionable in the informal method followed in ascertaining its preference. Nor is the fact thatFilipinos 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 doeslogically follow likewise that all such circumstances being conceded, then no justiciable question maybe raised. This Court is to respect what had thus received the people's sanction. That is not for methough the whole of it. Further scrutiny even then is not entirely foreclosed. There is still an aspectthat is judicial, an inquiry may be had as to whether such indeed was the result. This is no more thanwhat the courts do in election cases. There are other factors to bear in mind. The fact that thePresident so certified is well-nigh conclusive. There is in addition the evidence flowing from theconditions 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 1935Constitution, including practically all Representatives and a majority of the Senators, have signifiedtheir assent to it. The thought persists, however, that as yet sufficient time has not elapsed to bereally certain.

Nor is this all. There is for me an obstacle to the petitions being dismissed for such ascertainment ofpopular will did take place during a period of martial law. It would have been different had therebeen that freedom of debate with the least interference, thus allowing a free market of ideas. If itwere thus, it could be truly said that there was no barrier to liberty of choice. It would be a clear-cutdecision either way. One could be certain as to the fact of the acceptance of the new or of adherenceto the old. This is not to deny that votes are cast by individuals with their personal concernsuppermost in mind, worried about their immediate needs and captive to their existing moods. That isinherent in any human institution, much more so in a democratic polity. Nor is it open to any validobjection because in the final analysis the state exists for the individuals who in their collectivitycompose it. Whatever be their views, they are entitled to respect. It is difficult for me, however, atthis stage to feel secure in the conviction that they did utilize the occasion afforded to give expressionto what was really in their hearts. This is not to imply that such doubt could not be dispelled byevidence 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 esteemedbrethren who vote for the dismissal of these petitions. I cannot yield an affirmative response to theplea of respondents to consider the matter closed, the proceedings terminated once and for all. It isnot an easy decision to reach. It has occasioned deep thought and considerable soul-searching. Forthere are countervailing considerations that exert a compulsion not easy to resist. It can be assertedwith 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 bethe deepening contradictions of political life, reducing at times governmental authority to nearimpotence and imparting a sense of disillusionment in democratic processes. It is not too much to saytherefore that there had indeed been the revision of a fundamental law to vitalize the very values outof which democracy grows. It is one which has all the earmarks of being responsive to the dominantneeds of the times. It represents an outlook cognizant of the tensions of a turbulent era that is thepresent. That is why for some what was done represented an act of courage and faith, coupled withthe hope that the solution arrived at is a harbinger of a bright and rosy future.


157 of 207 6/20/2012 8:16 AM

It is such a comfort then that even if my appraisal of the situation had commanded a majority, thereis not, while these lawsuits are being further considered, the least interference with the executivedepartment. The President in the discharge of all his functions is entitled to obedience. He remainsthe commander-in-chief with all the constitutional power it implies. Public officials can go about theiraccustomed tasks in accordance with the revised Constitution. They can pursue the even tenor oftheir ways. They are free to act according to its tenets. That was so these past few weeks, even afterthat petitions were filed. There was not at any time any thought of any restraining order. So it wasbefore. That is how things are expected to remain even if the motions to dismiss were not granted. Itmight be asked though, suppose the petition should prevail? What then? Even so, the decision of thisCourt need not be executory right away. Such a disposition of a cast before this Court is not novel.That was how it was done in the Emergency Powers Act controversy. 70 Once compliance is hadwith the requirements of Article XV of the 1935 Constitution, to assure that the coming force of therevised 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 illusionsthat cannot stand the test of actuality. What is more, it may give the impression of reliance on whatmay, for the practical man of affairs, be no more than gossamer distinctions and sterile refinementsunrelated to events. That may be so, but I find it impossible to transcend what for me are theimplications of traditional constitutionalism. This is not to assert that an occupant of the bench isbound to apply with undeviating rigidity doctrines which may have served their day. He could attimes even look upon them as mere scribblings in the sands to be washed away by the advancingtides of the present. The introduction of novel concepts may be carried only so far though. AsCardozo put the matter: "The judge, even when he is free, is still not wholly free. He is not toinnovate at pleasure. He is not a knight-errant, roaming at will in pursuit of his own ideal of beauty orof goodness. He is to draw his inspiration from consecrated principles. He is not to yield tospasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informedby tradition, methodized by analogy, disciplined by system, and subordinated to 'the primordialnecessity of order in the social life.' Wide enough in all conscience is the field of discretion thatremains." 71 Moreover what made it difficult for this Court to apply settled principles, which for mehave not lost their validity, is traceable to the fact that the revised Constitution was made to takeeffect immediately upon ratification. If a period of time were allowed to elapse precisely to enablethe judicial power to be exercised, no complication would have arisen. Likewise, had there been onlyone or two amendments, no such problem would be before us. That is why I do not see sufficientjustification 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 theprocess 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 issuesof 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 isthe 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


158 of 207 6/20/2012 8:16 AM

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 proposedConstitution by means of the Citizens Assemblies has substantially complied with the mandate ofArticle XV of the existing Constitution of 1935 that duly proposed amendments thereto, in toto orparts thereof, "shall be valid as part of this Constitution when approved by a majority of the votescast at an election at which the amendments are submitted to the people for their ratification." 1

A necessary corollary issue is whether the purported ratification of the proposed Constitution assigned on November 30, 1972 by the 1971 Constitutional Convention may be said also to havesubstantially complied with its own mandate that "(T)his Constitution shall take effect immediatelyupon its ratification by a majority of the votes cast in a plebiscite called for the purpose and exceptas herein provided, shall supersede the Constitution of Nineteen hundred and thirty-five and allamendments 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 bedismissed, 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 thePresident but of the people:

— "(T)he fact of approval of the new Constitution by an overwhelming majority of thevotes 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 powerunder martial law . . . Alternatively, or contemporaneously, he did so as 'agent' of theConstitutional Convention;"

— "alleged defects, such as absence of secret voting, enfranchisement of persons less than21 Years, non supervision (by) the Comelec are matters not required by Article XV of the1935 Constitution"; (sic)

— "after ratification, whatever defects there might have been in the procedure areovercome 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 procedureoutlined in Article XV was not intended to be exclusive of other procedures, especially onewhich contemplates popular and direct participation of the citizenry . . ." 3

To test the validity of respondents' submittal that the Court, in annulling Proclamation No. 1102would really be "invalidating the new Constitution", the terms and premises of the issues have to bedefined.

— Respondents themselves assert that "Proclamation No. 1102 . . . is plainlymerely declaratory of the fact that the 1973 Constitution has been ratified and has


159 of 207 6/20/2012 8:16 AM

come into force." 4

— The measure of the fact of ratification is Article XV of the 1935Constitution. This has been consistently held by the Court in the Gonzales: 5 andTolentino 6 cases.

— In the Tolentino case, this Court emphasized "that the provisions of Section1 of Article XV of the Constitution, dealing with the procedure or manner ofamending the fundamental law are binding upon the Convention and the otherdepartments of the government. It must be added that . . . they are no less bindingupon the people." 7

— In the same Tolentino case, this Court further proclaimed that "as long asany 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 andintent of the Charter for effecting amendments, cannot receive the sanction of thisCourt." 8

— As continues to be held by a majority of this Court, proposed amendmentsto the Constitution "should be ratified in only one way, that is, in an election orplebiscite held in accordance with law and participated in only by qualified and dulyregistered voters" 9 and under the supervision of the Commission on Elections. 10

— Hence, if the Court declares Proclamation 1102 null and void because on itsface, the purported ratification of the proposed Constitution has not faithfully norsubstantially observed nor complied with the mandatory requirements of Article XV ofthe (1935) Constitution, it would not he "invalidating" the proposed new Constitutionbut would be simply declaring that the announced fact of ratification thereof by meansof the Citizens Assemblies referendums does not pass the constitutional test and thatthe proposed new Constitution has not constitutionally come into existence.

— Since Proclamation 1102 is acknowledged by respondent to be "plainlymerely declaratory" of the disputed fact of ratification, they cannot assume the veryfact to be established and beg the issue by citing the self-same declaration as proof ofthe purported ratification therein declared.

What complicates the cases at bar is the fact that the proposed 1972 Constitution was enforced ashaving immediately taken effect upon the issuance on January 17, 1973 of Proclamation 1102 andthe question of whether "confusion and disorder in government affairs would (not) result" from ajudicial declaration of nullity of the purported ratification is raised by the Solicitor-General on behalfof respondents.

A comparable precedent of great crisis proportions is found in the Emergency Powers cases, 11wherein the Court in its Resolution of September 16, 1949 after judgment was initially not obtainedon August 26, 1949 for lack of the required six (6) votes, finally declared in effect that the pre-waremergency powers delegated by Congress to the President, under Commonwealth Act 671 inpursuance of Article VI, section 26 of the Constitution, had ceased and became inoperative at thelatest 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 arisenunder executive orders "issued in good faith and with the best of intentions by three successive


160 of 207 6/20/2012 8:16 AM

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 thehonest belief that the 1972 Constitution had been validly ratified by means of the Citizens Assembliesreferendums — and indicated the proper course and solution therefor, which were duly abided byand confusion and disorder as well as harm to public interest and innocent parties thereby avoided asfollows:

"Upon the other hand, while I believe that the emergency powers had ceased in June 1945, Iam not prepared to hold that all executive orders issued thereafter under Commonwealth ActNo. 671, are per se null and void. It must he borne in mind that these executive orders hadbeen issued in good faith and with the best of intentions by three successive Presidents, andsome of them may have already produced extensive effects in the life of the nation. Wehave, for instance, Executive Order No. 73, issued on November 12, 1945, appropriating thesum 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; ExecutiveOrder No. 89, issued on January 1, 1946, reorganizing the Courts of First Instance;Executive Order No. 184, issued on November 19, 1948, controlling rice and palay tocombat hunger; and other executive orders appropriating funds for other purposes. Theconsequences of a blanket nullification of all these executive orders will be unquestionablyserious and harmful. And I hold that before nullifying them, other important circumstancesshould be inquired into, as for instance, whether or not they have been ratified by Congressexpressly or impliedly, whether their purposes have already been accomplished entirely orpartially, 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 executiveorder must be viewed in the light of its peculiar circumstances, and , if necessary andpossible, before nullifying it, precautionary measures should be taken to avoid harm topublic interest and innocent parties." 12

Initially, then Chief Justice Moran voted with a majority of the Court to grant the Araneta andGuerrero petitions holding null and void the executive orders on rentals and export control but todefer judgment on the Rodriguez and Barredo petitions for judicial declarations of nullity of theexecutive orders appropriating the 1949-1950 fiscal year budget for the government and P6 millionfor the holding of the 1949 national elections. After rehearing, he further voted to also declare nulland 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 validjudgment on that matter." 13

Then Chief Justice Moran, who penned the Court's majority resolution, explained his vote forannulment despite the great difficulties and possible "harmful consequences" in the followingpassage, which bears re-reading:

"However, now that the holding of a special session of Congress for the purpose ofremedying the nullity of the executive orders in question appears remote and uncertain, I amcompelled 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 oflaw.

"While in voting for a temporary deferment of the judgment I was moved by the belief thatpositive compliance with the Constitution by the other branches of the Government, which isour prime concern in all these cases, would be effected, and indefinite deferment will


161 of 207 6/20/2012 8:16 AM

produce the opposite result because it would legitimize a prolonged or permanent evasion ofour 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 ourconstitutional structure.

"The harmful consequences which, as I envisioned in my concurring opinion, would come topass should the said executive orders by 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 nowforthcoming. However, the remedy now lies in the hands of the Chief Executive and ofCongress, for the Constitution vests in the former the power to call a special session shouldthe 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 appropriation act is a remote possibility, forunder the circumstances is fully realizes its great responsibility of saving the nation frombreaking down; and furthermore, the President in the exercise of his constitutional powersmay, if he so desires, compel Congress to remain in special session till it approves thelegislative measures most needed by the country.

"Democracy is on trial in the Philippines, and surely it will emerge victorious as a permanentway of life in this country, if each of the great branches of the Government, within its ownallocated sphere, complies with its own constitutional duty, uncompromisingly and regardlessof difficulties.

"Our Republic is still young, and the vital principles underlying its organic structure shouldbe maintained firm and strong, hard as the best of steel, so as to insure its growth anddevelopment 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 therental and export control executive orders) likewise observed that "(T)he truth is that under ourconcept 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 'toperform the duties and discharge the responsibilities committed to them respectively.'" 15

It should be duly acknowledged that the Court's task of discharging its duty and responsibility hasbeen considerably lightened by the President's public manifestation of adherence to constitutionalprocesses and of working within the proper constitutional framework as per his press conference ofJanuary 20, 1973, wherein he stated that "(T)he Supreme Court is the final arbiter of theConstitution. It can and will probably determine the validity of this Constitution. I did not want to talkabout this because actually there is a case pending before the Supreme Court. But suffice it to saythat I recognize the power of the Supreme Court. With respect to appointments, the matter fallsunder a general provision which authorizes the Prime Minister to appoint additional members to theSupreme Court. Until the matter of the new Constitution is decided, I have no intention of utilizingthat power." 16

Thus, it is that as in an analogous situation wherein the state Supreme Court of Mississippi held thatthe questions of whether the submission of the proposed constitutional amendment of the StateConstitution providing for an elective, instead of an appointive, judiciary and whether the propositionwas in fact adopted, were justiciable and not political questions, we may echo the words therein ofChief Justice Whitfield that "(W)e do not seek a jurisdiction not imposed upon us by the Constitution.


162 of 207 6/20/2012 8:16 AM

We could not, if we would, escape the exercise of that jurisdiction which the Constitution hasimposed upon us. In the particular instance in which we are now acting, our duty to know what theConstitution of the state is, and in accordance with our oaths to support and maintain it in itsintegrity, imposed on us a most difficult and embarrassing duty, one which we have not sought, butone which, like all others, must be discharged.'" 17

In confronting the issues at bar, then, with due regard for my colleagues' contrary views, we arefaced with the hard choice of maintaining a firm and strict — perhaps, even rigid — stand that theConstitution is a "superior paramount law, unchangeable by ordinary means" save in the particularmode 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 sovereignwill or a liberal and flexible stand that would consider compliance with the constitutional article onthe 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 beamended in toto or otherwise exclusively "by approval by a majority of the votes cast an election atwhich the amendments are submitted to the people for their ratification", 19 participated in only byqualified and duly registered voters twenty-one years of age or over 20 and duly supervised by theCommission 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 theoryurged by respondents that "the procedure outlined in Article XV was not intended to be exclusive ofother procedures especially one which contemplates popular and direct participation of thecitizenry", 22 that the constitutional age and literacy requirements and other statutory safeguards forascertaining the will of the majority of the people may likewise be changed as "suggested, if notprescribed, by the people (through the Citizens Assemblies) themselves", 23 and that the Comelec isconstitutionally "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 ofMarbury vs. Madison 25 the U.S. Supreme Court's power of judicial review and to declare void lawsrepugnant to the Constitution, there is no middle ground between these two alternatives. As Marshallexpounded it: "(T)he Constitution is either a superior paramount law, unchangeable by ordinarymeans, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when thelegislature 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 absurdattempts 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 caseof Angara vs. Electoral Commission, 26 "(T)he Constitution sets forth in no uncertain language therestrictions and limitations upon governmental powers and agencies. If these restrictions andlimitations are transcended it would be inconceivable if the Constitution had not provided for amechanism by which to direct the course of government along constitutional channels, for then thedistribution of powers would be mere verbiage, the bill of rights mere expressions of sentiment, andthe principles of good government mere political apothegms. Certainly, the limitations of goodgovernment and restrictions embodied in our Constitution are real as they should be in any livingConstitution."

Justice Laurel pointed out that in contrast to the United States Constitution, the PhilippineConstitution as "a definition of the powers of government" placed upon the judiciary the great burden


163 of 207 6/20/2012 8:16 AM

of "determining the nature, scope and extent of such powers" and stressed that "when the judiciarymediates to allocate constitutional boundaries, it does not assert any superiority over the otherdepartments . . . but only asserts the solemn and sacred obligation entrusted to it by the Constitutionto determine conflicting claims of authority under the Constitution and to establish for the parties inan 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," — termedby 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 mymind permeated this Court's exposition and rationale in the hallmark case of Tolentino, wherein werejected the contentions on the Convention's behalf "that the issue . . . is a political question and thatthe Convention being a legislative body of the highest order is sovereign, and as such, its actsimpugned 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 includessubstantial) compliance with the mandatory requirements of the amending process.

1.In denying reconsideration of our judgment of October 16, 1971 prohibiting the submittal in anadvance election of the 1971 Constitutional Convention's Organic Resolution No. 1 proposing toamend Article V, section 1 of the Constitution by lowering the voting age to 18 years (vice 21 years)31

2.This Court held in Tolentino that:

". . . as to matters not related to its internal operation and the performance of its assignedmission to propose amendments to the Constitution, the Convention and its officers andmembers are all subject to all the provisions of the existing Constitution. Now We hold thateven as to its latter task of proposing amendments to the Constitution, it is subject to theprovisions of Section 1 of Article XV. This must be so, because it is plain to Us that theframers of the Constitution took care that the process of amending the same should not beundertaken with the same ease and facility in changing an ordinary legislation. Constitutionmaking is the most valued power, second to none, of the people in a constitutionaldemocracy such as the one our founding fathers have chosen for this nation, and which weof the succeeding generations generally cherish. And because the Constitution affects thelives, fortunes, futureand every other conceivable aspect of the lives of all the peoplewithin the country and those subject to its sovereignty, every degree of care is taken inpreparing and drafting it. A constitution worthy of the people for deliberation and study. It isobvious that correspondingly, any amendment of the Constitution is of no less importancethan the whole Constitution itself, and perforce must be conceived and prepared with asmuch care and deliberation. From the very nature of things, the drafters of an originalconstitution, as already observed earlier, operate without any limitations, restraints orinhibitions save those that they may impose upon themselves. This is not necessarily true ofsubsequent conventions called to amend the original constitution. Generally, the framers ofthe latter see to it that their handwork is not lightly treated and as easily mutilated orchanged, not only for reasons purely personal but more importantly, because writtenconstitutions are supposed to be designed so as to last for some time, if not for ages, or for, atleast, as long as they can be adopted to the needs and exigencies of the people, hence, they


164 of 207 6/20/2012 8:16 AM

must be insulated against precipitate and hasty actions motivated by more or less passingpolitical moods or fancies. Thus, as a rule, the original constitutions carry with themlimitations and conditions, more or less stringent, made so in the people themselves, inregard to the process of their amendment. And when such limitations or conditions are soincorporated in the original constitution, it does not lie in the delegates of any subsequentconvention to claim that they may ignore and disregard such conditions because they are aspowerful and omnipotent as their original counterparts." 32

3.This Court in Tolentino likewise formally adopted the doctrine of proper submission first advancedin Gonzales vs. Comelec 33 , thus:

"We are certain no one can deny that in order that a plebiscite for the ratification of anamendment to the Constitution may be validly held, it must provide the voter not onlysufficient time but ample basis for an intelligent appraisal of the nature of the amendmentper se as well as its relation to the other parts of the Constitution with which it has to form aharmonious whole. In the context of the present state of things, where the Convention hashardly started considering the merits of hundreds, if not thousands, proposals to amend theexisting Constitution, to present to the people any single proposal or a few of them cannotcomply with this requirement. We are of the opinion that the present Constitution does notcontemplate in Section 1 of Article XV a plebiscite or election' wherein the people are in thedark as to frame of reference they can base their judgment on. We reject the rationalizationthat the present Constitution is a possible frame of reference, for the simple reason thatintervenors themselves are stating the sole purpose of the proposed amendment is to enablethe eighteen year olds to take part in the election for the ratification of the Constitution to bedrafted by the Convention. In brief, under the proposed plebiscite, there can be, in thelanguage 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 " fairsubmission (and) intelligent consent or rejection" as "minimum requirement that must be met inorder 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. Thepeople are not to be mere rubber stamps. They are not to vote blindly. They must be affordedample opportunity to mull over the original provisions, compare them with the proposedamendments, and try to reach a conclusion as the dictates of their conscience suggest, freefrom the incubus of extraneous or possibly insidious influences. We believe the word'submitted' can only mean that the government, within its maximum capabilities, shouldstrain every effort to inform every citizen of the provisions to be amended, and the proposedamendments and the meaning, nature and effects thereof. By this, we are not to beunderstood 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 theConstitution. What the Constitution in effect directs is that the government, in submitting anamendment for ratification, should put every instrumentality or agency within its structuralframework to enlighten the people, educate them with respect to their act of ratification orrejection. For as we have earlier stated, one thing is submission and another is ratification.There must be fair submission, intelligent consent or rejection" 36


165 of 207 6/20/2012 8:16 AM

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 votingage 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 qualificationto entitle him to vote? In this age of permissiveness and dissent, can the 18-year old be reliedupon to vote with judiciousness when the 21-year old, in the past elections, has notperformed so well? If the proposed amendment is voted down by the people, will theConstitutional Convention insist on the said amendment? Why is there an unseemly haste onthe part of the Constitutional Convention in having this particular proposed amendmentratified at this particular time? Do some of the members of the Convention have futurepolitical plans which they want to begin to subserve by the approval this year of thisamendment? If this amendment is approved, does it thereby mean that the 18-year oldshould not also shoulder the moral and legal responsibilities of the 21-year old? Will he berequired to render compulsory military service under the colors? Will the age of contractualconsent be reduced to 18 years? If I vote against this amendment, will I not be unfair to myown child who will be 18 years old, come 1973?

"The above are just samplings from here, there and everywhere — from a domain (ofsearching questions) the bounds of which are not immediately ascertainable. Surely, manymore questions can be added to the already long litany. And the answers cannot be hadexcept as the questions are debated fully, pondered upon purposefully, and accordedundivided attention.

"Scanning the contemporary scene, we say that the people are not, and by election time willnot be, sufficiently informed of the meaning, nature and effects of the proposedconstitutional amendment. They have not been afforded ample time to deliberate thereonconscientiously. They have been and are effectively distracted from a full and dispassionateconsideration of the merits and demerits of the proposed amendment by their traditionalpervasive involvement in local elections and politics. They cannot thus weigh in tranquilitythe need for and the wisdom of the proposed amendment." 37

5.This Court therein dismissed the plea of disregarding the mandatory requirements of the amendingprocess "in favor of allowing the sovereign people to express their decision on the proposedamendments" as "anachronistic in the realm of constitutionalism and repugnant to the essence of therule 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 nothingmore than a part of the Constitution thus ordained by the people. Hence, in construing saidsection, We must read it as if the people had said, 'This Constitution may be amended, but itis our will that the amendment must be proposed and submitted to Us for ratification only inthe manner herein provided.' . . . Accordingly, the real issue here cannot be whether or notthe amending process delineated by the present Constitution may be disregarded in favor ofallowing the sovereign people to express their decision on the proposed amendments, if onlybecause it is evident that the very idea of departing from the fundamental law isanachronistic in the realm of constitutionalism and repugnant to the essence of the rule oflaw; rather, it is whether or not the provisional nature of the proposed amendment and themanner of its submission to the people for ratification or rejection conform with the


166 of 207 6/20/2012 8:16 AM

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 andcontrary to the plain compulsion of these perspectives, if the Court were to allow itself in decidingthis case to be carried astray by considerations other than the imperatives of the rule of law and ofthe applicable provisions of the Constitution. Needless to say, in a larger measure than when it bindsother departments of the government or any other official or entity, the Constitution imposes uponthe Court the sacred duty to give meaning and vigor to the Constitution, by interpreting andconstruing its provisions in appropriate cases with the proper parties and by striking down any actviolative 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 themotion for reconsideration, succinctly restated this Court's position on the fundamentals, as follows:

— On the premature submission of a partial amendment proposal, with a "temporaryprovisional or tentative character": — ". . . a partial amendment would deprive the voters ofthe context which is usually necessary for them to make a reasonably intelligent appraisalof the issue submitted for their ratification or rejection . . . Then, too, the submission to aplebiscite of a partial amendment, without a definite frame of reference, is fraught withpossibilities which may jeopardize the social fabric. For one thing, it opens the door to wildspeculations. It offers ample opportunities for overzealous leaders and members of opposingpolitical 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 isbound to unduly strain the people's faith in the soundness and validity of democraticprocesses and institutions."

— On the plea to allow submission to the sovereign people of the "fragmentary andincomplete" proposal, although inconsistent with the letter and spirit of the Constitution:"The view, has, also, been advanced that the foregoing considerations are not decisive on theissue before Us, inasmuch as the people are sovereign, and the partial amendment involvedin this case is being submitted to them. The issue before Us is whether or not said partialamendment may be validly submitted to the people for ratification 'in a plebiscite to coincidewith the local elections in November 1971,' and this particular issue will not be submitted tothe people. What is more, the Constitution does not permit its submission to the people. Thequestion sought to be settled in the scheduled plebiscite is whether or not the people are infavor 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 several possible connotations. It may mean strict adherence to thelaw, which in the case at bar is the Supreme Law of the land. On this point, suffice it to saythat, in compliance with the specific mandate of such Supreme Law, the members of theSupreme Court have taken the requisite 'oath to support and defend the Constitution.' . . .Then, again, the term 'legalistic' may be used to suggest inversely that the somewhat strainedinterpretation of the Constitution being urged upon this Court be tolerated or, at least,overlooked, upon the theory that the partial amendment on the voting age is badly neededand reflects the will of the people, specially the youth. This course of action favors, in effect,the adoption of a political approach, inasmuch as the advisability of the amendment and anappraisal of the people's feeling thereon are political matters. In fact, apart from the obviousmessage of the mass media, and, at times, of the pulpit, the Court has been literally


167 of 207 6/20/2012 8:16 AM

bombarded with scores of handwritten letters, almost all of which bear the penmanship andthe signature of girls, as well as the letterhead of some secretarian educational institutions,generally stating that the writer is 18 years of age and urging that she or he be allowed tovote. Thus, the pressure of public opinion has been brought to bear heavily upon the Courtfor a reconsideration of its decision in the case at bar.

"As above stated, however, the wisdom of the amendment and the popularity thereof arepolitical questions beyond our province. In fact, respondents and the intervenors originallymaintained that We have no jurisdiction to entertain the petition herein, upon the ground thatthe issue therein raised is a political one. Aside from the absence of authority to pass uponpolitical question, it is obviously improper and unwise for the bench to delve into suchquestions owing to the danger of getting involved in politics, more likely of a partisannature, and, hence, of impairing the image and the usefulness of courts of justice as objectiveand impartial arbiters of justiciable controversies.

"Then, too, the suggested course of action, if adopted, would constitute a grievous disserviceto the people and the very Convention itself. Indeed, the latter and the Constitution it is inthe process of drafting stand essentially for the Rule of Law. However, as the Supreme Lawof the land, a Constitution would not be worthy of its name, and the Constitution called uponto draft it would he engaged in a futile undertaking, if we did not exact faithful adherence tothe fundamental tenets set forth in the Constitution and compliance with its provisions werenot obligatory. If we, in effect, approved, consented to or even overlooked a circumventionof said tenets and provisions, because of the good intention with which Resolution No. 1 isanimated, the Court would thereby become the Judge of the good or bad intentions of theConvention 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 theexercise of judicial statesmanship in deciding the present case. Indeed, 'politics' is the wardcommonly used to epitomize compromise, even with principles, for the sake of politicalexpediency or the advancement of the bid for power of a given political party. Upon theother hand, statesmanship is the expression usually availed of to refer to high politics orparties on the highest level. In any event, qualities, political approach, political expediencyand statesmanship are generally associated, and often identified, with the dictum that 'theend justifies the means.' I earnestly hope that the administration of justice in this country andthe Supreme Court, in particular, will never adhere to or approve or indorse such dictum." 40

Tolentino, he pointed out that although "(M)ovants' submittal that '(T)he primary purpose for thesubmission 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 ourpopulation to participate in the ratification of the new Constitution in 1972' so as 'to allow youngpeople who would be governed by the new Constitution to be given a say on what kind ofConstitution they will have' is a laudable end, . . . those urging the vitality and importance of theproposed constitutional amendment and its approval ahead of the complete and final draft of thenew Constitution must seek a valid solution to achieve it in a manner sanctioned by theamendatory process ordained by our people in the present Constitution" 41 — so that there maybe "submitted, not piece- meal, but by way of complete and final amendments as an integratedwhole (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 hardlybe gainsaid. I fail to see the attempted distinction of restricting their application to proposals for


168 of 207 6/20/2012 8:16 AM

amendments of particular provisions of the Constitution and not to so-called entirely newConstitutions. Amendments to an existing Constitution presumably may be only of certain parts or intoto, and in the latter case would give rise to an entirely new Constitution. Where this Court held inTolentino that "any amendment of the Constitution is of no less importance than the wholeConstitution 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 wholenew Constitution would be of no less importance than any particular amendment and therefore thenecessary care and deliberation as well as the mandatory restrictions and safeguards in the amendingprocess ordained by the people themselves so that "they (may) be insulated against precipitate andhasty actions motivated by more or less passing political moods or fancies" must necessarily equallyapply thereto.

III

1.To restate the basic premises, the people provided in Article XV of the Constitution for theamending process only "by approval by a majority of the votes cast at an election at which the (dulyproposed) amendments are submitted to the people for their ratification"

The people ordained in Article V, section 1 that only those thereby enfranchised and granted theright of suffrage may speak the "will of the body politic", viz, qualified literate voters twenty oneyears 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 inaccordance 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 ascertainingthe true will of the electorate — and more, as ruled by this Court in Tolentino, in the case ofproposed 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, bestdefined the uses of the term " people" as a body politic and " people" in the political sense who aresynonymous with the qualified voters granted the right to vote by the existing Constitution and whotherefore 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 significationsdependent upon the connection in which it is used. In some connections in the Constitution it isconfined to citizens and means the same as citizens. It excludes aliens. It includes men, women, andchildren. It comprehends not only the sane, competent, law-abiding and educated, but also thosewho are wholly or in part dependents and charges upon society by reason of immaturity, mental ormoral deficiency or lack of the common essentials of education. All these persons are secured by thefundamental 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 aconstitution and common laws in a "social compact . . . for the common good" and in another senseof "people" in a "practical sense" for "political purposes" it was therein fittingly stated that "(I)n thissense, 'people' comprises many who, by reason of want of years, of capacity or of the educationalrequirements of Article 20 of the amendments of the Constitution, can have no voice in governmentand who yet are entitled to all the immunities and protection established by the Constitution. 'People'


169 of 207 6/20/2012 8:16 AM

in this aspect is coextensive with the body politic. But it is obvious that 'people' cannot be used withthis broad meaning in a political signification. The 'people' in this connection means that part of theentire body of inhabitants who under the Constitution are intrusted with the exercise of the sovereignpower and the conduct of government. The 'people' in the Constitution in a practical sense meansthose who under the existing Constitution possess the right to exercise the elective franchise andwho, while that instrument remains in force unchanged, will be the sole organs through which thewill of the body politic can be expressed. 'People' for political purposes must be consideredsynonymous with qualified voters.'"

As was also ruled by the U.S. Supreme Court, ". . . While the people are thus the source of politicalpower, their governments, national and state, have been limited by written constitutions, and theyhave themselves thereby set bounds to their own power, as against the sudden impulse of meremajorities." 44

From the text of Article XV of our Constitution, requiring approval of amendment proposals "by amajority of the votes cast at an election at which the amendments are submitted to the people fortheir ratification", it seems obvious as above-stated that " people" as therein used must be consideredsynonymous 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 theConstitution and implementing statutes to ascertain and record the will of the people in free, orderlyand honest elections supervised by the Comelec make it imperative that there be strict adherence tothe constitutional requirements laid down for the process of amending in toto or in part the supremelaw of the land.

Even at barrio level 45 the Revised Barrio Charter fixes certain safeguards for the holding of barrioplebiscites thus: "SEC. 6. Plebiscite. — A plebiscite may be held in the barrio when authorized by amajority vote of the members present in the barrio assembly, there being a quorom, or when calledby at least four members of the barrio council: Provided, however, That no plebiscite shall be helduntil after thirty days from its approval by either body, and such plebiscite has been given the widestpublicity 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 barrioassembly members qualified to vote may vote in the plebiscite. Voting procedures may be madeeither in writing as in regular elections, and/or declaration by the voters to the board of electiontellers." 47

The subjects of the barrio plebiscites are likewise delimited thus: "A plebiscite may be called todecide on the recall of any member of the barrio council. A plebiscite shall be called to approve anybudgetary, supplemental appropriations or special tax ordinances" and the required majority vote isalso specified: "(F)or taking action on any of the above enumerated measures, majority vote of all thebarrio 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


170 of 207 6/20/2012 8:16 AM

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 ofage or over, able to read and write, who has been a resident of the barrio during the six monthsimmediately 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." 50

IV

1.Since it appears on the face of Proclamation 1102 that the mandatory requirements under theabove-cited constitutional articles have not been complied with and that no election or plebiscite forratification as therein provided as well as in section 16 of Article XVII of the proposed Constitutionitself 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 certificatesof results purportedly showing unaccountable discrepancies in seven figures in just five provinces 52between the reports as certified by the Department of Local Governments and the reports as directlysubmitted by the provincial and city executives, which latter reports respondents disclaimed interalia as not final and complete or as not signed; 53 whether the reported votes of approval of theproposed Constitution conditioned upon the non-convening of the interim National Assemblyprovided in Article XVII, section 1 thereof, 54 may be considered as valid; the allegedly huge anduniform votes reported; and many others.

3.These questions only serve to justify and show the basic validity of the universal principle governingwritten constitutions that proposed amendments thereto or in replacement thereof may be ratifiedonly in the particular mode or manner prescribed therein by the people. Under Article XV, section 1of our Constitution, amendments thereto may be ratified only in the one way therein provided, i.e. inan election or plebiscite held in accordance with law and duly supervised by the Commission onElections, 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 ofthe vote and interested parties would have an opportunity to thresh out properly before the Comelecall such questions in pre-proclamation proceedings.

4.At any rate, unless respondents seriously intend to question the very statements andpronouncements in Proclamation 1102 itself which shows on its face, as already stated, that themandatory amending process required by the (1935) Constitution was not observed, the cases at barneed not reach the stage of answering the host of questions, raised by petitioners against theprocedure observed by the Citizens Assemblies and the reported referendum results — since thepurported ratification is rendered nugatory by virtue of such non-observance.

5.Finally, as to respondents' argument that the President issued Proclamation 1102 "as 'agent' of theConstitutional Convention" 55 under Resolution No. 5844 approved on November 22, 1973, and "asagent of the Convention the President could devise other forms of plebiscite to determine the will ofthe majority vis-a-vis the ratification of the proposed Constitution." 56

The minutes of November 22, 1972, of the Convention, however, do not at all support thiscontention. 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 proposednew Constitution on an appropriate date, under the charge of the Comelec, and with a reasonableperiod for an information campaign, as follows:


171 of 207 6/20/2012 8:16 AM

"12.Upon recognition by the Chair, Delegate Duavit moved for the approval of theresolution, the resolution portion of which read as follows:

'RESOLVED, AS IT IS HEREBY RESOLVED, that the 1971 ConstitutionalConvention propose to President Ferdinand E. Marcos that a decree be issued callinga plebiscite for the ratification of the proposed New Constitution on such appropriatedate as he shall determine and providing for the necessary funds therefor, and thatcopies of this resolution as approved in plenary session be transmitted to thePresident 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 newConstitution by the end of November 1972 according to the Convention's timetable, it wouldbe necessary to lay the groundwork for the appropriate agencies of the government toundertake the necessary preparation for the plebiscite.

"xxx xxx xxx

"12.2Interpellating, Delegate Pimentel (V.) contended that the resolution was unnecessarybecause section 15, Article XVII on the Transitory Provision, which had already beenapproved on second and third readings, provided that the new constitution should be ratifiedin a plebiscite called for the purpose by the incumbent President. Delegate Duavit repliedthat the provision referred to did not include the appropriation of funds for the plebisciteand that moreover, the resolution was intended to serve formal notice to the President andthe Commission on Elections to initiate the necessary preparations.

"xxx xxx xxx

"12.4Interpellating, Delegate Madarang suggested that a reasonable period for aninformation campaign was necessary in order to properly apprise the people of theimplications and significance of the new charter. Delegate Duavit agreed, adding that thiswas precisely why the resolution was modified to give the President the discretion to choosethe most appropriate date for the plebiscite.

"12.5Delegate Laggui asked whether a formal communication to the President informing himof the adoption of the new Constitution would not suffice considering that under Section 15of the Transitory Provisions, the President would be duty-bound to call a plebiscite foritsratification. Delegate Duavit replied in the negative, adding that the resolution was necessaryto serve notice to the proper authorities to prepare everything necessary for the plebiscite.

"12.6In reply to Delegate Britanico, Delegate Duavit stated that the mechanics for theholding of the plebiscite would he laid down by the Commission on Elections, incoordination with the President.

"12.7Delegate Catan inquired if such mechanics for the plebiscite could include a partiallifting of martial law in order to allow the people to assemble peaceably to discuss the newConstitution. Delegate Duavit suggested that the Committee on Plebiscite and Ratificationcould coordinate with the COMELEC on the matter.

"12.8Delegate Guzman moved for the previous question. The Chair declared that there wasone more interpellant and that a prior reservation had been made for the presentation of sucha motion.

1.8aDelegate Guzman withdrew his motion.


172 of 207 6/20/2012 8:16 AM

"12.9Delegate Astilla suggested in his interpellation that there was actually no need for sucha 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 fundsnecessary for the purpose.

"13.Delegate Ozamiz moved to close the debate and proceed to the period of amendment.

"13.1Floor Leader Montejo stated that there were no reservations to amend the resolution.

"13.2Delegate Ozamiz then moved for the previous question. Submitted to a vote, the motionwas approved.

"Upon request of the Chair, Delegate Duavit restated the resolution for voting.

"14.1.Delegate Ordoñez 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 ofhands." 57

I, therefore, vote to deny respondents' motion to dismiss and to give due course to the petitions.

Promulgated: June 4, 1973 *

ANTONIO, J.:

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 existingconstitutional order and the defense of the political and social liberties of the people, in times of agrave emergency, when the legislative branch of the government is unable to function or itsfunctioning would itself threaten the public safety, the Chief Executive may promulgate measureslegislative in character, for the successful prosecution of such objectives. For the "President's poweras Commander-in-chief has been transformed from a simple power of military command to a vastreservoir of indeterminate powers in time of emergency . . . In other words, the principal canons ofconstitutional interpretation are . . . set aside so far as concerns both the scope of the national powerand the capacity of the President to gather unto himself all constitutionally available powers in orderthe 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 thiscountry. In terms of power, crisis government in a constitutional democracy entails the concentrationof governmental power. "The more complete the separation of powers in a constitutional system, themore difficult, and yet the more necessary" according to Rossiter, "will be their fusion in time ofcrisis . . . The power of the state in crisis must not only be concentrated and expanded, it must befreed from the normal system of constitutional and legal limitations. One of the basic features ofemergency powers is the release of the government from the paralysis of constitutional restraints"(Rossiter, Constitutional Dictatorship, p. 290).


173 of 207 6/20/2012 8:16 AM

It is clearly recognized that in moments of peril the effective action of the government is channeledthrough the person of the Chief Executive. "Energy in the executive", according to Hamilton, "isessential to the protection of the community against foreign attacks . . . to the protection of propertyagainst those irregular and high-handed combinations which sometimes interrupt the ordinary courseof justice; to the security of liberty against the enterprises and assaults of ambition, of faction, and ofanarchy." (The Federalist, Number 70). "The entire strength of the nation", said Justice Brewer inthe Debts ease (158 U.S. 564; 39 L. ed. 1092), "may be used to enforce in any part of the land thefull and free exercise of all national powers and the security of all rights entrusted by the Constitutionto its care". The marshalling and employment of the "strength of the nation" are matters for thediscretion of the Chief Executive. The President's powers in time of emergency defy precisedefinition since their extent and limitations are largely dependent upon conditions andcircumstances.

2.The power of the President to act decisively in a crisis has been grounded on the broad confermentupon 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 shapedmore by a long line of historical precedents of Presidential action in times of crisis, rather thanjudicial interpretation. Lincoln wedded his powers under the "commander-in- chief" clause with hisduty "to take care that the laws be faithfully executed", to justify the series of extraordinarymeasures which he took — the calling of volunteers for military service, the augmentation of theregular army and navy, the payment of two million dollars from unappropriated funds in the Treasuryto 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 detentionof persons 'who were represented to him" as being engaged in or contemplating "treasonablepractices" — all this for the most part without the least statutory authorization. Those actions werejustified by the imperatives of his logic, that the President may, in an emergency thought by him torequire it, partially suspend the constitution. Thus his famous question: "Are all laws but one to beunexecuted, 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 ineffect 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 thedomestic problems as a consequence of a great war, an indefinite power must be attributed to thePresident to take emergency measures. The concept of "emergency" under which the ChiefExecutive exercised extraordinary powers underwent correlative enlargement during the first andsecond World Wars. From its narrow concept as an "emergency" in time of war during the Civil Warand 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 theFirst 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 ofthem from the First World War, but they proliferated amazingly. What is more, Roosevelt took hisfirst step toward war some fifteen months before our entrance into shooting war. This step occurredin September, 1940, when he handed over fifty so-called overage destroyers to Great Britain. Thetruth 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 disposeof 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.)


174 of 207 6/20/2012 8:16 AM

The creation of public offices is a power confided by the constitution to Congress. And yet PresidentWilson, during World War I on the basis of his powers under the "Commander-in-Chief" clausecreated "offices" which were copied in lavish scale by President Roosevelt in World War II. In April1942, thirty-five "executive agencies" were purely of Presidential creation. On June 7, 1941 on thebasis of his powers as "Commander-in-Chief", he issued an executive order seizing the NorthAmerican Aviation plant of Inglewood, California, where production stopped as a consequence of astrike. 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 wellas his moral authority to keep the defense efforts of the United States a going concern" as well as "toobtain supplies for which Congress has appropriated money, and which it has directed the Presidentto obtain." On a similar justification other plants and industries were taken over by the government. Itis true that in Youngstown Sheet & Tube vs. Sawyer (343 U.S. 579; 72 3. 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 as Commander- in-Chief of the armed forces, validly order theseizure of most of the country's steel mills. The Court however did not face the naked question of thePresident's power to seize steel plants in the absence of any congressional enactment or expressionsof policy. The majority of the Court found that this legislative occupation of the field made untenablethe President's claim of authority to seize the plants as an exercise of inherent executive power or asCommander-in-Chief Justice Clerk in his concurrence to the main opinion of the Court, explicitlyasserted that the President does possess, in the absence of restrictive legislation, a residual orresultant power above or in consequence of his granted powers, to deal with emergencies that heregards as threatening the national security. The same view was shared with vague qualifications byJustices 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 passageextracted from the brief of the government in the case of United States vs. Midwest Oil Co., (236U.S. 459, 59 L. Ed. 673, 35 S. Ct. 309) where the court sustained the power of the President toorder withdrawals from the public domain, not only without Congressional sanction but evencontrary to Congressional statutes.

It is evident therefore that the Steel Seizure Case, cannot be invoked as an authority to support theview that the President in times of a grave crisis does not possess a residual power above or inconsequence of his granted powers, to deal with emergencies that he regards as threatening thenational security. The lesson of the Steel Seizure case, according to Corwin and Koenig,"Unquestionably . . . tends to supplement presidential emergency power to adopt temporary remediallegislation when Congress has been, in the judgment of the President, unduly remiss in takingcognizance of and acting on a given situation." (Corwin and Koenig, The Presidency Today, NewYork University Press, 1956).

The accumulation of precedents has thus built up the presidential power under emergency conditionsto "dimensions of executive prerogative as described by John Locke, of a power to wit, to fill neededgaps in the law, or even to supersede it so far as may be requisite to realize the fundamental law ofnative and government, namely, that as much as may be all the members of society are to bepreserved." (Corwin and Koenig, The Presidency Today).

In the light of the accumulated precedents, how could it be reasonably argued therefore, that thePresident had no power to issue Presidential Decree Nos. 86 and 86-A as well as Proclamation No.


175 of 207 6/20/2012 8:16 AM

1102, since these measures were considered indispensable to effect the desired reforms at theshortest time possible and hasten the restoration of normalcy? It is unavailing for petitioners tocontend that we are not faced by an actual "shooting war" for today's concept of the emergencywhich justified the exercise of those powers has of necessity been expanded to meet the exigenciesof 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 warrantingthe realization of constitutional limitations tends to spread, as it were, in both directions, so that thereis not only 'the war before the war,' but the 'war after the war.' Indeed, in the economic crisis fromwhich the New Deal may be said to have issued, the nation was confronted in the opinion of the latePresident with an 'emergency greater than war'; and in sustaining certain of the New Deal measuresthe Court invoked the justification of 'emergency.' In the final result the constitutional practices ofwartime have moulded the Constitution to greater or less extent for peacetime as well, and seemlikely 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 resistedopenly by large numbers of its citizens who are engaged in violent insurrection against theenforcement of its laws or are bent on capturing it illegally or even destroying it altogether.The third crisis, one recognized particularly in modern times as sanctioning emergency actionby constitutional governments, is economic depression. The economic troubles whichplagued all the countries of the world in the early thirties invoked governmental methods ofan unquestionably dictatorial character in many democracies. It was thereby acknowledgedthat an economic existence as a war or a rebellion. And these are not the only crisis whichhave justified extraordinary governmental action in nations like the United States. Fire, flood,drought, earthquake, riots, and great strikes have all been dealt with by unusual and oftendictatorial methods. Wars are not won by debating societies, rebellions are not suppressed byjudicial injunctions, the reemployment of twelve million jobless citizens will not be effectedthrough a scrupulous regard for the tenets of free enterprise, and hardships caused by theeruptions of nature cannot be mitigated by letting nature take its course. The Civil War, thedepression of 1933, and the recent global conflict were not and could not have beensuccessfully resolved by governments similar to those of James Buchanan, William HowardTaft, or Calvin Coolidge." (Rossiter, Constitutional Dictatorship — Crisis of Government inthe Modern Democracies, p. 6 [1948;).

II

We are next confronted with the insistence of Petitioners that the referendum in question not havingbeen done in accordance with the provisions of existing election laws, where only qualified voters areallowed to participate, under the supervision of the Commission on Elections, the new Constitution,should therefore be declared a nullity. Such an argument is predicated upon an assumption thatArticle XV of the 1935 Constitution provides the method for the revision of the constitution, andautomatically apply in the approval of such proposed new Constitution the provisions of the electionlaw and those of Article V and X of the old Constitution. We search in vain for any provision in theold charter specifically providing for such procedure in the case of a total revision or a rewriting ofthe whole constitution.

1.There is clearly a distinction between revision and amendment of an existing constitution. Revisionmay involve a rewriting of the whole constitution. The act of amending a constitution, on the otherhand, envisages a change of only specific provisions. The intention of an act to amend is not the


176 of 207 6/20/2012 8:16 AM

change of the entire constitution, but only the improvement of specific parts of the existingconstitution of the addition of provisions deemed essential as a consequence of new conditions or theelimination of parts already considered obsolete or unresponsive to the needs of the times. 1 The1973 Constitution is not a mere amendment to the 1935 Constitution. It is a completely newfundamental charter embodying new political, social and economic concepts.

According to an eminent authority on Political Law, "The Constitution of the Philippines and that ofthe United States expressly provide merely for methods of amendment. They are silent on the subjectof revision. But this is not a fatal omission. There is nothing that can legally prevent a conventionfrom actually revising the Constitution of the Philippines or of the United States even were suchconventions 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 ofamendment or revision." (Sinco, Philippine Political Law, p. 49).

Since the 1936 Constitution does not specifically provide for the method or procedure for therevision or for the approval of a new constitution, should it now be held that the people have placedsuch restrictions on themselves that they are now disabled from exercising their right as the ultimatesource of political power from changing the old constitution which, in their view, was not responsiveto their needs and in adopting a new charter of government to enable them to rid themselves from theshackles of traditional norms and to pursue with a new dynamism the realization of their truelongings and aspirations, except in the manner and form provided by Congress for previousplebiscites? Was not the expansion of the base of political participation, by the inclusion of the youthin the process of ratification who after all constitute the preponderant majority more in accord withthe 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 Court heldthat the submission of the proposed amendment was illegal due to the absence of substantialcompliance with the procedure prescribed by the Constitution, the procedure prescribed by the stateConstitution, is so detailed, that it specified the manner in which such submission shall be made, thepersons qualified to vote for the same, the date of election and other definite standards, from whichthe court could safely ascertain whether or not the submission was in accordance with theConstitution. Thus the case of In re McConaughy (119 N.E. 408) relied upon in one of the dissentingopinions involved the application of the provisions of the state Constitution of Minnesota whichclearly 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 forjudicial judgment". 3

The framers of our Constitution were free to provide in the Constitution the method or procedure forthe revision or rewriting of the entire constitution, and if such was their intention, they could andshould have so provided. Precedents were not wanting. The constitutions of the various states of theAmerican 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 the1935 Charter. To declare what the law is, or has been, is a judicial power, but to declare what thelaw 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 forthe revision or complete change of the Constitution, it is evident that the people have reserved suchpower in themselves. They decided to exercise it not through their legislature, but through aConvention expressly chosen for that purpose. The Convention as an independent and sovereign


177 of 207 6/20/2012 8:16 AM

body has drafted not an amendment but a completely new Constitution, which decided to submit tothe people for approval, not through an act of Congress, but by means of decrees to be promulgatedby the President. In view of the inability of Congress to act, it was within the constitutional powers ofthe President, either as agent of the Constitutional Convention, or under his authority under martiallaw, to promulgate the necessary measures for the ratification of the proposed new Constitution. Theadoption of the new Charter was considered as a necessary basis for all the reforms set in motionunder the new society, to root out the causes of unrest. The imperatives of the emergencyunderscored the urgency of its adoption. The people in accepting such procedure and in votingoverwhelmingly for the approval of the new Constitution have, in effect, ratified the method andprocedure taken. "When the people adopt a completely revised or new constitution," said the Courtin Wheeler v. Board of Trustees (37 SE 2nd 322, 326-330), "the framing or submission of theinstrument is not what gives it binding force and effect. The fiat of the people, and only the fiat of thepeople, can breathe life into a constitution."

This has to be so because, in our political system, all political power is inherent in the people andfree governments are founded on their authority and instituted for their benefit. Thus Section 1 ofArticle II of the 1935 Constitution declares that: "Sovereignty resides in the people and allgovernment authority emanates from them." Evidently the term people refers to the entire citizenryand not merely to the electorate, for the latter is only a fraction of the people and is only an organ ofgovernment for the election of government officials.

III

The more compelling question, however is: Has this Court the authority to nullify an entireConstitution that is already effective as it has been accepted and acquiesced in by the people asshown by their compliance with the decree promulgated thereunder, their cooperation in itsimplementation, and is now maintained by the Government that is in undisputed authority anddominance?

Of course it is argued that acquiescence by the people cannot be deduced from their acts ofconformity, because under a regime of martial law the people are hound to obey and act inconformity with the orders of the President, and have absolutely no other choice. The flaw of thisargument lies in its application of a mere theoretical assumption based on the experiences of othernations on an entirely different factual setting. Such an assumption flounders on the rock of reality. Itis true that as a general rule martial law is the use of military forces to perform the functions of civilgovernment. Some courts have viewed it as a military regime which can be imposed in emergencysituations. In other words, martial rule exists when the military rises superior to the civil power in theexercise of some or all the functions of government. Such is not the case in this country. Thegovernment functions thru its civilian officials. The supremacy of the civil over the military authorityis manifest. Except for the imposition of curfew hours and other restrictions required for the securityof 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, generallyassociated with a regime of martial law in other countries. "Upon the other hand the masses of ourpeople have accepted it, because of its manifold blessings. The once downtrodden rice tenant has atlong last, been emancipated — a consummation devoutly wished by every Philippine President sincethe 1930's. The laborer now holds his head high because his rights are amply protected and


178 of 207 6/20/2012 8:16 AM

respected." * A new sense of discipline has swiftly spread beyond the corridors of government intothe social order. Responding to the challenges of the New Society, the people have turned in half amillion loose firearms, paid their taxes on undeclared goods and income in unprecedented numbersand 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 theenvironment to make ours a cleaner and greener land. "The entire country is turning into one vastgarden growing food for the body, for thought and for the soul." * More important the common manhas 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 inon areas which have been widely recognized as prime sources of the nation's difficulties — landtenancy, official corruption, tax evasion and abuse of oligarchic economic power. Clearly he knowshis targets . . . there is marked public support for his leadership . . ." (Bulletin Today, March 3 and4, 1973).

In a similar vein, C.L. Sulzberger, a foreign affairs columnist wrote, in the April 11 issue of The NewYork Times:

During his first Presidential term (1965-1969), Mr. Marcos was discouraged by the failure oflegislators to approve urgently needed reforms. He found his second term further frustratedby spreading riots, a Maoist uprising in Luzon and a much more serious Moslem insurrectionin the southern islands from Mindanao across the Sulu archipelago to the frontier regions ofMalaysia 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 whenhe will relinquish them. But, while fettering a free press, terminating Congress and locking upsome opponents (many of whom were later amnestied), he has hauled the Philippines out ofstagnation.

Sharecropping is being ended as more than three million acres of arable land are redistributedwith state funds. New roads have been started. The educational system is undergoingrevision, and corruption is diminished. In non-communist Asia it is virtually impossible towholly end it and this disagreeable phenomenon still reaches very high.

Mr. Marcos, an imaginative, gifted man, hopes to reshape society by creating an agrarianmiddle-class to replace the archaic sharecropper-absentee landlord relationship. He is evenpushing a birth control program with the tacit acceptance of the Catholic Church. He hasstarted 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" ofcounsel for petitioners:

The new Constitution is considered effective "if the norms created in conformity with it are by andlarge applied and obeyed. As soon as the old Constitution loses its effectiveness and the newConstitution has become effective, the acts that appear with the subjective meaning of creating orapplying legal norms are no longer interpreted by presupposing the old basic norm, but bypresupposing the new one. The statutes issued under the old Constitution and not taken over are nolonger regarded as valid, and the organs authorized by the old Constitution no longer competent."


179 of 207 6/20/2012 8:16 AM

(Kelsen, Pure Theory of Law, [1967].)

The essentially political nature of the question is at once made manifest by understanding that in thefinal 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 thegovernment. It is addressed more to the framework and political character of this Government whichnow 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 theirexecution, and of appointing judges to expound and administer them. If it decides at all as a court, itnecessarily affirms the existence and authority of the government under which it is exercising judicialpower." (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 politicalaction, the Court whose existence is affected by such change is, in the words of Mr. Melville FullerWeston, "precluded from passing upon the fact of change by a logical difficulty which is not to besurmounted." 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 distributionof powers." 6 It involves in essence a matter which "the sovereign has entrusted to the so-calledpolitical departments of government or has reserved to be settled by its own extra governmentalaction." 7

The non-judicial character of such a question has been recognized in American law. "From itsearliest opinions this Court has consistently recognized," said Justice Frankfurter, in his illuminatingdissent in Baker v. Carr, 369 U.S. 186, 7 L. Ed. 2d 633, 722, 726, 727), "a class of controversieswhich do not lend themselves to judicial standards and judicial remedies. To classify the variousinstances 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 atstake is the composition of those large contests of policy traditionally fought out in non-judicialforums, 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 of "right" or "wrong" views of the Constitution. It is one of attitudes and values. Forthere is scarcely any principle, authority or interpretation which has not been countered by theopposite. At bottom it is the degree of one's faith — in the nation's leadership and in the maturity ofjudgment of our people.

IN VIEW OF THE FOREGOING, the dismissal of these five cases, and the conclusion of this Courtin its judgment of March 31, 1973 are fully justified.

Barredo, Makasiar and Esguerra, JJ., concur.

APPENDIX TO OPINION(G.R. Nos. L-36142, 36164, 36165, 36236 & 36283)

PROVISIONS OF STATE CONSTITUTIONS SPECIFICALLY PROVIDING FORAMENDMENT AND REVISION@

1.Alaska (1959) — Art. XIII.Amendment and Revision.


180 of 207 6/20/2012 8:16 AM

Sec. 1.Amendments.Amendments to this constitution may be proposed by a two-thirds vote of eachhouse of the legislature. The secretary of state shall prepare a ballot title and propositionsummarizing each proposed amendment, and shall place them on the ballot for the next statewideelection. If a majority of the votes cast on the proposition favor the amendment, it shall be adopted.Unless otherwise provided in the amendment, it becomes effective thirty days after the certificationof the election returns by the secretary of state.

Sec. 2.Convention.The legislature may call constitutional conventions at any time.

Sec. 3.Call by referendum.If during any ten-year period a constitutional convention has not beenheld, the secretary of state shall place on the ballot for the next general election the question: "Shallthere be a Constitutional Convention?" If a majority of the votes cast on the question are in thenegative, the question need not be placed on the ballot until the end of the next ten-year period. If amajority of the votes cast on the question are in the affirmative, delegates to the convention shall bechosen at the next regular statewide election, unless the legislature provides for the election of thedelegates at a special election. The secretary of state shall issue the call for the convention. Unlessother provisions have been made by law, the call shall conform as nearly as possible to the act callingthe Alaska Constitutional Convention of 1955, including, but not limited to, number of members,districts, election and certification of delegates, and submission and ratification of revisions andordinances . . .

Sec. 4.Powers.Constitutional conventions shall have plenary power to amend or revise theconstitution, subject only to ratification by the people. No call for a constitutional convention shalllimit these powers of the convention.

2.California (1879) — Art. XVIII.Amending and Revising the Constitution.

Sec. 1.Constitutional amendments.Any amendment or amendments to this Constitution may beproposed in the Senate or Assembly, and if two-thirds of all the members elected to each of the twohouses shall vote in favor thereof, such proposed amendment or amendments shall be entered in theirJournals, with the yeas and nays taken thereon; and it shall be the duty of the Legislature to submitsuch proposed amendment or amendments to the people in such manner, and at such time, and aftersuch publication as may be deemed expedient. Should more amendments than one be submitted atthe same election they shall be so prepared and distinguished, by numbers or otherwise, that eachcan be voted on separately. If the people shall approve and ratify such amendment or amendments,or any of them, by a majority of the qualified electors voting thereon such amendment oramendments shall become a part of this constitution.

Sec. 2.Constitutional convention.Whenever two-thirds of the members elected to each branch of theLegislature shall deem it necessary to revise this Constitution, they shall recommend to the electors tovote at the next general election for or against a Convention for that purpose, and if a majority of theelectors voting at such election on the proposition for a Convention shall vote in favor thereof, theLegislature shall, at its next session, provide by law for calling the same. The Convention shall consistof a number of delegates not to exceed that of both branches of the Legislature, who shall be chosenin the same manner, and have the same qualifications, as Members of the Legislature. The delegatesso elected shall meet within three months after their election at such place as the Legislature maydirect. At a special election to be provided for by law, the Constitution that may be agreed upon by


181 of 207 6/20/2012 8:16 AM

such Convention shall be submitted to the people for their ratification or rejection, in such manneras the Convention may determine. The returns of such election shall, in such manner as theConvention shall direct, be certified to the Executive of the State, who shall call to his assistance theController, Treasurer, and Secretary of State, and compare the returns so certified to him; and it shallbe the duty of the Executive to declare, by his proclamation, such Constitution, as may have beenratified by a majority of all the votes cast at such special election, to be the Constitution of the Stateof California.

2.Colorado (1876) — Art. XIX.Amendments.

Sec. 1.Constitutional convention; how called.The general assembly may at any time by a vote oftwo-thirds of the members elected to each house, recommend to the electors of the state, to vote atthe next general election for or against a convention to revise, alter and amend this constitution; andif a majority of those voting on the question shall declare in favor of such convention, the generalassembly shall, at the next session, provide for the calling thereof. The number of members of theconvention shall be twice that of the senate and they shall be elected in the same manner, at the sameplaces, and in the same districts. The general assembly shall, in the act calling the convention,designate the day, hour and place of its meeting; fix the pay of its members and officers, and providefor the payment of the same, together with the necessary expenses of the convention. Beforeproceeding, the members shall take an oath to support the constitution of the United States, and ofthe state of Colorado, and to faithfully discharge their duties as members of the convention. Thequalifications of members shall be the same as of members of the senate; and vacancies occurringshall be filled in the manner provided for filling vacancies in the general assembly. Said conventionshall meet within three months after such election and prepare such revisions, alterations oramendments to the constitution as may be deemed necessary; which shall be submitted to theelectors for their ratification or rejection at an election appointed by the convention for that purpose,not less than two nor more than six months after adjournment thereof; and unless so submitted andapproved by a majority of the electors voting at the election, no such revision, alteration oramendment shall take effect.

Sec. 2.Amendments to constitution; how adopted.Any amendment or amendments to thisconstitution may be proposed in either house of the general assembly, and if the same shall be votedfor by two-thirds of all the members elected to each house, such proposed amendment oramendments, together with the ayes and noes of each house hereon, shall be entered in full on theirrespective journals; the proposed amendment or amendments shall be published with the laws of thatsession of the general assembly, and the secretary of state shall also cause the said amendment oramendments to be published in full in not more than one newspaper of general circulation in eachcounty, for four successive weeks previous to the next general election for members of the generalassembly; and at said election the said amendment or amendments shall be submitted to the qualifiedelectors of the state for their approval or rejection, and such as are approved by a majority of thosevoting thereon shall become part of this constitution.

Provided, that if more than one amendment be submitted at any general election, each of saidamendments shall be voted upon separately and votes thereon cast shall be separately counted thesame as though but one amendment was submitted. But the general assembly shall have no power topropose amendments to more than six articles of this constitution at the same session.

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


182 of 207 6/20/2012 8:16 AM

Sec. 1.Proposal of constitutional amendments in general assembly; procedure.Any amendment oramendments to this Constitution may be proposed in the Senate or House of Representatives; and ifthe same shall be agreed to by two-thirds of all the members elected to each House, such proposedamendment or amendments shall be entered on their journals, with the yeas and nays taken thereon,and the Secretary of State shall cause such proposed amendment or amendments to be publishedthree months before the next general election in at least three newspapers in each County in whichsuch newspapers shall be published; and if in the General Assembly next after the said election suchproposed amendment or amendments shall upon yea and nay vote be agreed to by two-thirds of allthe members elected to each House, the same shall thereupon become part of the Constitution.

Sec. 2.Constitutional conventions; procedure; compensation of delegates; quorum; powers andduties; vacancies.The General Assembly by a two thirds vote of all the members elected to eachHouse may from time to time provide for the submission to the qualified electors of the State at thegeneral election next thereafter the question, "Shall there be a Convention to revise the Constitutionand amend the same?; and upon such submission, if a majority of those voting on said question shalldecide in favor of a Convention for such purpose, the General Assembly at its next session shallprovide for the election of delegates to such convention at the next general election. Such Conventionshall be composed of forty-one delegates, one of whom shall be chosen from each RepresentativeDistrict by the qualified electors thereof, and two of whom shall be chosen from New Castle County,two from Kent County and two from Sussex County by the qualified electors thereof respectively.The delegates so chosen shall convene at the Capital of the State on the first Tuesday in Septembernext after their election. Every delegate shall receive for his services such compensation as shall beprovided by law. A majority of the Convention shall constitute a quorum for the transaction ofbusiness. The Convention shall have power to appoint such officers, employees and assistants 'as itmay deem necessary, and fix their compensation, and provide for the printing of its documents,journals, debates and proceedings. The Convention shall determine the rules of its proceedings, andbe the judge of the elections, returns and qualifications of its members. Whenever there shall be avacancy in the office of delegate from any district or county by reason of failure to elect, ineligibility,death, resignation or otherwise, a writ of election to fill such vacancy shall be issued by theGovernor, and such vacancy shall be filled by the qualified electors of such district or county.

5.Florida (1887) — Art. XVII.Amendments.

Sec. 1.Method of amending constitution.Either branch of the Legislature, at any regular session, orat any special or extraordinary session thereof called for such purpose either in the governor'soriginal call or any amendment thereof, may propose the revision or amendment of any portion orportions of this Constitution. Any such revision or amendment may relate to one subject or anynumber of subjects, but no amendment shall consist of more than one revised article of theConstitution.

If the proposed revision or amendment is agreed to by three- fifths of the members elected to eachhouse, it shall be entered upon their respective journals with the yeas and nays and published in onenewspaper in each county where a newspaper is published for two times, one publication to be madenot earlier than ten weeks and the other not later than six weeks, immediately preceding the electionat which the same is to be voted upon, and thereupon submitted to the electors of the State forapproval or rejection at the next general election, provided, however, that such revision oramendment may be submitted for approval or rejection in a special election under the conditions


183 of 207 6/20/2012 8:16 AM

described in and in the manner provided by Section 3 of Article XVII of this Constitution. If amajority of the electors voting upon the amendment adopt such amendment the same shall become apart of this Constitution.

Sec. 2.Method of revising constitution.If at any time the Legislature, by a vote of two-thirds of allthe members of both Houses, shall determine that a revision of this Constitution is necessary, suchdetermination shall be entered upon their respective Journals, with yea's and nay's thereon. Notice ofsaid action shall be published weekly in one newspaper in every county in which a newspaper ispublished, for three months preceding the next general election of Representatives, and in thosecounties where no newspaper is published, notice shall be given by posting at the several pollingprecincts in such counties for six weeks next preceding said election. The electors at said electionmay vote for or against the revision in question. If a majority of the electors so voting be in favor ofrevision, the Legislature chosen at such election shall provide by law for a Convention to revise theConstitution, said Convention to be held within six months after the passage of such law. TheConvention shall consist of a number equal to the membership of the House of Representatives, andshall be apportioned among the several counties in the same manner as members of said House.

6.Idaho (1890) — Art. XX.Amendments.

Sec. 1:How amendments may be proposed.Any amendment or amendments to this Constitution maybe proposed in either branch of the legislature, and if the same shall be agreed to by two-thirds of allthe members of each of the two houses, voting separately, such proposed amendment oramendments shall, with the yeas and nays thereon, be entered on their journals, and it shall be theduty of the legislature to submit such amendment or amendments to the electors of the state at thenext general election, and cause the same to be published without delay for at least six consecutiveweeks, prior to said election, in not less that one newspaper of general circulation published in eachcounty; and if a majority of the electors shall ratify the same, such amendment or amendments shallbecome a part of this Constitution.

Sec. 3.Revision or amendment by convention.Whenever two-thirds of the members elected to eachbranch of the legislature shall deem it necessary to call a convention to revise or amend thisConstitution, they shall recommend to the electors to vote at the next general election, for or againsta convention, and if a majority of all the electors voting at said election shall have voted for aconvention, the legislature shall at the next session provide by law for calling the same; and suchconvention shall consist of a number of members, not less than double the number of the mostnumerous branch of the legislature.

7.Iowa (1857) — Art. X.Amendments to the Constitution.

Sec 3.Convention.At the general election to be held in the year one thousand eight hundred andseventy, and in each tenth year thereafter, and also at such times as the General Assembly may, bylaw, provide, the question, "Shall there be a Convention to revise the Constitution, and amend thesame?" shall be decided by the electors qualified to vote for members of the General Assembly; andin case a majority of the electors so qualified, voting at such election, for and against suchproposition, shall decide in favor of a Convention for such purpose, the General Assembly, at its nextsession, shall provide by law for the election of delegates to such Convention.

8.Michigan (1909) — Art. XVII.Amendment and Revision.


184 of 207 6/20/2012 8:16 AM

Sec. 1.Amendment to constitution; proposal by legislature; submission to electors.Any amendmentor amendments to this constitution may be proposed in the senate or house of representatives. If thesame shall be agreed to by 2/3 of the members elected to each house, such amendment oramendments, shall be entered on the journals, respectively, with the yeas and nays taken thereon;and the same shall be submitted to the electors at the next spring or autumn election thereafter, asthe legislature shall direct and if a majority of the electors qualified to vote for members of thelegislature voting thereon shall ratify and approve such amendment or amendments, the same shallbecome part of the constitution.

Sec. 4.General revision: convention; procedure.At the Biennial Spring Election to be held in theyear 1961, in each sixteenth year thereafter and at such times as may be provided by laws, thequestion of a General Revision of the Constitution shall be submitted to the Electors qualified to votefor members of the Legislature. In case a majority of the Electors voting on the question shall decidein favor of a Convention for such purpose, at an Election to be held not later than four months afterthe Proposal shall have been certified as approved, the Electors of each House of RepresentativesDistrict as then organized shall Elect One Delegate for each State Representative to which theDistrict is entitled and the Electors of each Senatorial District as then organized shall Elect OneDelegate for each State Senator to which the District is entitled. The Delegates so elected shallconvene at the Capital City on the First Tuesday in October next succeeding such election, and shallcontinue their sessions until the business of the convention shall be completed. A majority of thedelegates elected shall constitute a quorum for the transaction of business . . . No proposedconstitution or amendment adopted by such convention shall be submitted to the electors forapproval as hereinafter provided unless by the assent of a majority of all the delegates elected to theconvention, the yeas and nays being entered on the journal. Any proposed constitution oramendments adopted by such convention shall be submitted to the qualified electors in the mannerprovided by such convention on the first Monday in April following the final adjournment of theconvention; but, in case an interval of at least 90 days shall not intervene between such finaladjournment and the date of such election, then it shall be submitted at the next general election.Upon the approval of such constitution or amendments by a majority of the qualified electors votingthereon such constitution or amendments shall take effect on the first day of January following theapproval thereof.

9.Minnesota (1867) — Art. XIV.Amendments to the Constitution.

Sec. 1.Amendments to constitution; majority vote of electors voting makes amendmentvalid.Whenever a majority of both houses of the legislature shall deem it necessary to alter or amendthis Constitution, they may propose such alterations or amendments, which proposed amendmentsshall be published with the laws which have been passed at the same session, and said amendmentsshall be submitted to the people for their approval or rejection at any general election, and if it shallappear, in a manner to be provided by law, that a majority of all the electors voting at said electionshall have voted for and ratified such alterations or amendments, the same shall be valid to all intentsand purposes as a part of this Constitution. If two or more alterations or amendments shall besubmitted at the same time, it shall be so regulated that the voters shall vote for or against eachseparately.

Sec. 2.Revision of constitution.Whenever two-thirds of the members elected to each branch of thelegislature shall think it necessary to call a convention to revise this Constitution, they shallrecommend to the electors to vote at the next general election for members of the legislature, for or


185 of 207 6/20/2012 8:16 AM

against a convention; and if a majority of all the electors voting at said election shall have voted for aconvention, the legislature shall, at their next session, provide by law for calling the same. Theconvention shall consist of as many members as the House of Representatives, who shall be chosenin the same manner, and shall meet within three months after their election for the purpose aforesaid.

Sec. 3.Submission to people of revised constitution drafted at convention.Any convention called torevise this constitution shall submit any revision thereof by said convention to the people of the Stateof Minnesota for their approval or rejection at the next general election held not less than 90 daysafter the adoption of such revision, and, if it shall appear in the manner provided by law that three-fifths of all the electors voting on the question shall have voted for and ratified such revision, the sameshall constitute a new constitution of the State of Minnesota. Without such submission andratification, said revision shall be of no force or effect Section 9 of Article IV of the Constitution shallnot apply to election to the convention.

10.Nevada (1864) — Art. 16.Amendments.

Sec. 1.Constitutional amendments; procedure.Any amendment or amendments to this Constitutionmay be proposed in the Senate or Assembly; and if the same shall be agreed to by a Majority of allthe members elected to each of the two houses, such proposed amendment or amendments shall beentered on their respective journals, with the Yeas and Nays taken thereon, and referred to theLegislature then next to be chosen, and shall be published for three months next preceding the timeof making such choice. And if in the Legislature next chosen as aforesaid, such proposed amendmentor amendments shall be agreed to by a majority of all the members elected to each house, then itshall be the duty of the Legislature to submit such proposed amendment or amendments to thepeople, in such manner and at such time as the Legislature shall prescribe; and if the people shallapprove and ratify such amendment or amendments by a majority of the electors qualified to vote formembers of the Legislature voting thereon, such amendment or amendments shall become a part ofthe Constitution.

Sec. 2.Convention for revision of constitution; procedure.If at any time the Legislature by a vote oftwo-thirds of the Members elected to each house, shall determine that it is necessary to cause arevision of this entire Constitution they shall recommend to the electors at the next election forMembers of the Legislature, to vote for or against a convention, and if it shall appear that a majorityof the electors voting at such election, shall have voted in favor of calling a Convention, theLegislature shall, at its next session provide by law for calling a Convention to be holden within sixmonths after the passage of such law, and such Convention shall consist of a number of Members notless than that of both branches of the Legislature. In determining what is a majority of the electorsvoting at such election, reference shall be had to the highest number of votes cast at such election forthe candidates for any office or on any question.

11.New Hampshire (1784) —

Art. 99.Revision of constitution provided for.It shall be the duty of the selectmen, and assessors, ofthe several towns and places in this state, in warning the first annual meetings for the choice ofsenators, after the expiration of seven years from the adoption of this constitution, as amended, toinsert expressly in the warrant this purpose, among the others for the meeting, to wit, to take thesense of the qualified voters on the subject of a revision of the constitution; and, the meeting being


186 of 207 6/20/2012 8:16 AM

warned accordingly, and not otherwise, the moderator shall take the sense of the qualified voterspresent as to the necessity of a revision; and a return of the number of votes for and against suchnecessity, shall be made by the clerk sealed up, and directed to the general court at their then nextsession; and if, it shall appear to the general court by such return, that the sense of the people of thestate has been taken, and that, in the opinion of the majority of the qualified voters in the state,present and voting at said meetings, there is a necessity for a revision of the constitution, it shall bethe duty of the general court to call a convention for that purpose, otherwise the general court shalldirect the sense of the people to be taken, and then proceed in the manner before mentioned. Thedelegates to be chosen in the same manner, and proportioned, as the representatives to the generalcourt; provided that no alterations shall be made in this constitution, before the same shall be laidbefore the towns and unincorporated places, and approved by two thirds of the qualified voterspresent and voting on the subject.

12.Oklahoma (1907) — Art. XXIV.Constitutional Amendments.

Sec. 1.Amendments proposed by legislature; submission to vote.Any amendment or amendments tothis Constitution may he proposed in either branch of the Legislature, and if the same shall be agreedto by a majority of all the members elected to each of the two houses, such proposed amendment oramendments shall, with the yeas and nays thereon, he entered in their journals and referred by theSecretary of State to the people for their approval or rejection, at the next regular general election,except when the Legislature, by a two-thirds vote of each house, shall order a special election forthat purpose. If a majority of all the electors voting at such election shall vote in favor of anyamendment thereto, it shall thereby become a part of this Constitution.

If two or more amendments are proposed they shall be submitted in such manner that electors mayvote for or against them separately.

No proposal for the amendment or alteration of this Constitution which is submitted to the votersshall embrace more than one general subject and the voters shall vote separately for or against eachproposal submitted; provided, however, that in the submission of proposals for the amendment of thisConstitution by articles, which embrace one general subject, each proposed article shall be deemed asingle proposals or proposition.

Sec. 2.Constitutional convention to propose amendments or new constitution.No convention shall becalled by the Legislature to propose alterations, revisions, or amendments to this Constitution, or topropose a new Constitution, unless the law providing for such convention shall first be approved bythe people on a referendum vote at a regular or special election, and any amendments, alterations,revisions, or new Constitution, proposed by such convention, shall be submitted to the electors of theState at a general or special election and be approved by a majority of the electors voting thereon,before the same shall become effective Provided, That the question of such proposed conventionshall be submitted to the people at least once in every twenty years.

13.Oregon (1859) — Art. XVII.Amendments and Revisions.

Sec. 1.Method of amending constitution.Any amendment or amendments to this Constitution may beproposed in either branch of the legislative assembly, and if the same shall be agreed to by a majorityof all the members elected to each of the two houses, such proposed amendment or amendmentsshall, with the yeas and nays thereon, be entered in their journals and referred by the secretary ofstate to the people for their approval or rejection, at the next regular general election, except when


187 of 207 6/20/2012 8:16 AM

the legislative assembly shall order a special election for that purpose. If a majority of the electorsvoting on any such amendment shall vote in favor thereof, it shall thereby become a part of thisConstitution. The votes for and against such amendment, or amendments, severally, whetherproposed by the legislative assembly or by initiative petition, shall be canvassed by the secretary ofstate in the presence of the governor, and if it shall appear to the governor that the majority of thevotes cast at said election on said amendment, or amendments, severally, are cast in favor thereof, itshall be his duty forthwith after such canvass, by his proclamation, to declare the said amendment, oramendments, severally, having received said majority of votes to have been adopted by the people ofOregon as part of the Constitution thereof, and the same shall be in effect as a part of theConstitution from the date of such proclamation. When two or more amendments shall be submittedin the manner aforesaid to the voters of this state at the same election, they shall be so submitted thateach amendment shall be voted on separately. No convention shall be called to amend or proposeamendments to this Constitution, or to propose a new Constitution, unless the law providing for suchconvention shall first be approved by the people on a referendum vote at a regular general election.This article shall not be construed to impair the right of the people to amend this Constitution by voteupon an initiative petition therefor.

Sec. 2.Method of revising constitution.(1) In addition to the power to amend this Constitutiongranted by section 1, Article IV, and section 1 of this Article, a revision of all or part of thisConstitution may be proposed in either house of the Legislative Assembly and, if the proposedrevision is agreed to by at least two- thirds of all the members of each house, the proposed revisionshall, with the yeas and nays thereon, be entered in their journals and referred by the Secretary ofState to the people for their approval or rejection, notwithstanding section 1, Article IV of thisConstitution, at the next regular state-wide primary election, except when the Legislative Assemblyorders a special election for that purpose. A proposed revision may deal with more than one subjectand shall be voted upon as one question. The votes for and against the proposed revision shall becanvassed by the Secretary of State in the presence of the Governor and, if it appears to theGovernor that the majority of the votes cast in the election on the proposed revision are in favor ofthe proposed revision, he shall, promptly following the canvass, declare, by his proclamation, that theproposed revision has received a majority of votes and has been adopted by the people as theConstitution of the State of Oregon or as a part of the Constitution of the State of Oregon, as the casemay be. The revision shall be in effect as the Constitution or as a part of this Constitution from thedate of such proclamation.

14.Utah (1896) — Art. 23.Amendments.

Sec. 1.Amendments; method of proposal and approval.Any amendment or amendments to thisConstitution may be proposed in either house of the Legislature, and if two-thirds of all the memberselected to each of the two houses, shall vote in favor thereof, such proposed amendment oramendments shall be entered on their respective journals with the yeas and nays taken thereon; andthe Legislature shall cause the same to be published in at least one newspaper in every county of theState, where a newspaper is published, for two months immediately preceding the next generalelection, at which time the said amendment or amendments shall be submitted to the electors of theState, for their approval or rejection, and if a majority of the electors voting thereon shall approve thesame, such amendment or amendments shall become part of this Constitution. If two or moreamendments are proposed, they shall be so submitted as to enable the electors to vote on each ofthem separately.


188 of 207 6/20/2012 8:16 AM

Sec. 2.Revision of the constitution by convention.Whenever two- thirds of the members, elected toeach branch of the Legislature, shall deem it necessary to call a convention to revise or amend thisConstitution, they shall recommend to the electors to vote at the next general election, for or againsta convention, and, if a majority of all the electors, voting at such election, shall vote for a convention,The Legislature, at its next session, shall provide by law for calling the same. The convention shallconsist of not less than the number of members in both branches of the Legislature.

15.Wyoming (1890) — Art. XX.Amendments.

Sec. 1.Procedure for amendments.Any amendment or amendments to this constitution may beproposed in either branch of the legislature, and, if the same shall be agreed to by two-thirds of allthe members of each of the two houses, voting separately, such proposed amendment oramendments shall, with the yeas and nays thereon, be entered on their journals, and it shall be theduty of the legislature to submit such amendment or amendments to the electors of the state at thenext general election, and cause the same to be published without delay for at least twelve (12)consecutive weeks, prior to said election, in at least one newspaper of general circulation, publishedin each county, and if a majority of the electors shall ratify the same, such amendment oramendments shall become a part of this constitution.

Sec. 2.How voted for.If two or more amendments are proposed, they shall be submitted in suchmanner that the electors shall vote for or against each of them separately.

Sec. 3.Constitutional convention; provision for.Whenever two- thirds of the members elected toeach branch of the legislature shall deem it necessary to call a convention to revise or amend thisconstitution, they shall recommend to the electors to vote at the next general election for or against aconvention, and if a majority of all the electors voting at such election shall have voted for aconvention, the legislature shall at the next session provide by law for calling the same; and suchconvention shall consist of a number of members, not less than double that of the most numerousbranch of the legislature.

Sec. 4.New constitution.Any constitution adopted by such convention shall have no validity until ithas been submitted to and adopted by the people.

Footnotes

1.Justices Makalintal, Castro, Barredo, Makasiar, Antonio and Esguerra.

2.Chief Justice Concepcion and Justices Fernando and Teehankee.

3.Justice Zaldivar.

4.Case G.R. No. L-36164.

5.Case G.R. No. L-36236.

6.Case G.R. No. L-36283.

7.Who withdrew as petitioner on January 25, 1973.


189 of 207 6/20/2012 8:16 AM

8.Originally, Gerardo Roxas, Ambrosio Padilla and Salvador H. Laurel. Now, after the withdrawal of thelatter, the first two (2) only.

9.Namely, Jovito R. Salonga, Ramon V. Mitra, Jr. and Eva Estrada-Kalaw.

10.Napoleon V. Dilag, et al. v. Executive Secretary, et al.

11.Araneta v. Dinglasan, 84 Phil. 431, 437-438. See, also, Gonzales v. Commission on Elections, L-28196 &L-28224, Nov. 9, 1967. Italics ours.

12.Art. VI, sec. 20(1), Constitution.

13.Art. VII, sec. 10(7), Constitution.

14.Italics ours.

15.See page 4, last paragraph, of his Comment dated Feb. 6, 1973.

16In re Opinion of Justices, 107 Atl. 673, 5 A.L.R. 1412; Crawford v. Gilchrist, 59 So. Rep. 963; McAdamsv. Henley, 273 S.W. 355; Egbert v. City of Dunseith, 74 N.D. 1, 168 A.L.R. 621, 24 N.W. 2d. 907;State ex rel. Landis, Atty. Gen. v. Thompson, 163 So. Rep. 270; St. Louis Brewing Association v.Moore, 64 L. ed. 947; Ellingham v. Dye, 99 N.E. Rep. 1, 18; Johnson v. Craft, 87 So. Rep. 375.

17.Mun. Malabang v. Benito, L-28113, Mar. 28, 1969; NAWASA v. Piguing, et al., L-35573, Oct. 11, 1968;Fernandez v. P. Cuerva & Co., L-21114, Nov. 25, 1967; Gonzales v. Commission on Elections,L-28224, Nov. 29, 1967; Bara Lidasa v. COMELEC, L-28089, Oct. 25, 1967; Mun. of San Juan v.NAWASA, L-22047, Aug. 31, 1967; Mun. of San Joaquin v. Siva, L-19870, Mar. 18, 1967; Pelayo v.Auditor General, L-23825, Dec. 24, 1965; Philippine Constitution Association v. Gimenez, L-23326,Dec. 18, 1965; Mun. of La Carlota v. NAWASA, L-20232, Sept. 30, 1964; Guevarra v. Inocentes,L-25577, Mar. 15, 1966; Gillera v. Fernandez, L-20741, Jan. 31, 1964; Siguiente v. Secretary ofJustice, L-20370, Nov. 29, 1963; Herrera v. Liwag, L-20079, Sept. 30, 1963; Aytona v. Castillo,L-19313, Jan. 19, 1962; La Mallorca, etc. v. Ramos, et al., l-15476, Sept. 19, 1961; Tan v. De Leon,et al., L-15254, Sept. 16, 1961; Macias v. Commission on Elections, L-18684, Sept. 14, 1961;Philippine Tobacco Flue-During & Redrying Corp. v. Sabugo, et al., L-16017, Aug. 31, 1961; Millerv. Mardo, L-15138, July 31, 1961; Cu Bu Liong v. Estrella, et al., L-14212, July 31, 1961;Pampanga Sugar Development Co., Inc. v. Fuentes, et al., L-14738, July 31, 1961; Earnshaw Docks& Honolulu Iron Works v. Mardo, et al., L-14759, July 31, 1961; Liwanag v. Central Azucarera DonPedro, L-15372, July 31, 1961; Lecura v. Regional Office No. 3, etc., L-15582, July 31, 1961;Pitogo v. Sen Bee Trading Co., et al., L-15693, July 31, 1961; Pascual v. Sec. of Public Works andCommunications, L-10405, Dec. 29, 1960; Corminas, Jr. v. Labor Standards Commission, L-14837,June 30, 1961; City of Bagiuo v. NAWASA, L-12032, Aug. 31, 1959; City of Cebu v. NAWASA,L-12892, April 20, 1960; Montes v. Civil Service Board of Appeals, 101 Phil. 490; Rutter v.Esteban, 93 Phil. 68; Araneta v. Dinglasan, 84 Phil. 368; Borromeo v. Mariano, 41 Phil. 322.

18.G.R. Nos. L-35925, L-35929, L-35940, L-35941, L-35942, L-35948, L-35953, L-35961, L-35965 andL-35979, decided on January 22, 1973.

19.L-33964, Teodosio Lansang, et al. v. Brigadier-General Eduardo M. Garcia; L-33965, Rogelio V.Arienda v. Secretary of National Defense, et al.; L-33973, Luzvimindo David v. Gen. EduardoGarcia, et al.; L-33962, Felicidad G. Prudente v. General Manuel Yan, et al.; L-34004, Domingo E.de Lara v. Brigadier-General Eduardo M. Garcia; L-34013, Reynaldo Rimando v. Brig. Gen.Eduardo M. Garcia; L-34039, Carlos C. Rabago v. Brig. Gen. Eduardo Garcia, et al.; L-34265,Antolin Oreta, Jr. v. Gen. Eduardo Garcia, et al.; and L-34339, Gary B. Olivar, et al. v. Gen.


190 of 207 6/20/2012 8:16 AM

Eduardo Garcia, et al.

20.5 Phil. 87.

21.91 Phil. 882.

22.G.R. Nos. L-28196 and L-28224, Nov. 9, 1967.

23.78 Phil. 1.

24.Supra.

25.In re McConaughy, 119 N.W. 408, 417.

26.103 Phil. 1051, 1067.

27.119 N.W. 408, 411, 417.

28.92 Ky. 589, 18 S.W. 522, 523.

29.Citing Koehler v. Hill, 60 Iowa 543, 14 N.W. Rep. 738, and 15 N.W. Rep. 609; State v. Tufly, 19 Nev.391, 12 Pac. Rep. 835.

30.Angara v. Electoral Commission, 63 Phil. 139, 157. Italics ours.

31.12 L. ed. 581 (1849).

32.Luther v. Borden, supra, p. 598. Italics ours.

33.In re McConaughy, supra p. 416. Italics ours.

34.369 U.S. 186, 7 L. ed. 2d. 663, 82 S.Ct. 691 (March 26, 1962).

35.895 U.S. 486, 23 L. ed. 2d. 491, 89 S. Ct. 1944 (1969).

36.In re McConaughy, 119 N.W. 408, 415. Italics ours. The observation as to the uniformity of authoritieson the matter has been reiterated in Winget v. Holm, 244 N.W. 329, 332.

37.Baker v. Carr, 369 U.S. 186, 7 L. ed. 2d. 663, 686, 82 S. Ct. 691.

38.See p. 5 of the Petition.

39.Italics ours.

40.The Framing of the Philippine Constitution, by Aruego, Vol. I, p. 215.

41.The Framing of the Philippine Constitution, by Aruego, Vol. I, pp. 215, 221, 227-228.

42.Ibid., pp. 222-224.

43.Id., pp. 224-227.

44."SEC. 431.Qualifications prescribed for voters. — Every male person who is not a citizen or subject ofa foreign power, twenty-one years of age or over, who shall have been a resident of the Philippinesfor one year and of the municipality in which he shall offer to vote for six months next preceding the


191 of 207 6/20/2012 8:16 AM

day of voting is entitled to vote in all elections if comprised within either of the following threeclasses:

"(a)Those who, under the laws in force in the Philippine Islands upon the twenty-eighth day of August,nineteen hundred and sixteen, were legal voters and had exercised the right of suffrage.

"(b)Those who own real property to the value of five hundred pesos, declared in their name for taxationpurposes for a period of not less than one year prior to the date of the election, or who annually paythirty pesos or more of the established taxes.

"(c)Those who are able to read and write either Spanish, English, or a native language.

"SEC. 432.Disqualifications. — The following persons shall be disqualified from voting:

"(a)Any person who, since the thirteenth day of August, eighteen hundred and ninety-eight, has beensentenced by final judgment to suffer not less than eighteen months of imprisonment, such disabilitynot having been removed by plenary pardon.

"(b)Any person who has violated an oath of allegiance him to the United States.

"(c)Insane or feeble-minded persons.

"(d)Deaf-mutes who cannot read and write.

"(e)Electors registered under subsection (c) of the next preceding section who, after failing to make a swornstatement to the satisfaction of the board of inspectors at any of its two meeting for registration andrevision, that they are incapacitated for preparing their ballots due to permanent physical disability,present themselves at the hour of voting as incapacitated, irrespective of whether such incapacity bereal or feigned."

45.L-34150, October 16 and November 4, 1971.

46."For taking action on any of the above enumerated measures, majority vote of all the barrio assemblymembers registered in the list of the barrio secretary is necessary."

47."All duly registered barrio assembly members qualified to vote may vote in the plebiscite. Votingprocedures may be made either in writing as in regular elections, and/or declaration by the voters tothe board of election tellers. The board of election tellers shall be the same board envisioned bysection 8, paragraph 2 of this Act, in case of vacancies in this body, the barrio council may fill thesame."

48.Edwards v. Lesueur, 33 S.W. 1130; Johnson v. Grand Forks County, 113 N.W. 1071; Ellingham v. Dye(1912), 178 Ind. 236, 99 N.E. 1; State v. Marcus, 160 Wis. 354, 152 N.W. 419.

49.In Alcantara v. Secretary of the Interior, 61 Phil. 459, this Court held that when a state constitutionenumerates and fixes the qualifications of those who may exercise the right of suffrage, thelegislature cannot take from nor add to said qualifications unless the power to do so is conferredupon it by the constitution itself."

Since suffrage, according to Webster, is a voice given not only in the choice of a man for an office or trust,but, also, in deciding a controverted question, it follows, considering the said ruling in Alcantara,


192 of 207 6/20/2012 8:16 AM

that the constitutional qualifications for voters apply equally to voters in elections to public officeand to voters in a plebiscite.

Similarly, the Revised Election Code provides in its section 2 that all elections of public officers by thepeople and all votings in connection with plebiscites shall be conducted in conformity with theprovisions of said Code.

50.Republic Act No. 6388, section 101 of which, in part, provides:

"SEC. 101.Qualifications prescribed for a voter. — Every citizen of the Philippines, not otherwisedisqualified by law, twenty-one years of age or over, able to read and write, who shall have residedin the Philippines for one year and in the city, municipality or municipal district wherein he proposesto vote for at least six months immediately preceding the election, may vote at any election.

"xxx xxx xxx"

51."SEC. 102.Disqualifications. — The following persons shall not be qualified to vote:

"(a)Any person who has been sentenced by final judgment to suffer an imprisonment of not less than oneyear, such disability not having been removed by plenary pardon: Provided, however, That anyperson qualified to vote under this paragraph shall automatically reacquire the right to vote uponexpiration of ten years after service of sentence unless during such period, he shall have beensentenced by final judgment to suffer an imprisonment of not less than one year.

"(b)Any person who has been adjudged by final judgment by competent court of having violated hisallegiance to the Republic of the Philippines.

"(c)Insane or feeble-minded persons.

"(d)Persons who cannot prepare their ballots themselves."

52."SEC. 10.. . .

"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."

53.20 C.J., 179-181, quoted in Demetrio v. Lopez, 50 Phil. 45, 60. See, also, Garchitorena v. Crescini, 39Phil. 258.

54.Baldauf v. Gunson, 8 P. 2d. 265. See, also, Martin v. McGarr, 117 P. 323, Glenn v. Gnau, 64 S.w. 2d.168, Italics ours.

55.L-33325 and L-34043, December 29, 1971.


193 of 207 6/20/2012 8:16 AM

56.Hopkins v. City of Duluth, 83 N.W. 536, 538. Italics ours.

57.Maddox v. Board of State Canvassers, 149 P. 2d. 112, 115. Italics ours.

58.Port of Palm Beach District v. State, 22 So. 2d. 581, 582-583. Italics ours.

59.Art. X, section 1 of the 1935 Constitution.

60.Ten (10) years.


62.Ibid.


64."SEC. 5.Organization of the Commission on Elections. — The Commission shall adopt its own rules ofprocedure. Two members of the Commission shall constitute a quorum. The concurrence of twomembers shall be necessary for the pronouncement or issuance of a decision, order or ruling.

"The Commission shall have an executive officer and such other subordinate officers and employees as maybe necessary for the efficient performance of its functions and duties, all of whom shall be appointedby the Commission in accordance with the Civil Service Law and rules.

"The executive officer of the Commission, under the direction of the Chairman, shall have charge of theadministrative business of the Commission, shall have the power to administer oaths in connectionwith all matters involving the business of the Commission, and shall perform such other duties asmay be required of him by the Commission.

"SEC. 6.Power of the Commission to Investigate and to Hear Controversy and Issue Subpoena. — TheCommission or any of the members thereof shall, in compliance with the requirement of dueprocess, have the power to summon the parties to a controversy pending before it, issue subpoenaeand subpoenae duces tecum and otherwise take testimony in any investigation or hearing pendingbefore it, and delegate such power to any officer of the Commission who shall be a member of thePhilippine Bar. In case of failure of a witness to attend, the Commission, upon proof of service ofthe subpoenae to said witness, may issue a warrant to arrest the witness and bring him before theCommission or officer before whom his attendance is required. The Commission shall have thepower to punish contempts provided for in the Rules of Court under the same controversy submittedto the Commission shall after compliance with the requirements of due process be heard anddecided by it within thirty days after submission of the case.

"The Commission may, when it so requires, deputize any member of any national or local law enforcementagency and/or instrumentality of the government to execute under its direct and immediatesupervision any of its final decisions, orders, instructions or rulings.

"Any decision, order or ruling of the Commission on election controversies may be reviewed by theSupreme Court by writ of certiorari in accordance with the Rules of Court or such applicable lawsas may be enacted.

"Any violation of any final executory decision, order or ruling of the Commission shall constitute contemptthereof."

65.64 S.W.2d. 168.


194 of 207 6/20/2012 8:16 AM

66.L-35538, Roces, et al. v. Secretary of National Defense, et al.; L-35539, Diokno v. Hon. Enrile, et al.;L-35540, Soliven, et al. v. Secretary of National Defense, et al.; L-35546, Aquino, Jr., et al. v. Hon.Enrile, et al.; L-35547, Garcia II v. Hon. Enrile, et al.; L-35567, Doronilla, et al. v. Secretary ofNational Defense, et al.; L-35573, Rondon v. Hon. Enrile, et al.

67."PRESIDENTIAL DECREE NO. 86-A

"STRENGTHENING AND DEFINING THE ROLE OF BARANGAYS (CITIZENS ASSEMBLIES)

"WHEREAS, on the basis of preliminary and initial reports from the field as gathered from barangays(citizens assemblies) that have so far been established, the people would like to decide forthemselves questions or issues, both local and national, affecting their day to day lives and theirfuture;

"WHEREAS, the barangays (citizens assemblies) would like themselves to be the vehicle for expressing theviews of the people on important national issues;

"WHEREAS, such barangays (citizens assemblies) desire that they be given legal status and due recognitionas 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 certainspecified questions such as the ratification of the new Constitution, continuance of martial law, theconvening of Congress on January 22, 1973, and the elections in November 1973 pursuant to the1935 Constitution.

"NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the powersvested in me by the Constitution as Commander-in-Chief of all Armed Forces of the Philippines, dohereby declare as part of the law of the land the following:

"1.The present barangays (citizens assemblies) are created under Presidential Decree No. 86 datedDecember 31, 1973, shall constitute the base for citizen participation in governmental affairs andtheir 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, likethe holding of the plebiscite on the new Constitution, the continuation of martial rule, the conveningof Congress on January 22, 1973, and the holding of elections in November 1973, and others in thefuture, 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 onimportant national issues, including those specified in paragraph 2 hereof, and submit the resultsthereof to the Department of Local Governments and Community Development immediatelythereafter, pursuant to the express will of the people as reflected in the reports gathered from themany 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 andseventy-three." (Italics ours.)

68.McKinney v. Barker, 180 Ky. 526, 203 S.W. 303, 304. Italics ours.

69.Art. VII, section 2, 1935 Constitution.


195 of 207 6/20/2012 8:16 AM

70.Michael W. Roche v. Lamb, 306 N.Y.S. 2d. 515 (Dec. 17, 1969); State ex rel. Sathre v. Bryne, 258 N.W.121; State ex rel. Shriver v. Hayes, 76 N.E. 2d. 869; Smith v. Bangham, 76 P 2d. 1022; McKim v.Brast, 117 S.E. 875; Head v. Wood, 107 So. 854; State ex rel. Watson v. Pigg, 46 N.E. 2d. 232.

71.See cases cited in the preceding footnote. See, also, Tiegs v. Patterson, 318 P. 2d. 588; State ex rel.Brown v. St. Joseph Circuit Court, 95 N.E. 2d. 632; Williamson v. State Election Board, 431 P. 2d.352; Baker v. Conway, 108 So. 18; Cohoon v. Swain, 5 S.E. 2d. 1; State ex rel. Mitchell v. Walcott,83 A. 2d. 762; Doyle v. Ries, 285 N.W. 480; Grossglaus v. Board of Elections of Stark County, 88N.E. 2d. 245; Walker v. Hughes, 36 A. 2d. 47; Reese v. Dempsey, 152 P. 2d. 157; Dodd v. Gower,62 S.W. 2d. 1; Galloway v. Bradburn, 82 S.W. 1013; Hagan v. Henry, 76 S.W. 2d. 994.

72.106 Minn 392, 119 N.W. 408, 409.

73.63 N.J. Law, 289, cited in In re McConaughy, supra.

74.78 Ark. 439, 96 S.W. 396, cited in In re McConaughy, supra.

75.See cases listed on pages 105-106, footnotes 56, 57 and 58.

76.On December 19, 1972.

77.24 Kansas 700, 714. See, also, State ex rel. Williams v. Robb, 183 P. 2d. 223, 228; Harris v. Shanahan,387 P. 2d. 771, 784, 785.

78.369 U.S. 186, 7 L.ed. 2d. 663, 684, citing Chaselton Corp. v. Sinclair, 264 U.S. 543, 547, 548, 68 L. ed.841, 843, 44 S. Ct. 405.

79.Art. VII, section 10, paragraph (1).

80.101 Va. 529, 44 S.E. 754.

81.Marifosque, et al. v. Luna, 101 Phil. 1223 (unreported); 37 Am. Jur. 669; 62 C.J.S. 749-750; Guevara v.Inocentes, L-25577, March 15, 1966.

82.Which, in some respects, is regarded as an organ of the Administration, and the news items publishedtherein are indisputably censored by the Department of Public Information.

83.Daily Express, November 29, 1972, p. 4. Italics ours.

84.231 U.S. 28, 58 L. ed. 107, 114, 34 S. Ct. 1.

85.Baker v. Carr, 369 U.S. 186, 7 L. ed. 2d. 663, 82 S.Ct. 691.

86.Justice Barredo's opinion in the plebiscite cases.

87.Joint Opinion of Justices Makalintal and Castro, p. 153.

88.Justice Barredo's language.

89.At p. 153, joint opinion of Justices Makalintal and Castro.

90.Joint Opinion of Justices Makalintal and Castro, p. 153.


196 of 207 6/20/2012 8:16 AM

91.At p. 8, Idem.

*The undersigned (Justice Querube C. Makalintal) who had reserved his right to do so, filed a separatedissenting opinion when the Court denied a motion for reconsideration, and voted in favor of thevalidity of the questioned Resolution. Mr. Justice Enrique M. Fernando joined in the dissent.

*Thus by Presidential Decree No. 86 what the Constitutional Convention itself had proposed unsuccessfullyas an amendment to the 9135 Constitution, reducing the voting age from 21 to 18, but thesubmission of which to a plebiscite was declared invalid by this Court in Tolentino vs. COMELEC,became a reality of an even more far-reaching import — since fifteen-year olds were included in theCitizens Assemblies.

*According to the Solicitor General 92 Congressmen and 15 Senators (both numbers constituting majorities)have expressed their option.

*Luther v. Borden, 48 U.S. (7 Haw.) 1, 12 L. Ed. 581 (1849).

1.Charito Planas vs. Comelec, et al., L-35925, January 22, 1973; Pablo C. Sanidad vs. Comelec, L-35929,January 22, 1973; Gerardo Roxas, etc., et al. vs. Comelec, et al., L-35940, January 22, 1973; EddieB. Monteclaro vs. Comelec, et al., L-35941, January 22, 1973; Sedfrey A. Ordoñez, et al., vs. TheNational Treasurer of the Philippines, et al., L-35942, January 22, 1973; Vidal Tan, et al. vs.Comelec, et al., L-35948, January 22, 1973; Jose W. Diokno, et al. vs. Comelec, L-35953, January22, 1973; Jacinto Jimenez vs. Comelec, et al., L-35961, January 22, 1973; Raul M. Gonzales vs.Comelec, et al., L-35965, January 22, 1973 and Ernesto Hidalgo vs. Comelec, et al., L-35979,January 22, 1973.

2.Executive Agreements are not included in the corresponding provision of the 1935 Constitution.

3.It must be recalled that in the Tolentino case, the Constitutional Convention intended to submit oneamendment which was to form part of the Constitution still being prepared by it separately from therest of the other parts of such constitution still unfinished, and We held that a piece-meal submissionwas improper. We had no occasion to express any view as to how a whole new Constitution may beratified.

*In 1880, he also wrote his "Constitutional Law." Judge Cooley, who was born in Attica, New York in 1824,died in 1898. Judge Cooley was also professor and later dean of the Law Department of theUniversity of Michigan and Justice of the State Supreme Court of Michigan from 1864 to 1885,when he failed to win re-election to the court.

1.Charito Planas v. Commission on Elections, et al., L-35925; Pablo C. Sanidad v. Commission onElections, L-35929; Gerardo Roxas, etc., et al. v. Commission on Elections, et al., L-35940; EddieB. Monteclaro v. The Commission on Elections, et al., L-35941; Sedfrey A. Ordoñez, et al. v. TheNational Treasurer of the Philippines, et al., L-35942; Vidal Tan, et al. v. Commission on Elections,et al., L-35948; Jose W. Diokno, et al. v. The Commission on Elections, L-35953; Jacinto Jimenez v.Commission on Elections, et al., L-35961; Raul M. Gonzales v. The Honorable Commission onElections, et al., L-35965; Ernesto Hidalgo v. Commission on Elections, et al., L-35979.

2.See Tañada, et al. v. Cuenco, L-10520, Feb. 28, 1951; Baker v. Carr, 369 U.S. 186 (1962).

3.See 16 Am. Jur. 2d. p. 468, Note 14, and cases cited therein.

4.Cooke v. Iverson, 108 Minn. 388, 122 NW 251.


197 of 207 6/20/2012 8:16 AM

5.L-38196, November 9, 1967, 21 SCRA 774.

6.83 Phil. 1957.

7.McConaughy v. Secretary of State, 119 N.W. 408, 413; 32A Words and Phrases p. 516. See also theplebiscite cases, mentioned in footnote 1, ante.

8.Cooley, Constitutional Limitation, 8th Ed., Vol. I, p. 82.

9.39 Phil. 258, 268.

10.69 Phil. 199, 204.

11.70 Phil. 28, 31.

1.Memorandum for Respondents, 2.

2.According to the 1935 Constitution: "The Congress in joint session assembled, by a vote of three-fourthsof all the members of the Senate and of the House of Representatives voting separately may proposeamendments to this Constitution or call a convention for that purpose. Such amendments shall bevalid as part of this Constitution when approved by a majority of the votes cast at an election atwhich the amendments are submitted to the people for their ratification." Art. XV, Section 1.

3.Lerner, Ideas are Weapons, 426 (1939). Earlier, in this collection of essays, Lerner made this not-entirely-inaccurate observation: "No governmental institution that consists of a group of legal techniciansappointed for life can ever hope to cope with, much less solve, the exigent problems of our polity."Ibid, 231. He was referring of course to the Supreme Court of the United States.

4.Frankfurter, Mr. Justice Holmes and the Supreme Court, 25-26 (1938).

5.Black, The People and the Court (1960).

6.Murphy, Elements of Judicial Strategy (1964).

7.Cf. Angara v. Electoral Commission, 63 Phil. 139 (1936); Tañada v. Cuenco, 103 Phil. 1051 (1957): Verav. Arca, L-25721, May 26, 1969, 28 SCRA 351.

8.Gonzales v. Commission on Elections, L-28196, Nov. 9, 1967, 21 SCRA 774.

9.Tolentino v. Commission on Elections, L-24150, Oct. 16, 1971. 41 SCRA 702.

10.Planas v. Commission on Elections, L-35925, Jan. 25, 1973.

11.256 US 368 (1921).

12.Ibid, 374-375.

13.L-33964, Dec. 11, 1971, 42 SCRA 448.

14.Ibid, 504-505.

15.Dodd, Judicially Nonenforceable Provisions of Constitutions, in I Selected Essays on Constitutional Law355, 387 (1938).


198 of 207 6/20/2012 8:16 AM

16.Ibid, 395.

17.Weston, Political Questions, I Selected Essays on Constitutional Law 418, 422 (1938).

18.Cf. Bickel, The Least Dangerous Branch (1962).

19.Cf. Freund, On Understanding the Supreme Court (1950). Also his The Supreme Court of the UnitedStates (1962).

20.Laurel, S., VII Proceedings of the Philippine Constitutional Convention (1934-1935), Appendix L, 800.

21.65 Phil. 56 (1937).

22.Ibid, 96.

23.63 Phil. 139 (1936).

24.L-35925, January 22, 1973.

25.Rostow, The Democratic Character of Judicial Review in Selected Essays on Constitutional Law 19381962, 1, 2 (1963).

26.Ibid.

27.Ibid, 3.

28.Ibid, 3-4. The decision of Justice Frankfurter referred to is that of Rochin v. People of California, 342 US165 (1952).

29.Mason, The Supreme Court from Taft to Warren, 154 (1967). The words of Justice Frankfurter found inhis opinion in Stein v. New York, 346 US 156 (1953).

30.Konefsky, The Legacy of Holmes and Brandeis, 293 (1956).

31.Corwin, Judicial Review in I Selected Essays on Constitutional Law, 449, 450 (1938).

32.1 Cranch 137 (1803).

33.Curtis, Lions Under the Throne, 12 (1947).

34.Addresses and Papers of Charles Evans Hughes, 139-140 (1908).

35.Jackson, Robert H. The Struggle for Judicial Supremacy, 3 (1949).

36.Haines, Charles Grove, The Role of the Supreme Court in American Government and Politics,1789-1835, 3 (1960).

37.369 US 186.

38.395 US 486.

39.328 US 549 (1946).

40.Ibid, 556.


199 of 207 6/20/2012 8:16 AM

41.Cf. Wesberry v. Sanders, 376 US 1, 11 L ed 2d 481, 84 S Ct. 526 (1964); Wright v. Rockefeller, 376 US52, 11 L ed 2d 512, 84 S Ct 603 (1964); Reynolds v. Sims, 377 US 533, 12 L ed 2d 506, 84 S Ct1362 (1964); WMCA v. Lomenzo 377 US 633, 12 L ed 2d 568, 84 S Ct. 1418 (1964); MarylandCommittee v. Tauses, 377 US 656, 12 L ed 2d 595, 84 S Ct. 1442 (1964); Davis v. Mann, 377 US678, 12 L ed 2d 609, 84 S Ct. 1453 (1964); Roman v. Sincock, 377 US 695, 12 L ed 2d 620, 84 S Ct.1462 (1964); Lucas v. Colorado General Assembly, 377 US 713, 12 L ed 2d 632, 84 S Ct. 1472(1964); Fortson v. Dorsey, 379 US 433, 13 L ed 2d 401, 85 S Ct. 498 ( 1965); Burns v. Richardson,384 US 73,16 L ed 2d 376, 86 S Ct. 1286 (1966); Sailors v. Kent Board of Education, 387 US 105,18 L ed 2d 650, 87 S Ct. 1549 (1967); Dusch v. Davis, 387 US 112, 18 L ed 2d 656, 87 S Ct. 1554 (1967).

42.77 Phil. 192 (1946).

43.Ibid, 56.

44.New York Times Company v. United States, 29 L ed. 822 (1971).

45.Wechsler, Toward Neutral Principles of Constitutional Law, 72 Harv. Law Review 77 (1959). It is thefirst essay in his Principles, Politics and Fundamental Law.

46.The principal articles are: Pollak, Constitutional Adjudication: Relative or Absolute Neutrality, 11 J. Pub.L. 48 (1962); Rostow, American Legal Realism and the Sense of Profession, 34 Rocky Mt. L. Rev.123, 136-46 (1962); Henkin, Some Reflections on Current Constitutional Controversy, 109 U Pa L.Rev. 637 (1961); Henson, A Criticism of Criticism: In re Meaning, 29 Fordham L. Rev. 553 (1961);Miller, A Note on the Criticism of Supreme Court Decisions, 10 J. Pub. L. 139 (1961); Wright, TheSupreme Court Cannot be Neutral 40 Texas L. Rev. 599 (1961); Arnold, Professor Hart's Theology,73 Harv. L. Rev. 1298 (1960); Black, The Lawfulness of the Segration Decisions, 69 Yale L. J. 421(1960); Griswold, Of Time and Attitudes: Professor Hart and Judge Arnold, 74 Harv. L. Rev. 81(1960); Karst, Legislative Facts in Constitutional Litigation, 1960 Supreme Court Rev. 75; Millerand Howell, The Myth of Neutrality in Constitutional Adjudication, 27 U. Chi. L. Rev. 661 (1960);Mueller & Schwartz, The Principle of Neutral Principles, 7 U.C.L.A.L. Rev. 571 (1960); Hart,Forward, The Time Chart of the Justices, 73 Harv. L. Rev. 84 (1959); Pollak, Racial Discriminationand Judicial Integrity: A Reply to Professor Wechsler, 108 U. Pa L. Rev. 1 (1959).

47.Cahn, Supreme Court and Supreme Law, 40 (1954).

48.Cf. Tañada v. Cuenco, 103 Phil. 1051, 1089 (1957).

49.Collier v. Frierson, 124 Ala. 100 (1854); Green v. Weller, 32 Miss. 650 (1856); Penn v. Tollison, 26 Ark.545 (1871); Koehler v. Hill, 60 Iowa 543, 14 NW 738 (1883); McMillan v. Blattner, 67 Iowa 287, 25NW 245 (1885); State v. Davis, 20 Neb. 220, 19 Pac. 894 (1888); State v. Tooker, 15 Mont. 8, 37Pac. 840 (1894); Russie v. Brazzell, 128 Mo. 93, 30 SW 526 (1895); State v. Powell, 77 Miss. 543,27 So. 927 (1900); State v. Brookhart, 113 Iowa 250, 84 NW 1064 (1901); In re Denny, 156 Ind.104, 59 NE 359 (1901); Utter v. Moseley, 16 Idaho 274, 100 P. 1058 (1909); Willis v. Kalbach, 109Va. 475, 64 SE 342 (1909); People ex rel. Swift v. Luce, 74 Misc. Rep. 551, 133 US 9 (1912);McCreary v. Speer, 156 Ky. 783, 162 SW 99 (1914); State v. Donald, 160 Wis. 21, 151 NW 331(1915); State v. Marcus, 160 Wis. 354, 152 NW 419 (1915); State v. Campbell, 94 Ohio St. 403, 115NE 29 (1916); In re Opinion of Justices, 226 Mars. 607, 115 NE 921 (1917); Scott v. Vouchan, 202Mich. 692, 168 NW 709 (1918); Hooper v. State, 89 So. 593, 206 Ala. 371 (1921); Switzer v. State,103 Ohio St. 306, 133 NE 552 (1921); Johnson v. Craft, 87 So. 375, 205 Ala. 386 (1921); In re


200 of 207 6/20/2012 8:16 AM

Opinion of the Justices, 237 Mars. 589, 130 NE 202 (1921); Power v. Robertson, 130 Miss. 188, 93So. 769 (1922); Hamilton v. Deland, 191 NW 829, 221 Mich. 541 (1928); In re Initiative Petition,89 Okl. 124, 214 P. 186 (1923); Armstrong v. King, 281 Pa. 207, 126 A. 263 (1924); McAdams v.Henley, 169 Ark. 97, 273 SW 355 (1925); Heinitsh v. Floyd, 130 SC 434, 126 SE 336 (1925); Statev. Zimmerman, 187 Wis. 180, 204 NW 803 (1925); Brown v. City of New York, 125 Misc. Rep. 1,210 NYS 786 (1926); State ex rel. Bahns v. City of New Orleans, 163 La. 777, 112 So. 718 (1927);Duncan v. Record Pub. Co., 145 SC 196, 143 SE 31 (1928); Lane v. Lukens, 48 Idaho 517, 283 P. 5(1929); School Dist. of City of Pontiac v. City of Pontiac, 262 Mich. 338, 247 NW 474 (1933);Collier v. Gray, 116 Fla. 845, 157 So. 40 (1934); In re Opinion to Governor, 55 R.I. 56, 178 A. 433(1935); State ex rel Landis v. Thompson, 120 Fla. 860, 163 So. 270 (1935); Tausig v. Lawrence, 328Pa. 408, 197 A. 235 (1938); Downs v. City of Bromingham, 240 Ala. 177, 198 So. 231 (1940);Graham v. Jones, 198 La. 507, 3 So. 2d 761 (1941); Pearson v. Taylor, 159 Fla. 775, 32 So. 2d 826(1947); Palmerv. Dunn, 216 SC 558, 59 SE 158 (1950).

50.Cf. Wells v. Bain, 75 Pa. St. 39, 15 Am. Rep. 563 (1874); In re Senate File No. 31, 25 Neb. 864, 41 NW981 (1889); State v. Grey, 21 Nev. 378, 32 Pac. 190 (1893); Nesbit v. People, 19 Colo. 441, 36 Pac.221 (1894); Hays v. Hays, 5 Idaho 154, 47 P. 732 (1897); Lovett v. Ferguson, 10 SD 44, 71 NW 756(1897); Russell v. Grey, 164 Mo. 69, 63 SW 849 (1901); Gabbert v. Chicago, R.I.Ry. Co. 171 Mo.84, 70 SW (1902); People v. Sours, 31 Colo. 369, 102 74 P. 167 (1903); People v. Loomis, 135Mich. 556, 98 NW 262 (1904); West v. State, 50 Fla. 154, 39 So. 412 (1905); State v. Wilmett, 78Neb. 379, 110 NW 113 (1907); Farrell v. Port of Columbia, 50 Or. 169, 93 P. 254 (1908); In reMcConaughy, 106 Minn. 392, 119 NW 408 (1909); Fletcher v. Gifford, 20 Idaho 18, 115 P. 824(1911); Hammond v. Clark, 136 Ga. 313, 71 SE 479 (1911); Crawford v. Gilchrist, 64 Fla. 41, 59 So.963 (1912); Cudihee v. Phelps, 76 Wash. 314, 136 P. 367 (1913); State v. Fairley, 76 Wash. 332, 136P. 374 (1913); Tabor v. City of Walla Walla, 77 Wash. 579, 137 P. 1040 (1914); State v. Alderson,49 Mont. 387, 142 P. 210 (1914); Ramsey v. Persinger, 43 Okl. 41, 141 P. 13 (1914); Cress v. Estes,43 Okl. 213 P. 411 (1914); Cooney v. Foote, 142 Ga. 647, 83 SE 537 (1914); Hildreth v. Taylor, 117Ark. 465, 175 SW 40 (1915); Jones v. McDade, 200 Ala. 230, 75 So. 988 (1917); State v. Wetz, 40N.D. 299, 168 NW 835 (1918); Ex Parte Ming, 42 Nev. 472, 181 P. 319 (1919); Lee v. Price, 54Utah, 474, 181 P. 948 (1919); Erwin v. Nolan, 280 Mo. 401, 217 SW 752 (1922); Boyd v. Olcott,102 Or. 327, 202 P. 431 (1921); Thompson v. Livingston, 116 S.C. 412, 107 SE 581 (1921);Thrailkill v. Smith, 106 Ohio St. 1, 138 NE 532 (1922); Brawner v. Curran, 141 Ind. 586, 119 A. 250(1922); Fahey v. Hackmann, 291 Mo. 351 SW 752 (1922); Goolsby v. Stephens, 155 Ga. 529, 117SE 439 (1923); Manos v. State, 98 Tax. Cr. 87, 263 SW 310 (1924); State v. Zimmermann, 187 Wis.180, 208 NW 803 (1925); Taylor v. King, 284 Pa. 285, 130 A. 407 (1925); Board of Liquidation ofState Debt of Louisiana v. Whitney-Central Trust and Savings Bank, 168 La. 560, 122 So. 850(1929); State v. Cline, 118 Neb. 150, 224 NW 6 (1929); California Teacher's Ass'n. v. Collins, 1 Cal.2d 202, 34 P. 2d 134 (1934); Collier v. Gray, 116 Fla. 845, 157 So. 40 (1934); State ex rel. v. StateBldg. Commission v. Smith, 335 Mo. 840, 74 SW 2d 27 (1934); Mayer v. Adams, 182 Ga. 524, 186SE 420 (1936); Doody v. State ex rel. Mobile County, 233 Ala. 287, 171 So. 504 (1937); Swanson v.State, 132 Neb. 82, 271 NW 264 (1937); Stonns v. Heck, 238 Ala. 196, 190 So. 78 (1939); Grahamv. Jones, 198 La. 507, 3 So. 2d 761 (1941); In re Initiative Petition No. 224, 197 Okl. 432, 172 P. 2d324 (1946); City of Jackson v. Nims, 316 Mich. 694, 26 NW 2d 569 (1947); Keenan v. Price, 68Idaho 423, 195 P. 2d 662 (1948).

51.Commonwealth Act No. 492 (1939).

52.Ibid, Section 3.

53.Commonwealth Act No. 517 (1940).

54.Article VI of the 1935 Constitution.


201 of 207 6/20/2012 8:16 AM

55.Article VII of the 1935 Constitution.

56.It is to be noted that under Commonwealth Act No. 607 (1940), subsequently amended byCommonwealth Act No. 657 (1940), there was a statutory creation of an independent Commissionon Elections.

57.Section 3, Commonwealth Act No. 517.

58.Republic Act No. 73 (1946).

59.Section 3 of Republic Act 73 reads as follows: "The provisions of Commonwealth Act Numbered ThreeHundred and fifty-seven, otherwise known as the Election Code, and Commonwealth ActNumbered Six Hundred and fifty-seven, entitled 'An Act to Reorganize the Commission onElections,' is so far as they are not inconsistent herewith, are hereby made applicable to the electionprovided for in this Act."

60.Republic Act 4913 (1967).

61.Section 3 of Republic Act 4913 reads thus: "The provisions of Republic Act Numbered One hundredeighty, as amended, insofar as they are not inconsistent herewith, are made applicable to the electionprovided for in this Act." It is to be remembered that in the plebiscite held, the two proposals last.Cf. on this point, Gonzales v. Commission on Elections, L-28196, Nov. 9, 1967, 21 SCRA 774.

62.The 1935 Constitution provides. "The Philippines is a republican state. Sovereignity resides in the peopleand all government authority emanates from them." Article II, Section 1.

63.Laski, Grammar of Politics, 4th ed., 34 (1937).

64.McIver, The Web of Government, 84 (1947).

65.Corwin. The Higher Law Background of American Constitutional Law, in 1 Selected Essays onConstitutional Law 3 (1938).

66.92 Ky. 589, 18 SW 522.

67.Ibid, 523.

68.101 Va. 829. 44 SE 754.

69.Ibid, 755. A similar approach may be noted in Arie v. State, 23 Okl. 166, 100 P. 23 (1909) and Hammondv. Clark, 136 Ga. 313, 71 SE 479 (1911).

70.Araneta v. Dinglasan, 84 Phil. 368 (1949).

71.Cardozo, The Nature of the Judicial Process, 141 (1921).

1.Section 1, which is the lone section of Art. XV; italics supplied.

2.Article XVII, section 16, proposed Constitution of Nov. 30, 1972; italics supplied.

3.All quotations from respondents' memo of arguments dated March 2, 1973, pp. 2-5; italics supplied.

4.Respondents' memo dated March 2, 1973, p. 8; italics supplied.


202 of 207 6/20/2012 8:16 AM

5.Gonzales vs. Comelec, 21 SCRA 774 (No. 9, 1967).

6.Tolentino vs. Comelec, 41 SCRA 702 (Oct. 16, 1971).

7.Resolution on motion for reconsideration in Tolentino vs. Comelec, L-34150; dated Nov. 4, 1971, at page3, per Barredo, J. with seven Justices concurring; italics supplied.

8.Idem, at page 4, italics supplied.

9.Joint opinion of JJ. Makalintal and Castro, p. 153.

10.Article X, sec. 1 of the Constitution entrusts "exclusive charge" of the conduct of elections to theComelec. See also the Election Code of 1971.

11.Araneta vs. Dinglasan (L-2044); Araneta vs. Angeles (L-2756); Rodriguez vs. Treasurer (L-3054);Guerrero vs. Commissioner of Customs; and Barredo vs. Comelec (L-3056), jointly decided andreported in 84 Phil. 368.

12.Idem, at pp. 384-385; italics supplied.

13.Idem, at p. 437.

14.Idem, at pp. 435-437.

15.Idem, at p. 383. Justice Tuason further duly noted that "These observations, though beyond the issue asformulated in this decision, may, we trust, also serve to answer the vehement plea that for the goodof the Nation, the President should retain his extraordinary powers as long as turmoil and other illsdirectly or indirectly traceable to the late war harass the Philippines."

16.Petitioner Monteclaro's notes of oral argument dated February 23, 1973, p. 2, and Annex A thereof.

17.State vs. Powell, 77 Miss. 543, 27 South 927.

18.Cooley's Constitutional Limitations, 8th Ed., Vol. I, p. 81.

19.Article XV, sec. 1, Constitution.

20.Article V, sec. 1, Constitution.

21.Article X, sec. 2, Constitution.

22.Respondents' memo dated March 2, 1973, p. 5.

23.Respondents' Comment dated Feb. 3, 1973, p. 67.

24.Idem, at p. 46; note in parentheses supplied.

25.1 Cranch 137 (1803).

26.63 Phil. 134 (1936).

27.4 Wheaton 316 (1819).

28.Dean Pollak's "The Constitution and the Supreme Court", Vol. I, p. 221.


203 of 207 6/20/2012 8:16 AM

29.Justice Felix Frankfurter, Of Law and Men (1956), p. 5.

30.Tolentino vs. Comelec, L-34150; decision of October 16, 1971, per Barredo, J. at p. 8.

31.a Con-Con Res. No. 1 proposing the urgent lowering of the voting age to enfranchise the 18-year oldsretained the "permissive" language of section 1, Art. V. Thus, the proposed amendment read:"Section 1. Suffrage may be exercised by (male) citizens of the Philippines not otherwisedisqualified by law, who are (twenty one) EIGHTEEN years of age or over and are able to read andwrite . . ."

31.Resolution of Nov. 4, 1971, per Barredo, J. at p. 15.

32.Decision of Oct. 16, 1971, at p. 21.

33.21 SCRA 774 (Nov. 9, 1967).

34.Decision of Oct. 16, 1971, at p. 24.

35.Reyes, J.B.L. (now retired), Zaldivar, Castro and Makasiar, JJ.

36.Idem at pp. 1-2.

37.Idem at p. 3.

38.Resolution of Nov. 4, 1971 in Tolentino, per Barredo, J., pp. 3-4.

39.Decision of Oct. 16, 1971 in Tolentino, per Barredo, J. at p. 19.

40.All quotations are from the Chief Justice's concurring opinion in Tolentino, pp. 4-7.

41.Separate op. of J. Teehankee concurring in Res. of No. 4, 1971 in Tolentino, pp. 8, 9, 10.

42.This Court thus declared in Tolentino the Con-Con voting age reduction resolution as null and void andprohibited its submittal at the 1971 elections for lack of proper submission since it did not "providethe voter . . . ample basis for an intelligent appraisal of the amendment." Dec. of October 16, 1971,per Barredo, J.

43.In re Opinion of Justices, 115 N.E. Rep. 922-923.

44.Duncan vs. McCall, 139 U.S. 449, 35 L. Ed. 219.

45."Barrios are units of municipalities or municipal districts in which they are situated . . ." Rep. Act 3590,sec. 2.

46.Rep. Act 3590, sec. 6, par. 1.

47.Idem, par. 2.

48.Idem, par. 3 and 4, italics supplied.

49.One barrio lieutenant and six barrio councilmen; "Voting shall be by secret ballot . . ." Idem, sec. 8.


204 of 207 6/20/2012 8:16 AM

50.Idem, sec. 10, italics supplied. The same section further disqualifies persons convicted by final judgmentto suffer one year or more of imprisonment "within two years after service" or who have violatedtheir allegiance to the Republic and insane or feeble-minded persons.

51.Supra p. 2.

52.Rizal, Cavite, Bataan, Camarines Sur and Negros Occidental, petitioners' manifestation and supplementalrejoinder dated March 21, 1973 in L-36165.

53.Respondents' rejoinder dated March 20, 1973 and sur-rejoinder dated March 29, 1973.

54.Under Proclamation No. 1103 dated Jan. 17, 1973, it is recited that "fourteen million nine hundredseventy six thousand five hundred sixty one (14,976,561) members of all the Barangays voted forthe adoption of the proposed Constitution, as against seven hundred forty- three thousand eighthundred sixty nine (743,869) who voted for its rejection; but a majority of those who approved thenew Constitution conditioned their votes on the demand that the interim National Assemblyprovided in its Transitory Provisions should not be convened."

55.Respondents' memo dated March 2, 1973, supra, p. 2.

56.As restated by Barredo, J. in his separate op. in the plebiscite cases, who, however, did not look on thesame with favor, since the "constitutional point (that the Comelec has exclusive charge of theconduct of elections and plebiscites) seems to have been overlooked in the Assemblies."

57.Convention Minutes of Nov. 22, 1972 submitted as Annex A of petitioner-delegate Sedfrey A. Ordoñezet al. in the plebiscite case L-35942, par. 12 of petition and admitted in par. 4 of answer of thereinrespondents dated Dec. 15, 1972.

*First decision promulgated by First Division of the Supreme Court.

1."When a house is completely demolished and another is erected on the same location, do you have achanged, repaired and altered house, or do you have a new house? Some of the material contained inthe old house may be used again, some of the rooms may be constructed the same, but this does notalter the fact that you have altogether another or a new house. We conclude that the instrument ascontained in Ga. L. 1945, pp. 8 to 89, inclusive, is not an amendment to the constitution of 1877; buton the contrary it is a completely revised or new constitution." (Wheeler v. Board of Trustees, 37S.E. 2d 322, 327).

"Every proposal which affects a change in a Constitution or adds or takes away from it is an "amendment",while a "revision" implies a re-examination and statement of the Constitution, or some part of it, in acorrected or improved form:" (Const. Secs. 196, 197, Staples v. Gilmer, 33 S.E. 2d 49, 53 183 Va.613).

"Amendment" and "revision" of constitution are separate procedures each having a substantial field ofapplication, not mere alternative procedures in the same field." (McFadden v. Jordan, 196 P. 2d 787,797 32 Cal. 2d 330).

2.Cf. Sections 1 and 2 of Article XIV, Constitution of Minnesota in Appendix.

3.Baker v. Carr, 369 U.S. 186; 7 L. ed. 663.

4.Cf. State Constitutions of Alaska, California, Delaware, Florida, Michigan, Minnesota, Nevada, NewHampshire, Oklahoma, Oregon, Utah and Wyoming in Appendix to this opinion.


205 of 207 6/20/2012 8:16 AM

*Leon O. Ty, Seven Months of Martial Law, Daily Express.

*Panorama, May 6, 1973.

5."A written constitution is susceptible of change in two ways: by revolution, which implies action notpursuant to any provision of the constitution itself; and by revision, which implies action pursuant tosome procedural provision in the constitution. This distinction is concerned with the quare and notwith the quantum of change. It may be significant, however, that the alleged alteration does or doesnot purport to affect the existence of the court itself. In the nature of things, a revolutionary chargedoes not admit of judicial power as such to determine the fact of its occurrence. If the revolutionaryconstitution sets up a court differently constituted from the pre-revolutionary court, neither tribunalis confronted with a substantial problem, for neither can deny the act by which it was createdwithout denying the fact of its creation. Thus the Supreme Court in Luther v. Borden (supra) useslanguage substantially parallel with what has been indicated above as the logical explanation of theDuke of York's case. For the court to give serious judicial consideration to such a question wouldpresent 'the singular spectacle of a court sitting a a court to declare that we are not a court.' (Brittlev. People, 2 Neb. 198, 214 [1873].) And even if the alleged new constitution purports to leave intactthe former court and to permit its work to go on without hiatus, the decision which the judges mustmake is still an individual choice to be made by them as a matter of practical politics. Twocommissions are being held out to them, and if they will act as a court they must assert under whichcommission they are acting. To put the matter in another way, it must be true that in the first caseabove — of two constitutions purporting to establish two different courts, — the men who werejudges under the old regime and the men who are called to be judges under the new have each todecide as individuals what they are to do; and it may be that they choose at grave peril with thefactional outcome still uncertain. And, although it is not equally obvious, the situation is logicallyidentical where the same men are nominated to constitute the court under both the old and the newconstitution, at a time when the alleged change is occurring — if it is — peaceably and against aplacid popular background. Men under such circumstances may write most praiseworthily uponprinciples of statesmanship, upon sovereignty and its nature and modes of action, and upon thebases of government, to justify their choice between the two commissions. They can assert theirchoice in the course of purported judicial action. But they cannot decide as a court, for the decision,once made, by a retroactive hypothesis excludes any assumption of controversiality in thepremises."

"Where the alleged change occurs not through revolutionary measures but through what has been calledrevision, these logical difficulties disappear in one aspect, but become far more embarrassing inanother. Where the alteration purports to be made along the lines of a procedural method laid downin the old constitution, there is a standard which the court can apply and, by so doing, it canperceive judicially whether or not the change has followed the prescribed lines. If it has, there is nodifficulty in pronouncing as a matter of law its accomplishment. Only one exception is possible,namely, the case where the alteration purports at once to abolish the court or to depose itspersonnel. Then, although there would be a question of law to be decided, it may be wondered whothere is to decide it. Suppose, however, the mode of change has failed in some way to conform to adirectory provision of the amending clause of the constitution; is the court to declare the attempt atalteration unsuccessful? It would seem as a matter of law that it must do so; and yet what is thesituation if the proponents of the change say, 'It is true that this measure failed under the amendingclause, but as a revolutionary measure it was a success and we insist upon its recognition.' Clearlythe members of the court are now more badly than ever entangled in the logical difficulties whichattend a purported judicial pronouncement upon the achievement or non-achievement ofrevolutionary change. For the temptation will be great to treat the matter as a legal question. Thetimes are peaceful. The changes probably do no affect the tenure of many offices of any branch of


206 of 207 6/20/2012 8:16 AM

the government. The popular inertia is likely to allow the court successfully to assume the questionto be one of law. The path of fallacy is not too strikingly fallacious to the uncritical observer. It maylead to just results. The judges' personal inclinations will be to show deference to the expression ofpopular sentiment which has been given. And yet, if they declare the change in force, they are trulymaking a personal declaration that they believe the change to be the directly expressed will of thesovereign, which will they assert to be law, but the fact of existence of which will — and this is thereal decision — is not ascertainable in the given case by any legal means. It is submitted that this istrue, and that the conclusions offered in the discussion of revolutionary change are true, also,whether the quantum of change involved be vast or almost negligible."

"The net result of the preceding discussion is this: that in almost the whole field of problems which the Dukeof York's case and the American constitutional amendment cases present, the court as a court isprecluded from passing upon the fact of change by a logical difficulty which is not to besurmounted. It follows that there is no room for considering whether the court ought graciously anddeferentially to look to the executive or legislative for a decision that a change has or has not takenplace. In such a context, such a 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 whichconstitution they will support and assert to represent, it may often be good judgment for them tofollow the lead of the men who as a practical matter are likely to be looked to by the people as morerepresentative of themselves and conversely are likely to be more directly in touch with popularsentiment. 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 hazards. No question of law is involved." (PoliticalQuestions, 38 Harvard Law Review [1924-25], pp. 305-309.)

6.Ibid. pp. 301, 305.

7.Ibid. pp. 301, 305.

@The inclusion in the Appendix of provisions for Amendment and Revision in State Constitutions, adoptedafter 1935, is only to stress the fact that the distinction between Amendment and Revision ofConstitution, which existed at the time of the adoption of the 1935 Constitution, has continued up tothe present.

© 2012 CD Technologies Asia, Inc. Click here for our Disclaimer and Copyright Notice


207 of 207 6/20/2012 8:16 AM