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Javellana v. Executive Secretary 50 SCRA 33 (1973)
Javellana v. Executive Secretary 50 SCRA 33 (1973)
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.
HELD:
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.
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.
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
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
"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."
"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:
"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
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
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
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
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
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
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
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
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
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 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
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 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
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
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
It is so ordered. cralaw