Javellana v.

Executive Secretary, 50 SCRA 33, (1973)

GR No. L-36142, March 31 1973, 50 SCRA 33 (case digest)

FACTS:

On January 20, 1973, just two days before the Supreme Court decided the
sequel of plebiscite cases, Javellana filed this suit against the respondents to
restrain them from implementing any of the provisions of the proposed
Constitution not found in the present 1935 Constitution. This is a petition
filed by him 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. Javellana also alleged that the President had announced the
immediate implementation of the new constitution, thru his Cabinet,
respondents including.

Respondents are acting without or in excess of jurisdiction in implementing

the said proposed constitution upon ground the that the President as
Commander-in-Chief of the AFP is without authority to create the Citizens
Assemblies; without power to approve proposed constitution; without power
to proclaim the ratification by the Filipino people of the proposed
constitution; and the election held to ratify the proposed constitution was not
a free election, hence null and void.

Following that, petitioners prayed for the nullification of Proclamation No.

1102 and any order, decree, and proclamation which have the same import
and objective.
ISSUES:

1. Whether or not the issue of the validity of Proclamation No. 1102 is a

justiciable or political question, and therefore non-justiciable.
2. Whether or not the constitution proposed by the 1971 Constitutional
Convention has been ratified validly conforming 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 for relief.
5. Whether or not the proposed Constitution by the 1971 Constitutional
Convention in force.

HELD:

First. To determine whether or not the new constitution is in force depends

upon whether or not the said new constitution has been ratified in accordance
with the requirements of the 1935 Constitution. It is well settled that the
matter of ratification of an amendment to the constitution should be settled
applying the provisions of the constitution in force at the time of the alleged
ratification of the old constitution.
The issue whether the new constitution proposed has been ratified in
accordance with the provisions of Article XV of the 1935 Constitution is
justiciable as jurisprudence here and in the US (from whom we patterned our
1935 Constitution) shall show.

Second. The Constitution does not allow Congress or anybody else to vest in
those lacking the qualifications and having the disqualifications mentioned in
the Constitution the right of suffrage.

The votes of persons less than 21 years of age render the proceedings in the
Citizen’s assemblies void. Proceedings held in such Citizen’s Assemblies
were fundamentally irregular, in that persons lacking the qualifications
prescribed in Article V Section 1 of the 1935 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 Citizen’s Assemblies
must be considered null and void.

Viva voce voting for the ratification of the constitution is void. Article XV of
the 1935 Constitution 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.

The plebiscite on the constitution not having been conducted under the
supervision of COMELEC is void. The point is that, such of the Barrio
Assemblies as were held took place without the intervention of the
COMELEC and without complying with the provisions of the Election Code
of 1971 or even of those of Presidential Decree No. 73. 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 Article X of the 1935 Constitution which
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. For this, the alleged plebiscite in the Citizen’s Assemblies is null and
void, insofar as the same are claimed to have ratified the revised Constitution.

Third. Proclamation No. 1102 is not an evidence of ratification. Article X of

the 1935 Constitution places COMELEC the "exclusive" charge to the "the
enforcement and administration of all laws relative to the conduct of
elections," independently of the Executive. But there is not even a
certification by the COMELEC in support of the alleged results of the
citizen’s assemblies relied upon in Proclamation No. 1102. Also, 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 the alleged result of the citizens' assemblies all over the Philippines.
The citizen’s assemblies did not adopt the proposed constitution. It is to my
mind a matter of judicial knowledge that there have been no such citizen’s
assemblies in many parts of Manila and suburbs, not to say, also, in other
parts of the Philippines.

Fourth. The Court is  not prepared to concede that the acts the officers and
offices of the Executive Department, in line with Proclamation No. 1102,
connote recognition of or acquiescence to the proposed Constitution.

A department of the Government cannot “recognize” its own acts.

Recognition normally connotes the acknowledgment by a party of the acts of
another. Individual acts of recognition by members of Congress do not
constitute congressional recognition, unless the members have performed
said acts in session duly assembled. This is a well-established principle of
Administrative Law and of the Law of Public Officers. The compliance by
the people with the orders of martial law government does not constitute
acquiescence to the proposed Constitution. Neither does the Court prepared
to declare that the people's inaction as regards Proclamation No. 1102, and
their 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 to a ratification, adoption or approval of
said Proclamation No. 1102. The intimidation is there, and inaction or
obedience of the people, under these conditions, is not necessarily an act of
conformity or acquiescence.

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 Reps, and attested to by the respective Secretaries of both
Houses, concerning legislative measures approved by said Houses. Whereas,
Proclamation No. 1102 is an act of the President declaring the results of a
plebiscite on the proposed Constitution, an act which Article X of the 1935
Constitution denies the executive department of the Government.

In all other respects and with regard to the other respondent in said case,
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,
substantially, or has been acquiesced in by the people or 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.

Fifth. 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; 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 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, there are not enough votes to declare that the new
Constitution is not in force.

CHAN ROBLES
JOSUE JAVELLANA, 
                  Petitioner,
G. R. No. L-36142

March 31, 1973

        -versus- 

THE EXECUTIVE SECRETARY, 

THE SECRETARY OF NATIONAL DEFENSE, 
THE SECRETARY OF JUSTICE 
and THE SECRETARY OF FINANCE, 
                                            Respondents.
VIDAL TAN, J. ANTONIO ARANETA, 
ALEJANDRO ROCES, MANUEL CRUDO, 
ANTONIO U. MIRANDA, EMILIO DE PERALTA 
and LORENZO M. TAÑADA, 
                                        Petitioners,
  -versus- 
 
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.
________________________________________________ 
 
GERARDO ROXAS, AMBROSIO PADILLA, 
JOVITO R. SALONGA, SALVADOR H. LAUREL, 
RAMON V. MITRA, JR. and EVA ESTRADA-KALAW, 
                                          Petitioners,
 -versus- 

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; 
TANCIO E. CASTAÑEDA, IN HIS CAPACITY AS SECRETARY 
OF GENERAL SERVICES; SENATOR GIL J. PUYAT, 
IN HIS CAPACITY AS PRESIDENT OF THE SENATE; 
and SENATOR JOSE ROY, IN HIS CAPACITY AS 
PRESIDENT PRO-TEMPORE OF THE SENATE, 
                                                              Respondents.
___________________________________________________________ 
  
 
EDDIE B. MONTECLARO, 
[PERSONALLY AND IN HIS CAPACITY AS PRESIDENT 
OF THE NATIONAL PRESS CLUB OF THE PHILIPPINES, 
                                                                Petitioner,
G. R. No. L-36236

March 31, 1973

            -versus- 

THE EXECUTIVE SECRETARY, 

THE SECRETARY OF PUBLIC INFORMATION, 
THE AUDITOR GENERAL, THE BUDGET COMMISSIONER 
and THE NATIONAL TREASURER, 
                                                      Respondents.
____________________________________________________ 
 
NAPOLEON V. DILAG, ALFREDO SALAPANTAN, JR., 
LEONARDO ASODISEN, JR., and RAUL M. GONZALEZ, 
                                                      Petitioners,
G. R. No. L-36283

March 31, 1973

                -versus- 

THE HONORABLE EXECUTIVE SECRETARY, 

THE HONORABLE SECRETARY OF NATIONAL DEFENSE, 
THE HONORABLE BUDGET COMMISSIONER 
and THE HONORABLE AUDITOR GENERAL, 
                                                      Respondents. 
  
  
 
RESOLUTION
CONCEPCION, C.J.:

The above-entitled five [5] cases are a sequel of cases G. R. Nos. L-35925,
L-35929, L-35940, L-35941, L-35942, L-35948, L-35953, L-35961, L-35965
and L-35979, decided on January 22, 1973, to which We will hereafter refer
collectively as the plebiscite cases.
Background of the Plebiscite Cases. chanrobles virtual law library

The factual setting thereof is set forth in the decision therein 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. cralaw

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
being no 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, the 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 Ordoñez, 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]. cralaw

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. cralaw

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,
1978, 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.cralaw

"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 the proposed new Constitution and when
(the tentative new dates given following the postponement of the plebiscite
from the original date of January 15 are February 19 and March 5);
[4] The opening of the regular session slated 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 on more question would
be added to the four (4) question previously announced, and that the forms
of the question 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 running the affairs of the
government? [Bulletin Today, January 10, 1973; emphasis an additional
question].
"11. That on January 11, 1973, it was reported that six (6) more questions
would be submitted to the so-called Citizens 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 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;
emphasis 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 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
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.
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 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 be called to ratify the new Constitution?"
would be an attempt to by-pass and short-circuit this Honorable 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 Sec. 3 of Presidential Decree No. 73, the opposition of
respondents to petitioners' prayer at the 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 A. Ordoñez, 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 than 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 riled a "supplemental
motion for issuance of 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 Roño; 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 Roño; 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 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 [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,
[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 be 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 an 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 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. L-35948 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;
"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 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 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.cralaw

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

"Done in the City of Manila, this 17th day of January, in the year of Our
Lord, nineteen hundred and seventy-three. 
 
(Sgd.)   FERDINAND E. MARCOS "President of the Philippines "By the
President: "ALEJANDRO MELCHOR"Executive Secretary" 

 
Such is the background of the cases submitted 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 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"; 3) 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.cralaw

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.cralaw

Then the writer of said decision expressed his own opinion on the issues
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 repugnancy 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.
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. L-35948 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
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. 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. Tañada, against the Executive Secretary, the
Secretaries of Finance, Justice, Land Reform, and National Defense, the
Auditor General, the 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, the 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. cralaw

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 others as "duly elected members" thereof, filed Case G. R. No. L-36165,
against the Executive Secretary, the Secretary 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 Gerardo Roxas,
et al. allege, inter alia, that the term of office of three of the aforementioned
petitioners [8] would expire on 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 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 prevented from using the Senate Session Hall, the same having
been closed by the authorities in physical possession and control the
Legislative Building"; that "(a)t about 5:00 to 6:00 P.M. 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 we 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 ready and willing to perform their duties as duly elected
members of the Senate of the Philippines," but respondent 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 premise
in the Congress of the Philippines Building are occupied by and are under the
physical control of the elements military organizations under the direction of
said respondents"; that, as per "official reports, the Department of General
Services is now the civilian agency 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, 1973, 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
illegal, unconstitutional and void and cannot 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 respondents Executive Secretary, the Secretary of
National Defense, the Chief of Staff of the Armed Forces of the Philippines,
and theSecretary of General Service, 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 hearing,
judgment be rendered declaring null and Proclamation No. 1102 and any
order, decree, proclamation having the same import and objective, issuing
writs of prohibition and mandamus, as prayed for against above-mentioned
respondents, and making the writ 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 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 Court first had and obtained, 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 of 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
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"; 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 comments 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-
36164, and L-36165, 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, L-36164, L-36165 and L-36236. The hearing, which began on
February 12, 1973, shortly after 9:30 a.m., was continued not only that
afternoon, 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 of oral 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. L-36164 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 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 a
Supplemental Rejoinder," whereas the Office of the Solicitor General
submitted in all these cases a "Rejoinder 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. 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 had 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 promulgated 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. cralaw

Counsel for respondents Gil J. Puyat and Jose Roy goes on to say that, 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. cralaw

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.cralaw

Secondly, counsel for the aforesaid respondents had apparently assumed

that, under the 1935 Constitution, eight [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, "executive order" and
"regulation" were included among those that required for their nullification
the vote of two-thirds of all the members of the Court. But "executive order"
and "regulation" were later deleted from the final draft (Aruego, The Framing
of the 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
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
proclamation, 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 a 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 or 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
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 reached 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 no authority, under the 1935 Constitution, to dispense
with said election or plebiscite; that the proceedings before the Citizens'
Assemblies did not constitute 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
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
violation 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. cralaw

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 privilege 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. Castañeda, [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 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. cralaw

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 (3) 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 "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 or 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 Tañada 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 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 him, free from judicial control, so long as he observes the laws act
within the limits of the power conferred. His discretionary acts cannot be
controllable, not primarily because they are of a politics nature, but because
the Constitution and laws have placed the particular matter under his
control. But every officer under constitutional government must act
accordingly to law and subject 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."
(Emphasis 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, is justiciable or non-
political, 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
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. cralaw

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. cralaw

Prior thereto, however, many citizens had become dissatisfied with the
charter government. Memorials addressed by them to the Legislature having
failed to bring about the desired effect, meetings were held and associations
formed  by those who belonged to this segment of 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.cralaw

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.
cralaw

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 given, the persons
who were to receive and return them, and the 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 powers to the
new government, established under its authority, in May 1843, which had
been in operation uninterruptedly since then. cralaw

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
assert its authority and exercise its powers and to enforce obedience
throughout the state."
Having offered to introduce evidence to prove that the constitution of the
rebels had been ratified 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 went into operation. The judges who decided that 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 the 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 belong to the State courts. But the power of
determining that a State government has been lawfully established, which
the courts of the 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. 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. cralaw

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 has been adopted in the manner prescribed in the
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. cralaw

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 Minnessota 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
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:"deciding 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. cralaw

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 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 ground: 1) that the
President "is without authority to create the Citizens' Assemblies" through
which, respondents maintain, the proposed new Constitution has been
ratified; 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
new Constitution or "to appropriate funds for the holding of the 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
the people;" 3) that "(t)he period of time between November 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 a which they
never knew would be submitted to them 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 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
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. cralaw

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 I 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 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 fee, orderly, and honest
elections. The decisions, orders, and rulings of 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 "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,"
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
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.
cralaw

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 exercised only by male
citizens of the Philippines." 2) "That 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 said Constitution  the duty to "extend the right of suffrage
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 
amendment 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 to those 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 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.
cralaw

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 1917  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 qualification
and possessed any of the statutory disqualifications. In short, the history of
Section 1, Art. V of the Constitution, shows beyond doubt than the same
conferred  not guaranteed  the authority to persons having the qualifications
prescribed therein and none of disqualifications to be specified in ordinary
laws and, necessary implication, denied such right to those lacking any said
qualifications, or having any of the aforementioned disqualifications.cralaw

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 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 amendment, 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. cralaw

Upon the other hand, the question, whether 18-year-old members of barrio
assemblies may vote in barrio assembly 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 the barrio "during the six months immediately preceding election,
duly registered in the list of voters" and " otherwise disqualified" just like the
provisions of 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 resolved in favor of the
21-year-old members of the assembly, not only because this interpretation
is in accord with Art. V the Constitution, but, also, because provisions of a
Constitution  particularly of a written and rigid one, like ours 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,
believe that Republic Act No. 3590 requires, for the most important
measures for which it demands  in addition to favorable action of the barrio
council  the approval of barrio assembly through a plebiscite, lesser
qualifications than those prescribed in dealing with ordinary measures for
which such plebiscite need not be held. cralaw

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 revision thereof, or of an entirely new Constitution, and
permit the legislature to require lesser qualifications for such ratification,
notwithstanding the fact that the object thereof 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 a
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.cralaw

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. cralaw

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
14,976,56 "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. cralaw

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 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  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 consistently interpreted
in all plebiscites for the ratification rejection of proposed amendments
thereto, from 1935 to 1967. Hence, the viva voce voting in the Citizens'
Assemblies was and is null and void ab initio.cralaw

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 depends upon either Congress or the
Judiciary? The answer must be 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. cralaw

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. cralaw

The independence of the Commission was sought to be strengthened by the

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 the Commission "shall be subject to review by the Supreme Court"
only; [61]that "(n)o pardon, parole, or suspension 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
the 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 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 protect and insure the independence of each
member of the Commission. cralaw

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 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 question 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 forests possible conflicts or frictions between the Commission, on 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 ruling of the Commission" shall not be subject to review, except
by the Supreme Court. cralaw

In accordance with the letter and spirit of said Art. X of the Constitution,
Rep. Act No. 6388, otherwise known as the 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 establishment of election precincts; the designation and arrangement of
polling places, including voting booths, to protect the secrecy of the ballot;
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 files of registered voters; the composition and
appointment of board of election inspectors; the particulars of the official
ballots to be used and the precautions to be taken to insure 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, provincials and national boards of canvassers; the
presentation of the 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 violation of the provisions of said Election Code and the penalties
for such violations.
cralaw

Few laws may be found with such meticulous and elaborate set of provisions
aimed at "insuring free, orderly, and honest election," as envisaged in
Section 2 of Art. X of the Constitution. Yet, none of the foregoing
constitutional and statutory provisions was followed by the so-called
Barangays or Citizens' Assemblies. And no reasons have been given, or even
sought to be given therefor. In many, if not most, instances, the election
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. cralaw

In Glen 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, they
could with equal propriety, dispense with all of them, including the one that
the vote shall be by secret ballot, or even by no 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 cases [66]   We
need not, in the case of 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
alia, that "(t)he provision of the Election Code of 1971, insofar as they are
not inconsistent" with said decree  excepting those "regarding right 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 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 73, insofar as said
procedure is concerned. cralaw

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 proposed Constitutiontemporarily suspending effects
of Proclamation No. 1081 for the purposes of free open dabate 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 ratification or rejection of the proposed
Constitution  remained in force, assuming that said Decree is valid. cralaw

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 Art. V of the 1935 Constitution. The provision of Decree
No. 86-A directing the immediate submission of the result thereof to the
Department of Local Governments Community 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 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. cralaw

We are told that Presidential Decree No. 86 was further amended by

Presidential Decree No. 86-B dated 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 include the matter of
ratification of the Constitution 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 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.cralaw

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 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. And
the procedure therein mostly followed is such that there is no reasonable
means of checking the accuracy of the returns files 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 same are claimed to have ratified the revised
Constitution proposed by the 1971 Constitutional Convention. "All 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 as election
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 measure 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 Citizens' 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 "substancially" complied with; and that the Court 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 its power are derived. cralaw

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 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.
Accordingly, the issue boils downs 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". cralaw

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 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. Franciso 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 Governments and Community Development) to the Chief
Executive, who, accordingly, issued Proclamation No. 1102. cralaw

The record shows, however, that Mr. Cruz was not even a member of any
barrio council since 1972, so that he could possibly have been a member 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. cralaw

Secondly, at the conclusion of the hearing of these cases February 16, 1973,
and in the resolution of this Court of same date, the Solicitor General was
asked to submit, together with his notes on his oral argument, a true copy of
aforementioned report of Mr. Cruz to the President and of "(p)roclamation,
decree, instruction, order, regulation or circular, if any, creating or directing
or authorizing creation, establishment or organization" of said municipal,
provincial and national associations, but neither a copy of alleged report to
the President, nor a copy of any "(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 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 majority
of the votes cast by the people, can not possibly have any legal effect or
value.cralaw

The theory that said proclamation is "conclusive upon 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 who 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. cralaw

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

stood from the organization of the state"  of Minnessota  "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 revenue 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 no 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 board 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
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 the alleged
result of the citizens' 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. cralaw

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.cralaw

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,
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, 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.
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 pre-electoral 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
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; emphasis an additional
question]
[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 the new Constitution?" One approves "of" the act of
another which does not need such approval for the effectivity of said act,
which the first person, however, finds to be good, wise satisfactory. The
approval of the majority of the votes cast in 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 proposed
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 resumee (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 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 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
holding of the Citizens' Assembly meetings throughout 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 a 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 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 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.cralaw

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
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, 1971, 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. cralaw

As regards the so-called political organs of the Government, 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 politics 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]
Consequently, I am not prepared to concede that the acts the officers and
offices of the Executive Department, in line with Proclamation No. 1102,
connote a recognition thereof o 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 the 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. cralaw

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.
cralaw

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:
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) days after
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
Assembly established in the Transitory Provisions of said Constitution.
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 statement may have been,
the idea implied therein was too clear an 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.
cralaw
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
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.cralaw

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.
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. cralaw

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, to the President of
the Philippines or to the President Federation or National Association of
presidents of Provincial Associations of presidents of municipal association
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 department which, according to
Article X of the Constitution, should not and must not be all participate in
said plebiscite  if plebiscite there was.
cralaw

After citing approvingly its ruling in United States v. Sandoval, [84] the

Highest Court of the United States 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 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 be said about the
procedure followed in these five (5) cases. In this connection, it should be
noted that the Court has not 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 voting to dismiss them outright 
and then considers 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
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. cralaw

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. cralaw

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 
the respective counsel filed extensive notes on their or 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 document 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.cralaw

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
opinion attached hereto. Hence, the resume of the votes cast and the tenor
of the resolution, in the last pages hereof, despite the fact that technically
the 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. cralaw

In L-36165, it is clear that we should not issue the writ of mandamus prayed
for against Gil J. Puyat and Jose Roy, 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. cralaw

In all other respects and with regard to the other respondent in said case, as
well as in cases 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,
substantially, or has been acquiesced in by the people or 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. cralaw

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. cralaw

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. cralaw

It should be stated that by virtue of the various approaches and views

expressed during the deliberations, it was agreed to synthesize the basic
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. cralaw
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 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 respect 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 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."
2. On the second question of validity of the ratification, Justices Makalintal,
Zaldivar, Castro, Fernando, Teehankee and myself, or six (6) members of
the Court also hold that the 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.
cralaw
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.cralaw

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." [88]
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." [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. 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, an 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.cralaw

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.cralaw

It is so ordered. cralaw

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