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IV. THE HISTORICAL BACKGROUND OF THE 1987 CONSTITUTION

The History of the 1987 Constitution began on April 11, 1899, the
date when the TREATY OF PARIS between the United States and Spain of
December 10, 1898 became effective upon the exchange of the instruments
of ratification of both countries. But the sources of the 1987
Constitution are:

1. THE TREATY OF PARIS

2. McKINLEY’S INSTRUCTION TO THE SECOND PHILIPPINE COMMISSION
3. THE SPOONER AMENDMENT
4. THE PHILIPPINE BILL OF 1902
5. JONES LAW OF 1916, OTHERWISE KNOWN AS THE PHILIPPINE AUTONOMY ACT
6. TYDINGS-MCDUFFIE LAW
7. THE 1935 CONSTITUTION
8. THE 1973 CONSTITUTION
9. THE 1986 FREEDOM CONSTITUTION

THE TREATY OF PARIS (December 10, 1898)

Under the Treaty of Paris, the Philippine was ceded by Spain to the
United States. Spain relinquished its sovereignty over the Philippine
Islands. Consequently, all laws that were political in nature were
automatically abrogated or fallen to the ground ipso facto. The Treaty
provided that the civil and political status of all inhabitants of the
Islands were to be determined by the U.S. Congress. The Treaty defined
the metes and bounds of the archipelago by longitude and latitude,
degrees and seconds. Under the Treaty, the Philippine was not given the
status of an incorporated territory as to make it a candidate for
statehood. And so, the U.S. Constitution did not apply to the
Philippines.

PRESIDENT McKINLEY’S INSTRUCTION (April 7, 1900)

President McKinley, legislating as commander-in-chief of the United

States Armed Forces (USAF), issued on April 7, 1900 his Letter of
Instruction (LOI) to the Second Philippine Commission under William H.
Taft. The Letter of Instruction was the first organic act of the
Philippines.

An ORGANIC ACT is a law that establishes the structure and

limitations of the government.

The Letter of Instruction provided that: a. the LEGISLATIVE POWER is

to be transferred from the Military Governor of the Philippine Islands
to the SECOND PHILIPPINE COMMISSION that was to be created on September
1, 1900 under the authority of the U.S. President as Commander-in-chief;
and b. EXECUTIVE POWER is to be exercised by the MILITARY GOVERNOR under
the authority of the U.S. President as Commander-in-chief.

The COURT is to be organized and established. The JUDICIARY was

subsequently established on June 11, 1901 with the Supreme Court, Court
of First Instance (now RTC), and Justice of the Peace Courts.

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However, the Letter of Instruction as an organic act lacked the

following: a. the RATIFICATION by the people; and b. the right of
AMENDMENT which was reserved solely to the U.S. President.

THE SPOONER AMENDMENT (March 2, 1901)

On March 2, 1901, the U.S. Congress approved the appropriations for

the U.S. ARMED FORCES, together with the AMENDMENT to the TREATY OF
PARIS and to the SUBSEQUENT ACTS of the U.S. President as Commander-in-
chief. The amendment was sponsored by Senator JOHN C. SPOONER of
Wisconsin. This amendment is significant on the following grounds: It
virtually ended the military rule in the Philippines; It provided that
the U.S. President would govern the Philippines, not by his authority as
commander-in-chief of the U.S. Armed Forces, but by authority of
Congress.

THE PHILIPPINE BILL OF 1902 (July 1, 1902)

The Philippine Bill of 1902, promulgated on July 1, 1902, ratified

the previous acts of the U.S. President with regards to the management
of the Philippine affairs.

The Bill: 1) provided for the establishment of the elective

Philippine Assembly upon: a) the restoration of peace throughout the
Philippines; b) the taking of a census, and; c) the lapse of two years
after the publication of the census.

It provided that: 1) the Philippine Assembly shall be composed of

Filipinos elected by the people and would serve as the Legislature’s
Lower House; 2) the Philippine Commission which shall be chaired by the
Civil Governor, shall serve as the upper house, shall retain the control
of legislation over non-Christian minorities.

Both Houses, namely, the Philippine Assembly and the Philippine

Commission shall exercise the Legislative Power.

It further provided that: 1) the Executive Power shall be vested in

the Civil Governor; 2) the Judicial Power shall be vested in the Supreme
Court, the Court of First Instance (CFI), and the Justice of the Peace
Corps. The decisions of the Philippine Supreme Court shall be reviewable
by the U.S. Supreme Court.

It provided for: 1) the sending of two Filipino resident

Commissioners to Washington to represent Philippine interests before the
U.S. Congress; 2) the conservation of the natural resources of the
Philippines for the Filipinos.

It extended to the Filipinos the Bill of Rights, except for: 1) the

right of trial by jury and; 2) the right to possess and carry firearms.

It defined for the first time who the citizens of the Philippines
were. Pursuant to the Philippine Bill of 1902, the citizens of the
Philippines were: “All the inhabitants of the Philippine Islands who
were subjects of Spain as of April 11, 1899, who continued to reside
therein, and all the children born subsequent thereto.”

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THE JONES LAW OF 1916 (August 29, 1916)

As early as March 1912, William Atkinson Jones, Virginia Democrat,

introduced the first of several Philippine Independence Bills in the
U.S. Congress which bore his name, but this early effort failed.
Finally, in 1916, both the House and Senate approved the Jones Law,
which President signed on August 29, 1916, and which became known as the
Philippine Autonomy Act.

The Jones Law of 1916 was virtually an American-made Constitution

providing for a complete form of semi-autonomous government in the
Philippines and defining government functions into EXECUTIVE,
LEGISLATIVE and JUDICIAL.

It provided that: 1) the Executive Power shall be vested in the

American Governor-General in the Philippines who shall be appointed by
the U.S. President with the consent of the U.S. Senate; 2) the
Legislative Power shall be vested in an elective bicameral legislature:
a) A Senate which shall consists of 22 elected Senators and 2 appointive
Senators to represent the non-Christians; and b) A House Representatives
which shall compose of 84 elected representatives and 9 appointed
representatives to represent the non-Christians.

It extended the Bill of Rights, defined Filipino citizenship and

provided for other safeguards and restrictions.

The new Legislature under the Jones law was inaugurated at Manila on
October 16, 1916. Manuel L. Quezon, who had just returned from the
United States after a brilliant work as resident Commissioner, was
chosen President of the Senate and Sergio Osmeña was elected as House
Speaker. The Nationalista Party swept the elections and dominated the
two Houses of the Philippine Legislature. On January 11, 1917, the first
Cabinet was organized by Governor-General Harrison, and a Council of
State was created on October 16, 1918.

By 1921, 96% of the Philippine Government had been staffed by

Filipinos.

However, notice has to be taken that under the Jones law, while the
Filipinos had all the Legislative Power, the Americans had all the
Executive Power and thus had also the control of the government.

Thus, in the BOARD OF CONTROL CASE involving the National Coal

Corporation the US Supreme Court ruled, despite the dissent of Justices
Holmes and Brandeis, that the President of the Senate and the Speaker of
the House could not vote the stocks of the National Coal Corporation
(NCC) and elect its directors because this was a political function.
Only the Governor-General could vote the government shares.

THE TYDINGS-McDUFFIE LAW OF 1934 (March 24, 1934)

The Tydings-McDuffie law was called the Philippine Independence Law,

authored by U.S. Senator Millard E. Tydings and U.S. Congressman John
McDuffie and approved by President Franklin D. Roosevelt on March 24,
1934.

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The Tydings-McDuffie Law: 1) provided for a transition period of ten

years during which there would be established a semi-autonomous
Commonwealth of the Philippines, to be followed on July 4, 1946 by a
fully Independent Republic; 2) enumerated the following steps leading to
the Philippine Independence: a) the acceptance of the Tydings-McDuffie
Law by the Philippine Legislature; b) the calling of Constitutional
Convention composed of Filipino delegates to draft the New Constitution
of the Philippines; c) the submission of the new charter to the American
President for his approval; d) ratification of the new charter by the
Filipino electorate; e) election of Commonwealth officials; f)
inauguration of the Commonwealth and; g) proclamation of Philippine
Independence and establishment of the Republic on July 4, 1946.

On May 1, 1934, the Philippine Legislature accepted the Tydings-

McDuffie Law, due largely to Quezon’s guiding spirit.

On July 30, 1934, an election was held to choose the delegates to

the Constitutional Convention. Claro M. Recto was elected President of
the Convention.

On February 8, 1935, the Constitutional Convention approved the

draft.

On March 23, 1935, the draft was certified by the President Franklin
D. Roosevelt as conforming to the Tydings-McDuffie Law.

On May 14, 1935, the draft Constitution was ratified by the people
in a plebiscite with the provisions on the qualification of the
President, Vice-President, and members of Congress taking effect right
upon ratification.

In September of 1935, the first election under the 1935 Constitution

was conducted with Manuel L. Quezon as President and Sergio Osmeña as
Vice President

On November 15, 1935, the Commonwealth was inaugurated and the 1935
Constitution took effect.

THE 1935 CONSTITUTION (November 15, 1935)

The 1935 Constitution was to serve as the charter of the

Commonwealth and the Republic upon withdrawal of U.S. Sovereignty.

The 1935 Constitution provided for a tripartite system of government

with: 1) the Executive Power lodged in the President who had a six-year
term; 2) the Legislative Power lodged in a Unicameral National
Assembly, and; 3) the Judicial Power lodged in a Supreme Court, Court of
First Instance and Justice of the Peace Courts.

In 1940, the 1935 Constitution was amended to provide for: 1) a

Bicameral Congress with a Senate and a House of Representatives; 2) a
term of four years for the President, but with re-election, and; 3) the
establishment of an independent constitutional body known as the
Commission On Election.

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On April 23, 1946, the election of the first officials of the

Philippine Republic was held with Manuel A. Roxas as President Elpidio
Quirino as Vice President.

On July 4, 1946, the Republic was inaugurated and the Philippines

became “politically independent of the United States.

Theoretically, to the extent that sovereignty is never granted to a

people but is earned by them as they assert their political will, then
it is a misnomer to say that July 4, 1946 was the day the U.S. granted
Independence to the Philippines. More appropriately, it was the day when
the U.S. withdrew its sovereignty over the Philippines, thus, giving the
Filipino people an occasion to assert their own Independence.

But not “economically.”

On April 30, 1946, one week after the election of the first
officials of the Philippine Republic, the U.S. Congress passed the Bell
Trade Act which: 1) would grant Prime Exports: a) entry to the U.S. free
of customs duties from 1946 to 1954; and b) gradual increase in duties
from 1954 to 1974; and 2) provided that the Philippines would grant U.S.
citizens and corporations: a) the same privileges; b) the right to
exploit the natural resources of the Philippines in parity with
Filipinos; c) the right to operate public utilities; 3) must be accepted
by the Philippine Congress, embodied in an executive agreement, and
reflected as an amendment in the Constitution.

The Senate had authorized President Roxas to enter into an executive

agreement with the U.S. government, which he did on July 3, 1946 in the
evening prior to the declaration of Philippine Independence.

The Senate approval of the Bell Trade Act gave rise to the case of
Vera vs. Avelino.

===== O =====

VERA vs. AVELINO

77 Phil. 192

Facts: The Senate then had eleven (11) Nacionalistas and thirteen
(13) Liberals. Three Nacionalista Senators-elect, namely, VERA, DIOKNO,
and ROMERO, known to be against the Bell trade Act were prevented by the
rest of the Senate from taking their oath on the grounds that their
election was marred with fraud. The Senators-elect went to the Supreme
Court and alleged that only the Electoral Tribunal had jurisdiction over
contests relating to their election, returns and disqualification.

Held: It must be noted that when a member of the House raises a

question as to the qualifications of another, an election contests does
not thereby ensue, because the former does not seek to be substituted
for the latter.

So that, if not all the powers regarding the election, returns, and
qualifications of members was withdrawn by the Constitution from the
Congress; and if, as admitted by petitioners themselves at the oral

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argument, the power to defer the oath-taking, until the contests is

adjudged, does not belong to the corresponding Electoral Tribunal, then
it must be held that the House or Senate still retains such authority,
for it has not been transferred to, nor assumed by, the Electoral
Tribunal.

===== O =====

Although the political motivation in the aforestated case was clear,

the Supreme Court had to dismiss the petition on the ground that under
the principle of separation of powers, it could not order a co-equal
branch to reinstate a member. So that, with the balance of power offset,
the Bell Trade Act was passed.

In 1947, the 1935 Constitution was again amended to include the

Parity Rights Agreement. This agreement gave rise to the case of Mabanag
vs. Lopez Vito.

===== O =====

MABANAG vs. LOPEZ VITO

78 Phil. 1

Facts: Under the amendatory provisions of the 1935 Constitution,

Congress, acting as a constituent body, needed three-fourth (3/4) votes
to propose an amendment to the Constitution.

But with the three (3) Senators, namely, Vera, Diokno, and Romero,
still suspended , only the twenty-one (21) remaining Senators were used
as the basis in computing the three-fourth (3/4) requirement.

Held: Political questions are not within the province of the

judiciary, except to the extent that power to deal with such questions
has been conferred upon the courts by express constitutional or
statutory provisions.

If ratification of a constitutional amendment is a political

question, a proposal that leads to ratification has to be a political
question. The two steps complement each other in a scheme intended to
achieve a single objective. It is to be noted that the amendatory
process as provided in Section 1 of Article XV of the Philippine
Constitution “consists of (only) two distinct parts: proposal and
ratification.” There is no logic in attaching political character to one
and withholding that character from the other. Proposal to amend the
Constitution is a highly political function performed by Congress in its
sovereign legislative capacity and committed to its charge by the
Constitution itself. The exercise of this power is even independent of
any intervention by the Chief Executive. If on grounds of expediency
scrupulous attention of the judiciary be needed to safeguard public
interest, there is less reason for judicial inquiry into the validity of
a proposal than into that of a ratification.

===== O =====

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So with the amendment proposed, it was subsequently ratified on

March 5, 1947.

In 1967, the 1935 Constitution was again to be amended. A Resolution

For Both Houses (RBH) was passed: 1) RBH No 1 has provided for the
increase of seats in the House of Representatives to make the
Constitutional Convention sufficiently representative; 2) RBH No. 2 has
provided for the Amendment of the Constitution by a Convention, and; 3)
RBH No. 3 has provided for allowing members of the Senate and the House
of Representatives to become delegates to the Constitutional Convention
without forfeiting their respective seats in Congress.

Subsequently, Congress passed a Bill, which, upon approval by the

President, on June 17, 1967, became Republic Act No. 4913, providing
that the amendments to the Constitution as proposed in the
aforementioned Resolutions No. 1 and 3 be submitted, for approval by the
people, at the general election which shall be held on November 14,
1967.

RBH No. 2 was approved. RBH Nos. 1 and 3 gave rise to the case of
Gonzales vs. COMELEC.

===== O =====

GONZALES vs. COMELEC

21 SCRA 774

Facts: Petitioner Gonzales assailed Republic Act No. 4913 which

provided that the amendments to the Constitution as proposed in the RBH
Nos. 1 and 3 be submitted, for approval by the people, at the general
elections which shall be held on November 14, 1967 on constitutional
ground.

Issue: Whether or not R.A. No. 4913 is unconstitutional.

Held: 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 a part of the inherent powers of the people – as the
repository of sovereignty in a republican 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
and Members of the Representatives act, not as Members of Congress, but
as competent 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 very
source of all powers of government, including the Constitution itself.
XXX we do not believe it has been satisfactorily shown that Congress has
exceeded the limits thereof in enacting Republic Act No. 4913.

===== O =====
On November 10, 1970, election of delegates to the Constitutional
Convention took place.

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On June 1, 1971, the Constitutional Convention met. Before it

finished its work, it came up with a Resolution calling for an Amendment
to the 1935 Constitution reducing the voting age from 21 to 18, so that
a wider base could vote in the ratification of the Constitution then
being drafted. A plebiscite was set by the COMELEC for November 8, 1971.
This plebiscite gave rise to the case of Tolentino vs. COMELEC.

===== O =====

TOLENTINO vs. COMELEC

41 SCRA 702

Facts: The Constitutional Convention of 1971 approved Organic

Resolution No. 1 reducing the voting age in Section 1 of Article V of
the Constitution of the Philippines from twenty one (21) to eighteen
(18) years.

The COMELEC had undertaken to hold a plebiscite on November 8, 1971.

Petitioner, Tolentino, assailed such organic resolution of the

Constitutional Convention and undertaking of the COMELEC for being
violative of the Constitution.

Issue: In the case at bar, the ultimate question is this: Is there

any limitation or condition in Section 1 of Article XV of the
Constitution which is violated by the act of the Constitutional
Convention of calling for a plebiscite on the sole amendment contained
in Organic Resolution No. 1?

Held: The Court holds that there is, and it is the condition and
limitation that all the amendments to be proposed by the same Convention
must be submitted to the people in a single election or plebiscite ...
Under Section 1 of Article XV of the Constitution, a proposal of
Amendment to the Constitution should be submitted to the people not
separately from but together with all other amendments to be proposed by
this present Convention.

Organic Resolution No. 1 of the Constitutional Convention of 1971

and the implementing acts and resolutions of the Convention, as well as
the Resolution of the respondent COMELEC complying therewith are hereby
DECLARED NULL AND VOID.

===== O =====

So with the final Resolution of the aforestated case the 1971

Constitutional Convention continued to perform its functions.

On September 21, 1972, the President (Ferdinand E. Marcos) 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.

On November 30, 1972, the President of the Philippines issued

Presidential Decree NO. 73 which provides for “submitting to the

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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.

The said scheduled plebiscite was questioned in the case of Planas

vs. COMELEC.

===== O =====

PLANAS vs. COMELEC

49 SCRA 105

Facts: Petitioner, Charito Planas, filed with the Court a case

against the COMELEC, 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:

1) 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.

2) That 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 under Martial Law, and;

3) That there being no sufficient time to inform the people of the

contents thereof.

Subsequently, the President issued two (2) Presidential Decrees,

namely:

1) Presidential Decree No. 86 which organized the so-called

CITIZENS ASSEMBLIES which shall be composed of all persons who
are:

2) Residents of the Barrio, District or Ward for at least six

months;

3) Fifteen Years of Age or over;

4) Citizens of the Philippines, and;

5) Registered in the List of Citizen Assembly Members kept by the

Barrio, District or Ward Secretary.

Furthermore, the Citizens Assemblies are to be consulted on certain

public questions.

Presidential Decree NO. 86-A which provided for the following

questions to be posed before the Citizens Assemblies or Barangays:

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1) DO YOU APPROVE THE NEW CONSTITUTION?

2) DO YOU STILL WANT A PLEBISCITE TO BE CALLED TO RATIFY THE NEW

CONSTITUTION?

Petitioner further asked that the Court shall issue a restraining

order enjoining the respondents from collecting, certifying, announcing
and reporting to the President the supposed Citizen’s 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 contained in P.D. No. 86-A, for such
were violative of Article XV of the Constitution.

Held: The petition became moot and academic by virtue of

Proclamation No. 1102 by the President 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.

THE 1973 CONSTITUTION

The 1973 Constitution was ratified on January 17, 1973 pursuant to

Proclamation No. 1102 issued by the President.

However, the validity of the ratification process undertaken by the

President himself was questioned in the case of Javellana vs. Executive
Secretary.

===== O =====

JAVELLANA vs. EXECUTIVE SECRETARY

50 SCRA 30

Facts: On January 20, 1973 or soon after Proclamation No. 1102 was
issued by the President, Javellana filed a petition questioning the
validity of said proclamation. His grounds are:

1. The President as Commander-in-chief of the Armed Forces of the

Philippines is without authority to create the Citizen’s
Assemblies;

2. That the Citizen Assemblies are without power to approve the

proposed Constitution;

3. That the President is without power to proclaim the ratification

of the proposed Constitution, and;

4. That the election held to ratify the proposed Constitution was

not a free election, hence null and void.
On January 23, 1973, several Members of the Senate of the
Philippines also filed a petition for Mandamus, alleging that the Senate
had been prevented from convening for its 8th Regular Session which was
scheduled to open on January 22, 1973. They claim that elements of the
military had taken over, and padlocked the legislative building and had
prevented them from entering the same. The said military units invoked

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the provisions of the alleged 1973 Constitution which was declared

ratified by Proclamation 1102 as the basis and authority for their
actions. The Senators therefore also question the validity of
Proclamation No. 1102 and the 1973 Constitution.

Issues: Again, as in the Plebiscite case (Planas vs. COMELEC), the

Supreme Court was sharply divided. At least, however, they agreed that
the following are the basic issues that should be resolved:

1. Is the issue of the validity of Proclamation 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 the petitioners entitled to relief? And

5. Is the aforementioned proposed Constitution in force?

Held: The voting, views, and opinions of the Justices of the Supreme
Court on the foregoing issues are summarized as follows:

1. ON THE FIRST ISSUE INVOLVING THE POLITICAL QUESTION DOCTRINE:

The following Members hold that the issue of the validity of

Proclamation No. 1102 is justiciable and non-political:

 Concepcion (CJ)
 Makalintal, J.
 Zaldivar, J
 Castro, J.
 Fernando, J.
 Teehankee, J.

J. Barredo: The Court may inquire into whether or not there has
actually been approval by the people and in the affirmative to
keep its hands off out of respect to the people’s will and in the
negative that it could then determine the factual and legal
angles as to whether the pertinent provisions of the 1935
Constitution were complied with.

The following Members hold that the issue is political:

 Makasiar, J.
 Antonio, J.
 Esguerra, J.

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2. ON THE SECOND QUESTION OF THE VALIDITY OF THE RATIFICATION:

The following Members hold that the Constitution proposed by the

1971 Constitutional Convention was NOT VALIDLY RATIFIED in
accordance with the provisions of the 1935 Constitution which
provides only one way for ratification, namely, “ in an election
or plebiscite held in accordance with law and participated in
only by qualified and duly registered voters.”

 Concepcion, CJ
 Makalintal, J.
 Zaldivar, J.
 Castro, J.
 Fernando, J.
 Teehankee, J.

J. Barredo: The 1973 Constitution may not have been ratified in

the orthodox legal sense, but in a political sense the people may
be deemed to have cast their favorable votes and that in effect
there is substantial compliance with the provisions of the 1935
Constitution and the 1973 Constitution has therefore
constitutionally been ratified.

The following Members hold that there has been in effect

substantial compliance with the constitutional requirements for
valid ratification:

 Makasiar, J.
 Antonio, J.
 Esguerra, J.

3. ON THE THIRD QUESTION OF ACQUIESCENCE BY THE FILIPINO PEOPLE:

The following Members hold that the people have already accepted
the 1973 Constitution:

 Barredo, J.
 Makasiar, J.
 Antonio, J.
 Esguerra, J.

The following Members hold that under martial law there was no
freedom of expression and it could not therefore be said that the
people accepted or rejected the 1973 Constitution:

 Concepcion, CJ.
 Zaldivar, J.

The following Members say that they lack knowledge or competence

to rule on the matter because under martial law and its
restrictions on freedom of expressions there was no means of
knowing of whether the people have accepted the Constitution;

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 Makalintal, J.
 Castro, J.
 Teehankee, J.

J. Fernando: He said that he was not prepared to state whether the

doctrine of acquiescence could be applied or not.

4. ON THE QUESTION OF RELIEF:

The following Members voted to dismiss the petition:

 Makalintal, J.
 Castro, J.
 Barredo, J.
 Makasiar, J
 Antonio, J.
 Esguerra, J.

The following Members voted to give due course to the petitions:

 Concepcion, CJ.
 Zaldivar, J.
 Fernando, J.
 Teehankee, J.

5. ON THE QUESTION WHETHER THE 1973 CONSTITUTION IS IN FORCE:

The following Members hold that it is in force because the people

have already accepted it:

 Barredo, J.
 Makasiar, J.
 Antonio, J.
 Esguerra, J.

The following Members cast no vote on the question saying that

they could not state with judicial certainty whether the people
have accepted the Constitution or not:

 Makalintal, J.
 Castro, J.
 Fernando, J.
 Teehankee, J.

The following Members hold that the 1973 Constitution IS NOT IN

FORCE:

 Concepcion, CJ.
 Zaldivar, J.

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Please note that the result therefore on this last issue is that
THERE IS NOT ENOUGH VOTES TO DECLARE THAT THE NEW CONSTITUTION IS
NOT IN FORCE.

The dispositive portion of the decision states:

“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.”

===== O =====

The 1973 Constitution was amended four times:

1. The first, in 1976, gave the President the Legislative Powers

even if the Interim Batasang Pambansa was already operating;

2. The second, in 1980, was not significant. It merely raised the

retirement age of Justice to the Supreme Court from sixty-five
(65) to seventy (70) so as to keep Fernando for five more years;

3. The third, in 1980, changed the form of government from

Parliamentary to Presidential, and;

4. The fourth, in 1984, responded to the succession problem by

providing for a Vice-President.

In 1985, to seek a “fresh mandate” from the people, President Marcos

submitted a questionable resignation that was to be effective on the
tenth day following the proclamation of the winners in the “snap”
election to be called by the legislature on the strength of such
resignation.

The VALIDITY of the “SNAP ELECTION” called by the BATASANG PAMBANSA

was raised in the case of PHILIPPINE BAR ASSOCIATION vs. COMELEC, 140
SCRA 455 (1985). The issue was raised because of the CONDITIONAL LETTER
OF RESIGNATION sent by Marcos to the BATASAN, making his resignation
effective only upon: 1) The holding of Presidential Election; 2) The
proclamation of its winner; 3) The assumption into office of the winning
candidate

It was contended that a conditional resignation was not allowed

under the 1973 Constitution, for it did not create a vacancy, and
without a vacancy there was no reason to call for an election.

But the Supreme Court failed to issue a Preliminary Injunction to

enjoin the COMELEC from preparing for the election, thus making “THE
INITIALLY LEGAL QUESTION INTO A POLITICAL ONE.”

For the meantime, the political parties have started campaigning and
the people were so involved such that to stop it on legal grounds would

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frustrate their very WILL. And so, failing to come up with the necessary
majority to hold the Snap Election Law UNCONSTITUTIONAL, the SUPREME
COURT could not issue the INJUNCTION prayed for. The ELECTION WENT
AHEAD.

The rest is history.

The results of the Election were proclaimed by the BATASAN, naming

MARCOS AND TOLENTINO AS THE WINNERS. But the February 22 to 25, 1986
EDSA REVOLUTION took place. On February 25, 1986, MARCOS was proclaimed
in Malacañang by Justice MAKASIAR, while AQUINO and LAUREL were
proclaimed in Club Filipino by Justice TEEHANKEE. Later that evening,
Marcos fled to Hawaii.

1986 FREEDOM CONSTITUTION

BASIS OF THE AQUINO GOVERNMENT: What was the basis of the AQUINO
GOVERNMENT? Did it assume power pursuant to the 1973 Constitution? Or,
was it a REVOLUTIONARY GOVERNMENT?

PROCLAMATION NO. 1 (February 25, 1986) seemed to say that it assumed

power pursuant to the 1973 Constitution. For it announced that its
assumption of office was on the basis of the PEOPLE’S MANDATE which was
clearly manifested last February 7, 1986.

PROCLAMATION NO. 3 (March 25, 1986) which announced the PROVISIONAL

CONSTITUTION seemed to suggest that it was a REVOLUTIONARY GOVERNMENT,
since in one of its “WHEREAS”, it announced that “the ‘NEW GOVERNMENT’
was installed THROUGH A DIRECT EXERCISE OF THE POWER OF THE FILIPINO
PEOPLE ASSISTED BY THE UNITS OF THE NEW ARMED FORCES.”

The better view is the latter view. The AQUINO GOVERNMENT was not an
offshoot of the 1973 Constitution for under which, a procedure was given
for the election of the President --- PROCLAMATION BY THE BATASAN ---
and the CANDIDATE that the BATASAN proclaimed was MARCOS.

This view was affirmed in Lawyers Legue vs. Aquino.

===== O =====

LAWYERS LEAGUE vs. AQUINO (1986)

Supreme Court RULED: "The LEGITIMACY OF THE AQUINO GOVERNMENT is not

a justiciable matter. It belongs to the realm of politics where only the
PEOPLE OF THE PHILIPPINES are the judge. And the PEOPLE have made the
JUDGMENT: They have accepted the GOVERNMENT OF PRESIDENT CORAZON C.
AQUINO which is in effective control of the entire country so that it is
not merely a DE FACTO GOVERNMENT but it is in fact and in law a DE JURE
GOVERNMENT.

Moreover, the COMMUNITY OF NATIONS has recognized the LEGITIMACY OF

THE PRESENT GOVERNMENT.

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ALL THE ELEVEN MEMBERS OF THIS COURT, as reorganized, have sworn to

uphold the fundamental law of the Republic under her government.

THE 1987 CONSTITUTION

Adoption and Effectivity of the 1987 Constitution

Under Section 5, Article V of the Provisional Constitution, the New

Constitution shall be presented by the Commission to the President who
shall fix the date for the holding of a plebiscite. It shall become
valid and effective upon ratification by a majority of the votes cast in
such plebiscite which shall be held within a period of sixty (60) days
following its submission to the President.

Under Section 27, Article XVIII of the 1987 Constitution, this

Constitution shall take effect immediately upon its ratification by a
majority of the votes cast in a plebiscite held for the purpose and
shall supersede all previous Constitutions.

The President appointed 48 Commissioners who worked on the

Constitution from June 1 to October 15, 1986. The draft was submitted to
the people in a referendum on February 2, 1987.

On February 11, 1987, the President, through Proclamation No. 58,

announced its overwhelming ratification by the people and that,
therefore, it had come into force and effect.

But the 1987 Constitution took effect on February 2, 1987, so the

Supreme Court ruled in De Leon vs. Esguerra.

===== O =====

DE LEON vs. ESGUERRA

153 SCRA 602

Facts: The case arose due to Section 2, Article III of PROCLAMATION

NO. 3 which provided that: “All elective and appointive officials and
employees under the 1973 Constitution shall continue in office until
otherwise provided by proclamation or executive order or upon the
designation or appointment and qualification of their successors, if
such appointment is made with a period of one year from February 25,
1986.”

De Leon was a Barrio Captain in Taytay, Rizal. On February 9, 1987,

he was replaced by the Ministry of Local Government (MLG). So the
question arose as to when the 1987 Constitution took effect.

If it took effect on February 2, 1987, the replacement was no longer

valid, since Proclamation No. 3 would have been superseded.

But if it took effect on February 11, 1987 (the date of

Proclamation), the replacement would have been valid.

Issue: When did the 1987 Constitution take effect.

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Held: The intent of the framers of the Constitution was to make it

effective on the date of its ratification, that is, February 2, 1987.
Section 27, Article XVIII clearly provided that “this Constitution shall
take effect immediately upon its ratification by a majority of the votes
cast in a plebiscite.”

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