Subject

: Constitutional Law I

Topic

: Justiciable vs. Political Question

Title

: Javellana vs. Executive Secretary

Citation

: G.R. No. L-36142, 50 SCRA 33, March 31, 1973

Facts:
On November 29, 1972, the 1971 Constitutional Convention approved its Proposed
Constitution of the Philippines - two months after the President issued Proclamation No.
1081 placing the entire country under Martial Law. The next day, the President issued
PD 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.
Various petitions were filed soon after to enjoin the proposed ratification on the grounds,
among others, that the said decree has no force and effect since the calling for
plebiscite is exclusively lodged in Congress by the Constitution. Before these cases,
known as the Plebiscite Cases, are decided by the Supreme Court, the President
issued Proclamation 1102 on January 15, 1973 stating that the 1973 Constitution was
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. The Plebiscite Cases were then dismissed since the issue has become moot
and academic.
Prior to the decision over the Plebiscite Cases, Josue Javellana filed a petition assailing
the validity of the Proclamation 1102, alleging that, among others, the President is
without authority to create the Citizens Assemblies, without power to proclaim the
ratification of the proposed Constitution, and that the election was not a free election,
hence null and void.

Several cases holding similar contentions were also filed by

various petitioners praying for the nullification of the Proclamation No. 1102 and any
other order, decree, proclamation bearing the same import and objective.
The respondents on their end filed a maintaining that the Court has no jurisdiction to act
on the petitions since the questions raised therein are political in character and that
there was substantial compliance with Article XV of the 1935 Constitution in the
ratification of the proposed Constitution.
Issues:

1. Whether or not the issue of the validity of Proclamation No. 1102 is a justiciable or
political question;
2. Whether or not the Constitution proposed by the 1971 Constitutional Convention has
been ratified validly (with substantial, if not strict, compliance) conformably to the
applicable constitutional and statutory provisions;
3. Whether or not the proposed Constitution has been acquiesced in (with or without
valid ratification) by the people;
4. Whether or not the petitioners are entitled to relief; and
5. Whether or not the aforementioned proposed Constitution is in force.
Ruling:
1. Yes, the validity of Proclamation No. 1902 poses a justiciable question. 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 1935 Constitution which states in Article XV that:
"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.
In the light of the above prescription of amending the Constitution and jurisprudence
in the Philippines and in the United States, wherein the 1935 Constitution is
patterned, the ratification of the revised Constitution drafted by the 1971
Constitutional Convention is non-political in nature and not only subject to judicial
inquiry, but, also, that it is the Court's bounden duty to decide such question.
2. No, the Constitution has not been validly ratified. The plebiscite is null and void
on the following grounds:
a. Art. V of the Constitution on suffrage expressly provides that Suffrage
may be exercised by male citizens of the Philippines not otherwise
disqualified by law, who are twenty-one years of age or over and are
able to read and write, and who shall have resided in the Philippines for
one year and in the municipality wherein they propose to vote for at least

six months preceding the election. The Fundamental Law does not
allow Congress or anybody else to vest in those lacking the qualifications
and having the disqualifications mentioned in the Constitution. However,
in the plebiscite held to ratify the proposed Constitution, it was 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 1935 Constitution and the present Election Code, and of whether or
not they are disqualified under the provisions of said Constitution and
Code, or those of Republic Act No. 3590, have participated and voted in
the Citizens' Assemblies.
b. The viva voce voting in the Citizens' Assemblies was and is null and void
ab initio. Art. XV envisages with the term "votes cast" choices made
on ballots not orally or by raising by the persons taking part in
plebiscites. This is but natural and logical, for, since the early years of the
American regime, we had adopted the Australian Ballot System, with its
major characteristics, namely, uniform official ballots prepared and
furnished by the Government and secrecy in the voting, with the
advantage of keeping records that permit judicial inquiry, when necessary,
into the accuracy of the election returns.
c. The Assemblies as it were held took place without the intervention of the
Commission on Elections (COMELEC) which was given by the
Constitution in Article X the exclusive charge of the enforcement and
administration of all laws relative to the conduct of elections. What is
more, they were held under the supervision of the very officers and
agencies of the Executive Department sought to be excluded therefrom by
Art. X of the 1935 Constitution. Worse still, said officers and agencies of
the 1935 Constitution would be favored thereby, owing to the practical
indefinite extension of their respective terms of office in consequence of
section 9 of the Transitory Provisions, found in Art. XVII of the proposed
Constitution, without any elections therefor.
3. The Court has not reached a majority vote on this issue. Four of its members
hold that the people have already accepted the 1973 Constitution. Two members
hold that there can be no free expression and there has even been no
expression, by the qualified people to vote all over the Philippines, of their
acceptance or repudiation of the proposed Constitution under Martial Law. Three

members express their lack of knowledge and/or competence to rule on the

question, stating that under Martial Law, they have no means of knowing, to the
point of judicial certainty, whether the people have accepted the Constitution.
4. Majority, or six of the members of the Court voted to dismiss the petition in their
view that the effectivity of the 1973 Constitution because of popular
acquiescence is a political question and therefore beyond the domain of judicial
review and competence of the Court.

5. Owing to their answers in the third issue on the acquiescence of the people to
the proposed Constitution, four members of the Court hold that it is in force by
virtue of the peoples acceptance thereof. Four other members did not vote on
the premise that they could not state with judicial certainty whether the people
have accepted or not accepted the Constitution. Two members of the Court voted
that the Constitution proposed by the 1971 Constitutional Convention is not in
force.
By virtue of the majority of six votes of the members of the Court, the petitions
are dismissed. This being the vote of the majority, there is no further judicial
obstacle to the new Constitution being considered in force and effect.