Javellana vs. Executive Secretary G.R. No.

L-36142 (The Ratification Case)

Facts:
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 propose Constitution not found in the present Constitution" — referring to that of 1935.
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."
The respondents 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."

Issue:
1. Whether or not the issue of the validity of Proclamation No. 1102 involves a justiciable or
political question.
2. Whether or not the proposed new or revised Constitution been ratified to said Art. XV of the
1935 Constitution.
3. Whether or not the proposed Constitution aforementioned been approved by a majority of
the people in Citizens' Assemblies allegedly held throughout the Philippines.
4. Whether or not the people acquiesced in the proposed Constitution.
5. Whether or not the parties are entitled to any relief.
Ruling:
The court was severely divided on the following issues raised in the petition: but when the
crucial question of whether the petitioners are entitled to relief, six members of the court
(Justices Makalintal, Castro, Barredo, Makasiar, Antonio and Esguerra) voted to dismiss the
petition. Concepcion, together Justices Zaldivar, Fernando and Teehankee, voted to grant the
relief being sought, thus upholding the 1973 Constitution.
First Issue
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 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 hands-off out of respect to the people's will, but, in negative, the Court may
determine from both factual and legal angles whether or not Article XV of the 1935
Constitution been complied with." Justices Makasiar, Antonio, Esguerra, or three (3) members
of the Court hold that the issue is political and "beyond the ambit of judicial inquiry."
Second Issue
On the second question of validity of the ratification, Justices Makalintal, Zaldivar, Castro,
Fernando, Teehankee and myself, or six (6) members of the Court also hold that the
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.

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, especially 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.
Third Issue
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."
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 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 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 vehicle restricted, (they) have no means of knowing, to the point of judicial certainty,
whether the people have accepted the Constitution."
Fourth Issue
On the fourth question of relief, six (6) members of the Court, namely, Justices Makalintal,
Castro, Barredo, Makasiar, Antonio and Esguerra voted to DISMISS the petition. Justice
Makalintal and Castro so voted on the strength of their view that "(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, are relevant and unavoidable."
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.
Fifth Issue
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.