7/20/15 9:52 PM

.na

EN BANC
[G.R. No. L-36142. March 31, 1973.]
JOSUE JAVELLANA, petitioner, vs. THE EXECUTIVE
SECRETARY, THE SECRETARY OF NATIONAL DEFENSE,
THE SECRETARY OF JUSTICE and THE SECRETARY OF
FINANCE, respondents.
[G.R. No. L-36164. March 31, 1973.]
VIDAL TAN, J. ANTONIO ARANETA, ALEJANDRO ROCES,
MANUEL CRUDO, ANTONIO U. MIRANDA, EMILIO DE
PERALTA and LORENZO M. TAADA, petitioners, vs. THE
EXECUTIVE
SECRETARY,
THE
SECRETARY
OF
FINANCE,
THE SECRETARY OF JUSTICE,
THE
SECRETARY OF LAND REFORM, THE SECRETARY OF
NATIONAL DEFENSE, THE AUDITOR GENERAL, THE
BUDGET
COMMISSIONER,
THE
CHAIRMAN
OF
PRESIDENTIAL COMMISSION ON REORGANIZATION,
THE
TREASURER
OF
THE
PHILIPPINES,
THE
COMMISSION ON ELECTIONS and THE COMMISSIONER
OF CIVIL SERVICE, respondents.
[G.R. No. L-36165. March 31, 1973.]
GERARDO ROXAS, AMBROSIO PADILLA, JOVITO R.
SALONGA, SALVADOR H. LAUREL, RAMON V. MITRA,
JR. and EVA ESTRADA-KALAW, petitioners, vs.
ALEJANDRO MELCHOR, in his capacity as Executive
Secretary; JUAN PONCE ENRILE, in his capacity as
Secretary of National Defense; General ROMEO ESPINO,
in his capacity as Chief of Staff of the Armed Forces of
the philippines; CONSTANCIO E. CASTAEDA, in his
capacity as Secretary of General Services; Senator GIL J.
PUYAT, in his capacity as President of the Senate; and
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Senator JOSE ROY, in his capacity as President Pro

Tempore of the Senate, respondents.
[G.R. No. L-36236. March 31, 1973.]
EDDIE B. MONTECLARO, [personally and in his capacity
President of the National Press Club of the Philippines],
petitioner, vs, THE EXECUTIVE SECRETARY, THE
SECRETARY OF PUBLIC INFORMATION, THE AUDITOR
GENERAL, THE BUDGET COMMISSIONER & THE
NATIONAL TREASURER, respondent.
[G.R. No. L-36283. March 31, 1973.]
NAPOLEON V. DILAG, ALFREDO SALAPANTAN, JR.,
LEONARDO ASODISEN, JR., and RAUL M. GONZALEZ,
petitioners, vs. THE HONORABLE SECRETARY OF
NATIONAL DEFENSE, THE HONORABLE BUDGET
COMMISSIONER, THE HONORABLE AUDITOR GENERAL,
respondents.
Ramon A. Gonzales for petitioner Josue Javellana.
Lorenzo M. Taada & Associates for petitioners Vidal Tan, et al.
Taada, Salonga, Ordoez, Rodrigo, Sanidad Roxas Gonzales and Arroyo
for petitioners Gerardo Roxas, et al.
Joker P. Arroyo and Rogelio B. Padilla for petitioner Eddie Monteclaro.
Raul M. Gonzales & 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.

RESOLUTION

CONCEPCION, J :
p

The above entitled five (5) cases are a sequel of cases G.R. Nos.
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L-35925, L-35929, L-35940, L-35941, L-35942, L-35948, L-35953, L35961, L-35965 and L-35979, decided on January 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 was amended by Resolution No. 4 of said
body, adopted on June 17, 1969, calling a convention to propose
amendments to the Constitution of the Philippines. Said
Resolution No. 2, as amended, was implemented by Republic Act
No. 6132, approved on August 24, 1970, pursuant to the
provisions of which the election of delegates to said Convention
was held on November 10, 1970, and the, 1971 Constitutional
Convention began to perform its functions on June 1, 1971. While
the Convention was in session on September 21, 1972, the
President issued Proclamation No. 1081 placing the entire
Philippines under Martial Law. On November 29, 1972, the
Convention approved its Proposed Constitution of the Republic of
the Philippines. The next day, November 30, 1972, the President
of the Philippines issued Presidential Decree No. 73, 'submitting to
the Filipino people for ratification or rejection the Constitution of
the Republic of the Philippines proposed by the 1971
Constitutional Convention, and appropriating funds therefor,' as
well as setting the plebiscite for said ratification or rejection of the
Proposed Constitution on January 15, 1973.
"Soon after, or on December 7, 1972, Charito Planas filed, with
this Court, Case G.R. No. L-35925, against the Commission on
Elections, the Treasurer of the Philippines and the Auditor
General, to enjoin said 'respondents or their agents from
implementing Presidential Decree No. 73, in any manner, until
further orders of the Court,' upon the grounds, inter alia that said
Presidential Decree 'has no force and effect as law because the
calling . . . of such plebiscite, the setting of guidelines for the
conduct of the same, the prescription of the ballots to be used and
the question to be answered by the voters, and the appropriation
of public funds for the purpose, are, by the Constitution, lodged
exclusively in Congress . . .,' and 'there is no proper submission to
the people of said Proposed Constitution set for January 15, 1973,
there being no freedom of speech, press and assembly, and there
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being sufficient time to inform the people of the contents thereof.'

"Substantially identical actions were filed, on December 8, 1972,
by Pablo C. Sanidad against the Commission on Elections (Case
G.R. No. L-35929); on December 11, 1972, by Gerardo Roxas, et
al., against the Commission on Elections, Director of Printing, the
National Treasurer and the Auditor General (Case G.R. L-35940),
by Eddie B. Monteclaro against the Commission on Elections and
the Treasurer of the Philippines (Case G.R. No L-35941), and by
Sedfrey A. Ordoez, et al. against the National Treasurer and the
Commission on Elections (Case G.R. No. L-35942); on December
12, 1972, by Vidal Tan, et al., against the Commission on
Elections, the Treasurer of the Philippines, the Auditor General
and the Director of Printing (Case G.R. No. L-35948), and by Jose
W. Diokno and Benigno S. Aquino against the Commission on
Elections (Case G R No. L-35953); on December 14, 1972, by
Jacinto Jimenez against the Commission on Elections, the Auditor
General, the Treasurer of the Philippines and the Director of the
Bureau of Printing (Case G.R. No. L-35961), and by Raul M.
Gonzales against the Commission on Elections, the Budget
Commissioner, the National Treasurer and the Auditor General
(Case G.R. No. L-35965), and on December 16, 1972, by Ernesto
C. Hidalgo against the Commission on Elections, the Secretary of
Education, the National Treasurer and the Auditor General (Case
G.R. No. L-35979).
"In all these cases, except the last (G.R. No. L-35979), the
respondents were required to file their answers 'not later than
12:00 (o'clock) noon of Saturday, December 16, 1972.' Said cases
were, also, set for hearing and partly heard on Monday, December
18, 1972, at 9:30 a.m. The hearing was continued on December
19, 1972. By agreement of the parties, the aforementioned last
case G.R. No. L-35979 was, also, heard, jointly with the
others, on December 19, 1972. At the conclusion of the hearing,
on that date, the parties in all of the aforementioned cases were
given a short period of time within which 'to submit their notes on
the points they desire to stress.' Said notes were filed on different
dates, between December 21, 1972, and January 4, 1973.
"Meanwhile, or on December 17, 1972, the President had issued
an order temporarily suspending the effects of Proclamation No.
1081, for the purpose of free and open debate on the Proposed
Constitution. On December 23, the President announced the
postponement of the plebiscite for ratification or rejection of the
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Proposed Constitution. No formal action to this effect was taken

until January 7, 1973, when General Order No. 20 was issued,
directing 'that the plebiscite scheduled to be held on January 15,
1973 be postponed until further notice.' Said General Order No.
20, moreover, 'suspended in the meantime' the 'order of
December 17, 1972, temporarily suspending the effects of
Proclamation No. 1081 for purposes of free and open debate on
the proposed Constitution.'
"In view of these events relative to the postponement of the
aforementioned plebiscite, the Court deemed it fit to refrain, for the
time being, from deciding the aforementioned cases, for neither
the date nor the conditions under which said plebiscite would be
held were known or announced officially. Then, again, Congress
was, pursuant to the 1935 Constitution, scheduled to meet in
regular session on January 22, 1973, and since the main objection
to Presidential Decree No. 73 was that the President does not
have the legislative authority to call a plebiscite and appropriate
funds therefor, which Congress unquestionably could do,
particularly in view of the formal postponement of the plebiscite by
the President reportedly after consultation with, among others,
the leaders of Congress and the Commission on Elections the
Court deemed it more imperative to defer its final action on these
cases.
"In the afternoon of January 12, 1973, the petitioners in Case G.R.
No. L-35948 filed an 'urgent motion,' praying that said case be
decided 'as soon as possible, preferably not later than January 15,
1973.' It was alleged in said motion, inter alia.
'6.That the President subsequently announced the issuance of
Presidential Decree No. 86 organizing the so-called Citizens
Assemblies, to be consulted on certain public questions [Bulletin
Today, January 1, 1973];
'7.That thereafter it was later announced that "the Assemblies will
be asked if they favor or oppose
"[1]The New Society;
"[2]Reforms instituted under Martial Law;
"[3]The holding of a plebiscite on proposed new
Constitution and when (the tentative new dates given
following postponement of the plebiscite from the original
date of January 15 are February 19 and March 5);

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"[4]The opening of the regular session on January 22

in accordance with the existing Constitution despite Martial
Law." [Bulletin Today, January 3, 1973.]
'8.That it was later reported that the following are to be the forms
of the questions to be asked to the Citizens Assemblies:

"[1]Do you approve of the New Society?

"[2]Do you approve of the reform measures under
martial law?
"[3]Do you think that Congress should meet again in
regular session?
"[4]How soon would you like the plebiscite on the
new Constitution to be held?" [Bulletin Today, January 5,
1973].
'9.That the voting by the so-called Citizens Assemblies was
announced to take place during the period from January 10 to
January 15, 1973;
'10.That on January 10, 1973, it was reported that one more
question would be added to the four (4) questions previously
announced, and that the forms of the questions would be as
follows:
"[1]Do you like the New Society?
"[2]Do you like the reforms under martial law?
"[3]Do you like Congress again to hold sessions?
"[4]Do you like the plebiscite to be held later?
"[5]Do you like the way President Marcos is running
the affairs of the government?" [Bulletin Today, January 10,
1973; additional question italics.]
'11.That on January 11, 1973, it was reported that six (6) more
questions would be submitted to the so called Assemblies:
"[1]Do you approve of the citizens assemblies as the
base of popular government to decide issues of national
interests?
"[2]Do you approve of the New Constitution?
"[3]Do you want a plebiscite to be called to ratify the
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new Constitution?
"[4]Do you want the elections to be held in
November, 1973 in accordance with the provisions of the
1935 Constitution?
"[5]If the elections would not be held, when do you
want the next elections to be called?
"[6]Do you want martial law to continue?" [Bulletin
Today, January 11, 1973; italics supplied.]
'12.That according to reports, the returns with respect to the six (6)
additional questions quoted above will be on a form similar or
identical to Annex "A" hereof;
'13. That attached to page 1 of Annex "A" is another page which
we marked as Annex "A-1", and which reads:
"COMMENTS ON
QUESTION No. 1
In order to broaden the base of citizen participation in
government.
QUESTION No. 2
But we do not want the Ad Interim Assembly to be
convoked. Or if it is to be convened at all, it should not
be done so until after at least seven (7) years from the
approval of the New Constitution by the Citizens
Assemblies.
QUESTION No. 3
The vote of the Citizens Assemblies should already be
considered the plebiscite on the Constitution.
If the Citizens Assemblies approve of the Constitution,
then the new Constitution should be deemed ratified.
QUESTION No. 4
We are sick and tired of too frequent elections. We are
fed up with politics, of so many debates and so much
expenses.
QUESTION No. 5
Probably a period of at least seven (7) years
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moratorium on elections will be enough for stability to

be established in the country, for reforms to take root
and normalcy to return.
QUESTION No. 6
We want President Marcos to continue with Martial
Law. We want him to exercise his powers with more
authority. We want him to be strong and firm so that
he can accomplish all his reform programs and
establish normalcy in the country. If all other measures
fail, we want President
Marcos to declare a
revolutionary government along the lines of the new
Constitution without the ad interim Assembly."
'Attention is respectfully invited to the comments on "Question No.
3," which reads:
"QUESTION No. 3
The vote of the Citizens Assemblies should be
considered the plebiscite on the New Constitution.
If the Citizens Assemblies approve of the New
Constitution, then the new Constitution should be
deemed ratified."
This, we are afraid, and therefore allege, is pregnant with ominous
possibilities.
'14.That, in the meantime, speaking on television and over the
radio, on January 7, 1973, the President announced that the
limited freedom of debate on the proposed Constitution was being
withdrawn and that the proclamation of martial law and the orders
and decrees issued thereunder would thenceforth strictly be
enforced [Daily Express, January 8, 1973];
'15.That petitioners have reason to fear, and therefore state, that
the question added in the last list of questions to be asked to the
Citizens Assemblies, namely:
"Do you approve of the New Constitution?"
in relation to the question following it:
"Do you still want a plebiscite to becalled to ratify the
new Constitution?"
would be an attempt to by-pass and short-circuit this Honorable
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Court before which the question of the validity of the plebiscite on

the proposed Constitution is now pending;
'16.That petitioners have reason to fear, and therefore allege, that
if an affirmative answer to the two questions just referred to will be
reported then this Honorable Court and the entire nation will be
confronted with a fait accompli which has been attained in a highly
unconstitutional and undemocratic manner;
'17.That the fait accompli would consist in the supposed
expression of the people approving the proposed Constitution;
'18.That, if such event would happen, then the case before this
Honorable Court could, to all intents and purposes, become moot
because, petitioners fear, and they therefore allege, that on the
basis of such supposed expression of the will of the people
through the Citizens Assemblies, it would be announced that the
proposed Constitution, with all its defects, both congenital and
otherwise, has been ratified;
'19.That, in such a situation, the Philippines will be facing a real
crisis and there is likelihood of confusion if not chaos, because
then, the people and their officials will not know which Constitution
is in force.
'20.That the crisis mentioned above can only be avoided if this
Honorable Court will immediately decide and announce its
decision on the present petition;
'21.That with the withdrawal by the President of the limited
freedom of discussion on the proposed Constitution which was
given to the people pursuant to See. 3 of Presidential Decree No.
73, the opposition of respondents to petitioners' prayer that the
proposed plebiscite be prohibited has now collapsed and that a
free plebiscite can no longer be held.'
"At about the same time, a similar prayer was made in a
'manifestation' filed by the petitioners in L-35949, 'Gerardo Roxas,
et al, v. Commission on Elections, et al.,' and L-35942, 'Sedfrey
Ordoez, et al. v. The National Treasurer, et al.'
"The next day, January 13, 1973, which was a Saturday, the Court
issued a resolution requiring the respondents in said three (3)
cases to comment on said 'urgent motion' and 'manifestation,' 'not
later that Tuesday noon, January 16, 1973.' Prior thereto, or on
January 15, 1973, shortly before noon, the petitioners in said Case
G.R. No. L-35948 filed a 'supplemental motion for issuance of
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restraining order and inclusion of additional respondents,' praying

'. . . that a restraining order be issued enjoining and

restraining respondent Commission on Elections, as well as
the Department of Local Governments and its head,
Secretary Jose Roo; the Department of Agrarian Reforms
and its head, Secretary Conrado Estrella; the National
Ratification Coordinating Committee and its Chairman,
Guillermo de Vega; their deputies, subordinates and
substitutes, and all other officials and persons who may be
assigned such task, from collecting, certifying, and
announcing and reporting to the President or other officials
concerned, the so-called Citizens' Assemblies referendum
results allegedly obtained when they were supposed to
have met during the period comprised between January 10
and January 15, 1973, on the two questions quoted in
paragraph 1 of this Supplemental Urgent Motion.'
"In support of this prayer, it was alleged
'3.That petitioners are now before this Honorable
Court in order to ask further that this Honorable Court issue
a restraining order enjoining herein respondents,
particularly respondent Commission on Elections as well as
the Department of Local Governments and its head,
Secretary Jose Roo; the Department of Agrarian Reforms
and its head, Secretary Conrado Estrella; the National
Ratification Coordinating Committee and its Chairman,
Guillermo de Vega; and their deputies, subordinates and/or
substitutes, from collecting certifying, announcing and
reporting to the President the supposed Citizens'
Assemblies referendum results allegedly obtained when
they were supposed to have met during the period between
January 10 and January 15, 1973, particularly on the two
questions quoted in paragraph 1 of this Supplemental
Urgent Motion;
'4.That the proceedings of the so-called Citizens'
Assemblies are illegal, null and void particularly insofar as
such proceedings are being made the basis of a supposed
consensus for the ratification of the proposed Constitution
because:
[a]The elections contemplated in the
Constitution, Article XV, at which the proposed
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constitutional amendments are to be submitted

for ratification, are elections at which only
qualified and duly registered voters are
permitted to vote, whereas, the so called
Citizens' Assemblies were participated in by
persons 15 years of age and older, regardless
of qualifications or lack thereof, as prescribed in
the Election Code;
[b]Elections or plebiscites for the
ratification
of
constitutional
amendments
contemplated in Article XV of the Constitution
have provisions for the secrecy of choice and of
vote, which is one of the safeguards of freedom
of action, but votes in the Citizens' Assemblies
were open and were cast by raising hands;
[c]The Election Code makes ample
provisions for free, orderly and honest
elections, and such provisions are a minimum
requirement for elections or plebiscites for the
ratification of constitutional amendments, but
there were no similar provisions to guide and
regulate proceedings of the so called Citizens'
Assemblies;
[d]It is seriously to be doubted that, for
lack of material time, more than a handful of the
so called Citizens' Assemblies have been
actually formed, because the mechanics of their
organization were still being discussed a day or
so before the day they were supposed to begin
functioning
'Provincial governors and city and
municipal mayors had been meeting with
barrio captains and community leaders
since last Monday [January 8, 1973] to
thresh out the mechanics in the
formation of the Citizens' Assemblies
and the topics for discussion.' [Bulletin
Today, January 10, 1973].
'It should be recalled that the Citizens' Assemblies
were ordered formed only at the beginning of the year
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[Daily Express, January 1, 1973], and considering the lack

of experience of the local organizers of said assemblies, as
well as the absence of sufficient guidelines for organization,
it is too much to believe that such assemblies could be
organized at such a short notice.
'5.That for lack of material time, the appropriate
amended petition to include the additional officials and
government agencies mentioned in paragraph 3 of this
Supplemental Urgent Motion could not be completed
because, as noted in the Urgent Motion of January 12,
1973, the submission of the proposed Constitution to the
Citizens' Assemblies was not made known to the public
until January 11, 1973. But be that as it may, the said
additional officials and agencies may be properly included
in the petition at bar because:
[a]The herein petitioners have prayed in
their petition for the annulment not only of
Presidential Decree No. 73, but also of "any
similar
decree,
proclamation,
order
or
instruction."
so that Presidential Decree No. 86, insofar at least as it
attempts to submit the proposed Constitution to a plebiscite
by the so-called Citizens' Assemblies, is properly in issue in
this case, and those who enforce, implement, or carry out
the said Presidential Decree No. 86, and the instructions
incidental thereto clearly fall within the scope of this
petition;
[b]In their petition, petitioners sought the
issuance of a writ of preliminary injunction
restraining not only the respondents named in
the petition but also their "agents" from
implementing not only Presidential Decree No.
73, but also "any other similar decree, order,
instruction, or proclamation in relation to the
holding of a plebiscite on January 15, 1973 for
the purpose of submitting to the Filipino people
for their ratification or rejection the 1972 Draft
or proposed Constitution approved by the
Constitutional Convention on November 30,
1972"; and finally,
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[c]Petitioners prayed for such other relief

which may be just and equitable. [p. 39,
Petition].
'Therefore, viewing the case from all angles, the
officials and government agencies mentioned in paragraph
3 of this Supplemental Urgent Motion, can lawfully he
reached by the processes of this Honorable Court by
reason of this petition, considering, furthermore, that the
Commission on Elections has under our laws the power,
among others, of:
"(a)Direct and immediate supervision
and control over national, provincial, city,
municipal and municipal district officials
required by law to perform duties relative to the
conduct of elections on matters pertaining to
the enforcement of the provisions of this Code .
. ." [Election Code of 1971, Sec. 3].
'6.That unless the petition at bar is decided
immediately and the Commission on Elections, together
with the officials and government agencies mentioned in
paragraph 3 of this Supplemental Urgent Motion are
restrained or enjoined from collecting, certifying, reporting
or announcing to the President the results of the alleged
voting of the so-called Citizens' Assemblies, irreparable
damage will be caused to the Republic of the Philippines,
the Filipino people, the cause of freedom and democracy,
and the petitioners herein because:
[a]After the result of the supposed voting
on the questions mentioned in paragraph 1
hereof shall have been announced, a conflict
will arise between those who maintain that the
1935 Constitution is still in force, on the one
hand, and those who will maintain that it has
been superseded by the proposed Constitution,
on the other, thereby creating confusion, if not
chaos;
[b]Even the jurisdiction of this Court will
be subject to serious attack because the
advocates of the theory that the proposed
Constitution has been ratified by reason of the
announcement of the results of the proceedings
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of the so-called Citizens' Assemblies will argue

that, General Order No. 3, which shall also be
deemed ratified pursuant to the Transitory
Provisions of the proposed Constitution, has
placed Presidential Decree Nos. 73 and 86
beyond the reach and jurisdiction of this
Honorable Court.'
"On the same date January 15, 1973 the Court passed a
resolution requiring the respondents in said case G.R. No. L35948 to file 'file an answer to the said motion not later than 4
P.M., Tuesday, January 16, 1973,' and setting the motion for
hearing 'on January 17, 1973, at 9:30 a.m.' While the case was
being heard, on the date last mentioned, at noontime, the
Secretary of Justice called on the writer of this opinion and said
that, upon instructions of the President, he (the Secretary of
Justice) was delivering to him (the writer) a copy of Proclamation
No. 1102, which had just been signed by the President.
Thereupon, the writer returned to the Session Hall and announced
to the Court, the parties in G.R. No. L-35948 inasmuch as the
hearing in connection therewith was still going on and the
public there present that the President had, according to
information conveyed by the Secretary of Justice, signed said
Proclamation No. 1102, earlier that morning. Thereupon, the writer
read Proclamation No. 1102 which is of the following tenor:
'BY THE PRESIDENT OF THE PHILIPPINES
'PROCLAMATION NO. 1102
'ANNOUNCING THE RATIFICATION BY THE FILIPINO
PEOPLE OF THE CONSTITUTION PROPOSED BY THE
1971 CONSTITUTIONAL CONVENTION.
'WHEREAS, the Constitution proposed by the
nineteen hundred seventy-one Constitutional Convention is
subject to ratification by the Filipino people;
'WHEREAS, Citizens Assemblies were created in
barrios, in municipalities and in districts/wards in chartered
cities pursuant to Presidential Decree No. 86, dated
December 31, 1972, composed of all persons who are
residents of the barrio, district or ward for at least six
months, fifteen years of age or over, citizens of the
Philippines and who are registered in the list of Citizen
Assembly members kept by the barrio, district or ward
secretary;
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'WHEREAS, the said Citizens Assemblies were

established precisely to broaden the base of citizen
participation in the democratic process and to afford ample
opportunity for the citizenry to express their views on
important national issues;
'WHEREAS, responding to the clamor of the people
and pursuant to Presidential Decree No. 86-A, dated
January 5, 1973, the following questions were posed before
the Citizens Assemblies or Barangays: Do you approve of
the New Constitution? Do you still want a plebiscite to be
called to ratify the new Constitution?
'WHEREAS, fourteen million nine hundred seventysix thousand five hundred sixty-one (14,976,561) members
of all the Barangays (Citizens Assemblies) voted for the
adoption of the proposed Constitution, as against seven
hundred forty-three thousand eight hundred sixty-nine
(743,869) who voted for its rejection; while on the question
as to whether or not the people would still like a plebiscite
to be called to ratify the new Constitution, fourteen million
two hundred ninety-eight thousand eight hundred fourteen
(14,298,814) answered that there was no need for a
plebiscite and that the vote of the Barangays (Citizens
Assemblies) should be considered as a vote in a plebiscite;
'WHEREAS, since the referendum results show that
more than ninety-five (95) per cent of the members of the
Barangays (Citizens Assemblies) are in favor of the new
Constitution, the Katipunan ng Mga Barangay has strongly
recommended that the new Constitution should already be
deemed ratified by the Filipino people;
'NOW, THEREFORE, I, FERDINAND E. MARCOS,
President of the Philippines, by virtue of the powers in me
vested by the Constitution, do hereby certify and proclaim
that the Constitution proposed by the nineteen hundred and
seventy-one (1971) Constitutional Convention has been
ratified by an overwhelming majority of all of the votes cast
by the members of all the Barangays (Citizens Assemblies)
throughout the Philippines, and has thereby come into
effect.
'IN WITNESS WHEREOF, I have hereunto set my
hand and caused the seal of the Republic of the Philippines
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to be affixed.
'Done in the City of Manila, this 17 th day of January,
in the year of Our Lord, nineteen hundred and seventythree.
(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 some of the allegations made in the
petition in L-35948 and denying the other allegations thereof,
respondents therein alleged in their answer thereto, by way of
affirmative defenses: 1) that the 'questions raised' in said petition
'are political in character'; 2) that 'the Constitutional Convention
acted freely and had plenary authority to propose not only
amendments but a Constitution which would supersede the
present Constitution' as that 'the President's call for a plebiscite
and the appropriation of funds for this purpose are valid'; 4) that
'there is not an improper submission' and there can be a plebiscite
under Martial Law'; and 5) that the 'argument that the Proposed
Constitution is vague and incomplete, makes an unconstitutional
delegation of power, includes a referendum on the proclamation of
Martial Law and purports to exercise judicial power' is 'not relevant
and . . . without merit.' Identical defenses were set up in the other
cases under consideration.
"Immediately after the hearing held on January 17, 1973, or since
the afternoon of that date, the Members of the Court have been
deliberating on the aforementioned cases and, after extensive
discussions on the merits thereof, have deemed it best that each
Member write his own views thereon and that thereafter the Chief
Justice should state the result or the votes thus cast on the points
in issue. Hence, the individual views of my brethren in the Court
are set forth in the opinions attached hereto, except that, instead
of writing their separate opinions, some Members have preferred
to merely concur in the opinion of one of our colleagues."

Then the writer of said decision expressed his own opinion on the issues
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involved therein, after which he recapitulated the views of the Members of

the Court, as follows:
"1.There is unanimity on the justiciable nature of the issue on the
legality of Presidential Decree No. 73.
"2.On the validity of the decree itself, Justices Makalintal, Castro,
Fernando, Teehankee, Esguerra and myself, or six (6) Members
of the Court, are of the opinion that the issue has become moot
and academic, whereas Justices Barredo, Makasiar and Antonio
voted to uphold the validity of said Decree.
"3.On the authority of the 1971 Constitutional Convention to pass
the proposed Constitution or to incorporate therein the provisions
contested by the petitioners in L-35948, Justices Makalintal,
Castro, Teehankee and Esguerra opine that the issue has become
moot and academic. Justices Fernando, Barredo, Makasiar,
Antonio and myself have voted to uphold the authority of the
Convention.
"4.Justice Fernando, likewise, expressed the view that the 1971
Constitutional Convention had authority to continue in the
performance of its functions despite the proclamation of Martial
Law. In effect, Justices Barredo, Makasiar and Antonio hold the
same view.
"5.On the question whether the proclamation of Martial Law
affected the proper submission of the proposed Constitution to a
plebiscite, insofar as the freedom essential therefor is concerned
Justice Fernando is of the opinion that there is a repugnance
between the election contemplated under Art. XV of the 1935
Constitution and the existence of Martial Law, and would,
therefore, grant the petitions were they not moot and academic.
Justices Barredo, Antonio and Esguerra are of the opinion that
issue involves questions of fact which cannot be predetermined,
and that Martial Law per se does not necessarily preclude the
factual possibility of adequate freedom for the purposes
contemplated.
"6.On Presidential Proclamation No. 1102, the following views
were expressed:
"a.Justices
Makalintal,
Castro,
Fernando,
Teehankee, Makasiar, Esguerra and myself are of the
opinion that the question of validity of said Proclamation
has not been properly raised before the Court, which,
accordingly, should not pass upon such question.
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"b.Justice Barredo holds that the issue on the

constitutionality of Proclamation No. 1102 has been
submitted to and should be determined by the Court, and
that the purported ratification of the Proposed Constitution .
. . based on the referendum among Citizens' Assemblies
falls short of being in strict conformity with the requirements
of Article XV of the 1935 Constitution,' but that such
unfortunate drawback notwithstanding, 'considering all
other related relevant circumstances, . . . the new
Constitution is legally recognizable and should be
recognized as legitimately in force.'
"c.Justice Zaldivar maintains unqualifiedly that the
Proposed Constitution has not been ratified in accordance
with Article XV of the 1935 Constitution, and that,
accordingly, it has no force and effect whatsoever.
"d.Justice Antonio feels 'that the Court is not
competent to act' on the issue whether the Proposed
Constitution has been ratified by the people or not, 'in the
absence of any judicially discoverable and manageable
standards,' since the issue 'poses a question of fact.'
"7.On the question whether or not these cases should be
dismissed, Justices Makalintal, Castro, Barredo, Makasiar,
Antonio and Esguerra voted in the affirmative, for the reasons set
forth in their respective opinions. Justices Fernando, Teehankee,
and the writer similarly voted, except as regards Case No. L35948 as to which they voted to grant to the petitioners therein a
reasonable period of time within which to file appropriate
pleadings should they wish to contest the legality of Presidential
Proclamation No. 1102. Justice Zaldivar favors the granting of said
period to the petitioners in said Case No. L-35948 for the
aforementioned purpose, but he believes, in effect, that the Court
should go farther and decide on the merits everyone of the cases
under consideration."

Accordingly, the Court acting in conformity with the position taken by six
(6) of its members, 1 with three (3) members dissenting, 2 with respect to
G.R. No. L-35948, only, and another member 3 dissenting, as regards all of
the cases dismissed the same, without special pronouncement as to
costs.
The Present Cases
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Prior thereto, or on January 20, 1973, Josue Javellana filed Case G.R. No.
L-36142 against the Executive Secretary and the Secretaries of National
Defense, Justice and Finance, to restrain said respondents "and their
subordinates or agents, from implementing any of the provisions of the
proposed Constitution not found in the present Constitution' referring to
that of 1935. The petition therein, filed by Josue Javellana, as a "Filipino
citizen, and a qualified and registered voter" and as "a class suit, for himself,
and in behalf of all citizens and voters similarly situated," was amended on or
about January 24, 1973. After reciting in substance the facts set forth in the
decision in the plebiscite cases, Javellana alleged that the President had
announced "the immediate implementation of the New Constitution, thru his
Cabinet, respondents including," and that the latter "are acting without, or in
excess of jurisdiction in implementing the said proposed Constitution" upon
the ground: "that the President, as Commander-in-Chief of the Armed Forces
of the Philippines, is without authority to create the Citizens Assemblies"; that
the same "are without power to approve the proposed Constitution . . ."; "that
the President is without power to proclaim the ratification by the Filipino
people of the proposed Constitution"; and "that the election held to ratify the
proposed Constitution was not a free election, hence null and void."
Similar actions were filed, on January 23, 1973, by Vidal Tan, J. Antonio
Araneta, Alejandro Roces, Manuel Crudo, Antonio U. Miranda, Emilio de
Peralta and Lorenzo M. Taada against the Executive Secretary, the
Secretaries of Finance Justice, Land Reform, and National Defense, the
Auditor General, Budget Commissioner, the Chairman of the Presidential
Commission on Reorganization, the Treasurer of the Philippines, the
Commission on Elections and the Commissioner of Civil Service 4 ; on
February 3, 1973, by Eddie Monteclaro, personally and as President of the
National Press Club of the Philippines, against the Executive Secretary, the
Secretary of Public Information, the Auditor General, Budget Commissioner
and the National Treasurer 5 ; and on February 12, 1973, by Napoleon V.
Dilag, Alfredo Salapantan, Jr., Leonardo Asodisen, Jr. and Raul M.
Gonzales, 6 against the Executive Secretary, the Secretary of National
Defense, the Budget Commissioner and the Auditor General.
Likewise, on January 23, 1973, Gerardo Roxas, Ambrosio Padilla, Jovito R.
Salonga, Salvador H. Laurel, 7 Ramon V. Mitra, Jr. and Eva Estrada-Kalaw,
the first as "duly elected Senator and Minority Floor Leader of the Senate,"
and the others as "duly elected members" thereof, filed Case G.R. No. L36165, against the Executive Secretary, the Secretary of National Defense,
the Chief of Staff of the Armed Forces of the Philippines, the Secretary of
General Services, the President and the President Pro Tempore of the
Senate. In their petition as amended on January 26, 1973 petitioners
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Gerardo Roxas, et al. allege, inter alia, that the term of office of three (3) of
the aforementioned petitioners 8 would expire en December 31, 1975, and
that of the others 9 on December 31, 1977; that pursuant to our 1935
Constitution, "which is still in force," Congress of the Philippines "must
convene for its 8th Session on Monday, January 22, 1973, at 10:00 A.M.,
which is the regular customary hour of its opening session"; that "on said
day, from 10:00 A.M. up to the afternoon," said petitioner "along with their
other colleagues, were unlawfully prevent from using the Senate Session
Hall, the same having be closed by the authorities in physical possession
and control of the Legislative Building'; that "(a)t about 5:00 to 6:00 P.M. of
the said day, the premises of the entire Legislative Building were ordered
cleared by the same authorities, and no one was allowed to enter and have
access to said premises"; that "(r)espondent Senate President Gil J. Puyat
and, in his absence, respondent President Pro Tempore Jose Roy were
asked by petitioning Senators to perform their duties under the law and the
Rules of the Senate, but unlawfully refrained and continue to refrain from
doing so"; that the petitioners "are ready and willing to perform their duties as
duly elected 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 preventing petitioners from
performing their duties as duly elected Senators of the Philippines"; that "the
Senate premises in the Congress of the Philippines Building . . . are
occupied by and are under the physical control 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 the premises of the Legislative Building"; that respondents "have
unlawfully excluded and prevented, and continue to so exclude and prevent"
the petitioners from the performance of their sworn duties, invoking the
alleged approval of the 1972 (1973) Constitution of the Philippines by action
of the so-called Citizens' Assemblies on January 10, 1973 to January 15,
197 ', as stated in and by virtue of Proclamation No. 1102 signed and issued
by the President of the Philippines"; that "the alleged creation of the Citizens'
Assemblies as instrumentalities for the ratification of the Constitution of the
Republic of the Philippines" is inherently illegal and palpably unconstitutional;
that respondents Senate President and Senate President Pro Tempore
"have unlawfully refrained and continue to refrain from and/or unlawfully
neglected and continue to neglect the performance of their duties and
functions as such officers under the law and the Rules of the Senate" quoted
in the petition; that because of events supervening the institution of the
plebiscite cases, to which reference has been made in the preceding pages"
the Supreme Court dismissed said cases on January 22, 1973, by a majority
vote, upon the ground that the petitions therein had become moot and
academic; that the alleged ratification of the 1972 (1973) Constitution "is
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illegal, unconstitutional and void and . . . can not have superseded and
revoked the 1935 Constitution," for the reasons specified in the petition as
amended; that, by acting as they did, the respondents and their "agents,
representatives and subordinates . . . have excluded the petitioners from an
office to which" they "are lawfully entitled"; that "respondents Gil J. Puyat and
Jose Roy have unlawfully refrained from convening the Senate for its 8th
session, assuming general jurisdiction over the Session Hall and the
premises of the Senate and . . . continue such inaction up to this time and . .
. a writ of mandamus is warranted in order to compel them to comply with the
duties and functions specifically enjoined by law"; and that "against the
above mentioned unlawful acts of the respondents, the petitioners have no
appeal nor other speedy and adequate remedy in the ordinary course of law
except by invoking the equitable remedies of mandamus and prohibition with
the provisional remedy of preliminary mandatory injunction."
Premised upon the foregoing allegations, said petitioners prayed that,
"pending hearing on the merits, a writ of preliminary mandatory injunction be
issued ordering 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 to vacate the premises of the Senate of
the Philippines and to deliver physical possession of the same to the
President of the Senate or his authorized representative"; and that "after
hearing, judgment be rendered declaring null and void Proclamation No.
1102 . . . and any order, decree, or proclamation having the same import and
objective, issuing the writs of prohibition and mandamus, as prayed for
against the above-mentioned respondents, and making the writ of injunction
permanent; and that a writ of mandamus be issued against the respondents
Gil J. Puyat and Jose Roy directing them to comply with their duties and
functions as President and President Pro Tempore, respectively, of the
Senate of 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/or amended petitions, a
consolidated comment on said petitions and/or amended petitions, alleging
that the same ought to have been dismissed outright; controverting
petitioners' allegations concerning the alleged lack or impairment of the
freedom of the 1971 Constitutional Convention to approve the proposed
Constitution, its alleged lack of authority to incorporate certain contested
provisions thereof, the alleged lack of authority of the President to create and
establish Citizens' Assemblies "for the purpose of submitting to them the
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matter of ratification of the new Constitution," the alleged "improper or

inadequate submission of the proposed constitution," the "procedure for
ratification adopted . . . through the Citizens Assemblies"; and maintaining
that: 1) "(t)he Court is without jurisdiction to act on these petitions"; 2) the
questions raised therein are "political in character and therefore nonjusticiable"; 3) "there was substantial compliance with Article XV of the 1935
Constitution"; 4) "(t)he Constitution was properly submitted to the people in a
free, orderly and honest election"; 5) "Proclamation No. 1102, certifying the
results of the election, is conclusive upon the courts"; and 6) "(t)he amending
process outlined in Article XV of the 1935 Constitution is not exclusive of
other modes of amendment."
Respondents Puyat and Roy, in said Case G.R. No. L-36165, filed their
separate comment therein, alleging that "(t)he subject matter" of said case
"is a highly political question which, under the circumstances, this . . . Court
would not be in a position to act upon judicially," and that, in view of the
opinions expressed by three members of this Court in its decision in the
plebiscite cases, in effect upholding the validity of Proclamation No. 1102,
"further proceedings in this case may only be an academic exercise in
futility."
On February 5, 1973, the Court issued a resolution requiring respondents in
L 36236 to comment on the petition therein not later than Saturday, February
10, 1973, and setting the case for hearing on February 12, 1973, at 9:30
a.m. By resolution dated February 7, 1973, this Court resolved to consider
the comments of the respondents in cases G.R. Nos. L-36142, L-36161, L36165, as motions to dismiss the petitions therein, and to set said cases for
hearing on the same date and time as L-36236. On that date, the parties in
G.R. No. L-36283 10 agreed that the same be, likewise, heard, as it was, in
fact, heard jointly with the aforementioned cases G.R. Nos. L-36142, L36164, L-36165 and L 36236. The hearing, which began on February 12,
shortly after 9:30 a.m., was continued not only that after but, also, on
February 13, 14, 15 and 16, morning and afternoon, after which the parties
were granted up to February 24, 1973, noon, within which to submit their
notes arguments and additional arguments, as well as the documents
required of them or whose presentation was reserved by them. The same
resolution granted the parties until March 1, 1973, to reply to the notes filed
by their respective opponents. Counsel for the petitioners in G.R. Nos. L36164 and L-36165 filed their aforementioned notes on February 24, 1973,
on which date the Solicitor General sought an extension of time up to March
3, 1973, within which to file his notes, which was granted, with the
understanding that said notes shall include his reply to the notes already filed
by the petitioners in G.R. Nos. L-36164 and L-36165. Counsel for the
petitioners, likewise, moved and were granted an extension of time, to expire
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on March 10, 1973, within which to file, as they did, their notes in reply to
those submitted by the Solicitor General on March 3, 1973. On March 21,
1973, petitioners in l-36165 filed a "Manifestation and Supplemental
Rejoinder," whereas the 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 own opinion and serve a copy thereof on his
colleagues, and this they did. Subsequently, the Court discussed said
opinions and votes were cast thereon. Such individual opinions are
appended hereto.
Accordingly, the writer will first express his personal opinion on the issues
before the Court. After the exposition of his aforesaid opinion, the writer will
make, concurrently with his colleagues in the Court, a resume of summary of
the votes cast by them in these cases.
Writer's Personal Opinion
I
Alleged academic futility of further proceedings in G.R. 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 the plebiscite cases, Mr.
Justice Barredo expressed the view that the 1935 Constitution had "pro tanto
passed into history" and "been legitimately supplanted by the Constitution
now in force by virtue of Proclamation No. 1102 . . . "; that Mr. Justice
Antonio did not feel "that this Court is competent to act" in said cases "in the
absence of any judicially discoverable and manageable standards" and
because "the access to relevant information is insufficient to assure the
correct determination of the issue," apart from the circumstance that "the
new constitution has been promulgate and great interests have already
arisen under it" and that the political organ of the Government has
recognized its provisions; whereas, Mr. Justice Esguerra had postulated that
"(w)ithout any competent evidence . . . about the circumstances attending
the holding" of the referendum or plebiscite" thru the Citizens' Assemblies,
he "cannot say that it was not lawfully held" and that, accordingly, he
assumed "that what the proclamation (No. 1102) says on its face is true and
until overcome by satisfactory evidence" he could not "subscribe to the claim
that such plebiscite was not held accordingly"; and that he accepted "as a
fait accompli that the Constitution adopted (by the 1971 Constitutional
Convention) on November 30, 1972, has been duly ratified."
Counsel for respondents Gil J. Puyat and Jose Roy goes on to say that,
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under these circumstances, "it seems remote or improbable that the

necessary eight (8) votes under the 1935 Constitution, and much less the ten
(10) votes required by the 1972 (1973) Constitution, can be obtained for the
relief sought in the Amended Petition" in G.R. No. L-36165.
I am unable to share this view. To begin with, Mr. Justice Barredo
announced publicly, in open court, during the hearing of these cases, that he
was and is willing to be convinced that his aforementioned opinion in the
plebiscite cases should be reconsidered and changed. In effect, he thus
declared that he had an open mind in connection with the cases at bar, and
that in deciding the same he would not necessarily adhere to said opinion if
the petitioners herein succeeded in convincing him that their view should be
sustained.
Secondly, counsel for the aforesaid respondents had apparently assumed
that, under the 1935 Constitution, eigth (8) votes are necessary to declare
invalid the contested Proclamation No. 1102. I do not believe that this
assumption is borne out by any provision of said Constitution. Section 10 of
Article VIII thereof reads:
"All cases involving the constitutionality of a treaty or law shall be
heard and decided by the Supreme Court in banc, and no treaty or
law may be declared unconstitutional without the concurrence of
two thirds of all the members of the Court."

Pursuant to this section, the concurrence of two thirds of all the Members of
the Supreme Court is required only to declare a "treaty or law"
unconstitutional. Construing said provision, in a resolution dated September
16, 1949, then Chief Justice Moran, voicing the unanimous view of the
Members of this Court, postulated:
". . . There is nothing either in the Constitution or in the Judiciary
Act requiring the vote of eight Justices to nullify a rule or regulation
or an executive order issued by the President. It is very significant
that in the previous drafts of section 10, Article VIII of the
Constitution, 'execution order' and 'regulation' were included
among those that required for their nullification the vote of twothirds of all the members of the Court. But 'executive order' and
'regulation' were later deleted from the final draft (Aruego, The
Framing of the Philippine Constitution, Vol. I, pp. 495, 496), and
thus a mere majority of six members of this Court is enough to
nullify them." 11

The distinction is not without reasonable foundation. The two thirds vote
(eight [8] votes) requirement, indeed, was made to apply only to treaty and
law, because, in these cases, the participation of the two other departments
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of the government the Executive and the Legislative is present, which

circumstance is absent in the case of rules, regulations and executive
orders. Indeed, a law(statute) passed by Congress is subject to the approval
or veto of the President, whose disapproval cannot be overridden except by
the vote of two-thirds (2/3) of all members of each House of Congress. 12 A
treaty is entered into by the President with the concurrence of the Senate, 13
which is not required in the case of rules, regulations or executive orders
which are exclusive acts of the President. Hence, to nullify the same, a
lesser number of votes is necessary in the Supreme Court than that required
to invalidate a law or treaty.
Although the foregoing refers to rules, regulations and executive orders
issued by the President, the dictum applies with equal force to executive
proclamations, like said Proclamation No. 1102, inasmuch as the authority to
issue the same is governed by section 63 of the Revised Administrative
Code, which provides:
"Administrative acts and commands of the (Governor-General)
President of the Philippines touching the organization or mode of
operation of the Government or rearranging or readjusting any of
the districts, divisions, parts, or ports of the (Philippine Islands)
Philippines and all acts and commands governing the general
performance of duties by public employees or disposing of issues
of general concern shall be made effective in executive orders.
"Executive orders fixing the dates when specific laws, resolutions,
or orders are to have or cease to (have) effect and any information
concerning matters of public moment determined by law,
resolution, or executive orders, may be promulgated in an
executive proclamation, with all the force of an executive order." 14

In fact, while executive orders embody administrative acts or commands of

the President, executive proclamations are mainly informative and
declaratory in character, and so does counsel for respondents Gil J. Puyat
and Jose Roy maintain in G.R. No. L-36165. 15 As consequence, an
executive proclamation has no more than "the force of an executive order,"
so that, for the Supreme Court to declare such proclamation unconstitutional,
under the 1935 Constitution, the same number of votes needed to invalidate
an executive order, rule of regulation namely, six (6) votes would
suffice.
As regards the applicability of the provisions of the proposed new
Constitution, approved by the 1971 Constitutional Convention, in the
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determination of the question whether or not it is now in force, it is obvious

that such question depends upon whether or not the said new Constitution
has been ratified in accordance with the requirements of the 1935
Constitution, upon the authority of which said Constitutional Convention was
called and approved the proposed Constitution. It is well settled that the
matter of ratification of an amendment to the Constitution should be settled
by applying the provisions of the Constitution in force at the time of the
alleged ratification, or the old Constitution. 16
II
Does the issue on the validity of Proclamation No. 1102 partake of the nature
of a political, and, hence, non-justiciable question?
The Solicitor General maintains in his comment the affirmative view and this
is his main defense. In support thereof, he alleges that "petitioners would
have this Court declare as invalid the New Constitution of the Republic" from
which he claims "this Court now derives its authority"; that "nearly 15
million of our body politic from the age of 15 years have mandated this
Constitution to be the New Constitution and the prospect of unsettling acts
done in reliance on it caution against interposition of the power of judicial
review"; that "In the case of the New Constitution, the government has been
recognized in accordance with the New Constitution"; that "the country's
foreign relations are now being conducted in accordance with the new
charter"; that "foreign governments have taken note of it"; that the "plebiscite
cases" are "not precedents for holding questions regarding proposal and
ratification justiciable"; and that "to abstain from judgment on the ultimate
issue of constitutionality is not to abdicate duty."
At the outset, it is obvious to me that We are not being asked to "declare" the
new Constitution invalid. What petitioners dispute is the theory that it has
been validly ratified by the people, especially that they have done so in
accordance with Article XV of the 1935 Constitution. The petitioners maintain
that the conclusion by the Chief Executive in the dispositive portion of
Proclamation No. 1102 is not borne out by the whereases preceding the
same, as the predicates from which said conclusion was drawn; that the
plebiscite or "election" required in said Article XV has not been held; that the
Chief Executive has not authority, under the 1935 Constitution, to dispense
with said election or plebiscite; that the proceedings before the Citizens'
Assemblies did not constitution and may not be considered as such
plebiscite; that the facts of record abundantly show that the aforementioned
Assemblies could not have been held throughout the Philippines from
January 10 to January 15, 1973; and that, in any event, the proceedings in
said Assemblies are null and void as an alleged ratification of the new
Constitution proposed by the 1971 Constitutional Convention, not only
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because of the circumstances under which said Assemblies had been

created and held, but, also, because persons disqualified to vote under
Article V of the Constitution were allowed to participate therein, because the
provisions of our Election Code were not observed in said Assemblies,
because the same were not held under the supervision of the Commission
on Elections, in violations of section 2 of Article X of the 1935 Constitution,
and because the existence of Martial Law and General Order No. 20,
withdrawing or suspending the limited freedom to discuss the merits and
demerits of said proposed Constitution, impaired the people's freedom in
voting thereon, particularly, a viva voce, as it was done in many instances,
as well as their ability to have a reasonable knowledge of the contents of the
document on which they were allegedly called upon to express their views.
Referring now more specifically to the issue on whether the new Constitution
proposed by the 1971 Constitutional Convention has been ratified in
accordance with the provisions of Article XV of the 1935 Constitution is a
political question or not, I do not hesitate to state that the answer must be in
the negative. Indeed, such is the position taken by this Court, 17 in an
endless line of decisions, too long to leave any room for possible doubt that
said issue is inherently and essentially justiciable. Such, also, has been the
consistent position of the courts of the United States of America, whose
decisions have a persuasive effect in this jurisdiction, our constitutional
system in the 1935 Constitution being patterned after that of the United
States. Besides, no plausible reason has, to my mind, been advanced to
warrant a departure from said position, consistently with the form of
government established under said Constitution.
Thus, in the aforementioned plebiscite cases, 18 We rejected the theory of
the respondents therein that the question whether Presidential Decree No.
73 calling a plebiscite to be held on January 15, 1973, for the ratification or
rejection of the proposed new Constitution, was valid or not, was not a
proper subject of judicial inquiry because, they claimed, it partook of a
political nature; and We unanimously declared that the issue was a
justiciable one. With identical unanimity, We overruled the respondents'
contention in the 1971 habeas corpus cases, 19 questioning Our authority to
determine the constitutional sufficiency of the factual bases of the
Presidential proclamation suspending the privileges of the writ of habeas
corpus on August 21, 1971, despite the opposite view taken by this Court in
Barcelona v. Baker 20 and Montenegro v. Castaeda, 21 insofar as it adhered
to the former case, which view We, accordingly abandoned and refused to
apply. For the same reason, We did not apply and expressly modified, in
Gonzales v. Commission on Elections, 22 the political-question theory
adopted in Mabanag v. Lopez Vito. 23 Hence, respondents herein urge Us to
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reconsider the action thus taken by the Court and to revert to and follow the
views expressed in Barcelon v. Baker and Mabanag v. Lopez Vito. 24
The reasons adduced in support thereof are, however, substantially the
same as those given in support of the political-question theory advanced in
said habeas corpus and plebiscite cases, which were carefully considered by
this Court and found by it to be legally unsound and constitutionally
untenable. As a consequence, Our decision in the aforementioned habeas
corpus cases partakes of the nature and effect of a stare decisis, which
gained added weight by its virtual reiteration in the plebiscite cases.
The reason why the issue under consideration and other issues of similar
character are justiciable, not political, is plain and simple. One of the
principal bases of the non-justiciability of so-called political questions is the
principle of separation of powers characteristic of the Presidential system
of government the functions of which are classified or divided, by reason
of their nature, into three (8) categories, namely: 1) those involving the
making of laws, which are allocated to the legislative department; 2) those
concerned mainly with the enforcement of such laws and of judicial decisions
applying and/or interpreting the same, which belong to the executive
department; and 3) those dealing with the settlement of disputes,
controversies or conflicts involving rights, duties or prerogatives that are
legally demandable and enforceable, which are apportioned to courts of
justice. Within its own sphere but only within such sphere each
department is supreme and independent of the others, and each is devoid of
authority, not only to encroach upon the powers or field of action assigned to
any of the other departments, but, also, to inquire into or pass upon the
advisability or wisdom of the acts performed, measures taken or decisions
made by the other departments provided that such acts, measures or
decisions are within the area allocated thereto by the Constitution. 25
This principle of separation of powers under the Presidential system goes
hand in hand with the system of checks and balances, under which each
department is vested by the Fundamental Law with some powers to forestall,
restrain or arrest a possible or actual misuse or abuse of powers by the other
departments. Hence, the appointing power of the Executive, his pardoning
power, his veto power, his authority to call the Legislature or Congress to
special sessions and even to prescribe or limit the object or objects of
legislation that may be taken up in such sessions, etc. Conversely, Congress
or an agency or arm thereof such as the Commission on Appointments;
may approve or disapprove some appointments made by the President, It,
also, has the power of appropriation, to "define, prescribe, and apportion the
jurisdiction of the various courts," as well as that of impeachment. Upon the
other hand, under the judicial power vested by the Constitution, the
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"Supreme Court and . . . such inferior courts as may be established by law,"

may settle or decide with finality, not only justiciable controversies between
private individuals or entities, but, also, disputes or conflicts between a
private individual or entity, on the one hand, and an officer or branch of the
government, on the other, or between two (2) officers or branches of service,
when the latter officer or branch is charged with acting without jurisdiction or
in excess thereof or in violation of law. And so, when a power vested in said
officer or branch of the government is absolute or unqualified, the acts in the
exercise of such power are said to be political in nature, and, consequently,
non-justiciable beyond judicial review. Otherwise, courts of justice would be
arrogating upon themselves a power conferred by the Constitution upon
another branch of the service to the exclusion of the others. Hence, in
Taada v. Cuenco, 26 this Court quoted with approval from In re
McConaughy, 27 the following:

"'At the threshold of the case we are met with the assertion that
the questions involved are political, and not judicial. If this is
correct, the court has no jurisdiction as the certificate of the state
canvassing board would then be final, regardless of the actual
vote upon the amendment. The question thus raised is a
fundamental one; but it has been so often decided contrary to the
view contended for by the Attorney General that it would seem to
be finally settled.
xxx xxx xxx
"'. . . What is generally meant, when it is said that a question is
political, and not judicial, is that it is a matter which is to be
exercised by the people in their primary political capacity, or that it
has been specifically delegated to some other department or
particular officer of the government, with discretionary power to
act. See State vs. Cunningham, 81 Wis. 497, N.W. 724, 15 L.R.A.
561; In re Gunn, 50 Kan. 155; 32 Pac. 470, 948, 19 L.R.A. 519;
Green vs. Mills, 69 Fed. 852, 16 C.C.A. 516, 30 L.R.A. 90;
Fletcher vs. Tuttle, 151 Ill. 41 37 N.E. 683, 25 L.R.A. 143, 42 Am.
St. Rep. 220. Thus the Legislature may in its discretion determine
whether it will pass a law or submit a proposed constitutional
amendment to the people. The courts have no judicial control over
such matters, not merely because they involve political questions,
but because they are matters which the people have by the
Constitution delegated to the Legislature. The Governor may
exercise the powers delegated to him, free from judicial control, so
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power conferred. His discretionary acts cannot be controllable, not

primarily because they are of a political nature, but because the
Constitution and laws have placed the particular matter under his
control. But every officer under a constitutional government must
act according to law and subject to its restrictions, and every
departure therefrom or disregard thereof must subject him to that
restraining and controlling power of the people, acting through the
agency of the judiciary; for it must be remembered that the people
act through courts, as well as through the executive or the
Legislature. One department is just as representative as the other,
and the judiciary is the department which is charged with the
special duty of determining the limitations which the law places
upon all official action. The recognition of this principle, unknown
except in Great Britain and America, is necessary, to "the end that
the government may be one of laws and not of men" words
which Webster said were the greatest contained in any written
constitutional document.' (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 legal parlance, what it means in ordinary
parlance, namely, a question of policy" in matters concerning the
government of a State, as a body politic. "In other words, in the language
of Corpus Juris Secundum (supra), it refers to 'those questions which,
under the Constitution, are to be decided by the people in their sovereign
capacity, or in regard to which full discretionary authority has been
delegated to the Legislature or executive branch of the government.' It is
concerned with issues dependent upon the wisdom, not legality, of a
particular measure."
Accordingly, when the grant of power is qualified, conditional or subject to
limitations, the issue on whether or not the prescribed qualifications or
conditions have been met, or the limitations respected, it justiciable or nonpolitical, the crux of the problem being one of legality or validity of the
contested act, not its wisdom. Otherwise, said qualifications, conditions or
limitations particularly those prescribed or imposed by the Constitution
would be set at naught. What is more, the judicial inquiry into such issue and
the settlement thereof are the main functions of courts of justice under the
Presidential form of government adopted in our 1935 Constitution, and the
system of checks and balances, one of its basic predicates. As a
consequence, We have neither the authority nor the discretion to decline
passing upon said issue, but are under the ineluctable obligation made
particularly more exacting and peremptory by our oath, as members of the
highest Court of the land, to support and defend the Constitution to settle
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it. This explains why, in Miller v. Johnson, 28 it was held that courts have a
"duty, rather than a power", to determine whether another branch of the
government has "kept within constitutional limits." Not satisfied with this
postulate, the court went farther and stressed that, if the Constitution
provides how it may be amended as it is in our 1935 Constitution "then,
unless the manner is followed, the judiciary as the interpreter of that
constitution, will declare the amendment invalid." 29 In fact, this very Court
speaking through Justice Laurel, an outstanding authority on Philippine
Constitutional Law, as well as one of the highly respected and foremost
leaders of the Convention that drafted the 1935 Constitution declared, as
early as July 15, 1936, that "(i)n times of social disquietude or political
excitement, the great landmarks of the Constitution are apt to be forgotten or
marred, if not entirely obliterated. In cases of conflict, the judicial department
is the only constitutional organ which can be called upon to determine the
proper allocation of powers between the several departments" of the
government. 30
The Solicitor General has invoked Luther v. Borden 31 in support of his stand
that the issue under consideration is non-justiciable in nature. Neither the
factual background of that case nor the action taken therein by the Federal
Supreme Court has any similarity with or bearing on the cases under
consideration.
Luther v. Borden was an action for trespass filed by Luther with the Circuit
Court of the United States against Borden and others for having forcibly
entered into Luther's house, in Rhode Island, sometime in 1842. The
defendants who were in the military service of said former colony of England,
alleged in their defense that they had acted in obedience to the commands
of a superior officer, because Luther and others were engaged in a
conspiracy to overthrow the government by force and the state had been
placed by competent authority under Martial Law. Such authority was the
charter government of Rhode Island at the time of the Declaration of
Independence, for unlike other states which adopted a new Constitution
upon secession from England Rhode Island retained its form of
government under a British Charter, making only such alterations, by acts of
the Legislature, as were necessary to adapt it to its subsequent condition as
an independent state. It was under this form of government when Rhode
Island joined other American states in the Declaration of Independence and,
by subsequently ratifying the Constitution of the United States, became a
member of the Union. In 1843, it adopted a new Constitution.
Prior thereto, however, many citizens had become dissatisfied with the
charter government. Memorials addressed by them to the Legislature having
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failed to bring about the desired effect, meetings were held and associations
formed by those who belonged to this segment of the population which
eventually resulted in a convention called for the drafting of a new
Constitution to be submitted to the people for their adoption or rejection. The
convention was not authorized by any law of the existing government. The
delegates to such convention framed a new Constitution which was
submitted to the people. Upon the return of the votes cast by them, the
convention declared that said Constitution had been adopted and ratified by
a majority of the people and became the paramount law and Constitution of
Rhode Island.
The charter government, which was supported by a large number of citizens
of the state, contested, however, the validity of said proceedings. This
notwithstanding, one Thomas W. Dorr, who had been elected governor
under the new Constitution of the rebels, prepared to assert authority by
force of arms, and many citizens assembled to support him. Thereupon, the
charter government passed an Act declaring the state under Martial Law and
adopted measures to repel the threatened attack and subdue the rebels.
This was the state of affairs when the defendants, who were in the military
service of the charter government and were to arrest Luther, for engaging in
the support of the rebel government which was never able to exercise any
authority in the state broke into his house.
Meanwhile, the charter government had taken measures to call its own
convention to revise the existing form of government. Eventually, a new
constitution was drafted by a convention held under the authority of the
charter government, and thereafter was adopted and ratified by the people. "
(T)he times and places at which the votes were to be persons who were to
be given, the receive and return them qualifications of the voters having all
been previously authorized and provided for by law passed by the charter
government," the latter formally surrendered all of its power to the new
government, established under its authority, in May 1843, which had been in
operation uninterruptedly since then.
About a year before, or in May 1842, Dorr, at the head of a military force,
had made an unsuccessful attempt to take possession of the state arsenal in
Providence, but he was repulsed, and, after an "assemblage of some
hundreds of armed men under his command at Chepatchet in the June
following which dispersed upon approach of the troops of the old
government, no further effort was made to establish" his government. ". . .
until the Constitution of 1843" adopted under the auspices of the charter
government "went into operation, the charter government continued to
asset its authority and exercise its powers and to enforce obedience
throughout the state . . ."
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Having offered to introduce evidence to prove that the constitution of the

rebels had been ratified by the majority of the people, which the Circuit Court
rejected, apart from rendering judgment for the defendants, the plaintiff took
the case for review to the Federal Supreme Court which affirmed the action
of the Circuit Court, stating:
"It is worthy of remark, however, when we are referring to the
authority of State decisions, that the trial of Thomas W. Dorr took
place after the constitution of 1843 when into operation. The
judges who decided that the case held their authority under that
constitution; and it is admitted on all hands that it was adopted by
the people of the State, and is the lawful and established
government. It is the decision, therefore, of a State court, whose
judicial authority to decide upon the constitution and laws of
Rhode Island is not questioned by either party to this controversy,
although the government under which it acted was framed and
adopted under the sanction and laws of the charter government.
"The point, then, raised here has been already decided by the
courts of Rhode Island. The question relates, altogether, to the
constitution and laws of that State; and the well settled rule in this
court is, that the courts of the United States adopt and follow the
decisions of the State courts in questions which concern merely
the constitution and laws of the State.
"Upon what ground could the Circuit Court of United States which
tried this case have departed from this rule, and disregarded and
overruled the decisions of the courts of Rhode Island?
Undoubtedly the courts of the United States have certain powers
under the Constitution and laws of the United States which do not
government has been lawfully established, which the courts of
State disown and repudiate, is not one of them. Upon such a
question the courts of the United States are bound to follow the
decisions of the State tribunals, and must therefore regard the
charter government as the lawful and established government
during the time of this contest." 32

It is thus apparent that the context within which the case of Luther v. Borden
was decided is basically and fundamentally different from that of the cases at
bar. To begin with, the case did not involve a federal question, but one purely
municipal in nature. Hence, the Federal Supreme Court was "bound to follow
the decisions of the State tribunals" of Rhode Island upholding the
constitution adopted under the authority of the charter government.
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Whatever else was said in that case constitutes, therefore, an obiter dictum.
Besides, no decision analogous to that rendered by the State Court of Rhode
Island exists in the cases at bar. Secondly, the states of the Union have a
measure of internal sovereignty upon which the Federal Government may
not encroach, whereas ours is a unitary form of government, under which our
local governments derive their authority from the national government.
Again, unlike our 1935 Constitution, the charter or organic law of Rhode
Island contained no provision on the manner, procedure or conditions for its
amendment.
Then, too, the case of Luther v. Borden hinged more on the question of
recognition of government, than on recognition of constitution, and there is a
fundamental difference between these two (2) types of recognition, the first
being generally conceded to be a political question, whereas the nature of
the latter depends upon a number of factors, one of them being whether the
new Constitution in force at the time of the purported ratification of the
former, which is essentially a justiciable question. There was, in Luther v.
Borden, a conflict between two (2) rival governments, antagonistic to each
other, which is absent in the present cases. Here, the Government
established under the 1935 Constitution is the very same government whose
Executive Department has urged the adoption of the new or revised
Constitution proposed by the 1971 Constitutional Convention and now
alleges that it has been ratified by the people.
In short, the views expressed by the Federal Supreme Court in Luther v.
Borden, decided in 1849, on matters other than those referring to its power
to review decisions of a state court concerning the constitution and
government of that state, not the Federal Constitution or Government, are
manifestly neither controlling, nor even persuasive in the present cases,
having as the Federal Supreme Court admitted no authority
whatsoever to pass upon such matters or to review decisions of said state
court thereon. In fact, referring to that case, the Supreme Court of Minnesota
had the following to say:
"Luther v. Borden, 7 How. 1, 12 L. Ed. 581, is always cited by
those who assert that the courts have no power to determine
questions of a political character. It is interesting historically, but it
has not the slightest application to the case at bar. When carefully
analyzed, it appears that it merely determines that the federal
courts will accept as final and controlling a decision of the highest
court of a state upon a question of the construction of the
Constitution of the state . . ." 33

Baker v. Carr, 34 cited by respondents, involved an action to annul a

Tennessee statute apportioning the seats in the General Assembly among
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the counties of the State, upon the theory that the legislation violated the
equal protection clause. A district court dismissed the case upon the ground,
among others, that the issue was a political one, but, after a painstaking
review of the jurisprudence on the matter, the Federal Supreme Court
reversed the appealed decision and held that said issue was justiciable and
non-political, inasmuch as: ". . . (d)eciding whether a matter has in any
measure been committed by the Constitution to another branch of
government, or whether the action of that branch exceeds whatever authority
has been committed, is itself a delicate exercise in constitutional
interpretation, and is a responsibility of this Court as ultimate interpreter of
the Constitution . . ."
Similarly, in Powell v. McCormack, 35 the same Court, speaking through then
Chief Justice Warren, reversed a decision of the Court of Appeals of New
York affirming that of a Federal District Court, dismissing Powell's action for
a declaratory judgment declaring thereunder that he whose qualifications
were uncontested had been unlawfully excluded from the 90th Congress
of the U.S. Said dismissal was predicated upon the ground, inter alia, that
the issue was political, but the Federal Supreme Court held that it was
clearly a justiciable one.
The Supreme Court of Minnessota undertook a careful review of American
jurisprudence on the matter. Owing to the lucidity of its appraisal thereof, We
append the same to this opinion as Annex A thereof.
After an exhaustive analysis of the cases on this subject, the Court
concluded:
"The authorities are thus practically uniform in holding that
whether a constitutional amendment has been properly adopted
according to the requirements of an existing Constitution is a
judicial question. There can be little doubt that the consensus of
judicial opinion is to the effect that it is the absolute duty of the
judiciary to determine whether the Constitution has been amended
in the manner required by the Constitution, unless a special
tribunal has been created to determine the question; and even
then many of the courts hold that the tribunal cannot be permitted
to illegally amend the organic law . . . " 36

In the light of the foregoing, and considering that Art. XV of our 1935
Constitution prescribes the method or procedure for its amendment, it is
clear to my mind that the question whether or not the revised Constitution
drafted by the 1971 Constitutional Convention has been ratified in
accordance with said Art. XV is a justiciable one and non-political in nature,
and that it is not only subject to judicial inquiry, but, also, that it is the Court's
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bounden duty to decide such question.

The Supreme Court of the United States has meaningfully postulated that
"the courts cannot reject as 'no law suit'" because it allegedly involves a
political question "a bona fide controversy as to whether some action
denominated 'political' exceeds constitutional authority.'" 37
III
Has the proposed new or revised Constitution been ratified conformably to
said Art. XV of the 1935 Constitution?
Petitioners in L-36142 maintain the negative view, upon the ground: 1) that
the President "is without authority to create the Citizens' Assemblies" through
which, respondents maintain, the proposed new Constitution has been
ratified; 2) that said Assemblies "are without power to approve the proposed
Constitution"; 3) that the President "is without power to proclaim the
ratification by the Filipino people of the proposed Constitution"; and 4),that
"the election held (in the Citizens' Assemblies) to ratify the proposed
Constitution was not a free election, hence null and void."
Apart from substantially reiterating these grounds support of said negative
view, the petitioners in L-36164 contend: 1) that the President "has no power
to call a plebiscite for the ratification or rejection" of the proposed
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 "contains provisions which are beyond the powers of the 1971 Convention
to enact," thereby rendering it "unfit for . . . submission to the people;" 3) that
"(t)he period of time between November 30, 1972 when the 1972 draft was
approved and January 11-15, 1973," when the Citizens' Assemblies
supposedly ratified said draft, "was too short, worse still, there was
practically no time for the Citizens' Assemblies to discuss the merits of the
Constitution which the majority of them have not read and which they never
knew would be submitted to them for ratification until they were asked the
question 'do you approve of the New Constitution?' during the said days
of the voting"; and that "(t)here was altogether no freedom of discussion and
no opportunity to concentrate on the matter submitted to them when the
1972 draft was supposedly submitted to the Citizens' Assemblies for
ratification."
Petitioner in L-36236 added, as arguments in support of the negative view,
that: 1) "(w)ith a government-controlled press, there can never be a fair and
proper submission of the proposed Constitution to the people"; and 2)
Proclamation No. 1102 is null and void "(i)nasmuch as the ratification
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process" prescribed "in the 1935 Constitution was not followed."

Besides adopting substantially some of the grounds relied upon by the
petitioners in the above mentioned cases, the petitioners in L-36283 argue
that "(t)he creation of the Citizens' Assemblies as the vehicle for the
ratification of the Constitution was a deception upon the people since the
President announced the postponement of the January 15, 1973 plebiscite to
either February 19 or March 5, 1973." 38
The reasons adduced by the petitioners in L-36165 in favor of the negative
view have already been set forth earlier in this opinion. Hence, it is
unnecessary to reproduce them here. So it is, with respect to the positions
taken in L-36165 by counsel for therein respondents Gil J. Puyat and Jose
Roy although more will be said later about them and by the Solicitor
General, on behalf of the other respondents in that case and the
respondents in the other cases.
1.What is the procedure prescribed by the 1935 Constitution for its
amendment?
Under section 1 of Art. XV of said Constitution, three (3) steps are essential,
namely:
1.That the amendments to the Constitution be proposed either by Congress
or by a convention called for that purpose, "by a vote of three-fourths of all
the Members of the Senate and the House of Representatives voting
separately," but "in joint session assembled";
2.That such amendments be "submitted to the people for their ratification" at
an "election"; and
3.That such amendments be "approved by a majority of the votes cast" in
said election.
Compliance with the first requirement is virtually conceded, although the
petitioners in L-36164 question the authority of the 1971 Constitutional
Convention to incorporate certain provisions into the draft of the new or
revised Constitution The main issue in these five (5) cases hinges, therefore,
on whether or not the last two (2) requirements have been complied with.
2.Has the contested draft of the new or revised Constitution been "submitted
to the people for their ratification" conformably to Art. XV of the Constitution?
In this connection, other provisions of the 1935 Constitution concerning
"elections" must, also, be taken into account, namely, section 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 disqualified by law, who are twenty-one
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years of age or over and are able to read and write, and who shall
have resided in the Philippines for one year and in the municipality
wherein they propose to vote for at least six months preceding the
election. The National Assembly shall extend the right of suffrage
to women, if in a plebiscite which shall be held for that purpose
within two years after the adoption of this Constitution, not less
than three hundred thousand women possessing the necessary
qualifications shall vote affirmatively on the question."

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

"Section 1.There shall be an independent Commission
on Elections composed of a Chairman and two other
Members to be appointed by the President with the consent
of the Commission on Appointments, who shall hold office for
a term of nine years and may not be reappointed . . .
"xxx xxx xxx
"Sec. 2.The Commission on Elections shall have exclusive charge
of the enforcement and administration of all laws relative to the
conduct of elections and shall exercise all other functions which
may be conferred upon it by law. It shall decide, save those
involving the right to vote, all administrative questions, affecting
elections, including the determination of the number and location
of polling places, and the appointment of election inspectors and
of other election officials. All law enforcement agencies and
instrumentalities of the Government, when so required by the
Commission, shall act as its deputies for the purpose of insuring
free, orderly, and honest elections. The decisions, orders, and
rulings the Commission shall be subject to review by the Supreme
Court.
"xxx xxx xxx"

39

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

Petitioners maintain that section 1 of Art. V of the Constitution is a limitation
upon the exercise of the right of suffrage. They claim that no other persons
than "citizen of the Philippines not otherwise disqualified by law, who are
twenty-one years of age or over and are able to read and write, and who
shall have resided in the Philippines for one year and in the municipality
wherein they propose to vote for at least six months preceding the election,"
may exercise the right of suffrage in the Philippines. Upon the other hand,
the Solicitor General contends that said provision merely guarantees the
right of suffrage to persons possessing the aforementioned qualifications and
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none of the disqualifications, prescribed by law, and that said right may be
vested by competent authorities in persons lacking some or all of the
aforementioned qualifications, and possessing some of the aforesaid
disqualifications. In support of this view, he invokes the permissive nature of
the language "(s)uffrage may be exercised" used in section 1 of Art. V
of the Constitution, and the provisions of the Revised Barrio Charter,
Republic Act No. 3590, particularly sections 4 and 6 thereof, providing that
citizens of the Philippines "eighteen years of age or over," who are registered
in the list of barrio assembly members, shall be members thereof and may
participate as such in the plebiscites prescribed in said Act.
I cannot accept the Solicitor General's theory. Art. V of the Constitution
declares who may exercise the right of suffrage, so that those lacking the
qualifications therein prescribed may not exercise such right. This view is
borne out by the records of the Constitutional Convention that drafted the
1935 Constitution. Indeed, section 1 of Art. V of the 1935 Constitution was
largely based on the report of the committee on suffrage of the Convention
that drafted said Constitution, which report was, in turn, "strongly influenced
by the election laws then in force in the Philippines . . ." 40 Said committee
had recommended: 1) "That the right of suffrage should be exercised only by
male citizens of the Philippines." 2) "That it should be limited to those who
could read and write." 3) "That the duty to vote should be made obligatory." It
appears that the first recommendation was discussed extensively in the
Convention, and that, by way of compromise, it was eventually agreed to
include, in section 1 of Art. V of the Constitution, the second sentence
thereof imposing upon the National Assembly, established by the original
Constitution instead of the bicameral Congress subsequently created by
amendment of said Constitution the duty to "extend the right of suffrage to
women, if in a plebiscite to be held for that purpose within two years after the
adoption of this Constitution, not less than three hundred thousand women
possessing the necessary qualifications shall vote affirmatively on the
question." 41
The third recommendation on "compulsory" voting was, also, debated upon
rather extensively, after which it was rejected by the Convention. 42 This
accounts, in my opinion, for the permissive language used in the first
sentence of said Art. V. Despite some debates on the age qualification
amendments having been proposed to reduce the same to 18 or 20, which
were rejected, and the residence qualification, as well as the disqualifications
to the exercise of the right of suffrage the second recommendation limiting
the right of suffrage who could "read and write" was in the language of Dr.
Jose M. Aruego, one of the Delegates to said Convention "readily
approved in the Convention without any dissenting vote," although there was
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some debate on whether the Fundamental Law should specify the language
or dialect that the voter could read and write, which was decided in the
negative. 43
What is relevant to the issue before Us is the fact that the constitutional
provision under consideration was meant to be and is a grant or conferment
of a right to persons possessing the qualifications and none of the
disqualifications therein mentioned, which in turn, constitute a limitation of or
restriction to said right, and cannot, accordingly, be dispensed with, except
by constitutional amendment. Obviously, every such constitutional grant or
conferment of a right is necessarily a negation of the authority of Congress
or of any other branch of the Government to deny said right to the subject of
the grant and, in this sense only, may the same partake of the nature of a
guarantee. But, this does not imply not even remotely, that the Fundamental
Law allows Congress or anybody else to vest in those lacking the
qualifications and having the disqualifications mentioned in the Constitution
the right of suffrage.
At this juncture, it is noteworthy that the committee on suffrage responsible
for the adoption of section 1 of Art. V of the Constitution was "strongly
influenced by the election laws then in force in the Philippines." Our first
Election Law was Act 1582, passed on January 9, 1907, which was partly
amended by Acts 1669, 1709, 1726 and 1768, and incorporated into the
Administrative Code of 1916 Act 2657 as chapter 20 thereof, and then
in the Administrative Code of 1971 Act 2711 as chapter 18 thereof,
which, in turn, was amended by Act 3387, approved on December 3, 1927.
Sections 431 and 432 of said Code of 1917, prescribing, respectively, the
qualifications for and disqualifications from voting, are quoted below. 44 In all
of these legislative acts, the provisions concerning the qualifications of voters
partook of the nature of a grant or recognition of the right of suffrage, and.
hence, of a denial thereof to those who lacked the requisite qualifications
and possessed any of the statutory disqualifications. In short, the history of
section 1, Art. V of the Constitution, shows beyond doubt that the same
conferred not guaranteed the authority to exercise the right of suffrage
to persons having the qualifications prescribed therein and none of the
disqualifications to be specified in ordinary laws and, by necessary
implication, denied such right to those 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 the submission to a plebiscite of a "partial amendment" to
said section 1 of Art. V of the 1935 Constitution, by reducing the voting age
from twenty-one (21) years to eighteen (18) years, which, however, did not
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materialize on account of the decision of this Court in Tolentino v.

Commission on Elections, 45 granting the writs of prohibition and injunction
therein applied for, upon the ground that, under the Constitution, all of the
amendments adopted by the Convention should be submitted in "an
election" or a single election, not separately or in several or distinct elections,
and that the proposed amendment sought to be submitted to a plebiscite
was not even a complete but a "partial amendment" of said section 1, which
could be amended further, after its ratification had the same taken place, so
that the aforementioned partial amendment was, for legal purposes, no more
than a provisional or temporary amendment. Said partial amendment was
predicated upon the generally accepted contemporary construction that,
under the 1935 Constitution, persons below twenty-one (21) years of age
could not exercise the right of suffrage, without a previous amendment of the
Constitution.
Upon the other hand, the question, whether 18-year-old members of barrio
assemblies may vote in barrio as plebiscites is, to say the least, a debatable
one. Indeed, there seems to be a conflict between the last paragraph of said
section 6 of Rep. Act No. 3590, 46 pursuant to which the "majority vote of all
the barrio assembly members" (which include all barrio residents 18 years of
age or over, duly registered in the list of barrio assembly members) is
necessary for the approval, in an assembly plebiscite, of "any budgetary,
supplemental appropriations or special tax ordinances," whereas, according
to the paragraph preceding the penultimate one of said section, 47 "(a)ll duly
registered barrio assembly members qualified to vote" who, pursuant to
section 10 of the same Act, must be citizens "of the Philippines, twenty-one
years of age or over, able to read and write," and residents of the barrio
"during the six months immediately preceding the election, duly registered in
the list of voters" and "not otherwise disqualified . . ." just like the
provisions of the present and past election codes of the Philippines and Art.
V of the 1935 Constitution "may vote in the plebiscite."
I believe, however, that the apparent conflict should be resolved in favor of
the 21-year-old members of 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
are generally accorded a mandatory status unless the intention to the
contrary is manifest, which is not so as regards said Art. V for otherwise
they would not have been considered sufficiently important to be included in
the Fundamental Law of the land. 48 Besides, it would be illogical, if not
absurd, to believe that Republic Act No. 3590 requires, for the most
important measures for which it demands in addition to the favorable
action of the barrio council the approval of the barrio assembly through a
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plebiscite, lesser qualifications than those prescribed in dealing with ordinary

measures for which such plebiscite need not be held.
It is similarly inconceivable that those who drafted the 1935 Constitution
intended section 1 of Art. V thereof to apply only to elections of public
officers, not to plebiscites for the ratification of amendments to the
Fundamental Law or a revision thereof, or of an entirely new Constitution,
and to permit the legislature to require lesser qualifications for such
ratification, notwithstanding the fact that the subject thereof is much more
important if not fundamental, such as the basic changes introduced in the
draft of the revised Constitution adopted by the 1971 Constitutional
Convention, which are intended to be in force permanently, or, at least, for
many decades, and to affect the way of life of the nation and, accordingly
demands greater experience and maturity on the part of the electorate than
that required for the election of public officers, 49 whose average term ranges
from 2 to 6 years.
It is admitted that persons 15 years of age or over, but below 21 years,
regardless of whether or not they possessed the other qualifications laid
down in both the Constitution and the present Election Code, 50 and of
whether or not they are disqualified under the provisions of said Constitution
and Code, 51 or those of Republic Act No. 3590, 52 have participated and
voted in the Citizens' Assemblies that have allegedly ratified the new or
revised Constitution drafted by the 1971 Constitutional Convention.
In fact, according to the latest official data, the total number of registered
voters 21 years of age or over in the entire Philippines, available in January
1973, was less than 12 million. Yet, Proclamation No. 1102 states that
14,976,561 "members of all the Barangays (Citizens Assemblies) voted for
the adoption of the proposed Constitution, as against . . . 743,869 who voted
for its rejection," whereas, on the question whether or not the people still
wanted a plebiscite to be called to ratify the new Constitution, ". . .
14,298,814 answered that there was no need for a plebiscite and that the
vote of the Barangays (Citizens Assemblies) should be considered as a vote
in a plebiscite." In other words, it is conceded that the number of people who
allegedly voted at the Citizens' Assemblies for exceeded the number of
registered voters under the Election Code in force in January 1973.
It is thus clear that the proceedings held in such Citizens' Assemblies and
We have more to say on this point in subsequent pages were
fundamentally irregular, in that persons lacking the qualifications prescribed
in section 1 of Art. V of the Constitution were allowed to vote in said
Assemblies. And, since there is no means by which the invalid votes of those
less than 21 years of age can be separated or segregated from those of the
qualified voters, the proceedings in the Citizens' Assemblies must be
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considered null and void. 53

It has been held that "(t)he power to reject an entire poll . . . should be
exercised . . . in a case where it is impossible to ascertain with reasonable
certainty the true vote," as where "it is impossible to separate the legal votes
from the illegal or spurious . . ." 54
In Usman v. Commission on Elections, et al., 55 We held:
"Several circumstances, defying exact description and dependent
mainly on the factual milieu of the particular controversy, have the
effect of destroying the integrity and authenticity of disputed
election returns and of avoiding their prima facie value and
character. If satisfactorily proven, although in a summary
proceeding, such circumstances as alleged by the affected or
interested parties, stamp the election returns with the indelible
mark of falsity and irregularity, and, consequently, of unreliability,
and justify their exclusion from the canvass."

Then, too, the 1935 Constitution requires "a majority of the votes cast" for a
proposed amendment to the Fundamental Law to be "valid" as part thereof,
and the term "votes cast" has a well-settled meaning.
"The term 'votes cast' . . . was held in Smith v. Renville County
Commissioners, 65 N.W. 956, 64 Minn. 16, to have been used as
an equivalent of 'ballots cast.'" 56
"The word 'cast' is defined as 'to deposit formally or officially.'"

57

"It seems to us that a vote is cast when a ballot is deposited

indicating a 'choice.' . . . The word 'cast' means 'deposit (a ballot)
formally or officially . . .'
". . . In simple words, we would define a 'vote cast' as the exercise
on a ballot of the choice of the voter on the measure proposed." 58

In short, said Art. XV envisages with the term "votes cast" choices
made on ballots not orally or by raising 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, with its
major characteristics, namely, uniform official ballots prepared and furnished
by the Government and secrecy in the voting, with the advantage of keeping
records that permit judicial inquiry, when necessary, into the accuracy of the
election returns. And the 1935 Constitution has been so consistently
interpreted in all plebiscites for the ratification or rejection of proposed
amendments thereto, from 1935 to 1967. Hence, the viva voce voting in the
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Citizens' Assemblies was and is null and void ab initio.

b.How should the plebiscite be held? (COMELEC supervision indispensable;
essential requisites)
Just as essential as compliance with said Art. V of the 1935 Constitution is
that of Art. X thereof, particularly its sections 1 and 2. Indeed, section 1
provides that "(t)here shall be an independent Commission on Elections . . ."
The point to be stressed here is the term "independent." Indeed, why was
the term used?
In the absence of said constitutional provision as to the independence of the
Commission, would it have been 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 Congress or courts of justice. Said functions are by their
nature essentially executive, for which reason, the Commission would be
under the "control" of the President, pursuant to section 10, paragraph (1) of
Art. VII of the Constitution, if Art. X thereof did not explicitly declare that it
(the Commission) is an "independent" body. In other words, in amending the
original 1935 Constitution, by inserting therein said Art. X, on the
Commission on Elections, the purpose was to make said Commission
independent principally of the Chief Executive.
And the reason therefor is, also, obvious. Prior to the creation of the
Commission on Elections as a constitutional organ, election laws in the
Philippines were enforced by the then Department of the Interior, through its
Executive Bureau, one of the offices under the supervision and control of
said Department. The same like other departments of the Executive
Branch of the Government was, in turn, under the control of the Chief
Executive, before the adoption of the 1935 Constitution, and had been
until the abolition of said Department, sometime ago under the control of
the President of the Philippines, since the effectivity of said Fundamental
Law. Under the provisions thereof, the Executive could so use his power of
control over the Department of the Interior and its Executive Bureau as to
place the minority party at such a great, if not decisive, disadvantage, as to
deprive it, in effect, of the opportunity to defeat the political party in power,
and, hence, to enable the same to perpetuate itself therein. To forestall this
possibility, the original 1935 Constitution was amended by the establishment
of the Commission on Elections as a constitutional body independent
primarily of the President of the Philippines.
The independence of the Commission was sought to be strengthened by the
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long term of office of its members nine (9) years, except those first
appointed 59 the longest under the Constitution, second only to that of the
Auditor General 60 ; by providing that they may not be removed from office
except by impeachment, placing them, in this respect, on the same plane as
the President, the Vice-President, the Justices of the Supreme Court and the
Auditor General; that they may not be reappointed; that their salaries "shall
be neither increased nor diminished during their term of office"; that the
decisions 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 granted without 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 may be affected by the functions of
their office; nor shall they, directly or indirectly, be financially interested in
any contract with the Government or any subdivision or instrumentality
thereof." 63 Thus, the framers of the amendment to the original Constitution
of 1935 endeavored to do everything possible 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)he Commission on Elections shall have exclusive charge of
the enforcement and administration of all laws relative to the conduct of
elections," apart from such other "functions which may be conferred upon it
by law." It further provides that the Commission "shall decide, save those
involving the right to vote, all administrative questions, affecting elections,
including the determination of the number and location of polling places, and
the appointment of election inspectors and of other election officials." 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 postulates that "(a)ll law enforcement agencies and
instrumentalities of the Government, when so required by the Commission,
shall act as its deputies for the purpose of insuring free, orderly, and honest
elections." Not satisfied with this, it declares, in effect, that "(t)he decisions,
orders, and rulings of the Commission" shall not be subject to review, except
by the Supreme Court.
In accordance with the letter and spirit of said Art. X of the Constitution, Rep.
Act No. 6388, otherwise known as Election Code of 1971, implements the
constitutional powers of the Commission on Elections and grants additional
powers thereto, some of which are enumerated in sections 5 and 6 of said
Act, quoted below. 64 Moreover, said Act contains, inter alia, detailed
provisions regulating contributions and other (corrupt) practices; the
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establishment of election precincts; the designation and arrangement of

polling places, including voting booths, to protect the secrecy of the ballot;
the formation of lists of voters, the identification and registration of voters, the
proceedings therefor, as well as for the inclusion in, or exclusion or
cancellation from said list and the publication thereof; the establishment of
municipal, provincial and national files of registered voters; the composition
and appointment of boards of election inspectors; the particulars of the
official ballots to be used and the precautions to be taken to insure the
authenticity thereof; the procedure for the casting of votes; the counting of
votes by boards of inspectors; the rules for the appreciation of ballots and
the preparation and disposition of election returns; the constitution and
operation of municipal, provincial and national boards of canvassers; the
representation of political parties and/or their candidates in each election
precinct; the proclamation of the results, including, in the case of election of
public officers, election contests; and the jurisdiction of courts of justice in
cases of violations of the provisions of said Election Code and penalties for
such violations.
Few laws may be found with such a meticulous and elaborate set of
provisions aimed at "insuring free, orderly, and honest elections," as
envisaged in section 2 of Art. X of the Constitution. Yet, none of the
foregoing constitutional and statutory provisions was followed by the socalled Barangays or Citizens' 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 right to
vote secretly one of the most fundamental and critical features of our
election laws from time immemorial particularly at a time when the same
was of utmost importance, owing to the existence of Martial Law.
In Glenn v. Gnau, 65 involving the casting of many votes, openly, without
complying with the requirements of the law pertinent thereto, it was held that
the "election officers" involved "cannot be too strongly condemned" therefor
and that if they 'could legally dispense with such requirement xxx they could
with equal propriety dispense with all of them, including the one that the vote
shall be by secret ballot, or even by ballot at all . . ."
Moreover, upon the formal presentation to the Executive of the proposed
Constitution drafted by the 1971 Constitutional Convention, or on December
1, 1972, Presidential Decree No. 73 (on the validity of which was
contested in the plebiscite cases, as well as in the 1972 habeas corpus case
66 We need not, in the cases at bar, express any opinion) was issued,
calling a plebiscite, to be held on January 15, 1973, at which the proposed
Constitution would be submitted to the people for ratification or rejection;
directing the publication of said proposed Constitution; and declaring, inter
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alia, that "(t)he provisions of the Election Code of 1971, insofar as they are
not inconsistent" with said 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 1971 provides
that "(a)ll elections of public officers except barrio officials and plebiscites
shall be conducted in the manner provided by this Code." General Order No.
20, dated January 7, 1973, postponing, until further notice, "the plebiscite
scheduled to be held on January 15, 1973," said nothing about the
procedure to be followed in the plebiscite to take place at such notice, and
no other order or decree has been brought to Our attention, expressly or
impliedly repealing the provisions of Presidential Decree No. 73, insofar as
said procedure is concerned.
Upon the other hand, said General Order No. 20 expressly suspended "the
provisions of Section 3 of Presidential Decree No. 73 insofar as they allow
free public discussion of the proposed Constitution . . . temporarily
suspending the effects of Proclamation No. 1081 for the purposes of free
and open debate on the proposed Constitution . . ." This specific mention of
the portions of the decrees or orders or instructions suspended by General
Order No. 20 necessarily implies that all other portions of said decrees,
orders or instructions and, hence, the provisions of Presidential Decree
No. 73 outlining the procedure to be followed in the plebiscite for the
ratification or rejection of the proposed Constitution remained in force,
assuming that said Decree is valid.
It is claimed that by virtue of Presidential Decree No. 86-A the text of
which is quoted below 67 the Executive declared, inter alia, that the
collective views expressed in the Citizens' Assemblies "shall be considered
in the formulation of national policies or programs and, wherever practicable,
shall be translated into concrete and specific decision"; that such Citizens'
Assemblies "shall consider vital national issues . . . like the holding of the
plebiscite on the new Constitution . . . and others in the future, which shall
serve as guide or basis for action or decision by the national government";
and that the Citizens' Assemblies "shall conduct between January 10 and 15,
1973, a referendum on important national issues, including those specified in
paragraph 2 hereof, and submit the results thereof to the Department of
Local Governments and Community Development immediately thereafter, . .
." As in Presidential Decree No. 86, this Decree No. 86-A does not and
cannot exclude the exercise of the constitutional supervisory power of the
Commission on elections or its participation in the proceedings in said
Assemblies, if the same had been intended to constitute the "election" or
plebiscite required in Art. V of the 1935 Constitution. The provision of
Presidential Decree No. 86-A directing the immediate submission of the
result thereof to the Department of Local Governments and Community
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Development is not necessarily inconsistent with, and must be subordinate

to the constitutional power of the Commission on Elections to exercise its
"exclusive" authority over the "enforcement and administration of all laws
relative to the conduct of elections," if the proceedings in the Assemblies
would partake of the nature of an "election" or plebiscite for the ratification or
rejection of the proposed Constitution.
We are told that Presidential Decree No. 86 was further amended by
Presidential Decree No. 86-B, dated January 7, 1973, ordering "that
important national issues shall from time to time be referred to the
Barangays (Citizens Assemblies) for resolution in accordance with
Presidential Decree No. 86-A dated January 5, 1973 and that the initial
referendum shall include the matter of ratification of the Constitution
proposed by the 1971 Constitutional Convention" and that "(t)he Secretary of
the Department of Local Governments and Community Development shall
insure the implementation of this order." As in the case of Presidential
Decrees Nos. 86 and 86-A, the foregoing directives do not necessarily
exclude the exercise of the powers vested by the 1935 Constitution in the
Commission on Elections, even if the Executive had the authority to repeal
Art. X of our Fundamental Law which he does not possess. Copy of
Presidential Decree No. 86-B is appended hereto as Annex B hereof.
The point is that, such of the Barrio Assemblies as were held took place
without the intervention of the Commission on Elections, and without
complying with the provisions of the Election Code of 1971 or even of those
of Presidential Decree No. 73. What is more, they were held under the
supervision of the very officers and agencies of the Executive Department
sought to be excluded therefrom by Art. X of the 1935 Constitution. Worse
still, said officers and agencies of the Executive Department, who had been
publicly urged and ostensibly promised to work for the ratification of the
proposed revised Constitution would be favored thereby, owing to the
practically indefinite extension of their respective terms of office in
consequence of section 9 of the Transitory Provisions, found in Art. XVII of
the proposed Constitution, without any elections therefor. And the procedure
therein mostly followed is such that there is no reasonable means of
checking the accuracy of the returns filed by the officers who conducted said
plebiscites. This is another patent violation of Art. X of the Constitution which
can hardly be sanctioned. And, since the provisions of this article form part of
the fundamental scheme set forth in the 1935 Constitution, as amended, to
insure the "free, orderly, and honest" expression of the people's will, the
aforementioned violation thereof renders null and void the contested
proceedings or alleged plebiscite in the Citizens' Assemblies, insofar as the
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same are claimed to have ratified the revised Constitution proposed by the
1971 Constitutional Convention. ". . . (a)ll the authorities agree that the legal
definition of an election, as well as that which is usually and ordinarily
understood by the term, is a choosing or a selection by those having a right
to participate (in the selection) of those who shall fill the offices, or of the
adoption or rejection of any public measures affecting the territory involved.
15 Cyc. 279; Lewis v. Boynton, 25 Colo. 486, 55 Pac. 732; Saunders v.
Haynes, 13 Cal. 145; Seaman v. Baughman, 82 Iowa 216, 47 N.W. 1091, 11
L.R.A. 354; State v. Hirsh, 125 Ind. 207, 24 N.E. 1062, 9 L.R.A. 170;
Bouvier's Law Dictionary." 68
IV
Has the proposed Constitution aforementioned
been approved by a majority of the people in
the Citizen's Assemblies allegedly held
throughout the Philippines?
Respondents maintain the affirmative, relying upon Proclamation No. 1102,
the validity of which is precisely being contested by petitioners herein.
Respondents claim that said proclamation is "conclusive" upon this Court, or
is, at least, entitled to full faith and credence, as an enrolled bill; that the
proposed Constitution has been, in fact, ratified, approved or adopted by the
"overwhelming" majority of the people; that Art. XV of the 1935 Constitution
has thus been "substantially" complied with; and that the Court should refrain
from passing upon the validity of Proclamation No. 1102, not only because
such question is political in nature, but, also, because should the Court
invalidate the proclamation, the former would, in effect, veto the action of the
people in whom sovereignty resides and from whom its powers are derived.
The major flaw in this process of rationalization is that it assumes, as a fact,
the very premise on which it is predicated, and which, moreover, is contested
by the petitioners. As the Supreme Court of Minnessota has aptly put it
". . . every officer under a constitutional government
must act according to law and subject to its restrictions, and
every departure therefrom or disregard thereof must subject
him to the restraining and controlling power of the people,
acting through the agency of the judiciary; for it must be
remembered that the people act through courts, as well as
through the executive or the Legislature. One department is
just as representative as the other, and the judiciary is the
department which is charged with the special duty of
determining the limitations which the law places upon all
official action. . . ."
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Accordingly, the issue boils down to whether or not the Executive acted
within the limits of his authority when he certified in Proclamation No. 1102
"that the Constitution proposed by the nineteen hundred and seventy-one
(1971) Constitutional Convention has been ratified by an overwhelming
majority of all of the votes cast by the members of all the Barangays
(Citizens Assemblies) throughout the Philippines, and has thereby come into
effect."
In this connection, it is not claimed that the Chief Executive had personal
knowledge of the data he certified in said proclamation. Moreover, Art. X of
the 1935 Constitution was precisely inserted to place beyond the Executive
the power to supervise or even exercise any authority whatsoever over "all
laws relative to the conduct of elections," and, hence, whether the elections
are for the choice or selection of public officers or for the ratification or
rejection of any proposed amendment, or revision of the Fundamental Law,
since the proceedings for the latter are, also, referred to in said Art. XV as
"elections."
The Solicitor General stated, in his argument before this Court, that he had
been informed that there was in each municipality a municipal association of
presidents of the citizens' assemblies for each barrio of the municipality; that
the president of each such municipal association formed part of a provincial
or city association of presidents of such municipal associations; that the
president of each one of these provincial or city associations in turn formed
part of a National Association or Federation of Presidents of such Provincial
or City Associations; and that one Francisco Cruz from Pasig, Rizal, as
President of said National Association or Federation, reported to the
President of the Philippines, in the morning of January 17, 1973, the total
result of the voting in the citizens' assemblies all over the country from
January 10 to January 15, 1973. The Solicitor General further intimated that
the said municipal associations had reported the results of the citizens'
assemblies in their respective municipalities to the corresponding Provincial
Association, which, in turn, transmitted the results of the voting in the
province to the Department of Local Governments and Community
Development, which tabulated the results of the voting in the citizens'
assemblies throughout the Philippines and then turned them over to Mr.
Francisco Cruz, as President or acting President of the National Association
or Federation, whereupon Mr. Cruz, acting in a ceremonial capacity, reported
said results (tabulated by the Department of Local Governments and
Community Development) to the Chief Executive, who, accordingly, issued
Proclamation No. 1102.
The record shows, however, that Mr. Cruz was not even a member of any
barrio council since 1972, 80 that he could not possibly have been a member
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on January 17, 1973, of a municipal association of presidents of barrio or

ward citizens' assemblies, much less of a Provincial, City or National
Association or Federation of Presidents of any such provincial or city
associations.
Secondly, at the conclusion of the hearing of these cases on February 16,
1973, and in the resolution of this Court of the same date, the Solicitor
General was asked to submit, together with his notes on his 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 or authorizing the creation, establishment or
organization" of said municipal, provincial and national associations, 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 is devoid of any factual and
legal foundation. Hence, the conclusion is set forth in the dispositive portion
of said Proclamation No. 1102, to the effect that the proposed new or revised
Constitution had been ratified by the majority of the votes cast by the people,
cannot possibly have any legal effect or value.
The theory that said proclamation is "conclusive" upon the Court is clearly
untenable. If it were, acts of the Executive and those of Congress could not
possibly be annulled or invalidated by courts of justice. Yet, such is not the
case. In fact, even a resolution of Congress declaring that a given person
has been elected President or Vice-President of the Philippines as provided
in the Constitution 69 is not conclusive upon the courts. It is no more than
prima facie evidence of what is attested to by said resolution. 70 If assailed
directly in appropriate proceedings, such as an election protest, if and when
authorized by law, as it is in the Philippines, the Court may receive evidence
and declare, in accordance therewith, who was duly elected to the office
involved. 71 If prior to the creation of the Presidential Electoral Tribunal, no
such protest could be filed, it was not because the resolution of Congress
declaring those had been elected President or Vice-President was
conclusive upon courts of justice, but because there was no law permitting
the filing of such protest and declaring what court or body would hear and
decide the same. So, too, a declaration to the effect that a given amendment
to the Constitution or revised or new Constitution has been ratified by a
majority of the votes cast therefor, may be duly assailed in court and be the
object of judicial inquiry, in direct proceedings therefor such as the cases
at bar and the issue raised therein may and should be decided in
accordance with the evidence presented.

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The case of In re McConaughy 72 is squarely in point. "As the Constitution

stood from the organization of the state" of Minnesota "all taxes were
required to be raised under the system known as the 'general property tax.'
Dissatisfaction with the results of this method and the development of more
scientific and satisfactory methods of raising venue induced the Legislature
to submit to the people an amendment to the Constitution which provided
merely that taxes shall be uniform upon the same class of subjects. This
proposed amendment was submitted at the general election held in
November, 1906, and in due time it was certified by the state canvassing
board and proclaimed by the Governor as having been legally adopted.
Acting upon the assumption that the amendment had become a part of the
Constitution, the Legislature enacted statutes providing for a State Tax
Commission and a mortgage registry tax, and the latter statute, upon the
same theory, was held constitutional" by said Court. "The district court found
that the amendment had not in fact been adopted, and on this appeal" the
Supreme Court was "required to determine the correctness of that
conclusion."
Referring to the effect of the certification of the State Board of Canvassers
created by the Legislature and of the proclamation made by the Governor
based thereon, the Court held: "It will be noted that this board does no more
than tabulate the reports received from the various county boards and add
up and certify the results. State v. Mason, 45 Wash. 234, 88 Pac. 126, 9
L.R.A. (U.S.) 1221. It is settled law that the decisions of election officers, and
canvassing boards are not conclusive and that the final decision must rest
with the courts, unless the law declares that the decisions of the board shall
be final" and there is no such law in the cases at bar. ". . . The correctness
of the conclusion of the state board rests upon the correctness of the returns
made by the county boards and it is inconceivable that it was intended that
this statement of result should be final and conclusive regardless of the
actual facts. The proclamation of the Governor adds nothing in the way of
conclusiveness to the legal effect of the action of the canvassing board. Its
purpose is to formally notify the people of the state of the result of the voting
as found by the canvassing board. James on Const. Conv. (4th Ed.) sec.
523."
In Bott v. Wartz, 73 the Court reviewed the statement of results of the election
made by the canvassing board, in order that the true results could be
judicially determined. And so did the court in Rice v. Palmer. 74
Inasmuch as Art. X of the 1935 Constitution places under the "exclusive"
charge of the Commission on Elections, "the enforcement and administration
of all laws relative to the conduct of elections," independently of the
Executive, and there is not even a certification by the Commission in support
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of the alleged results of the citizens' assemblies relied upon in Proclamation

No. 1102 apart from the fact that on January 17, 1973 neither the alleged
president of the Federation of Provincial or City Barangays nor the
Department of Local Governments had certified to the President of the
alleged result of the citizen's assemblies all over the Philippines it follows
necessarily that, from a constitutional and legal viewpoint, Proclamation No.
1102 is not even prima facie evidence of the alleged ratification of the
proposed Constitution.
Referring particularly to the cases before Us, it will be noted that, as pointed
out in the discussion of the preceding topic, the new or revised Constitution
proposed by the 1971 Constitutional Convention was not ratified in
accordance with the provisions of the 1935 Constitution. In fact, it has not
even been ratified in accordance with said proposed Constitution, the
minimum age requirement therein for the exercise of the right of suffrage
being eighteen (18) years, apart from the fact that Art. VI of the proposed
Constitution requires "secret" voting, which was not observed in many, if not
most, Citizens' Assemblies. Besides, both the 1935 Constitution and the
proposed Constitution require a "majority of the votes cast" in an election or
plebiscite called for the ratification of an amendment or revision of the first
Constitution or the effectivity of the proposed Constitution, and the phrase
"votes cast" has been construed to mean "votes made in writing," not orally,
as it was in many Citizens' Assemblies. 75
Even counsel for Gil J. Puyat and Jose Roy, as respondents in L-36165,
asserts openly that Art. XV of the Constitution has not been complied with,
and since the alleged substantial compliance with the requirements thereof
partakes of the nature of a defense set up by the other respondents in these
cases, the burden of proving such defense which, if true, should be within
their peculiar knowledge is clearly on such respondents. Accordingly, if
despite the extensive notes and documents submitted by the parties herein,
the members of the Court do not know or are not prepared to say whether or
not the majority of the people or of those who took part in the Citizens'
Assemblies have assented to the proposed Constitution, the logical step
would be to give due course to these cases, require the respondents to file
their answers, and the plaintiffs their reply, and, thereafter, to receive the
pertinent evidence and then proceed to the determination of the issues
raised thereby. Otherwise, we would be placing upon the petitioners the
burden of disproving a defense set up by the respondents, who have not so
far established the truth of such defense.
Even more important, and decisive, than the foregoing is the circumstance
that there is ample reason to believe that many, if not most, of the people did
not know that the Citizens' Assemblies were, at the time they were held,
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plebiscites for the ratification or rejection of the proposed Constitution.

Hence, in Our decision in the plebiscite cases, We said, inter alia:
"Meanwhile, or on December 17, 1972, the President had issued
an order temporarily suspending the effects of Proclamation No.
1081, for the purpose of free and open debate on the Proposed
Constitution. On December 23, the President announced the
postponement of the plebiscite for the ratification or rejection of
the Proposed Constitution. No formal action to this effect was
taken until January 7, 1973, when General Order No. 20 was
issued, directing 'that the plebiscite scheduled to be held on
January 15, 1973, he postponed until further notice.' Said General
Order No. 20, moreover, 'suspended in the meantime' the 'order of
December 17, 1972, temporarily suspending the effects of
Proclamation No. 1081 for purposes of free and open debate on
the proposed Constitution.'
"In view of these events relative to the postponement of the
aforementioned plebiscite, the Court deemed it fit to refrain, for the
time being, from deciding the aforementioned cases, for neither
the date nor the conditions under which said plebiscite would be
held were known or announced officially. Then again, Congress
was, pursuant to the 1935 Constitution, scheduled to meet in
regular session on January 22, 1973,and since the main objection
to Presidential Decree No. 73 was that the President does not
have the legislative authority to call a plebiscite and appropriate
funds therefor, which Congress unquestionably could do,
particularly in view of the formal postponement of the plebiscite by
the President reportedly after consultation with, among others,
the leaders of Congress and the Commission on Elections the
Court deemed it more imperative to defer its final action on these
cases."

And, apparently, the parties in said cases entertained the same belief, for, on
December 23, 1972 four (4) days after the last hearing of said cases 76
the President announced the postponement of the plebiscite scheduled by
Presidential Decree No. 73 to be held on January 15, 1973, after
consultation with the Commission on Elections and the leaders of Congress,
owing to doubts on the sufficiency of the time available to translate the
proposed Constitution into some local dialects and to comply with some preelectoral requirements, as well as to afford the people a reasonable
opportunity to be posted on the contents and implications of said
transcendental document. On January 7, 1973, General Order No. 20 was
issued formally, postponing said plebiscite "until further notice." How can
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said postponement be reconciled with the theory that the proceedings in the
Citizens' Assemblies scheduled to be held from January 10, to January 15,
1973, were "plebiscites," in effect, accelerated, according to the theory of the
Solicitor General, for the ratification of the proposed Constitution? If said
Assemblies were meant to be the plebiscites or elections envisaged in Art.
XV of the Constitution, what, then, was the "plebiscite" postponed by
General Order No. 20? Under these circumstances, it was only reasonable
for the people who attended such assemblies to believe that the same were
not an "election" or plebiscite for the ratification or adoption of said proposed
Constitution.
And, this belief is further bolstered up by the questions propounded in the
Citizens' Assemblies, namely:
"[1]Do you like the New Society?
"[2]Do you like the reforms under martial law?
"[3]Do you like Congress again to hold sessions?
"[4]Do you like the plebiscite to be held later?
"[5]Do you like the way President Marcos is running the affairs of
the government? [Bulletin Today, January 10, 1973; additional
question italics.]
"[6]Do you approve of the citizens assemblies as the base of
popular government to decide issues of national interests?
"[7]Do you approve of the new Constitution?
"[8]Do you want a plebiscite to be called to ratify the new
Constitution?
"[9]Do you want the elections to be held in November, 1973 in
accordance with the provisions of the 1935 Constitution?

"[10]If the elections would not be held, when do you want the next
elections to be called?
"[11]Do you want martial law to continue?" [Bulletin Today,
January 11, 1973]

To begin with, questions nos. 1, 2, 3, 4, 5, 6, 9, 10 and 11 are not proper in a

plebiscite for the ratification of a proposed Constitution or of a proposed
amendment thereto. Secondly, neither is the language of question No. 7
"Do you approve of the new Constitution?" One approves "of" the act of
another, which does not need such approval for the effectivity of said act,
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which the first person, however, finds to be good, wise or satisfactory. The
approval of the majority of the votes cast in a plebiscite is, however,
essential for an amendment to the Constitution to be valid as part thereof.
Thirdly, if the proceedings in the Citizens' Assemblies constituted a
plebiscite, question No. 8 would have been unnecessary and improper,
regardless of whether question No. 7 were answered affirmatively or
negatively. If the majority of the answers to question No. 7 were in the
affirmative, the Constitution would have become effective and no other
plebiscite could be held thereafter in connection therewith, even if the
majority of the answers to question No. 8 were, also, in the affirmative. If the
majority of the answers to question No. 7 were in the negative, neither may
another plebiscite be held, even if the majority of the answers to question
No. 8 were in the affirmative. In either case, not more than one plebiscite
could be held for the ratification or rejection of the proposed Constitution. In
short, the insertion of said two (2) questions apart from the other
questions adverted to above indicates strongly that the proceedings
therein did not partake of the nature of a plebiscite or election for the
ratification or rejection of the proposed Constitution.
Indeed, I can not, in good conscience, declare that the proposed Constitution
has been approved or adopted by the people in the citizens' assemblies all
over the Philippines, when it is, to my mind, a matter of judicial knowledge
that there have been no such citizens' assemblies in many parts of Manila
and suburbs, not to say, also, in other parts of the Philippines. In a letter of
Governor Efren B. Pascual of Bataan, dated January 15, 1973, to the Chief
Executive, the former reported:
". . . This report includes a resume (sic) of the activities we
undertook in effecting the referendum on the eleven questions you
wanted our people consulted on and the Summary of Results
thereof for each municipality and for the whole province.
"xxx xxx xxx
". . . Our initial plans and preparations, however, dealt only on the
original five questions. Consequently, when we received an
instruction on January 10 to change the questions, we urgently
suspended all scheduled Citizens' Assembly meetings on that day
and called all Mayors, Chiefs of Offices and other government
officials to another conference to discuss with them the new set of
guidelines and materials to be used.
"On January 11, . . . another instruction from the top was received
to include the original five questions among those to be discussed
and asked in the Citizens' Assembly meetings. With this latest
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order, we again had to make modifications in our instructions to all

those managing and supervising the holding of the Citizens'
Assembly meetings throughout the province . . . Aside from the
coordinators we had from the Office of the Governor, the splendid
cooperation and support extended by almost all government
officials and employees in the province, particularly of the
Department of Education, PC and PACD personnel, provided us
with enough hands to trouble shoot and implement sudden
changes in the instructions anytime and anywhere needed . . .
". . . As to our people, in general, their enthusiastic participation
showed their preference and readiness to accept this new method
of government to people consultation in shaping up government
policies."

Thus, as late as January 10, 1973, the Bataan officials had to suspend "all
scheduled Citizens' Assembly meetings . . ." and call all available officials ". .
. to discuss with them the new set of guidelines and materials to be used . . ."
Then, "on January 11 . . . another instruction from the top was received to
include the original five questions among those to be discussed and asked in
the Citizens' Assembly meetings. With this latest order, we again had to
make modifications in our instructions to all those managing and supervising
the holding of the Citizens' Assembly meetings throughout the province . . .
As to our people, in general, their enthusiastic participation showed their
preference and readiness to accept the new method of government to
people consultation in shaping up government policies."
This communication manifestly shows: 1) that, as late as January 11, 1973,
the Bataan officials had still to discuss not put into operation means
and ways to carry out the changing instructions from the top on how to
organize the citizens' assemblies, what to do therein and even what
questions or topics to propound or touch in said assemblies; 2) that the
assemblies would involve no more than consultations or dialogues between
people and government not decisions to be made by the people; and 3)
that said consultations were aimed only at "shaping up government policies"
and, hence, could not, and did not, partake of the nature of a plebiscite for
the ratification or rejection of a proposed amendment of a new or revised
Constitution for the latter does not entail the formulation of a policy of the
Government, but the making of a decision by the people on the new way of
life, as a nation, they wish to have, once the proposed Constitution shall
have been ratified.
If this was the situation in Bataan one of the provinces nearest to Manila
as late as January 11, 1973, one can easily imagine the predicament of
the local officials and people in the remote barrios in northern and southern
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Luzon, in the Bicol region, in the Visayan Islands and Mindanao. In fact,
several members of the Court, including those of their immediate families
and their household, although duly registered voters in the area of Greater
Manila, were not even notified that citizens' assemblies would be held in the
places where their respective residences were located. In the Prohibition and
Amendment case, 77 attention was called to the "duty cast upon the court of
taking judicial cognizance of anything affecting the existence and validity of
any law or portion of the Constitution . . ." In line with its own pronouncement
in another case, the Federal Supreme Court of the United States stressed, in
Baker v. Carr, 78 that "a court is not at liberty to shut its eyes to an obvious
mistake, when the validity of the law depends upon the truth of what is
declared."
In the light of the foregoing, I cannot see how the question under
consideration can be answered or resolved otherwise than in the negative.
V
Have the people acquiesced in the proposed Constitution?
It is urged that the present Government of the Philippines is now and has
been run, since January 17, 1973, under the Constitution drafted by the 1971
Constitutional Convention; that the political department of the Government
has recognized said revised Constitution; that our foreign relations are being
conducted under such new or revised Constitution; that the Legislative
Department has recognized the same, and that the people, in general, have,
by their acts or omissions, indicated their conformity thereto.
As regards the so called political organs of the Government, I gather that
respondents refer mainly to the offices under the Executive Department. In a
sense, the latter performs some functions which, from a constitutional
viewpoint, are political in nature, such as in recognizing a new state or
government, in accepting diplomatic representatives accredited to our
Government, and even in devising administrative means and ways to better
carry into effect Acts of Congress which define the goals or objectives
thereof, but are either imprecise or silent on the particular measures to be
resorted to in order to achieve the said goals or delegate the power to do so,
expressly or impliedly, to the Executive. This, notwithstanding, the political
organ of a government that purports to be republican is essentially the
Congress or Legislative Department. Whatever may be the functions
allocated to the Executive Department specially under a written, rigid
Constitution, with a republican system of Government like ours the role of
that Department is inherently, basically and fundamentally executive in
nature to "take care that the laws be faithfully executed," in the language
of our 1935 Constitution. 79
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Consequently, I am not prepared to concede that the acts of the officers and
offices of the Executive Department, in line with Proclamation No. 1102,
connote a recognition thereof or an acquiescence thereto. Whether they
recognized the proposed Constitution or acquiesce thereto or not is
something that cannot legally, much less necessarily or even normally, be
deduced from their acts in accordance therewith, because 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 other choice, specially in view of Proclamation No. 1081 placing the
Philippines under Martial Law. Besides, by virtue of the very decrees, orders
and instructions issued by the President thereafter, he had assumed all
powers of Government although some question his authority to do so
and, consequently, there is hardly anything he has done since the issuance
of Proclamation No. 1102, on January 17, 1973 declaring that the
Constitution proposed by the 1971 Constitutional Convention has been
ratified by the overwhelming majority of the people that he could not do
under the authority he claimed to have under Martial Law, since September
21, 1972, except the power of supervision over inferior courts and its
personnel, which said proposed Constitution would place under the Supreme
Court, and which the President has not ostensibly exercised, except as to
some minor routine matters, which the Department of Justice has continued
to handle, this Court having preferred to maintain the status quo in
connection therewith pending final determination of these cases, in which the
effectivity of the aforementioned Constitution is disputed.
Then, again, a given department of the Government cannot generally be said
to have "recognized" its own acts. Recognition normally connotes the
acknowledgment by a party of the acts of another. Accordingly, when a
subordinate officer or office of the Government complies with the commands
of a superior officer or office, under whose supervision and control he or it is,
the former merely obeys the latter. Strictly speaking, and from a legal and
constitutional viewpoint, there is no act of recognition involved therein.
Indeed, the lower officer or office, if he or it acted otherwise, would just be
guilty of insubordination.
Thus, for instance, the case of Taylor v. Commonwealth 80 cited by
respondents herein in support of the theory of the people's acquiescence
involved a constitution ordained in 1902 and "proclaimed by a convention
duly called by a direct vote of the people of the state to revise and amend the
Constitution of 1869. The result of the work of that Convention has been
recognized, accepted and acted upon as the only valid Constitution of the
State" by
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1.The "Governor of the State in swearing fidelity to it and proclaiming it, as

directed thereby";
2.The "Legislature in its formal official act adopting a joint resolution, July 15,
1902, recognizing the Constitution ordained by the Convention . . .";
3.The "individual oaths of its members to support it, and by its having been
engaged for nearly a year, in legislating under it and putting its provisions
into operation . . .";
4.The "judiciary in taking the oath prescribed thereby to support it and by
enforcing its provisions . . . "; and
5.The "people in their primary capacity by peacefully accepting it and
acquiescing in it, by registering as voters under it to the extent of thousands
throughout the State, and by voting, under its provisions, at a general
election for their representatives in the Congress of the United States."
Note that the New Constitution of Virginia, drafted by a convention whose
members were elected directly by the people, was not submitted to the
people for ratification or rejection thereof. But, it was recognized, not by the
convention itself, but by other sectors of the Government, namely, the
Governor; the Legislature not merely by individual acts of its members,
but by formal joint resolution of its two (2) chambers; by the judiciary; and by
the people, in the various ways specified above. What is more, there was no
martial law. In the present cases, none of the foregoing acts of acquiescence
was present. Worse still, there is martial law, the strict enforcement of which
was announced shortly before the alleged citizens' assemblies. To top it all,
in the Taylor case, the effectivity of the contested amendment was not
contested judicially until about one (1) year after the amendment had been
put into operation in all branches of the Government, and complied with by
the people who participated in the elections held pursuant to the provisions
of the new Constitution. In the cases under consideration, the legality of
Presidential Decree No. 73 calling a plebiscite to be held on January 15,
1973, was impugned as early as December 7, 1972, or five (5) weeks before
the scheduled plebiscite, whereas the validity of Proclamation No. 1102
declaring on January 17, 1973, that the proposed Constitution had been
ratified despite General Order No. 20, issued on January 7, 1972, formally
and officially suspending the plebiscite until further notice was impugned
as early as January 20, 1973, when L-36142 was filed, or three (3) daysafter
the issuance of Proclamation No. 1102.
It is further alleged that a majority of the members of our House of
Representatives and Senate have acquiesced in the new or revised
Constitution, by filing written statements opting to serve in the Ad Interim
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Individual acts of recognition by members of our legislature, as well as of

other collegiate bodies under the government, are invalid as acts of said
legislature or bodies, unless its members have performed said acts in
session duly assembled, or unless the law provides otherwise, and there is
no such law in the Philippines. This is a well-established principle of
Administrative Law and of the Law of Public Officers, and no plausible
reason has been adduced to warrant departure therefrom. 81
Indeed, if the members of Congress were generally agreeable to the
proposed Constitution, why did it become necessary to padlock its premises
to prevent its meeting in session on January 22, 1973, and thereafter as
provided in the 1935 Constitution? It is true that, theoretically, the members
of Congress, if bent on discharging their functions under said Constitution,
could have met in any other place, the building in which they perform their
duties being immaterial to the legality of their official acts. The force of this
argument is, however, offset or dissipated by the fact that, on or about
December 27, 1972, immediately after a conference between the Executive,
on the one hand, and members of Congress, on the other, some of whom
expressed the wish to meet in session on January 22, 1973, as provided in
the 1935 Constitution, a Daily Express columnist (Primitivo Mijares)
attributed to Presidential Assistant Guillermo de Vega a statement to the
effect that "'certain members of the Senate appear to be missing the point in
issue' when they reportedly insisted on taking up first the question of
convening Congress." The Daily Express of that date, 82 likewise, headlined,
on its front page, a "Senatorial Plot Against 'Martial Law Government'
Disclosed." Then, in its issue of December 29, 1972, the same paper
imputed to the Executive an appeal "to diverse groups involved in a
conspiracy to undermine" his powers "under martial law to desist from
provoking a constitutional crisis . . . which may result in the exercise by me of
authority I have not exercised."
No matter how good the intention behind these statements may have been,
the idea implied therein was too clear and ominous for any member of
Congress who thought of organizing, holding or taking part in a session of
Congress, not to get the impression that he could hardly do so without
inviting or risking the application of Martial Law to him. Under these
conditions, I do not feel justified in holding that the failure of the members of
Congress to meet since January 22, 1973, was due to their recognition,
acquiescence in or conformity with the provisions of the aforementioned
Constitution, or its alleged ratification.
For the same reasons, especially because of Proclamation No. 1081, placing
the entire Philippines under Martial Law, neither am I prepared to declare
that the people's inaction as regards Proclamation No. 1102, and their
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compliance with a number of Presidential orders, decrees and/or instructions

some or many of which have admittedly had salutary effects issued
subsequently thereto amounts, constitutes or attests to a ratification,
adoption or approval of said Proclamation No. 1102. In the words of the
Chief Executive, "martial law connotes power of the gun, meant coercion by
the military, and compulsion and intimidation." 83 The failure to use the gun
against those who comply with the orders of the party wielding the weapon
does not detract from the intimidation that Martial Law necessarily connotes.
It may reflect the good, reasonable and wholesome attitude of the person
who has the gun, either pointed at others, without pulling the trigger, or
merely kept in its holster, but not without warning that he may or would use it
if he deemed it necessary. Still, the intimidation is there, and inaction or
obedience of the people, under these conditions, is not necessarily an act of
conformity or acquiescence. This is specially so when we consider that the
masses are, by and large, unfamiliar with the parliamentary system, the new
form of government introduced in the proposed Constitution, with the
particularity that it is not even identical to that existing in England and other
parts of the world, and that even experienced lawyers and social scientists
find it difficult to grasp the full implications of some provisions incorporated
therein.
As regards the applicability to these cases of the "enrolled bill" rule, it is well
to remember that the same refers to a document certified to the President
for his action under the Constitution by the Senate President and the
Speaker of the House of Representatives, and attested to by the Secretary
of the Senate and the Secretary of the House of Representatives,
concerning legislative measures approved by the two Houses of Congress.
The argument of the Solicitor General is, roughly, this: If the enrolled bill is
entitled to full faith and credence and, to this extent, it is conclusive upon the
President and the judicial branch of the Government, why should
Proclamation No. 1102 merit less consideration than in enrolled bill?
Before answering this question, I would like to ask the following: If, instead of
being certified by the aforementioned officers of Congress, the so-called
enrolled bill were certified by, say, the President of the Association of Sugar
Planters and/or Millers of the Philippines, and the measure in question were
a proposed legislation concerning Sugar Plantations and Mills sponsored by
said Association, which even prepared the draft of said legislation, as well as
lobbied actually for its approval, for which reason the officers of the
Association, particularly, its aforementioned president whose honesty and
integrity are unquestionable were present at the deliberations in Congress
when the same approved the proposed legislation, would the enrolled bill
rule apply thereto? Surely, the answer would have to be in the negative.
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Why? Simply, because said Association President has absolutely no official

authority to perform in connection therewith, and, hence, his certification is,
legally, as good as non-existent.
Similarly, a certification, if any, of the Secretary of the Department of Local
Governments and Community Development about the tabulated results of
the voting in the Citizens' Assemblies allegedly held all over the Philippines
and the records do not show that any such certification, either to the
President of the Philippines or to the President of the Federation or National
Association of presidents of Provincial Associations of presidents of
municipal associations of presidents of barrio or ward assemblies of citizens
would not, legally and constitutionally, be worth the paper on which it is
written. Why? Because said Department Secretary is not the officer
designated by law to superintend plebiscites or elections held for the
ratification or rejection of a proposed amendment or revision of the
Constitution and, hence, to tabulate the results thereof. Worse still, it is the
officer or department which, according to Article X of the 1935 Constitution,
should not and must not be allowed 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 United States declared that courts "will not stand impotent
before an obvious instance of a manifestly unauthorized exercise of power."
85

I cannot honestly say, therefore, that the people have impliedly or expressly
indicated their conformity to the proposed Constitution.
VI
Are the Parties entitled to any relief?
Before attempting to answer this question, a few words must be said about
the procedure followed in these five (5) cases. In this connection, it should
be noted that the Court has not as yet decided whether or not to give due
course to the petitions herein or to require the respondents to answer
thereto. Instead, it has required the respondents to comment on the
respective petitions with three (3) members of the Court voting to dismiss
them outright and then considered the comments thus submitted by the
respondents as motions to dismiss, as well as set the same for hearing. This
was due to the transcendental nature of the main issue raised, the necessity
of deciding the same with utmost dispatch, and the main defense set up by
respondents herein, namely, the alleged political nature of said issue, placing
the same, according to respondents, beyond the ambit of judicial inquiry and
determination. If this defense was sustained, the cases could readily be
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dismissed; but, owing to the importance of the questions involved, a

reasoned resolution was demanded by public interest. At the same time,
respondents had cautioned against a judicial inquiry into the merits of the
issues posed on account of the magnitude of the evil consequences, it was
claimed, which would result from a decision thereon, if adverse to the
Government.
As a matter of fact, some of those issues had been raised in the plebiscite
cases, which were dismissed as moot and academic, owing to the issuance
of Proclamation No. 1102 subsequently to the filing of said cases, although
before the rendition of judgment therein. Still one of the members of the
Court (Justice Zaldivar) was of the opinion that the aforementioned issues
should be settled in said cases, and he, accordingly, filed an opinion passing
upon the merits thereof. On the other hand, three (3) members of the Court
Justices Barredo, Antonio and Esguerra filed separate opinions
favorable to the respondents in the plebiscite cases, Justice Barredo holding
"that the 1935 Constitution has pro tanto passed into history and has been
legitimately supplanted by the Constitution in force by virtue of Proclamation
1102." 86 When the petitions at bar were filed, the same three (3) members
of the Court, consequently, voted for the dismissal of said petitions. The
majority of the members of the Court did not share, however, either view,
believing that the main question that arose before the rendition of said
judgment had not been sufficiently discussed and argued as the nature and
importance thereof demanded.
The parties in the cases at bar were accordingly given every possible
opportunity to do so and to elucidate on and discuss said question. Thus,
apart from hearing the parties in oral argument for five (5) consecutive days
morning and afternoon, or a total of exactly 26 hours and 31 minutes
their respective counsel filed extensive notes on their oral arguments, as well
as on such additional arguments as they wished to submit, and reply notes
or memoranda, in addition to rejoinders thereto, aside from a sizeable
number of documents in support of their respective contentions, or as
required by the Court. The arguments, oral and written, submitted have been
so extensive and exhaustive, and the documents filed in support thereof so
numerous and bulky, that, for all intents and purposes, the situation is as if
disregarding forms the petitions had been given due course and the
cases had been submitted for decision.
Accordingly, the majority of the members of the Court believe that they
should express their views on the aforementioned issues as if the same were
being decided on the merits, and they have done so in their individual
opinions attached hereto. Hence, the resume of the votes east and the tenor
of the resolution, in the last pages hereof, despite the fact that technically the
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Court has not, as yet, formally given due course to the petitions herein.
And, now, here are my views on the reliefs sought by the parties.
In L-36165, it is clear that we should not issue the writ of mandamus prayed
for against Gil J. Puyat and Jose Roy, as President and President Pro
Tempore respectively of the Senate, it being settled in our jurisdiction, based
upon the theory of separation of powers, that the judiciary will not issue such
writ to the head of a co-equal department, like the aforementioned officers of
the Senate.
In all other respects and with regard to the other respondents in said case,
as well as in eases L-36142, L-36164, L-36236 and L-36283, my vote is that
the petitions therein should be given due course, there being more than
prima facie showing that the proposed Constitution has not been ratified in
accordance with Article XV of the 1935 Constitution, either strictly, or
substantially, or has been acquiesced in by the people or a majority thereof;
that said proposed Constitution is not in force and effect; and that the 1935
Constitution is still the Fundamental Law of the Land, without prejudice to the
submission of said proposed Constitution to the people at a plebiscite for its
ratification or rejection in accordance with Articles V, X and XV of the 1935
Constitution and the provisions of the Revised Election Code in force at the
time of such plebiscite.
Perhaps others would feel that my position in these cases overlooks what
they might consider to be the demands of "judicial statesmanship," whatever
may be the meaning of such phrase. I am aware of this possibility, if not
probability; but "judicial statesmanship," though consistent with Rule of Law,
cannot prevail over the latter. Among consistent ends or consistent values,
there always is a hierarchy, a rule of priority.
We must realize that the New Society has many achievements which would
have been very difficult, if not impossible, to accomplish under the old
dispensation. But, in and for the judiciary, statesmanship should not prevail
over the Rule of Law. Indeed, the primacy of the law or of the Rule of Law
and faithful adherence thereto are basic, fundamental and essential parts of
statesmanship itself.
Resume of the Votes Cast and the Court's Resolution
As earlier stated, after the submittal by the members of the Court of their
individual opinions and/or concurrences as appended hereto, the writer will
now make, with the concurrence of his colleagues, a resume or summary of
the votes cast by each of them.
It should be stated that by virtue of the various approaches and views
expressed during the deliberations, it was agreed to synthesize the basic
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issues at bar in broad general terms in five questions for purposes of taking
the votes. It was further agreed of course that each member of the Court
would expound in his individual opinion and/or concurrence his own
approach to the stated issues and deal with them and state (or not) his
opinion thereon singly or jointly and with such priority, qualifications and
modifications as he may deem proper, as well as discuss thereon other
related issues which he may consider vital and relevant to the cases at bar.
The five questions thus agreed upon as reflecting the basic issues herein
involved are the following:
1.Is the issue of the validity of Proclamation No. 1102 a justiciable, or
political and therefore non-justiciable, question?
2.Has the Constitution proposed by the 1971 Constitutional Convention been
ratified validly (with substantial, if not strict, compliance) conformably to the
applicable constitutional and statutory provisions?
3.Has the aforementioned proposed Constitution been acquiesced in (with or
without valid ratification) by the people?
4.Are petitioners entitled to relief? and
5.Is the aforementioned proposed Constitution in force?
The results of the voting, premised on the individual views expressed by the
members of the Court in their 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 validity of Proclamation No.
1102 presents a justiciable and non-political question. Justices Makalintal
and Castro did not vote squarely on this question, but, only inferentially, in
their discussion of the second question. Justice Barredo qualified his vote,
stating that "inasmuch as it is claimed that there has been approval by the
people, the Court may inquire into the question of whether or not there has
actually been such an approval, and, in the affirmative, the Court should
keep its hands-off out of respect to the people's will, but, in the negative, the
Court may determine from both factual and legal angles whether or not
Article XV of the 1935 Constitution has been complied with." Justices
Makasiar, Antonio and Esguerra, or three (3) members of the Court hold that
the issue is political and "beyond the ambit of judicial inquiry."
2.On the second question of validity of the ratification, Justices Makalintal,
Zaldivar, Castro, Fernando, Teehankee and myself, or six (6) members of
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the Court also hold that the Constitution proposed by the 1971 Constitutional
Convention was not validly ratified in accordance with Article XV, section 1 of
the 1935 Constitution, which provides only one way for ratification, i.e., "in an
election or plebiscite held in accordance with law and participated in only by
qualified and duly registered voters." 87
Justice Barredo qualified his vote, stating that "(A)s to whether or not the
1973 Constitution has been validly ratified pursuant to Article XV, I still
maintain that in the light of traditional concepts regarding the meaning and
intent of said Article, the referendum in the Citizens' Assemblies, specially in
the manner the votes therein were cast, reported and canvassed, falls short
of the requirements thereof. In view, however, of the fact that I have no
means of refusing to recognize as a judge that factually there was voting and
that the majority of the votes were for considering as approved the 1973
Constitution without the necessity of the usual form of plebiscite followed in
past ratifications, I am constrained to hold that, in the political sense, if not in
the orthodox legal sense, the people may be deemed to have cast their
favorable votes in the belief that in doing so they did the part required of
them by Article XV, hence, it may be said that in its political aspect, which is
what counts most, after all, said Article has been substantially complied with,
and, in effect, the 1973 Constitution has been constitutionally ratified."
Justices Makasiar, Antonio and Esguerra, or three (3) members of the Court
hold that under their view there has been in effect substantial compliance
with the constitutional requirements for valid ratification.
3.On the third question of acquiescence by the Filipino people in the
aforementioned proposed Constitution, no majority vote has been reached
by the Court.
Four (4) of its members, namely, Justices Barredo, Makasiar, Antonio and
Esguerra hold that "the people have already accepted the 1973
Constitution." 88
Two (2) members of the Court, namely, Justice Zaldivar and myself hold that
there can be no free expression, and there has even been no expression, by
the people qualified to vote all over the Philippines, of their acceptance or
repudiation of the proposed Constitution under Martial Law. Justice
Fernando states that "(I)f it is conceded that the doctrine stated in some
American decisions to the effect that independently of the validity of the
ratification, a new Constitution once accepted or acquiesced in by the people
must be accorded recognition by the Court, I am not at this stage prepared to
state that such doctrine calls for application in view of the shortness of time
that has elapsed and the difficulty of ascertaining what is the mind of the
people in the absence of the freedom of debate that is a concomitant feature
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of martial law."
Three (3) members of the Court express their lack of knowledge and/or
competence to rule on the question. Justices Makalintal and Castro are
joined by Justice Teehankee in their statement that "Under a regime of
martial law, with the free expression of opinions through the usual media
vehicles restricted, (they) have no means of knowing, to the point of judicial
certainty, whether the people have accepted the Constitution." 89
4.On the fourth question of relief, six (6) members of the Court, namely,
Justices Makalintal, Castro, Barredo, Makasiar, Antonio and Esguerra voted
to DISMISS the petition. Justices Makalintal and Castro so voted on the
strength of their view that "(T)he effectivity of the said Constitution, in the
final analysis, is the basic and ultimate question posed by these cases to
resolve which considerations other than judicial, and therefore beyond the
competence of this Court, 90 are relevant and unavoidable." 91
Four (4) members of the Court, namely, Justices Zaldivar, Fernando,
Teehankee and myself voted to deny respondents' motion to dismiss and to
give due course to the petitions.
5.On the fifth question of whether the new Constitution of 1973 is in force:
Four (4) members of the Court, namely, Justices Barredo,
Makasiar, Antonio and Esguerra hold that it is in force by virtue of
the people's acceptance thereof;
Four (4) members of the Court, namely, Justices Makalintal,
Castro, Fernando and Teehankee cast no vote thereon on the
premise stated in their votes on the third question that they could
not state with judicial certainty whether the people have accepted
or not accepted the Constitution; and
Two (2) members of the Court, namely, Justice Zaldivar and
myself voted that the Constitution proposed by the 1971
Constitutional Convention is not in force;

with the result that there are not enough votes to declare that the new
Constitution is not in force.
ACCORDINGLY, by virtue of the majority of six (6) votes of Justices
Makalintal, Castro, Barredo, Makasiar, Antonio and Esguerra with the four
(4) dissenting votes of the Chief Justice and Justices Zaldivar, Fernando and
Teehankee, all the aforementioned cases are hereby dismissed. This being
the vote of the majority, there is no further judicial obstacle to the new
Constitution being considered in force and effect.
It is so ordered.
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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 a separate opinion.
Fernando, J., dissents in conformity with the personal views of the Chief
Justice, except as to such portions 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 separate dissent.
ANNEX A PERTINENT
PORTIONS OF THE
MINNESSOTA SUPREME COURT
DECISION
ON THE CASE
IN RE McCONAUGHY
"(a)An examination of the decisions shows that the courts have almost
uniformly exercised the authority to determine the validity of the proposal,
submission, or ratification of constitutional amendments. It has been
judicially determined whether a proposed amendment received the
constitutional majority of votes (Dayton v. St. Paul, 22 Minn. 400; Rice v.
Palmer, 78 Ark. 432, 96 S.W. 396; Bott v. Wurtz, 63 N.J. Law, 289, 43 Atl.
744, 881, 45 L.R.A. 251; State v. Foraker, 46 Ohio St. 677, 23 N.E. 491; 6
L.R.A. 422; Tecumseh National Bank v. Saunders, 51 Neb. 801, 71 N.W.
779; Green v. State Board, 5 Idaho, 130, 47 Pac. 259, 95 Am. St. Rep. 169;
In re Denny, 156 Ind. 104, 59 N.E. 359, 51 L.R.A. 722; Knight v. Shelton
[C.C.] 134 Fed. 423); whether a proposed amendment is a single
amendment, within the constitutional requirement that every amendment
must be separately submitted (State v. Powell, 77 Miss. 543, 27 South. 927;
Gabbert v. Chicago, etc., R. Co., 171 Mo. 84, 70 S.W. 891; State v. Timme,
54 Wis. 318,11 N.W. 785; In re Denny, 156 Ind. 104, 59 N.E. 359, 51 L.R.A.
722; Lobaugh v. Cook, 127 Iowa, 181,102 N.W. 1121; People v. Sours, 31
Colo. 369, 74 Pac. 167,102 Am. St. Rep. 34; State v. Board, 34 Mont. 426,
87 Pac. 450; State v. Winnett [Neb.] 110 N.W. 1113, 10 L.R.A. [N.S.] 149);
whether the failure to enter the resolution of submission upon the legislative
journals invalidates the amendment (Koehler v. Hill, 60 Iowa, 543, 14 N.W.
738,15 N.W. 609; Oakland Paving Co. v. Hilton, 69 Cal. 479,11 Pac. 3; West

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v. State, 50 Fla. 154, 39 South. 412; Durfee v. Harper, 22 Mont. 354, 56 Pac.
582; State v. Tufly, 19 Nev. 391, 12 Pac. 835, 3 Am. St. Rep. 895); whether
the description of the amendment and the form of the ballot are sufficient
(Rugsell v. Croy, 164 Mo. 69, 63 S.W. 849; State v. Winnett [ Neb.] 110 N.W.
1113, 10 L.R.A. [N.S.] 149; Murphy Chair Co. v. Attorney General [Mich.]
112 N.W. 127); whether the method 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 is
sufficient (Com. v. Griest, 196 Pa. 396, 46 Atl. 505, 50 L.R.A. 568; Russell v.
Croy, 164 Mo. 69, 63 S.W. 849); whether the submission may be as well by
resolution as by a legislative act approved by the executive (Com. v. Griest,
196 Pa. 396, 46 Atl. 505, 50 L.R.A. 568; Warfield v. Vandiver, 101 Md. 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 election the 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 the determination of the question whether an
amendment to the Constitution has been carried involves the exercise of
political, and not judicial, power. If this be so, it follows that the promulgation
of any purported amendment by the executive or any executive department
is final, and that the action cannot be questioned by the judiciary; but, with
reference to the conditions precedent to submitting a proposed amendment
to a vote of the people, it has been repeatedly held, by courts of the highest
respectability, that it is within the power of the judiciary to inquire into the
question, even in a collateral proceeding. . . . It is to be noted that under
section 1 of article 20 of the Constitution of the state no amendment can
become a part of the Constitution until ratified by a vote of the people. One
prerequisite is equally as essential as the other. The amendment must first
receive the requisite majority in the Legislature, and afterwards be adopted
by the requisite vote . . . It is the fact of a majority vote which makes the
amendment a part of the Constitution.'
"In considering the cases it is necessary to note whether in the particular
case the court was called upon to determine between rival governments, or
whether the Legislature, or some board or official, had legally performed the
duty imposed by the Constitution or statutes. In re State v. McBride, 4 Mo.
303, 29 Am. Dec. 636, it was held that the General Assembly, under the
power granted by the Constitution, could change the Constitution only in the
manner prescribed by it, and that it was the duty of the court to determine
whether all prerequisites had been complied with. In Collier v. Frierson, 24
Ala. 100, it was held that a Constitution can be changed only by the people
in convention or in a mode described by the Constitution itself, and that if the
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latter mode is adopted every requisite of the Constitution must be observed.

'It has been said,' says the court,' that certain acts are to be done, certain
requisitions are to be observed, before a change can be effected; but to what
purpose are these acts required, or these requisitions enjoined, if the
Legislature or any other department of the government can dispense with
them. To do so would be to violate the instrument which they are sworn to
support; and every principle of public law and sound constitutional policy
requires the court to pronounce against every amendment which is shown
not to have been made in accordance with the rules prescribed by the
fundamental law.'
"In State v. Swift, 69 Ind. 505, it was said that: 'The people of a state may
form an original Constitution, or abrogate an old one and form a new one, at
any time, without any political restriction, except the Constitution of the
United States; but if they undertake to add an amendment, by the authority
of legislation to a Constitution already in existence, they can do it only by the
method pointed out by the Constitution to which the amendment is added.
The power to amend a Constitution by legislative action does not confer the
power to break it, any more than it confers the power to legislate on any
other subject contrary to its prohibitions.' So, in State v. Timme, 54 Wis. 318,
11 N.W. 785, it was held that no amendments can be made to the
Constitution of the state without a compliance with the provisions thereof,
both in the passage of such amendment by the Legislature and the manner
of submitting it to the people. The courts have not all agreed as to the
strictness of compliance which should be required.
"In the Prohibition and Amendment Case, 24 Kan. 100, the court determined
judicially whether an amendment to the Constitution had been legally
adopted. After approving the statement quoted from Collier v. Frierson,
supra, that 'we entertain no doubt that, to change the Constitution in any
other mode than by a convention, every requisite which is demanded by the
instrument itself must be observed, and the omission of any one is fatal to
the amendment,' the court held that, 'as substance of right is grander and
more potent than methods of form,' there had been substantial compliance
with the constitutional requirement that a proposed amendment to the
Constitution must be entered at length on the legislative journal. It appears
that the joint resolution making a submission simply provided that a
proposition should be submitted to the electors at the general election of
1880. It did not declare that the machinery of the general election law should
control, or that any particular officers or board would receive, count, or
canvass the votes cast. But the existing election machinery was adequate,
and the votes were received, counted, and canvassed, and the result
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had been followed in the adoption of previous amendments, and it was held
that, conceding the irregularity of the proceedings of the Legislature and the
doubtful scope of the provisions for the election, yet in view of the very
uncertainty of such provisions, the past legislative history of similar
propositions, the universal prior acquiescence in the same forms of
procedure, and the popular and unchallenged acceptance of the legal
pendency before the people of the question of the amendment for decision,
and in view of the duty cast upon the court of taking judicial knowledge of
anything affecting the existence and validity of any law or portion of the
Constitution, it must be adjudged that the proposed amendment became part
of the Constitution. The effect was to hold that a provision of the Constitution
requiring the proposed amendment to be entered in full on the journals was
directory, and not mandatory. This liberal view was approved in State v.
Winnett (Neb.) 110 N.W. 1113, 10 L.R.A. (N.S.) 149, and People v. Sours,
31 Colo. 369, 74 Pac. 167, 102 Am. St. Rep. 34. But it has not been
universally accepted.
"In Oakland Paving Co. v. Hilton, 69 Cal. 479, 11 Pac. 3, the court, in
commenting upon the Kansas case said: 'The reasoning by which the
learned court reached the conclusion it did is not based on any sound legal
principles, but contrary to them. Neither the argument nor the conclusion can
command our assent or approval. The argument is illogical, and based on
premises which are without any sound foundation, and rests merely on
assumption.' See, also, the well-considered case of Kadderly v. Portland, 44
Or. 118, 74 Pac. 710, 75 Pac. 222. All these cases concede the jurisdiction
of the court to determine whether, in submitting a proposed amendment to
the people, the Legislature legally observed the constitutional provisions as
to the manner of procedure. In Livermore v. Waite, 102 Cal. 113, 36 Pac.
424, 25 L.R.A. 312, the court, at the instance of a citizen and a taxpayer,
restrained the Secretary of State from taking steps to submit to the people a
proposed amendment to the Constitution agreed to by the Legislature on the
ground that the Legislature had not acted in conformity with the Constitution
and that the proposed amendment was of such a character that it could not
properly become a part of the Constitution. The Supreme Court of Colorado,
in People v Sours, supra, refused to exercise this authority.
"The entire question received elaborate consideration in Koehler v. Hill, 60
Iowa, 543, 14 N.W. 738, 15 N.W. 609. The amendment, which concededly
had been adopted by the people, had not, before its submission, been
entered in full upon the legislative journals, as required by the Constitution,
and it was held that this was a material variance in both form and substance
from the constitutional requirements, and that the amendment did not,
therefore, become a part of the Constitution. As to the claim that the question
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was political, and not judicial, it was said that, while it is not competent for
courts to inquire into the validity of the Constitution and the form of
government under which they themselves exist, and from which they derive
their powers, yet, where the existing Constitution prescribes a method for its
own amendment, an amendment thereto, to be valid, must be adopted in
strict conformity to that method; and it is the duty of the courts in a proper
case, when an amendment does not relate to their own power or functions,
to inquire whether, in the adoption of the amendment, the provisions of the
existing Constitution have been observed, and, if not, to declare the
amendment invalid and of no force. This case was followed in State v.
Brookhart, 113 Iowa, 250, 84 N.W. 1064.
"In University v. McIver, 72 N.C. ?6, the question whether a proposed
amendment to the Constitution had been legally adopted was treated as a
judicial question. By the Constitution a proposed amendment was required to
be approved by two Legislatures before its submission to the people. In this
instance a bill was passed which contained 17 amendments. The next
Legislature rejected 9 and adopted 8 of these amendments, and submitted
them to the people. The majority of the people voted for their adoption; but it
was contended that the Constitution contemplated and required that the
same bill and the same amendments, without change, should be approved
by both Legislatures, and that it did not follow that, because the second
Legislature adopted separately 8 out of the 17 amendments adopted by the
first Legislature, it would have adopted the 17, or any of them, if they had
been voted upon by the second in the form adopted by the first body. The
substance of the contention was that there had not been a concurrence of
the two Legislatures on the same amendments, according to the letter and
spirit of the Constitution. The court held that the power of the Legislature in
submitting amendments could not be distinguished from the powers of the
convention, and that, as the people had spoken and ratified the
amendments, they became a part of the Constitution.
"In Westinghausen v. People, 44 Mich. 265, 6 N.W. 641, it was held that
prior to 1876 a proposed amendment to the Constitution could not be
submitted to the people at any other than a general election; but, as the
amendment under consideration had been submitted after the Constitution
had been changed, it had been legally submitted and adopted.
"In State v. Powell, 77 Miss. 543, 27 South. 927, the question whether an
amendment to the Constitution had been legally submitted and adopted by
the people was held to be judicial, and not political, in its nature. The
amendment under consideration changed the Constitution by providing for
an elective, instead of an appointive, judiciary. It was contended that the
amendments had been improperly submitted, and not adopted by a majority
of the qualified voters voting at the election, as required by the Constitution.
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The law did not direct how the result of the election should be determined.
The Legislature by joint resolution recited that the election had been duly
held throughout the state, and, as it appeared from the returns made to the
Secretary of State, that 21,169 votes were cast in favor of, and 8,643 votes
against, the amendment, it resolved 'that said amendment be, and hereby is,
inserted into the Constitution of the state of Mississippi as a part of the
Constitution.' In fact, the amendment was not submitted in the manner
prescribed by the Constitution, and it did not receive a majority of all the
qualified voters voting at the election. It was argued that the rules prescribed
by the Constitution 'are all for the guidance of the Legislature, and from the
very nature of the thing the Legislature must be the exclusive judge of all
questions to be measured or determined by these rules. Whether the
question be political, and certainly a legislative one, or judicial, to be
determined by the courts, this section of rules, not only of procedure, but of
final judgment as well, confides to the separate magistracy of the legislative
department full power to hear, consider, and adjudge that question. The
Legislature puts the question to the qualified electors. The qualified electors
answer back to the Legislature. "If it shall appear" to the Legislature that its
question has been answered in the affirmative, the amendment is inserted
and made a part of the Constitution. The Governor and the courts have no
authority to speak at any stage of the proceedings between the sovereign
and the Legislature, and when the matter is thus concluded it is closed, and
the judiciary is as powerless to interfere as the executive.' But it was held
that the question whether the proposition submitted to the voters constituted
one, or more than one, amendment, whether the submission was according
to the requirements of the Constitution, and whether the proposition was in
fact adopted, were all judicial, and not political, questions. 'We do not,' said
Chief Justice Whitfield, 'seek a jurisdiction not imposed upon us by the
Constitution. We could not, if we would, escape the exercise of that
jurisdiction which the Constitution has imposed upon us. In the particular
instance in which we are now acting, our duty to know what the Constitution
of the state is, and in accordance with our oaths to support and maintain it in
its integrity, imposed on us a most difficult and embarrassing duty, one which
we have not sought, but one which, like all others, must be discharged.'
"In Bott v. Wurtz, 63 N.J. Law, 289, 43 Atl. 744, 881, 46 L.R.A. 251, it was
held that it was the duty of the judicial department of the government to
determine whether the legislative department or its officers had observed the
constitutional injunctions in attempting to amend the Constitution, and to
annul their acts if they had not done so. The case is an interesting and wellconsidered one. The Constitution provided the manner in which proposed
amendments should be submitted to the people, but did not provide a
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method for canvassing the votes. The Legislature, having agreed to certain
proposed amendments, passed an act for submitting the same to the people.
This statute provided for the transmission to the Secretary of State of
certificates showing the result of the voting throughout the state, and made it
the duty of the Governor at the designated time to summon four or more
Senators, who, with the Governor, should constitute a board of state
canvassers to canvass and estimate the votes for and against each
amendment. This board was to determine and declare which of the proposed
amendments had been adopted and to deliver a statement of the results to
the Secretary of State, and 'any proposed amendment, which by said
certificate and determination of the board of canvassers shall appear to have
received in its favor the majority of all the votes cast in the state for and
against said proposed amendment, shall from the time of filing such
certificate be and become an amendment to and a part of the Constitution of
the state; and it shall be the duty of the Governor of the state forthwith, after
such a determination, to issue a proclamation declaring which of the said
proposed amendments have been adopted by the people.' This board was
required to file a statement of the result of the election, and the Governor to
issue his proclamation declaring that the amendment had been adopted and
become a part of the Constitution. At the instance of a taxpayer the Supreme
Court allowed a writ of certiorari to remove into the court for review the
statement of the results of the election made by the canvassing board, in
order that it might be judicially determined whether on the facts shown in that
statement the board had legally determined that the proposed amendment
had been adopted. The Supreme Court decided that the concurrence of the
board of state canvassers and the executive department of the government
in their respective official functions placed the subject-matter beyond the
cognizance of the judicial department of the state. The Court of Appeals,
after a full review of the authorities, reversed this decision, and held that the
questions were of a judicial nature, and properly determinable by the court
on their merits. Mr. Justice Dixon, after stating the facts, said: 'It thus
becomes manifest that there was present in the Supreme Court, and is now
pending in this court, every element tending to maintain jurisdiction over the
subject-matter, unless it be true, as insisted, that the judicial department of
the government has not the right to consider whether the legislative
department and its agencies have observed constitutional injunctions in
attempting to amend the Constitution, and to annul their acts in case that
they have not done so. That such a proposition is not true seems to be
indicated by the whole history of jurisprudence in this country.' The court,
after considering the case on the merits, held that the proper conclusion had
been drawn therefrom, and that the amendment in question was legally
submitted and adopted.
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"The recent case of Rice v. Palmer, 78 Ark. 432, 96 S.W. 396, presented the
identical question which we have under consideration. In reference to the
contention that the Constitution intended to delegate to the Speaker of the
House of Representatives the power to determine whether an amendment
had been adopted, and that the question was political, and not judicial, the
court observed: 'The argument has often been made in similar cases to the
courts, and it is found in many dissenting opinions; but, with probably a few
exceptions, it is not found in any prevailing opinion.'
"In State v. Tooker, 15 Mont. 8, 37 Pac. 840, 25 L.R.A. 560, it was held that
the constitutional requirement of publication of a proposed constitutional
provision for three months prior to the election at which it is to be submitted
to the people is mandatory and that noncompliance therewith renders the
adoption of an amendment of no effect."
ANNEX B
MALACAANG
MANILA
BY THE PRESIDENT OF THE PHILIPPINES
PRESIDENTIAL DECREE NO. 86-B
Defining Further the Role of Barangays (Citizens Assemblies)
WHEREAS, since their creation pursuant to Presidential Decree No. 86
dated December 31, 1972, the Barangays (Citizens Assemblies) have
petitioned the Office of the President to submit to them for resolution
important national issues;
WHEREAS, one of the questions persistently mentioned refers to the
ratification of the Constitution proposed by the 1971 Constitutional
Convention;
WHEREAS, on the basis of the said petitions, it is evident that the people
believe that the submission of the proposed Constitution to the Citizens
Assemblies or Barangays should be taken as a plebiscite in itself in view of
the fact that freedom of debate has always been limited to the leadership in
political, economic and social fields, and that it is now necessary to bring this
down to the level of the people themselves through the Barangays or
Citizens Assemblies;
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the
Philippines, by virtue of the powers in me vested by the Constitution, do
hereby order that important national issues shall from time to time be
referred to the Barangays (Citizens Assemblies) for resolution in accordance
with Presidential Decree No. 86-A dated January 5, 1973 and that the initial
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referendum shall include the matter of ratification of the Constitution

proposed by the 1971 Constitutional Convention.
The Secretary of the Department of Local Government and Community
Development shall insure the implementation of this Order.
Done in the City of Manila, this 7th day of January in the year of Our Lord,
nineteen hundred and seventy-three.
(SGD.) FERDINAND E. MARCOS
By the President:
(SGD.) ALEJANDRO MELCHOR
Executive Secretary

MAKALINTAL and CASTRO, JJ.:

The preliminary question before this Court was whether or not the
petitioners had made out a sufficient prima facie case in their petitions to
justify their being given due course. Considering on the one hand the
urgency of the matter and on the other hand its transcendental
importance, which suggested the need for hearing the side of the
respondents before that preliminary question was resolved, We required
them to submit their comments on the petitions. After the comments were
filed We considered them as motions to dismiss so that they could be
orally argued. As it turned out, the hearing lasted five days, morning and
afternoon, and could not have been more exhaustive if the petitions had
been given due course from the beginning.
The major thrust of the petitions is that the act of the Citizens Assemblies as
certified and proclaimed by the President on January 17, 1973 (Proclamation
No 1102) was not an act of ratification, let alone a valid one, of the proposed
Constitution, because it was not in accordance with the existing Constitution
(of 1935) and the Election Code of 1971. Other grounds are relied upon by
the petitioners in support of their basic proposition, but to our mind they are
merely subordinate and peripheral.
Article XV, Section 1, of the 1935 Constitution provides that amendments
(proposed either by Congress in joint session or by a Convention called by it
for the purpose) "shall be valid as part of this Constitution when approved by
a majority of the votes cast at an election at which the amendments are
submitted to the people for their ratification." At the time that Constitution
was approved by the Constitutional Convention on February 8, 1935, and
ratified in a plebiscite held on the following May 14, the word "election" had
already a definite meaning in our law and jurisprudence. It was not a vague
and amorphous concept, but a procedure prescribed by statute for
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ascertaining the people's choices 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
Article XV (also in Articles VI and VII), and in accordance with such
procedure that plebiscites were held to ratify the very same Constitution in
1935 as well as the subsequent amendments thereto, thus: in 1939
(Ordinance appended to the Constitution); 1940 (establishment of a
bicameral legislature; eligibility of the President and the Vice President for re
election: creation of the Commission of Elections); 1947 (Parity
Amendment); and 1967 (increase in membership of the House of
Representatives and eligibility of members of Congress to run for the
Constitutional Convention without forfeiture of their offices).
The Election Code of 1971, in its Section 2, states that "all elections of public
officers except barrio officials and plebiscites shall be conducted in the
manner provided by this Code." This is a statutory requirement designed, as
were the other election laws previously in force, to carry out the constitutional
mandate relative to the exercise of the right of suffrage, and with specific
reference to the term "plebiscites," the provision of Article XV regarding
ratification of constitutional amendments.
The manner of conducting elections and plebiscites provided by the Code is
spelled out in other sections thereof. Section 99 requires that qualified voters
be registered in a permanent list, the qualifications being those set forth in
Article V, Section 1, of the 1935 Constitution on the basis of age (21), literacy
and residence. These qualifications are reiterated in Section 101 of the
Election Code. Section 102 enumerates the classes of persons disqualified
to vote. Succeeding sections prescribe the election paraphernalia to be
used, the procedure for registering voters, the records of registration and the
custody thereof, the description and printing of official ballots, the actual
casting of votes and their subsequent counting by the boards of inspectors,
the rules for appreciation of ballots, and then the canvass and proclamation
of the results.
With specific reference to the ratification of the 1972 draft Constitution,
several additional circumstances should be considered:
(1)This draft was prepared and approved by a Convention which had been
convened pursuant to Resolution No. 2 passed by Congress on March 16,
1967, which provides:
"Sec. 7.The amendments proposed by the Convention
shall be valid and considered part of the Constitution when
approved by a majority of the votes cast in an election at

which they are submitted to the people for their ratification

pursuant to Article XV of the Constitution."

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

"Sec. 16.This Constitution shall take effect immediately upon its
ratification by a majority of the votes cast in a plebiscite called for
the purpose and, except as herein provided, shall supersede the
Constitution of nineteen hundred and thirty-five and all
amendments thereto."

The same procedure is prescribed in Article XVI, Section 2, for the

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

years and was approved by the Convention for submission to a plebiscite

ahead of and separately from other amendments still being or to be
considered by it, so as to enable the youth to be thus enfranchised to
participate in the plebiscite for the ratification of such other amendments
later. This Court held that such separate submission was violative of Article
XV, Section 1, of the Constitution, which contemplated that "all the
amendments to be proposed by the same Convention must be submitted to
the people in a single 'election' or plebiscite." * Thus a grammatical
construction based on a singular, instead of plural, rendition of the word
"election" was considered a sufficient ground to rule out the plebiscite which
had been called to ratify a proposed amendment in accordance with the
procedure and under all the safeguards provided in the Election Law.
In the cases now before Us what is at issue is not merely the ratification of
just one amendment, as in Tolentino vs. COMELEC, but the ratification of an
entire charter setting up a new form of government; and the issue has arisen
not because of a disputed construction of one word or one provision in the
1935 Constitution but because no election or plebiscite in accordance with
that Constitution and with the Election Code of 1971 was held for the
purpose of such ratification.
The Citizens Assemblies which purportedly ratified the draft Constitution
were created by Presidential Decree No. 86 dated December 31, 1972, "to
broaden the base of citizen participation in the democratic process and to
afford ample opportunities for the citizenry to express their views on
important national issues." The Assemblies "shall consist of all persons who
are residents of the barrio, district or ward for at least six months, fifteen
years of age or over, citizens of the Philippines and who are registered in the
lists of Citizen Assembly members kept by the barrio, district or ward
secretary." By Presidential Decree No. 86-A, dated January 5, 1973, the
Assemblies were convened for a referendum between January 10 and 15, to
"consider vital national issues now confronting the country, like the holding of
the plebiscite on the new Constitution, the continuation of martial rule, the
convening of Congress on January 22, 1973, and the holding of elections in
November 1973."
On January 5, 1973 the newspapers came out with a list of four questions to
be submitted to the Citizens Assemblies, the fourth one being as follows:
"How soon would you like the plebiscite on the new Constitution to be held?"
It should be noted in this connection that the President had previously
announced that he had ordered the postponement of the plebiscite which he
had called for January 15, 1973 (Presidential Decree No. 73) for the
ratification of the draft Constitution, and that he was considering two new
dates for the purpose February 19 or March 5; that he had ordered that
the registration of voters (pursuant to Decree No. 73) be extended to
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accommodate new voters; and that copies 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 four which were to be submitted to the Citizens Assemblies.
The question concerning the plebiscite was reworded as follows: "Do yon like
the plebiscite to be held later?" The implication, it may likewise be noted,
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 decide issues of national interest?
"(2)Do you approve of the new Constitution?
"(3)Do you want a plebiscite to be called to ratify the new
Constitution?
"(4)Do you want the elections to be held in November, 1973 in
accordance with the provisions of the 1935 Constitution?
"(5)If the elections would not be held, when do you want the next
elections to be called?
"(6)Do you want martial law to continue?" [Bulletin Today, January
11, 1973: italics supplied].

Appended to the six additional questions above quoted were the suggested
answers, thus:
"COMMENTS ON
QUESTION No. 1
In order to broaden the base of citizens' participation
in government.
QUESTION No. 2
But we do not want the Ad Interim Assembly to be
convoked. Or if it is to be convened at all, it should not
be done so until after at least seven (7) years from the
approval of the New Constitution by the Citizens
Assemblies.
QUESTION No. 3
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If the Citizens Assemblies approve of the New

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

So it was that on January 11, 1973, the second day of the purported
referendum, the suggestion was broached, for the first time, that the
plebiscite should be done away with and a favorable vote by the Assemblies
deemed equivalent to ratification. This was done, not in the questionnaire
itself, but in the suggested answer to question No. 3. Strangely, however, it
was not similarly suggested that an unfavorable vote be considered as
rejection.
There should be no serious dispute as to the fact that the manner in which
the voting was conducted in the Citizens' Assemblies, assuming that such
voting was held, was not within the intendment of Article XV, Section 1, of
the 1935 Constitution nor in accordance with the Election Code of 1971. The
referendum can by no means be considered as the plebiscite contemplated
in Section 2 of said Code and in Article XVII, Section 16, of the draft
Constitution itself, or as the election intended by Congress when it passed
Resolution No. 2 on March 16, 1967 calling a Convention for the revision of
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the 1935 Constitution. The Citizens Assemblies were not limited to qualified,
let alone registered, voters, but included all citizens from the age of fifteen,
and regardless of whether or not they were illiterates, feeble-minded, or exconvicts * these being the classes of persons expressly disqualified from
voting by Section 102 of the Election Code. In short, the constitutional and
statutory qualifications were not considered in the determination of who
should participate. No official ballots were used in the voting; it was done
mostly by acclamation or open show of hands. Secrecy, which is one of the
essential features of the election process, was not therefore observed. No
set of rules for counting the votes or of tabulating them and reporting the
figures was prescribed or followed. The Commission on Elections, which is
the constitutional body charged with the enforcement and administration of
all laws relative to the conduct of elections, took no part at all, either by way
of supervision or in the assessment of the results.
It has been suggested that since according to Proclamation No. 1102 the
overwhelming majority of all the members of the Citizens Assemblies had
voted for the adoption of the proposed Constitution there was a substantial
compliance with Article XV, Section 1, of the 1935 Constitution and with the
Election Code of 1971. The suggestion misses the point entirely. It is of the
essence of a valid exercise of the right of suffrage that not only must a
majority or plurality of the voters carry the day but that the same must be
duly ascertained in accordance with the procedure prescribed by law. In
other words the very existence of such majority or plurality depends upon the
manner of its ascertainment, and to conclude that it exists even if it has not
been ascertained according to law is simply to beg the issue, or to assume
the very fact to be established. Otherwise no election or plebiscite could be
questioned for non-compliance with the provisions of the Election Law as
long as it is certified that a majority of the citizens had voted favorably or
adversely on whatever it was that was submitted to them to vote upon.
However, a finding that the ratification of the draft Constitution by the
Citizens Assemblies, as certified by the President in Proclamation No. 1102,
was not in accordance with the constitutional and statutory procedure laid
down for the purpose does not quite resolve the questions raised in these
cases. Such a finding, in our opinion, is on a matter which is essentially
justiciable, that is, within the power of this Court to inquire into. It imports
nothing more than a simple reading and application of the pertinent
provisions of the 1935 Constitution, of the Election Code and of other related
laws and official acts. No question of wisdom or of policy is involved. But
from this finding it does not necessarily follow that this Court may justifiably
declare that the Constitution has not become. effective, and for that reason
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give due course to these petitions or grant the writs herein prayed for. The
effectivity of the said Constitution, in the final analysis, is the basic and
ultimate question posed by these cases, to resolve which considerations
other than judicial, and therefore beyond the competence of this Court, are
relevant and unavoidable.
Several theories have been advanced respectively by the parties. The
petitioners lay stress on the invalidity of the ratification process adopted by
the Citizens Assemblies and on that premise would have this Court grant the
reliefs they seek. The respondents represented by the Solicitor General,
whose theory may be taken as the official position of the Government,
challenge the jurisdiction of this Court on the ground that the questions
raised in the petitions are political and therefore non-justiciable, and that in
any case popular acquiescence in the new Constitution and the prospect of
unsettling acts done in reliance thereon should caution against interposition
of the power of judicial review. Respondents Gil J. Puyat and Jose Roy (in L
36165) in their respective capacities as President and President Pro
Tempore of the Senate of the Philippines, and through their counsel, Senator
Arturo Tolentino, likewise invoke the political question doctrine, but on a
ground not concurred in by the Solicitor General, namely, that "the approval
of the 1973 Constitution by the people was made under a revolutionary
government, in the course of a successful political revolution, which was
converted by act of the people to the present de jure government under the
1973 Constitution."
Heretofore, constitutional disputes which have come before this Court for
adjudication proceeded on the assumption, conceded by all, that the
Constitution was in full force and effect, with the power and authority of the
entire Government behind it; and the task of this Court was simply to
determine whether or not the particular act or statute that was being
challenged contravened some rule or mandate of that Constitution. The
process employed was one of interpretation and synthesis. In the cases at
bar there is no such assumption: the Constitution (1935) has been derogated
and its continued existence as well as the validity of the act of derogation is
the issue. The legal problem posed by the situation is aggravated by the fact
that the political arms of the Government the Executive Departments and
the two Houses of Congress have accepted the new Constitution as
effective: the former by organizing themselves and discharging their
functions under it, and the latter by convening on January 22, 1973 or at any
time thereafter, as ordained by the 1935 Constitution, and in the case of a
majority of the members by expressing their option to serve in the Interim
National Assembly in accordance with Article XVII, Section 2, of the 1973
Constitution. *
The theory advanced by Senator Tolentino, as counsel for respondents
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Puyat and Roy, may be taken up and restated at some length if only
because it would constitute, if sustained, the most convenient ground for the
invocation of the political-question doctrine. In support of his theory, Senator
Tolentino contends that after President Marcos declared martial law on
September 21, 1972 (Proclamation No. 1081) he established a revolutionary
government when he issued General Order No. 1 the next day, wherein he
proclaimed "that I shall govern the nation and direct the operation of the
entire government, including all its agencies and instrumentalities, in my
capacity, and shall exercise all the powers and prerogatives appurtenant and
incident to my position as such Commander-in-Chief of all the Armed Forces
of the Philippines." By this order, it is pointed out, the Commander-in-Chief of
the Armed Forces assumed all the powers of government executive,
legislative, and judicial; and thereafter proceeded to exercise such powers by
a series of Orders and Decrees which amounted to legislative enactments
not justified under martial law and, in some instances, trenched upon the
domain of the judiciary, by removing from its jurisdiction certain classes of
cases, such as "those involving the validity, legality, or constitutionality of
Proclamation No. 1081, or of any decree, order or act issued, promulgated or
performed by me or by my duly designated representative pursuant thereto."
(General Order No. 3 as amended by General Order No. 3-A, dated
September 24, 1972.) The ratification by the Citizens Assemblies, it is
averred, was the culminating act of the revolution, which thereupon
converted the government into a de jure one under the 1973 Constitution.
If indeed it be accepted that the Citizens Assemblies had ratified the 1973
Constitution and that such ratification as well as the establishment of the
government thereunder formed part of a revolution, albeit peaceful, then the
issue of whether or not that Constitution has become effective and, as a
necessary corollary, whether or not the government legitimately functions
under it instead of under the 1935 Constitution, is political and therefore nonjudicial in nature. Under such a postulate what the people did in the Citizens
Assemblies should be taken as an exercise of the ultimate sovereign power.
If they had risen up in arms and by force deposed the then existing
government and set up a new government in its place, there could not be the
least doubt that their act would be political and not subject to judicial review
but only to the judgment of the same body politic act, in the context just set
forth, is based on realities. If a new government gains authority and
dominance through force, it can be effectively challenged only by a stronger
force; no judicial dictum can prevail against it. We do not see that the
situation would be any different, as far as the doctrine of judicial review is
concerned, if no force had been resorted to and the people, in defiance of
the existing Constitution not peacefully because of the absence of any
appreciable opposition, ordained a new Constitution and succeeded in
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having the government operate under it. Against such a reality there can be
no adequate judicial relief; and so courts forbear to take cognizance of the
question but leave it to be decided through political means.
The logic of the political-question doctrine is illustrated in a statement of the
U.S. Supreme Court in a case relied upon, curiously enough, by the Solicitor
General, who disagrees with the revolutionary government theory of Senator
Tolentino. The case involved the issue of which of two opposing
governments struggling for supremacy in the State of Rhode Island was the
lawful one. The issue had previously come up in several other cases before
the courts of the State, which uniformly held that the inquiry belonged to the
political power and not to the judicial. Commenting on the ruling thus arrived
at, the U.S. Supreme Court said: "And if a State court should enter upon the
inquiry proposed in this case, and should come to the conclusion that the
government under which it acted had been put aside and displaced by an
opposing government, it would cease to be a court, and incapable of
pronouncing a judicial decision upon the question it undertook to try. If it
decides at all as a court, it necessarily affirms the existence and authority of
the government under which it is exercising judicial power." In other words,
since the court would have no choice but to decide in one way alone in order
to be able to decide at all, the question could not be considered proper for
judicial determination.
It should be noted that the above statement from Luther vs. Borden would be
applicable in the cases at bar only on the premise that the ratification of the
Constitution was a revolutionary act and that the government now
functioning under it is the product of such revolution. However, we are not
prepared to agree that the premise is justified.
In the first place, with specific reference to the questioned ratification, several
significant circumstances may be noted. (1) The Citizens Assemblies were
created, according to Presidential Decree No. 86, "to broaden the base of
citizen participation in the democratic process and to afford ample
opportunities for the citizenry to express their views on important national
issues." (2) The President announced, according to the Daily Express of
January 2, 1973, that "the referendum will be in the nature of a loose
consultation with the people." (3) The question, as submitted to them on the
particular point at issue here, was "Do you approve of the Constitution?" (4)
President Marcos, in proclaiming that the Constitution had been ratified,
stated as follows: "(S)ince the referendum results show that more than
ninety-five (95) per cent of the members of the Barangays (Citizens
Assemblies) are in favor of the new Constitution, the Katipunan ng mga
Barangay has strongly recommended that the new Constitution should
already be deemed ratified by the Filipino people." (5) There was not enough
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time for the Citizens Assemblies to really familiarize themselves with the
Constitution, much less with the many other subjects that were submitted to
them. In fact the plebiscite planned for January 15, 1973 under Presidential
Decree No. 73 had been postponed to an indefinite date, the reasons for the
postponement being, as attributed to the President in the newspapers, that
"there was little time to campaign for or against ratification" (Daily Express,
Dec. 22, 1972); that he would base his decision (as to the date of the
plebiscite) on the compliance by the Commission (on Elections) on the
publication requirement of the new Charter and on the position taken by
national leaders" (Daily Express, Dec. 23, 1972); and that "the postponement
would give us more time to debate on the merits of the Charter." (Bulletin
Today, Dec. 24, 1972.)
The circumstances above enumerated lead us to the conclusion that the
Citizens Assemblies could not have understood the referendum to be for the
ratification of the Constitution, but only for the expression of their views on a
consultative basis. Indeed, if the expression of those views had been
intended as an act of ratification (or of rejection as a logical corollary)
there would have been no need for the Katipunan ng mga Barangay to
recommend that the Constitution should already be deemed ratified, for
recommendation imports recognition of some higher authority in whom the
final decision rests.
But then the President, pursuant to such recommendation, did proclaim that
the Constitution had been ratified and had come into effect. The more
relevant consideration, therefore, as far as we can see, should be as to what
the President had in mind in convening the Citizens Assemblies, submitting
the Constitution to them and proclaiming that the favorable expression of
their views was an act of ratification. In this respect subjective factors, which
defy judicial analysis and adjudication, are necessarily involved.
In positing the problem within an identifiable frame of reference we find no
need to consider whether or not the regime established by President Marcos
since he declared martial law and under which the new Constitution was
submitted to the Citizens Assemblies was a revolutionary one. The pivotal
question is rather whether or not the effectivity of the said Constitution by
virtue of Presidential Proclamation No. 1102, upon the recommendation of
the Katipunan ng mga Barangay, was intended to be definite and
irrevocable, regardless of non-compliance with the pertinent constitutional
and statutory provisions prescribing the procedure for ratification. We must
confess that after considering all the available evidence and all the relevant
circumstances we have found no reasonably reliable answer to the question.
On one hand we read, for instance, the following public statements of the
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President:
Speaking about the proclamation of martial law, he said:
"I reiterate what I have said in the past: there is no turning back for
our people.
"We have committed ourselves to this revolution. We have
pledged to it our future, our fortunes, our lives, our destiny. We
have burned our bridges behind us. Let no man misunderstand
the strength of our resolution." (A Report to the National, Jan. 7,
1913.)

On the occasion of the signing of Proclamation No. 1102 on January 17,

1973, President said the following, among other things:
". . . We can, perhaps delimit the power of the people to speak on
legal matters, on justiciable matters, on matters that may come
before the experts and interpreters of the law. But we cannot
disqualify the people from speaking on what we and the people
consider purely political matters especially those that affect the
fundamental law of the land.
". . . The political questions that were presented to the people are
exactly those that refer to the form of government which the
people want . . . The implications of disregarding the people's will
are too awesome to be even considered. For if any power in
government should even dare to disregard the people's will there
would be valid ground for revolt."
". . . Let it be known to everybody that the people have spoken
and they will no longer tolerate any attempt to undermine the
stability of their Republic; they will rise up in arms not in revolt
against the Republic but in protection of the Republic which they
have installed. It is quite clear when the people say, we ratify the
Constitution, that they mean they will not discard, the
Constitution."

On January 19, 1973 the Daily Express published a statement of the

President made the day before, from which the following portion is quoted:
". . . the times are too grave and the stakes too high for us to
permit the customary concessions to traditional democratic
process to hold back our people's clear and unequivocal resolve
and mandate to meet and overcome the extraordinary challenges
presented by these extraordinary times."

On the same occasion of the signing of Proclamation No. 1102 the President
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made pointed reference to "the demand of some of our citizens . . . that

when all other measures should fail, that the President be directed to
organize and establish a Revolutionary Government," but in the next breath
added: ". . . if we do ratify the Constitution how can we speak of a
Revolutionary Government? They cannot be compatible . . ." "(I)t is my
feeling," he said, "that the Citizens' Assemblies which submitted this
recommendation merely sought to articulate their impatience with the status
quo that has brought about anarchy, confusion and misery to the masses . .
." The only alternatives which the President clearly implied by the foregoing
statements were the ratification of the new Constitution and the
establishment of a revolutionary government, the latter being unnecessary,
in his opinion, because precisely the Constitution had been ratified. The third
obvious alternative was entirely ruled out, namely, a return to the 1935
Constitution, for it was the status quo under that Constitution that had
caused "anarchy, confusion and misery." The message seems clear: rather
than return to such status quo, he would need the recommendation of the
Citizens' Assemblies to establish a revolutionary government, because that
would be the only other way to carry out the reforms he had envisioned and
initiated reforms which, in all fairness and honesty, must be given credit
for the improved quality of life in its many aspects, except only in the field of
civil liberties.
If there is any significance, both explicit and implicit, and certainly
unmistakable, in the foregoing pronouncements, it is that the step taken in
connection with the ratification of the Constitution was meant to be
irreversible, and that nothing anyone could say would make the least
difference. And if this is a correct and accurate assessment of the situation,
then we would say that since it has been brought about by political action
and is now maintained by the government that is in undisputed authority and
dominance, the matter lies beyond the power of judicial review.
On the other hand, by avowals no less significant if not so emphatic in terms,
President Marcos has professed fealty to the Constitution. In "Today's
Revolution: Democracy" he says:
"I believe, therefore, in the necessity of Revolution as an
instrument of individual and social change . . . but that in a
democratic society, revolution is of necessity, constitutional,
peaceful, and legal."

In his TV address of September 23, 1972, President Marcos told the nation:
"I have proclaimed martial law in accordance with the powers
vested in the President by the Constitution of the Philippines.
"xxx xxx xxx
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"I repeat, this is not a military takeover of civil government

functions. The Government of the Republic of the Philippines
which was established by our people in 1946 continues.
"xxx xxx xxx
"I assure you that I am utilizing this power vested in me by the
Constitution to save the Republic and reform our society . . .
"I have had to use this constitutional power in order that we may
not completely lose the civil rights and freedom which we cherish .
..
". . . We are against the wall. We must now defend the Republic
with the stronger powers of the Constitution."
(Vital Documents, pp. 1-12; italics supplied)

In the report of an interview granted by the President to the Newsweek

Magazine (published in the issue of January 29, 1973), the following
appears:
"xxx xxx xxx
"Q.Now that you have gotten off the constitutional track,
won't you be in serious trouble if you run into critical
problems with your programs?
"A.I have never gotten off the constitutional track. Everything
I am doing is in accordance with the 1930
Constitution. The only thing is that instead of 18 year
olds voting, we have allowed 15-year-olds the night to
vote. But the 15-year-olds of today are high school
students, if not graduates, and they are better
informed than my contemporaries at that age. On the
matter of whether it is constitutional to proclaim martial
law, it is constitutional because the Constitution
provides for it in the event of invasion, insurrection,
rebellion or immediate danger thereof. We may
quarrel about whether what we have gone through is
sufficient cause to proclaim martial law but at the very
least there is a danger of rebellion because so many
of our soldiers have been killed. You must remember
this (martial law provision) was lifted from the
American legislation that was the fundamental law of
our country.
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"xxx xxx xxx"

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

Separate Opinions
BARREDO, J.:
As far as I am concerned, I regard the present petitions as no more
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than mere reiterations of the Supplemental Petitions filed by Counsel

Lorenzo M. Taada on January 15, 1973 in the so called Plebiscite Cases
decided by this Court on January 22, 1973. Of course, there are
amplifications of some of the grounds previously alleged, and in the
course of the unprecedented five day hearing that was held from
February 12 to 16 last, more extensive and illuminating arguments were
heard by Us, but, in my estimation, and with due recognition of the
sincerity, brilliance and eloquence of counsels, nothing more cogent and
compelling than what had already been previously presented by Counsel
Taada is before Us now. Accordingly, I cannot see any reason why I
should change the position I took in regard to the earlier cases. I reiterate,
therefore, the vote I cast when these petitions were initially considered by
the Court, namely, to dismiss them.
In view, however, of the transcendental importance of the issues before the
Court and the significance to our people and in history of the individual
stands of the members of the Court in relation to said issues and to the final
outcome of these cases, and considering that I reserved before the filing of a
more extended opinion, I will take this opportunity to explain further why I
hold that the 1973 Constitution is already in force, if only to clarify that apart
from the people's right of revolution to which I made pointed reference in my
previous opinion, r can see now, after further reflection, that the vote of the
people in the referendum in the Citizens Assemblies held on January 10 to
15, 1973, upon the result of which Proclamation 1102 is based, may be
viewed more importantly as a political act than as a purely legal one, with the
result that such vote to consider the 1973 Constitution as ratified without the
necessity of holding a plebiscite in the form followed in the previous
ratification plebiscites in 1935 of the Constitution itself, 1937 of women's
suffrage, 1939 of the amendments to the Ordinance Appended to the
Constitution, 1940 of the reelection of the President, the bicameral
legislature and the Commission on Elections, 1947 of the parity amendments
and 1967, rejecting the proposed increase in the members of the House of
Representatives and eligibility of members of Congress to the Constitutional
Convention, may be deemed as a valid ratification substantially in
compliance with the basic intent of Article XV of the 1935 Constitution. If
indeed this explanation may be considered as a modification of my
rationalization then, I wish to emphasize that my position as to the
fundamental issue regarding the enforceability of the new Constitution is
even firmer now than ever before. As I shall elucidate anon, paramount
considerations of national import have led me to the conviction that the best
interests of all concerned would be best served by the Supreme Court
holding that the 1973 Constitution is now in force, not necessarily as a
consequence of the revolutionary concept previously suggested by me, but
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upon the ground that as a political, more than as a legal, act of the people,
the result of the referendum may be construed as a compliance with the
substantiality of Article XV of the 1935 Constitution.
I.
The facts that gave rise to these proceedings are historical and well known.
Generally, they may be taken judicial notice of. They revolve around the
purported ratification of the Constitution of 1973 declared in Proclamation
1102 issued by the President on January 17, 1973.
Pursuant to a joint resolution of the Congress sitting as a constituent
assembly approved on March 16, 1967, delegates to a constitutional
convention to propose amendments to the Constitution of 1935 were elected
in accordance with the implementing law, Republic Act 6132, on November
10, 1970. Known as the Constitutional Convention of 1971, the assembly
began its sessions on June 1, 1971. After encountering a lot of difficulties,
due to bitter rivalries over important positions and committees and an
incomprehensible fear of overconcentrating powers in their officers, the
delegates went about their work in comparatively slow pace, and by the third
quarter of 1972 had finished deliberations and second-reading voting only on
an insignificant number of proposals until September 21, 1972, when the
President, not altogether unexpectedly, yet abruptly, issued Proclamation
1081 declaring martial law throughout the country. An attempt was made to
have the Convention recessed until after the lifting of martial law, and not
long after the motion of Delegate Kalaw to such effect was turned down, the
activities within the assembly shifted to high gear. As if unmindful of the
arrest and continued detention of several of its members, the convention
gathered swift momentum in its work, and on November 30, 1972, it
approved by overwhelming vote the draft of a complete constitution, instead
of mere specific amendments of particular portions of the Constitution of
1935. Needless to say, before martial law was declared, there was full and
unlimited coverage of the workings in the convention by the mass media. At
the same time, public debates and discussions on various aspects of
proposed amendments were not uncommon.
Earlier, on November 22, 1972, the Convention had approved Resolution
No. 5843 proposing "to President Ferdinand E. Marcos that a decree be
issued calling a plebiscite for the ratification of the proposed new
Constitution on such appropriate date as he shall determine and providing
for the necessary funds there for." Acting under this authority, on December
1, 1972, the President issued Presidential Decree No. 73 submitting the draft
constitution for ratification by the people at a plebiscite set for January 15,
1973. This order contained provisions more or less similar to the plebiscite
laws passed by Congress relative to the past plebiscites held in connection
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with previous proposed amendments.

In connection with the plebiscite thus contemplated, General Order No. 17
was issued ordering and enjoining the authorities to allow and encourage
public and free discussions on the proposed constitution. Not only this,
subsequently, under date of December 17, 1972, the President ordered the
suspension of the effects of martial law and lifted the suspension of the
privilege of the writ of habeas corpus insofar as activities connected with the
ratification of the draft constitution were concerned. These two orders were
not, however, to last very long. On January 7, 1973, the President, invoking
information related to him that the area of public debate and discussion he
had opened by his previous orders was being taken advantage of by
subversive elements to defeat the purposes for which they were issued and
to foment public confusion, withdrew said orders and enjoined full and
stricter implementation of martial law.
In the meantime, the President had issued on December 31, 1972
Presidential Decree No. 86 creating Citizens Assemblies "so as to afford
ample opportunities for the citizenry to express their views on important
national issues" and one of the questions presented to said assemblies was:
"Do you like the plebiscite on the proposed Constitution to be held later" So,
in the same order of January 7, 1973, General Order No. 20, the President
ordered, "that the plebiscite scheduled to be held on January 15, 1973, be
postponed until further notice."
In the meanwhile also, on January 5, 1973, the President issued Presidential
Decree No. 86-A providing as follows:
"PRESIDENTIAL DECREE NO. 86-A
STRENGTHENING AND DEFINING THE ROLE OF
BARANGAYS (CITIZENS ASSEMBLIES )
WHEREAS, on the basis of preliminary and initial
reports from the field as gathered from barangays (citizens
assemblies) that have so far been established, the people
would like to decide for themselves questions or issues, both
local and national, affecting their day to day lives and their
future;
WHEREAS, the barangays (citizens assemblies)
would like themselves to be the vehicle for expressing the
views of the people on important national issues;
WHEREAS, such barangays (citizens assemblies)
desire that they be given legal status and due recognition as
constituting the genuine, legitimate and valid expression of
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the popular will; and

WHEREAS, the people would like the citizens
assemblies to conduct immediately a referendum on certain
specified questions such as the ratification of the new
Constitution, continuance of martial law, the convening of
Congress on January 22, 1973, and the elections in
November 1973 pursuant to the 1935 Constitution.
NOW, THEREFORE, I, FERDINAND E. MARCOS,
President of the Philippines, by virtue of the powers vested in
me by the constitution as Commander-in-Chief of all Armed
Forces of the Philippines, do hereby declare as part of the
law of the land the following:
1.The present barangays (citizens assemblies) are
created under Presidential Decree No. 86 dated December
31, 1972, shall constitute the base for citizen participation in
governmental affairs and their collective views shall be
considered in the formulation of national policies or programs
and, wherever practicable, shall be translated into concrete
and specific decision;

2.Such barangays (citizens assemblies) shall consider

vital national issues now confronting the country, like the
holding of the plebiscite on the new Constitution, the
continuation of martial rule, the convening of Congress on
January 22, 1973, and the holding of elections in November
1973, and others in the future, which shall serve as guide or
basis for action or decision by the national government;
3.The barangays (citizens assemblies) shall conduct
between January 10 and 15, 1973, a referendum on
important national issues, including those specified in
paragraph 2 hereof, and submit the results thereof to the
Department of Local Governments and Community
Development immediately thereafter, pursuant to the express
will of the people as reflected in the reports gathered from the
many thousands of barangays (citizens assemblies)
throughout the country.
4.This Decree shall take effect immediately.
Done in the City of Manila, this 5th day of January, in
the year of Our Lord, nineteen hundred and seventy three."
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And on January 7, 1973, this was followed by Presidential Decree No. 86B reading thus:
"PRESIDENTIAL DECREE NO. 86-B
DEFINING FURTHER THE ROLE OF BARANGAYS
(CITIZENS ASSEMBLIES)
WHEREAS, since their creation pursuant to
Presidential Decree No. 86 dated December 31, 1972, the
Barangays (Citizens Assemblies) have petitioned the Office
of the President to submit to them for resolution important
national issues;
WHEREAS, one of the questions persistently
mentioned refers to the ratification of the Constitution
proposed by the 1971 Constitutional Convention;
"WHEREAS, on the basis of the said petitions, it is
evident that the people believe that the submission of the
proposed Constitution to the Citizens Assemblies or
Barangays should be taken as a plebiscite in itself in view of
the fact that freedom of debate has always been limited to
the leadership in political, economic and social fields, and
that it is now necessary to bring this down to the level of the
people themselves through the Barangays or Citizens
Assemblies;
NOW THEREFORE, I, FERDINAND E. MARCOS,
President of the Philippines, by virtue of the powers in me
vested by the Constitution, do hereby order that important
national issues shall from time to time be referred to the
Barangays
(Citizens
Assemblies)
for resolution
in
accordance with Presidential Decree No. 86-A dated January
5, 1973 and that the initial referendum shall include the
matter of ratification of the Constitution proposed by the 1971
Constitutional Convention.
The Secretary of the Department of Local
Governments and Community Development shall insure the
implementation of this Order.
Done in the City of Manila, this 7th day of January in
the year of Our Lord, nineteen hundred and seventy three."

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

"(1)Do you like the New Society?
(2)Do you like the reforms under martial law?
"(3)Do you like Congress again to hold sessions?
"(4)Do you like the plebiscite to be held later?
"(5)Do you like the way President Marcos is running
the affairs of the government?."

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

"(1)Do you approve of the citizens assemblies as the
base of popular government to decide issues of national
interests?
(2)Do you approve of the new Constitution ?
(3)Do you want a plebiscite to be called to ratify the
new Constitution?
"(4)Do you want the elections to be held in November,
1973 in accordance with the provisions of the 1935
Constitution?
"(5)If the elections would not be held, when do you
want the next elections to be called?
"(6)Do you want martial law to continue?"

It is not seriously denied that together with the questions, the voters were
furnished "comments" on the 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, the
most relevant of these "comments" were the following:
"COMMENTS ON
QUESTION No. 2
But we do not want the Ad Interim Assembly to be
convoked. Or if it is to be convened at all, it should not
be done so until after at least seven (7) years from the
approval of the New Constitution by the Citizens
Assemblies.
QUESTION No. 3
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The vote of the Citizens Assemblies should already be

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

The Solicitor General claims, and there seems to be no showing otherwise,

that the results of the referendum were determined in the following manner:
"Thereafter, the results of the voting were collated and
sent to the Department of Local Governments. The
transmission of the results was made by telegram, telephone,
the provincial government SSB System in each province
connecting all towns; the SSB communication of the PACD
connecting most provinces; the Department of Public
Information Network System; the Weather Bureau
Communication System connecting provincial capitals and
the National Civil Defense Network connecting all provincial
capitals. The certificates of results were then flown to Manila
to confirm the previous figures received by the
aforementioned means of transmission. The certificates of
results tallied with the previous figures taken with the
exception of few cases of clerical errors.
"The Department adopted a system of regionalizing
the receiving section of the Citizens Assemblies operation at
the Department wherein the identity of the barrio and the
province was immediately given to a staff in charge of each
region. Every afternoon at 2:00 o'clock, the 11 regions
submitted the figures they received from the field to the
central committee to tabulate the returns. The last figures
were tabulated at 12 midnight of January 16, 1973 and early
morning of January 17, 1973 and were then communicated
to the President by the Department of Local Governments."

The development culminated in the issuance by the President of

Proclamation 1102 on January 17, 1978. Said proclamation reads:
"PROCLAMATION
NO.
1102
ANNOUNCING
THE
RATIFICATION BY THE FILIPINO PEOPLE OF THE
CONSTITUTION
PROPOSED
BY
THE
1971
CONSTITUTIONAL CONVENTION.
WHEREAS, the Constitution proposed by the nineteen
hundred seventy-one Constitutional Convention is subject to
ratification by the Filipino people;
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"WHEREAS, Citizens Assemblies were created in

barrios in municipalities and in districts/wards in chartered
cities pursuant to Presidential Decree No. 6, dated December
31, 1972, composed of all persons who are residents of the
barrio, district or ward for at least six months, fifteen years of
age or over, citizens of the Philippines and who are
registered in the list of Citizen Assembly members kept by
the barrio, district or ward secretary;
WHEREAS, the said Citizens Assemblies were
established precisely to broaden the base of citizen
participation in the democratic process and to afford ample
opportunity for the citizenry to express their views on
important national issues;
WHEREAS, responding to the clamor of the people
and pursuant to Presidential Decree No. 86-A, dated January
5, 1973, the following questions were posed before Citizens'
Assemblies or Barangays: Do you approve of the New
Constitution? Do you still want a plebiscite to be called to
ratify the new Constitution?
WHEREAS, fourteen million nine hundred seventy six
thousand five hundred sixty one (14,976,561) members of all
the Barangays (Citizens Assemblies) voted for the adoption
of the proposed Constitution, as against seven hundred fortythree thousand eight hundred sixty nine (743,869) who voted
for its rejection; while on the question as to whether or not
the people would still like a plebiscite to be called to ratify the
new Constitution, fourteen million two hundred ninety eight
thousand eight hundred fourteen (14,298,814) answered that
there was no need for a plebiscite and that the vote of the
Barangays (Citizens Assemblies) should be considered as a
vote in a plebiscite;
WHEREAS, since the referendum results show that
more than ninety five (95) percent of the members of the
Barangays (Citizens Assemblies) are in favor of the New
Constitution, the Katipunan ng Mga Barangay has strongly
recommended that the new Constitution should already be
deemed ratified by the Filipino people;
"NOW, THEREFORE, I, FERDINAND E. MARCOS,
President of the Philippines, by virtue of the powers in me
vested by the Constitution, do hereby certify and proclaim
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that the Constitution proposed by the nineteen hundred and

seventy-one (1971) Constitutional Convention has been
ratified by an overwhelmingly majority of all of the votes cast
by the members of all the Barangays (Citizens Assemblies)
throughout the Philippines, and has thereby come into effect.
IN WITNESS WHEREOF, I have hereunto set my
hand and caused the seal of the Republic of the Philippines
to be affixed.
Done in the City of Manila, this 17th day of January, in
the year of Our Lord, nineteen hundred and seventy-three."

The first attempt to question the steps just enumerated taken by the
President was in the so called Plebiscite Cases, ten in number, which were
filed by different petitioners during the first half of December 1972. 1 Their
common target then was Presidential Decree No. 73, but before the said
cases could be decided, the series of moves tending in effect to make them
moot and academic insofar as they referred exclusively to the said
Presidential Decree began to take shape upon the issuance of Presidential
Decree No. 86-A, quoted above. And when Presidential Decree No. 86-B,
also above quoted, was issued and the six additional questions which were
first publicized on January 11, 1973 were known, together with the
"comments", petitioners sensed that a new and unorthodox procedure was
being adopted to secure approval by the people of the new Constitution,
hence Counsel Taada, not being satisfied with the fate of his urgent motion
for early decision of the above ten cases dated January 12, 1973, filed on
January 15, 1973, his supplemental motion seeking the prohibition against
and injunction of the proceedings going on. Principal objective was to
prevent that the President be furnished the report of the results of the
referendum and thereby disable him from carrying out what petitioners were
apprehensively foreseeing would be done the issuance of some kind of
proclamation, order or decree, declaring that the new Constitution had been
ratified. Reacting swiftly, the Court resolved on the same day, January 15,
which was Monday, to consider the supplemental motion as a supplemental
petition and to require the respondents to answer the same the next
Wednesday, January 17th, before the hour of the hearing of the petition
which was set for 9:30 o'clock in the morning of that day. The details of what
happened that morning form part of the recital of facts in the decision
rendered by this Court in the ten cases on January 22, 1973 and need not be
repeated here. Suffice it to state now that before the hearing could be closed
and while Counsel Taada was still insisting on his payer for preliminary
injunction or restraining order, the Secretary of Justice arrived and personally
handed to the Chief Justice a copy of Proclamation 1102 which had been
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issued at about 11:00 o'clock that same morning. In other words, the valiant
and persistent efforts of petitioners and their counsels were overtaken by
adverse developments, and in the mind of the majority of the members of the
Court, the cases had become academic. For my part, I took the view that
even on the basis of the supplemental petition and the answer thereto filed
by respondents, the Court could already decide on the fundamental issue of
the validity of Proclamation 1102, as Justices Zaldivar, Antonio and Esguerra
also believed, inasmuch as Counsel Taada's pleading and argument had
anticipated its issuance, but the majority felt it was not ready to resolve the
matter, for lack, according to them, of full ventilation, and so, the decision
reserved to petitioners the filing of the "appropriate" cases, evidently, the
present ones.
II.
At the threshold, I find myself confronted by a matter which, although
believed to be inconsequential by my learned brethren, I strongly feel needs
special attention. I refer to the point raised by Counsel Arturo M. Tolentino
for respondents Gil J. Puyat and Jose Roy, who have been sued as
President and President Pro Tempore of the Senate, to the effect that the
change in the composition of the Supreme Court provided for in the 1973
Constitution, from the 11-man tribunal under the 1935 Constitution to a 15man Court, makes of these cases which were filed after January 17, 1973,
the date when Proclamation 1102 declared the new Constitution as ratified,
political in nature and beyond our jurisdiction. The main consideration
submitted in this connection is that inasmuch as the number of votes needed
for a decision of this Court has been increased from six to eight in ordinary
cases and from eight to ten for the declaration of unconstitutionality of a
treaty, executive agreement 2 or law, the Court would have to resolve first as
a prejudicial question whether the Court is acting in these cases as the 15man or the 11-man Court, in which event, it would be faced with the dilemma
that if it acts either as the former or as the latter, it would be prejudging the
very matter in issue one way or the other, and, in effect, it would be choosing
between two constitutions, which is a political determination not within the
Court's competence.
While I agree that the problem is at first blush rather involved, I do not share
the view that the premises laid down by counsel necessarily preclude this
Court from taking a definite stand on whether the Court is acting in these
cases as the 15-man or the 11-man Court. I feel very strongly that the issue
should not be ignored or dodged, if only to make the world know that the
Supreme Court of the Philippines is never incognizant of the capacity in
which it is acting, much less lacking in courage or wisdom to resolve an
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issue that relates directly to its own composition. What a disgrace it would be
to admit that this Supreme Court does not know, to use a common apt
expression, whether it is fish or fowl. Withal, scholars and researchers who
might go over our records in the future will inevitably examine minutely how
each of us voted and upon what considerations we have individually acted,
and, indeed, doubts may arise as to whether or not, despite the general
result we might announce, there had been the requisite number of votes for
a valid collegiate action.
For instance, it may be argued that the present cases do not involve an issue
of unconstitutionality, hence, if we are acting as the 11-man Court, only six
votes would suffice to declare Proclamation 1102 ineffective, and if upon
analysis of our respective opinions it should be inferable therefrom that six of
us have considered the matter before the Court as justiciable and at the
same time have found the procedure of ratification adopted in Presidential
Decrees 86A and 86-B and related orders of the President as not being in
conformity with Article XV of the old Constitution, a cloud would exist as to
the efficacy of the dispositive portion of Our decision dismissing these cases,
even if we have it understood that by the vote of six justices in favor of such
dismissal, We intended to mean that the implementation or enforcement of
the new Constitution now being done could continue
Be that as it may, I am against leaving such an important point open to
speculation. By nature I am averse to ambiguity and equivocation, and as a
member of the Supreme Court, the last thing I should knowingly
countenance is uncertainty as to the juridical significance of any decision of
the Court which is precisely being looked upon as the haven in which doubts
are supposed to be authoritatively dispelled. Besides, from the very nature of
things, one thing is indubitably beyond dispute we cannot act in both
capacities of a 15-man and an 11-man Court at the same time, in like
manner that it is inconceivable that the 1935 and 1973 Constitution can be
considered by Us as both in force. Our inescapable duty is to make a choice
between them, according to what law and other considerations inherent to
our function dictate. I cannot bear the thought that someone may someday
say that the Supreme Court of the Philippines once decided a case without
knowing the basis of its authority to act or that it was ever wanting in judicial
courage to define the same.
Accordingly, with full consciousness of my limitations but compelled by my
sense of duty and propriety to straighten out this grave issue touching on the
capacity in which the Court is acting in these cases, I hold that we have no
alternative but to adopt in the present situation the orthodox rule that 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
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Court rules that it is unconstitutional. Stated differently, We have to proceed

on the assumption that the new Constitution is in force and that We are
acting in these present cases as the 15-man Supreme Court provided for
therein. Contrary to counsel's contention, there is here no prejudgment for or
against any of the two constitutions. The truth of the matter is simply that in
the normal and logical conduct of governmental activities, it is neither
practical nor wise to defer the course of any action until after the courts have
ascertained their legality, not only because if that were to be the rule, the
functioning of government would correspondingly be undesirably hesitative
and cumbersome, but more importantly, because the courts must at the first
instance accord due respect to the acts of the other departments, as
otherwise, the smooth running of the government would have to depend
entirely on the unanimity of opinions among all its departments, which is
hardly possible, unless it is assumed that only the judges have the exclusive
prerogative of making and enforcing the law, aside from being its sole
interpreter, which is contrary to all norms of juridical and political thinking. To
my knowledge, there is yet no country in the world that has recognized
judicial supremacy as its basic governmental principle, no matter how
desirable we might believe the idea to be.
Indeed, it is not hard to visualize the difficulty if not absurdity of Our acting on
the assumption that this Court is still functioning under the 1935 Constitution.
It is undeniable that the whole government, including the provincial,
municipal and barrio units and not excluding the lower courts up to the Court
of Appeals, is operating under the 1973 Constitution. Almost daily,
presidential orders and decrees of the most legislative character affecting
practically every aspect of governmental and private activity as well as the
relations between the government and the citizenry are pouring out from
Malacaang under the authority of said Constitution. On the other hand,
taxes are being exacted and penalties in connection therewith are being
imposed under said orders and decrees. Obligations have been contracted
and business and industrial plans have been and are being projected
pursuant to them. Displacements of public officials and employees in big
numbers are going on in obedience to them. For the ten justices of the
Supreme Court to constitute an island of resistance in the midst of these
developments, which even unreasoning obstinacy cannot ignore, much less
impede, is unimaginable, let alone the absurd and complicated
consequences such a position entails in the internal workings within the
judiciary amount its different components, what with the lower courts
considering such orders and decrees as forming part of the law of the land in
making their orders and decisions, whereas the Supreme Court is holding,
as it were, their effectivity at bay if it is not being indifferent to or ignoring
them.
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It is suggested that the President, being a man of law, is committed to abide

by the decision of the Supreme Court, and if the Court feels that it cannot in
the meantime consider the enforcement of the new Constitution, he can wait
for its decision. Accepting the truth of this assertion, it does not necessarily
follow that by this attitude of the President, he considers the Supreme Court
as still operating under the Old Constitution. Quite on the contrary, it is a fact
that he has given instructions for the payment of the justices in accordance
with the rate fixed in the New Constitution. Not only that, 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 new charter has been transferred from the Department of
Justice to the Supreme Court, and as far as I know, the President has not
countermanded the Secretary's steps in that direction. That, on the other
hand, the President has not augmented the justices of the Court to complete
the prescribed number of fifteen is, in my appraisal, of no consequence,
considering that with the presence of ten justices who are in the Court now,
there is a working quorum, and the addition of new justices cannot in anyway
affect the voting on the constitutional questions now before Us because,
while there are sufficient justices to declare by their unanimous vote the
illegality of Proclamation 1102, the votes of the justices to be added would
only be committed to upholding the same, since they cannot by any standard
be expected to vote against the legality of the very Constitution under which
they would be appointed.
Moreover, what makes the premise of presumptive validity preferable and,
even imperative, is that We are dealing here with a whole constitution that
radically modifies or alters not only the form of our government from
presidential to parliamentary but also other constitutionally based institutions
vitally affecting all levels of society. It is, to my mind, unrealistic to insist on
that, fundamentally, the 1973 Constitution is the same 1935 Constitution.
with a few improvements. A cursory perusal of the former should convince
anyone that it is in essence a new one. While it does retain republicanism as
the basic governmental tenet, the institutional changes introduced thereby
are rather radical and its social orientation is decidedly more socialistic, just
as its nationalistic features are somewhat different in certain respects. One
cannot but note that the change embraces practically every part of the old
charter, from its preamble down to its amending and effectivity clauses,
involving as they do the statement of general principles, the citizenship and
suffrage qualifications, the articles on the form of government, the judiciary
provisions, the spelling out of the duties and responsibilities not only of
citizens but also of officers of the government and the provisions on the
national economy as well as the patrimony of the nation, not to mention the
distinctive features of the general provisions. What is more, the transitory
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provisions notably depart from traditional and orthodox views in that, in

general, the powers of government during the interim period are more or less
concentrated in the President, to the extent that the continuation or
discontinuance of what is now practically a one-man-rule, is even left to his
discretion. Notably, the express ratification of all proclamations, orders,
decrees and acts previously issued or done by the President, obviously
meant to encompass those issued during martial law, is a commitment to the
concept of martial law powers being implemented by president Marcos, in
defiance of traditional views and prevailing jurisprudence, to the effect that
the Executive's power of legislation during a regime of martial law is all
inclusive and is not limited to the matters demanded by military necessity. In
other words, the new constitution unlike any other constitution countenances
the institution by the executive of reforms which normally is the exclusive
attribute of the legislature.
Withal, the best proofs that by its expressed and implied intent, the
Constitution of 1973 is a new one, are that (1) Section 16 of its Article XVII
which provides that this constitution shall "supersede the Constitution of
nineteen hundred and thirty-five and all amendments thereto" and (2) its
transitory provisions expressly continue the effectivity of existing laws, offices
and courts as well as the tenure of all incumbent officials, not adversely
affected by it, which would have been unnecessary if the old constitution
were being merely amended.
The new Constitution, in its Section 10, Article XVII, provides that "(T)he
incumbent members of the Judiciary (which include the Chief Justice and
Associate Justices of the Supreme Court) may continue in office (under the
new constitution) until they reach the age of seventy years, etc." By virtue of
the presumptive validity of the new charter, all of Us form part of the 15-manCourt provided for therein and, correspondingly, We have in legal
contemplation, ceased in the meanwhile to be members of the 11-man-Court
in the 1935 Constitution. Should the Court finally decide that the new
Constitution is invalid, then We would automatically revert to our positions in
the 11-man Court, otherwise, We would just continue to be in our
membership in the 15 man-Court, unless We feel We cannot in conscience
accept the legality of its existence. On the other hand, if it is assumed that
We are still the 11-man-Court and it happens that Our collective decision is
in favor of the new constitution, it would be problematical for any dissenting
justice to consider himself as included automatically in the 15-man-Court,
since that would be tantamount to accepting a position he does not honestly
believe exists.
III
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In brief, the main contention of the petitioners is that Proclamation 1102 is

invalid because the ratification of the 1973 Constitution it purports to declare
as having taken place as a result of the referendum above-referred to is
ineffective. Since it cannot be said on the basis of the said referendum that
said Constitution has been "approved by a majority of the votes cast at an
election" in the manner prescribed by Article XV of the Constitution of 1935.
More specifically, they maintain that the word "election" in the said Article
has already acquired a definite accepted meaning out of the consistent
holding in the past of ratification plebiscites, and accordingly, no other form
of ratification can be considered contemplated by the framers of the Old
Constitution than that which had been followed in 1935, 1937, 1939, 1940,
1946 and 1967, the last three or four of which were held under the
supervision of the Commission on Elections. Furthermore, they emphatically
deny the veracity of the proclaimed results of the referendum because,
according to them the referendum was a farce and its results were
manufactured or prefabricated, considering that Mr. Francisco Cruz, who is
supposed to have submitted the final report to the President, which served
as basis for Proclamation 1102, had no official authority to render the same,
and it is inconceivable and humanly impossible for anyone to have been able
to gather, tabulate and canvass the 15 million votes allegedly reported within
the short period of time employed. Of course, they also contend that in any
event, there was no proper submission because martial law per se creates
constructive duress which deprives the voters of the complete freedom
needed for the exercise of their right of choice and actually, there was
neither time nor opportunity for real debate before they voted.
On the other hand, the position of the Solicitor General as counsel for the
respondents is that the matter raised in the petitions is a political one which
the courts are not supposed to inquire into, and, anyway, there has been a
substantial compliance with Article XV of the 1935 Constitution, inasmuch
as, disregarding unessential matters of form, the undeniable fact is that the
voting in the referendum resulted in the approval by the people of the New
Constitution.
I need not dwell at length on these variant positions of the parties. In my
separate opinion in the Plebiscite Cases, I already made the observation that
in view of the lack of solemnity and regularity in the voting as well as in the
manner of reporting and canvassing conducted in connection with the
referendum, I cannot say that Article XV of the Old Constitution has been
complied with, albeit I held that nonetheless, the Constitution of 1973 is
already in force. In order, however, to make myself clearer on some relevant
points, I would like to add a few considerations to what I have already said in
the former cases.
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In my opinion in those cases, the most important point I took into account
was that in the face of the Presidential certification through Proclamation
1102 itself that the New Constitution has been approved by a majority of the
people and having in mind facts of general knowledge which I have taken
judicial notice of, I am in no position to deny that the result of the referendum
was as the President had stated. I can believe that the figures referred to in
the proclamation may not be accurate, but I cannot say in conscience that all
of them are manufactured or prefabricated, simply because I saw with my
own eyes that people did actually gather and listen to discussions, if brief
and inadequate for those who are not abreast of current events and general
occurrences, and that they did vote. I believe I can safely say that what I
have seen have also been seen by many others throughout the country and
unless it can be assumed, which honestly, I do not believe to be possible,
that in fact there were actually no meetings held and no voting done in more
places than those wherein there were such meetings and votings, I am not
prepared to discredit entirely the declaration that there was voting and that
the majority of the votes were in favor of the New Constitution. If in fact there
were substantially less than 14 million votes of approval, the real figure, in
my estimate, could still be significant enough and legally sufficient to serve
as basis for a valid ratification.
It is contended, however, that the understanding was that the referendum
among the Citizens Assemblies was to be in the nature merely of a loose
consultation and not an outright submission for purposes of ratification. I can
see that at the outset, when the first set of questions was released, such
may have been the idea. It must not be lost sight of, however, that if the
newspaper reports are to be believed, and I say this only because petitioners
would consider the newspapers as the official gazettes of the administration,
the last set of six questions were included precisely because the reaction to
the idea of mere consultation was that the people wanted greater direct
participation, thru the Citizens Assemblies, in decision-making regarding
matters of vital national interest. Thus, looking at things more
understandingly and realistically, the two questions emphasized by counsel,
namely, (1) Do you approve of the New Constitution? and (2) Do you want a
plebiscite to be called to ratify the new Constitution? should be considered
no longer as loose consultations but as direct inquiries about the desire of
the voters regarding the matters mentioned. Accordingly, I take it that if the
majority had expressed disapproval of the new Constitution, the logical
consequence would have been the complete abandonment of the idea of
holding any plebiscite at all. On the other hand, it is very plain to see that
since the majority has already approved the new Constitution, a plebiscite
would be superfluous. Clear as these rationalizations may be, it must have
been thought that if the holding of a plebiscite was to be abandoned, there
should be a direct and expressed desire of the people to such effect in order
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to forestall as much as possible any serious controversy regarding the nonholding of the plebiscite required by the letter of Section 16 of Article XVII,
the effectivity clause, of the new Constitution. Oddly enough, the "comments"
accompanying the questions do strongly suggest this view. And as it turned
out, the majority found no necessity in holding a plebiscite.
In connection with the question, Do you approve of the New Constitution?
capital is being made of the point that as so framed, the thrust of the said
question does not seek an answer of fact but of opinion. It is argued that it
would have been factual were it worded categorically thus Do you
approve the New Constitution? The contention would have been weighty
were it not unrealistic. I remember distinctly that the observation regarding
the construction of the subject question was not originally made by any of the
talented counsels for petitioners. It came from Mr. Justice Fred Ruiz Castro
whose mastery of the English language can rightly be the cause of envy of
even professors of English. None of the other members of the Court, as far
as I can recall, ever noticed how the said question is phrased, or if anyone of
Us did, I am not aware that he gave it more than passing attention. What I
mean is that if neither any of the distinguished and learned counsels nor any
member of the Court understood the said question otherwise than calling for
a factual answer instead of a mere opinion, how could anyone expect the
millions of unlettered members of the Citizens Assemblies to have noticed
the point brought out by Justice Castro? Truth to tell, I myself did not realize
the difference until Justice Castro gave it emphasis. Besides, reading the
question in the light of the accompanying "comment" corresponding to it in
particular, I am certain that any one who answered the same understood it in
no other sense than a direct inquiry as to whether or not, as a matter of fact,
he approves the New Constitution, and naturally, his affirmative answer must
be taken as a categorical vote of approval thereof, considering, particularly,
that according to the reported result of the referendum said answer was even
coupled with the request that the President defer the convening of the
Interim National Assembly.
It is also contended that because of this reference in the answer to that
question to the deferment of the convening of the interim assembly, the said
answer is at best a conditional approval not proper nor acceptable for
purposes of a ratification plebiscite. The contention has no basis. In the
interest of accuracy, the additional answer proposed in the pertinent
"comment" reads as follows: "But we do not want the Ad Interim Assembly to
be convoked etc." On the assumption that the actual answer, as reported,
was of similar tenor, it is not fair to ascribe to it the imposition of a condition.
At the most, the intention is no more than a suggestion or a wish.
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As regards said "comments", it must be considered that after martial law was
declared, the circumstances surrounding the making of the Constitution
acquired a different and more meaningful aspect, namely, the formation of a
new society. From the point of view of the President and on the basis of
intelligence reports available to him, the only way to meet the situation
created by the subversive elements was to introduce immediately effective
reforms calculated to redeem the people from the depth of retrogression and
stagnation caused by rampant graft and corruption in high places, influence
peddling, oligarchic political practices, private armies, anarchy, deteriorating
conditions of peace and order, the 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, as in the case of the
rebellious movement that threatened the Quirino Administration, the remedy
was far from using bullets alone. If a constitution was to be approved as an
effective instrument towards the eradication of such grave problems, it had to
be approved without loss of time and sans the cumbersome processes that,
from the realistic viewpoint, have in the past obstructed rather than hastened
the progress of the people. Stated otherwise, in the context of actualities, the
evident objective in having a new constitution is to establish new directions in
the pursuit of the national aspirations and the carrying out of national
policies. Only by bearing these considerations in mind can the "comments"
already referred to be properly appreciated. To others said "comments" may
appear as evidence of corruption of the will of those who attended the
assemblies, but actually, they may also be viewed in the same light as the
sample ballots commonly resorted to in the elections of officials, which no
one can contend are per se means of coercion. Let us not forget that the
times are abnormal, and prolonged dialogue and exchange of ideas are not
generally possible, nor practical, considering the need for faster decisions
and more resolute action. After all voting on a whole new constitution is
different from voting on one, two or three specific proposed amendments, the
former calls for nothing more than a collective view of all the provisions of the
whole charter, for necessarily, one has to take the good together with the
bad in it. It is rare for anyone to reject a constitution only because of a few
specific objectionable features, no matter how substantial, considering the
ever present possibility that after all it may be cured by subsequent
amendment. Accordingly, there was need to indicate to the people the paths
open to them in their quest for the betterment of their conditions, and as long
as it is not shown that those who did not agree to the suggestions in the
"comments" were actually compelled to vote against their will, I am not
convinced that the existence of said "comments" should make any
appreciable difference in the court's appraisal of the result of the referendum.
I must confess that the fact that the referendum was held during martial law
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detracts somehow from the value that the referendum would otherwise have
had. As I intimated, however, in my former opinion, it is not fair to condemn
and disregard the result of the referendum barely because of martial law per
se. For one thing, many of the objectionable features of martial law have not
actually materialized, if only because the implementation of martial law since
its inception has been generally characterized by restraint and consideration,
thanks to the expressed wishes of the President that the same be made
"Philippine style", which means without the rigor that has attended it in other
lands and other times. Moreover, although the restrictions on the freedom of
speech, the press and movement during martial law do have their
corresponding adverse effects on the area of information which should be
open to a voter, in its real sense what "chills" his freedom of choice and mars
his exercise of discretion is the suspension of the privilege of the writ of
habeas corpus. The reason is simply that a man may freely and correctly
vote even if the needed information he possesses as to the candidates or
issues being voted upon is more or less incomplete, but when he is subject
to arrest and detention without investigation and without being informed of
the cause thereof, that is something else which may actually cause him to
cast a captive vote. Thus it is the suspension of the writ of habeas corpus
accompanying martial law that can cause possible restraint on the freedom
of choice in an election held during martial law. It is a fact, however, borne by
history and actual experience, that in the Philippines, the suspension of the
privilege of the writ of habeas corpus has never produced any chilling effect
upon the voters, since it is known by all that only those who run afoul of the
law, saving inconsequential instances, have any cause for apprehension in
regard to the conduct by them of the normal activities of life. And so it is
recorded that in the elections of 1951 and 1971, held while the privilege of
writ of habeas corpus was under suspension, the Filipino voters gave the
then opposition parties overwhelming if not sweeping victories, in defiance of
the respective administrations that ordered the suspensions.
At this juncture, I think it is fit to make it clear that I am not trying to show that
the result of the referendum may be considered as sufficient basis for
declaring that the New Constitution has been ratified in accordance with the
amending clause of the 1935 Constitution. I reiterate that in point of law, I
find neither strict nor substantial compliance. The foregoing discussion is
only to counter, if I may, certain impressions regarding the general conditions
obtaining during and in relation to the referendum which could have in one
way or another affected the exercise of the freedom of choice and the use of
discretion by the members of the Citizens Assemblies, to the end that as far
as the same conditions may be relevant in my subsequent discussions of the
acceptance by the people of the New Constitution they may also be
considered.
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IV
It is my sincere conviction that the Constitution of 1973 has been accepted or
adopted by the people. And on this premise, my considered opinion is that
the Court may no longer decide these cases on the basis of purely legal
considerations. Factors which are non-legal but nevertheless ponderous and
compelling cannot be ignored, for their relevancy is inherent in the issue
itself to be resolved.
In my opinion in the Plebiscite Cases, I joined my colleagues in holding that
the question of whether or not there was proper submission under
Presidential Decree No. 73 is justiciable, and I still hold that the propriety of
submission under any other law or in any other form is constitutionally a fit
subject for inquiry by the courts. The ruling in the decided cases relied upon
by petitioners are to this effect. In view, however, of the factual background
of the cases at bar which include ratification itself, it is necessary for me to
point out that when it comes to ratification, I am persuaded that there should
be a boundary beyond which the competence of the courts no longer has
any reason for being, because the other side is exclusively political territory
reserved for their own dominion by the people.
The main basis of my opinion in the previous cases was acceptance by the
people. Others may feel there is not enough indication of such acceptance in
the record and in the circumstances the Court can take judicial notice of. For
my part, I consider it unnecessary to be strictly judicial in inquiring into such
fact. Being personally aware, as I have already stated, that the Citizens
Assemblies did meet and vote, if irregularly and crudely, it is not for me to
resort, for the purposes of these cases, to judicial tape and measure, to find
out with absolute precision the veracity of the total number of votes actually
cast. After all, the claims that upon a comparison of conflicting reports, cases
of excess votes may be found, even if extrapolated will not, as far as I can
figure out, suffice to overcome the outcome officially announced. Rather than
try to form a conclusion out of the raw evidence before Us which the parties
did not care to really complete, I feel safer by referring to the results
announced in the proclamation itself. Giving substantial allowances for
possible error and downright manipulation, it must not be overlooked that,
after all, their having been accepted and adopted by the President, based on
official reports submitted to him in due course of the performance of duty of
appropriate subordinate officials, has elevated them to the category of an act
of a coordinate department of the government which under the principle of
separation of powers is clothed with presumptive correctness or at least
entitled to a high degree of acceptability, until overcome by better evidence,
which in these cases does not exist. In any event, considering that due to the
unorthodoxy of the procedure adopted and the difficulty of an accurate
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checking of all the figures, I am unable to conceive of any manageable

means of acquiring information upon which to predicate a denial, I have no
alternative but to rely on what has been officially declared. At this point, I
would venture to express the feeling that if it were not generally conceded
that there has been sufficient showing of the acceptance in question, by this
time, there would have been already demonstrative and significant
indications of a rather widespread, if not organized resistance in one form or
another. Much as they are to be given due recognition as magnificent
manifestations of loyalty and devotion to principles, I cannot accord to the
filing of these cases as indicative enough of the general attitude of the
people.
It is true that in the opinion I had the privilege of penning for the Court in
Tolentino vs. Comelec, 41 SCRA 702, I made strong and unequivocal
pronouncements to the effect that any amendment to the Constitution of
1935, to be valid, must appear to have been made in strict conformity with
the requirements of Article XV thereof. What is more, that decision asserted
judicial competence to inquire into the matter of compliance or non
compliance as a justiciable matter. I still believe in the correctness of those
views and I would even add that I sincerely feel it reflects the spirit of the
said constitutional provision. Without trying to strain any point, however, I
submit the following considerations in the context of the peculiar
circumstances of the cases now at bar, which are entirely different from
those in the backdrop of the Tolentino rulings I have referred to.
1.Consider that in the present case what is involved is not just an
amendment or a particular provision of an existing Constitution; here, it is, as
I have discussed earlier above, an entirely new Constitution that is being
proposed. This important circumstance makes a great deal of difference.
No less than counsel Tolentino for herein respondents Puyat and Roy, who
was himself the petitioner in the case I have just referred to is, now inviting
Our attention to the exact language of Article XV and suggesting that the
said Article may be strictly applied to proposed amendments but may hardly
govern the ratification of a new Constitution. It is particularly stressed that the
Article specifically refers to nothing else but "amendments to this
Constitution" which if ratified "shall be valid as part of this Constitution."
Indeed, how can a whole new constitution be by any manner of reasoning an
amendment to any other constitution and how can it, if ratified, form part of
such other constitution? In fact, in the Tolentino case I already somehow
hinted this point, when I made reference in the resolution denying the motion
for reconsideration to the fact that Article XV must be followed "as long as
any amendment is formulated and submitted under the aegis of the present
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Charter." Said resolution even added. "(T)his is not to say that the people
may not, in the exercise of their inherent revolutionary powers, amend the
Constitution or promulgate an entirely new one otherwise."
It is not strange at all to think that the amending clause of a constitution
should be confined in its application only to proposed changes in any part of
the same constitution itself, for the very fact that a new constitution is being
adopted implies a general intent to put aside the whole of the old one, and
what would be really incongrous is the idea that in such an eventuality, the
new Constitution would subject its going into effect to any provision of the
constitution it is to supersede, to use the language precisely of Section 6,
Article XVII, the effectivity clause, of the New Constitution. My understanding
is that generally, constitutions are self-born, they very rarely, if at all, come
into being, by virtue of any provision of another constitution. 3 This must be
the reason why every constitution has its own effectivity clause, so that if, the
Constitutional Convention had only anticipated the idea of the referendum
and provided for such a method to be used in the ratification of the New
Constitution, I would have had serious doubts as to whether Article XV could
have had priority of application.
2.When an entirely new constitution is proposed to supersede the existing
one, we cannot but take into consideration the forces and the circumstances
dictating the replacement. From the very nature of things, the proposal to
ordain a new constitution must be viewed as the most eloquent expression of
a people's resolute determination to bring about a massive change of the
existing order, a meaningful transformation of the old society and a
responsive reformation of the contemporary institutions and principles.
Accordingly, should any question arise as to its effectivity and there is some
reasonable indication that the new charter has already received in one way
or another the sanction of the people, I would hold that the better rule is for
the courts to defer to the people's judgment, so long as they are convinced of
the fact of their approval, regardless of the form by which it is expressed,
provided it be reasonably feasible and reliable. Otherwise stated, in such
instances, the courts should not bother about inquiring into compliance with
technical requisites, and as a matter of policy should consider the matter
non-justiciable.
3.There is still another circumstance which I consider to be of great
relevancy. I refer to the ostensible reaction of the component elements, both
collective and individual, of the Congress of the Philippines. Neither the
Senate nor the House of Representatives has been reported to have even
made any appreciable effort or attempt to convene as they were supposed to
do under the Constitution of 1935 on January 22, 1973 for the regular
session. It must be assumed that being composed of experienced,
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knowledgeable and courageous members, it would not have been difficult for
said parliamentary bodies to have conceived some ingenious way of giving
evidence of their determined adherence to the Constitution under which they
were elected. Frankly, much as I admire the efforts of the handful of senators
who had their picture taken in front of the padlocked portals of the Senate
chamber, I do not feel warranted to accord such act as enough token of
resistance. As counsel Tolentino has informed the court, there was noting to
stop the senators and the congressmen to meet in any other convenient
place and somehow officially organize themselves in a way that can logically
be considered as a session, even if nothing were done than to merely call
the roll and disperse. Counsel Tolentino even pointed out that if there were
not enough members to form a quorum, any smaller group could have
ordered the arrest of the absent members. And with particular relevance to
the present cases, it was not constitutionally indispensable for the presiding
officers to issue any call to the members to convene, hence the present
prayers for mandamus have no legal and factual bases. And to top it all,
quite to the contrary, the records of the Commission on Elections show that
at least 15 of 24 senators and over 95 out of less than 120 members of the
House of Representatives, have officially and in writing exercised the option
given to them to join the Interim National Assembly under the New
Constitution, thereby manifesting their acceptance of the new charter.
Now, having these facts in mind, and it being obvious that of the three great
departments of the government under the 1935 Constitution, two, the
Executive and the Legislative, have already accepted the New Constitution
and recognized its enforceability and enforcement, I cannot see how this
Supreme Court can by judicial fiat hold back the political developments
taking place and for the sake of being the guardian of the Constitution and
the defender of its integrity and supremacy make its judicial power prevail
against the decision of those who were duly chosen by the people to be their
authorized spokesmen and representatives. It is not alone the physical futility
of such a gesture that concerns me. More than that, there is the stark reality
that the Senators and the Congressmen, no less than the President, have
taken the same oath of loyalty to the Constitution that we, the Justices, have
taken and they are, therefore, equally bound with Us to preserve and protect
the Constitution. If as the elected representatives of the people, they have
already opted to accept the New Constitution as the more effective
instrument for the fulfillment of the national destiny, I really wonder if there is
even any idealistic worth in Our desperately clinging by Ourselves alone to
Our sworn duty vis-a-vis the 1935 Constitution. Conscious of the declared
objectives of the new dispensation and cognizant of the decisive steps being
taken, with the least loss of time, towards their accomplishment, I cannot but
feel apprehensive that instead of serving the best interests of our people,
which to me is in reality the real meaning of our oath of office, the Court
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might be standing in the way of the very thing our beloved country needs to
retrieve its past glory and greatness. In other words, it is my conviction that
what these cases demand most of all is not a decision demonstrative of our
legal erudition and Solomonic wisdom, but an all rounded judgment resulting
from the consideration of all relevant circumstances, principally the political,
or, in brief, a decision more political than legal, which a court can render only
by deferring to the apparent judgment of the people and the announcement
thereof by the political departments of the government and declaring the
matter non-justiciable.
4.Viewed from the strictly legal angle and in the light of judicial methods of
ascertainment, I cannot agree with the Solicitor General that in the legal
sense, there has been at least substantial compliance with Article XV of the
1935 Constitution, but what I can see is that in a political sense, the answers
to the referendum questions were not given by the people as legal
conclusions. I take it that when they answered that by their signified approval
of the New Constitution, they do not consider it necessary to hold a
plebiscite, they could not have had in mind any intent to do what was
constitutionally improper. Basically accustomed to proceed along
constitutional channels, they must have acted in the honest conviction that
what was being done was in conformity with prevailing constitutional
standards. We are not to assume that the sovereign people were indulging in
a futile exercise of their supreme political right to choose the fundamental
charter by which their lives, their liberties and their fortunes shall be
safeguarded. In other words, we must perforce infer that they meant their
decision to count, and it behooves this Court to render judgment herein in
that context. It is my considered opinion that viewed understandingly and
realistically, there is more than sufficient ground to hold that, judged by such
intent and, particularly, from the political standpoint, the ratification of the
1973 Constitution declared in Proclamation 1102 complies substantially with
Article XV of the 1935 Charter, specially when it is considered that the most
important element of the ratification therein contemplated is not in the word
"election", which conceivably can be in many feasible and manageable forms
but in the word "approved" which may be said to constitute the substantiality
of the whole article, so long as such approval is reasonably ascertained. In
the last analysis, therefore, it can be rightly said, even if only in a broad
sense, that the ratification here in question was constitutionally justified and
justifiable.
5.Finally, if any doubt should still linger as to the legitimacy of the New
Constitution on legal grounds, the same should be dispelled by viewing the
situation in the manner suggested by Counsel Tolentino and by the writer of
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this opinion in his separate opinion, oft-referred to above, in the Plebiscite

Cases that is, as an extra constitutional exercise by the people, under the
leadership of President Marcos, of their inalienable right to change their
fundamental charter by any means they may deem appropriate, the moment
they are convinced that the existing one is no longer responsive to their
fundamental, political and social needs nor conducive to the timely
attainment of their national destiny. This is not only the teaching of the
American Declaration of Independence but is indeed, a truth that is selfevident. More, it should be regarded as implied in every constitution that
regardless of the language of its amending clause, once the people have
given their sanction to a new charter, the latter may be deemed as
constitutionally permissible even from the point of view of the preceding
constitution. Those who may feel restrained to consider this view out of
respect to the import of Tolentino vs. Comelec, supra., would be well advised
to bear in mind that that case was decided 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 the be all and end all of the nation. More important
than even the Constitution itself, with all its excellent features, are the people
living under it their happiness, their posterity and their national destiny.
There is nothing that cannot be sacrificed in the pursuit of these objectives,
which constitute the totality of the reasons for national existence. The sacred
liberties and freedoms enshrined in it and the commitment and consecration
thereof to the forms of democracy we have hitherto observed are mere
integral parts of this totality; they are less important by themselves.
What seems to me to be bothering many of our countrymen now is that by
denying the present petitions, the Court would be deemed as sanctioning,
not only the deviations from traditional democratic concepts and principles
but also the qualified curtailment of individual liberties now being practiced,
and this would amount, it is feared, to a repudiation of our oath to support
and defend the Constitution of 1935. This is certainly something one must
gravely ponder upon. When I consider, however, that the President, the Vice
President, the members of both Houses of Congress, not to speak of all
executive departments and bureaus under them, as well as all the lower
courts, including the Court of Appeals, have already accepted the New
Constitution as an instrument of a meaningful nationwide-all-level change in
our government and society purported to make more realistic and feasible,
rather than idealistic and cumbersomely deliberative, the attainment of our
national aspirations, I am led to wonder, whether or not we, as members of
the Supreme Court are being true to our duty to our people by refusing to
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convinced of the sincerity and laudableness of their objectives, only because

we feel that by the people's own act of ratifying the Constitution of 1935, they
have so encased themselves within its provisions and may, therefore, no
longer take measures to redeem themselves from the situation brought
about by the deficiencies of the old order, unless they act in strict conformity
therewith. I cannot believe that any people can be so stifled and enchained.
In any event, I consider it a God-given attribute of the people to disengage
themselves, if necessary, from any covenant that would obstruct their taking
what subsequently appears to them to be the better road to the promotion
and protection of their welfare. And once they have made their decision in
that respect, whether sophisticatedly or crudely, whether in legal form or
otherwise, certainly, there can be no court or power on earth that can
reverse them.
I would not be human if I should be insensitive to the passionate and
eloquent appeals of Counsels Taada and Salonga that these cases be
decided on the basis of conscience. That is exactly what I am doing. But if
counsel mean that only by granting their petitions can this Court be worthily
the bulwark of the people's faith in the government, I cannot agree, albeit my
admiration and respect are all theirs for their zeal and tenacity, their industry
and wisdom, their patriotism and devotion to principle. Verily, they have
brought out everything in the Filipino that these cases demand.
In times of national emergencies and crises, not arising from foreign
invasion, we need not fear playing opposite roles, as long as we are all
animated by sincere love of country and aim exclusively at the attainment of
the national destiny. Our heroes of the past, Rizal, Bonifacio, Aguinaldo,
Antonio Luna, Mabini and so also with our patriots of the recent generations,
Quezon, Osmea, Roxas, Laurel and Recto, to mention only some of them,
had their differences of views and they did not hesitate to take
diametrically opposing sides that even reached tragic proportions, but all
of them are admired and venerated.
It is my faith that to act with absolute loyalty to our country and people is
more important than loyalty to any particular precept or provision of the
Constitution or to the Constitution itself. My oath to abide by the Constitution
binds me to whatever course of action I feel sincerely is demanded by the
welfare and best interests of the people.
In this momentous juncture of our history, what is imperative is national unity.
May God grant that the controversies the events leading to these cases have
entailed will heal after the decision herein is promulgated, 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
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mandamus and prohibition without costs.

MAKASIAR, J.:
Assuming, without conceding, that Article XV of the 1935 Constitution
prescribes a procedure for the ratification of constitutional amendments or of
a new Constitution and that such procedure was no complied with, the
validity of Presidential Proclamation No. 1102 is a political, not a justiciable,
issue; for it is inseparably or inextricably linked with and strikes at, because it
is decisive of, the validity of the ratification and adoption of, as well as
acquiescence of the people in, the 1973 Constitution and the legitimacy of
the government organized and operating thereunder. And being political, it is
beyond the ambit of judicial inquiry, tested by the definition of a political
question enunciated in Taada, et al. vs. Cuenco, et al. (103 Phil. 1051),
aside from the fact that this view will not do violence to rights vested under
the new Constitution, to international commitments forged pursuant thereto
and to decisions rendered by the judicial as well as quasi-judicial tribunals
organized and functioning or whose jurisdiction has been altered by the 1973
Constitution and by the government established thereunder, and will
dissipate any confusion in the minds of the citizenry, who have been obeying
the mandates of the new Constitution, as well as exercising the rights and
performing the obligations defined by the new Constitution, and decrees and
orders issued in implementation of the same and cooperating with the
administration in the renovation of our social, economic and political system
as re-structured by the 1973 Constitution and by the implementing decrees
and orders (see Miller vs. Johnson, 18 SW 522, 522-526, 1892).
In 1957, Mr. Chief Justice Roberto Concepcion, then Associate Justice, in
behalf as the court, defined a political question as one which, under the
Constitution, is "to be decided by the people in their sovereign capacity, or in
regard to which full discretionary authority had been delegated to the
Legislature or Executive branch of the government." (Taada, et al. vs.
Cuenco, et al., supra).
Article XV of the 1935 Constitution provides: "Such amendments shall be
valid as part of this Constitution when approved by a majority of the votes
cast at an election at which the amendments are submitted to the people for
ratification." Under Article XV of the 1935 Constitution, the power to propose
constitutional amendments is vested in Congress or in a constitutional
convention; while the power to ratify or reject such proposed amendments or
new Constitution is reserved by the sovereign people. The nullification of
Proclamation No. 1102 would inevitably render inoperative the 1973
Constitution, which is in fact the express prayer of the petitioners in G.R. No.
L-36164. Regardless of the modality of submission or ratification or adoption
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 even if it deviates from or violates the procedure 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
authorized there for but is subsequently adopted or recognized by the people
and by the other official organs and functionaries of the government
established under such a new Constitution, this Court is precluded from
inquiring into the validity of such ratification, adoption or acquiescence and of
the consequent effectivity of the new Constitution. This is as it should be in a
democracy, for the people are the repository of all sovereign powers as well
as the source of all governmental authority (Pole vs. Gray, 104 SO 2nd 841
[1958]). This basic democratic concept is expressly restated in Section 1 of
Article II of the Declaration of Principles of the 1935 and 1973 Constitutions,
thus: "Sovereignty resides in the people and all government authority
emanates from them."
The legality of the submission is no longer relevant; because the ratification,
adoption and/or acquiescence by the people cures any infirmity in its
submission or any other irregularities therein which are deemed mandatory
before submission as they are considered merely directory after such
ratification or adoption or acquiescence by the people. As Mr. Justice
Brewer, then of the Kansas State Supreme Court and later Associate Justice
of the Federal Supreme Court, stated in re Prohibitory Amendment Cases
(24 Kansas 700 & 710, Reprint 499, 506): "The two important, vital elements
of the Legislature, and a majority of the popular vote. Beyond these, other
provisions are mere machineries and forms. They may not be disregarded,
because by them certainty as to the essential is secured. But they are not
themselves the essentials. " (Cited in Lark en vs. Gronna, 285 N W 59, 6164, 1939).
This was the ruling by the American Supreme Court in the 1939 case of
Coleman vs. Miller (307 U.S. 433, 83 L.ed. 1385), where Chief Justice
Hughes, speaking for the majority, stated that:
". . . Thus the political departments of the government dealt
with the effect of both previous rejection and attempted
withdrawal and determined that both were ineffectual in the
presence of an actual ratification . . . This decision by the
political departments of the Government as to the validity of
the adoption of the Fourteenth amendment has been
accepted.
"We think that in accordance with this historic
precedent the question of the efficacy of ratifications by state
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legislatures, in the light of previous rejection or attempted

withdrawal, should be regarded as a political question
pertaining to the political departments, with the ultimate
authority in the Congress in the exercise of its control over
the promulgation of the adoption of the amendment."

This view was likewise emphasized by Mr. Justice Black in his concurring
opinion, in which Mr. Justices Roberts, Frankfurter, and Douglas join, thus:
"The Constitution grants Congress exclusive power to
control submission of constitutional amendments. Final
determination by Congress that ratification by three-fourths of
the States has taken place 'is conclusive upon the courts.' In
the exercise of that power Congress, of course, is governed
by the Constitution. However, whether submission,
intervening procedure or Congressional determination of
ratification conforms to the commands of the Constitution,
calls for decisions by a 'political department' of questions of a
type which this Court has frequently designated 'political.'
And decision of a 'political question' by the 'political
department' to which the Constitution has committed it
'conclusively binds the judges, as well as all other officers,
citizens and subjects of . . . government.' Proclamation under
authority of Congress that an amendment has been ratified
via carry with it a solemn assurance by the Congress that
ratification has taken place as the Constitution commands.
Upon this assurance a proclaimed amendment must be
accepted as a part of the Constitution, leaving to the judiciary
its traditional authority of interpretation. To the extent that the
Court's opinion in the present case even impliedly assumes a
power to make judicial interpretation of the exclusive
constitutional authority of Congress over submission and
ratification of amendments, we are unable to agree . . ."
(American Constitutional Issues, by Pritchett, 1962 Ed., p.
44).

The doctrine in the aforesaid case of Coleman vs. Miller was adopted by Our
Supreme Court in toto in Mabanag vs. Lopez Vito (78 Phil. 1).
The ruling in the cases of Gonzales vs. Comelec, et al. (L-28224, Nov. 29,
1967, 21 SCRA 774) and Tolentino vs. Comelec, et al. (L-34150, Oct. 16,
1971, 41 SCRA 702) on which petitioners place great reliance that the
courts may review the propriety of a submission of a proposed constitutional
amendment before the ratification or adoption of such proposed amendment
by the sovereign people, hardly applies to the cases at bar; because the
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issue involved in the aforesaid cases refers to only the propriety of the
submission of a proposed constitutional amendment to the people for
ratification, unlike the present petitions, which challenge inevitably the
validity of the 1973 Constitution after its ratification or adoption thru
acquiescence by the sovereign people. As heretofore stated, it is specious
and pure sophistry to advance the reasoning that the present petitions pray
only for the nullification of the 1973 Constitution and the government
operating thereunder.
It should be stressed that even in the Gonzales case, supra, We held that:
"Indeed, the power to amend the Constitution or to
propose amendments thereto is not included in the general
grant of legislative powers to Congress. It is part of the
inherent powers of the people as the repository of
sovereignty in a republicans state, such as ours to make,
and hence, to amend their own Fundamental Law. Congress
may propose amendments to the Constitution merely
because the same explicitly grants such power. Hence, when
exercising the same, it is said that Senators ad Members of
the House of Representatives act, not as members of
Congress, but as component elements of a constituent
assembly. When acting as such, the members of Congress
derive their authority from the Constitution, unlike the people,
when performing the same function, for their authority does
not emanate from the Constitution they are the source of
all powers of government including the Constitution 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 political in nature forming as they do
the essential parts of one political scheme the amending process. WE
merely stated therein that the force of the ruling in the said case of Mabanag
vs. Lopez Vito has been weakened by subsequent cases. Thus, We
pronounced therein.
"It is true that in Mabanag vs. Lopez Vito, this Court
characterizing the issue submitted thereto as a political one,
declined to pass upon the question whether or not a given
number of votes cast in Congress in favor of a proposed
amendment to the Constitution which was being submitted
to the people for ratification satisfied the three fourths vote
requirement of the fundamental law. The force of this
precedent has been weakened, however, by Suanes us.
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Chief Accountant of the Senate, Avelino vs. Cuenco, Taada

vs. Cuenco, and Macias vs. Commission on Elections. In the
first, we held that the Officers and employees of the Senate
Electoral Tribunal are supervision and control, not of that of
the Senate President, as claimed by the latter; in the second,
this Court proceeded to determine the number of Senators
necessary for a quorum in the Senate; in the third we nullified
the election, by Senators belonging to the party having the
largest number of votes in said chamber, purporting to act on
behalf of the party having the second largest number of votes
therein, of two (2) Senators belonging to the first party, as
members, for the second party, of the Senate Electoral
Tribunal; and in the fourth, we declared unconstitutional an
act of Congress purporting to apportion the representative
districts of the House of Representatives, upon the ground
that the apportionment had not been made as may be
possible according to the number of inhabitants of each
province. Thus we rejected the theory advanced in these four
(4) cases, that the issues therein raised were political
questions the determination of which is beyond judicial
review." (21 SCRA pp. 785-786);

for which reason We concluded

In short, the issue whether or not a resolution of Congress
before acting as a constituent assembly violates the
Constitution is essentially justiciable, not political, and,
hence, subject to judicial review, and to the extent that this
view may be consistent with the stand taken in Mabanag vs.
Lopez Vito, the latter should be deemed 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 or acquiescence by the people in the 1973 Constitution, remains
a political issue removed from the jurisdiction of this Court to review.
One more word about the Gonzales and Tolentino cases. Both primarily
stressed on the impropriety of the submission of a proposed constitutional
amendment. Courts do not deal with propriety or wisdom or absence of
either of an official act or of a law. Judicial power concerns only with the
legality or illegality, constitutionality or unconstitutionality of an act; it inquires
into the existence of power or lack of it. Judicial wisdom is not to be pitted
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The classic example of an illegal submission that did not impair the validity of
the ratification or adoption of a new Constitution is the case of the Federal
Constitution of the United States. It should be recalled that the thirteen (13)
original states of the American Union which succeeded in liberating
themselves from England after the revolution which began on April 19, 1775
with the skirmish at Lexington, Massachusetts and ended with the surrender
of General Cornwall is at Yorktown, Virginia, on October 19, 1781
(Encyclopedia Brit., Vol. I, 1933 Ed., p. 776) adopted their Articles of
Confederation and Perpetual Union, that was written from 1776 to 1777 and
ratified on March 1, 1781 (Encyclopedia Brit., Vol. II, 1966 Ed., p. 525).
About six years thereafter, the Congress of the Confederation passed a
resolution on February 21, 1787 calling for a Federal Constitutional
Convention " for the sole and express purpose of revising the articles of
confederation . . . " (Appendix I, The Federalist, Modern Library ed., p. 577,
italics supplied).
The Convention convened at Philadelphia on May 14, 1787. Article XIII of
the Articles of Confederation and Perpetual Union stated specifically:
"The articles of this confederation shall be inviolably
observed by every state, and the union shall be perpetual;
nor shall any alteration at any time hereafter be made in any
of them; unless such alteration be agreed to in a congress of
the united states, and be afterwards confirmed by the
legislatures of every 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 for the alteration and for the ratification of the Federal
Constitution as drafted by the Philadelphia Convention were not followed.
Fearful that the said Federal Constitution would not be ratified by the state
legislatures as prescribed, the Philadelphia Convention adopted a resolution
requesting the Congress of the Confederation to pass a resolution providing
that the Federal Constitution should be submitted to elected state
conventions and if ratified by the conventions in nine (9) states, not
necessarily in all thirteen (13) states, the said Constitution shall take effect.
Thus, history Professor Edward Earle Mead of Princeton University recorded
that
"It would have been a counsel of perfection to consign
the new Constitution to the tender mercies of the legislatures
of each and all of the 13 states. Experience clearly indicated
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that ratification then would have had the some chance as the
scriptural camel passing thru the eye of a needle. It was
therefore determined to recommend to Congress that the
new Constitution be submitted to conventions as in the
several states specially elected to pass upon it and that,
furthermore, the new government should go into effect if and
when it should be ratified by nine of the thirteen states . . ."
(The Federalist, Modern Library Ed., 1937, Introduction by
Edward Earle Mead, pp. viii-ix; italics supplied).

Historian Samuel Eliot Morison similarly recounted:

"The Convention, anticipating that the influence of
many state politicians would be Antifederalist, provided for
ratification of the Constitution by popularly elected
conventions in each state. Suspecting that Rhode Island, at
least, would prove recalcitrant, it declared that the
Constitution would go into effect as soon as nine states
ratified. The convention method had the further advantage
that judges, ministers, and others ineligible to state
legislatures, could be elected to a convention. The nine-state
provision was, of course, mildly revolutionary. But the
Congress of the Confederation, still sitting in New York to
carry on federal government until relieved, formally submitted
the new constitution to the states and politely faded out
before the first presidential inauguration." (The Oxford
History of the Am. People, by Samuel Eliot Morison, 1965
ed., p. 312).

And so the American Constitution was ratified by nine (9) states on June 21,
1788 and by the last four states on May 29, 1790 (12 C.J. p. 679 footnote, 16
C.J.S. 27 by the state conventions and not by all thirteen (13) state
legislatures as required by Article XIII of the Articles of Confederation and
Perpetual Union aforequoted and in spite of the fact that the Federal
Constitution as originally adopted suffers from two basic infirmities, namely,
the absence of a bill of rights and of a provision affirming the power of
judicial review.
The liberties of the American people were guaranteed by subsequent
amendments to the Federal Constitution. The doctrine of judicial review has
become part of American constitutional law only by virtue of a judicial
pronouncement by Chief Justice Marshall in the case of Marbury vs.
Madison (1803, 1 Cranch 137).
Until this date, no challenge has been launched against the validity of the
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ratification of the American Constitution, 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, 326330), which enunciated the principle that the validity of a new or revised
Constitution does not depend on the method of its submission or ratification
by the people, but on the fact of fiat or approval or all option or acquiescence
by the people, which fact of ratification or adoption or acquiescence is all that
is essential, the Court cited precisely the case of the irregular revision and
ratification by state conventions of the Federal Constitution, thus:
"No case identical in its facts with the case now under
consideration has been called to our attention, and we have
found none. We think that the principle which we apply in the
instant case was very clearly applied in the creation of the
constitution of the United States. The convention created by
a resolution of Congress had authority to do one thing, and
one only, to wit, amend the articles of confederation. This
they did not do, but submitted to the sovereign power, the
people, a new constitution. In this manner was the
constitution of the United States submitted to the people and
it became operative as the organic law of this nation when it
'had been properly adopted by the people.
"Pomeroy's Constitutional Law, p. 55, discussing the
convention that formulated the constitution of the United
States, has this to say: 'The convention proceeded to do, and
did accomplish, what they were not authorized to do by a
resolution of Congress that called them together. That
resolution plainly contemplated amendments to the articles of
confederation, to be submitted to and passed by the
Congress, and afterwards ratified by all the State
legislatures, in the manner pointed out by the existing organic
law. But the convention soon became convinced that any
amendments were powerless to effect a cure; that the
disease was too deeply seated to be reached by such
tentative means. They saw that the system they were called
to improve must be totally abandoned, and that the national
idea must be re-established at the center of their political
society. It was objected by some members, that they had no
power, no authority, to construct a new government. They
had no authority, if their decisions were to be final; and no
authority whatever, under the articles of confederation, to
adopt the course they did. But they knew that their labors
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private individuals, and any private individuals as well as

they, had a right to propose a plan of government to the
people for their adoption. They were, in fact, a mere
assemblage of private citizens, and their work had no more
binding sanction than a constitution drafted by Mr. Hamilton
in his office, would have had. The people, by their expressed
will, transformed this suggestion, this proposal, into an
organic law, and the people might have done the same with a
constitution submitted to them by a single citizen.'
xxx xxx xxx
". . . When the people adopt a completely revised or
new Constitution, the framing or submission of the instrument
is not what gives it binding force and effect. The fiat of the
people, and only the that of the people, can breathe life into a
constitution.
xxx xxx xxx
". . . We do not hesitate to say that a court is never
justified in placing by implication a limitation upon the
sovereign. This would be an authorized exercise of sovereign
power by the court. In State v. Swift, 69 Ind. 505, 519, the
Indiana Supreme Court said: 'The people of a State may
form an original constitution, or abrogate an old one and form
a new one, at any time, without any political restriction except
the constitution of the United States; . . ." (37 SE 327-328,
329, italics supplied.)

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

"It remains to be said that if we felt at liberty to pass
upon this question, and were compelled to hold that the act
of February 23, 1887, is unconstitutional and void, it would
not, in our opinion, by any means follow that the amendment
is not a part of our state Constitution. In the recent case of
Taylor vs. Commonwealth (Va.) 44 S.E. 754, the Supreme
Court of Virginia hold that their state Constitution of 1902,
having been acknowledged and accepted by the officers
administering the state government, and by the people, and
being in force without opposition, must be regarded as an
existing Constitution, irrespective of the question as to
whether or not the convention which promulgated it had
authority so to do without submitting it to a vote of the people.
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In Brittle v. People, 2 Neb. 198, is a similar holding as to

certain provisions of the Nebraska Constitution of 1886,
which were added by the Legislature at the requirement of
Congress, though never submitted to the people for their
approval." (97 NW 349-350; italics supplied).

Against the decision in the Wheeler case, supra, confirming the validity of the
ratification and adoption of the American Constitution, in spite of the fact that
such ratification was a clear violation of the prescription on alteration and
ratification of the Articles of Confederation and Perpetual Union, petitioners
in G.R. No. L-36165 dismissed this most significant historical fact by calling
the Federal Constitution of the United States as a revolutionary one, invoking
the opinion expressed in Vol. 16, Corpus Juris Secundum, p. 27, that it was
a revolutionary constitution because it did not obey the requirement that the
Articles of Confederation and Perpetual Union can be amended only with the
consent of all thirteen (13) state legislatures. This opinion does not cite any
decided case, but merely refers to the footnotes on the brief historical
account of the United States Constitution on p. 679 of Vol. 12, CJS.
Petitioners, on p. 18 of their main Notes, refer US to pp. 270-316 of the
Oxford History of the American People, 1965 Ed. by Samuel Eliot Morison,
who discusses the Articles of Confederation and Perpetual Union in Chapter
XVIII captioned "Revolutionary Constitution Making, 1775 1781" (pp. 270281). In Chapter XX on "The Creative Period in Politics, 1785-1788,"
Professor Morison delineates the generals of the Federal Constitution, but
does not refer to it even implicitly as a revolutionary constitution (pp. 297316). However, the Federal Constitution may be considered revolutionary
from the view point of McIver if the term revolution is understood in "its wider
sense to embrace decisive changes in the character of government, even
though they do not involve the violent overthrow of an established order, . . ."
(R.M. MacIver, The Web of Government, 1965 ed., p. 203).
It is rather ridiculous to refer to the American Constitution as a revolutionary
constitution. The Articles of Confederation and Perpetual Union that was in
force from July 12, 1776 to 1788, forged as it was during the war of
independence was a revolutionary constitution of the thirteen (13) states. In
the existing Federal Constitution of the United States which was adopted
seven (7) or nine (9) years after the thirteen (13) states won their
independence and long after popular support for the government of the
Confederation had stabilized was not a product of a revolution. The Federal
Constitution was a "creation of the brain and purpose of man" in an era of
peace. It can only be considered revolutionary in the sense that it is a radical
departure from its predecessor, the Articles of Confederation and Perpetual
Union.

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It is equally absurd to affirm that the present Federal Constitution of the

United States is not the successor to the Articles of Confederation and
Perpetual Union. The fallacy of the statement is so obvious that no further
refutation is needed.
As heretofore stated, the issue as to the validity of Proclamation No. 1102
strikes at the validity and enforceability of the 1973 Constitution and of the
government established and operating thereunder. Petitioners pray for a
declaration that the 1973 Constitution is inoperative (L-36164). If
Proclamation No. 1102 is nullified, then there is no valid ratification of the
1973 Constitution and the inevitable conclusion is that the government
organized and functioning thereunder is not a legitimate government.
That the issue of the legitimacy of a government is likewise political and not
justiciable, had long been decided as early as the 1849 case of Luther vs.
Borden (7 How. 1, 12 L.ed., 581), affirmed in the 1900 case of Taylor vs.
Beckham (178 U.S. 548, 44 L.ed. 1187) and re-enunciated in 1912 in the
case of Pacific States Telephone and Telegraph Company vs. Oregon (223
U.S. 118, 133-151, 56 L.ed. 377-386). Because it reaffirmed the
pronouncements in both Borden and Beckham cases, it is sufficient for us to
quote the decision in Pacific States Telephone and Telegraph Co., supra,
penned by Mr. Chief Justice White, who restated:
"In view of the importance of the subject, the apparent
misapprehension on one side and seeming misconception on
the other, suggested by the argument as to the full
significance of the previous doctrine, we do not content
ourselves with a mere citation of the cases, but state more at
length than we otherwise would the issues and the doctrine
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 the plaintiff, and it should be decided
that the charter government had no legal existence during
the period of time above mentioned, if it had been
annulled by the adoption of the opposing government,
then the laws passed by its legislature during that time were
nullities; its taxes wrongfully collected; its salaries and
compensation to its officers illegally paid; its public accounts
improperly settled; and the judgments and sentences of its
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courts in civil and criminal cases null and void, and the
officers who carried their decisions into operation answerable
as trespassers, if not in some cases as criminals.'
xxx xxx xxx
" 'The fourth section of the fourth article of the
Constitution of the United States shall guarantee to every
state in the Union a republican form of government, and shall
protect each of them against invasion; and on the application
of the Legislature or of the Executive (when the legislature
cannot be convened) against domestic violence.
" 'Under this article of the Constitution it rests with
Congress to decide what government is the established one
in a state. For, as the United State guarantee to each state a
republican government, Congress must necessarily decide
what government is established in the state before it can
determine whether it is republican or not. And when the
senators and representatives of a state are admitted into the
councils of the Union, the authority of the government under
which they are appointed, as well as its republican character,
is recognized by the proper constitutional authority. And its
decision is binding on every other department of the
government, and could not be questioned in a judicial
tribunal. It is true that the contest in this case did not last long
enough to bring the matter to this issue; and as no senators
or representatives were elected under the authority of the
government of which Mr. Dorr was the head, Congress was
not called upon to decide the controversy. Yet the right to
decide is placed there, and not in the courts.'
xxx xxx xxx
". . . We do not stop to cite other cases which
indirectly or incidentally refer to the subject, but conclude by
directing attention to the statement by the court, speaking
through Mr. Chief Justice Fuller, in Taylor vs. Beckham, 178
U.S. 548, 44 L.ed. 1187, 20 Sup. Ct. Rep. 890, 1009, where,
after disposing of a contention made concerning the 14th
Amendment, and coming to consider a proposition which was
necessary to be decided concerning the nature and effect of
the guaranty of S 4 of article 4, it was said (p. 578):
" 'But it is said that the 14th Amendment must be read
with S 4 of article 4, of the Constitution, providing that 'the
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United States shall guarantee to every state in this Union a

republican form of government, and shall protect each of
them against invasion; and on application of the legislature,
or the Executive (when the legislature cannot be convened),
against domestic violence.'
xxx xxx xxx
" 'It was long ago settled that the enforcement of this
guaranty belonged to the political department. Luther v.
Borden, 7 How. 1,12 L.ed. 581. In that case it was held that
the question, which of the two opposing governments of
Rhode Island, namely, the charter government or the
government established by a voluntary convention, was the
legitimate one, was a question for the determination of the
political department; and when that department had decided,
the courts were bound to take notice of the decision and
follow it '
xxx xxx xxx
"As the issues presented, in their very essence, are,
and have long since by this court been, definitely determined
to be political and governmental, and embraced within the
scope of the powers conferred upon Congress, and not,
therefore, within the reach of judicial power, it follows that the
case presented is not within our jurisdiction, and the writ of
error must therefore be, and it is, dismissed for want of
jurisdiction. " (223 U.S. pp. 142-151; italics supplied).

Even a constitutional amendment that is only promulgated by the

Constitutional Convention without authority 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
functionaries as well as by the people. In the 1903 case of Taylor vs.
Commonwealth (44 SE 754-755), the Court ruled:
"The sole ground urged in support of the contention
that the Constitution proclaimed in 1902 is invalid is that it
was ordained and promulgated by the convention without
being submitted for ratification or rejection by the people of
the commonwealth.
"The Constitution of 1902 was ordained and
proclaimed by a convention duly called by direct vote of the
people of the state to revise and amend the Constitution of
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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 the Governor in swearing fidelity
to it and proclaiming it, as directed thereby; by the
Legislature in its formal official act adopting a joint resolution,
July 15, 1902, recognizing the Constitution ordained by the
convention which assembled in the city of Richmond on the
12th day of June, 1901, as the Constitution of Virginia; by the
individual oaths of its members to support it, and by its
having been engaged for nearly a year in legislating under it
and putting its provisions into operation; but the judiciary in
taking the oath prescribed thereby to support it, and by
enforcing its provisions; and by the people in their primary
capacity by peacefully accepting it and acquiescing in it, by
registering as voters under it to the extent of thousands
throughout the state, and by voting, under its provisions, at a
general election for their representatives in the Congress of
the United States." (p. 755).

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

"While constitutional procedure for adoption or
proposal to amend the constitution must be duly followed,
without omitting any requisite steps, courts should uphold
amendment, unless satisfied that the constitution was
violated in submitting the proposal . . . Substance more than
form must be regarded in considering whether the complete
constitutional system or submitting the proposal to amend the
constitution was observed."

In the 1925 case of Taylor vs. King (130 A 407, 408 410), the Court stated:
"There may be technical error in the manner in which
a proposed amendment is adopted or in its advertisement,
act, yet if followed, unobjected to, by approval of the electors,
it becomes part of the Constitution. Legal complaints to the
submission may be made prior to taking the vote but, if once
sanctioned, the amendment is embodied therein and cannot
be attacked, either directly or collaterally, because of any
mistake antecedent thereto. Even though it be submitted at
an improper time, it is effective for all purposes when
accepted by the majority. Armstrong v. King, 281 Pa. 207,
126 A. 263." (130 A 409).

Even if the act of the Constitutional Convention is beyond its authority, such
act becomes valid upon ratification or adoption or acquiescence by the
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people. Thus, in the 1905 case of Ex parte Birmingham and A.R. Company
(42 SO pp. 118 & 123), the Alabama Supreme Court upheld this principle
and stated that: "The authorities are almost uniform that this ratification of an
unauthorized act by the people (and the people are the principal in this
instance) renders the act valid and binding."
It has likewise been held that it is not necessary that voters ratifying the new
Constitution are registered in the book of voters; it is enough that they are
electors voting on the new Constitution. (Bott vs. Wurts, 40 A 740 [1899]; 45
LRA 251, italics supplied).
In the 1956 case of Thomson vs. Peoples State Bank (75 NW 2nd 370, 375),
the Supreme Court of Wisconsin ruled that "irregularity in the procedure for
the submission of the proposed constitutional amendment will not defeat the
ratification by the people."
Again, in the 1958 case of Swaim vs. Tuscaloosa County (103 SO 2nd 769),
the Alabama Supreme Court pronounced that "the irregularity in failing to
publish the proposed constitutional amendment once in each of the 4
calendar weeks next preceding the calendar week in which the election was
held or once in each of the 7-day periods immediately preceding the day of
the election as required by the Constitution, did not invalidate the
amendment which was ratified by the people."
The same principle was reiterated in 1961 by the Mississippi Supreme Court
in Barnes, et al. v. Ladner (131) SO 2nd 458, 462), where the admitted
irregularities or illegalities committed in the procedure for submission of the
proposed constitutional amendment to the people for ratification consisted of:
"(a) the alleged failure of the county election commissioners of the several
counties to provide a sufficient. number of ballot boxes 'secured by good and
substantial locks,' as provided by Section 3249, Code of 1942, Rec., to be
used in the holding of the special election on the constitutional amendment,
and (b) the alleged failure of the State Election Commissioners to comply
with the requirements of Code Sections 3204 and 3205 in the appointment of
election commissioners in each of the 82 counties. The irregularities
complained of, even if proved, were not such irregularities 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 and during the deliberations of the Constitutional
Convention from June 1, 1971 until martial law was proclaimed on Sept. 21,
1972, the salient reforms contained in the 1973 Constitution which have long
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committees of the Constitutional Convention, on the floor of the convention

itself, in civic forums and in all the media of information. Many of the decrees
promulgated by the Chief Executive from Sept. 22, 1972 to Jan. 17, 1973
implement some of the reforms and had been ratified in Sec. 3(2) of Article
XVII of the Constitution.
Petitioners cannot safely state that during martial law the majority of the
people cannot freely vote for these reforms and are not complying with the
implementing decrees promulgated by the President.
Free election is not inevitably incompatible with martial law. We had free
elections in 1951 and 1971 when the opposition won six out of eight
senatorial seats despite the suspension of the privileges of the writ of habeas
corpus (see Lansang vs. Garcia, et al., Dec. 14, 1971, 42 SCRA 448), which
suspension implies constraint on individual freedom as the proclamation of
martial law. In both situations, there is no total blackout of human rights and
civil liberties.
All the local governments, dominated either by Nacionalistas or Liberals, as
well as officials of the Legislative and Executive branches of the government
elected and/or appointed under the I935 Constitution have either recognized
or are now functioning under the 1973 Constitution, aside from the fact of its
ratification by the sovereign people through the Citizens' Assemblies. Ninetyfive (95) of a total of one hundred ten (110) members of the House of
Representatives including the Speaker and the Speaker Pro Tempore as
well as about eleven (11) Congressmen who belong to the Liberal Party and
fifteen (15) of a total of twenty-four (24) senators including Liberal senators
Edgar U. Ilarde and John Osmea opted to serve in the Interim Assembly,
according to the certification of the Commission on Elections dated February
19, 1973 (Annex Rejoinder-3 to Consolidated Rejoinder of petitioners in L36165). Only the five (5) petitioners in L-36165 close their eyes to a fait
accompli. All the other functionaries recognize the new government and are
performing their duties and exercising their powers under the 1973
Constitution, including the lower courts. The civil courts, military tribunals and
quasi-judicial bodies created by presidential decrees have decided some
criminal, civil and administrative cases pursuant to such decrees. The foreign
ambassadors who were accredited to the Republic of the Philippines before
martial law continue to serve as such in our country; while two new
ambassadors have been accepted by the Philippines after the ratification of
the 1973 Constitution on January 17, 1973. Copies of the 1973 Constitution
had been furnished the United Nations Organization and practically all the
other countries with which the Philippines has diplomatic relations. No
adverse reaction from the United Nation or from the foreign states has been
manifested. On the contrary, our permanent delegate to the United Nations
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Organization and our diplomatic representatives abroad appointed before

martial law continue to remain in their posts and are performing their
functions as such under the 1973 Constitution.
Even the Commission on Elections is now implementing the provisions of the
1973 Constitution by requiring all election registrars to register 18-year olds
and above whether literates or not, who are qualified electors under the 1973
Constitution (see pars. 1-A(c), (d), & (e) of Annex A to Notes of respondents
Puyat and Roy in L 36165).
In brief, it cannot be said that the people are ignoring the 1973 Constitution
and the government which is enforcing the same for over 10 weeks now.
With the petitioners herein, secessionists, rebels and subversives as the only
possible exceptions, the rest of the citizenry are complying with the decrees,
orders and circulars issued by the incumbent President implementing the
1973 Constitution
Of happy relevance on this point is the holding in Miller vs. Johnson 18 SW
522):
"If a set of men, not selected by the people according
to the forms of law, were to formulate an instrument and
declare it the constitution, it would undoubtedly be the duty of
the courts to declare its work a nullity. This would be
revolution, and this the courts of the existing government
must resist until they are overturned by power, and a new
government established. The convention, however, was the
offspring of law. The instrument which we are asked to
declare invalid as a constitution has been made and
promulgated according to the forms of law. It is a matter of
current history that both the executive and legislative
branches of the government have recognized its validity as a
constitution, and are now daily doing so. Is the question,
therefore, one of a judicial characters It is our undoubted
duty, if a statute be unconstitutional, to so declare it; also, if a
provision of the state constitution be in conflict with the
federal constitution, to hold the former invalid. But this is a
very different case. It may be said, however, that, for every
violation of or non-compliance with the law, there should be a
remedy in the courts. This is not, however, always the case.
For instance, the power of a court as to the acts of other
departments of the government is not an absolute one, but
merely to determine whether they have kept within
constitutional limits, it is a duty, rather than a power. The
judiciary cannot compel a co-equal department to perform a
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duty. It is responsible to the people; but if it does act, then,

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

what amendments are material, and the result would be
confusion and anarchy. One judge might say that all the
amendments, material and immaterial, were void; another,
that the convention had then the implied power to correct
palpable errors, and then the Court might differ as to what
amendments are material. If the instrument as ratified by the
people could not be corrected or altered at all or if the court
must determine what changes were material, then the
instrument, as passed upon by the people or as fixed by the
court could be lacking a promulgation by the convention; and,
if this be essential, then the question would arise, what
constitution are we now living under, and what is the organic
law of the state? A suggestion of these matters shows what
endless confusion and harm to the state might and likely
would arise. If, through error of opinion, the convention
exceeded its powers, and the people are dissatisfied, they
have ample remedy, without the judiciary being asked to
overstep the proper limits of its power. The instrument
provides for amendment and change. If a wrong has been
done, it can, and the proper way in which it should be
remedied, is by the people acting as a body politic. It is not a
question of whether merely an amendment to a constitution,
made without calling a convention, has been adopted, as
required by that constitution. If it provides how it is to be
done, then, unless the manner be followed, the judiciary, as
the interpreter of that constitution, will declare the
amendment invalid. Koehler v. Hill, 60 Iowa, 54.3,14 N.W.
Rep. 738, and 15 N.W. Rep. 609; State v. Tuffy, 19 Nev.
.391, 12 Pac. Rep. 835. But it is a case where a new
constitution has been formed and promulgated according to
the forms of law. Great interests have already arisen under it;
important rights exist by virtue of it; persons have been
convicted of the highest crimes known to the law, according
to its provisions; the political power of the government has in
many ways recognized it; and, under such circumstances, it
is our duty to treat and regard it as a valid constitution, and
now the organic law of our commonwealth.

"We need not consider the validity of the amendments

made after the convention reassembled. If the making of
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them was in excess of its powers, yet, as the entire

instrument has been recognized as valid in the manner
suggested, it would be equally an abuse of power by the
judiciary and violative of the rights of the people, who can
and properly should remedy the matter, if not to their liking,
if it were to declare the instrument of a portion invalid, and
bring confusion and anarchy upon state." (italics supplied).

If this Court inquires into the validity of Proclamation No. 1102 and
consequently of the adoption of the 1973 Constitution, it would be exercising
a veto power on the act of the sovereign people, of whom this Court is
merely an agent, which to say the least, would be anomalous. This Court
cannot dictate to our principal, the sovereign people, as to how the approval
of the new Constitution should be manifested or expressed. The sovereign
people have spoken and we must abide by their decision, regardless of our
notion as to what is the proper method of giving assent to the new Charter.
In this respect, WE cannot presume to know better than the incumbent Chief
Executive, who, unlike the members of this Court, only last January 8, 1973,
We affirmed in Osmea vs. Marcos (Pres. Election Contest No. 3, Jan. 8,
1973), was re-elected by the vote of over 5 million electors in 1969 for
another term of four years until noon of December 30, 1973 under the 1935
Constitution. This Court, not having a similar mandate by direct fiat from the
sovereign people, to execute the law and administer the affairs of
government, must restrain its enthusiasm to sally forth into the domain of
political action expressly and exclusively reserved by the sovereign people
themselves.
The people in Article XV of the 1935 Constitution did not intend to tie their
hands to a specific procedure for popular ratification of their organic law.
That would be incompatible with their sovereign character of which We are
reminded by Section 1, of Article II of both the 1935 and the 1973
Constitutions.
The Opinion of Judge Thomas McIntire Cooley that the sovereign people
cannot violate the procedure for ratification which they themselves define in
their Constitution, cannot apply to a unitary state like the Republic of the
Philippines. His opinion expressed in 1868 may apply to a Federal State like
the United States, in order to secure and preserve the existence of the
Federal Republic of the United States against any radical innovation initiated
by the citizens of the fifty (50) different states of the American Union, which
states may be jealous of the powers of the Federal government presently
granted by the American Constitution. This dangerous possibility does not
obtain in the case of our Republic.
Then again, Judge Cooley advanced the aforesaid opinion in 1868 when he
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wrote his opus "Constitutional Limitations." * (Vol. 6, Encyclopedia Brit., 1969

ed. pp. 445-446). It is possible that, were he live today, in a milieu vastly
different from 1868 to 1898, he might have altered his views on the matter.
Even if conclusiveness is to be denied to the truth of the declaration by the
President in Proclamation No. 1102 that the people through their Citizens'
Assemblies had overwhelmingly approved the new Constitution, due regard
to a separate, coordinate and co-equal branch of the government demands
adherence to the presumption of correctness of the President's declaration.
Such presumption is accorded under the law and jurisprudence to officials in
the lower levels of the Executive branch; there is no over-riding reason to
deny the same to the Chief of State as head of the Executive Branch. WE
cannot reverse the rule on presumptions, without being presumptuous, in the
face of the certifications by the Office of the Secretary of the Department of
Local Government and Community Development. (Annexes 1, to 1-E,
Annexes 2 to 2-O to the compliance with manifestation filed by the Solicitor
General on behalf of the respondents public officers dated March 7,1973).
There is nothing in the 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 to the respondents.
Under the rules on pleadings, the petitioners have the duty to demonstrate
by clear and convincing evidence their claim that the people did not ratify
through the Citizens' Assemblies nor adopt by acquiescence the 1973
Constitution. And 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 basis of reports relayed to him from private sources
which could be biased and hearsay, aside from the fact that such reports are
not contained in the record. Proclamation No. 1102 is not just an ordinary act
of the Chief Executive. It is a well-nigh solemn declaration which announces
the highest act of the sovereign people their imprimatur to the basic
Charter that shall govern their lives hereafter may be for decades, if not
for generations.
Petitioners decry that even 15-year olds, ex-convicts and illiterates were
allowed to vote in the Citizens' Assemblies, despite their admission that the
term "Filipino people" in the preamble as well as "people" in Sections 1 and 5
of Article II of the 1935 Constitution and in Section 1(3) of Article III of the Bill
of Rights includes all Filipino citizens of all ages, of both sexes, whether
literate or illiterate, whether peaceful citizens, rebels, secessionists, convicts
or ex-convicts. Without admitting that ex-convicts voted in the referendum,
about which no proof was even offered, these sectors of our citizenry, whom
petitioners seem to regard with contempt or derision and whom petitioners
would deny their sovereign right to pass upon the basic Charter that shall
govern their lives and the lives of their progenies, are entitled as much as the
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educated, the law abiding, and those who are 21 years of age or above to
express their conformity or non-conformity to the proposed Constitution,
because their stake under the new Charter is not any less than the stake of
the more fortunate among us. As a matter of fact, these citizens, whose
juridical personality or capacity to act is limited by age, civil interdiction or
ignorance deserve more solicitude from the State than the rest of the
citizenry. In the ultimate analysis, the inclusion of those from 15 years up to
below 21 years old, the ex-convicts and the ignorant, is more democratic as
it broadens the base of democracy and therefore more faithful to the express
affirmation in Section 1 of Article II of the Declaration of Principles that
"sovereignty resides in the people and all government authority emanates
from them."
Moreover, ex-convicts granted absolute pardon are qualified to vote. Not all
ex-convicts are banned from voting. Only those who had been sentenced to
at least one year imprisonment are disenfranchised but they recover their
right of suffrage upon expiration of ten years after service of sentence (Sec.
102, 1971 Rev. Elec. Code). Furthermore, ex-convicts and imbeciles
constitute a very negligible number in any locality or barrio, including the
localities of petitioners.
Included likewise in the delegated authority of the President, is the
prerogative to proclaim the results of the plebiscite or the voting the Citizens'
Assemblies. Petitioners deny the accuracy or correctness of Proclamation
No. 1102 that the 1973 Constitution was ratified by the overwhelming vote of
close to 15 million citizens because there was no official certification as to
the results of the same from the Department of Local Governments. But
there was such certification as per Annexes 1 to 1-A to the Notes submitted
by the Solicitor General as counsel for respondents public officers. This
should suffice to dispose of this point. Even in the absence of such a
certification, in much the same way that in passing laws, Congress or the
legislative body is presumed to be in possession of the facts upon which
such laws are predicated (Justice Fernando, The Power of Judicial Review,
1967 Ed., pp. 112-113, 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 the facts upon which
Proclamation No. 1102 was based. This presumption is further strengthened
by the fact that the Department of Local Governments, the Department of
National Defense and the Philippine Constabulary as well as the Bureau of
Posts are all under the President, which offices, as his alter ego, are
presumptively acting for and in behalf of the President and their acts are
valid until disapproved or reprobated by the President (Planas vs. Gil, 67
Phil. 62, Villena vs. Secretary of Interior, 67 Phil. 451). To deny the truth of
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the proclamation of the President as to the overwhelming majority vote in the

Citizens' Assemblies in favor of the new Constitution, is to charge the
President with falsification, which is a most grievous accusation. Under the
rules of pleadings and evidence, the petitioners have the burden of proof by
preponderance of evidence in civil cases and by proof beyond reasonable
doubt in criminal prosecutions, where the accused is always presumed to be
innocent. Must this constitutional right be reversed simply because the
petitioners all assert the contrary? 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 and jurisprudence to acts of public officers whose
category in the official hierarchy is very much lower than that of the Chief of
State. What reason is there to withhold such a presumption in favor of the
President? Does the fact that the President belong to the party in power and
that four (4) of the five (5) senators who are petitioners in L-36165 belong to
the opposition party, justify a discrimination against the President in matters
of this nature? Unsupported as their word is by any credible and competent
evidence under the rules of evidence, must the word of the petitioners prevail
over that of the Chief Executive, because they happen to be former senators
and delegates to the Constitutional Convention? More than any of the
petitioners herein in all these cases, the incumbent President realizes that he
risks the wrath of his people being visited upon him and the adverse or
hostile verdict of history; because of the restrictions on the civil liberties of his
people, inevitable concomitants of martial law, which necessarily entail some
degree of sacrifice on the part of the citizenry. Until the contrary is
established or demonstrated, herein petitioners should grant that the Chief
Executive is motivated by what is good for the security and stability of the
country, for the progress and happiness of the people. All the petitioners
herein cannot stand on the proposition that the rights under the 1935
Constitution are absolute and invulnerable to limitations that may be needed
for the purpose of bringing about the reforms for which the petitioners
pretend to be clamoring for and in behalf of the people. The five (5)
petitioners in L-36165 and four (4) of the seven (7) petitioners in L-36164
were all participants in the political drama of this country since 1946. They
are witness to the frustrations of well-meaning Presidents who wanted to
effect the reforms, especially for the benefit of the landless and the laboring
class how politics and political bargaining had stymied the effectuation of
such reforms thru legislation. The eight (8) petitioners in L-36164 and L36165 may not have participated in the systematic blocking of the desired
reforms in Congress or outside of it; but the question may be asked as to
what exactly they did to support such reforms. For the last seven (7)
decades since the turn of the century, for the last thirty-five (35) years since
the establishment of the Commonwealth government in 1935 and for the last
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twenty seven (27) years since the inauguration of the Republic on July 4,
1946, no tangible substantial reform had been effected, funded and seriously
implemented, despite the violent uprisings in the thirties, and from 1946 to
1952, and the violent demonstrations of recent memory. Congress and the
oligarchs acted like ostriches, "burying their heads in timeless sand." Now
the hopes for the long-awaited reforms to be effected within a year or two are
brighter. It would seem therefore to be the duty of everyone including herein
petitioners to give the present leadership the opportunity to institute and
carry out the needed reforms as provided for in the new or 1973 Constitution
and thru the means prescribed in that same Constitution.
As stated in Wheeler vs. Board of Trustees, "a court is never justified in
placing by implication a limitation upon the sovereign."
This Court in the Gonzales and Tolentino cases transcended its proper
sphere and encroached upon the province exclusively reserved to and by the
sovereign people. This Court did not pay heed to the principle that the courts
are not the fountain spring of all remedies for all wrongs. WE cannot
presume that we alone can speak with wisdom as against the judgment of
the people on the basic instrument which affects their very lives. WE cannot
determine what is good for the people or what ought to be their fundamental
law. WE can only exercise the power delegated to Us by the sovereign
people, to apply or interpret the Constitution and the laws for the benefit of
the people, not against them nor to prejudice them. WE cannot perform an
act inimical to the interest of Our principal, who at any time may directly
exercise their sovereign power of ratifying a new Constitution in the manner
convenient to them
It is pertinent to ask whether the present Supreme Court can function under
the 1935 Constitution without being a part of the government established
pursuant thereto. Unlike in the Borden case, supra, where there was at least
another government claiming to be the legitimate organ of the state of Rhode
Island (although only on paper as it had no established organ except Dorr
who represented himself to be its head; in the cases at bar there is no other
government distinct from and maintaining a position against the existing
government headed by the incumbent Chief Executive. (See Taylor vs.
Commonwealth, supra). There is not even a rebel government duly
organized as such even only for domestic purposes, let alone a rebel
government engaged in international negotiations. As heretofore stated, both
the executive branch and the legislative branch established under the 1935
Constitution had been supplanted by the government functioning under the
1973 Constitution as of January 17, 1973. The vice president elected under
the 1935 Constitution does not asset any claim to the leadership of the
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Republic of the Philippines. Can this Supreme Court legally exist without
being part of any government?
Brilliant counsel for petitioners in L-36165 has been quite extravagant in his
appraisal of Chief Justice Roger Brooke Taney whom he calls the "hero of
the American Bar," because during the American civil war he apparently had
the courage to nullify the proclamation of President Lincoln suspending the
privileges of the writ of habeas corpus in Ex parte Merryman (Federal Case
No. 9487 [1861]). But who exactly was Chief Justice Roger Brooke Taney?
The Editorial Board of Vol. 21 of the Encyclopedia Brit., 1966 ed. (pp. 778779, 1969 ed., pp. 654-657), briefly recounts that he was born in 1777 in
Calvert County, Maryland, of parents who were landed aristocrats as well as
slave owners. Inheriting the traditional conservatism of his parents who
belonged to the landed aristocracy, Taney became a lawyer in 1799,
practiced law and was later appointed Attorney General of Maryland. He also
was a member of the Maryland state legislature for several terms. He was a
leader of the Federalist Party, which disintegrated after the war of 1812,
compelling him to join the Democratic Party of Andrew Jackson, also a slave
owner and landed aristocrat, who later appointed him first as Attorney
General of the United States, then Secretary of the Treasury and in 1836
Chief Justice of the United States Supreme Court to succeed Chief Justice
John Marshall, in which position he continued for 28 years until he died on
October 21, 1864. His death "went largely unnoticed and unregretted."
Because he himself was a slave owner and a landed aristocrat, Chief Justice
Taney sympathized with the Southern States and, even while Chief Justice,
hoped that the Southern States would be allowed to secede peacefully from
the Union. That he had no sympathy for the Negroes was revealed by his
decision in Dred Scott vs. Sandford (19 How. 398 [1857]) where he
pronounced that the American Negro is not entitled to the rights of an
American citizen and that his status as a slave is determined by his returning
to a slave state. Once can therefore discern his hostility towards President
Lincoln when he decided Ex parte Merryman, which animosity to say the
least does not befit a judicial mind. Such a man could hardly be spoken of as
a hero of the American Bar, least of all of the American nation. The choice of
heroes should not be expressed indiscriminately just to embellish one's
rhetoric.
Distinguished counsel in L-36165 appears to have committed another
historical error, which may be due to his rhetorical in the Encyclopedia
Britannica (Vol. 9, 1969 ed., pp. 508-509) to this effect. On the contrary,
Encyclopedia Britannica (Vol. 17, Encyclopedia Brit., 1966 & 1969 eds., 732733), refers to Marshal Henri Philippe Petain as the genuine hero or "Saviour
of Verdun"; because he held Verdun against the 1916 offensive of the
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demoralized and plotting mutiny. Certainly, the surviving members of the

family of Marshal Petain would not relish the error. And neither would the
members of the clan of Marshal Foch acknowledge the undeserved
accolade, although Marshal Foch has a distinct place in history on his own
merits. The foregoing clarification is offered in the interest of true scholarship
and historical accuracy, so that the historians, researchers and students may
not be led astray or be confused by esteemed counsel's eloquence and
mastery of the spoken and written word as well as by his eminence as law
professor, author of law books, political leader, and member of the newly
integrated Philippine Bar.
It is quite intriguing why the eminent counsel and co-petitioner in L-36164 did
not address likewise his challenge to the five (5) senators who are petitioners
in L-36165 to also act as "heroes and idealists," to defy the President by
holding sessions by themselves alone in a hotel or in their houses if they can
muster a quorum or by causing the arrest of other senators to secure a
quorum and thereafter remove respondents Puyat and Roy (Avelino, et al.
vs. Cuenco, et al. [1949] 83 Phil. 17), if they believe most vehemently in the
justice and correctness of their position that the 1973 Constitution has not
been validly ratified, adopted or acquiesced in by the people since January
18, 1973 until the present. The proclaimed conviction of petitioners in L
36165 on this issue would have a ring of credibility, if they proceeded first to
hold a rump session outside the legislative building; because it is not
unreasonable to demand or to exact that he who exhorts others to be brave
must first demonstrate his own courage. Surely, they will not affirm that the
mere filing of their petition in L-36165 already made them "heroes and
idealists." The challenge likewise seems to insinuate that the members of
this Court who disagree with petitioners' views are materialistic cowards or
mercenary fence-sitters. The Court need not be reminded of its solemn duty
and how to perform it. WE refuse to believe that petitioners and their learned
as well as illustrious counsels, scholars and liberal thinkers that they are, do
not recognize the sincerity of those who entertain opinions that clash with
their own. Such an attitude does not sit well with the dictum that "We can
differ without being difficult; we can disagree without being disagreeable,"
which distinguished counsel in L 36165 is wont to quote.
WE reserve the right to prepare an extensive discussion of the other points
raised by petitioners, which We do not find now necessary to deal with in
view of Our opinion on the main issue.
IN VIEW OF THE FOREGOING, ALL THE PETITIONS IN THESE FIVE
CASES SHOULD BE DISMISSED.
MAKASIAR, J.:
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Pursuant to Our reservation, We now discuss the other issues raised by the
petitioners.
II
EVEN IF ISSUE IS JUSTICIABLE, PEOPLE'S RATIFICATION,
ADOPTION OR ACQUIESCENCE CREATES STRONG PRESUMPTION
OF VALIDITY OF 1973 CONSTITUTION.
As intimated in the aforecited cases, even the courts, which affirm the
proposition that the question as to whether a constitutional amendment or
the revised or new Constitution has been validly submitted to the people for
ratification in accordance with the procedure prescribed by the existing
Constitution, is a justiciable question, accord all the presumption of validity to
the constitutional amendment or the revised or new Constitution after the
government officials or the people have adopted or ratified or acquiesced in
the new Constitution or amendment, although there was an illegal or
irregular or no submission at all to the people. (Collier vs. Gray, 4th Dec. Dig.
935 [1934]; Hammond vs. Clark, 71 SE 479, 482-483; People vs. Sours, 31
Colo. 369, 74 Pac. 167, 102 Am. St. Rep. 34; Thompson vs. Winneth, 78
Neb. 379, 110 NW 1113, 10 L.R.A. [N.S.] 149; State vs. Laylin, 69 Ohio St.
Rep. 1, 68 NE 574; Weston vs. Ryan, 70 Neb. 211, 97 NW 347; Combs vs.
State, 81 Ga. 780, 8 SE 318; Woodward vs. State, 103 Ga. 496, 30 SE 522;
Corre vs. Cooney, 70 Mont. 355, 225 P 1007, 1009). As late as 1971, the
courts stressed that the constitutional amendment or the new Constitution
should not be condemned "unless in our judgment its nullity is manifest
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 of constitutionality must persist in the absence of factual
foundation of record to overthrow such presumption (Ermita-Malate Hotel,
etc. vs. City Mayor, L-24698, July 31, 1967, 20 SCRA 849).
III
CONSTITUTIONAL CONVENTION CO-EQUAL WITH
INDEPENDENT OF CONGRESS, EXECUTIVE AND JUDICIARY.

AND

The Constitutional Convention is co-ordinate and co-equal with, as well as

independent of, the three grand departments of the Government, namely, the
legislative, the executive and the judicial. As a fourth separate and distinct
branch, to emphasize its independence, the Convention cannot be dictated
to by either of the other three departments as to the content as well as form
of the Charter that it proposes. It enjoys the same immunity from interference
or supervision by any of the aforesaid branches of the Government in its
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proceedings, including the printing of its own journals (Taada and

Fernando, Constitution of the Philippines, 1952 ed., Vol. I, pp. 8-9; Malcolm
and Laurel, Phil. Const. Law, p. 22; Frantz vs. Autry, 91 Pac. 193). Implicit in
that independence, for the purpose of maintaining the same unimpaired and
in order that its work will not be frustrated, the Convention has the power to
fix the date for the plebiscite and to provide funds therefor. To deny the
Convention such prerogative, would leave it at the tender mercy of both
legislative and executive branches of the Government. An unsympathetic
Congress would not be disposed to submit the proposed Constitution drafted
by the Constitutional Convention to the people for ratification, much less
appropriate the necessary funds therefor. That could have been the fate of
the 1973 Constitution, because the same abolished the Senate by creating a
unicameral National Assembly to be presided by a Prime Minister who wields
both legislative and executive powers and is the actual Chief Executive, for
the President contemplated in the new Constitution exercises primarily
ceremonial prerogatives. The new Constitution likewise shortened abruptly
the terms of the members of the present Congress (whose terms end on
December 31, 1913, 1975 and 1977) which provides that the new
Constitution shall take effect immediately upon its ratification (Sec. 16, Article
XVII, 1973 Constitution). The fact that Section 2 of the same Article XVII
secures to the members of Congress membership in the interim National
Assembly as long as they opt to serve therein within thirty (30) days after the
ratification of the proposed Constitution, affords them little comfort; because
the convening of the interim National Assembly depends upon the incumbent
President (under Sec. 3[1], Art. XVII, 1973 Constitution). Under the foregoing
circumstances, the members of Congress, who were elected under the 1935
Constitution, would not be disposed to call a plebiscite and appropriate funds
therefor to enable the people to pass upon the 1973 Constitution, ratification
of which means their elimination from the political scene. They will not
provide the means for their own liquidation.
Because the Constitutional Convention, by necessary implication as it is
indispensable to its independence and effectiveness, possesses the power
to call a plebiscite and to appropriate funds for the purpose, it inescapably
must have the power to delegate the same to the President, who, in the
estimation of the Convention can better determine the appropriate time for
such a referendum as well as the amount necessary to effect the same, for
which reason the Convention thru Resolution No. 29 approved on November
22, 1972, which superseded Resolution No. 5843 adopted on November 16,
1972, proposed to the President "that a decree be issued calling a plebiscite
for the ratification of the proposed new Constitution on such appropriate date
as he shall determine and providing for the necessary funds therefor, . . .,"
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after stating in its "whereas" clauses that the 1971 Constitutional Convention
is expected to complete its work by the end of November, 1972, that the
urgency of instituting reforms rendered imperative the early approval of the
new Constitution, and that the national and local leaders desire that there be
continuity in the immediate transition from the old to the new Constitution.
If Congress can legally delegate to the Chief Executive or his subaltern the
power to promulgate subordinate rules and regulations to implement the law,
this authority to delegate implementing rules should not be denied to the
Constitutional Convention, a co-equal body.
Apart from the delegation to the Chief Executive of the power to call a
plebiscite and to appropriate funds therefor by the Constitutional Convention
thru its Resolution No. 29, the organization of the Citizens' Assemblies for
consultation on national issues, is comprehended within the ordinancemaking power of the President under Section 63 of the Revised
Administrative Code, which expressly confers on the Chief Executive the
power to promulgate administrative acts and commands touching on the
organization or mode of operation of the government or re-arranging or readjusting 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 be
successfully challenged.
The employment by the President of these Citizens' Assemblies for
consultation on the 1973 Constitution or on whether there was further need
of a plebiscite thereon, both issues of national concern is still within the
delegated authority reposed in him by the Constitutional Convention as
aforesaid.
It should be noted that Resolution No. 29, which superseded Resolution No.
5843, does not prescribe that the plebiscite must be conducted by the
Commission on Elections in accordance with the provisions of the 1971
Revised Election Code. If that were the intention of the Constitutional
Convention in making the delegation, it could have easily included the
necessary phrase for the purpose, some such phrase like "to call a plebiscite
to be supervised by the Commission on Elections in accordance with the
provisions of the 1971 Revised Election Code (or with existing laws)." That
the Constitutional Convention omitted such phrase, can only mean that it left
to the President the determination of the manner by which the plebiscite
should be conducted, who shall supervise the plebiscite, and who can
participate in the plebiscite. The fact that said Resolution No. 29 expressly
states "that copies of this resolution as approved in plenary session be
transmitted to the President of the Philippines and the Commission on
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Elections for implementation," did not in effect designate the Commission on

Elections as supervisor of the plebiscite. The copies of said resolution that
were transmitted to the Commission on Elections at best serve merely to
notify the Commission on Elections about said resolution, but not to direct
said body to supervise the plebiscite. The calling as well as conduct of the
plebiscite was left to the discretion of the President, who, because he is in
possession of all the facts funnelled to him by his intelligence services, was
in the superior position to decide when the plebiscite shall be held, how it
shall be conducted and who shall oversee it.
It should be noted that in approving said Resolution No. 29, the
Constitutional Convention itself recognized the validity of, or validated
Presidential Proclamation No. 1081 placing the entire country under martial
law by resolving to "propose to President Ferdinand E. Marcos that a decree
be issued calling a plebiscite . . ." The use of the term "decree" is significant
for the basic orders regulating the conduct of all inhabitants are issued in that
form and nomenclature by the President as the Commander in Chief and
enforcer of martial law. Consequently, the issuance by the President of
Presidential Decree No. 73 on December 1, 1972 setting the plebiscite on
January 15, 1973 and appropriating funds therefor pursuant to said
Resolution No. 29, is a valid exercise of such delegated authority.
Such delegation, unlike the delegation by Congress of the rule- making
power to the Chief Executive or to any of his subalterns, does not need
sufficient standards to circumscribe the exercise of the power delegated, and
is beyond the competence of this Court to nullify. But even if adequate
criteria should be required, the same are contained in the "Whereas" clauses
of the Constitutional Convention Resolution No. 29, thus:
"WHEREAS, the 1971 Constitutional Convention is
expected to complete its work of drafting a proposed new
Constitution for the Republic by the end of November, 1972;
"WHEREAS, in view of the urgency of instituting
reforms, the early approval of the New Constitution has
become imperative;
"WHEREAS, it is the desire of the national and local
leaders that there be continuity in the immediate political
transition from the old to the New Constitution;" (Annex "1" of
Answer, Res. No. 29, Constitutional Convention).

As Mr. Justice Fernando, with whom Messrs. Justices Barredo, Antonio and
the writer concurred in the Plebiscite Cases, stated:
". . . Once its work of drafting has been completed, it could itself
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direct the submission to the people for ratification as contemplated

in Article XV of the Constitution. Here it did not do so. With
Congress not being in session, could the President, by the decree
under question, call for such a plebiscite? Under such
circumstances, a negative answer certainly could result in the
work of the Convention being rendered nugatory. The view has
been repeatedly expressed in many American state court
decisions that to avoid such undesirable consequence, the task of
submission becomes ministerial, with the political branches devoid
of any discretion as to the holding of an election for that purpose.
Nor is the appropriation by him of the amount necessary to be
considered as offensive to the Constitution. If it were done by him
in his capacity as President, such an objection would indeed have
been formidable, not to say insurmountable. If the appropriation
were made in his capacity as agent of the Convention to assure
that there be submission to the people, then such an argument
loses force. The Convention itself could have done so. It is
understandable why it should be thus. If it were otherwise, then a
legislative body, the appropriating arm of the government, could
conceivably make use of such authority to compel the Convention
to submit to its wishes, on pain of being rendered financially
distraught. The President then, if performing his role as its agent,
could be held as not devoid of such competence." (pp. 2-3,
concurring opinion of J. Fernando in L-35925, etc., italics
supplied).

IV
VAGUENESS OR
CONSTITUTION

AMBIGUITY

DOES

NOT

INVALIDATE

1973

(1)Petitions challenge the 1973 draft as vague and incomplete, and alluded
to their arguments during the hearings on December 18 and 19, 1972 on the
Plebiscite Cases. But the inclusion of questionable or ambiguous provisions
does not affect the validity of the ratification or adoption of the 1973
Constitution itself (Pope vs. Gray, 104 SO, 2d 841; 7th Dec. pp. 212-219,
1956-1966).
Alexander Hamilton, one of the leading founders and defenders of the
American Constitution, answering the critics of the Federal Constitution,
stated that: "I never expect to see a perfect work from imperfect man. The
result of the deliberations of all collective bodies must necessarily be a
compound, as well of the errors and prejudices as of the good sense and
wisdom, of the individuals of whom they are composed. The compacts which
are to embrace thirteen distinct States in a common bond of amity and union,
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inclinations. How can perfection spring from such materials?" (The

Federalist, Modern Library Ed., pp. xx-xxi).
(2)The 1973 Constitution is likewise impugned on the ground that it contains
provisions which are ultra vires or beyond the power of the Constitutional
Convention to propose.
This objection relates to the wisdom of changing the form of government
from Presidential to Parliamentary and including such provisions as Section
3 of Article IV, Section 15 of Article XIV and Sections 3(2) and 12 of Article
XVII in the 1973 Constitution.
Article IV
"Sec. 3.The right of the people to be secure in their persons,
houses, papers, and effects against unreasonable searches and
seizures of whatever nature and for any purpose shall not be
violated, and no search warrant or warrant of arrest shall issue
except upon probable case to be determined by the judge, or such
other responsible officer as may be authorized by law, after
examination under oath or affirmation of the complainant and the
witnesses he may produce, and particularly describing the place to
be searched, and the persons or things to be seized."

Article XIV
"Sec. 15.Any provision of paragraph one, Section fourteen, Article
Eight and of this Article notwithstanding, the Prime Minister may
enter into international treaties or agreements as the national
welfare and interest may require." (Without the consent of the
National Assembly.)
Article XVII
"Sec. 3(2)All proclamations, orders, decrees, instructions, and acts
promulgated, issued, or done by the incumbent President shall be
part of the law of the land, and shall remain valid, legal, binding
and effective even after lifting of martial law or the ratification of
this Constitution, unless modified, revoked, or superseded by
subsequent proclamations, orders, decrees, instructions, or other
acts of the incumbent President, or unless expressly and explicitly
modified or repealed by the regular National Assembly.
xxx xxx xxx
"Sec. 12.All treaties, executive agreements, and contracts entered
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into by the Government, or any subdivision, agency, or

instrumentality thereof, including government-owned or controlled
corporations, are hereby recognized as legal, valid and binding.
When the national interest so requires, the incumbent President of
the Philippines or the interim Prime Minister may review all contracts, concessions, permits, or other forms of privileges for the
exploration, development, exploitation, or utilization of natural
resources entered into, granted, issued or acquired before the
ratification of this Constitution."

In the Plebiscite Cases (L-35925, L-35929, L-35940, L-35942, L-35948, L35953, L-35961, L-35965, & L-35979), Chief Justice Roberto Concepcion,
concurred in by Justices Fernando, Barredo, Antonio and the writer,
overruled this objection, thus:
". . . Regardless of the wisdom and moral aspects of
the contested provisions of the proposed Constitution, it is
my considered view that the Convention was legally deem
fit to propose save perhaps what is or may be insistent
with what is now known, particularly in international law, as
Jus Cogens not only because the Convention exercised
sovereign powers delegated thereto by the people
although insofar only as the determination of the proposals
to be made and formulated by said body is concerned
but also, because said proposals cannot be valid as part of
our Fundamental Law unless and until 'approved by the
majority of the votes cast at an election which' said
proposals 'are submitted to the people for their ratification,'
as provided in Section 1 of Article XV of the 1935
Constitution." (Pp. 11-18, Decision in L-35925, etc.).

This Court likewise enunciated in Del Rosario vs. Comelec (L- 32476, Oct.
20, 1970, 35 SCRA 367) that the Constitutional Convention has the authority
to "entirely overhaul the present Constitution and propose an entirely new
Constitution based on an ideology foreign to the democratic system . . .;
because the same will be submitted to the people for ratification. Once
ratified by the sovereign people, there can be no debate about the validity of
the new Constitution."
Mr. Justice Fernando, concurring in the same Plebiscite Cases, cited the
foregoing pronouncement in the Del Rosario case, supra, and added: ". . . it
seems to me a sufficient answer that once convened, the area open for
deliberation to a constitutional convention . . ., is practically limitless" (citing
Cf. Koehler vs. Hill, 14 NW 738, 60 Iowa 543 [1883]; Hatch vs. Stoneman, 6
P 734, 66 Cal. 632 [1885]; MacMillan v. Blattner, 25 NW 245, 67 Iowa 287
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[1895]; State v. Powell, 27 SO 297, 77 Miss. 543 [1900]; Hammond v. Clark,

71 SE 479, 136 Ga. 313 [1911]; Hamilton v. Vaughan, 179 NW 533, 212
Mich. 31 [1920]; State v. Smith, 138 NE 881, 105 Ohio St. 570 [1922];
Looney vs. Leeper, 292 P 365, 145 Okl. 202 [1930]; School District vs. City
of Pontiac, 247 NW 474, 262 Mich. 338 [1933]).
Mr. Justice Barredo, in his concurring opinion in said Plebiscite Cases,
expressed the view "that when the people elected the delegates to the
Convention and when the delegates themselves were campaigning, such
limitation of the scope of their function and objective was not in their minds"
V
1973 CONSTITUTION DULY ADOPTED AND
PROMULGATED.
Petitioners next claim that the 1971 Constitutional Convention adjourned on
November 30,1972 without officially promulgating the said Constitution in
Filipino as required by Sections 3(1) of Article XV on General Provisions of
the 1973 Constitution. This claim is without merit because their very Annex
"M" is the Filipino version of the 1973 Constitution, and, like the English
version, contains the certification by President Diosdado Macapagal of the
Constitutional Convention, duly attested by its Secretary, that the proposed
Constitution was approved on second reading on the 27th day of November,
1972 and on third reading in the Convention's 291st plenary session on
November 29,1972 and accordingly signed on November 30, 1972 by the
delegates whose signatures are thereunder affixed. It should be recalled that
Constitutional Convention President Diosdado Macapagal was, as President
of the Republic from 1962 to 1965, then the titular head of the Liberal Party
to which four (4) of the petitioners in L 36165 including their counsel, former
Senator Jovito Salonga, belong. Are they repudiating and disowning their
former party leader and benefactor?
VI
ARTICLE XV OF 1935 CONSTITUTION DOES NOT PRESCRIBE ANY
PROCEDURE FOR RATIFICATION OF 1973 CONSTITUTION.
(1)Article XV of the 1935 Constitution simply provides that "such
amendments shall be valid as part of this Constitution when approved by a
majority of the votes cast at an election at which the amendments are
submitted to the people for ratification."
But petitioners construe the aforesaid provision to read: "Such amendments
shall be valid as part of this Constitution when approved by a majority of the
votes cast at an election called by Congress at which the amendments are
submitted for ratification by the qualified electors defined in Article V hereof
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supervised by the Commission on Elections in accordance with the existing

election law and after such amendments shall have been published in all the
newspapers of general circulation for at least four months prior to such
election."
This position certainly imposes limitation on the sovereign people, who have
the sole power of ratification, which Imposition by the Court is never justified
(Wheeler vs. Board of Trustees, supra).
In effect, petitioners and their counsels are amending by a strained and
tortured construction Article XV of the 1935 Constitution. This is a clear case
of usurpation of sovereign power they do not possess through some kind
of escamotage. This Court should not commit such a grave error in the guise
of judicial interpretation.
In all the cases where the court held that illegal or irregular submission, due
to absence of substantial compliance with the procedure prescribed by the
Constitution and/or the law nullifies the proposed amendment or the new
Constitution, the procedure prescribed by the state Constitution is so detailed
that it specifies that the submission should be at a general or special
election, or at the election for members of the State legislature only or of all
state officials only or of local officials only, or of both state and local officials;
fixes the date of the election or plebiscite limits the submission to only
electors or qualified electors; prescribes the publication of the proposed
amendment or a new Constitution for specific period prior to the election or
plebiscite, and designates the officer to conduct the plebiscite, to canvass
and to certify the results, including the form of the ballot which should so
state the substance of the proposed amendments to enable the voter to vote
on each amendment separately; or authorizes expressly the Constitutional
Convention or the legislature to determine the procedure or certain details
thereof. See the State Constitutions of Alabama [1901]; Arizona [1912];
Arkansas [1874]; Colorado [1976]; Connecticut [1818]; Florida [1887];
Georgia [1945]; Illinois [1970]; Indiana [1851]; Iowa [1857]; Kansas [1861];
Kentucky [1891]; Louisiana [1921]; Maryland [1867]; Massachusetts [1790];
Michigan [1909]; Minnesota [1857]; Mississippi [1890]; and Missouri [1945]).
As typical examples:
Constitution of Alabama (1901):
"Article XVIII.Mode of Amending the Constitution
"Sec. 284.Legislative Proposals. Amendments may be proposed
to this Constitution by the legislature in the manner following: The
proposed amendments shall be read in the house in which they
originate on three several days, and, if upon the third reading
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three-fifths of all the members elected to that house shall vote in

favor thereof, the proposed amendments shall be sent to the other
house, in which they shall likewise be read on three several days,
and if upon the third reading three-fifths of all the members elected
to that house shall vote in favor of the proposed amendments, the
legislature shall order an election by the qualified electors of the
state upon such proposed amendments to be held either at the
general election next succeeding the session of the legislature at
which the amendments are proposed or upon another day
appointed by the legislature, not less than three months after the
final adjournment of the session of the legislature at which the
amendments were proposed. Notice of such election, together
with the proposed amendments, shall be given by proclamation of
the governor, which shall be published in every county in such
manner as the legislature shall direct, for at least eight successive
weeks next preceding the day appointed for such election. On the
day so appointed an election shall be held for the vote of the
qualified electors of the state upon the proposed amendments. If
such election be held on the day of the general election, the
officers of such general election shall open a poll for the vote of
the qualified electors upon the proposed amendments; If it be held
on a day other than that of a general election, officers for such
election shall be appointed; and the election shall be held in all
things in accordance with the law governing general elections. In
all elections upon such proposed amendments, the votes cast
thereat shall be canvassed, tabulated, and returns thereof be
made to the secretary of state, and counted, in the same manner
as in elections for representatives to the legislature; and if it shall
thereupon appear that a majority of the qualified electors who
voted at such election upon the proposed amendments voted in
favor of the same, such amendments shall be valid to all intents
and purposes as parts of this Constitution. The result of such
election shall be made known by proclamation of the governor.
Representation in the legislature shall be based upon population,
and such basis of representation shall not be changed by
constitutional amendments.

"Sec. 285.Form of ballot for amendment. Upon the ballots used at

all elections provided for in section 284 of this Constitution the
substance or subject matter of each proposed amendment shall
be so printed that the nature thereof shall be clearly indicated.
Following each proposed amendment on the ballot shall be printed
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the word "Yes" and immediately under that shall be printed the
word "No". The choice of the elector shall be indicated by a cross
mark made by him or under his direction, opposite the word
expressing his desire, and no amendment shall be adopted unless
it receives the affirmative vote of a majority of all the qualified
electors who vote at such election."

Constitution of Arkansas (1874):

"Article XIX. Miscellaneous Provisions.
"Sec. 22.Constitutional amendments. Either branch of the General
Assembly at a regular session thereof may propose amendments
to this Constitution, and, if the same be agreed to by a majority of
all the members elected to each house, such proposed
amendments shall be entered on the journal with the yeas and
nays, and published in at least one newspaper in each county,
where a newspaper is published, for six months immediately
preceding the next general election for Senators and
Representatives, at which time the same shall be submitted to the
electors of the State for approval or rejection; and if a majority of
the electors voting at such election adopt such amendments the
same shall become a part of this Constitution; but no more than
three amendments shall be proposed or submitted at the same
time. They shall be so submitted as to enable the electors to vote
on each amendment separately."

Constitution of Kansas (1861):

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

be submitted at the same election."

Constitution of Maryland (1867):

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

Constitution of Missouri (1945):

"Article XII.Amending the Constitution.
"Sec. 2(b).Submission of amendments proposed by general
assembly or by the initiative. All amendments proposed by the
general assembly or by the initiative shall be submitted to the
electors for their approval or rejection by official ballot title as may
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be provided by law, on a separate ballot without party designation,

at the next general election, or at a special election called by the
governor prior thereto, at which he may submit any of the
amendments. No such proposed amendment shall contain more
than one amended and revised article of this constitution, or one
new article which shall not contain more than one subject and
matters properly connected therewith. If possible, each proposed
amendment shall be published once a week for two consecutive
weeks in two newspapers of different political faith in each county,
the last publication to be not more than thirty nor less than fifteen
days next preceding the election. If there be but one newspaper in
any county, publication of four consecutive weeks shall be made.
If a majority of the votes cast thereon is in favor of any
amendment, the same shall take effect at the end of thirty days
after the election. More than one amendment at the same election
shall be so submitted as to enable the electors to vote on each
amendment separately."

Article XV of the 1935 Constitution does not require a specific procedure,

much less a detailed procedure for submission or ratification. As heretofore
stated, it does not specify what kind of election at which the new Constitution
shall be submitted; nor does it designate the Commission on Elections to
supervise the plebiscite. Neither does it limit the ratification to the qualified
electors as defined in Article V of the 1935 Constitution. Much less does it
require the publication of the proposed Constitution for any specific period
before the plebiscite nor does it even insinuate that the plebiscite should be
supervised in accordance with the existing election law.
(2)As aforequoted, Article XV does not indicate the procedure for submission
of the proposed Constitution to the people for ratification. It does not make
any reference to the Commission on Elections as the body that shall
supervise the plebiscite. And Article XV could not make any reference to the
Commission on Elections because the original 1935 Constitution as ratified
on May 14, 1935 by the people did not contain Article X on the Commission
on Elections, which article was included therein pursuant to an amendment
by 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 the
President 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 framers of the 1935 Constitution
as ratified on May 14, 1935 intended that a body known as the Commission
on Elections should be the one to supervise the plebiscite, because the
Commission on Elections was not in existence then as it was created only by
Commonwealth Act No. 607 approved on August 22, 1940 and amended by
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Commonwealth Act No. 657 approved on June 21, 1941 (see Taada &
Carreon, Political Law of the Philippines, Vol. I, 1961 ed., pp. 475-476;
Sumulong vs. Commission, 170 Phil. 703, 708-715; 73 Phil. 288, 290-300;
Taada & Fernando, Constitution of the Philippines, 1953 ed., Vol. I, p. 5,
Vol. II, pp. 11-19).
Because before August, 1940 the Commission on Elections was not yet in
existence, the former Department of Interior (now Department of Local
Governments and Community Development) supervised the plebiscites on
the 1937 amendment on woman's suffrage, the 1939 amendment to the
Ordinance appended to the 1935 Constitution (Tydings- Kocialkowski Act of
the U.S. Congress) and the three 1940 amendments on the establishment of
a bicameral Congress, the re-election of the President and the VicePresident, and the creation of the Commission on Elections (ratified on June
18, 1940). The supervision of said plebiscites by the then Department of
Interior was not 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 the plebiscite for ratification of constitutional
amendments or revision, it should have likewise proposed the corresponding
amendment to Article XV by providing therein that the plebiscite on
amendments shall be supervised by the Commission on Elections.
3)If the framers of the 1935 Constitution and the people in ratifying the same
on May 14, 1935 wanted that only the qualified voters under Article V of the
1935 Constitution should participate in the referendum on any amendment or
revision thereof, they could have provided the same in 1935 or in the 1940
amendment by just adding a few words to Article XV by changing the last
phrase to "submitted for ratification to the qualified electors as defined in
Article V hereof," or some such similar phrases.
Then again, the term "people" in Article XV cannot be understood to
exclusively refer to the qualified electors under Article V of the 1935
Constitution; because the said term "people" as used in several provisions of
the 1935 Constitution, does not have a uniform meaning. Thus in the
preamble, the term "Filipino people" refers to all Filipino citizens of all ages of
both sexes. In Section 1 of Article II on the Declaration of Principles, the term
"people" in whom sovereignty resides and from whom all government
authority emanates, can only refer also to Filipino citizens of ail ages and of
both sexes. But in Section 5 of the same Article II on social justice, the term
"people" comprehends not only Filipino citizens but also all aliens residing in
the country of all ages and of both sexes. Likewise, that is the same
connotation of the term "people" employed in Section 1(3) of Article III on the
Bill of Rights concerning searches and seizures.
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When the 1935 Constitution wants to limit action or the exercise of a right to
the electorate, it does so expressly as in the case of the election of senators
and congressmen. Section 2, Article VI expressly provides that the senators
"shall be chosen at large by the qualified electors of the Philippines as may
be provided by law." Section 5 of the same Article VI specifically provides
that congressmen shall "be elected by the qualified electors." The only
provision that seems to sustain the theory of petitioners that the term
"people" in Article XV should refer to the qualified electors as defined in
Article V of the 1935 Constitution is the provision that the President and
Vice-President shall be elected "by direct vote of the people." (Sec. 2 of Art.
VII of the 1935 Constitution). But this alone cannot be conclusive as to such
construction; because of the explicit provisions of Sections 2 and 5 of Article
VI, which specifically prescribes that the senators and congressmen shall be
elected by the qualified electors.
As aforesaid, most of the constitutions of the various states of the United
States, specifically delineate in detail the procedure of ratification of
amendments to or revision of state Constitutions and expressly require
ratification by qualified electors, not by the generic term "people".
The proposal submitted to the Ozamis Committee on the Amending Process
of the 1934-35 Constitutional Convention, specified that the amendment
shall be submitted to qualified electors for ratification. This proposal was not
accepted, indicating that the 1934-35 Constitutional Convention did not
intend to limit the term "people" in Article XV of the 1935 Constitution to
qualified electors only. As above demonstrated, the 1934-35 Constitutional
Convention limits the use of the term "qualified electors" to elections of public
officials. It did not want to tie the hands of succeeding or future constitutional
conventions as to who should ratify the proposed amendment or revision.
(4)It is not exactly correct to opine that Article XV of the 1935 Constitution on
constitutional amendment contemplates the automatic applicability of
election laws to plebiscites on proposed constitutional amendments or
revision.
The very phraseology of the specific laws enacted by the National Assembly
and later by Congress, indicates that there is need of a statute expressly
authorizing the application of the election laws to plebiscites of this nature.
Thus, Com. Act No. 34 on the woman's suffrage amendment enacted on
September 30, 1936, consists of 12 sections and, aside from providing that
"there shall be held a plebiscite on Friday, April 30, 1937, on the question of
woman's suffrage . . . and that said amendment shall be published in the
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fifteen (15) days prior to said election, . . . and shall be posted in a

conspicuous place in its municipal and provincial office building and in its
polling place not later than April 22, 1937" (Sec. 12, Com. Act No. 34),
specifies that the provisions of the Election Law regarding the holding of a
special election, insofar as said provisions are not in conflict with it, should
apply to the said plebiscite (Sec. 3, Com. Act No. 34); and that the votes cast
according to the returns of the board of inspectors shall be counted by the
National Assembly (Sec. 10, Com. Act No. 34).
The election laws then in force before 1938 were found in Sections 392-483
of the Revised Administrative Code.
Sec. 1 of Com. Act No. 357, the previous Election Code enacted on August
22, 1938, makes it expressly applicable to plebiscites. Yet the subsequent
laws, namely, Com. Act Nos. 492 and 517 and Rep. Act No. ?3 calling for
the plebiscite on the constitutional amendments in 1939, 1940 and 1946,
including the amendment creating the Commission on Elections, specifically
provided that the provisions of the existing election law shall apply to such
plebiscites insofar as they are not inconsistent with the aforesaid Com. Act
Nos. 492 and 517, as well as Rep. Act No. 73. Thus
Commonwealth Act No. 492, enacted on September 19, 1939, calling for a
plebiscite on the proposed amendments to the Constitution adopted by the
National Assembly on September 15, 1939, consists of 8 sections and
provides that the proposed amendments to the Constitution adopted in
Resolution No. 39 on September 15, 1939 "shall be submitted to the Filipino
people for approval or disapproval at a general election to be held
throughout the Philippines on Tuesday, October 24, 1939"; that the
amendments to said Constitution proposed in "Res. No. 38, adopted on the
same date, shall be submitted at the following election of local officials,"
(Sec. 1, Com. Act No. 492); that the said amendments shall be published in
English and Spanish in three consecutive issues of the Official Gazette at
least ten (10) days prior to the election; that copies thereof shall be posted
not later than October 20, 1939 (Sec. 2, Com. Act No. 492); that the election
shall be conducted according to the provisions of the Election Code insofar
as the same may be applicable; that within thirty (30) days after the election,
the Speaker of the National Assembly shall request the President to call a
special session of the Assembly for the purpose of canvassing the returns
and certify the results thereof (Sec. 6, Com. Act No. 492).
Commonwealth Act No. 617, consisting of 11 sections, was approved on
April 25,1940 and provided, among others: that the plebiscite on the
constitutional amendments providing for a bicameral Congress, re- election
of the President and Vice-President, and the creation of a Commission on
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Elections shall be held at a general election on June 18, 1940 (Sec. 1); that
said amendments shall be published in three consecutive issues of the
Official Gazette in English and Spanish at least 20 days prior to the election
and posted in every local government office building and polling place not
later than May 18, 1940 (Sec. 2); that the election shall be conducted in
conformity with the Election Code insofar as the same may be applicable
(Sec. 3); that copies of the returns shall be forwarded to the Secretary of
National Assembly and the Secretary of Interior (Sec. 7); and that the
National Assembly shall canvass the returns and certify the results at a
special session to be called by the President (Sec. 8).
Republic Act No. 73 approved on October 21, 1946 calling for a plebiscite on
the parity amendment consists of 8 sections and provides that the
Amendment "shall be submitted to the people, for approval or disapproval, at
a general election which shall be held on March 11, 1947, in accordance with
the provisions of this Act" (Sec. 1, R.A. No. 73); that the said amendment
shall be published in English and Spanish in three consecutive issues of the
Official Gazette at least 20 days prior to the election; that copies of the same
shall be posted in a conspicuous place and in every polling place not later
than February 11, 1947 (Section 2, R.A. No. 73); that the provisions of Com.
Act No. 357 (Election Code) and Com. Act No. 657 creating the Commission
on Elections, shall apply to the election insofar as they are not inconsistent
with this Act (Sec. 3, R.A. No. 73); and that within 30 days after the election,
the Senate and House of Representatives shall hold a joint session to
canvass the returns and certify the results thereof (Section 6, R.A. No. 73).
From the foregoing provisions, it is patent that Article XV of the 1935
Constitution does not contemplate nor envision the automatic application of
the election law; and even at that, not all the provisions of the election law
were made applicable because the various laws aforecited contain several
provisions which are inconsistent with the provisions of the Revised Election
Code (Com. Act No. 357). Moreover, it should be noted that the period for
the publication of the copies of the proposed amendments was about 10
days, 15 days or 20 days, and for posting at least 4 days, & days or 30 days.
Republic Acts Nos. 180 and 6388 likewise expressly provide that the
Election Code shall apply to plebiscites (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, there would be no need for Congress to expressly provide
therefor in the election laws enacted after the inauguration of the
Commonwealth government under the 1935 Constitution.
(5)Article XV of the 1935 Constitution does not specify who can vote and
how they shall vote. Unlike the various State Constitutions of the American
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Union (with few exceptions), Article XV does not state that only qualified
electors can vote in the plebiscite. As above-intimated, most of the
Constitutions of the various states of the United States provide for very
detailed amending process and specify that only qualified electors can vote
at such plebiscite or election.
Congress itself, in enacting Republic Act No. 3590, otherwise known as the
Barrio Charter, which was approved on June 17, 1967 and superseded
Republic Act No. 2370, expanded the membership of the barrio assembly to
include citizens who are at least 18 years of age, whether literate or not,
provided they are also residents of the barrio for at least 6 months (Sec. 4,
R.A. No. 3590).
"Sec. 4.The barrio assembly. The barrio assembly shall consist
of all persons who are residents of the barrio for at least six
months, eighteen years of age or over, citizens of the Republic of
the Philippines and who are duly registered in the list of barrio
assembly members kept by the Barrio Secretary.
"The barrio assembly shall meet at least once a year to hear the
annual report of the barrio counsel concerning the activities and
finances of the barrio.
"It shall meet also at the case of the barrio council or upon written
petition of at least One-Tenth of the members of the barrio
assembly.

"No meeting of the barrio assembly shall take place unless notice
is given one week prior to the meeting except in matters involving
public safety or security in which case notice within a reasonable
time shall be sufficient. The barrio captain, or in his absence, the
councilman acting as barrio captain, or any assembly member
selected during the meeting, shall act as presiding officer at all
meetings of the barrio assembly. The barrio secretary or in his
absence, any member designated by the presiding officer to act as
secretary shall discharge the duties of secretary of the barrio
assembly.
"For the purpose of conducting business and taking any official
action in the barrio assembly, It is necessary that at least one-fifth
of the members of the barrio assembly be present to constitute a
quorum. All actions shall require a majority vote of these present
at the meeting there being a quorum.

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barrio assembly shall be as follows:

"a.To recommend to the barrio council the adoption
of measures for the welfare of the barrio;
"b.To decide on the holding of a plebiscite as
provided for in Section 6 of this Act;
"c.To act on budgetary
and supplemental
appropriations and special tax ordinances submitted for its
approval by the barrio council; and
"d.To bear the annual report council concerning the
activities and finances of the assembly.
"Sec. 6.Plebiscite. A plebiscite may be held in the barrio when
authorized by a majority vote of the members present in the barrio
assembly, there being a quorum, or when called by at least four
members of the barrio council; Provided, however, That no
plebiscite shall be held until after thirty days from its approval by
either body, and such plebiscite has been given the widest
publicity in the barrio, stating the date, time, and place thereof, the
questions or issues to be decided, action to be taken by the
voters, and such other information relevant to the holding of the
plebiscite.
"All duly registered barrio assembly members qualified to vote
may vote in the plebiscite. Voting procedures may be made either
in writing as in regular election, and/or declaration by the voters to
the board of election tellers. The board of election tellers shall be
the same board envisioned by section 8, paragraph 2 of this Act,
in case of vacancies in this body, the barrio council may fill the
same.
"A plebiscite may be called to decide on the recall of any member
of the barrio council. A plebiscite shall be called to approve any
budgetary, supplemental appropriations or special tax ordinances.
"For taking action on any of the above enumerated measures,
majority vote of all the barrio assembly members registered in the
list of barrio secretary is necessary.
xxx xxx xxx
"Sec. 10.Qualifications of voters and candidates. Every citizen
of the Philippines, twenty-one years of age or over, able to read
and write, who has been a resident of the barrio during the six
months immediately preceding the election, duly registered in the
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list of voters kept by the barrio secretary, who is not otherwise

disqualified, may vote or be a candidate in the barrio elections.
"The following persons shall not be qualified to vote:
"a.Any person who has been sentenced by final
judgment to suffer one year or more of imprisonment, within
two years after service of his sentence;
"b.Any person who has violated his allegiance to the
Republic of the Philippines; and
"c.Insane or feeble-minded persons."

All these barrio assembly members, who are at least 18 years of age,
although illiterate, may vote at the plebiscite on the recall of any member of
the barrio council or on any budgetary, supplemental appropriation, or
special tax ordinances, a valid action on which requires "a majority vote of all
of the barrio assembly members registered in the list of the barrio secretary"
(par. 5, Sec. 6, R.A. No. 3590). Such plebiscite may be authorized by a
majority vote of the members present in the barrio assembly, there being a
quorum (par. 1, Sec. 6).
However, in the case of election of barrio officials, only Filipino citizens, who
are at least 21 years of age, able to read and write, residents of the barrio
during the 6 months immediately preceding the election and duly registered
in the list of voters kept by the barrio secretary, not otherwise disqualified,
may vote (Sec. 10, R.A. No. 3590).
Paragraph 2 of Section 6 likewise authorizes open voting as it provides that
"voting procedures may be made xxx either in writing as in regular elections,
and/or declaration by the voters to the board of election tellers."
That said paragraph 2 of Section 6 provides that "all duly registered barrio
assembly members qualified to vote may vote in the plebiscite," cannot
sustain the position of petitioners in G.R. No. L- 36165 that only those who
are 21 years of age or above and who possess all other qualifications of a
voter under Section 10 of R.A. No. 3590, can vote on the plebiscites referred
to in Section 6; because paragraph 3 of Section 6 does not expressly limit
the voting to those with the qualifications under Section 10 as said Section 6
does not distinguish between those who are 21 or above on the one hand
and those 18 or above but below 21 on the other, and whether literate or not,
to constitute a quorum of the barrio assembly.
Consequently, on questions submitted for plebiscite, all the registered
members of the barrio assembly can vote as long as they are 18 years of
age or above; and that only those who are 21 years of age or over and can
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read and write, can vote in the elections of barrio officials.

Otherwise there was no sense in extending membership in the barrio
assembly to those who are at least 18 years of age, whether literate or not
Republic Act No. 3590 could simply have restated Section 4 of Republic Act
No. 2370, the old Barrio Charter, which provided that only those who are 21
and above can be members of the barrio assembly.
Counsels Salonga and Taada as well as all the petitioners in L- 36165 and
two of the petitioners in L-36164 participated in the enactment of Republic
Act No. 3590 and should have known the intendment of Congress in
expanding the membership of the barrio assembly to include all those 18
years of age and above, whether literate or not.
If Congress in the exercise of its ordinary legislative power, not as a
constituent assembly, can include 18-years old as qualified electors for
barrio plebiscites, this prerogative can also be exercised by the Chief
Executive as delegate of the Constitutional Convention in regard to the
plebiscite on the 1973 Constitution.
As heretofore stated, the statement by the President in Presidential
Proclamation No. 1102 that the 1973 Constitution was overwhelmingly
ratified by the people through the Citizens' Assemblies in a referendum
conducted from January 10 to 15, 1973, should be accorded the
presumption of correctness; because the same was based on the
certification by the Secretary of the Department of Local Government and
Community Development who tabulated the results of the referendum all
over the country. The accuracy of such tabulation and certification by the
said Department Secretary should likewise be presumed; because it was
done in the regular performance of his official functions aside from the fact
that the act of the Department Secretary, as an alter ego of the President, is
presumptively the act of the President himself unless the latter disapproves
or reprobates the same (Villena vs. Secretary of Interior, 67 Phil. 451). The
truth of the certification by the Department Secretary and the Chief Executive
on the results of the referendum, is further strengthened by the affidavits and
certifications of Governor Isidro Rodriguez of Rizal, Mayor Norberto S.
Amoranto of Quezon City and Councilor Eduardo T. Paredes of Quezon City.
The procedure for the ratification of the 1937 amendment on woman
suffrage, the 1939 amendment to the ordinance appended to the 1935
Constitution, the 1940 amendments establishing the bicameral confess,
creating the Commission on Elections and providing for two consecutive
terms for the President, and the 1947 parity amendment, cannot be invoked;
because those amendments were proposed by the National Assembly as
expressly authorized by Article V of the 1935 Constitution respecting woman
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suffrage and as a constituent assembly in all the other amendments

aforementioned and therefore as such, confess had also the authority to
prescribe the procedure for the submission of the proposed amendments to
the 1935 Constitution.
In the cases at bar, the 1973 Constitution was proposed by an independent
Constitutional Convention, which as heretofore discussed, has the equal
power to prescribe the modality for the submission of the 1973 Constitution
to the people for ratification or delegate the same to the President of the
Republic.
The certification of Governor Isidro Rodriguez of Rizal and Mayor Norberto
Amoranto could be utilized as the basis for the extrapolation of the Citizens'
Assemblies in all the other provinces, cities and municipalities in all the other
provinces, cities and municipalities, and the affirmative votes in the Citizens'
Assemblies resulting from such extrapolation would still constitute a majority
of the total votes cast in favor of the 1973 Constitution.
As claimed by petitioners in L-36165, against the certification of the
Department of Local Government and Community Development that in Rizal
there were 1,126,000 Yes votes and 100,310 No votes, the certification of
Governor Isidro Rodriguez of Rizal, shows only 614,157 Yes votes as
against 292,530 No votes. In Cavite province, there were 249,882 Yes votes
against 12,269 No votes as disclosed in Annex 1-A of respondents'
Compliance (the certification by the Department of Local Government and
Community Development), while the alleged certification of Governor Lino
Bocalan of Cavite shows only 126,163 Yes votes and 5,577 No votes. If such
a ratio is extended by way of extrapolation to the other provinces, cities and
towns of the country, the result would still be an overwhelming vote in favor
of the 1973 Constitution.
The alleged certification by Governor Lino Bocalan of Cavite, is not true;
because in his duly acknowledged certification dated March 16, 1973, he
states that since the declaration of martial law and up to the present time, he
has been under house arrest in his residence in Urdaneta Village, Makati,
Rizal; that he never participated in the conduct of the Citizens' Assemblies
on January 10 to 15, 1973 in the province of Cavite; that the acting chairman
and coordinator of the Citizens' Assemblies at that time was Vice-Governor
Dominador Camerino; and that he was shown a letter for his signature during
the conduct of the Citizens' Assemblies, which he did not sign but which he
referred to Vice-Governor Camerino (Annex 1-Rejoinder of the Sol. Gen.
dated March 20, 1973).
Mayor Pablo Cuneta likewise executed an affidavit dated March 16, 1973
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stating that on January 15, 1973, he caused the preparation of a letter

addressed to Secretary Jose Roo of the Department of Local Government
and Community Development showing the results of the referendum in
Pasay City; that on the same day, there were still many Citizens' Assemblies
holding referendum in Pasay City, for which reason he did not send the
aforesaid letter pending submittal of the other results from the said Citizens'
Assemblies; and that in the afternoon of January 15, 1973, he indorsed the
complete certificate of results on the referendum in Pasay City to the Office
of the President (Annex 5-Rejoinder of Sol. Gen. dated March 20, 1973).
Pablo F. Samonte, Assistant City Treasurer and Officer in Charge of Pasay
City also issued an affidavit dated March 15, 1973 stating that a certain Atty.
Delia Sutton of the Salonga Law Office asked him for the results of the
referendum; that he informed her that he had in his possession unsigned
copies of such results which may not be considered official as they had then
no knowledge whether the original thereof had been signed by the mayor;
and that in spite of his advice that said unsigned copies were not official, she
requested him if she could give her the unofficial copies thereof, which he
gave in good faith (Annex C-Rejoinder to the Sol. Gen.).
There were 118,010 Yes votes as against 5,588 No votes in the Citizens'
Assemblies of Quezon city (Annex V to Petitioners' Notes in L-36165). The
fact that a certain Mrs. Remedio Gutierrez, wife of alleged barrio treasurer
Faustino Gutierrez, of barrio South Triangle, Quezon City, states that "as far
as we know, there has been no Citizens' Assembly meeting in our Area,
particularly in January of this year," does not necessarily mean that there
was no such meeting in said barrio; for she may not have been notified
thereof and as a result she was not able to attend said meeting. Much less
can it be a basis for the claim that there was no meeting at all in the other
barrios of Quezon City. The barrio captain or the secretary of the barrio
assembly could have been a credible witness.
Councilor Eduardo T. Paredes, chairman of the Secretariat of Quezon City
Ratification and Coordinating Council, certified on March 12, 1973 that as
such chairman he was in charge of the compilation and tabulation of the
results of the referendum among the Citizens' Assemblies in Quezon City
based on the results submitted to the Secretariat by the different Citizens'
Assemblies; but many results of the referendum were submitted direct to the
national agencies having to do with such activity and all of which he has no
knowledge, participation and control (Annex 4 Rejoinder of the Sol. Gen.).
Governor Isidro Rodriguez of Rizal issued a certification dated March 16,
1973 that he prepared a letter to the President dated January 15, 1973
informing him of the results of the referendum in Rizal, in compliance with
the instruction of the National Secretariat to submit such letter 2 or 3 days
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from January 10 to show the trend of voting in the Citizens' Assemblies; that
the figures 614,157 and 292,530 mentioned in said letter were based on the
certificates of results in his possession as of January 14, 1973, which results
were made the basis of the computation of the percentage of voting trend in
the province; that his letter was never intended to show the final or complete
result in the referendum in the province as said referendum was then still
going on from January 14-17, 1973, for which reason the said letter merely
stated that it was only a "summary result; and that after January 15, 1973, he
sent to the National Secretariat all the certificates of results in 26
municipalities of Rizal for final tabulation (Annex 3-Rejoinder of the Sol.
Gen.; italics supplied).
Lydia M. Encarnacion, acting chief of the Records Section, Department of
Local Government and Community Development, issued a certificate dated
March 16, 1973 that she was shown xerox copies of unsigned letters
allegedly coming from Governor Lino Bocalan dated January 15, 1973 and
marked "Rejoinder Annex Cavite" addressed to the President of the
Philippines through the Secretary of the Department of Local Government
and Community Development and another unsigned letter reportedly from
Mayor Pablo Cuneta dated January 15, 1973 and marked "Rejoinder Annex
Pasay City" addressed to the Secretary of the Department of Local
Government and Community Development; that both xerox copies of the
unsigned letters contain figures showing the results of the referendum of the
Citizens' Assemblies in those areas; and that the said letters were not
received by her office and that her records do not show any such documents
received by her office (Annex 2-Rejoinder of the Sol. Gen.).
Thus it would seem that petitioners in L-36165 have attempted to deceive
this Court by representing said unsigned letters and/or certificates as duly
signed and/or containing the complete returns of the voting in the Citizens'
Assemblies.
The observation We made with respect to the discrepancy between the
number of Yes votes and No votes contained in the summary report of
Governor Rodriguez of Rizal as well as those contained in the alleged report
of Governor Lino Bocalan of Cavite who repudiated the same as not having
been signed by him for he was then under house arrest, on the one hand,
and the number of votes certified by the Department of Local Government
and Community Development, on the other, to the effect that even assuming
the correctness of the figures insisted on by counsel for petitioners in L36165, if the same were extrapolated and applied to the other provinces and
cities of the country, the Yes votes would still be overwhelmingly greater than
the No votes, applies equally to the alleged discrepancy between the figures
contained in the certification of the Secretary of the Department of Local
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Government and Community Development and the figures furnished to

counsel for petitioners in L-36165 concerning the referendum in Camarines
Sur, Bataan and Negros Occidental.
The fact that the referendum in the municipality of Pasacao, Camarines Sur,
shows that there were more votes in favor of a plebiscite to be held later than
those against, only serves to emphasize that there was freedom of voting
among the members of the Citizens' Assemblies all over the country during
the referendum from January 10 to 15, 1973 (Annex-6 Cam. Sur to Rejoinder
of Petitioners in L-36165). If there was no such freedom of choice, those who
wanted a plebiscite later would not outnumber those against holding such
plebiscite.
The letter of Governor Felix O. Alfelor, Sr. dated January 14, 1973 confirms
the "strong manifestation of approval of the new Constitution by almost 97%
by the members of the Citizens' Assemblies in Camarines Sur" (AnnexCamarines Sur to Rejoinder of Petitioners in L-36165).
The report of Governor Efren B. Pascual of Bataan shows that the members
of the Citizens' Assemblies voted overwhelmingly in favor of the new
Constitution despite the fact that the second set of questions including the
question "Do you approve of the new Constitution?" was received only on
January 10. Provincial Governor Pascual stated that the "orderly conduct
and favorable results of the referendum" were due not only to the
coordinated efforts and cooperation of all teachers and government
employees in the area but also to the enthusiastic participation by the
people, showing "their preference and readiness to accept this new method
of government to people consultation in shaping up government policies."
(Annex-Bataan to Rejoinder of Petitioners in L-36165).
As heretofore stated, it is not necessary that voters ratifying the new
Constitution are registered in the book of voters; it is enough that they are
electors voting on the new Constitution (Bott vs. Wurts, 40 A 740 [1898]; 43
A 744, 881 [1899]; 45 LRA 251). The fact that the number of actual voters in
the referendum in certain localities may exceed the number of voters actually
registered for the 1971 elections, can only mean that the excess represents
the qualified voters who are not yet registered including those who are at
least 15 years of age and the illiterates. Although ex-convicts may have
voted also in the referendum, some of them might have been granted
absolute pardon or were sentenced to less than one year imprisonment to
qualify them to vote (Sec. 201, 1971 Rev. Election Code). At any rate, the
ex-convicts constitute a negligible number, discounting which would not tilt
the scale in favor of the negative votes.
Similarly, the fact that Mayor Marcial F. Samson of Caloocan City, who
belongs to the Liberal Party, stated in his letter dated March 13, 1973 that he
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does not "feel authorized by the proper authorities to confirm or deny the
data" concerning the number of participants, the Yes votes and No votes in
the referendum on the new Constitution among the members of the Citizens'
Assemblies in Caloocan City, does not necessarily give rise to the inference
that Mayor Samson of Caloocan City is being intimidated, having been
recently released from detention; because in the same letter of Mayor
Samson, he suggested to counsel for petitioners in L-36165 that he can
secure "the true and legitimate results of the referendum" from the Office of
the President (Annex Caloocan-B to Rejoinder of Petitioners in L-36165).
Why did not learned and eminent counsel heed such suggestion?
Counsel for petitioners in L-36165, to sustain their position, relies heavily on
the computation of the estimated turnover in the Citizens' Assemblies
referendum on January 10 to 15, 1973 by a certain Professor Benjamin R.
Salonga, of the Mapua Institute of Technology, ostensibly a close relative of
former Senator Jovito R. Salonga, eminent counsel for petitioners in L-36165
(Annex M-as amended, to Consolidated Rejoinder of petitioners in L-36165
to the Notes of Arguments and Memorandum of respondents). Professor
Salonga is not a qualified statistician, which all the more impairs his
credibility. Director Tito A. Mijares of the Bureau of Census and Statistics, in
his letter dated March 16, 1973 addressed to the Secretary of the
Department of Local Government and Community Development, refutes the
said computation of Professor Benjamin R. Salonga, thus:
"1)I do not quite understand why (Problem 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 the percentage
participation of the '15-20 year old plus total number of qualified
voters' which does not deem to answer the problem. This
computation apparently fails to account for some 5.6 million
persons '21 years old and over' who were not registered voters
(COMELEC), but who might be qualified to participate at the
Citizen's Assembly.
"2)The official population projection of this office (medium
assumption) for '15 year olds and over' as of January 1, 1973 is
22.506 million. If total number of participants at the Citizens'
Assembly Referendum held on January 10-15, 1973 was 16.702
million, participation rate will therefore be the ratio of the latter
figure to the former which gives 74.2%.
"3)I cannot also understand c-2 'Solution to Problem
11.' The 'difference or implied number of 15-20 year olds' of
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5,039,906 would represent really not only all 15 year olds

and over who participated at the Citizens' Assembly but
might not have been registered voters at the time, assuming
that all the 11,661,909 registered voted at the Citizens'
Assembly. Hence, the 'estimate percentage participation of
15-20 years olds' of 105.6% does not seem to provide any
meaningful information.
"To obtain the participation rate of '15-20 years old'
one must divide the number in this age group, which was
estimated to be 4.721 million as of January 1, 1973 by the
population of '15 years old and over' for the same period
which was estimated to be 22.506 million, giving 21.0%.
"In Problem III, it should be observed that registered
voters also include names of voters who are already dead. It
cannot therefore be assumed that all of them participated at
the Citizens' Assembly. It can therefore be inferred that 'a
total number of persons 15 and over unqualified/disqualified
to vote' will be more than 10,548,197 and hence the
'difference or implied number of registered voters that
participated' will be less than 6,153,618.
"I have reservations on whether an 'appropriate
number of qualified voters that supposedly voted' could be
meaningfully estimated.
"5)The last remark will therefore make the ratio: (a)
[Solution to Problem] more than 1.71 and that for (b),
accordingly, will also be less than 36.8%." (Annex F
Rejoinder).

From the foregoing analysis of the Director of Census and Statistics as of

January 21, 1973, the official population projection for 15-year olds and over
is 22,506,000. If 16,702,000 voted in the referendum, the participation ratio
would be 74.2% of 22,506,000.
If the registered electors as of the election of November 8, 1971 numbered
11,661,909, the difference between 16,702,000 who participated in the
referendum and the registered electors of 11,661,909 for the November 8,
1971 elections, is 5,040,091, which may include not only the 15-year olds
and above but below 21 but also the qualified electors who were not
registered before the November 8, 1971 elections as well as illiterates who
are 15 years old and above but below 21.
Moreover, in the last Presidential election in November, 1969, We found that
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the incumbent President obtained over 5,000,000 votes as against about

3,000,000 votes for his rival LP Senator Sergio Osmea, Jr., garnering a
majority of from about 896,498 to 1,436,118 (Osmea, Jr. vs. Marcos,
Presidential Election Contest No. 3, Jan. 8, 1973).
The petitioners in all the cases at bar cannot state with justification that those
who voted for the incumbent President in 1969 did not vote in favor of the
1973 Constitution during the referendum from January 10 to 15, 1973. It
should also be stressed that many of the partisans of the President in the
1969 Presidential elections, have several members in their families and
relatives who are qualified to participate in the referendum because they are
15 years or above including illiterates, which fact should necessarily
augment the number of votes who voted for the 1973 Constitution.
(6)It is also urged that martial law being the rule of force, is necessarily
inconsistent with freedom of choice, because the people fear to disagree
with the President as Commander-in-Chief of the Armed Forces of the
Philippines and therefore cannot voice views opposite to or critical of the
position of the President on the 1973 Constitution and on the mode of its
ratification.
It is also claimed or urged that there can be no free choice during martial law
which inevitably generates fear in the individual. Even without martial law,
the penal, civil or administrative sanction provided for the violation of the law
ordinarily engenders fear in the individual which fear persuades the
individual to comply with or obey the law. But before martial law was
proclaimed, many individuals did not fear such sanctions of the law because
of lack of effective or equal enforcement or implementation thereof in
brief, compartmentalized justice and extraneous pressures and influences
frustrated the firm and just enforcement of the laws. The fear that is
generated by martial law is merely the fear of immediate execution and swift
enforcement of the law and therefore immediate infliction of the punishment
or sanction prescribed by the law whenever it is transgressed during the
period of martial law. This is not the fear that affects the voters' freedom of
choice or freedom to vote for or against the 1973 Constitution. Those who
cringe in fear are the criminals or the law violators. Surely, petitioners do not
come under such category.
(7)Petitioners likewise claim that open voting by viva voce or raising of hands
violates the secrecy of the ballot as 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 on Elections
under the 1940 Amendment, embodied as Article X is merely mandated to
insure "free, orderly and honest election." Congress, under its plenary lawmaking authority, could have validly prescribed in the election law open
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voting in the election of public officers, without trenching upon the

Constitution. Any objection to such a statute concerns its wisdom or
propriety, not its legality or constitutionality. Secret balloting was demanded
by partisan strife in elections for elective officials. Partisanship based on
party or personal loyalties does not generally obtain in a plebiscite on
proposed constitutional amendments or on a new Constitution. We have
seen even before and during martial law that voting in meetings of
government agencies or private organizations is usually done openly. This is
specially true in sessions of Congress, provincial boards, city councils,
municipal boards and barrio councils when voting on national or local issues,
not on personalities.
Then again, open voting was not a universal phenomenon in the Citizens'
Assemblies. It might have been true in certain areas, but that does not
necessarily mean that it was done throughout the country.
The recent example of an open voting is the last election on March 3, 1973
of the National Press Club officers who were elected by acclamation
presided over by its former president, petitioner Eduardo Monteclaro in L36236 (see Bulletin Today, p. 8, March 3, 1973 issue). There can be no
more hardboiled group of persons than newspapermen, who cannot say that
voting among them by acclamation was characterized by fear among the
members of the National Press Club.
Moreover, petitioners would not be willing to affirm that all the members of
the citizenry of this country are against the new Constitution. They will not
deny that there are those who favor the same, even among the 400,000
teachers among whom officers of the Department of Education campaigned
for the ratification of the new Constitution.
Not one of the petitioners can say that the common man farmer, laborer,
fisherman, lowly employee, jeepney driver, taxi driver, bus driver, pedestrian,
salesman, or salesgirl does not want the new Constitution, or the reforms
provided for therein.
(8)Petitioners likewise claim that there was no sufficient publicity given to the
new Constitution. This is quite inaccurate; because even before the election
in November, 1970 of delegates to the Constitutional Convention, the
proposed reforms were already discussed in various forums and through the
press as well as other media of information. Then after the Constitutional
Convention convened in June, 1971, specific reforms advanced by the
delegates were discussed both in committee hearings as well as in the trimedia the press, radio and television. Printed materials on the proposed
reforms were circulated by their proponents. From June, 1971 to November
29, 1972, reforms were openly discussed and debated except for a few days
after the proclamation of martial law on September 21, 1972. From the time
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the Constitutional Convention reconvened in October, 1972 until January 7,

1973, the provisions of the new Constitution were debated and discussed in
forums sponsored by private organizations and universities and debated
over the radio and on television. The Philippines is a literate country, second
only to Japan in the Far East, and more literate perhaps than many of 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 the illiterates 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 Bulletin Today, March 4, 1973 issue, "Otto Lang, Hollywood
producer director (Tora, Tora, Tora) went around the country doing a 30minute documentary on the Philippines for American television and stated
that what impressed him most in his travel throughout the country was the
general acceptance of the New Society by the people which he saw in his 6week travel from Aparri to Jolo."
The report of Frank Valeo (Bulletin Today, March 3 and 4, 1973 and Daily
Express, March 3, and Sunday Express, March 4), Secretary of the United
States Senate, who conducted a personal survey of the country as delegate
of Senator Mike Mansfield, Chairman, Committee on US-Philippine relations,
states:
"Martial law has paved the way for a re-ordering of the
basic social structure of the Philippines. President Marcos
has been prompt and sure-footed in using the power of
presidential decree under martial law for this Purpose. He
has zeroed in on areas which have been widely recognized
as prime sources of the nation's difficulties land tenure,
official corruption, tax evasion and abuse of oligarchic
economic power. Clearly, he knows the targets. What is not
yet certain is how accurate have been his shots.
Nevertheless, there is marked public support for his
leadership and tangible alternatives have not been
forthcoming. That would suggest that he may not be striking
too far from the mark.
"The United States business community in Manila
seems to have been reassured by recent developments . . .
(Italics supplied.)

Petitioners cannot safely assume that all the peaceful citizens of the country,
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who constitute the majority of the population, do not like the reforms
stipulated in the new Constitution, as well as the decrees, orders and
circulars issued to implement the same. It should be recalled, as herein
before stated, that all these reforms were the subject of discussion both in
the committee hearings and on the floor of the Constitutional Convention, as
well as in public forums sponsored by concerned citizens or civic
organizations at which Con-Con delegates as well as other knowledgeable
personages expounded their views thereon and in all the media of
information before the proclamation of martial law on September 21, 1972.
This is the reason why the Constitutional Convention, after spending close to
P30 million during the period from June 1, 1971 to November 29, 1972,
found it expedient to accelerate their proceedings in November, 1972
because all views that could possibly be said on the proposed provisions of
the 1973 Constitution were already expressed and circulated. The 1973
Constitution may contain some unwise provisions. But this objection to such
unwise or vague provisions, as heretofore stated, refers to the wisdom of the
aforesaid provisions, which issue is not for this Court to decide; otherwise
We will be substituting Our judgment for the judgment of the Constitutional
Convention and in effect acting as a constituent assembly.
VI
PRESIDENT AS COMMANDER IN CHIEF EXERCISES LEGISLATIVE
POWERS DURING MARTIAL LAW.
The position of the respondent public officers that 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
(75 Phil. 563, 571-72). The trial of General Kuroda was after the surrender of
Japan on October 2, 1945 (23 Encyc. Brit. 1969 ed., p. 799) and hence no
more martial law in the Philippines.
". . . Consequently,
in the promulgation
and
enforcement of Executive Order No. 68, the President of the
Philippines has acted in conformity with the generally
accepted principles and policies of international law which
are part of our Constitution.
"The promulgation of said executive order is an
exercise by the President of his powers as Commander in
Chief of all our armed forces, as upheld by this Court in the
case of Yamashita vs. Styer (L-129, 42 Off. Gaz., 664) when
we said
" 'War is not ended simply because hostilities
have ceased. After cessation of armed hostilities,
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incidents of war may remain pending which should be

disposed of as in time of war. 'An important incident to
a conduct of war is the adoption of measures by the
military command not only to repel and defeat the
enemies but to seize and subject to disciplinary
measures those enemies who in their attempt to
thwart or impede our military effort have violated the
law of war.' (Ex parte Quirin, 317 U.S., 1; 63 Sup. Ct.,
2.) Indeed, the power to create a military commission
for the trial and punishment of war criminals is an
aspect of waging war. And, in the language of a writer,
a military commission 'has jurisdiction so long as a
technical state of war continues. This includes the
period of an armistice, or military occupation, up to the
effective date of a treaty of peace, and may extend
beyond, by treaty agreement.' (Cowles, Trial of War
Criminals by Military Tribunals, American Bar
Association Journal, June, 1944).'
''Consequently, the President as Commander in Chief
is fully empowered to consummate this unfinished aspect of
war, namely, the trial and punishment of war criminals,
through the issuance and enforcement of Executive Order
No. 68." (83 Phil. 177-178; 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 defined martial law as "the exercise
of the power which resides in the executive branch of the government to
preserve order and insure the public safety in times of emergency, when
other branches of the government are unable to function, or their functioning
would itself threaten the public safety." (Italics supplied). There is an implied
recognition in the aforesaid definition of martial law that even in places where
the courts can function, such operation of the courts may be affected by
martial law should their "functioning . . . threaten the public safety." It is
possible that the courts, in asserting their authority to pass upon questions
which may adversely affect the conduct of the punitive campaign against
rebels, secessionists, dissidents as well as subversives, martial law may
restrict such judicial function until the danger to the security of the state and
of the people shall have been decimated.
The foregoing view appears to be shared by Rossiter when he stated:
"Finally, this strong government, which in some
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other purposes than the preservation of the independence of

the state, the maintenance of the existing constitutional
order, and the defense of the political and social liberties of
the people. It is important to recognize the true and limited
ends of any practical application of the principle of
constitutional dictatorship. Perhaps the matter may be most
clearly stated in this way: the government of a free state is
proceeding on its way and meeting the usual problems of
peace and normal times within the limiting framework of its
established constitutional order. The functions of government
are parceled out among a number of mutually independent
offices and institutions; the power to exercise those functions
is circumscribed by well-established laws, customs, and
constitutional prescriptions; and the people for whom this
government was instituted are in possession of a lengthy
catalogue of economic, political, and social rights which their
leaders recognize as inherent and inalienable. A severe crisis
arises the Country is invaded by a hostile power, or a
dissident segment of the citizenry revolts, or the impact of a
world-wide depression threathens to bring the nation's
economy in ruins. The government meets the crisis by
assuming more powers and respecting fewer rights. The
result is a regime which can act arbitrarily and even
dictatorially in the swift adoption of measures designed to
save the state and its people from the destructive effects of
the particular crisis. And the narrow duty to be pursued by
this strong government, this constitutional dictatorship?
Simply this and nothing more: to end the crisis and restore
normal times. The government assumes no power and
abridges no right unless plainly indispensable to that end; it
extends no further in time than the attainment of that end;
and it makes no alteration in the political, social and
economic structure of the nation which can not be eradicated
with the restoration of normal times. In short, the aim of
constitutional dictatorship is the complete restoration of the
status quo ante bellum. This historical fact does not comport
with philosophical theory, that there never has been a perfect
constitutional dictatorship, is an assertion that can be made
without fear of contradiction. But this is true of all institutions
of government, and the principle of constitutional dictatorship
remains eternally valid no matter how often and seriously it
may have been violated in practice." (Constitutional
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Dictatorship, 1948 ed., by Clinton L. Rossiter, p.7; italics

supplied.)

Finally, Rossiter expressly recognizes that during martial law, the Chief
Executive exercises legislative power, whether of temporary or permanent
character, thus:
"The measures adopted in the prosecution of a
constitutional dictatorship should never be permanent in
character or effect. Emergency powers are strictly
conditioned by their purpose and this purpose is the
restoration of normal conditions. The actions directed to this
end should therefore be provisional. For example, measures
of a legislative nature which work a lasting change in the
structure of the state or constitute permanent derogations
from existing law should not be adopted under an emergency
enabling act, at least not without the positively registered
approval of the legislature. Permanent laws, whether adopted
in regular or irregular times, are for parliaments to enact. By
this same token, the decisions and sentences of
extraordinary courts should be reviewed by the regular courts
after the termination of the crisis.

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

working lasting changes in the political and social fabric, is
indispensable to the successful prosecution of the particular
constitutional dictatorship? The only answer can be: it must
be resolutely taken and openly acknowledged. President
Lincoln found it necessary to proceed to the revolutionary
step of emancipation in aid of his conservative purpose of
preserving the Union; as a constitutional dictator he had a
moral right to take this radical action. Nevertheless, it is
imperative that any action with such last effects should
eventually receive the positive approval of the people or of
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 government exercises more powers
and respects fewer rights in order "to end the crisis and restore normal
times." The government can assume additional powers indispensable to the
attainment of that end the complete restoration of peace. In our particular
case, eradication of the causes that incited rebellion and subversion as well
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as secession, is the sine qua non to the complete restoration of normalcy.

Exercise of legislative power by the President as Commander in Chief, upon
his proclamation of martial law, is justified because, as he professes, it is
directed towards the institution of radical reforms essential to the elimination
of the causes of rebellious, insurgent or subversive conspiracies and the
consequent dismantling of the rebellious, insurgent or subversive apparatus.
Hence, the issuance of Presidential Decree Nos. 86 and 86-A as well as
Proclamation No. 1102 is indispensable to the effectuation of the reforms
within the shortest possible time to hasten the restoration of normalcy.
"Must the government be too strong for the liberties of the people; or must it
be too weak to maintain its existence?" That was the dilemma that vexed
President Lincoln during the American Civil War, when without express
authority in the Constitution and the laws of the United States, he suspended
one basic human freedom the privilege of the writ of habeas corpus in
order to preserve with permanence the American Union, the Federal
Constitution of the United States and all the civil liberties of the American
people. This is the same dilemma that presently confronts the Chief
Executive of the Republic of the Philippines, who, more than the Courts and
Congress, must, by express constitutional mandate, secure the safety of our
Republic and the rights as well as lives of the against open rebellion,
insidious subversion and succession. The Chief Executive announced
repeatedly that in choosing to proclaim martial law, the power expressly
vested in him by the 1935 Constitution (Sec. 10[2], Art. VII, 1935
Constitution) to insure our national and individual survival in peace and
freedom, he is in effect waging a peaceful, democratic revolution from the
center against the violent revolution and subversion being mounted by the
economic oligarchs of the extreme right, who resist reforms to maintain their
economic hegemony, and the communist rebels and Moist oriented
secessionists of the extreme left who demand swift institution of reforms. In
the exercise of his constitutional and statutory powers, to save the state and
to protect the citizenry against actual and threatened assaults from
insurgents, secessionists and subversives, doctrinaire concepts and
principles, no matter how revered they may be by jurisprudence and time,
should not be regarded as peremptory commands; otherwise the dead hand
of the past will regulate and control the security and happiness of the living
present. A contrary view would be to deny the self-evident proposition that
constitution and laws are mere instruments for the well-being, peace,
security and prosperity of the country and its citizenry. The law as a means
of social control is not static, but dynamic. Paraphrasing Mr. Justice
Frankfurter, the Constitution is neither a printed finality nor the imprisonment
of the past, but the unfolding of the future. In the vein of Mr. Justice Holmes,
the meaning of the words of the Constitution is not to be determined by
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merely opening a dictionary. Its terms must be construed in the context of

the realities in the life of a nation it is intended to serve. Because experience
may teach one generation to doubt the validity and efficacy of the concepts
embodied in the existing Constitution and persuade another generation to
abandon them entirely, heed should be paid to the wise counsel of some
learned jurists that in the resolution of constitutional questions like those
posed before Us the blending of idealism and practical wisdom or
progressive legal realism should be applied (see Alexander M. Bickel, the
Supreme Court and the Idea of Progress, 1970 ed., pp. 19-21). To Justice
Frankfurter, law is "a vital agency for human betterment" and constitutional
law "is applied politics, using the word in its noble sense." (Frankfurter, Law
and Politics, 1939 ed., pp. 3 & 6; italics supplied). Justice Brandeis gave
utterance to the truth that "Our Constitution is not a straight jacket. It is a
living organism. As such, it is capable of growth or expansion and
adaptation to new conditions. Growth implies changes, political, economic
and social." (Brandeis Papers, Harvard Law School; italics supplied).
Harvard Professor Thomas Reed Powell emphasizes "practical wisdom," for
"the logic of constitutional law is the common sense of the Supreme Court."
(Powell, the Validity of State Legislation, under the Webb-Kenyon Law, 2
Southern Law Quarterly, pp. 112, 138-139, cited in Bickel's Opus, supra;
italics supplied).
The eternal paradox in this finite world of mortal and fallible men is that
nothing is permanent except change. Living organisms as well as man-made
institutions are not immutable. Civilized men organize themselves into a
State only for the purpose of serving their supreme interest their welfare.
To achieve such end, they created an agency known as the government.
From the savage era thru ancient times, the Middle Ages, the Dark Ages and
the Renaissance to this era of sophisticated electronics and nuclear
weaponry, states and governments have mutated in their search for the
magic instrument for their well-being. It was trial and error then as it is still
now. Political philosophies and constitutional concepts, forms and kinds of
government, had been adopted, overturned, discarded, re-adopted or
modified to built the needs of a given society at a particular given epoch.
This is true of constitutions and laws because they are not "the infallible
instruments of a manifest destiny." No matter how we want the law to be
stable, it cannot stand still. As Mr. Justice Holmes aptly observed, every
"constitution is an experiment as all life is an experiment," (Abrahms vs. U.S.,
250 US 616, 631) for 'the life of the law is not logic, but experience." In the
pontifical tones of Mr. Justice Benjamin Nathan Cardozo, "so long as society
is inconstant, there can be no constancy in law," and "there will be change
whether we will it or not." As Justice Jose P. Laurel was wont to say, "We
cannot, Canute-like, command the waves of progress to halt."
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Thus, political scientists and jurists no longer exalt with vehemence a

"government that governs least." Adherents there are to the poetic dictum of
Alexander Pope: "For forms of government let fools contest; whatever is best
administered is best." (Poems of Pope, 1931 Cambridge ed., p. 750). In
between, the shades vary from direct democracy, representative democracy,
welfare states, socialist democracy, mitigated socialism, to outright
communism which degenerated in some countries into totalitarianism or
authoritarianism.
Hence, even the scholar, who advances academic opinions unrelated to
factual situations in the seclusion of his ivory tower, must perforce submit to
the inexorable law of change in his views, concepts, methods and
techniques when brought into the actual arena of conflict as a public
functionary face to face with the practical problems of state, government
and public administration. And so it is that some learned jurists, in the
resolution of constitutional issues that immediately affect the lives, liberties
and fortunes of the citizens and the nation, recommend the blending of
idealism with practical wisdom, which legal thinkers prefer to identify as
progressive legal realism. The national leader, who wields the powers of
government, must and has to innovate if he must govern effectively to serve
the supreme interests of the people. This is especially true in times of great
crises where the need for a leader with vision, imagination, capacity for
decision and courageous action is greater, to preserve the unity of the
people, to promote their well-being, and to insure the safety and stability of
the Republic. When the methods of rebellion and subversion have become
covert, subtle and insidious, there should be a recognition of the
corresponding authority on the part of the Commander-in-Chief of the Armed
Forces to utilize all the available techniques to suppress the peril to the
security of the government and the State.
Over a century and a half ago, Thomas Jefferson, one of the founding
fathers of the American Constitution and former President of the United
States, who personifies the progressive liberal, spoke the truth when he said
that some men "ascribe to men of the preceding age a wisdom more than
human, and suppose what they did to be beyond amendment . . . But I know
also, that laws and institutions must go hand in hand with the progress of the
human mind. As that becomes more developed, more enlightened, as new
discoveries are made, new truths disclosed and manners and opinions
change, with the change of circumstances, institutions must also advance,
and keep pace with the times." (Vol. 12, Encyclopedia Britannica, 1969 ed.,
p. 989).

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The wisdom of the decision of the Chief Executive can only be judged in the
perspective of history. It cannot be adequately and fairly appraised within the
present ambiance, charged as it is with so much tension and emotion, if not
partisan passion. The analytical, objective historians will write the final
verdict in the same way that they pronounced judgment on President
Abraham Lincoln who suspended the privilege of the writ of habeas corpus
without any constitutional or statutory authority therefor and of President
Franklin Delano Roosevelt who approved the proclamation of martial law in
1941 by the governor of Hawaii throughout the Hawaiian territory. President
Lincoln not only emancipated the Negro slaves in America, but also saved
the Federal Republic of the United States from disintegration by his
suspension of the privilege of the writ of habeas corpus, which power the
American Constitution and Congress did not then expressly vest in him. No
one can deny that the successful defense and preservation of the territorial
integrity of the United States was due in part, if not to a great extent, to the
proclamation of martial law over the territory of Hawaii main bastion of the
outer periphery or the outpost of the American defense perimeter in the
Pacific which protected the United States mainland not only from actual
invasion but also from aerial or naval bombardment by the enemy.
Parenthetically, the impartial observer cannot accurately conclude that the
American Supreme Court acted with courage in its decision in the cases of
Ex parte Milligan and Duncan vs. Kahanamoku (filed on May 10, 1865
argued on March 5 to 13, 1866, decided on April 3, 1866, and opinion
delivered on December 17, 1866) after the lifting of the proclamation
suspending the privilege of the writ of habeas corpus, long after the Civil War
and the Second World ended respectively on April 9 or 26, 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 on the
part of the American Supreme Court in deciding these cases against the
position of the United States President in suspending the privilege of the
writ of habeas corpus in one case and approving the proclamation of martial
law in the other deliberate as an act of judicial statesmanship and
recognition on their part that an adverse court ruling during the period of
such a grave crisis might jeopardize the survival of the Federal Republic of
the United States in its life-and-death struggle against an organized and well
armed rebellion within its own borders and against a formidable enemy from
without its territorial confines during the last global armageddon?
VIII
DOCTRINE OF SEPARATION OF POWERS PRECLUDES MANDAMUS
AGAINST SENATORS.
In G.R. No. L-36165, mandamus will not lie to compel respondents Gil Puyat
and Jose Roy to convene the Senate of the Philippines even on the
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assumption that the 1935 Constitution still subsists; because pursuant to the
doctrine of separation of powers under the 1935 Constitution, the processes
of this Court cannot legally reach a coordinate branch of the government or
its head. This is a problem that is addressed to the Senate itself for
resolution; for it is purely an internal problem of the Senate. If a majority of
the senators can convene, they can elect a new Senate President and a new
Senate President Pro Tempore. But if they have no quorum, those present
can order the arrest of the absent members (Sec. 10[2], Art. VI, 1935
Constitution). If this falls, then there is no remedy except an appeal to the
people. The dictum ubi jus, ubi remedium, is not absolute and certainly does
not justify the invocation of the power of this Court to compel action on the
part of a co-equal body or its leadership. This was emphasized with sufficient
clarity by this Court in the 1949 case of Avelino vs. Cuenco (83 Phil. 17, 2224), with which the distinguished counsels for the petitioners in L-36164 and
L-36165 are familiar. WE stress that the doctrine of separation of powers and
the political nature of the controversy such as this, preclude the interposition
of the Judiciary to nullify an act of a coordinate body or to command
performance by the head of such a co-ordinate body of his functions.
Mystifying is the posture taken by counsels for petitioners in referring to the
political question doctrine almost in mockery as a magic formula which
should be disregarded by this Court, forgetting that this magic formula
constitutes an essential skein in the constitutional fabric of our government,
which, together with other basic constitutional precepts, conserves the unity
of our people, strengthens the structure of the government and assures the
continued stability of the country against the forces of division, if not of
anarchy.
Moreover, if they have a quorum, the senators can meet anywhere. Validity
of the acts of the Senate does not depend on the place of session; for the
Constitution does not designate the place of such a meeting. Section 9 of
Article VI imposes upon Congress to convene in regular session every year
on the 4th Monday of January, unless a different date is fixed by law, or on
special session called by the President. As former Senator Arturo Tolentino,
counsel for respondents Puyat and Roy in L-36165, stated, the duty to
convene is addressed to all members of Congress, not merely to its
presiding officers. The fact that the doors of Congress are padlocked, will not
prevent the senators especially the petitioners in L-36165 if they are
minded to do so, from meeting elsewhere at the Sunken Gardens, at the
Luneta Independence Grandstand, in any of the big hotels or theaters, in
their own houses, or at the Araneta Coliseum, which is owned by the fatherin-law of petitioner Gerardo Roxas in L-36165.
However, a session by the Senate alone would be purely an exercise in
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futility, for it cannot validly meet without the lower House (Sec. 10[5], Art. VI,
1935 Constitution). Hence, this petition by five former senators for
mandamus in L-36165 is useless.
And as pointed out by former Senator Arturo Tolentino, counsel for
respondents Puyat and Roy, mandamus will lie only if there is a law
imposing on the respondents the duty to convene the body. The rule
imposing such a duty invoked by petitioners in L-36165 is purely an internal
rule of the Senate; it is not a law because it is not enacted by both Houses
and approved by the President.
The Constitutional provision on the convening of Congress, is addressed to
the individual members of the legislative body (Sec. 9, Art. VI of 1935
Constitution).
IX
TO NULLIFY PROCLAMATION NO. 1102 AND 1973 CONSTITUTION
REQUIRES EIGHT OR TEN VOTES OF SUPREME COURT.
The petitioners in L-36164 and L-36236 specifically pray for a declaration
that the alleged ratification of the 1973 Constitution is null and void and that
the said 1973 Constitution be declared unenforceable and inoperative.
As heretofore stated, Proclamation No. 1102 is an enactment of the
President as Commander-in-Chief during martial law as directly delegated to
him by Section 10(2) of Article VII of the 1935 Constitution.
A declaration that the 1973 Constitution is unenforceable and inoperative is
practically deciding that the same is unconstitutional. The proposed
Constitution is an act of the Constitutional Convention, which is co-equal and
coordinate with as well as independent of either Congress or the Chief
Executive. Hence, its final act, the 1973 Constitution, must have the same
category at the very least as the act of Congress itself.
Consequently, the required vote to nullify Proclamation No. 1102 and the
1973 Constitution should be eight (8) under Section 10 of Article VIII of the
1935 Constitution in relation to Section 9 of the Judiciary Act or Republic Act
No. 296, as amended, or should be ten (10) under Section 2(2) of Article X of
the 1973 Constitution. Should the required vote of eight (8) or ten (10), as
the case may be, for the declaration of invalidity or unconstitutionality be not
achieved, the 1973 Constitution must be deemed to be valid, in force and
operative.
X
ARTICLE OF FAITH
WE yield to no man as devotees of human rights and civil liberties. Like
Thomas Jefferson, We swear "eternal hostility towards any form of tyranny
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over the mind of man" as well as towards bigotry and intolerance, which are
anathema to a free spirit. But human rights and civil liberties under a
democratic or republican state are never absolute and never immune to
restrictions essential to the common weal. A civilized society cannot long
endure without peace and order, the maintenance of which is the primary
function of the government. Neither can civilized society survive without the
natural right to defend itself against all dangers that may destroy its life,
whether in the form of invasion from without or rebellion and subversion from
within. This is the first law of nature and ranks second to none in the
hierarchy of all values, whether human or governmental. Every citizen, who
prides himself in being a member or a civilized society under an established
government, impliedly submits to certain constraints on his freedom for the
general welfare and the preservation of the State itself, even as he reserves
to himself certain rights which constitute limitations on the powers of
government. But when there is an inevitable clash between an exertion of
governmental authority and the assertion of individual freedom, the exercise
of which freedom imperils the State and the civilized society to which the
individual belongs, there can be no alternative but to submit to the superior
right of the government to defend and preserve the State. In the language of
Mr. Justice Holmes often invoked by herein petitioners "when it comes
to a decision involving its (state life, the ordinary rights of individuals must
yield to what he (the President) deems the necessities of the moment. Public
danger warrants the substitution of executive process for judicial process.
(See Keely vs. Sanders, 99 U.S. 441, 446, 25 L ed. 327, 328). This was
admitted with regard to killing men in the actual clash of arms. And we think
it is obvious, although it was disputed, that the same is true of temporary
detention to prevent apprehended harm." (Moyer vs. Peabody, 212 U.S. 77,
85, 53 L ed., 411, 417).
The rhetoric of freedom alone is not enough. It must be the rhetoric of
freedom with order and security for all, that should be the shibboleth; for
freedom cannot be enjoyed in an environment of disorder and anarchy.
The incumbent Chief Executive who was trying to gain the support for his
reform program long before September 21, 1972, realized almost too late
that he was being deceived by his partymates as well as by the opposition,
who promised him cooperation, which promises were either offered as a
bargaining leverage to secure concessions from him or to delay the
institution of the needed reforms. The people have been victimized by such
bargaining and dilly-dallying. To overt a terrifying blood bath and the
breakdown of the Republic, the incumbent President proclaimed martial law
to save the Republic from being overrun by communists, secessionists and
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rebels by effecting the desired reforms in order to eradicate the evils that
plague our society, which evils have been employed by the communists, the
rebels and secessionists to exhort the citizenry to rise against the
government. By eliminating the evils, the enemies of the Republic will be
decimated. How many of the petitioners and their counsels have been
utilizing the rebels, secessionists and communists for their own personal or
political purposes and how many of them are being used in turn by the
aforesaid enemies of the State for their own purposes?
If the petitioners are sincere in their expression of concern for the greater
mass of the populace, more than for their own selves, they should be willing
to give the incumbent Chief Executive a chance to implement the desired
reforms. The incumbent President assured the nation that he will govern
within the framework of the Constitution and if at any time, before normalcy
is restored, the people thru their Citizens' Assemblies, cease to believe in his
leadership, he will step down voluntarily from the Presidency. But if, as
apprehended by the petitioners, he abuses and brutalizes the people, then to
the battlements we must go to man the ramparts against tyranny. This, it is
believed, he knows only too well; because he is aware that he who rides the
tiger will eventually end inside the tiger's stomach. He who toys with
revolution will be swallowed by that same revolution. History is replete with
examples of libertarians who turned tyrants and were burned at stake or
beheaded or hanged or guillotined by the very people whom they at first
championed and later deceived. The most bloody of such mass executions
by the wrath of a wronged people, was the decapitation by guillotine of about
15,000 Frenchmen including the leaders of the French revolution, like
Robespierre, Danton, Desmoulins and Marat. He is fully cognizant of the
lessons of history.
HENCE, THE DISMISSAL OF THESE FIVE CASES IS JUSTIFIED.
ESGUERRA, J.: For Dismissal of Petitions
These petitions seek to stop and prohibit the respondents Executive Officers
from implementing the Constitution signed on November 30, 1972; in L36165, to compel respondents Gil Puyat and Jose J. Roy, President and
President Pro-Tempore, respectively, of the Senate under the 1935
Constitution, to convene the Senate in regular session which should have
started on January 22, 1973; to nullify Proclamation No. 1102 of the
President issued on January 17, 1973, which declared the ratification of the
Constitution on November 30, 1972, by the Filipino people, through the
barangays or Citizens Assemblies established under Presidential Decree No.
86 issued on December 31, 1972, which were empowered under
Presidential Decree No. 86-A, issued on January 5, 1973, to act in
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connection with the ratification of said Constitution.

Grounds for the petitions are as follows:
1.That the Constitutional Convention was not a free forum for the making of
a Constitution after the declaration of Martial Law on September 21, 1972.
2.The Convention was not empowered to incorporate certain provisions in
the 1972 Constitution because they are highly unwise and objectionable and
the people were not sufficiently informed about them.
3.The President had no authority to create and empower the Citizens
Assemblies to ratify the new Constitution at the referendum conducted in
connection therewith, as said assemblies were merely for consultative
purposes, and
4.The provisions of Article XV of the 1935 Constitution prescribing the
manner of amending the same were not duly observed.
The petitions were not given due course immediately but were referred to the
Solicitor General as counsel for the respondents for comment, with three
members of the Court, including the undersigned, voting to dismiss them
outright. The comments were considered motions to dismiss which were set
for hearing and extensively argued. Thereafter both parties submitted their
notes and memoranda on their oral arguments.
I.
The issues raised for determination, on which the resolution of the Motion to
Dismiss hinges, are as follows:
1.Is the question presented political and, hence, beyond the competence of
this Court to decide, or is it justiciable and fit for judicial determination?
2.Was the new Constitution of November 30, 1972, ratified in accordance
with the amending process prescribed by Article XV of the 1935
Constitution?
3.Has the new Constitution been accepted and acquiesced in by the Filipino
people?
4.Is the new Constitution actually in force and effect?
5.If the answers to questions Nos. 3 and 4 be in the affirmative, are
petitioners entitled to the reliefs prayed for?
II.
The pivotal question in these cases is whether the issue raised is highly
political and, therefore, not justiciable. I maintain that this Court should
abstain from assuming jurisdiction, but, instead, as an act of judicial
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statesmanship, should dismiss the petitions. In resolving whether or not the

question presented is political, joint discussion of issues Nos. 1, 3 and 4 is
necessary so as to arrive at a logical conclusion. For after the acceptance of
a new Constitution and acquiescence therein by the people by putting it into
practical operation, any question regarding its validity should he foreclosed
and all debates on whether it was duly or lawfully ushered into existence as
the organic law of the state become political and not judicial in character.
The undisputed facts that lead to the issuance of Proclamation No. 1102 and
Presidential Decrees Nos. 86 and 86-A are fully set forth in the majority and
dissenting opinions in the Plebiscite cases decided on January 22, 1973, and
need not be repeated here.
Petitioners seeks to set at naught Proclamation No. 1102 and Presidential
Decrees Nos. 86 and 86-A, claiming that the ratification of the new
Constitution pursuant to the said decrees is invalid and of no effect.
Presidential Decree No. 86 organized the barangays or Citizens Assemblies
composed of all citizens at least fifteen years of age, and through these
assemblies the proposed 1972 Constitution was submitted to the people for
ratification. Proclamation No. 1102 of the President announced or declared
the result of the referendum or plebiscite conducted through the Citizens
Assemblies, and that 14,976,561 members thereof voted for the ratification
of the new Constitution and 743,869 voted against it. Petitioners assail these
two acts of the President as unauthorized and devoid of legal effect.
But looking through the veneer of judicial conformity with which the petitions
have been adroitly contrived, what is sought to be invalidated is the new
Constitution itself the very framework of the present Government since
January 17, 1973. The reason is obvious. The Presidential decrees set up
the means for the ratification and acceptance of the new Constitution and
Proclamation No. 1102 simply announced the result of the referendum or
plebiscite by the people through the Citizens Assemblies. The Government
under the new Constitution has been running on its tracks normally and
apparently without obstruction in the form of organized resistance capable of
jeopardizing its existence and disrupting its operation. Ultimately the issue is
whether the new Constitution may be set aside by this Court. But has it the
power and authority to assume such a stupendous task when the result of
such invalidation would be to subject this nation to divisive controversies that
may totally destroy the social order which the Government under the new
Constitution has been admirably protecting and promoting under Martial
Law? That the new Constitution has taken deep root and the people are
happy and contended with it is a living reality which the most articulate critics
of the new order cannot deny. 95 out of 108 members of the House of
Representatives have opted to serve in the interim National Assembly
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provided for under the new Constitution. 15 out of 24 Senators have done
likewise. The members of the Congress did not meet anymore last January
22, 1973, not because they were really prevented from so doing but because
of no serious effort on their parts to assert their offices under the 1935
Constitution. In brief the Legislative Department under the 1935 Constitution
is a thing of the past. The Executive Department has been fully reorganized;
new appointments of key executive officers including those of the Armed
Forces were extended and they took an oath to support and defend the new
Constitution. The courts, except the Supreme Court by reason of these
cases, have administered justice under the new Constitution. All government
offices have dealt with the public and performed their functions according to
the new Constitution and laws promulgated thereunder.
If the real purpose of the petitions is to set aside the new Constitution, how
can this Court justify its assumption of jurisdiction when no power has . . .
conferred upon it the jurisdiction to declare the Constitution or any part
thereof null and void? It is the height of absurdity and impudence for a court
to wage open war against the organic act to which it owes its existence. The
situation in which this Court finds itself does not permit it to pass upon the
question whether or not the new Constitution has entered into force and has
superseded the 1935 Constitution. If it declares that the present Constitution
has not been validly ratified, it has to uphold the 1935 Constitution as still the
prevailing organic law. The result would be too anomalous to describe, for
then this Court would have to declare that it is governed by one Constitution
or the 1935 Constitution, and the legislative and executive branches by
another or the 1972 Constitution.
If it declares that the 1972 Constitution is now operative, how can it exercise
judicial discretion in these cases when it would have no other choice but to
uphold the new Constitution as against any other one? In the circumstances
it would be bereft of judicial attributes as the matter would then be not meet
for judicial determination, but one addressed to the sovereign power of the
people who have already spoken and delivered their mandate by accepting
the fundamental law on which the government of this Republic is now
functioning. To deny that the new Constitution has been accepted and
actually is in operation would be flying in the face of reason and pounding
one's bare head against a veritable stone wall or a heavily reinforced
concrete, or simply "kicking the deadly pricks" with one's bare foot in an
effort to eliminate the lethal points.
When a Constitution has been in operation for sometime, even without
popular ratification at that, submission of the people thereto by the
organization of the government provided therein and observance of its
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prescriptions by public officers chosen thereunder, is indicative of approval.

Courts should be slow in nullifying a Constitution claimed to have been
adopted not in accordance with constitutional or statutory directives [Miller
vs. Johnson, 92 Ky. 589; 189 S.W. 522; Taylor vs. Commonwealth, 101; Va.
829; 44 S.E. 754; Smith vs. Good, 34 F 204, 207; Wiston vs. Ryan, 70 Neb.
211; 97 N.W. 347].
In Miller vs. Johnson, supra, the Court said:
". . . But it is a case where a new constitution has been formed
and promulgated according to the forms of law. Great interests
have already arisen under it; important rights exist by virtue of it;
persons have been convicted of the highest crimes known to the
law, according to its provisions; the political power of the
government has in many ways recognized it; and under such
circumstances, it is our duty to treat and regard it as a valid
constitution, and now the organic law of our state. We need not
consider the validity of the amendments made after the convention
reassembled. If the making of them was in excess of its power,
yet, as the entire instrument has been recognized as valid in the
manner suggested, it would be equally an abuse of power by the
judiciary, and violative of the rights of the people, who can and
property should remedy the matter, if not to their liking, if it were
to declare the instrument or a portion invalid, and bring confusion
and anarchy upon the state." (Emphasis supplied)

In Smith vs. Good, supra, the Court said:

"It is said that a state court is forbidden from entering upon such
an inquiry when applied to a new constitution, and not an
amendment, because the judicial power presupposes an
established government, and if the authority of that government is
annulled and overthrown, the power of its courts is annulled with it;
and therefore, if a state court should enter upon such an inquiry,
and come to the conclusion that the government under which it
acted had been displaced by an opposing government, it would
cease to be a court, and it would be incapable of pronouncing a
judicial decision upon the question before it; but, if it decides at all,
it must necessarily affirm the existence of the government under
which it exercises its judicial powers." (Emphasis supplied)

These rules are all traceable to Luther vs. Borden, 48 U.S. (7 How.), 12 L.
Ed. 581, 598 (1849) where it was held:
"Judicial power presupposes an established government capable
of enacting laws and enforcing their execution, and of appointing
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judges to expound and administer them. The acceptance of the

judicial office is a recognition of the authority of the government
from which it is derived. And if the authority of that government is
annulled and overthrown, the power of its courts and other officers
is annulled with it. And if a State court should enter upon the
inquiry proposed in this case, and should come to the conclusion
that the government under which it acted had been put aside and
displaced by an opposing government it would cease to be a
court, and be incapable of pronouncing a judicial decision upon
the question it undertook to try. If it decides at all as a court, it
necessarily affirms the existence and authority of the government
under which it is exercising judicial power."

The foreign relations of the Republic of the Philippines have been normally
conducted on the basis of the new Constitution and no state with which we
maintain diplomatic relations has withdrawn its recognition of our
government. (For particulars about executive acts done under the new
Constitution, see pages 22-25 of the Comments of the Solicitor General,
dated February 3, 1973.)
Certainly the invalidation of Proclamation No. 1102 and Presidential Decrees
Nos. 86 and 86-A by this Court would smack of plain political meddling which
is described by the United States Supreme Court as "entering a political
thicket" in Colegrove vs. Green, 328 U.S. p. 549. At this juncture it would be
the part of wisdom for this Court to adopt the proper attitude towards political
upheavals and realize that the question before Us is political and not fit for
judicial determination. For a political question is one entrusted to the people
for judgment in their sovereign capacity (Taada vs. Cuenco, G.R. No. L10520, Feb. 28, 1967; 100 Phil. 1101), or to a co-equal and coordinate
branch of the Government (Vera vs. Arellano, 77 Phil. 192; Mabanag vs.
Lopez Vito, 78 Phil. 1; Alejandrino vs. Quezon, 46 Phil. 35; Cabili vs.
Francisco, G. R. No. 4638, May 8, 1931). A case involves a political question
when there would be "the impossibility of undertaking independent
resolutions without expressing a lack of respect due to coordinate branches
of government", or when there is "the potentiality of embarassment from
multifarious pronouncements by various departments on one question."
To preserve the prestige and eminence that this Court has long enjoyed as
the "ultimate organ of the 'Supreme Law of the Land' in that vast range of
legal problems often strongly entangled in popular feeling on which this
Court must pronounce", let us harken to the following admonition of Justice
Frankfurter in his dissent in Baker vs. Carr, 369 U.S. 186; 82 S. Ct. 691; 7 L.
Ed. 2d. 663:
"The Court's authority possessed neither of the purse nor the
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sword ultimately rests on sustained public confidence in its

moral sanction. Such feeling must be nourished by the Court's
complete detachment, in fact and appearance, from political
entanglements and abstention from injecting itself into the clash of
political forces in political settlement . . ." (Emphasis supplied)

The people have accepted and submitted to a new Constitution to replace

the 1935 Constitution. The new organic law is now in the plenitude of its
efficacy and vigor. We are now living under its aegis and protection and only
the cynics will deny this. This Court should not in the least attempt to act as a
super-legislature or a super- board of canvassers and sow confusion and
discord among our people by pontificating that there was no valid ratification
of the new Constitution. The sober realization of its proper role and delicate
function and its consciousness of the limitations on its competence,
especially in situations like this, are more in keeping with the preservation of
our democratic tradition than the blatant declamations of those who wish the
Court to engage in their brand of activism and would not mind plunging it into
the whirlpool of passion and emotion in an effort to capture the entoxicating
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 Constitution proposed by the Constitutional Convention of 1971 had
been ratified in accordance with the provisions of Article XV of the 1935
Constitution. In the plebiscite cases, which were decided by this Court on
January 22, 1973 1 , I held the view that this issue could be properly resolved
by this Court, and that it was in the public interest that this Court should
declare then whether or not the proposed Constitution had been validly
ratified. The majority of this Court, however, was of the view that the issue
was not squarely raised in those cases, and so the Court, as a body, did
make any categorical pronouncement on the question of whether or not the
Constitution proposed by the 1971 Convention was validly ratified. I was the
only one who expressed the opinion that the proposed Constitution was not
validly ratified and therefore "it should not be given force and effect."
The Court is now called upon to declare, and to inform the people of this
country, whether or not that proposed Constitution had been validly ratified
and had come into effect.
The Solicitor General, however, contends that this Court has no jurisdiction
to resolve the issue that we have mentioned because that issue is a political
question that cannot be decided by this Court. This contention of the Solicitor
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General is untenable. A political question relates to "those questions which

under the Constitution are to be decided by the people in their sovereign
capacity or in regard to which full discretionary authority has been delegated
to the legislative, or to the executive, branch of the government. 2 The courts
have the power to determine whether the acts of the executive are
authorized by the Constitution and the laws whenever they are brought
before the court in a judicial proceeding. The judicial department of the
government exercises a sort of controlling, or rather restraining, power over
the two other departments of the government. Each of the three
departments, within its proper constitutional sphere, acts independently of
the other, and restraint is only placed on one department when that sphere is
actually transcended. While a court may not restrain the executive from
committing an unlawful act, it may, when the legality of such an act is
brought before it in a judicial proceeding, declare it to be void, the same as it
may declare a law enacted by the legislature to be unconstitutional. 3 It is a
settled doctrine that every officer under a constitutional government must act
according to law and subject to its restrictions, and every departure
therefrom, or disregard thereof, must subject him to the restraining and
controlling power of the people, acting through the agency of the judiciary. It
must be remembered that the people act through the courts, as well as
through the executive or the legislature. One department is just as
representative as the other, and the judiciary is the department which is
charged with the special duty of determining the limitations which the law
places upon all official actions 4 . In the case of Gonzales v. Commission on
Elections 5 , this Court ruled that the issue as to whether or not a resolution
of Congress acting as a constituent assembly violates the Constitution is not
a political question and is therefore subject to judicial review. In the case of
Avelino v. Cuenco 6 , this Court held that the exception to the rule that courts
will not interfere with a political question affecting another department is
when such political question involves an issue as to the construction and
interpretation of the provisions of the constitution. And so, it has been held
that the question of whether a constitution shall be amended or not is a
political question which is not in the power of the court to decide, but whether
or not the constitution has been legally amended is a justiciable question. 7
My study on the subject of whether a question before the court is political or
judicial, based on decisions of the courts in the United States where, after
all, our constitutional system has been patterned to a large extent made
me arrive at the considered view that it is in the power of this Court, as the
ultimate interpreter of the Constitution, to determine the validity of the
proposal, the submission, and the ratification of any change in the
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Constitution. Ratification or non-ratification of a constitutional amendment is

a vital element in the procedure to amend the constitution, and I believe that
the Court can inquire into, and decide on, the question of whether or not an
amendment to the constitution, as in the present cases, has been ratified in
accordance with the requirements prescribed in the Constitution that was
amended. And so, in the cases now before Us, I believe that the question of
whether or not the Constitution proposed by the 1971 Constitutional
Convention had been validly ratified or not is a justiciable question.
The Chief Justice, in his opinion, has discussed lengthily the subject on
whether or not, the cases, before Us involve a political, or a judicial,
question. I fully concur with his conclusion that the question involved in these
cases is justiciable.
On the question now of whether or not the Constitution proposed by the
1971 Constitutional Convention has been validly ratified, I am reproducing
herein pertinent portions of my dissenting opinion in the plebiscite cases:
"The ratification of the Constitution proposed by the 1971
Constitutional Convention must be done in accordance with the
provisions of Section 1, Article XV of the 1935 Constitution of the
Philippines, which reads:
'Section 1.The Congress in joint session assembled
by a vote of three fourths of all the Members of the Senate
and of the House of Representatives voting separately,
may propose amendments to the Constitution or call a
convention for that purpose. Such amendments shall be
valid as part of this Constitution when approved by a
majority of the votes cast at an election at which the
amendments are submitted to the people for their
ratification.'
"It is in consonance with the abovequoted provision of the 1935
Constitution that on March 16, 1967, the Congress of the
Philippines passed Resolution No. 2 calling a convention to
propose amendments to the Constitution of the Philippines. Sec. 7
of said Resolution No. 2 reads as follows:
'SECTION 7.The amendments proposed by the
Convention shall be valid and considered part of the
Constitution when approved by a majority of the votes cast
in an election at which they are submitted to the people for
their ratification pursuant to Article XV of the Constitution.'
"It follows that from the very resolution of the Congress of the
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Philippines which called for the 1971 Constitutional Convention

there was a clear mandate that the amendments proposed by the
1971 Convention, in order to be valid and considered part of the
Constitution, must be approved by majority of the votes cast in an
election at which they are submitted to the people for 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 same nature, owes its existence and
derives all its authority and power from the existing
Constitution of the Philippines. This Convention has not
been called by the people directly as in the case of a
revolutionary convention which drafts the first Constitution
of an entirely new government born of either a war of
liberation from a mother country or of a revolution against
an existing government or of a bloodless seizure of power a
la coup d'etat. As to such kind of conventions, it is
absolutely true that the convention is completely without
restraint and omnipotent all wise, and it is as to such
conventions that the remarks of Delegate Manuel Roxas of
the Constitutional Convention of 1934 quoted by Senator
Pelaez refer. No amount of rationalization can belie the fact
that the current convention came into being only because it
was called by a resolution of a joint session of Congress
acting as a constituent assembly by authority of Section 1,
Article XV of the present Constitution . . .
xxx xxx xxx
'As to matters not related to its internal operation and
the performance of its assigned mission to propose
amendments to the Constitution, the Convention and its
officers and members are all subject to all the provisions of
the existing Constitution. Now we hold that even as to its
latter task of proposing amendments to the Constitution, it
is subject to the provisions of Section 1 of Article XV.'
"In Proclamation No. 1102, issued on January 17, 1973, the
President of the Philippines certified that as a result of the voting
before the barangays (Citizens Assemblies) 14,976,561 members
of the barangays voted for the adoption of the proposed
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on the basis of the overwhelming majority of the votes cast by the

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

proclaiming the ratification of the proposed constitution.
clear, to me, that Proclamation No. 1102 was issued in
disregard or in violation, of the provisions of Section 1
XV of the 1935 Constitution.

basis for
It is very
complete
of Article

"Proclamation No. 1102 mentions, furthermore, that on the

question as to whether or not the people would still like a
plebiscite to be called to ratify the new Constitution, 14,298,814
members of the barangays answered that there was no need for a
plebiscite but that the vote of the barangays should be considered
a vote in a plebiscite. It would thus appear that the barangays
assumed the power to determine whether a plebiscite as ordained
in the Constitution be held or not. Indeed, the provision of Section
1, Article XV of the Constitution was completely disregarded.
"The affirmative votes cast in the barangays are not the votes
contemplated in Section 1 of Article XV of the 1935 Constitution.
The votes contemplated in said constitutional provision are votes
obtained through the election processes as provided by law.
'An election is the embodiment of the popular will,
the expression of the sovereign power of the people. In
common parlance an election is the act of casting and
receiving the ballots, counting them, and making the return.'
(Hontiveros vs. Altavas, 24 Phil. 632, 637).
'Election' implies a choice by an electoral body at the
time and substantially in the manner and with the
safeguards provided by law with respect to some question
or issue. (Leffel v. Brown, Com. P1., 159 N.E. 2d 807, 808
cited in 29 C.J.S. 13 at footnote 6.5).
'. . . the statutory method whereby qualified voters or
electors pass on various public matters submitted to them
the election of officers, national, state, county, township
the passing on various other questions submitted for
their determination.' (29 C.J.S. 13, citing Iowa-llinois Gas &
Elec. Co. v. City of Bettendorf, 41 N.W. 2d 1, 5, 241 Iowa
358).
'Election' is expression of choice by voters of body
politic. (Ginsburg v. Giles, 72 S.W. 2d 438, 254 Ky. 720, in
Words and Phrases, Permanent Edition, p. 234).
"The right to vote may be exercised only on
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compliance with such statutory requirements as have been

set by the legislature.' (People ex rel. Rago v. Lipsky, 63
N.E. 2d 642, 327 Ill. App. 63; Rothfels v. Southworth, 356
P. 2d 612, 11 Utah 2d 169 in 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 except barrio officials and plebiscites shall be
conducted in the manner provided by this Code.'
'Sec. 99.Necessity of registration to be entitled to
vote. In order that a qualified voter may vote in any
regular or special election or in any plebiscite he must be
registered in the permanent list of voters for the city,
municipality or municipal district in which he resides:
Provided, That no person shall register more than once
without first applying for cancellation of his previous
registration.' (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 citizens assemblies who are 15 years of age or
over. Under the provision of Section 1 of Article V of the 1935
Constitution the age requirement to be a qualified voter is 21 years
or over.
"But what is more noteworthy is the fact that the voting in the
barangays, except in very few instances, was done by the raising
of hands by the persons indiscriminately gathered to participate in
the voting, where even children below 15 years of age were
included. This is a matter of common observation, or of common
knowledge, which the Court may take judicial notice of. To
consider the votes in the barangays as expressive of the popular
will and use them as the basis in declaring whether a Constitution
is ratified or rejected is to resort to a voting by demonstrations,
which is would mean the rule of the crowd, which is only one
degree higher than the rule by the mob. Certainly, so important a
question as to whether the Constitution, which is the supreme law
of the land, should be ratified or not, must not be decided by
simply gathering people and asking them to raise their hands in
answer to the question of whether they vote for or against a
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proposed Constitution. The election processes as provided by law

should be strictly observed in determining the will of the sovereign
people in a democracy. In our Republic the will of the people must
be expressed through the ballot in a manner that is provided by
law.
"It is said that in a democracy the will of the people is the supreme
law. Indeed, the people are sovereign, but the will of the people
must be expressed in a manner as the law and the demands of a
well-ordered society require. The rule of law must prevail even
over the apparent will of the majority of the people, if that will had
not been expressed, or obtained, in accordance with the law.
Under the rule of law public questions must be decided in
accordance with the Constitution and the law. This is specially true
in the case of the adoption of a constitution or in the ratification of
an amendment to the Constitution.
"The following citations are, to me, very relevant in the effort to
determine whether the proposed Constitution of 1972 had been
validly ratified, or not:
'When it is said that 'the people' have the right to
alter or amend the constitution, it must not be understood
that this term necessarily includes all the inhabitants of the
state. Since the question of the adoption or rejection of a
proposed new constitution or constitutional amendment
must be answered by a vote, the determination of it rests
with those who, by the existing constitution, are accorded
the right of suffrage. But the qualified electors must be
understood in this, as in many other cases, as representing
those who have not the right to participate in the ballot. If a
constitution should be abrogated, and a new one adopted,
by the whole mass of people in a state, acting through
representatives not chosen by the 'people' in the political
sense of the term, but by the general body of the populace,
the movement would 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 the people, from whom springs all
legitimate authority. The people of the Union created a
national constitution, and conferred upon it powers of
sovereignty over certain subjects, and the people of each
State created a State government, to exercise the
remaining powers of sovereignty so far as they were
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disposed to allow them to be exercised at all. By the

constitution which they establish, they not only tie up the
hands of their official agencies, but their own hands as well;
and neither the officers of the State, nor the whole people
as an aggregate body, are at liberty to take action in
opposition to this fundamental law.' (Cooley's Constitutional
Limitations, 8th Edition, Vol. I, p. 81 cited in Graham v.
Jones, 3 So. 2d. 761, 782).
'The theory that a favorable vote by the electorate,
however unanimous, on a proposal to amend a constitution,
may cure, render innocuous, all or any antecedent failures
to observe commands of that Constitution in respect of the
formulation or submission of proposed amendments
thereto, does not prevail in Alabama, where the doctrine of
the stated theory was denied, in obvious effect, by the
pronouncement 60 years ago of broad, wholesome
constitutional principles in Collier v. Frierson, supra, as
quoted in the original opinion, ante. The people themselves
are bound by the Constitution; and, being so bound, are
powerless, whatever their numbers, to change or thwart its
mandates, except through the peaceful means of a
constitutional convention, or of amendment according to the
mode therein prescribed, or through the exertion of the
original right of revolution. 'The Constitution may be set
aside by revolution, but it can only be amended in the way it
provides,' said Hobson, C.J., in McCreary v. Speer, 156 Ky.
783, 791, 162 S. W. 99, 103. (Johnson vs. Craft, et al., 87
So. 375, 385, 387, On Rehearing).
'The fact that a majority voted for the amendment,
unless the vote was taken as provided by the Constitution,
is not sufficient to make a change in that instrument.
Whether a proposed amendment has been legally adopted
is a judicial question, for the court must uphold and enforce
the Constitution as written until it is amended in the way
which it provides for.' Wood v. Tooker, 15 Mont. 8, 37 Pac.
840, 25 L.R.A. 560; McConaughty v. State, 106 Minn. 409,
119 N.W. 408; Oakland Paving Company v. Hilton, 69 Cal.
499,11 Pac. 3; Utter v. Mosely, 16 Idaho 274, 100 Pac.
1958, 133 Am. St. Rep. 94, 18 Ann. Cas. 723. (McCreary v.
Speer, 162 S.W. 99,104).
'Provisions of a constitution regulating its own
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amendment, . . . are not merely directory, but are

mandatory; and a strict observance of every substantial
requirement is essential to the validity of the proposed
amendment. These provisions are as binding on the people
as on the legislature, and the former are powerless by vote
of acceptance to give legal sanction to an amendment the
submission of which was made in disregard of the
limitations contained in the constitution.' (16 C.J.S. 35-36
cited in Graham v. Jones, 3 So. 2d 761, 782).
'It is said that chaos and confusion in the
governmental affairs of the State will result from the Court's
action in declaring the proposed constitutional amendment
void. This statement is grossly and manifestly inaccurate. If
confusion and chaos should ensue, it will not be due to the
action of the Court but will be the result of the failure of the
drafters of the joint resolution to observe, follow and obey
the plain essential provisions of the Constitution.
Furthermore, to say that, unless the Court disregards its
sworn duty to enforce the Constitution, chaos and
confusion will result, is an inherently weak argument in
favor of the alleged constitutionality of the proposed
amendment. It is obvious that, if the Court were to
countenance the violations of the sacramental provisions of
the Constitution, those who would thereafter desire to
violate it and disregard its clear mandatory provisions would
resort to the scheme of involving and confusing the affairs
of the State and then simply tell the Court that it was
powerless to exercise one of its primary functions by
rendering the proper decree to make the Constitution
effective.' (Graham v. Jones, 3 So. 2d. 761, 793-794).
"In our jurisprudence I find an instance where this Court did not
allow the will of the majority to prevail, because the requirements
of the law were not complied with. In the case of Monsale v. Nico,
83 Phil. 758, Monsale and Nico were both candidates for the office
of Municipal Mayor of Miagao, Iloilo, in the elections of November
11, 1947. Monsale had duly filed his certificate of candidacy
before the expiration of the period for the filing of the same.
However, on October 10, 1947, after the period for the filing of
certificate of candidacy, Monsale withdrew his certificate of
candidacy. But on November 7, 1947 Monsale attempted to revive
his certificate of candidacy by withdrawing the withdrawal of his
certificate of candidacy. e ( The Commission on Elections, on
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November 8, 1947, ruled that Monsale could no longer be a

candidate. Monsale nevertheless proceeded with his candidacy.
The boards of inspectors in Miagao, however, did not count the
votes cast for Monsale upon the ground that the votes cast for him
were stray votes, because he was considered as having no
certificate of candidacy. On the other hand, the boards of
inspectors credited Nico with 2,291 votes, and Nico was
proclaimed elected. Monsale filed a protest against the election of
Nico in the Court of First Instance of Iloilo. In the count of the
ballots during the proceedings in the trial court it appeared that
Monsale had obtained 2,877 votes while Nico obtained 2,276
votes, or a margin of 601 votes in favor of Monsale. The Court of
First Instance of Iloilo decided the election protest in favor of
Monsale. Upon appeal by Nico, this Court reversed the decision of
the lower court. This Court declared that because Monsale
withdrew his certificate of candidacy his attempt to revive it by
withdrawing his withdrawal of his certificate of candidacy did not
restore the effectiveness of his certificate of candidacy, and this
Court declared Nico the winner in spite of the fact that Monsale
had obtained more votes than he.

"We have cited this Monsale case to show that the will of the
majority of the voters would not be given effect, as declared by
this Court, if certain legal requirements have not been complied
with in order to render the votes valid and effective to decide the
result of an election.
"And so, in the cases now before this Court, the fact that the
voting in the citizens assemblies (barangays) is not the election
that is provided for in the 1935 Constitution for the ratification of
the amendment to the Constitution, the affirmative votes cast in
those assemblies can not be made the basis for declaring the
ratification of the proposed 1972 Constitution, in spite of the fact
that it was reported that 14,976,561 members of the citizens
assemblies voted for the adoption as against 743,869 for the
rejection, because the votes thus obtained were not in accordance
with the provisions of Section 1 of Article XV of the 1935
Constitution of the Philippines. The rule of law must he upheld.
"My last observation: One of the valid grounds against the holding
of the plebiscite on January 15, 1973, as provided in Presidential
Decree No. 73, is that there is no freedom on the part of the
people to exercise their right of choice, because of the existence
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of martial law in our country. The same ground holds true as

regards the voting of the barangays on January 10 to 15, 1973.
More so, because by General Order No. 20, issued on January 7,
1973, the President of the Philippines ordered 'that the provisions
of Section 3 of Presidential Decree No. 73 in so far as they allow
free public discussion of the proposed constitution, as well as any
order of December 17, 1972 temporarily suspending the effects of
Proclamation No. 1081 for the purpose of free and open debate on
the proposed constitution, he suspended in the meantime.' It is,
therefore, my view that voting in the barangays on January 10-15,
1973 was not free, and so this is one added reason why the
results of the voting in the barangays should not be made the
basis for the proclamation of the ratification of the proposed
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 the 1971
Constitutional Convention should be considered as not yet ratified
by the people of this Republic, and so it should not be given force
and effect."

It is urged by the Solicitor General, however, that the voting in the citizens
assemblies was a substantial compliance with the provisions of Article XV of
the 1935 Constitution. The Solicitor General-maintains that the primary thrust
of the provision of Article XV of the 1935 Constitution is that "to be valid,
amendments must gain the approval of the majority in recognition of the
democratic postulate that sovereignty resides in the people." It is not
disputed that in a democracy sovereignty resides in the people. But the term
"people" must be understood in its constitutional meaning, and they are
"those persons who are permitted by the Constitution to exercise the elective
franchise." 8 Thus, in Section 2 of Article VII of the 1935 Constitution, it is
provided that "The President shall hold his office during a term of four years
and, together with the Vice- President chosen for the same term, shall be
elected by direct vote of the people . . ." Certainly under that constitutional
provision the "people" who elect directly the President and the VicePresident are no other than the persons who, under the provisions of the
same Constitution, are granted the right to vote. In like manner the provision
in Section 1 of Article II of the 1935 Constitution which says "Sovereignty
resides in the people and all government authority emanates from them", the
"people" who exercise the sovereign power are no other than the persons
who have the right to vote under the Constitution. In the case of
Garchitorena vs. Crescini 9 , this Court, speaking through Mr. Justice
Johnson, said, "In democracies, the people, combined, represent the
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sovereign power of the State. Their sovereign authority is expressed through

the ballot, of the qualified voters, in duly appointed elections held from time
to time, by means of which they choose their officials for definite fixed
periods, and to whom they entrust, for the time being, as their
representatives, the exercise of the powers of government." In the case of
Moya v. Del Fierro, 10 this Court, speaking through Mr. Justice Laurel, said,
"As long as popular government is an end to be achieved and safeguarded,
suffrage, whatever may be the modality and form devised, must continue to
be the means by which the great reservoir of power must be emptied into the
receptacular agencies wrought by the people through their Constitution in the
interest of good government and the common weal. Republicanism, in so far
as it implies the adoption of a representative type of government, necessarily
points to the enfranchised citizen as a particle of popular sovereignty and as
the ultimate source of the established authority." And in the case of Abanil v.
Justice of the Peace of Bacolod, 11 this Court said: "In the scheme of our
present republican government, the people are allowed to have a voice
therein through the instrumentality of suffrage to be availed of by those
possessing certain prescribed qualifications. The people, in clothing a citizen
with the elective franchise for the purpose of securing a consistent and
perpetual administration of the government they ordain, charge him with the
performance of a duty in the nature of a public trust, and in that respect
constitute him a representative of the whole people. This duty requires that
the privilege thus bestowed should be exercised, not exclusively for the
benefit of the citizen or class of citizens professing it, but in good faith and
with an intelligent zeal for the general benefit and welfare of the state. (U.S.
v. Cruikshauk, 92 U.S. 588) . . ." There is no question, therefore, that when
we talk of sovereign people, what is meant are the people who act through
the duly qualified and registered voters who vote during an election that is
held as provided in the Constitution or in the law.
The term "election" as used in Section 1 of Article XV of the 1935
Constitution should be construed along with the term "election" as used in
the provisions of Section 4 of the Philippine Independence Act of the
Congress of the United States, popularly known as the Tydings-McDuffie
Law (Public Act No. 127). Said Section 4 of the Tydings-McDuffie Law
provides as follows:
"Section 4.After the President of the United States has certified
that the constitution conforms with the provisions of this act, it
shall be submitted to the people of the Philippine Islands for their
ratification or rejection at an election to be held within four months
after the date of such certification, on a date to be fixed by the
Philippine Legislature, at which election the qualified voters of the
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Philippine Islands shall have an opportunity to vote directly for or

against the proposed constitution and ordinances appended
thereto. Such election shall be held in such manner as may be
prescribed by the Philippine Legislature, to which the return of the
election shall be made. The Philippine Legislature shall by law
provide for the canvassing of the return and shall certify the result
of the Governor- General of the Philippine Islands, together with a
statement of the votes cast, and a copy of said constitution and
ordinances. If a majority of the votes cast shall be for the
constitution, such vote shall be deemed an expression of the will
of the people of the Philippine Independence, and the GovernorGeneral shall, within thirty days after receipt of the certification
from the Philippine Legislature, issue a proclamation for the
election of officers of the government of the Commonwealth of the
Philippine Islands provided for in the Constitution . . ."

It can safely be said, therefore, that when the framers of the 1935
Constitution used the word "election" in Section 1 of Article XV of the 1935
Constitution they had no other idea in mind except the elections that were
periodically held in the Philippines for the choice of public officials prior to the
drafting of the 1935 Constitution, and also the "election" mentioned in the
Independence Act at which "the qualified voters of the Philippine Islands
shall have an opportunity to vote directly for or against the proposed
constitution . . ." It is but logical to expect that the framers of the 1935
Constitution would provide a mode of ratifying an amendment to that
Constitution similar to the mode of ratifying the original Constitution itself.
It is clear, therefore, that the ratification or any amendment to the 1935
Constitution could only he done by holding an election, as the term "election"
was understood, and practiced, when the 1935 Constitution was drafted. The
alleged referendum in the citizens assemblies participated in by persons
aged 15 years or more, regardless of whether they were qualified voters or
not, voting by raising their hands, and the results of the voting reported by
the barrio or ward captain to the municipal mayor, who in turn submitted the
report to the Provincial Governor, and the latter forwarding the reports to the
Department of Local Governments, all without the intervention of the
Commission on Elections which is the constitutional body which has
exclusive charge of the enforcement and administration of all laws relative to
the conduct of elections was not only a non-substantial compliance with
the provisions of Section 1 of Article XV of the 1935 Constitution but a
downright violation of said constitutional provision. It would be indulging in
sophistry to maintain that the voting in the citizens assemblies amounted to a
substantial compliance with the requirements prescribed in Section 1 of
Article XV of the 1935 Constitution, 1935 Constitution.
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It is further contended by the Solicitor General, that even if the Constitution

proposed by the 1971 Constitutional Convention was not ratified in
accordance with the provisions of Section 1 of Article XV of the 1935
Constitution, the fact is that after the President of the Philippines had issued
Proclamation No. 1102 declaring that the said proposed Constitution "has
been ratified by overwhelming majority of all the votes cast by the members
of all the barangays (citizens assemblies) throughout the Philippines and had
thereby come into effect" the people have accepted the new Constitution.
What appears to me, however, is that practically it is only the officials and
employees under the executive department of the Government who have
been performing their duties apparently in observance of the provisions of
the new Constitution. It could not be otherwise, because the President of the
Philippines, who is the head of the executive department, had proclaimed
that the new Constitution had come into effect, and his office had taken the
steps to implement the provisions of the new Constitution. True it is, that
some 92 members of the House of Representatives and 15 members of the
Senate, of the Congress of the Philippines had expressed their option to
serve in the interim National Assembly that is provided for in Section 2 of
Article XVII of the proposed Constitution. It must be noted, however, that of
the 15 senators who expressed their option to serve in the interim National
Assembly only one of them took his oath of office, and of the 92 members of
the House of Representatives who opted to serve in the interim National
Assembly, only 22 took their oath of office. The fact, that only one Senator
out of 24, and only 22 Representatives out of 110, took their oath of office, is
an indication that only a small portion of the members of Congress had
manifested their acceptance of the new Constitution. It is in the taking of the
oath of office where the affiant says that he swears to "support and defend
the Constitution" that the acceptance of the Constitution is made manifest. I
agree with counsel 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 the interim National Assembly did so only ex abundante
cautela, or by way of a precaution, or making sure, that in the event the new
Constitution becomes definitely effective and the interim National Assembly
is convened they can participate in legislative work in their capacity as duly
elected representatives of the people, which otherwise they could not do if
they did not manifest their option to serve, and that option had to be made
within 30 days from January 17, 1973, the date when Proclamation No. 1102
was issued. Of course, if the proposed Constitution does not become
effective, they continue to be members of Congress under the 1935
Constitution. Let it be considered that the members of the House of
Representatives were elected in 1969 to serve a term which will yet expire
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on December 31, 1973. Whereas, of the Senators who opted to serve in the
interim National Assembly, the term of some of them will yet expire on
December 31, 1973, some on December 31, 1975, and the rest on
December 31, 1977. Let if be noted that 9 Senators did not opt to serve in
the interim National Assembly, and 18 members of the House of
Representatives also did not opt to serve in the interim National Assembly.
Neither can it be said that the people have accepted the new Constitution. I
cannot, in conscience, accept the reported affirmative votes in the citizens
assemblies as a true and correct expression by the people of their approval,
or acceptance, of the proposed Constitution. I have my serious doubts
regarding the freedom of the people to express their views regarding the
proposed Constitution during the voting in the citizens assemblies, and I
have also my serious doubts regarding the truthfulness and accuracy of the
reports of the voting in the citizens assemblies. This doubt has been
engendered in my mind after a careful examination and study of the records
of these cases, particularly with respect to the reports of the voting in the
citizens assemblies. Perhaps, it may be said that the people, or the
inhabitants of this country, have acquiesced to the new Constitution, in the
sense that they have continued to live peacefully and orderly under the
government that has been existing since January 17, 1973 when it was
proclaimed that the new Constitution came into effect. But what could the
people do? In the same way that the people have lived under martial law
since September 23, 1972, they also have to live under the government as it
now exists, and as it has existed since the declaration of martial law on
September 21, 1972, regardless of what Constitution is operative whether
it is the 1935 Constitution or the new Constitution. Indeed, there is nothing
that the people can do under the circumstances actually prevailing in our
country today circumstances, known to all, and which I do not consider
necessary to state in this opinion I cannot agree, therefore, with my worthy
colleagues in the Court who hold the view that the people have accepted the
new Constitution, and that because the people have accepted it, the new
Constitution should be considered as in force, regardless of the fact that it
was not ratified in accordance with the provisions of Section 1 of Article XV
of the 1935 Constitution.
It is my honest view that the Constitution proposed by the 1971
Constitutional Convention has not come into effect. I do not say, however,
that the proposed Constitution is invalid. To me, the validity of the proposed
Constitution is not in issue in the cases before Us. What the petitioners
assail is not the validity of the proposed Constitution but the validity of
Presidential Proclamation No. 1102 which declares the proposed
Constitution as having been ratified and has come into effect. It being my
considered view that the ratification of the proposed Constitution, as
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proclaimed in Proclamation No. 1102, is not in accordance with the

provisions of Section 1 of Article XV of the 1935 Constitution, I hold that
Proclamation No. 1102 is invalid and should not be given force and effect.
The proposed Constitution, therefore, should be considered as not yet validly
ratified, and so it is not in force. The proposed Constitution may still be
submitted to a plebiscite in conformity with Section 1 of Article XV of the
1935 Constitution. Incidentally, I must state that the 1935 Constitution is still
in force, and this Court is still functioning under the 1935 Constitution.
I sincerely believe that the proposed Constitution may still be submitted to
the people in an election or plebiscite held in accordance with the provisions
of Section 1 of Article XV of the 1935 Constitution. In fact, as we have
adverted to in this opinion, this was the mandate of Congress when, on
March 16, 1967, it passed Resolution No. 2 calling a convention to propose
amendments to the 1935 Constitution. The Court may take judicial notice of
the fact that the President of the Philippines has reassured the nation that
the government of our Republic since the declaration of martial law is not a
revolutionary government, and that he has been acting all the way in
consonance with his powers under the Constitution. The people of this
Republic has reason to be happy because, according to the President, we
still have a constitutional government. It being my view that the 1935
Constitution is still in force, I believe Congress may still convene and pass a
law calling for an election at which the Constitution proposed by the 1971
Constitutional Convention will be submitted to the people for their ratification
or rejection. A plebiscite called pursuant to Section 1 of Article XV of the
1935 Constitution is an assurance to our people that we still have in our
country the Rule of Law, and that the democratic system of government that
has been implanted in our country by the Americans, and which has become
part of our social and political fabric, is still a reality.
The views that I have expressed in this opinion are inspired by a desire on
my part to bring about stability in the democratic and constitutional system in
our country. I feel that if this Court would give its imprimatur to the ratification
of the proposed Constitution, as announced in Proclamation No. 1102, it
being very clear that the provisions of Section 1 of Article XV of the 1935
Constitution had not been complied with, We will be opening the gates for a
similar disregard of the Constitution in the future. What I mean is that if this
Court now declares that a new Constitution is now in force because the
members of the citizens assemblies had approved said new Constitution,
although that approval was not in accordance with the procedure and the
requirements prescribed in the 1935 Constitution, it can happen again in
some future time that some amendments to the Constitution may be
adopted, even in a manner contrary to the existing Constitution and the law,
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manner and what will matter is that a basis is claimed that there was
approval by the people. There will not be stability in our constitutional
system, and necessarily no stability in our government. As a member of this
Court I only wish to contribute my humble efforts to prevent the happening of
such a situation in the future.
It appearing to me that the announced ratification of the proposed
Constitution through the voting in the citizens assemblies is a clear violation
of the 1935 Constitution, what I say in this opinion is simply an endeavor on
my part to be true to my oath of office to defend and support the 1935
Constitution. I am inspired by what the great jurist and statesman, Jose P.
Laurel, said:
"Let our judges be as it were the vestal keepers of the purity and
sanctity of our Constitution, and the protection and vindication of
popular rights will be safe and secure in their reverential
guardianship."

I only wish to help prevent, if I can, democracy and the liberties of our people
from vanishing in our land, because, as Justice George Sutherland of the U.
S. Supreme Court said:
"(t)he saddest epitaph which can be carved in memory of a
vanished liberty is that it was lost because its possessors failed to
stretch forth a saving hand while yet there was time."

I concur fully with the personal views expressed by the Chief Justice in the
opinion that he has written in these cases. Along with him, I vote to deny the
motion to dismiss and to give due course to the petitions in these cases.
FERNANDO, J., dissenting:
No question more momentous, none impressed with such transcendental
significance is likely to confront this Court in the near or distant future as that
posed by these petitions. For while the specific substantive issue is the
validity of Presidential Proclamation No. 1102, an adverse judgment may be
fraught with consequences that, to say the least, are far-reaching in its
implications. As stressed by respondents, "what petitioners really seek to
invalidate is the new Constitution." 1 Strict accuracy would of course qualify
such statement that what is in dispute, as noted in the opinion of the Chief
Justice, goes only as far as the validity of its ratification. It could very well be
though that the ultimate outcome is not confined within such limit, and this is
not to deny that under its aegis, there have been marked gains in the social
and economic sphere, but given the premise of continuity in a regime under
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a fundamental law, which itself explicitly recognizes the need for change and
the process for bringing it about, 2 it seems to me that the more appropriate
course is for this Court to give heed to the plea of petitioners that the most
serious attention be paid to their submission that the challenged executive
act fails to meet the test of constitutionality. Under the circumstances, with
regret and with due respect for the opinion of my brethren, I must perforce
dissent. It would follow therefore that the legal position taken by the Chief
Justice as set forth with his usual lucidity and thoroughness has, on the
whole, my concurrence, subject, of course, to reservations insofar as it
contains views and nuances to which I have in the past expressed doubts.
Nonetheless, I feel that a brief expression of the reasons for the stand I take
would not be amiss.
In coping with its responsibility arising from the function of judicial review,
this Court is not expected to be an oracle given to utterances of eternal
verities, but certainly it is more than just a keen but passive observer of the
contemporary scene. It is, by virtue of its role under the separation of powers
concept, involved not necessarily as a participant in the formation of
government policy, but as an arbiter of its legality. Even then, there is realism
in what Lerner did say about the American Supreme Court as "the focal point
of a set of dynamic forces which [could play] havoc with the landmarks of the
American state and determine the power configuration of the day." 3 That is
why there is this caveat. In the United States as here, the exercise of the
power of judicial review is conditioned on the necessity that the decision of a
case or controversy before it so requires. To repeat, the Justices of the
highest tribunal are not, as Justice Frankfurter made clear, "architects of
policy. They can nullify the policy of others, they are incapable of fashioning
their own solutions for social problems." 4 Nonetheless, as was stressed by
Professors Black 5 and Murphy, 6 a Supreme Court by the conclusion it
reaches and the decision it renders does not merely check the coordinate
branches, but also by its approval stamps with legitimacy the action taken.
Thus in affirming constitutional supremacy, the political departments could
seek the aid of the judiciary. For the assent it gives to what has been done
conduces to its better support in a regime where the rule of law holds sway.
In discharging such a rule, this Court must necessarily take into account not
only what the exigent needs of the present demand but what may lie ahead
in the unexplored and unknown vistas of the future. It must guard against the
pitfall of lack of understanding of the dominant forces at work to seek a better
life for all, especially those suffering from the pangs of poverty and disease,
by a blind determination to adhere to the status quo. It would be tragic, and a
clear case of its being recreant to its trust, if the suspicion can with reason be
entertained that its approach amounts merely to a militant vigilantism that is
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violently opposed to any form of social change. It follows then that it does not
suffice that recourse be had only to what passes for scholarship in the law
that could be marred by inapplicable erudition and narrow legalism. Even
with due recognition of such factors, however, I cannot, for reasons to be set
more at length and in the light of the opinion of the Chief Justice, reach the
same result as the majority of my brethren. For, in the last analysis, it is my
firm conviction that the institution of judicial review speaks too clearly for the
point to be missed that official action, even with due allowance made for the
good faith that invariably inspires the step taken, has to face the gauntlet of a
court suit whenever there is a proper case with the appropriate parties.
1.Respondents are acting in the soundest constitutional tradition when, at
the outset, they would seek a dismissal of these petitions. For them, the
question raised is political and thus beyond the jurisdiction of this Court.
Such an approach cannot be indicted for unorthodoxy. It is implicit in the
concept of the rule of law that rights belong to the people and that
government possesses powers only. Essentially then, unless such an
authority may either be predicated on express or implied grant in the
Constitution or the statutes, an exercise thereof cannot survive an inquiry as
to its validity. Respondents through Solicitor-General Mendoza would deny
our competence to proceed further. It is their view, vigorously pressed and
plausibly asserted, that since what is involved is not merely the effectivity of
an amendment but the actual coming into effect of a new constitution, the
matter is not justiciable. The immediate reaction is that such a contention is
to be tested in the light of the fundamental doctrine of separation of powers
that it is not only the function but the solemn duty of the judiciary to
determine what the law is and to apply it in cases and controversies that call
for decision. 7 Since the Constitution pre-eminently occupies the highest rung
in the hierarchy of legal norms, it is in the judiciary, ultimately this Tribunal,
that such a responsibility is vested. With the 1935 Constitution containing, as
above noted, an explicit article on the subject of amendments, it would follow
that the presumption to be indulged in is that the question of whether there
has been deference to its terms is for this Court to pass upon. What is more,
the Gonzales, 8 Tolentino 9 and Planas 10 cases speak unequivocally to that
effect. Nor is it a valid objection to this conclusion that what was involved in
those cases was the legality of the submission and not ratification, for from
the very language of the controlling article, the two vital steps are proposal
and ratification, which as pointed out in Dillon v. Gloss, 11 "cannot be treated
as unrelated acts, but as succeeding steps in a single endeavor." 12 Once an
aspect thereof is viewed as judicial, there would be no justification for
considering the rest as devoid of that character. It would be for me then an
indefensible retreat, deriving no justification from circumstances of weight
and gravity, if this Court were to accede to what is sought by respondents
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and rule that the question before us is political.

On this point, it may not be inappropriate to refer to a separate opinion of
mine in Lansang v. Garcia. 13 Thus: "The term has been made applicable to
controversies clearly non judicial and therefore beyond its jurisdiction or to
an issue involved in a case appropriately subject to its cognizance, as to
which there has been a prior legislative or executive determination to which
deference must be paid. It has likewise been employed loosely to
characterize a suit where the party proceeded against is the President or
Congress, or any branch thereof. If to be delimited with accuracy, 'political
questions' should refer to such as would under the Constitution be decided
by the people in their sovereign capacity or in regard to which full
discretionary authority is vested either in the Presidency or Congress. It is
thus beyond the competence of the judiciary to pass upon. Unless clearly
falling within the above formulation, the decision reached by the political
branches whether in the form of a congressional act or an executive order
could be tested in court. Where private rights are affected, the judiciary has
no choice but to look into its validity. It is not to be lost sight of that such a
power comes into play if there be an appropriate proceeding that may be
filed only after either coordinate branch has acted. Even when the
Presidency or Congress possesses plenary power, its improvident exercise
or the abuse thereof, if shown, may give rise to a justiciable controversy. For
the constitutional grant of authority is not usually unrestricted. There are
limits to what may be done and how it is to be accomplished. Necessarily
then, the courts in the proper exercise of judicial review could inquire into the
question of whether or not either of the two coordinate branches has
adhered to what is laid down by the Constitution. The question thus posed is
judicial rather than political." 14 The view entertained by Professor Dodd is
not too dissimilar. For him such a term "is employed to designate certain
types of functions committed to the political organs of government (the
legislative and executive departments, or either of them), and not subject to
judicial investigation." 15 After a thorough study of American judicial
decisions, both federal and state, he could conclude: "The field of judicial
nonenforceability is important, but is not large when contrasted with the
whole body of written constitutional texts. The exceptions from judicial
enforceability fall primarily within the field of public or governmental
interests." 16 Nor was Professor Weston's formulation any different. As was
expressed by him: "Judicial questions, in what may be thought the more
useful sense, are those which the sovereign has set to be decided in the
courts. Political questions, similarly, are those which the sovereign has
entrusted to the so called political departments of government or has
reserved to be settled by its own extra-governmental action." 17 What
appears undeniable then both from the standpoint of Philippine as well as
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American decisions is the care and circumspection required before the

conclusion is warranted that the matter at issue is beyond judicial
cognizance, a political question being raised.
2.The submission of respondents on this subject of political question,
admittedly one of complexity and importance, deserves to be pursued
further. They would derive much aid and comfort from the writings of both
Professor Bickel 18 of Yale and Professor Freund 19 of Harvard, both of
whom in turn are unabashed admirers of Justice Brandeis. Whatever be the
merit inherent in their lack of enthusiasm for a more active and positive role
that must be played by the United States Supreme Court in constitutional
litigation, it must be judged in the light of our own history. It cannot be denied
that from the well nigh four decades of constitutionalism in the Philippines,
even discounting an almost similar period of time dating from the inception of
American sovereignty, there has sprung a tradition of what has been aptly
termed as judicial activism. Such an approach could be traced to the
valedictory address before the 1935 Constitutional Convention of Claro M.
Recto. He spoke of the trust reposed in the judiciary in these words: "It is one
of the paradoxes of democracy that the people at times place more
confidence in instrumentalities of the State other than those directly chosen
by them for the exercise of their sovereignty." 20 It would thus appear that
even then this Court was expected not to assume an attitude of timidity and
hesitancy when a constitutional question is posed. There was the
assumption of course that it would face up to such a task, without regard to
political considerations and with no thought except that of discharging its
trust. Witness these words of Justice Laurel in an early landmark case,
People v. Vera, 21 decided in 1937: "If it is ever necessary for us to make any
vehement affirmance during this formative period of our political history, it is
that we are independent of the Executive no less than of the Legislative
department of our government independent in the performance of our
functions, undeterred by any consideration, free from politics, indifferent to
popularity, and unafraid of criticism in the accomplishment of our sworn duty
as we see it and as we understand it." 22 The hope of course was that such
assertion of independence and impartiality was not mere rhetoric. That is a
matter more appropriately left to others to determine. It suffices to state that
what elicits approval on the part of our people of a judiciary ever alert to
inquire into alleged breaches of the fundamental law is the realization that to
do so is merely to do what is expected of it and that thereby there is no
invasion of spheres appropriately belonging to the political branches. For it
needs to be kept in kind always that it can act only when there is a suit with
proper parties before it, wherein rights appropriate for judicial enforcement
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are sought to be vindicated. Then, too, it does not approach constitutional

questions with dogmatism or apodictic certainty nor view them from the
shining cliffs of perfection. This is not to say though that it is satisfied with an
empiricism untroubled by the search for jural consistency and rational
coherence. A balance has to be struck. So juridical realism requires. Once
allowance is made that for all its care and circumspection this Court is
manned by human beings fettered by fallibility, but nonetheless earnestly
and sincerely striving to do right, the public acceptance of its vigorous pursuit
of the task of assuring that the Constitution be obeyed is easy to understand.
It has not in the past shirked its responsibility to ascertain whether there has
been compliance with and fidelity to constitutional requirements. Such is the
teaching of a host of cases from Angara v. Electoral Commission 23 to
Planas v. Commission on Elections. 24 It should not start now. It should
continue to exercise its jurisdiction, even in the face of a plausible but not
sufficiently persuasive insistence that the matter before it is political.
Nor am I persuaded that the reading of the current drift in American legal
scholarship by the Solicitor-General and his equally able associates presents
the whole picture. On the question of judicial review, it is not a case of black
and white; there are shaded areas. It goes too far, in my view, if the
perspective is one of dissatisfaction, with its overtones of distrust. This
expression of disapproval has not escaped Dean Rostow of Yale, who began
one of his most celebrated legal essays. The Democratic Character of
Judicial Review, thus: "A theme of uneasiness, and even of guilt, colors the
literature about judicial review. Many of those who have talked, lectured, and
written about the Constitution have been troubled by a sense that judicial
review is undemocratic." 25 He went on to state: "Judicial review, they have
urged, is an undemocratic shoot on an otherwise respectable tree. It should
be cut off, or at least kept pruned and inconspicuous." 26 His view was
precisely the opposite. Thus: "The power of constitutional review, to be
exercised by some part of the government, is implicit in the conception of a
written constitution delegating limited powers. A written constitution would
promote discord rather than order in society if there were no accepted
authority to construe it, at the least in cases of conflicting action by different
branches of government or of constitutionally unauthorized governmental
action against individuals. The limitation and separation of powers, if they are
to survive, require a procedure for independent mediation and construction
to reconcile the inevitable disputes over the boundaries of constitutional
power which arise in the process of government." 27 More than that, he took
pains to emphasize: "Whether another method of enforcing the Constitution
could have been devised, the short answer is that no such method has
developed. The argument over the constitutionality of judicial review has long
since been settled by history. The power and duty of the Supreme Court to
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declare statutes or executive action unconstitutional in appropriate cases is

part of the living Constitution. 'The course of constitutional history,' Mr.
Justice Frankfurter recently remarked, 'has cast responsibilities upon the
Supreme Court which it would be "stultification" for it to evade." 28 or is it only
Dean Rostow who could point to Fraukfurter, reputed to belong to the same
school of thought opposed to judicial activism, if not its leading advocate
during his long stay in the United States Supreme Court, as one fully
cognizant of the stigma that attaches to a tribunal which neglects to meet the
demands of judicial review. There is a statement of similar import from
Professor Mason: "In Stein v. New York Frankfurter remarked, somewhat
self-consciously perhaps, that the 'duty of deference cannot be allowed
imperceptibly to slide into abdication.'" 29 Professor Konefsky, like Dean
Rostow, could not accept the characterization of judicial review as
undemocratic. Thus in his study of Holmes and Brandeis, the following
appears: "When it is said that judicial review is an undemocratic feature of
our political system, it ought also to be remembered that the architects of
that system did not equate constitutional government with unbridled majority
rule. Out of their concern for political stability and security for private rights, .
. ., they designed a structure whose keystone was to consist of barriers to
the untrammeled exercise of power by any group. They perceived no
contradiction between effective government and constitutional cheeks. To
James Madison, who may legitimately be regarded as the philosopher of the
Constitution, the scheme of mutual restraints was the best answer to what he
viewed as the chief problem in erecting a system of free representative
government: 'In framing a government which is to be administered by men
over men, the great difficulty lies in this: you must first enable the
government to control the governed; and in the next place oblige it to control
itself.'" 30
There is thus an inevitability to the flowering of judicial review. Could it be
that the tone of discontent apparent in the writings of eminent authorities on
the subject evince at the most fears that the American Supreme Court might
overstep the bounds allotted to the judiciary? It cannot be a denial of the
fitness of such competence being vested in judges and of their being called
upon to fulfill such a trust whenever appropriate to the decision of a case
before them. That is why it has been correctly maintained that
notwithstanding the absence of any explicit provision in the fundamental law
of the United States Constitution, that distinguished American constitutional
historian, Professor Corwin, could rightfully state that judicial review "is
simply incidental to the power of courts to interpret the law, of which the
Constitution is part, in connection with the decision of cases." 31 This is not to
deny that there are those who would place the blame or the credit,
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depending upon one's predilection, on Marshall's epochal opinion in Marbury

v. Madison. 32 Curtis belonged to that persuasion. As he put it: "The problem
was given no answer by the Constitution. A hole was left where the Court
might drive in the peg of judicial supremacy, if it could. And that is what John
Marshall did." 33 At any rate there was something in the soil of American
juristic thought resulting in this tree of judicial power so precariously planted
by Marshall striking deep roots and showing wonderful vitality and hardiness.
It now dominates the American legal scene. Through it, Chief Justice
Hughes, before occupying that exalted position, could state in a lecture: "We
are under a Constitution, but the Constitution is what the judges say it is . . ."
34 The above statement is more than just an aphorism that lends itself to
inclusion in judicial anthologies or bar association speeches. It could and did
provoke from Justice Jackson, an exponent of the judicial restraint school
thought, this meaningful 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 the most
understandable and comprehensive summary of American constitutional
law?" 35 It is no wonder that Professor Haines could pithily and succinctly
sum up the place of the highest American tribunal in the scheme of things in
this wise: "The Supreme Court of the United States has come to be regarded
as the unique feature of the American governmental system." 36 Let me not
be misunderstood. There is here no attempt to close one's eyes to a
discernible tendency on the part of some distinguished faculty minds to look
askance at what for them may be inadvisable extension of judicial authority.
For such indeed is the case as reflected in two leading cases of recent
vintage, Baker v. Carr, 37 decided in 1962 and Powell v. MacCormack, 38 in
1969, both noted in the opinion of the Chief Justice. The former disregarded
the warning of Justice Frankfurter in Colegrove v. Green 39 about the
American Supreme Court declining jurisdiction on the question of
apportionment as to do so "would cut very deep into the very being of
Congress." 40 For him, the judiciary "ought not to enter this political thicket."
Baker has since then been followed; it has spawned a host of cases. 41
Powell, on the question of the power of a legislative body to exclude from its
ranks a person whose qualifications are uncontested, for many the very
staple of what is essentially political, certainly goes even further than the
authoritative Philippine decision of Vera v. Avelino, 42 It does look then that
even in the United States, the plea for judicial self-restraint, even if given
voice by those competent in the field of constitutional law, has fallen on deaf
ears. There is in the comments of respondents an excerpt from Professor
Freund quoting from one of his essays appearing in a volume published in
1968. It is not without interest to note that in another paper, also included
therein, he was less than assertive about the necessity for self-restraint and
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apparently mindful of the claims of judicial activism. Thus: "First of all, the
Court has a responsibility to maintain the constitutional order, the distribution
of public power, and the limitations on that power." 43 As for Professor Bickel,
it has been said that as counsel for the New York Times in the famous
Vietnam papers case, 44 he was less than insistent on the American
Supreme Court exercising judicial self restraint. There are signs that the
contending forces on such question, for some an unequal contest, are now
quiescent. The fervor that characterized the expression of their respective
points of view appears to have been minimized. Not that it is to be expected
that it will entirely disappear, considering how dearly cherished are, for each
group, the convictions, prejudices one might even say, entertained. At least
what once was fitly characterized as the booming guns of rhetoric, coming
from both directions, have been muted. Of late, scholarly disputations have
been centered on the standards that should govern the exercise of the power
of judicial review. In his celebrated Holmes lecture in 1959 at the Harvard
Law School, Professor Wechsler advocated as basis for decision what he
termed neutral principles of constitutional law. 45 It has brought forth a
plethora of law review articles, the reaction ranging from guarded conformity
to caustic criticism. 46 There was, to be sure, no clear call to a court in effect
abandoning the responsibility incumbent on it to keep governmental
agencies within constitutional channels. The matter has been put in
temperate terms by Professor Frank thus: "When allowance has been made
for all these factors, it nevertheless seems to me that the doctrine of political
questions ought to be very sharply confined to cases where the functional
reasons justify it and that in a given case involving its expansion there should
be careful consideration also of the social considerations which may militate
against it. The doctrine has a certain specious charm because of its nice
intellectualism and because of the fine deference it permits to expertise, to
secret knowledge, and to the prerogatives of others. It should not be allowed
to grow as a merely intellectual plant." 47
It is difficult, for me at least, not to be swayed by such appraisal, coming from
such impeccable sources of the worth and significance of judicial review in
the United States. I cannot resist the conclusion then that the views
advanced on this subject by distinguished counsel for petitioners, with
Senators Lorenzo M. Taada and Jovito Salonga at the van, rather than the
advocacy of the Solicitor-General, possess the greater weight and carry
persuasion. So much then for the invocation of the political question principle
as a bar to the exercise of our jurisdiction.
3.That brings me to the issue of the validity of the ratification. The crucial
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point that had to be met is whether Proclamation No. 1102 manifests fidelity
to the explicit terms of Article XV. There is, of course, the view not offensive
to reason that a sense of the realities should temper the rigidity of devotion
to the strict letter of the text to allow deference to its spirit to control. With
due recognition of its force in constitutional litigation, 48 if my reading of the
events and the process that led to such proclamation, so clearly set forth in
the opinion of the Chief Justice, is not inaccurate, then it cannot be
confidently asserted that there was such compliance. It would be to rely on
conjectural assumptions that did founder on the rock of the undisputed facts.
Any other conclusion would, for me, require an interpretation that borders on
the strained. So it has to be if one does not lose sight of how the article on
amendments is phrased. A word, to paraphrase Justice Holmes may not be
a crystal, transparent and unchanged, but it is not, to borrow from Learned
Hand, that eminent jurist, a rubber band either. It would be unwarranted in
my view then to assert that the requirements of the 1935 Constitution have
been met. There are American decisions, 49 and they are not few in number,
which require that there be obedience to the literal terms of the applicable
provision. It is understandable why it should be thus. If the Constitution is the
supreme law, then its mandate must be fulfilled. No evasion is to be
tolerated. Submission to its commands can be shown only if each and every
word is given meaning rather than ignored or disregarded. This is not to deny
that a recognition of the conclusive effect attached to the electorate
manifesting its will to vote affirmatively on the amendments proposed poses
an obstacle to the judiciary being insistent on the utmost regularity. Briefly
stated, substantial compliance is enough. A great many American State
decisions may be cited in support of such a doctrine. 50
Even if the assumption be indulged in that Article XV is not phrased in terms
too clear to be misread, so that this Court is called upon to give meaning and
perspective to what could be considered words of vague generality, pregnant
with uncertainty, still whatever obscurity it possesses is illumined when the
light of the previous legislation is thrown on it. In the first Commonwealth Act,
51 submitting to the Filipino people for approval or disapproval certain
amendments to the original ordinance appended to the 1935 Constitution, it
was made clear that the election for such purpose was to "be conducted in
conformity with the provisions of the Election Code insofar as the same may
be applicable." 52 Then came the statute, 53 calling for the plebiscite on the
three 1940 amendments providing for the plebiscite on the three 1930
amendments providing for a bicameral Congress or a Senate and a House of
Representatives to take the place of a unicameral National Assembly, 54
reducing the term of the President to four years but allowing his re-election
with the limitation that he cannot serve for more than eight consecutive
years, 55 and creating an independent Commission on Elections. 56 Again, it
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was expressly provided that the election "shall be conducted in conformity

with the provisions of the Election Code in so far as the same may be
applicable." 57 The approval of the present parity amendment was by virtue
of a Republic Act 58 which specifically made applicable the then Election
Code. 59 There is a similar provision in the legislation, 60 which in
cotemplation of the 1971 Constitutional Convention, saw to it that there be
an increase in the membership of the House of Representatives to a
maximum of one hundred eighty and assured the eligibility of senators and
representatives to become members of such constituent body without
forfeiting their seats, as proposed amendments to be voted on in the 1967
elections. 61 That is the consistent course of interpretation followed by the
legislative branch. It is most persuasive, if not controlling. The restraints thus
imposed would set limits to the Presidential action taken, even on the
assumption that either as an agent of the Constitutional Convention or under
his martial law prerogatives, he was not devoid of power to specify the mode
of ratification. On two vital points, who can vote and how they register their
will, Article XV had been given a definitive construction. That is why I fail to
see sufficient justification for this Court affixing the imprimatur of its approval
on the mode employed for the ratification of the revised Constitution as
reflected in Proclamation No. 1102.
4.Nor is the matter before us solely to be determined by the failure to comply
with the requirements of Article XV. Independently of the lack of validity of
the ratification of the new Constitution, if it be accepted by the people, in
whom sovereignty resides according to the Constitution, 62 then this Court
cannot refuse to yield assent to such a political decision of the utmost
gravity, conclusive in its effect. Such a fundamental principle is meaningless
if it does not imply, to follow Laski, that the nation as a whole constitutes the
"single center of ultimate reference," necessarily the possessor of that
"power that is able to resolve disputes by saying the last word." 63 If the
origins of the democratic polity enshrined in the 1935 Constitution with the
declaration that the Philippines is a republican state could be traced back to
Athens and to Rome, it is no doubt true, as McIver pointed out, that only with
the recognition of the nation as the separate political unit in public law is
there the juridical recognition of the people composing it "as the source of
political authority." 64 From them, as Corwin did stress, emanate "the highest
possible embodiment of human will," 65 which is supreme and must be
obeyed. To avoid any confusion and in the interest of clarity, it should be
expressed in the manner ordained by law. Even if such were not the case,
however, once it is manifested, it is to be accepted as final and authoritative.
The government which is merely an agency to register its commands has no
choice but to submit. Its officials must act accordingly. No agency is exempt
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from such a duty, not even this Court. In that sense, the lack of regularity in
the method employed to register its wishes is not fatal in its consequences.
Once the fact of acceptance by the people of a new fundamental law is
made evident, the judiciary is left with no choice but to accord it recognition.
The obligation to render it obeisance falls on the courts as well.
There are American State decisions that enunciate such a doctrine. While
certainly not controlling, they are not entirely bereft of persuasive
significance. In Miller v. Johnson, 66 decided in 1892, it was set forth in the
opinion of Chief Justice Holt that on May 3, 1890, an act was passed in
Kentucky, providing for the calling of a convention for the purpose of framing
a new constitution and the election of delegates. It provided that before any
form of constitution made by them should become operative, it should be
submitted to the voters of the state and ratified by a majority of those voting.
The constitution then in force authorized the legislature, the preliminary steps
having been taken, to call a convention "for the purpose of readopting,
amending, or changing" it but contained no provision giving the legislature
the power to require a submission of its work to a vote of the people. The
convention met in September, 1890. By April, 1891, it completed a draft of a
constitution, submitted it to a popular vote, and then adjourned until
September following. Its work was approved by a majority. When the
convention reassembled, the delegates made numerous changes in the
instrument. As thus amended, it was promulgated by the convention of
September 28, 1891, as the new constitution. An action was brought to
challenge its validity. It failed in the lower court. In affirming such judgment
dismissing the action, Chief Justice Holt stated: "If a set of men, not selected
by the people according to the forms of law, were to formulate an instrument
and declare it the constitution, it would undoubtedly be the duty of the courts
to declare its work a nullity. This would be revolution, and this the courts of
the existing government must resist until they are overturned by power, and
a new government established. The convention, however, was the offspring
of law. The instrument which we are asked to declare invalid as a
constitution has been made and promulgated according to the forms of law.
It is a matter of current history that both the executive and legislative
branches of the government have recognized its validity as a constitution,
and are now daily doing so . . . While the judiciary should protect the rights of
the people with great care and jealousy, because this is its duty, and also
because, in times of great popular excitement, it is usually their last resort,
yet it should at the same time be careful not to overstep the proper bounds of
its power, as being perhaps equally dangerous; and especially where such
momentous results might follow as would be likely in this instance, if the
power of the judiciary permitted, and its duty requires, the overthrow of the
work of the convention." 67 In Taylor v. Commonwealth, 68 a 1903 decision, it
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was contended that the Virginia Constitution proclaimed in 1902 is invalid as

it was ordained and promulgated by the convention without being submitted
for ratification or rejection by the people. The Court rejected such a view. As
stated in the opinion of Justice Harrison: "The Constitution of 1902 was
ordained and proclaimed by a convention duly called by direct vote of the
people of the state to revise and amend the Constitution of 1869. The result
of the work of the convention has been recognized, accepted, and acted
upon as the only valid Constitution of the state by the Governor in swearing
fidelity to it and proclaiming it, as directed thereby; by the Legislature in its
formal official act adopting a joint resolution, July 15, 1902, recognizing the
Constitution ordained by the convention which assembled in the city of
Richmond on the 12th day of June, 1901, as the Constitution of Virginia; by
the individual oaths of its members to support it, and by enforcing its
provisions; and by the people in their primary capacity by peacefully
accepting it and quiescing in it, by registering as voters under it to the extent
of thousands throughout the state, and by voting, under its provisions, at a
general election for their representatives in the Congress of the United
States. The Constitution having been thus acknowledged and accepted by
the officers administering the government and by the people of the state, and
there being no government in existence under the Constitution of 1869
opposing or denying its validity, we have no difficulty in holding that the
Constitution in question, which went into effect at noon on the 10th day of
July, 1902, is the only rightful, valid, and existing Constitution of this state,
and that to it all the citizens of Virginia owe their obedience and loyal
allegiance." 69
It cannot be plausibly asserted then that premises valid in law are lacking for
the claim that the revised Constitution has been accepted by the Filipino
people. What is more, so it has been argued, it is not merely a case of its
being implied. Through the Citizens Assemblies, there was a plebiscite with
the result as indicated in Proclamation No. 1102. From the standpoint of
respondents then, they could allege that there was more than just mere
acquiescence by the sovereign people. Its will was thus expressed formally
and unmistakably. It may be added that there was nothing inherently
objectionable in the informal method followed in ascertaining its preference.
Nor is the fact that Filipinos of both sexes above the age of fifteen were
given the opportunity to vote to be deplored. The greater the base of mass
participation, the more there is fealty to the democratic concept. It does
logically follow likewise that all such circumstances being conceded, then no
justiciable question may be raised. This Court is to respect what had thus
received the people's sanction. That is not for me though the whole of it.
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Further scrutiny even then is not entirely foreclosed. There is still an aspect
that is judicial, an inquiry may be had as to whether such indeed was the
result. This is no more than what the courts do in election cases. There are
other factors to bear in mind. The fact that the President so certified is wellnigh conclusive. There is in addition the evidence flowing from the conditions
of peace and stability. There thus appears to be conformity to the existing
order of things. The daily course of events yields such a conclusion. What is
more, the officials under the 1935 Constitution, including practically all
Representatives and a majority of the Senators, have signified their assent to
it. The thought persists, however, that as yet sufficient time has not elapsed
to be really certain.
Nor is this all. There is for me an obstacle to the petitions being dismissed for
such ascertainment of popular will did take place during a period of martial
law. It would have been different had there been that freedom of debate with
the least interference, thus allowing a free market of ideas. If it were thus, it
could be truly said that there was no barrier to liberty of choice. It would be a
clear-cut decision either way. One could be certain as to the fact of the
acceptance of the new or of adherence to the old. This is not to deny that
votes are cast by individuals with their personal concerns uppermost in mind,
worried about their immediate needs and captive to their existing moods.
That is inherent in any human institution, much more so in a democratic
polity. Nor is it open to any valid objection because in the final analysis the
state exists for the individuals who in their collectivity compose it. Whatever
be their views, they are entitled to respect. It is difficult for me, however, at
this stage to feel secure in the conviction that they did utilize the occasion
afforded to give expression to what was really in their hearts. This is not to
imply that such doubt could not be dispelled by evidence to the contrary. If
the petitions be dismissed however, then such opportunity is forever lost.
5.With the foregoing legal principles in mind, I find myself unable to join the
ranks of my esteemed brethren who vote for the dismissal of these petitions.
I cannot yield an affirmative response to the plea of respondents to consider
the matter closed, the proceedings terminated once and for all. It is not an
easy decision to reach. It has occasioned deep thought and considerable
soul-searching. For there are countervailing considerations that exert a
compulsion not easy to resist. It can be asserted with truth, especially in the
field of social and economic rights, that with the revised Constitution, there is
an auspicious beginning for further progress. Then too it could resolve what
appeared to be the deepening contradictions of political life, reducing at
times governmental authority to near impotence and imparting a sense of
disillusionment in democratic processes. It is not too much to say therefore
that there had indeed been the revision of a fundamental law to vitalize the
very values out of which democracy grows. It is one which has all the
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earmarks of being responsive to the dominant needs of the times. It

represents an outlook cognizant of the tensions of a turbulent era that is the
present. That is why for some what was done represented an act of courage
and faith, coupled with the hope that the solution arrived at is a harbinger of
a bright and rosy future.
It is such a comfort then that even if my appraisal of the situation had
commanded a majority, there is not, while these lawsuits are being further
considered, the least interference with the executive department. The
President in the discharge of all his functions is entitled to obedience. He
remains the commander-in-chief with all the constitutional power it implies.
Public officials can go about their accustomed tasks in accordance with the
revised Constitution. They can pursue the even tenor of their ways. They are
free to act according to its tenets. That was so these past few weeks, even
after that petitions were filed. There was not at any time any thought of any
restraining order. So it was before. That is how things are expected to
remain even if the motions to dismiss were not granted. It might be asked
though, suppose the petition should prevail? What then? Even so, the
decision of this Court 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 had with the
requirements of Article XV of the 1935 Constitution, to assure that the
coming force of the revised charter is free from any taint of infirmity, then all
doubts are set at rest.
For some, to so view the question before us is to be caught in a web of
unreality, to cherish illusions that cannot stand the test of actuality. What is
more, it may give the impression of reliance on what may, for the practical
man of affairs, be no more than gossamer distinctions and sterile
refinements unrelated to events. That may be so, but I find it impossible to
transcend what for me are the implications of traditional constitutionalism.
This is not to assert that an occupant of the bench is bound to apply with
undeviating rigidity doctrines which may have served their day. He could at
times even look upon them as mere scribblings in the sands to be washed
away by the advancing tides of the present. The introduction of novel
concepts may be carried only so far though. As Cardozo put the matter: "The
judge, even when he is free, is still not wholly free. He is not to innovate at
pleasure. He is not a knight-errant, roaming at will in pursuit of his own ideal
of beauty or of goodness. He is to draw his inspiration from consecrated
principles. He is not to yield to spasmodic sentiment, to vague and
unregulated benevolence. He is to exercise a discretion informed by
tradition, methodized by analogy, disciplined by system, and subordinated to
'the primordial necessity of order in the social life.' Wide enough in all
conscience is the field of discretion that remains." 71 Moreover what made it
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difficult for this Court to apply settled principles, which for me have not lost
their validity, is traceable to the fact that the revised Constitution was made
to take effect immediately upon ratification. If a period of time were allowed
to elapse precisely to enable the judicial power to be exercised, no
complication would have arisen. Likewise, had there been only one or two
amendments, no such problem would be before us. That is why I do not see
sufficient justification for the orthodoxies of constitutional law not to operate.
Even with full realization then that the approach pursued is not all that it
ought to have been and the process of reasoning not without its
shortcomings, the basic premises of a constitutional democracy, as I
understand them and as set forth in the preceding pages, compel me to vote
the way I did.
TEEHANKEE, J., dissenting:
The masterly opinion of the Chief Justice wherein he painstakingly deals with
the momentous issues of the cases at bar in all their complexity commands
my concurrence.
I would herein make an exposition of the fundamental reasons and
considerations for my stand.
The unprecedented and precedent-setting issue submitted by petitioners for
the Court's resolution is the validity and constitutionality of Presidential
Proclamation No. 1102 issued on January 17, 1973, certifying and
proclaiming that the Constitution proposed by the 1971 Constitutional
Convention "has been ratified by an overwhelming majority of all the votes
cast by the members of all the Barangays (Citizens Assemblies) throughout
the Philippines, and has thereby come into effect."
More specifically, the issue submitted is whether the purported ratification of
the proposed Constitution by means of the Citizens Assemblies has
substantially complied with the mandate of Article XV of the existing
Constitution of 1935 that duly proposed amendments thereto, in toto or parts
thereof, "shall be valid as part of this Constitution when approved by a
majority of the votes cast at an election at which the amendments are
submitted to the people for their ratification." 1
A necessary corollary issue is whether the purported ratification of the
proposed Constitution as signed on November 30, 1972 by the 1971
Constitutional Convention may be said also to have substantially complied
with its own mandate that "(T)his Constitution shall take effect immediately
upon its ratification by a majority of the votes cast in a plebiscite called for
the purpose and except as herein provided, shall supersede the Constitution
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of Nineteen hundred and thirty-five and all amendments thereto." 2

Respondents contend that "(A)lthough apparently what is sought to be
annulled is Proclamation No. 1102, what petitioners really seek to invalidate
is the new Constitution", and their actions must be dismissed, because:
"the Court may not inquire into the validity of the procedure for
ratification" which is "political in character" and that what is sought
to be invalidated is not an act of the President but of the people:
"(T)he fact of approval of the new Constitution by an
overwhelming majority of the votes cast as declared and certified
in Proclamation No. 1102 is conclusive on the courts;
"Proclamation No. 1102 was issued by the President in the
exercise of legislative power under martial law . . . Alternatively, or
contemporaneously, he did so as 'agent' of the Constitutional
Convention;"
"alleged defects, such as absence of secret voting,
enfranchisement of persons less than 21 Years, non supervision
(by) the Comelec are matters not required by Article XV of the
1935 Constitution"; (sic)
"after ratification, whatever defects there might have been in
the procedure are overcome and mooted (and muted) by the fact
of ratification"; and
"(A)ssuming finally that Article XV of the 1935 Constitution was
not strictly followed, the ratification of the new Constitution must
nonetheless be respected. For the procedure outlined in Article XV
was not intended to be exclusive of other procedures, especially
one which contemplates popular and direct participation of the
citizenry . . ." 3

To test the validity of respondents' submittal that the Court, in annulling

Proclamation No. 1102 would really be "invalidating the new Constitution",
the terms and premises of the issues have to be defined.
Respondents themselves assert that "Proclamation
No. 1102 . . . is plainly merely declaratory of the fact that the
1973 Constitution has been ratified and has come into force."
4

The measure of the fact of ratification is Article XV

of the 1935 Constitution. This has been consistently held by
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the Court in the Gonzales:

and Tolentino

cases.

In the Tolentino case, this Court emphasized "that

the provisions of Section 1 of Article XV of the Constitution,
dealing with the procedure or manner of amending the
fundamental law are binding upon the Convention and the
other departments of the government. It must be added that .
. . they are no less binding upon the people." 7
In the same Tolentino case, this Court further
proclaimed that "as long as any amendment is formulated
and submitted under the aegis of the present Charter, any
proposal for such amendment which is not in conformity with
the letter, spirit and intent of the Charter for effecting
amendments, cannot receive the sanction of this Court." 8
As continues to be held by a majority of this Court,
proposed amendments to the Constitution "should be ratified
in only one way, that is, in an election or plebiscite held in
accordance with law and participated in only by qualified and
duly registered voters" 9 and under the supervision of the
Commission on Elections.

10

Hence, if the Court declares Proclamation 1102 null

and void because on its face, the purported ratification of the
proposed Constitution has not faithfully nor substantially
observed nor complied with the mandatory requirements of
Article XV of the (1935) Constitution, it would not he
"invalidating" the proposed new Constitution but would be
simply declaring that the announced fact of ratification
thereof by means of the Citizens Assemblies referendums
does not pass the constitutional test and that the proposed
new Constitution has not constitutionally come into existence.
Since Proclamation 1102 is acknowledged by
respondent to be "plainly merely declaratory" of the disputed
fact of ratification, they cannot assume the very fact to be
established and beg the issue by citing the self-same
declaration as proof of the purported ratification therein
declared.

What complicates the cases at bar is the fact that the proposed 1972
Constitution was enforced as having immediately taken effect upon the
issuance on January 17, 1973 of Proclamation 1102 and the question of
whether "confusion and disorder in government affairs would (not) result"
from a judicial declaration of nullity of the purported ratification is raised by
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the Solicitor-General on behalf of respondents.

A comparable precedent of great crisis proportions is found in the
Emergency Powers cases, 11 wherein the Court in its Resolution of
September 16, 1949 after judgment was initially not obtained on August 26,
1949 for lack of the required six (6) votes, finally declared in effect that the
pre-war emergency powers delegated by Congress to the President, under
Commonwealth Act 671 in pursuance of Article VI, section 26 of the
Constitution, had ceased and became inoperative at the latest in May, 1946
when Congress met in its first regular session on May 25, 1946.
Then Chief Justice Manuel V. Moran recited the great interests and
important rights that had arisen under executive orders "issued in good faith
and with the best of intentions by three successive Presidents, and some of
them may have already produced extensive effects on the life of the nation"
in the same manner as may have arisen under the bona fide acts of the
President now in the honest belief that the 1972 Constitution had been
validly ratified by means of the Citizens Assemblies referendums and
indicated the proper course and solution therefor, which were duly abided by
and confusion and disorder as well as harm to public interest and innocent
parties thereby avoided as follows:
"Upon the other hand, while I believe that the emergency powers
had ceased in June 1945, I am not prepared to hold that all
executive orders issued thereafter under Commonwealth Act No.
671, are per se null and void. It must he borne in mind that these
executive orders had been issued in good faith and with the best
of intentions by three successive Presidents, and some of them
may have already produced extensive effects in the life of the
nation. We have, for instance, Executive Order No. 73, issued on
November 12, 1945, appropriating the sum of P6,750,000 for
public works; Executive Order No. 86, issued on January 7, 1946,
amending a previous order regarding the organization of the
Supreme Court; Executive Order No. 89, issued on January 1,
1946, reorganizing the Courts of First Instance; Executive Order
No. 184, issued on November 19, 1948, controlling rice and palay
to combat hunger; and other executive orders appropriating funds
for other purposes. The consequences of a blanket nullification of
all these executive orders will be unquestionably serious and
harmful. And I hold that before nullifying them, other important
circumstances should be inquired into, as for instance, whether or
not they have been ratified by Congress expressly or impliedly,
whether their purposes have already been accomplished entirely
or partially, and in the last instance, to what extent; acquiescence
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of litigants; de facto officers; acts and contracts of parties acting in

good faith; etc. It is my opinion that each executive order must be
viewed in the light of its peculiar circumstances, and , if necessary
and possible, before nullifying it, precautionary measures should
be taken to avoid harm to public interest and innocent parties." 12

Initially, then Chief Justice Moran voted with a majority of the Court to grant
the Araneta and Guerrero petitions holding null and void the executive orders
on rentals and export control but to defer judgment on the Rodriguez and
Barredo petitions for judicial declarations of nullity of the executive orders
appropriating the 1949-1950 fiscal year budget for the government and P6
million for the holding of the 1949 national elections. After rehearing, he
further voted to also declare null and void the last two executive orders
appropriating funds for the 1949 budget and elections, completing the
"sufficient majority" of six against four dissenting justices "to pronounce a
valid judgment on that matter." 13
Then Chief Justice Moran, who penned the Court's majority resolution,
explained his vote for annulment despite the great difficulties and possible
"harmful consequences" in the following passage, which bears re-reading:
"However, now that the holding of a special session of Congress
for the purpose of remedying the nullity of the executive orders in
question appears remote and uncertain, I am compelled to, and do
hereby, give my unqualified concurrence in the decision penned
by Mr. Justice Tuason declaring that these two executive orders
were issued without authority of law.
"While in voting for a temporary deferment of the judgment I was
moved by the belief that positive compliance with the Constitution
by the other branches of the Government, which is our prime
concern in all these cases, would be effected, and indefinite
deferment will produce the opposite result because it would
legitimize a prolonged or permanent evasion of our organic law.
Executive orders which are, in our opinion, repugnant to the
Constitution, would be given permanent life, opening the way or
practices which may undermine our constitutional structure.
"The harmful consequences which, as I envisioned in my
concurring opinion, would come to pass should the said executive
orders 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 now forthcoming. However, the remedy now
lies in the hands of the Chief Executive and of Congress, for the
Constitution vests in the former the power to call a special session
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should the need for one arise, and in the latter, the power to pass
a valid appropriations act.
"That Congress may again fail to pass a valid appropriation act is
a remote possibility, for under the circumstances is fully realizes
its great responsibility of saving the nation from breaking down;
and furthermore, the President in the exercise of his constitutional
powers may, if he so desires, compel Congress to remain in
special session till it approves the legislative measures most
needed by the country.

"Democracy is on trial in the Philippines, and surely it will emerge

victorious as a permanent way of life in this country, if each of the
great branches of the Government, within its own allocated
sphere,
complies
with
its own
constitutional
duty,
uncompromisingly and regardless of difficulties.
"Our Republic is still young, and the vital principles underlying its
organic structure should be maintained firm and strong, hard as
the best of steel, so as to insure its growth and development along
solid lines of a stable and vigorous democracy." 14

The late Justice Pedro Tuason who penned the initial majority judgment
(declaring null and void the rental and export control executive orders)
likewise observed that "(T)he truth is that under our concept of constitutional
government, in times of extreme perils more than in normal circumstances
'the various branches, executive, legislative, and judicial,' given the ability to
act, are called upon 'to perform the duties 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 has been considerably lightened by the President's public
manifestation of adherence to constitutional processes and of working within
the proper constitutional framework as per his press conference of January
20, 1973, wherein he stated that "(T)he Supreme Court is the final arbiter of
the Constitution. It can and will probably determine the validity of this
Constitution. I did not want to talk about this because actually there is a case
pending before the Supreme Court. But suffice it to say that I recognize the
power of the Supreme Court. With respect to appointments, the matter falls
under a general provision which authorizes the Prime Minister to appoint
additional members to the Supreme Court. Until the matter of the new
Constitution is decided, I have no intention of utilizing that power." 16
Thus, it is that as in an analogous situation wherein the state Supreme Court
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of Mississippi held that the questions of whether the submission of the

proposed constitutional amendment of the State Constitution providing for an
elective, instead of an appointive, judiciary and whether the proposition was
in fact adopted, were justiciable and not political questions, we may echo the
words therein of Chief Justice Whitfield that "(W)e do not seek a jurisdiction
not imposed upon us by the Constitution. We could not, if we would, escape
the exercise of that jurisdiction which the Constitution has imposed upon us.
In the particular instance in which we are now acting, our duty to know what
the Constitution of the state is, and in accordance with our oaths to support
and maintain it in its integrity, imposed on us a most difficult and
embarrassing duty, one which we have not sought, but one which, like all
others, must be discharged.'" 17
In confronting the issues at bar, then, with due regard for my colleagues'
contrary views, we are faced with the hard choice of maintaining a firm and
strict perhaps, even rigid stand that the Constitution is a "superior
paramount law, unchangeable by ordinary means" save in the particular
mode and manner prescribed therein by the people, who, in Cooley's words,
so "tied up (not only) the hands of their official agencies, but their own hands
as well" 18 in the exercise of their sovereign will or a liberal and flexible stand
that would consider compliance with the constitutional article on the
amending process as merely directory rather than mandatory.
The first choice of a strict stand, as applied to the cases at bar, signifies that
the Constitution may be amended in toto or otherwise exclusively "by
approval by a majority of the votes cast an election at which the
amendments are submitted to the people for their ratification", 19 participated
in only by qualified and duly registered voters twenty-one years of age or
over 20 and duly supervised by the Commission on Elections, 21 in
accordance with the cited mandatory constitutional requirements.
The alternative choice of a liberal stand would permit a disregard of said
requirements on the theory urged by respondents that "the procedure
outlined in Article XV was not intended to be exclusive of other procedures
especially one which contemplates popular and direct participation of the
citizenry", 22 that the constitutional age and literacy requirements and other
statutory safeguards for ascertaining the will of the majority of the people
may likewise be changed as "suggested, if not prescribed, by the people
(through the Citizens Assemblies) themselves", 23 and that the Comelec is
constitutionally "mandated to oversee . . . elections (of public officers) and
not plebiscites." 24
To paraphrase U.S. Chief Justice John Marshall who first declared in the
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historic 1803 case of Marbury vs. Madison

the U.S. Supreme Court's
power of judicial review and to declare void laws repugnant to the
Constitution, there is no middle ground between these two alternatives. As
Marshall expounded it: "(T)he Constitution is either a superior paramount
law, unchangeable by ordinary means, or it is on a level with ordinary
legislative acts, and, like other acts, is alterable when the legislature shall
please to alter it. If the former part of the alternative be true, then a legislative
act, contrary to the Constitution, is not law; if the latter part be true, then
written constitutions are absurd attempts on the part of a people, to limit a
power, in its own nature, illimitable."
As was to be restated by Justice Jose P. Laurel a century and a third later in
the 1936 landmark case of Angara vs. Electoral Commission, 26 "(T)he
Constitution sets forth in no uncertain language the restrictions and
limitations upon governmental powers and agencies. If these restrictions and
limitations are transcended it would be inconceivable if the Constitution had
not provided for a mechanism by which to direct the course of government
along constitutional channels, for then the distribution of powers would be
mere verbiage, the bill of rights mere expressions of sentiment, and the
principles of good government mere political apothegms. Certainly, the
limitations of good government and restrictions embodied in our Constitution
are real as they should be in any living Constitution."
Justice Laurel pointed out that in contrast to the United States Constitution,
the Philippine Constitution as "a definition of the powers of government"
placed upon the judiciary the great burden of "determining the nature, scope
and extent of such powers" and stressed that "when the judiciary mediates to
allocate constitutional boundaries, it does not assert any superiority over the
other departments . . . but only asserts the solemn and sacred obligation
entrusted to it by the Constitution to determine conflicting claims of authority
under the Constitution and to establish for the parties in an actual
controversy the rights which the instrument secures and guarantees to
them."
II
Marshall was to utter much later in the equally historic 1819 case of
McCulloch vs. Maryland 27 the "climactic phrase," 28 "we must never forget
that it is a constitution we are expounding," termed by Justice Frankfurter
as "the single most important utterance in the literature of constitutional law
most important because most comprehensive and comprehending." 29
This enduring concept to my mind permeated this Court's exposition and
rationale in the hallmark case of Tolentino, wherein we rejected the
contentions on the Convention's behalf "that the issue . . . is a political
question and that the Convention being a legislative body of the highest
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order is sovereign, and as such, its acts impugned by petitioner are beyond
the control of Congress and the Courts." 30
This Court therein made its unequivocal choice of strictly requiring faithful
(which really includes substantial) compliance with the mandatory
requirements of the amending process.
1.In denying reconsideration of our judgment of October 16, 1971 prohibiting
the submittal in an advance election of the 1971 Constitutional Convention's
Organic Resolution No. 1 proposing to amend Article V, section 1 of the
Constitution by lowering the voting age to 18 years (vice 21 years) 31
2.This Court held in Tolentino that:
". . . as to matters not related to its internal operation and the
performance of its assigned mission to propose amendments to
the Constitution, the Convention and its officers and members are
all subject to all the provisions of the existing Constitution. Now
We hold that even as to its latter task of proposing amendments to
the Constitution, it is subject to the provisions of Section 1 of
Article XV. This must be so, because it is plain to Us that the
framers of the Constitution took care that the process of amending
the same should not be undertaken with the same ease and
facility in changing an ordinary legislation. Constitution making is
the most valued power, second to none, of the people in a
constitutional democracy such as the one our founding fathers
have chosen for this nation, and which we of the succeeding
generations generally cherish. And because the Constitution
affects the lives, fortunes, futureand every other conceivable
aspect of the lives of all the people within the country and those
subject to its sovereignty, every degree of care is taken in
preparing and drafting it. A constitution worthy of the people for
deliberation and study. It is obvious that correspondingly, any
amendment of the Constitution is of no less importance than the
whole Constitution itself, and perforce must be conceived and
prepared with as much care and deliberation. From the very
nature of things, the drafters of an original constitution, as already
observed earlier, operate without any limitations, restraints or
inhibitions save those that they may impose upon themselves.
This is not necessarily true of subsequent conventions called to
amend the original constitution. Generally, the framers of the latter
see to it that their handwork is not lightly treated and as easily
mutilated or changed, not only for reasons purely personal but
more importantly, because written constitutions are supposed to
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least, as long as they can be adopted to the needs and exigencies

of the people, hence, they must be insulated against precipitate
and hasty actions motivated by more or less passing political
moods or fancies. Thus, as a rule, the original constitutions carry
with them limitations and conditions, more or less stringent, made
so in the people themselves, in regard to the process of their
amendment. And when such limitations or conditions are so
incorporated in the original constitution, it does not lie in the
delegates of any subsequent convention to claim that they may
ignore and disregard such conditions because they are as
powerful and omnipotent as their original counterparts." 32

3.This Court in Tolentino likewise formally adopted the doctrine of proper

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

4.Four other members of the Court 35 in a separate concurrence in Tolentino,

expressed their "essential agreement" with Justice Sanchez' separate
opinion in Gonzales on the need for " fair submission (and) intelligent
consent or rejection" as "minimum requirement that must be met in order that
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there can be a proper submission to the people of a proposed constitutional

amendment" thus:
". . . amendments must be fairly laid before the people for their
blessing or spurning. The people are not to be mere rubber
stamps. They are not to vote blindly. They must be afforded ample
opportunity to mull over the original provisions, compare them with
the proposed amendments, and try to reach a conclusion as the
dictates of their conscience suggest, free from the incubus of
extraneous or possibly insidious influences. We believe the word
'submitted' can only mean that the government, within its
maximum capabilities, should strain every effort to inform every
citizen of the provisions to be amended, and the proposed
amendments and the meaning, nature and effects thereof. By this,
we are not to be understood as saying that, if one citizen or 100
citizens or 1,000 citizens cannot be reached, then there is no
submission within the meaning of the word as intended by the
framers of the Constitution. What the Constitution in effect directs
is that the government, in submitting an amendment for
ratification, should put every instrumentality or agency within its
structural framework to enlighten the people, educate them with
respect to their act of ratification or rejection. For as we have
earlier stated, one thing is submission and another is ratification.
There must be fair submission, intelligent consent or rejection" 36

They stressed further the need for undivided attention, sufficient information
and full debate, conformably to the intendment of Article XV, section 1 of the
Constitution, in this wise:
"A number of doubts or misgivings could conceivably and logically
assail the average voter. Why should the voting age be lowered at
all, in the first place? Why should the new voting age be precisely
18 years, and not 19 or 20? And why not 17? Or even 16 or 15? Is
the 18- year old as mature as the 21-year old so that there is no
need of an educational qualification to entitle him to vote? In this
age of permissiveness and dissent, can the 18-year old be relied
upon to vote with judiciousness when the 21-year old, in the past
elections, has not performed so well? If the proposed amendment
is voted down by the people, will the Constitutional Convention
insist on the said amendment? Why is there an unseemly haste on
the part of the Constitutional Convention in having this particular
proposed amendment ratified at this particular time? Do some of
the members of the Convention have future political plans which
they want to begin to subserve by the approval this year of this
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amendment? If this amendment is approved, does it thereby mean

that the 18-year old should not also shoulder the moral and legal
responsibilities of the 21-year old? Will he be required to render
compulsory military service under the colors? Will the age of
contractual consent be reduced to 18 years? If I vote against this
amendment, will I not be unfair to my own child who will be 18
years old, come 1973?
"The above are just samplings from here, there and everywhere
from a domain (of searching questions) the bounds of which are
not immediately ascertainable. Surely, many more questions can
be added to the already long litany. And the answers cannot be
had except as the questions are debated fully, pondered upon
purposefully, and accorded undivided attention.
"Scanning the contemporary scene, we say that the people are
not, and by election time will not be, sufficiently informed of the
meaning, nature and effects of the proposed constitutional
amendment. They have not been afforded ample time to
deliberate thereon conscientiously. They have been and are
effectively distracted from a full and dispassionate consideration of
the merits and demerits of the proposed amendment by their
traditional pervasive involvement in local elections and politics.
They cannot thus weigh in tranquility the need for and the wisdom
of the proposed amendment." 37

5.This Court therein dismissed the plea of disregarding the mandatory

requirements of the amending process "in favor of allowing the sovereign
people to express their decision on the proposed amendments" as
"anachronistic in the realm of constitutionalism and repugnant to the essence
of the rule of law," in the following terms:
". . . The preamble of the Constitution says that the Constitution
has been ordained by the 'Filipino people, imploring the aid of
Divine Providence.' Section 1 of Article XV is nothing more than a
part of the Constitution thus ordained by the people. Hence, in
construing said section, We must read it as if the people had said,
'This Constitution may be amended, but it is our will that the
amendment must be proposed and submitted to Us for ratification
only in the manner herein provided.' . . . Accordingly, the real issue
here cannot be whether or not the amending process delineated
by the present Constitution may be disregarded in favor of
allowing the sovereign people to express their decision on the
proposed amendments, if only because it is evident that the very
idea of departing from the fundamental law is anachronistic in the
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realm of constitutionalism and repugnant to the essence of the

rule of law; rather, it is whether or not the provisional nature of the
proposed amendment and the manner of its submission to the
people for ratification or rejection conform with the mandate of the
people themselves in such regard, as expressed in the
Constitution itself." 38

6.This Court, in not heeding the popular clamor, thus stated its position: "(I)t
would be tragic and contrary to the plain compulsion of these perspectives, if
the Court were to allow itself in deciding this case to be carried astray by
considerations other than the imperatives of the rule of law and of the
applicable provisions of the Constitution. Needless to say, in a larger
measure than when it binds other departments of the government or any
other official or entity, the Constitution imposes upon the Court the sacred
duty to give meaning and vigor to the Constitution, by interpreting and
construing its provisions in appropriate cases with the proper parties and by
striking down any act violative thereof. Here, as in all other cases, We are
resolved to discharge that duty." 39
7.The Chief Justice, in his separate opinion in Tolentino concurring with this
Court's denial of the motion for reconsideration, succinctly restated this
Court's position on the fundamentals, as follows:
On the premature submission of a partial amendment proposal,
with a "temporary provisional or tentative character": ". . . a
partial amendment would deprive the voters of the context which
is usually necessary for them to make a reasonably intelligent
appraisal of the issue submitted for their ratification or rejection . . .
Then, too, the submission to a plebiscite of a partial amendment,
without a definite frame of reference, is fraught with possibilities
which may jeopardize the social fabric. For one thing, it opens the
door to wild speculations. It offers ample opportunities for
overzealous leaders and members of opposing political camps to
unduly exaggerate the pros and cons of the partial amendment
proposed. In short, it is apt to breed false hopes and create wrong
impressions. As a consequence, it is bound to unduly strain the
people's faith in the soundness and validity of democratic
processes and institutions."
On the plea to allow submission to the sovereign people of the
"fragmentary and incomplete" proposal, although inconsistent with
the letter and spirit of the Constitution: "The view, has, also, been
advanced that the foregoing considerations are not decisive on the
issue before Us, inasmuch as the people are sovereign, and the
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partial amendment involved in this case is being submitted to

them. The issue before Us is whether or not said partial
amendment may be validly submitted to the people for ratification
'in a plebiscite to coincide with the local elections in November
1971,' and this particular issue will not be submitted to the people.
What is more, the Constitution does not permit its submission to
the people. The question sought to be settled in the scheduled
plebiscite is whether or not the people are in favor of the reduction
of the voting age."

On a "political" rather than "legalistic" approach: "Is this

approach to the problem too 'legalistic? This term has several
possible connotations. It may mean strict adherence to the law,
which in the case at bar is the Supreme Law of the land. On this
point, suffice it to say that, in compliance with the specific mandate
of such Supreme Law, the members of the Supreme 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 strained interpretation 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 needed and 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 an appraisal of the people's feeling thereon
are political matters. In fact, apart from the obvious message of
the mass media, and, at times, of the pulpit, the Court has been
literally bombarded with scores of handwritten letters, almost all of
which bear the penmanship and the signature of girls, as well as
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 to vote. Thus, the pressure of public opinion
has been brought to bear heavily upon the Court for a
reconsideration of its decision in the case at bar.
"As above stated, however, the wisdom of the amendment and the
popularity thereof are political questions beyond our province. In
fact, respondents and the intervenors originally maintained that
We have no jurisdiction to entertain the petition herein, upon the
ground that the issue therein raised is a political one. Aside from
the absence of authority to pass upon political question, it is
obviously improper and unwise for the bench to delve into such
questions owing to the danger of getting involved in politics, more
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likely of a partisan nature, and, hence, of impairing the image and

the usefulness of courts of justice as objective and impartial
arbiters of justiciable controversies.
"Then, too, the suggested course of action, if adopted, would
constitute a grievous disservice to the people and the very
Convention itself. Indeed, the latter and the Constitution it is in the
process of drafting stand essentially for the Rule of Law. However,
as the Supreme Law of the land, a Constitution would not be
worthy of its name, and the Constitution called upon to draft it
would he engaged in a futile undertaking, if we did not exact
faithful adherence to the fundamental tenets set forth in the
Constitution and compliance with its provisions were not
obligatory. If we, in effect, approved, consented to or even
overlooked a circumvention of said tenets and provisions, because
of the good intention with which Resolution No. 1 is animated, the
Court would thereby become the Judge of the good or bad
intentions of the Convention and thus be involved in a question
essentially political in nature.
"This is confirmed by the plea made in the motions for
reconsideration in favor of the exercise of judicial statesmanship in
deciding the present case. Indeed, 'politics' is the ward commonly
used to epitomize compromise, even with principles, for the sake
of political expediency or the advancement of the bid for power of
a given political party. Upon the other hand, statesmanship is the
expression usually availed of to refer to high politics or parties on
the highest level. In any event, qualities, political approach,
political expediency and statesmanship are generally associated,
and often identified, with the dictum that 'the end justifies the
means.' I earnestly hope that the administration of justice in this
country and the Supreme Court, in particular, will 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 the submission of the proposed amendment lowering
the voting age to the plebiscite on November 8, 1971 is to enable the
youth 18 to 20 years who comprise more than three (3) million of our
population to participate in the ratification of the new Constitution in 1972'
so as 'to allow young people who would be governed by the new
Constitution to be given a say on what kind of Constitution they will have'
is a laudable end, . . . those urging the vitality and importance of the
proposed constitutional amendment and its approval ahead of the
complete and final draft of the new Constitution must seek a valid solution
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to achieve it in a manner sanctioned by the amendatory process ordained

by our people in the present Constitution" 41 so that there may be
"submitted, not piece- meal, but by way of complete and final
amendments as an integrated whole (integrated either with the subsisting
Constitution or with the new proposed Constitution) . . ."
9.The universal validity of the vital constitutional precepts and principles
above-enunciated can hardly be gainsaid. I fail to see the attempted
distinction of restricting their application to proposals for amendments of
particular provisions of the Constitution and not to so-called entirely new
Constitutions. Amendments to an existing Constitution presumably may be
only of certain parts or in toto, and in the latter case would give rise to an
entirely new Constitution. Where this Court held in Tolentino that "any
amendment of the Constitution is of no less importance than the whole
Constitution itself and perforce must be conceived and prepared with as
much care and deliberation' it would appeal that the reverse would equally
be true; which is to say, that the adoption of a whole new Constitution would
be of no less importance than any particular amendment and therefore the
necessary care and deliberation as well as the mandatory restrictions and
safeguards in the amending process ordained by the people themselves so
that "they (may) be insulated against precipitate and hasty actions motivated
by more or less passing political moods or fancies" must necessarily equally
apply thereto.
III
1.To restate the basic premises, the people provided in Article XV of the
Constitution for the amending process only "by approval by a majority of the
votes cast at an election at which the (duly proposed) amendments are
submitted to the people for their ratification"
The people ordained in Article V, section 1 that only those thereby
enfranchised and granted the right of suffrage may speak the "will of the
body politic", viz, qualified literate voters twenty one years of age or over with
one year's residence in the municipality where they have registered.
The people, not as yet satisfied, further provided by amendment duly
approved in 1940 in accordance with Article XV, for the creation of an
independent Commission on Elections with "exclusive charge" for the
purpose of "insuring free, orderly and honest elections" and ascertaining the
true will of the electorate and more, as ruled by this Court in Tolentino, in
the case of proposed constitutional amendments, insuring proper submission
to the electorate of such proposals. 42
2.A Massachussets case 43 with a constitutional system and provisions
analogous to ours, best defined the uses of the term " people" as a body
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politic and " people" in the political sense who are synonymous with the
qualified voters granted the right to vote by the existing Constitution and who
therefore are "the sole organs through which the will of the body politic can
be expressed."
It was pointed out therein that "(T)he word 'people' may have somewhat
varying significations dependent upon the connection in which it is used. In
some connections in the Constitution it is confined to citizens and means the
same as citizens. It excludes aliens. It includes men, women, and children. It
comprehends not only the sane, competent, law-abiding and educated, but
also those who are wholly or in part dependents and charges upon society
by reason of immaturity, mental or moral deficiency or lack of the common
essentials of education. All these persons are secured by the fundamental
guarantees of the Constitution in life, liberty, and property and the pursuit of
happiness, except as these may be limited for the protection of society."
In the sense of "body politic (as) formed by voluntary association of
individuals" governed by a constitution and common laws in a "social
compact . . . for the common good" and in another sense of "people" in a
"practical sense" for "political purposes" it was therein fittingly stated that "
(I)n this sense, 'people' comprises many who, by reason of want of years, of
capacity or of the educational requirements of Article 20 of the amendments
of the Constitution, can have no voice in government and who yet are
entitled to all the immunities and protection established by the Constitution.
'People' in this aspect is coextensive with the body politic. But it is obvious
that 'people' cannot be used with this broad meaning in a political
signification. The 'people' in this connection means that part of the entire
body of inhabitants who under the Constitution are intrusted with the
exercise of the sovereign power and the conduct of government. The
'people' in the Constitution in a practical sense means those who under the
existing Constitution possess the right to exercise the elective franchise and
who, while that instrument remains in force unchanged, will be the sole
organs through which the will of the body politic can be expressed. 'People'
for political purposes must be considered synonymous with qualified voters.'"
As was also ruled by the U.S. Supreme Court, ". . . While the people are thus
the source of political power, their governments, national and state, have
been limited by written constitutions, and they have themselves thereby set
bounds to their own power, as against the sudden impulse of mere
majorities." 44
From the text of Article XV of our Constitution, requiring approval of
amendment proposals "by a majority of the votes cast at an election at which
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the amendments are submitted to the people for their ratification", it seems
obvious as above-stated that " people" as therein used must be considered
synonymous with "qualified voters" as enfranchised under Article V, section 1
of the Constitution since only " people" who are qualified voters can
exercise the right of suffrage and cast their votes.
3.Sound constitutional policy and the sheer necessity of adequate
safeguards as ordained by the Constitution and implementing statutes to
ascertain and record the will of the people in free, orderly and honest
elections supervised by the Comelec make it imperative that there be strict
adherence to the constitutional requirements laid down for the process of
amending in toto or in part the supreme law of the land.
Even at barrio level 45 the Revised Barrio Charter fixes certain safeguards for
the holding of barrio plebiscites thus: "SEC. 6. Plebiscite. A plebiscite may
be held in the barrio when authorized by a majority vote of the members
present in the barrio assembly, there being a quorom, or when called by at
least four members of the barrio council: Provided, however, That no
plebiscite shall be held until after thirty days from its approval by either body,
and such plebiscite has been given the widest publicity in the barrio, stating
the date, time and place thereof, the questions or issues to be decided,
action to be taken by the voters, and such other information relevant to the
holding of the plebiscite." 46
As to voting at such barrio plebiscites, the Charter further requires that "(A)ll
duly registered barrio assembly members qualified to vote may vote in the
plebiscite. Voting procedures may be made either in writing as in regular
elections, and/or declaration by the voters to the board of election tellers." 47
The subjects of the barrio plebiscites are likewise delimited thus: "A
plebiscite may be called to decide on the recall of any member of the barrio
council. A plebiscite shall be called to approve any budgetary, supplemental
appropriations or special tax ordinances" and the required majority vote is
also specified: "(F)or taking action on any of the above enumerated
measures, majority vote of all the barrio assembly members registered in the
list of the barrio secretary is necessary." 48
The qualifications for voters in such barrio plebiscites and elections of barrio
officials 49 comply with the suffrage qualifications of Article V, section 1 of the
Constitution and provide that "(S)EC. 10. Qualifications of Voters and
Candidates. Every citizen of the Philippines, twenty one years of age or
over, able to read and write, who has been a resident of the barrio during the
six months immediately preceding the election, duly registered in the list of
voters kept by the barrio secretary, who is not otherwise disqualified, may
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vote or be a candidate in the barrio elections." 50

IV
1.Since it appears on the face of Proclamation 1102 that the mandatory
requirements under the above-cited constitutional articles have not been
complied with and that no election or plebiscite for ratification as therein
provided as well as in section 16 of Article XVII of the proposed Constitution
itself 51 has been called or held, there cannot be said to have been a valid
ratification.
2.Petitioners raised serious questions as to the veracity and genuineness of
the reports or certificates of results purportedly showing unaccountable
discrepancies in seven figures in just five provinces 52 between the reports
as certified by the Department of Local Governments and the reports as
directly submitted by the provincial and city executives, which latter reports
respondents disclaimed inter alia as not final and complete or as not signed;
53 whether the reported votes of approval of the proposed Constitution
conditioned upon the non-convening of the interim National Assembly
provided in Article XVII, section 1 thereof, 54 may be considered as valid; the
allegedly huge and uniform votes reported; and many others.
3.These questions only serve to justify and show the basic validity of the
universal principle governing written constitutions that proposed
amendments thereto or in replacement thereof may be ratified only in the
particular mode or manner prescribed therein by the people. Under Article
XV, section 1 of our Constitution, amendments thereto may be ratified only in
the one way therein provided, i.e. in an election or plebiscite held in
accordance with law and duly supervised by the Commission on Elections,
and which is participated in only by qualified and duly registered voters. In
this manner, the safeguards provided by the election code generally assure
the true ascertainment of the results of the vote and interested parties would
have an opportunity to thresh out properly before the Comelec all such
questions in pre-proclamation proceedings.
4.At any rate, unless respondents seriously intend to question the very
statements and pronouncements in Proclamation 1102 itself which shows on
its face, as already stated, that the mandatory amending process required by
the (1935) Constitution was not observed, the cases at bar need not reach
the stage of answering the host of questions, raised by petitioners against
the procedure observed by the Citizens Assemblies and the reported
referendum results since the purported ratification is rendered nugatory by
virtue of such non-observance.
5.Finally, as to respondents' argument that the President issued
Proclamation 1102 "as 'agent' of the Constitutional Convention" 55 under
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Resolution No. 5844 approved on November 22, 1973, and "as agent of the
Convention the President could devise other forms of plebiscite to determine
the will of the majority vis-a-vis the ratification of the proposed Constitution."
56

The minutes of November 22, 1972, of the Convention, however, do not at

all support this contention. On the contrary, the said minutes fully show that
the Convention's proposal and "agency" was that the President issue a
decree precisely calling a plebiscite for the ratification of the proposed new
Constitution on an appropriate date, under the charge of the Comelec, and
with a reasonable period for an information campaign, as follows:
"12.Upon recognition by the Chair, Delegate Duavit moved for the
approval of the resolution, the resolution portion of which read as
follows:
'RESOLVED, AS IT IS HEREBY RESOLVED, that
the 1971 Constitutional Convention propose to President
Ferdinand E. Marcos that a decree be issued calling a
plebiscite for the ratification of the proposed New
Constitution on such appropriate date as he shall determine
and providing for the necessary funds therefor, and that
copies of this resolution as approved in plenary session be
transmitted to the President of the Philippines and the
Commission on Elections for implementation.'
"He suggested that in view of the expected approval of the final
draft of the new Constitution by the end of November 1972
according to the Convention's timetable, it would be necessary to
lay the groundwork for the appropriate agencies of the
government to undertake the necessary preparation for the
plebiscite.
"xxx xxx xxx
"12.2Interpellating, Delegate Pimentel (V.) contended that the
resolution was unnecessary because section 15, Article XVII on
the Transitory Provision, which had already been approved on
second and third readings, provided that the new constitution
should be ratified in a plebiscite called for the purpose by the
incumbent President. Delegate Duavit replied that the provision
referred to did not include the appropriation of funds for the
plebiscite and that moreover, the resolution was intended to serve
formal notice to the President and the Commission on Elections to
initiate the necessary preparations.
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"xxx xxx xxx

"12.4Interpellating, Delegate Madarang suggested that a
reasonable period for an information campaign was necessary in
order to properly apprise the people of the implications and
significance of the new charter. Delegate Duavit agreed, adding
that this was precisely why the resolution was modified to give the
President the discretion to choose the most appropriate date for
the plebiscite.
"12.5Delegate Laggui asked whether a formal communication to
the President informing him of the adoption of the new
Constitution would not suffice considering that under Section 15 of
the Transitory Provisions, the President would be duty-bound to
call a plebiscite forits ratification. Delegate Duavit replied in the
negative, adding that the resolution was necessary to serve notice
to the proper authorities to prepare everything necessary for the
plebiscite.
"12.6In reply to Delegate Britanico, Delegate Duavit stated that the
mechanics for the holding of the plebiscite would he laid down by
the Commission on Elections, in coordination with the President.
"12.7Delegate Catan inquired if such mechanics for the plebiscite
could include a partial lifting of martial law in order to allow the
people to assemble peaceably to discuss the new Constitution.
Delegate Duavit suggested that the Committee on Plebiscite and
Ratification could coordinate with the COMELEC on the matter.
"12.8Delegate Guzman moved for the previous question. The
Chair declared that there was one more interpellant and that a
prior reservation had been made for the presentation of such a
motion.
1.8aDelegate Guzman withdrew his motion.
"12.9Delegate Astilla suggested in his interpellation that there was
actually no need for such a resolution in view of the provision of
section 15, Article XVII on the Transitory Provisions. Delegate
Duavit disagreed, pointing out that the said provision did not
provide for the funds necessary for the purpose.

"13.Delegate Ozamiz moved to close the debate and proceed to

the period of amendment.
"13.1Floor Leader Montejo stated that there were no reservations
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to amend the resolution.

"13.2Delegate Ozamiz then moved for the previous question.
Submitted to a vote, the motion was approved.
"Upon request of the Chair, Delegate Duavit restated the
resolution for voting.
"14.1.Delegate Ordoez moved for nominal voting. Submitted to a
vote, the motion was lost.
"14.2.Thereupon, the Chair submitted the resolution to a vote. It
was approved by a show of hands."

57

I, therefore, vote to deny respondents' motion to dismiss and to give due

course to the petitions.
Promulgated: June 4, 1973 *
ANTONIO, J.:
In conformity with my reservation, I shall discuss the grounds for my
concurrence.
I
It is my view that to preserve the independence of the State, the
maintenance of the existing constitutional order and the defense of the
political and social liberties of the people, in times of a grave emergency,
when the legislative branch of the government is unable to function or its
functioning would itself threaten the public safety, the Chief Executive may
promulgate measures legislative in character, for the successful prosecution
of such objectives. For the "President's power as Commander-in-chief has
been transformed from a simple power of military command to a vast
reservoir of indeterminate powers in time of emergency . . . In other words,
the principal canons of constitutional interpretation are . . . set aside so far as
concerns both the scope of the national power and the capacity of the
President to gather unto himself all constitutionally available powers in order
the more effectively to focus them upon the task of the hour." (Corwin, The
President: Office & Powers, pp. 317, 318, [1948]).
1.The proclamation of martial rule, ushered the commencement of a crisis
government in this country. In terms of power, crisis government in a
constitutional democracy entails the concentration of governmental power.
"The more complete the separation of powers in a constitutional system, the
more difficult, and yet the more necessary" according to Rossiter, "will be
their fusion in time of crisis . . . The power of the state in crisis must not only
be concentrated and expanded, it must be freed from the normal system of
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constitutional and legal limitations. One of the basic features of emergency

powers is the release of the government from the paralysis of constitutional
restraints" (Rossiter, Constitutional Dictatorship, p. 290).
It is clearly recognized that in moments of peril the effective action of the
government is channeled through the person of the Chief Executive. "Energy
in the executive", according to Hamilton, "is essential to the protection of the
community against foreign attacks . . . to the protection of property against
those irregular and high-handed combinations which sometimes interrupt the
ordinary course of justice; to the security of liberty against the enterprises
and assaults of ambition, of faction, and of anarchy." (The Federalist,
Number 70). "The entire strength of the nation", said Justice Brewer in the
Debts ease (158 U.S. 564; 39 L. ed. 1092), "may be used to enforce in any
part of the land the full and free exercise of all national powers and the
security of all rights entrusted by the Constitution to its care". The
marshalling and employment of the "strength of the nation" are matters for
the discretion of the Chief Executive. The President's powers in time of
emergency defy precise definition since their extent and limitations are
largely dependent upon conditions and circumstances.
2.The power of the President to act decisively in a crisis has been grounded
on the broad conferment upon the Presidency of the Executive power, with
the added specific grant of power under the "Commander- in-Chief" clause of
the constitution. The contours of such powers have been shaped more by a
long line of historical precedents of Presidential action in times of crisis,
rather than judicial interpretation. Lincoln wedded his powers under the
"commander-in- chief" clause with his duty "to take care that the laws be
faithfully executed", to justify the series of extraordinary measures which he
took the calling of volunteers for military service, the augmentation of the
regular army and navy, the payment of two million dollars from
unappropriated funds in the Treasury to persons unauthorized to receive it,
the closing of the Post Office to "treasonable correspondence", the blockade
of southern ports, the suspension of the writ of habeas corpus, the arrest and
detention of persons 'who were represented to him" as being engaged in or
contemplating "treasonable practices" all this for the most part without the
least statutory authorization. Those actions were justified by the imperatives
of his logic, that the President may, in an emergency thought by him to
require it, partially suspend the constitution. Thus his famous question: "Are
all laws but one to be unexecuted, and the Government itself go to pieces
lest that one be violated?" The actions of Lincoln "assert for the President",
according to Corwin, "an initiative of indefinite scope and legislative in effect
in meeting the domestic aspects of a war emergency." (Corwin, The
President: Office & Powers, p. 280 [1948]). The facts of the civil war have
shown conclusively that in meeting the domestic problems as a
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consequence of a great war, an indefinite power must be attributed to the

President to take emergency measures. The concept of "emergency" under
which the Chief Executive exercised extraordinary powers underwent
correlative enlargement during the first and second World Wars. From its
narrow concept as an "emergency" in time of war during the Civil War and
World War I, the concept has been expanded in World War II to include the
"emergency" preceding the war and even after it. "The Second World War"
observed Corwin and Koenig, was the First World War writ large, and the
quasi-legislative powers of Franklin Roosevelt as "Commander-in-Chief in
wartime" . . . burgeoned correspondingly. The precedents were there to be
sure, most of them from the First World War, but they proliferated amazingly.
What is more, Roosevelt took his first step toward war some fifteen months
before our entrance into shooting war. This step occurred in September,
1940, when he handed over fifty so-called overage destroyers to Great
Britain. The truth is, they were not overage, but had been recently
reconditioned and recommissioned . . . Actually, what President Roosevelt
did was to take over for the nonce Congress's power to dispose of property
of the United States (Article IV, Section 3) and to repeal at least two
statutes." (Corwin & Koenig, The Presidency Today, New York University
Press, 1956; sf Corwin, The President: Office and Powers, 1948.)
The creation of public offices is a power confided by the constitution to
Congress. And yet President Wilson, during World War I on the basis of his
powers under the "Commander-in-Chief" clause created "offices" which were
copied in lavish scale by President Roosevelt in World War II. In April 1942,
thirty-five "executive agencies" were purely of Presidential creation. On June
7, 1941 on the basis of his powers as "Commander-in-Chief", he issued an
executive order seizing the North American Aviation plant of Inglewood,
California, where production stopped as a consequence of a strike. This was
justified by the government, as the exercise of Presidential power growing
out of the "duty constitutionally and inherently resting upon the President to
exert his civil and military as well as his moral authority to keep the defense
efforts of the United States a going concern" as well as "to obtain supplies
for which Congress has appropriated money, and which it has directed the
President to obtain." On a similar justification other plants and industries
were taken over by the government. It is true that in Youngstown Sheet &
Tube vs. Sawyer (343 U.S. 579; 72 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- inChief of the armed forces, validly order the seizure of most of the country's
steel mills. The Court however did not face the naked question of the
President's power to seize steel plants in the absence of any congressional
enactment or expressions of policy. The majority of the Court found that this
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legislative occupation of the field made untenable the President's claim of

authority to seize the plants as an exercise of inherent executive power or as
Commander-in-Chief Justice Clerk in his concurrence to the main opinion of
the Court, explicitly asserted that the President does possess, in the
absence of restrictive legislation, a residual or resultant power above or in
consequence of his granted powers, to deal with emergencies that he
regards as threatening the national security. The same view was shared with
vague qualifications by Justices Frankfurter and Jackson, two of the
concurring Justices. The three dissenting Justices, speaking through Chief
Justice Vinson, apparently went further by quoting with approval a passage
extracted from the brief of the government in the case of United States vs.
Midwest Oil Co., (236 U.S. 459, 59 L. Ed. 673, 35 S. Ct. 309) where the
court sustained the power of the President to order withdrawals from the
public domain, not only without Congressional sanction but even contrary to
Congressional statutes.
It is evident therefore that the Steel Seizure Case, cannot be invoked as an
authority to support the view that the President in times of a grave crisis does
not possess a residual power above or in consequence of his granted
powers, to deal with emergencies that he regards as threatening the national
security. The lesson of the Steel Seizure case, according to Corwin and
Koenig, "Unquestionably . . . tends to supplement presidential emergency
power to adopt temporary remedial legislation when Congress has been, in
the judgment of the President, unduly remiss in taking cognizance of and
acting on a given situation." (Corwin and Koenig, The Presidency Today,
New York University Press, 1956).
The accumulation of precedents has thus built up the presidential power
under emergency conditions to "dimensions of executive prerogative as
described by John Locke, of a power to wit, to fill needed gaps in the law, or
even to supersede it so far as may be requisite to realize the fundamental
law of native and government, namely, that as much as may be all the
members of society are to be preserved." (Corwin and Koenig, The
Presidency Today).
In the light of the accumulated precedents, how could it be reasonably
argued therefore, that the President had no power to issue Presidential
Decree Nos. 86 and 86-A as well as Proclamation No. 1102, since these
measures were considered indispensable to effect the desired reforms at the
shortest time possible and hasten the restoration of normalcy? It is
unavailing for petitioners to contend that we are not faced by an actual
"shooting war" for today's concept of the emergency which justified the
exercise of those powers has of necessity been expanded to meet the
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exigencies of new dangers and crisis that directly threaten the nation's
continued and constitutional existence. For as Corwin observed: ". . . today
the concept of 'war' as a special type of emergency warranting the realization
of constitutional limitations tends to spread, as it were, in both directions, so
that there is not only 'the war before the war,' but the 'war after the war.'
Indeed, in the economic crisis from which the New Deal may be said to have
issued, the nation was confronted in the opinion of the late President with an
'emergency greater than war'; and in sustaining certain of the New Deal
measures the Court invoked the justification of 'emergency.' In the final result
the constitutional practices of wartime have moulded the Constitution to
greater or less extent for peacetime as well, and seem likely to do so still
more pronouncedly under fresh conditions of crisis." (Corwin, Ibid. p. 318.)
The same view was expressed by Rossiter thus:
"The second crisis is rebellion, when the authority of a
constitutional government is resisted openly by large numbers of
its citizens who are engaged in violent insurrection against the
enforcement 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 action by
constitutional governments, is economic depression. The
economic troubles which plagued all the countries of the world in
the early thirties invoked governmental methods of an
unquestionably dictatorial character in many democracies. It was
thereby acknowledged that an economic existence as a war or a
rebellion. And these are not the only crisis which have 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 often dictatorial methods.
Wars are not won by debating societies, rebellions are not
suppressed by judicial injunctions, the reemployment of twelve
million jobless citizens will not be effected through a scrupulous
regard for the tenets of free enterprise, and hardships caused by
the eruptions of nature cannot be mitigated by letting nature take
its course. The Civil War, the depression of 1933, and the recent
global conflict were not and could not have been successfully
resolved by governments similar to those of James Buchanan,
William Howard Taft, or Calvin Coolidge." (Rossiter, Constitutional
Dictatorship Crisis of Government in the Modern Democracies,
p. 6 [1948;).

II
We are next confronted with the insistence of Petitioners that the referendum
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in question not having been done in accordance with the provisions of

existing election laws, where only qualified voters are allowed 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 that Article XV of the 1935 Constitution provides the method
for the revision of the constitution, and automatically apply in the approval of
such proposed new Constitution the provisions of the election law and those
of Article V and X of the old Constitution. We search in vain for any provision
in the old charter specifically providing for such procedure in the case of a
total revision or a rewriting of the whole constitution.
1.There is clearly a distinction between revision and amendment of an
existing constitution. Revision may involve a rewriting of the whole
constitution. The act of amending a constitution, on the other hand,
envisages a change of only specific provisions. The intention of an act to
amend is not the change of the entire constitution, but only the improvement
of specific parts of the existing constitution of the addition of provisions
deemed essential as a consequence of new conditions or the elimination of
parts already considered obsolete or unresponsive to the needs of the times.
1 The 1973 Constitution is not a mere amendment to the 1935 Constitution. It
is a completely new fundamental charter embodying new political, social and
economic concepts.
According to an eminent authority on Political Law, "The Constitution of the
Philippines and that of the United States expressly provide merely for
methods of amendment. They are silent on the subject of revision. But this is
not a fatal omission. There is nothing that can legally prevent a convention
from actually revising the Constitution of the Philippines or of the United
States even were such conventions called merely for the purpose of
proposing and submitting amendments to the people. For in the final analysis
it is the approval of the people that gives validity to any proposal of
amendment or revision." (Sinco, Philippine Political Law, p. 49).
Since the 1936 Constitution does not specifically provide for the method or
procedure for the revision or for the approval of a new constitution, should it
now be held that the people have placed such restrictions on themselves
that they are now disabled from exercising their right as the ultimate source
of political power from changing the old constitution which, in their view, was
not responsive to their needs and in adopting a new charter of government to
enable them to rid themselves from the shackles of traditional norms and to
pursue with a new dynamism the realization of their true longings and
aspirations, except in the manner and form provided by Congress for
previous plebiscites? Was not the expansion of the base of political
participation, by the inclusion of the youth in the process of ratification who
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after all constitute the preponderant majority more in accord with the spirit
and philosophy of the constitution that political power is inherent in the
people collectively? As clearly expounded by Justice Makasiar in his opinion,
in all the cases cited where the Court held that the submission of the
proposed amendment was illegal due to the absence of substantial
compliance with the procedure prescribed by the Constitution, the procedure
prescribed by the state Constitution, is so detailed, that it specified the
manner in which such submission shall be made, the persons qualified to
vote for the same, the date of election and other definite standards, from
which the court could safely ascertain whether or not the submission was in
accordance with the Constitution. Thus the case of In re McConaughy (119
N.E. 408) relied upon in one of the dissenting opinions involved the
application of the provisions of the state Constitution of Minnesota which
clearly prescribed in detail the procedure under which the Constitution may
be amended or revised. 2 This is not true with our Constitution. In the case of
revision there are no "standards meet for judicial judgment". 3
The framers of our Constitution were free to provide in the Constitution the
method or procedure for the revision or rewriting of the entire constitution,
and if such was their intention, they could and should have so provided.
Precedents were not wanting. The constitutions of the various states of the
American Union did provide for procedures for their amendment, and
methods for their revision. 4
Certainly We cannot, under the guise of interpretation, modify, revise,
amend, remodel or rewrite the 1935 Charter. To declare what the law is, or
has been, is a judicial power, but to declare what the law shall be is not
within Our judicial competence and authority.
Upon the other hand, since our fundamental charter has not provided the
method or procedure for the revision or complete change of the Constitution,
it is evident that the people have reserved such power in themselves. They
decided to exercise it not through their legislature, but through a Convention
expressly chosen for that purpose. The Convention as an independent and
sovereign body has drafted not an amendment but a completely new
Constitution, which decided to submit to the people for approval, not through
an act of Congress, but by means of decrees to be promulgated by the
President. In view of the inability of Congress to act, it was within the
constitutional powers of the President, either as agent of the Constitutional
Convention, or under his authority under martial law, to promulgate the
necessary measures for the ratification of the proposed new Constitution.
The adoption of the new Charter was considered as a necessary basis for all
the reforms set in motion under the new society, to root out the causes of
unrest. The imperatives of the emergency underscored the urgency of its
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adoption. The people in accepting such procedure and in voting

overwhelmingly for the approval of the new Constitution have, in effect,
ratified the method and procedure taken. "When the people adopt a
completely revised or new constitution," said the Court in Wheeler v. Board
of Trustees (37 SE 2nd 322, 326-330), "the framing or submission of the
instrument is not what gives it binding force and effect. The fiat of the people,
and only the fiat of the people, can breathe life into a constitution."
This has to be so because, in our political system, all political power is
inherent in the people and free governments are founded on their authority
and instituted for their benefit. Thus Section 1 of Article II of the 1935
Constitution declares that: "Sovereignty resides in the people and all
government authority emanates from them." Evidently the term people refers
to the entire citizenry and not merely to the electorate, for the latter is only a
fraction of the people and is only an organ of government for the election of
government officials.
III
The more compelling question, however is: Has this Court the authority to
nullify an entire Constitution that is already effective as it has been accepted
and acquiesced in by the people as shown by their compliance with the
decree promulgated thereunder, their cooperation in its implementation, and
is now maintained by the Government that is in undisputed authority and
dominance?
Of course it is argued that acquiescence by the people cannot be deduced
from their acts of conformity, because under a regime of martial law the
people are hound to obey and act in conformity with the orders of the
President, and have absolutely no other choice. The flaw of this argument
lies in its application of a mere theoretical assumption based on the
experiences of other nations on an entirely different factual setting. Such an
assumption flounders on the rock of reality. It is true that as a general rule
martial law is the use of military forces to perform the functions of civil
government. Some courts have viewed it as a military regime which can be
imposed in emergency situations. In other words, martial rule exists when
the military rises superior to the civil power in the exercise of some or all the
functions of government. Such is not the case in this country. The
government functions thru its civilian officials. The supremacy of the civil
over the military authority is manifest. Except for the imposition of curfew
hours and other restrictions required for the security of the State, the people
are free to pursue their ordinary concerns.
In short, the existing regime in this country, does not contain the oppressive
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features, generally associated with a regime of martial law in other countries.

"Upon the other hand the masses of our people have accepted it, because of
its manifold blessings. The once downtrodden rice tenant has at long last,
been emancipated a consummation devoutly wished by every Philippine
President since the 1930's. The laborer now holds his head high because his
rights are amply protected and respected." * A new sense of discipline has
swiftly spread beyond the corridors of government into the social order.
Responding to the challenges of the New Society, the people have turned in
half a million loose firearms, paid their taxes on undeclared goods and
income in unprecedented numbers and amount, lent their labors in massive
cooperation in land reform, in the repair of dikes, irrigation ditches, roads
and bridges, in reforestation, in the physical transformation of the
environment to make ours a cleaner and greener land. "The entire country is
turning into one vast garden growing food for the body, for thought and for
the soul." * More important the common man has at long last been freed from
the incubus of fear.
"Martial law has paved the way for a re-ordering of the basic social structure
of the Philippines" reported Frank Valeo to the United States Senate.
"President Marcos has been prompt and sure- footed in using the power of
presidential decree under martial law for this purpose. He has zeroed in on
areas which have been widely recognized as prime sources of the nation's
difficulties land tenancy, official corruption, tax evasion and abuse of
oligarchic economic power. Clearly he knows his targets . . . there is marked
public support for his leadership . . ." (Bulletin Today, March 3 and 4, 1973).
In a similar vein, C.L. Sulzberger, a foreign affairs columnist wrote, in the
April 11 issue of The New York Times:
During his first Presidential term (1965-1969), Mr. Marcos was
discouraged by the failure of legislators to approve urgently
needed reforms. He found his second term further frustrated by
spreading riots, a Maoist uprising in Luzon and a much more
serious Moslem insurrection in the southern islands from
Mindanao across the Sulu archipelago to the frontier regions of
Malaysia and Indonesia. Manila claims this war is Maoistcoordinated.
Mr. Marcos has now in effect taken all the reins of power and
makes no promise as to when he will relinquish them. But, while
fettering a free press, terminating Congress and locking up some
opponents (many of whom were later amnestied), he has hauled
the Philippines out of stagnation.
Sharecropping is being ended as more than three million acres of
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been started. The educational system is undergoing revision, and

corruption is diminished. In non-communist Asia it is virtually
impossible to wholly end it and this disagreeable phenomenon still
reaches very high.
Mr. Marcos, an imaginative, gifted man, hopes to reshape society
by creating an agrarian middle-class to replace the archaic
sharecropper-absentee landlord relationship. He is even pushing a
birth control program with the tacit acceptance of the Catholic
Church. He has started labor reforms and increased wages."
(Daily Express, April 15, 1973)

As explained in this writer's opinion of April 24, 1973 on the "Constancia" and
"Manifestation" of counsel for petitioners:
The new Constitution is considered effective "if the norms created in
conformity with it are by and large applied and obeyed. As soon as the old
Constitution loses its effectiveness and the new Constitution has become
effective, the acts that appear with the subjective meaning of creating or
applying legal norms are no longer interpreted by presupposing the old basic
norm, but by presupposing the new one. The statutes issued under the old
Constitution and not taken over are no longer regarded as valid, and the
organs authorized by the old Constitution no longer competent." (Kelsen,
Pure Theory of Law, [1967].)
The essentially political nature of the question is at once made manifest by
understanding that in the final analysis, what is assailed is not merely the
validity of Proclamation No. 1102 of the President, which is merely
declaratory of the fact of approval or ratification, but the legitimacy of the
government. It is addressed more to the framework and political character of
this Government which now functions under the new Charter. It seeks to
nullify a Constitution that is already effective.
In such a situation, We do not see how the question posed by petitioners
could be judicially decided. "Judicial power presupposes an established
government capable of enacting laws and enforcing their execution, and of
appointing judges to expound and administer them. If it decides at all as a
court, it necessarily affirms the existence and authority of the government
under which it is exercising judicial power." (Luther v. Borden, 48 U.S. [7
How.] 1, 12 L. Ed. 598.)
In other words, where a complete change in the fundamental law has been
effected through political action, the Court whose existence is affected by
such change is, in the words of Mr. Melville Fuller Weston, "precluded from
passing upon the fact of change by a logical difficulty which is not to be
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surmounted." 5 Such change in the organic law relates to the existence of a

prior point in the Court's "chain of title" to its authority and "does not relate
merely to a question of the horizontal distribution of powers." 6 It involves in
essence a matter which "the sovereign has entrusted to the so-called
political departments of government or has reserved to be settled by its own
extra governmental action." 7
The non-judicial character of such a question has been recognized in
American law. "From its earliest opinions this Court has consistently
recognized," said Justice Frankfurter, in his illuminating dissent in Baker v.
Carr, 369 U.S. 186, 7 L. Ed. 2d 633, 722, 726, 727), "a class of controversies
which do not lend themselves to judicial standards and judicial remedies. To
classify the various instances as 'political questions' is rather a form of
stating this conclusion than revealing of analysis . . . The crux of the matter is
that courts are not fit instruments of decision where what is essentially at
stake is the composition of those large contests of policy traditionally fought
out in non-judicial forums, by which governments and the actions of
governments are made and unmade."
The diversity of views contained in the opinions of the members of this Court,
in the cases at bar, cannot be a case of "right" or "wrong" views of the
Constitution. It is one of attitudes and values. For there is scarcely any
principle, authority or interpretation which has not been countered by the
opposite. At bottom it is the degree of one's faith in the nation's leadership
and in the maturity of judgment of our people.
IN VIEW OF THE FOREGOING, the dismissal of these five cases, and the
conclusion of this Court in its judgment of March 31, 1973 are fully justified.
Barredo, Makasiar and Esguerra, JJ., concur.
APPENDIX TO OPINION
(G.R. Nos. L-36142, 36164, 36165, 36236 & 36283)
PROVISIONS OF STATE CONSTITUTIONS SPECIFICALLY
PROVIDING FOR AMENDMENT AND REVISION@
1.Alaska (1959) Art. XIII.Amendment and Revision.
Sec. 1.Amendments.Amendments to this constitution may be proposed by a
two-thirds vote of each house of the legislature. The secretary of state shall
prepare a ballot title and proposition summarizing each proposed
amendment, and shall place them on the ballot for the next statewide
election. If a majority of the votes cast on the proposition favor the
amendment, it shall be adopted. Unless otherwise provided in the
amendment, it becomes effective thirty days after the certification of the
election returns by the secretary of state.
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Sec. 2.Convention.The legislature may call constitutional conventions at any

time.
Sec. 3.Call by referendum.If during any ten-year period a constitutional
convention has not been held, the secretary of state shall place on the ballot
for the next general election the question: "Shall there be a Constitutional
Convention?" If a majority of the votes cast on the question are in the
negative, the question need not be placed on the ballot until the end of the
next ten-year period. If a majority of the votes cast on the question are in the
affirmative, delegates to the convention shall be chosen at the next regular
statewide election, unless the legislature provides for the election of the
delegates at a special election. The secretary of state shall issue the call for
the convention. Unless other provisions have been made by law, the call
shall conform as nearly as possible to the act calling the Alaska
Constitutional Convention of 1955, including, but not limited to, number of
members, districts, election and certification of delegates, and submission
and ratification of revisions and ordinances . . .
Sec. 4.Powers.Constitutional conventions shall have plenary power to
amend or revise the constitution, subject only to ratification by the people. No
call for a constitutional convention shall limit these powers of the convention.
2.California (1879) Art. XVIII.Amending and Revising the Constitution.
Sec. 1.Constitutional amendments.Any amendment or amendments to this
Constitution may be proposed in the Senate or Assembly, and if two-thirds of
all the members elected to each of the two houses shall vote in favor thereof,
such proposed amendment or amendments shall be entered in their
Journals, with the yeas and nays taken thereon; and it shall be the duty of
the Legislature to submit such proposed amendment or amendments to the
people in such manner, and at such time, and after such publication as may
be deemed expedient. Should more amendments than one be submitted at
the same election they shall be so prepared and distinguished, by numbers
or otherwise, that each can be voted on separately. If the people shall
approve and ratify such amendment or amendments, or any of them, by a
majority of the qualified electors voting thereon such amendment or
amendments shall become a part of this constitution.
Sec. 2.Constitutional convention.Whenever two-thirds of the members
elected to each branch of the Legislature shall deem it necessary to revise
this Constitution, they shall recommend to the electors to vote at the next
general election for or against a Convention for that purpose, and if a
majority of the electors voting at such election on the proposition for a
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Convention shall vote in favor thereof, the Legislature shall, at its next
session, provide by law for calling the same. The Convention shall consist of
a number of delegates not to exceed that of both branches of the
Legislature, who shall be chosen in the same manner, and have the same
qualifications, as Members of the Legislature. The delegates so elected shall
meet within three months after their election at such place as the Legislature
may direct. At a special election to be provided for by law, the Constitution
that may be agreed upon by such Convention shall be submitted to the
people for their ratification or rejection, in such manner as the Convention
may determine. The returns of such election shall, in such manner as the
Convention shall direct, be certified to the Executive of the State, who shall
call to his assistance the Controller, Treasurer, and Secretary of State, and
compare the returns so certified to him; and it shall be the duty of the
Executive to declare, by his proclamation, such Constitution, as may have
been ratified by a majority of all the votes cast at such special election, to be
the Constitution of the State of California.
2.Colorado (1876) Art. XIX.Amendments.
Sec. 1.Constitutional convention; how called.The general assembly may at
any time by a vote of two-thirds of the members elected to each house,
recommend to the electors of the state, to vote at the next general election
for or against a convention to revise, alter and amend this constitution; and if
a majority of those voting on the question shall declare in favor of such
convention, the general assembly shall, at the next session, provide for the
calling thereof. The number of members of the convention shall be twice that
of the senate and they shall be elected in the same manner, at the same
places, and in the same districts. The general assembly shall, in the act
calling the convention, designate the day, hour and place of its meeting; fix
the pay of its members and officers, and provide for the payment of the
same, together with the necessary expenses of the convention. Before
proceeding, the members shall take an oath to support the constitution of the
United States, and of the state of Colorado, and to faithfully discharge their
duties as members of the convention. The qualifications of members shall be
the same as of members of the senate; and vacancies occurring shall be
filled in the manner provided for filling vacancies in the general assembly.
Said convention shall meet within three months after such election and
prepare such revisions, alterations or amendments to the constitution as may
be deemed necessary; which shall be submitted to the electors for their
ratification or rejection at an election appointed by the convention for that
purpose, not less than two nor more than six months after adjournment
thereof; and unless so submitted and approved by a majority of the electors
voting at the election, no such revision, alteration or amendment shall take
effect.
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Sec. 2.Amendments to constitution; how adopted.Any amendment or

amendments to this constitution may be proposed in either house of the
general assembly, and if the same shall be voted for by two-thirds of all the
members elected to each house, such proposed amendment or
amendments, together with the ayes and noes of each house hereon, shall
be entered in full on their respective journals; the proposed amendment or
amendments shall be published with the laws of that session of the general
assembly, and the secretary of state shall also cause the said amendment or
amendments to be published in full in not more than one newspaper of
general circulation in each county, for four successive weeks previous to the
next general election for members of the general assembly; and at said
election the said amendment or amendments shall be submitted to the
qualified electors of the state for their approval or rejection, and such as are
approved by a majority of those voting thereon shall become part of this
constitution.
Provided, that if more than one amendment be submitted at any general
election, each of said amendments shall be voted upon separately and votes
thereon cast shall be separately counted the same as though but one
amendment was submitted. But the general assembly shall have no power to
propose amendments to more than six articles of this constitution at the
same session.
4.Delaware (1897) Art. XVI.Amendments and Conventions.
Sec. 1.Proposal of constitutional amendments in general assembly;
procedure.Any amendment or amendments to this Constitution may be
proposed in the Senate or House of Representatives; and if the same shall
be agreed to by two-thirds of all the members elected to each House, such
proposed amendment or amendments shall be entered on their journals, with
the yeas and nays taken thereon, and the Secretary of State shall cause
such proposed amendment or amendments to be published three months
before the next general election in at least three newspapers in each County
in which such newspapers shall be published; and if in the General
Assembly next after the said election such proposed amendment or
amendments shall upon yea and nay vote be agreed to by two-thirds of all
the members elected to each House, the same shall thereupon become part
of the Constitution.
Sec. 2.Constitutional conventions; procedure; compensation of delegates;
quorum; powers and duties; vacancies.The General Assembly by a two
thirds vote of all the members elected to each House may from time to time
provide for the submission to the qualified electors of the State at the general
election next thereafter the question, "Shall there be a Convention to revise
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the Constitution and amend the same?; and upon such submission, if a
majority of those voting on said question shall decide in favor of a
Convention for such purpose, the General Assembly at its next session shall
provide for the election of delegates to such convention at the next general
election. Such Convention shall be composed of forty-one delegates, one of
whom shall be chosen from each Representative District by the qualified
electors thereof, and two of whom shall be chosen from New Castle County,
two from Kent County and two from Sussex County by the qualified electors
thereof respectively. The delegates so chosen shall convene at the Capital of
the State on the first Tuesday in September next after their election. Every
delegate shall receive for his services such compensation as shall be
provided by law. A majority of the Convention shall constitute a quorum for
the transaction of business. The Convention shall have power to appoint
such officers, employees and assistants 'as it may deem necessary, and fix
their compensation, and provide for the printing of its documents, journals,
debates and proceedings. The Convention shall determine the rules of its
proceedings, and be the judge of the elections, returns and qualifications of
its members. Whenever there shall be a vacancy in the office of delegate
from any district or county by reason of failure to elect, ineligibility, death,
resignation or otherwise, a writ of election to fill such vacancy shall be issued
by the Governor, and such vacancy shall be filled by the qualified electors of
such district or county.
5.Florida (1887) Art. XVII.Amendments.
Sec. 1.Method of amending constitution.Either branch of the Legislature, at
any regular session, or at any special or extra- ordinary session thereof
called for such purpose either in the governor's original call or any
amendment thereof, may propose the revision or amendment of any portion
or portions of this Constitution. Any such revision or amendment may relate
to one subject or any number of subjects, but no amendment shall consist of
more than one revised article of the Constitution.
If the proposed revision or amendment is agreed to by three- fifths of the
members elected to each house, it shall be entered upon their respective
journals with the yeas and nays and published in one newspaper in each
county where a newspaper is published for two times, one publication to be
made not earlier than ten weeks and the other not later than six weeks,
immediately preceding the election at which the same is to be voted upon,
and thereupon submitted to the electors of the State for approval or rejection
at the next general election, provided, however, that such revision or
amendment may be submitted for approval or rejection in a special election
under the conditions described in and in the manner provided by Section 3 of
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Article XVII of this Constitution. If a majority of the electors voting upon the
amendment adopt such amendment the same shall become a part of this
Constitution.
Sec. 2.Method of revising constitution.If at any time the Legislature, by a vote
of two-thirds of all the members of both Houses, shall determine that a
revision of this Constitution is necessary, such determination shall be
entered upon their respective Journals, with yea's and nay's thereon. Notice
of said action shall be published weekly in one newspaper in every county in
which a newspaper is published, for three months preceding the next general
election of Representatives, and in those counties where no newspaper is
published, notice shall be given by posting at the several polling precincts in
such counties for six weeks next preceding said election. The electors at
said election may vote for or against the revision in question. If a majority of
the electors so voting be in favor of revision, the Legislature chosen at such
election shall provide by law for a Convention to revise the Constitution, said
Convention to be held within six months after the passage of such law. The
Convention shall consist of a number equal to the membership of the House
of Representatives, and shall be apportioned among the several counties in
the same manner as members of said House.
6.Idaho (1890) Art. XX.Amendments.
Sec. 1:How amendments may be proposed.Any amendment or amendments
to this Constitution may be proposed in either branch of the legislature, and if
the same shall be agreed to by two-thirds of all the members of each of the
two houses, voting separately, such proposed amendment or amendments
shall, with the yeas and nays thereon, be entered on their journals, and it
shall be the duty of the legislature to submit such amendment or
amendments to the electors of the state at the next general election, and
cause the same to be published without delay for at least six consecutive
weeks, prior to said election, in not less that one newspaper of general
circulation published in each county; and if a majority of the electors shall
ratify the same, such amendment or amendments shall become a part of this
Constitution.
Sec. 3.Revision or amendment by convention.Whenever two-thirds of the
members elected to each branch of the legislature shall deem it necessary to
call a convention to revise or amend this Constitution, they shall recommend
to the electors to vote at the next general election, for or against a
convention, and if a majority of all the electors voting at said election shall
have voted for a convention, the legislature shall at the next session provide
by law for calling the same; and such convention shall consist of a number of
members, not less than double the number of the most numerous branch of
the legislature.
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7.Iowa (1857) Art. X.Amendments to the Constitution.

Sec 3.Convention.At the general election to be held in the year one thousand
eight hundred and seventy, and in each tenth year thereafter, and also at
such times as the General Assembly may, by law, provide, the question,
"Shall there be a Convention to revise the Constitution, and amend the
same?" shall be decided by the electors qualified to vote for members of the
General Assembly; and in case a majority of the electors so qualified, voting
at such election, for and against such proposition, shall decide in favor of a
Convention for such purpose, the General Assembly, at its next session,
shall provide by law for the election of delegates to such Convention.
8.Michigan (1909) Art. XVII.Amendment and Revision.
Sec. 1.Amendment to constitution; proposal by legislature; submission to
electors.Any amendment or amendments to this constitution may be
proposed in the senate or house of representatives. If the same shall be
agreed to by 2/3 of the members elected to each house, such amendment or
amendments, shall be entered on the journals, respectively, with the yeas
and nays taken thereon; and the same shall be submitted to the electors at
the next spring or autumn election thereafter, as the legislature shall direct
and if a majority of the electors qualified to vote for members of the
legislature voting thereon shall ratify and approve such amendment or
amendments, the same shall become part of the constitution.
Sec. 4.General revision: convention; procedure.At the Biennial Spring
Election to be held in the year 1961, in each sixteenth year thereafter and at
such times as may be provided by laws, the question of a General Revision
of the Constitution shall be submitted to the Electors qualified to vote for
members of the Legislature. In case a majority of the Electors voting on the
question shall decide in favor of a Convention for such purpose, at an
Election to be held not later than four months after the Proposal shall have
been certified as approved, the Electors of each House of Representatives
District as then organized shall Elect One Delegate for each State
Representative to which the District is entitled and the Electors of each
Senatorial District as then organized shall Elect One Delegate for each State
Senator to which the District is entitled. The Delegates so elected shall
convene at the Capital City on the First Tuesday in October next succeeding
such election, and shall continue their sessions until the business of the
convention shall be completed. A majority of the delegates elected shall
constitute a quorum for the transaction of business . . . No proposed
constitution or amendment adopted by such convention shall be submitted to
the electors for approval as hereinafter provided unless by the assent of a
majority of all the delegates elected to the convention, the yeas and nays
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adopted by such convention shall be submitted to the qualified electors in the

manner provided by such convention on the first Monday in April following
the final adjournment of the convention; but, in case an interval of at least 90
days shall not intervene between such final adjournment and the date of
such election, 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 voting thereon such constitution or amendments shall take
effect on the first day of January following the approval thereof.
9.Minnesota (1867) Art. XIV.Amendments to the Constitution.
Sec. 1.Amendments to constitution; majority vote of electors voting makes
amendment valid.Whenever a majority of both houses of the legislature shall
deem it necessary to alter or amend this Constitution, they may propose
such alterations or amendments, which proposed amendments shall be
published with the laws which have been passed at the same session, and
said amendments shall be submitted to the people for their approval or
rejection at any general election, and if it shall appear, in a manner to be
provided by law, that a majority of all the electors voting at said election shall
have voted for and ratified such alterations or amendments, the same shall
be valid to all intents and purposes as a part of this Constitution. If two or
more alterations or amendments shall be submitted at the same time, it shall
be so regulated that the voters shall vote for or against each separately.
Sec. 2.Revision of constitution.Whenever two-thirds of the members elected
to each branch of the legislature shall think it necessary to call a convention
to revise this Constitution, they shall recommend to the electors to vote at
the next general election for members of the legislature, for or against a
convention; and if a majority of all the electors voting at said election shall
have voted for a convention, the legislature shall, at their next session,
provide by law for calling the same. The convention shall consist of as many
members as the House of Representatives, who shall be chosen in the same
manner, and shall meet within three months after their election for the
purpose aforesaid.
Sec. 3.Submission to people of revised constitution drafted at
convention.Any convention called to revise this constitution shall submit any
revision thereof by said convention to the people of the State of Minnesota
for their approval or rejection at the next general election held not less than
90 days after the adoption of such revision, and, if it shall appear in the
manner provided by law that three-fifths of all the electors voting on the
question shall have voted for and ratified such revision, the same shall
constitute a new constitution of the State of Minnesota. Without such
submission and ratification, said revision shall be of no force or effect
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Section 9 of Article IV of the Constitution shall not apply to election to the

convention.
10.Nevada (1864) Art. 16.Amendments.
Sec. 1.Constitutional amendments; procedure.Any amendment or
amendments to this Constitution may be proposed in the Senate or
Assembly; and if the same shall be agreed to by a Majority of all the
members elected to each of the two houses, such proposed amendment or
amendments shall be entered on their respective journals, with the Yeas and
Nays taken thereon, and referred to the Legislature then next to be chosen,
and shall be published for three months next preceding the time of making
such choice. And if in the Legislature next chosen as aforesaid, such
proposed amendment or amendments shall be agreed to by a majority of all
the members elected to each house, then it shall be the duty of the
Legislature to submit such proposed amendment or amendments to the
people, in such manner and at such time as the Legislature shall prescribe;
and if the people shall approve and ratify such amendment or amendments
by a majority of the electors qualified to vote for members of the Legislature
voting thereon, such amendment or amendments shall become a part of the
Constitution.
Sec. 2.Convention for revision of constitution; procedure.If at any time the
Legislature by a vote of two-thirds of the Members elected to each house,
shall determine that it is necessary to cause a revision of this entire
Constitution they shall recommend to the electors at the next election for
Members of the Legislature, to vote for or against a convention, and if it shall
appear that a majority of the electors voting at such election, shall have
voted in favor of calling a Convention, the Legislature shall, at its next
session provide by law for calling a Convention to be holden within six
months after the passage of such law, and such Convention shall consist of
a number of Members not less than that of both branches of the Legislature.
In determining what is a majority of the electors voting at such election,
reference shall be had to the highest number of votes cast at such election
for the 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, of the several towns and places in this state, in
warning the first annual meetings for the choice of senators, after the
expiration of seven years from the adoption of this constitution, as amended,
to insert expressly in the warrant this purpose, among the others for the
meeting, to wit, to take the sense of the qualified voters on the subject of a
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revision of the constitution; and, the meeting being warned accordingly, and
not otherwise, the moderator shall take the sense of the qualified voters
present as to the necessity of a revision; and a return of the number of votes
for and against such necessity, shall be made by the clerk sealed up, and
directed to the general court at their then next session; and if, it shall appear
to the general court by such return, that the sense of the people of the state
has 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 be the duty of the general court to call a
convention for that purpose, otherwise the general court shall direct the
sense of the people to be taken, and then proceed in the manner before
mentioned. The delegates to be chosen in the same manner, and
proportioned, as the representatives to the general court; provided that no
alterations shall be made in this constitution, before the same shall be laid
before the towns and unincorporated places, and approved by two thirds of
the qualified voters present and voting on the subject.
12.Oklahoma (1907) Art. XXIV.Constitutional Amendments.
Sec. 1.Amendments proposed by legislature; submission to vote.Any
amendment or amendments to this Constitution may he proposed in either
branch of the Legislature, and if the same shall be agreed to by a majority of
all the members elected to each of the two houses, such proposed
amendment or amendments shall, with the yeas and nays thereon, he
entered in their journals and referred by the Secretary of State to the people
for their approval or rejection, at the next regular general election, except
when the Legislature, by a two-thirds vote of each house, shall order a
special election for that purpose. If a majority of all the electors voting at
such election shall vote in favor of any amendment thereto, it shall thereby
become a part of this Constitution.
If two or more amendments are proposed they shall be submitted in such
manner that electors may vote for or against them separately.
No proposal for the amendment or alteration of this Constitution which is
submitted to the voters shall embrace more than one general subject and the
voters shall vote separately for or against each proposal submitted; provided,
however, that in the submission of proposals for the amendment of this
Constitution by articles, which embrace one general subject, each proposed
article shall be deemed a single proposals or proposition.
Sec. 2.Constitutional convention to propose amendments or new
constitution.No convention shall be called by the Legislature to propose
alterations, revisions, or amendments to this Constitution, or to propose a
new Constitution, unless the law providing for such convention shall first be
approved by the people on a referendum vote at a regular or special
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election, and any amendments, alterations, revisions, or new Constitution,

proposed by such convention, shall be submitted to the electors of the State
at a general or special election and be approved by a majority of the electors
voting thereon, before the same shall become effective Provided, That the
question of such proposed convention shall be submitted to the people at
least once in every twenty years.
13.Oregon (1859) Art. XVII.Amendments and Revisions.
Sec. 1.Method of amending constitution.Any amendment or amendments to
this Constitution may be proposed in either branch of the legislative
assembly, and if the same shall be agreed to by a majority of all the
members elected to each of the two houses, such proposed amendment or
amendments shall, with the yeas and nays thereon, be entered in their
journals and referred by the secretary of state to the people for their approval
or rejection, at the next regular general election, except when the legislative
assembly shall order a special election for that purpose. If a majority of the
electors voting on any such amendment shall vote in favor thereof, it shall
thereby become a part of this Constitution. The votes for and against such
amendment, or amendments, severally, whether proposed by the legislative
assembly or by initiative petition, shall be canvassed by the secretary of
state in the presence of the governor, and if it shall appear to the governor
that the majority of the votes cast at said election on said amendment, or
amendments, severally, are cast in favor thereof, it shall be his duty forthwith
after such canvass, by his proclamation, to declare the said amendment, or
amendments, severally, having received said majority of votes to have been
adopted by the people of Oregon as part of the Constitution thereof, and the
same shall be in effect as a part of the Constitution from the date of such
proclamation. When two or more amendments shall be submitted in the
manner aforesaid to the voters of this state at the same election, they shall
be so submitted that each amendment shall be voted on separately. No
convention shall be called to amend or propose amendments to this
Constitution, or to propose a new Constitution, unless the law providing for
such convention shall first be approved by the people on a referendum vote
at a regular general election. This article shall not be construed to impair the
right of the people to amend this Constitution by vote upon an initiative
petition therefor.
Sec. 2.Method of revising constitution.(1) In addition to the power to amend
this Constitution granted by section 1, Article IV, and section 1 of this Article,
a revision of all or part of this Constitution may be proposed in either house
of the Legislative Assembly and, if the proposed revision is agreed to by at
least two- thirds of all the members of each house, the proposed revision
shall, with the yeas and nays thereon, be entered in their journals and
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referred by the Secretary of State to the people for their approval or

rejection, notwithstanding section 1, Article IV of this Constitution, at the next
regular state-wide primary election, except when the Legislative Assembly
orders a special election for that purpose. A proposed revision may deal with
more than one subject and shall be voted upon as one question. The votes
for and against the proposed revision shall be canvassed by the Secretary of
State in the presence of the Governor and, if it appears to the Governor that
the majority of the votes cast in the election on the proposed revision are in
favor of the proposed revision, he shall, promptly following the canvass,
declare, by his proclamation, that the proposed revision has received a
majority of votes and has been adopted by the people as the Constitution of
the State of Oregon or as a part of the Constitution of the State of Oregon,
as the case may be. The revision shall be in effect as the Constitution or as a
part of this Constitution from the date of such proclamation.
14.Utah (1896) Art. 23.Amendments.
Sec. 1.Amendments; method of proposal and approval.Any amendment or
amendments to this Constitution may be proposed in either house of the
Legislature, and if two-thirds of all the members elected to each of the two
houses, shall vote in favor thereof, such proposed amendment or
amendments shall be entered on their respective journals with the yeas and
nays taken thereon; and the Legislature shall cause the same to be
published in at least one newspaper in every county of the State, where a
newspaper is published, for two months immediately preceding the next
general election, at which time the said amendment or amendments shall be
submitted to the electors of the State, for their approval or rejection, and if a
majority of the electors voting thereon shall approve the same, such
amendment or amendments shall become part of this Constitution. If two or
more amendments are proposed, they shall be so submitted as to enable the
electors to vote on each of them separately.
Sec. 2.Revision of the constitution by convention.Whenever two- thirds of the
members, elected to each branch of the Legislature, shall deem it necessary
to call a convention to revise or amend this Constitution, they shall
recommend to the electors to vote at the next general election, for or against
a convention, and, if a majority of all the electors, voting at such election,
shall vote for a convention, The Legislature, at its next session, shall provide
by law for calling the same. The convention shall consist of not less than the
number of members in both branches of the Legislature.
15.Wyoming (1890) Art. XX.Amendments.
Sec. 1.Procedure for amendments.Any amendment or amendments to this
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constitution may be proposed in either branch of the legislature, and, if the

same shall be agreed to by two-thirds of all the members of each of the two
houses, voting separately, such proposed amendment or amendments shall,
with the yeas and nays thereon, be entered on their journals, and it shall be
the duty of the legislature to submit such amendment or amendments to the
electors of the state at the next general election, and cause the same to be
published without delay for at least twelve (12) consecutive weeks, prior to
said election, in at least one newspaper of general circulation, published in
each county, and if a majority of the electors shall ratify the same, such
amendment or amendments shall become a part of this constitution.
Sec. 2.How voted for.If two or more amendments are proposed, they shall be
submitted in such manner that the electors shall vote for or against each of
them separately.
Sec. 3.Constitutional convention; provision for.Whenever two- thirds of the
members elected to each branch of the legislature shall deem it necessary to
call a convention to revise or amend this constitution, they shall recommend
to the electors to vote at the next general election for or against a
convention, and if a majority of all the electors voting at such election shall
have voted for a convention, the legislature shall at the next session provide
by law for calling the same; and such convention shall consist of a number of
members, not less than double that of the most numerous branch of the
legislature.
Sec. 4.New constitution.Any constitution adopted by such convention shall
have no validity until it has been submitted to and adopted by the people.

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.
8.Originally, Gerardo Roxas, Ambrosio Padilla and Salvador H. Laurel. Now,
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after the withdrawal of the latter, 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; McAdams v. 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, L20741, Jan. 31, 1964; Siguiente v. Secretary of Justice, 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;
Miller v. Mardo, L-15138, July 31, 1961; Cu Bu Liong v. Estrella, et al., L14212, 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 Don Pedro, 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 and
Communications, L-10405, Dec. 29, 1960; Corminas, Jr. v. Labor
Standards Commission, L-14837, June 30, 1961; City of Bagiuo v.
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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 and L-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.; L33973, Luzvimindo David v. Gen. Eduardo Garcia, 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.
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
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the uniformity of authorities on 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 of a foreign power, twenty-one years of age or
over, who shall have been a resident of the Philippines for one year and
of the municipality in which he shall offer to vote for six months next
preceding the day of voting is entitled to vote in all elections if comprised
within either of the following three classes:
"(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 taxation purposes for a period of not less than one year
prior to the date of the election, or who annually pay thirty 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 been sentenced by final judgment to suffer not less than
eighteen months of imprisonment, such disability not 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.
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"(e)Electors registered under subsection (c) of the next preceding section who,
after failing to make a sworn statement to the satisfaction of the board of
inspectors at any of its two meeting for registration and revision, 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 be real 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 assembly members 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. Voting procedures may be made either in writing as in
regular elections, and/or declaration by the voters to the board of election
tellers. The board of election tellers shall be the same board envisioned
by section 8, paragraph 2 of this Act, in case of vacancies in this body,
the barrio council may fill the same."

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 constitution enumerates and fixes the qualifications of those
who may exercise the right of suffrage, the legislature cannot take from
nor add to said qualifications unless the power to do so is conferred upon
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, that the constitutional
qualifications for voters apply equally to voters in elections to public office
and to voters in a plebiscite.
Similarly, the Revised Election Code provides in its section 2 that all elections of
public officers by the people and all votings in connection with plebiscites
shall be conducted in conformity with the provisions 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 otherwise disqualified by law, twenty-one years of age or
over, able to read and write, who shall have resided in the Philippines for
one year and in the city, municipality or municipal district wherein he
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proposes to 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 one year, such disability not having been
removed by plenary pardon: Provided, however, That any person
qualified to vote under this paragraph shall automatically reacquire the
right to vote upon expiration of ten years after service of sentence unless
during such period, he shall have been sentenced 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 his allegiance 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, 39 Phil. 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.
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.
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59.Art. X, section 1 of the 1935 Constitution.

60.Ten (10) years.
61.Art. X, section 2 of the 1935 Constitution.
62.Ibid.
63.Art. X, section 3 of the 1935 Constitution.
64."SEC. 5.Organization of the Commission on Elections. The Commission
shall adopt its own rules of procedure. Two members of the Commission
shall constitute a quorum. The concurrence of two members 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 may be necessary for the efficient
performance of its functions and duties, all of whom shall be appointed
by 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 the administrative business of the Commission, shall
have the power to administer oaths in connection with all matters
involving the business of the Commission, and shall perform such other
duties as may be required of him by the Commission.
"SEC. 6.Power of the Commission to Investigate and to Hear Controversy and
Issue Subpoena. The Commission or any of the members thereof
shall, in compliance with the requirement of due process, have the power
to summon the parties to a controversy pending before it, issue
subpoenae and subpoenae duces tecum and otherwise take testimony in
any investigation or hearing pending before it, and delegate such power
to any officer of the Commission who shall be a member of the Philippine
Bar. In case of failure of a witness to attend, the Commission, upon proof
of service of the subpoenae to said witness, may issue a warrant to
arrest the witness and bring him before the Commission or officer before
whom his attendance is required. The Commission shall have the power
to punish contempts provided for in the Rules of Court under the same
controversy submitted to the Commission shall after compliance with the
requirements of due process be heard and decided 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 enforcement agency and/or instrumentality of the
government to execute under its direct and immediate supervision any of
its final decisions, orders, instructions or rulings.
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"Any decision, order or ruling of the Commission on election controversies may

be reviewed by the Supreme Court by writ of certiorari in accordance with
the Rules of Court or such applicable laws as may be enacted.
"Any violation of any final executory decision, order or ruling of the Commission
shall constitute contempt thereof."
65.64 S.W.2d. 168.
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 of National 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 for themselves questions or
issues, both local and national, affecting their day to day lives and their
future;
"WHEREAS, the barangays (citizens assemblies) would like themselves to be
the vehicle for expressing the views of the people on important national
issues;
"WHEREAS, such barangays (citizens assemblies) desire that they be given
legal status and due recognition as constituting the genuine, legitimate
and valid expression of the popular will; and
"WHEREAS, the people would like the citizens assemblies to conduct
immediately a referendum on certain specified questions such as the
ratification of the new Constitution, continuance of martial law, the
convening of Congress on January 22, 1973, and the elections in
November 1973 pursuant to the 1935 Constitution.
"NOW,

THEREFORE, I,
Philippines, by virtue
Commander-in-Chief
declare as part of the

FERDINAND E. MARCOS, President of the

of the powers vested in me by the Constitution as
of all Armed Forces of the Philippines, do hereby
law of the land the following:

"1.The present barangays (citizens assemblies) are created under Presidential

Decree No. 86 dated December 31, 1973, shall constitute the base for
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citizen participation in governmental affairs and their collective views

shall be considered in the formulation of national policies or programs
and, wherever practicable, shall be translated into concrete and specific
decision;
"2.Such barangays (citizens assemblies) shall consider vital national issues now
confronting the country, like the holding of the plebiscite on the new
Constitution, the continuation of martial rule, the convening of Congress
on January 22, 1973, and the holding of elections in November 1973,
and others in the future, which shall serve as guide or basis for action or
decision by the national government;
"3.The barangays (citizens assemblies) shall conduct between January 10 and
15, 1973, a referendum on important national issues, including those
specified in paragraph 2 hereof, and submit the results thereof to the
Department of Local Governments and Community Development
immediately thereafter, pursuant to the express will of the people as
reflected in the reports gathered from the many thousands of barangays
(citizens assemblies) throughout the country.
"4.This Decree shall take effect immediately.
"Done in the City of Manila, this 5th day of January, in the year of Our Lord,
nineteen hundred and seventy-three." (Italics ours.)
68.McKinney v. Barker, 180 Ky. 526, 203 S.W. 303, 304. Italics ours.
69.Art. VII, section 2, 1935 Constitution.
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, 88 N.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.

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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 published therein 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.
91.At p. 8, Idem.
*The undersigned (Justice Querube C. Makalintal) who had reserved his right to
do so, filed a separate dissenting opinion when the Court denied a
motion for reconsideration, and voted in favor of the validity 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 unsuccessfully as an amendment to the 9135 Constitution,
reducing the voting age from 21 to 18, but the submission of which to a
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plebiscite was declared invalid by this Court in Tolentino vs. COMELEC,

became a reality of an even more far-reaching import since fifteenyear olds were included in the Citizens 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; Eddie B.
Monteclaro vs. Comelec, et al., L-35941, January 22, 1973; Sedfrey A.
Ordoez, et al., vs. The National Treasurer of the Philippines, et al., L35942, 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, January
22, 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 one amendment which was to form part of the
Constitution still being prepared by it separately from the rest of the other
parts of such constitution still unfinished, and We held that a piece-meal
submission was improper. We had no occasion to express any view as to
how a whole new Constitution may be ratified.
*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 the University 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 on Elections, L-35929; Gerardo Roxas, etc., et al. v.
Commission on Elections, et al., L-35940; Eddie B. Monteclaro v. The
Commission on Elections, et al., L-35941; Sedfrey A. Ordoez, et al. v.
The National 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 on Elections, et al., L-35965; Ernesto Hidalgo v.
Commission on Elections, et al., L-35979.
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2.See Taada, 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.
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 the plebiscite 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-fourths of all the members of the Senate
and of the House of Representatives voting separately may propose
amendments to this Constitution or call a convention for that purpose.
Such amendments shall be valid as part of this Constitution when
approved by a majority of the votes cast at an election at which the
amendments are submitted to the people for their ratification." 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 technicians appointed 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); Taada v. Cuenco,
103 Phil. 1051 (1957): Vera v. Arca, L-25721, May 26, 1969, 28 SCRA
351.
8.Gonzales v. Commission on Elections, L-28196, Nov. 9, 1967, 21 SCRA 774.
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289

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 Law 355, 387 (1938).
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 United States (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 1938 1962, 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 US 165 (1952).
29.Mason, The Supreme Court from Taft to Warren, 154 (1967). The words of
Justice Frankfurter found in his 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,
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289

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.
41.Cf. Wesberry v. Sanders, 376 US 1, 11 L ed 2d 481, 84 S Ct. 526 (1964);
Wright v. Rockefeller, 376 US 52, 11 L ed 2d 512, 84 S Ct 603 (1964);
Reynolds v. Sims, 377 US 533, 12 L ed 2d 506, 84 S Ct 1362 (1964);
WMCA v. Lomenzo 377 US 633, 12 L ed 2d 568, 84 S Ct. 1418 (1964);
Maryland Committee v. Tauses, 377 US 656, 12 L ed 2d 595, 84 S Ct.
1442 (1964); Davis v. Mann, 377 US 678, 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 the first 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
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289

Meaning, 29 Fordham L. Rev. 553 (1961); Miller, A Note on the Criticism

of Supreme Court Decisions, 10 J. Pub. L. 139 (1961); Wright, The
Supreme 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; Miller and 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 Discrimination and 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. Taada 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, 25 NW 245 (1885);
State v. Davis, 20 Neb. 220, 19 Pac. 894 (1888); State v. Tooker, 15
Mont. 8, 37 Pac. 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, 109 Va. 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, 115 NE 29 (1916); In re Opinion of Justices,
226 Mars. 607, 115 NE 921 (1917); Scott v. Vouchan, 202 Mich. 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 Opinion of the Justices, 237 Mars.
589, 130 NE 202 (1921); Power v. Robertson, 130 Miss. 188, 93 So. 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); State v.
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
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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, 328 Pa. 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 NW 981 (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, 135 Mich.
556, 98 NW 262 (1904); West v. State, 50 Fla. 154, 39 So. 412 (1905);
State v. Wilmett, 78 Neb. 379, 110 NW 113 (1907); Farrell v. Port of
Columbia, 50 Or. 169, 93 P. 254 (1908); In re McConaughy, 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, 136 P. 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, 117 Ark. 465, 175 SW 40 (1915); Jones v. McDade, 200 Ala. 230,
75 So. 988 (1917); State v. Wetz, 40 N.D. 299, 168 NW 835 (1918); Ex
Parte Ming, 42 Nev. 472, 181 P. 319 (1919); Lee v. Price, 54 Utah, 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, 117 SE 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 of State 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. State Bldg. Commission v. Smith, 335 Mo. 840, 74
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SW 2d 27 (1934); Mayer v. Adams, 182 Ga. 524, 186 SE 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); Graham v. Jones, 198 La. 507, 3 So. 2d
761 (1941); In re Initiative Petition No. 224, 197 Okl. 432, 172 P. 2d 324
(1946); City of Jackson v. Nims, 316 Mich. 694, 26 NW 2d 569 (1947);
Keenan v. Price, 68 Idaho 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.
55.Article VII of the 1935 Constitution.
56.It is to be noted that under Commonwealth Act No. 607 (1940), subsequently
amended by Commonwealth Act No. 657 (1940), there was a statutory
creation of an independent Commission on 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 Three Hundred and fifty-seven, otherwise
known as the Election Code, and Commonwealth Act Numbered Six
Hundred and fifty-seven, entitled 'An Act to Reorganize the Commission
on Elections,' is so far as they are not inconsistent herewith, are hereby
made applicable to the election provided 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 hundred eighty, as amended, insofar as they are not
inconsistent herewith, are made applicable to the election provided 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, L28196, Nov. 9, 1967, 21 SCRA 774.
62.The 1935 Constitution provides. "The Philippines is a republican state.
Sovereignity resides in the people and 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).
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65.Corwin. The Higher Law Background of American Constitutional Law, in 1

Selected Essays on Constitutional 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 Hammond v. 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.
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 page 3, 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 the Comelec. 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 and reported 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,
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though beyond the issue as formulated in this decision, may, we trust,

also serve to answer the vehement plea that for the good of the Nation,
the President should retain his extraordinary powers as long as turmoil
and other ills directly 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.
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 olds retained 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
otherwise disqualified by law, who are (twenty one) EIGHTEEN years of
age or over and are able to read and write . . ."

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.
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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 and prohibited its submittal at the 1971
elections for lack of proper submission since it did not "provide the 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.
50.Idem, sec. 10, italics supplied. The same section further disqualifies persons
convicted by final judgment to suffer one year or more of imprisonment
"within two years after service" or who have violated their 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 supplemental rejoinder dated March 21, 1973 in L36165.
53.Respondents' rejoinder dated March 20, 1973 and sur-rejoinder dated March
29, 1973.
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54.Under Proclamation No. 1103 dated Jan. 17, 1973, it is recited that "fourteen
million nine hundred seventy six thousand five hundred sixty one
(14,976,561) members of all the Barangays voted for the adoption of the
proposed Constitution, as against seven hundred forty- three thousand
eight hundred sixty nine (743,869) who voted for its rejection; but a
majority of those who approved the new Constitution conditioned their
votes on the demand that the interim National Assembly provided 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 the same with favor, since the "constitutional
point (that the Comelec has exclusive charge of the conduct of elections
and plebiscites) seems to have been overlooked in the Assemblies."
57.Convention Minutes of Nov. 22, 1972 submitted as Annex A of petitionerdelegate Sedfrey A. Ordoez et al. in the plebiscite case L-35942, par.
12 of petition and admitted in par. 4 of answer of therein respondents
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 a changed, repaired and altered house, or do you
have a new house? Some of the material contained in the old house may
be used again, some of the rooms may be constructed the same, but this
does not alter the fact that you have altogether another or a new house.
We conclude that the instrument as contained in Ga. L. 1945, pp. 8 to 89,
inclusive, is not an amendment to the constitution of 1877; but on the
contrary it is a completely revised or new constitution." (Wheeler v. Board
of Trustees, 37 S.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 a corrected 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 of application, 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.
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4.Cf. State Constitutions of Alaska, California, Delaware, Florida, Michigan,

Minnesota, Nevada, New Hampshire, Oklahoma, Oregon, Utah and
Wyoming in Appendix to this opinion.
*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 not pursuant to any provision of the constitution
itself; and by revision, which implies action pursuant to some procedural
provision in the constitution. This distinction is concerned with the quare
and not with the quantum of change. It may be significant, however, that
the alleged alteration does or does not purport to affect the existence of
the court itself. In the nature of things, a revolutionary charge does not
admit of judicial power as such to determine the fact of its occurrence. If
the revolutionary constitution sets up a court differently constituted from
the pre-revolutionary court, neither tribunal is confronted with a
substantial problem, for neither can deny the act by which it was created
without denying the fact of its creation. Thus the Supreme Court in Luther
v. Borden (supra) uses language substantially parallel with what has
been indicated above as the logical explanation of the Duke of York's
case. For the court to give serious judicial consideration to such a
question would present 'the singular spectacle of a court sitting a a court
to declare that we are not a court.' (Brittle v. People, 2 Neb. 198, 214
[1873].) And even if the alleged new constitution purports to leave intact
the former court and to permit its work to go on without hiatus, the
decision which the judges must make is still an individual choice to be
made by them as a matter of practical politics. Two commissions are
being held out to them, and if they will act as a court they must assert
under which commission they are acting. To put the matter in another
way, it must be true that in the first case above of two constitutions
purporting to establish two different courts, the men who were judges
under the old regime and the men who are called to be judges under the
new have each to decide as individuals what they are to do; and it may
be that they choose at grave peril with the factional outcome still
uncertain. And, although it is not equally obvious, the situation is logically
identical where the same men are nominated to constitute the court
under both the old and the new constitution, at a time when the alleged
change is occurring if it is peaceably and against a placid popular
background. Men under such circumstances may write most
praiseworthily upon principles of statesmanship, upon sovereignty and its
nature and modes of action, and upon the bases of government, to justify
their choice between the two commissions. They can assert their choice
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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 the premises."
"Where the alleged change occurs not through revolutionary measures but
through what has been called revision, these logical difficulties disappear
in one aspect, but become far more embarrassing in another. Where the
alteration purports to be made along the lines of a procedural method laid
down in the old constitution, there is a standard which the court can apply
and, by so doing, it can perceive judicially whether or not the change has
followed the prescribed lines. If it has, there is no difficulty 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 its personnel. Then, although there would be a
question of law to be decided, it may be wondered who there is to decide
it. Suppose, however, the mode of change has failed in some way to
conform to a directory provision of the amending clause of the
constitution; is the court to declare the attempt at alteration
unsuccessful? It would seem as a matter of law that it must do so; and
yet what is the situation if the proponents of the change say, 'It is true
that this measure failed under the amending clause, but as a
revolutionary measure it was a success and we insist upon its
recognition.' Clearly the members of the court are now more badly than
ever entangled in the logical difficulties which attend a purported judicial
pronouncement upon the achievement or non-achievement of
revolutionary change. For the temptation will be great to treat the matter
as a legal question. The times are peaceful. The changes probably do no
affect the tenure of many offices of any branch of the government. The
popular inertia is likely to allow the court successfully to assume the
question to be one of law. The path of fallacy is not too strikingly
fallacious to the uncritical observer. It may lead to just results. The
judges' personal inclinations will be to show deference to the expression
of popular sentiment which has been given. And yet, if they declare the
change in force, they are truly making a personal declaration that they
believe the change to be the directly expressed will of the sovereign,
which will they assert to be law, but the fact of existence of which will
and this is the real decision is not ascertainable in the given case by
any legal means. It is submitted that this is true, 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
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of problems which the Duke of York's case and the American

constitutional amendment cases present, the court as a court is
precluded from passing upon the fact of change by a logical difficulty
which is not to be surmounted. It follows that there is no room for
considering whether the court ought graciously and deferentially to look
to the executive or legislative for a decision that a change has or has not
taken place. 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 which constitution they
will support and assert to represent, it may often be good judgment for
them to follow the lead of the men who as a practical matter are likely to
be looked to by the people as more representative of themselves and
conversely are likely to be more directly in touch with popular sentiment.
If, however, the judges hold too strong views of their own to be able to
take this course, they may follow their own leads at their own hazards.
No question of law is involved." (Political Questions, 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, adopted after 1935, is only to stress the fact that the
distinction between Amendment and Revision of Constitution, which
existed at the time of the adoption of the 1935 Constitution, has
continued up to the present.

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