JOSUE JAVELLANA, PETITIONER, VS. THE EXECUTIVE SECRETARY, THE SECRETARY OF NATIONAL DEFENSE, THE SECRETARY OF JUSTICE AND THE SECRETARY OF FINANCE, RESPONDENTS.

The above-entitled five (5) cases are a sequel of cases G. R. Nos. L-35935, L-35929, L-35940,
L-35941, L-35942, L-35948, L-35953, L-3596I, 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

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.

“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. No. 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 A. 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).

“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.

“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.

“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
one more question would be added to the
four (4) questions previously announced, and that the forms of the questions
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 is
running the affairs of the government? 
“[Bulletin Today, January
10, 1973; additional question underscored.]

’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; italics 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 election.  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 that the proposed 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. vs. Commission on Elections, et al.,’
and L-35942, ‘Sedfrey A. Ordoñez,
et al. vs. 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 G.R. No. L-35948 filed a
‘supplemental motion for issuance of restraining order and inclusion of
additional respondents,’ praying

‘* * * that a restraining order be issued enjoining and restraining
Commission on Elections, as well as the Department of Local Governments and its
head, Secretary Jose Roño; the Department of Agrarian
Reforms and its head, Secretary Conrado Estrella; the National Ratification Coordinating Committee
and its Chairman, Guillermo de Vega; their deputies, subordinates and substitutes,
and all other officials and persons who may be assigned such task, from
collecting, certifying, and announcing and reporting to the President or other
officials concerned, the so-called Citizens’ Assemblies referendum results
allegedly obtained when they were supposed to have met during the period
comprised between January 10 and January 15, 1973, on the two questions quoted in paragraph 1 of
this Supplemental Urgent Motion.’

“In support of this prayer, it was alleged –

‘3.   That petitioners are now before this
Honorable Court in order to ask further that this Honorable Court issue a
restraining order enjoining herein respondents, particularly respondent
Commission on Elections as well as the Department of Local Governments and its
head, Secretary Jose Roño; the Department of Agrarian
Reforms and its head, Secretary Conrado Estrella; the National Ratification Coordinating Committee
and its Chairman, Guillermo de Vega; and
their deputies, subordinates and/or substitutes, from collecting, certifying, announcing
and reporting to the President the supposed Citizens’ Assemblies referendum
results allegedly obtained when they were supposed to have met during The
period between January 10 and
January 15, 1973, particularly on the two questions quoted in paragraph 1 of
this Supplemental Urgent Motion;

‘4.   That
the proceedings of the so-called Citizens’ Assemblies are illegal, null and
void particularly insofar as such proceedings are being made the basis
of a supposed consensus for the ratification of the proposed Constitution
because: –

[a]   The elections contemplated in the
Constitution, Article XV, at which the
proposed constitutional amendments are to be submitted for ratification, are
elections at which only qualified and duly registered voters are permitted to
vote, whereas, the so-called Citizens’ Assemblies were participated in by
persons 15 years of age and older, regardless of qualifications or lack
thereof, as prescribed in the Election Code;

[b]   Elections
or plebiscites for the ratification of constitutional amendments
contemplated in Article XV of the Constitution have provisions for the secrecy
of choice and of vote, which is one of the safeguards of freedom of action, but
votes in the Citizens’ Assemblies were open and were cast by raising hands;

[c]   The Election Code makes ample provisions for
free, orderly and honest elections, and such provisions are a minimum
requirement for elections or plebiscites for the ratification of constitutional
amendments, but there were no similar provisions to guide and regulate
proceedings of the so-called Citizens’ Assemblies;

[d]   It is seriously to be doubted that, for lack
of material time, more than a handful of the so-called Citizens’ Assemblies
have been actually formed, because the mechanics of their organization were
still being discussed a day or so before the day they were supposed to begin
functioning: –

‘Provincial governors and
city and municipal mayors had been meeting with barrio captains and community
leaders since last Monday [January 8, 1973] to thresh out the mechanics in the formation of
the Citizens’ Assemblies and the topics for discussion.’ [Bulletin Today, January
10, 1973]

‘It should be recalled that the Citizens’ Assemblies were ordered
formed only at the beginning of the
year [Daily Express, January 1, 1973], and considering the lack of
experience of the local organizers of said assemblies, as well as the absence of sufficient
guidelines for organization, it is too much to believe that such assemblies
could be organized at such a
short notice.

‘5.   That for lack of material time, the
appropriate amended petition to include the additional officials and government
agencies mentioned in paragraph 3 of this Supplemental Urgent Motion could not
be completed because, as noted in the Urgent Motion of January 12, 1973, the
submission of the proposed Constitution to the Citizens’ Assemblies was not
made known to the public until January 11, 1973.  But be that as it may, the said additional
officials and agencies may be properly included in the petition at bar because:
–

[a]   The herein petitioners have prayed in their
petition for the annulment not only of Presidential Decree No. 73, but also of
“any similar decree, proclamation, order or instruction.”

so that Presidential
Decree No. 86, insofar at least as it attempts to submit the proposed
Constitution to a plebiscite by the so-called Citizens’ Assemblies, is properly
in issue in this case, and those
who enforce, implement, or carry out the said Presidential Decree No. 86, and
the instructions incidental thereto ‘clearly fall within the scope of this
petition;

[b]   In their petition, petitioners sought the
issuance of a writ of preliminary
injunction restraining not only the respondents
named in the petition but also their “agents” from
implementing not only Presidential Decree No. 73, hut also “any other
proclamation in relation to the holding of a plebiscite on January 15, 1973 for
the purpose of submitting to the
Filipino people for their ratification or rejection the 1972 Draft or proposed
Constitution approved by the Constitutional Convention on November 30,
1973″; and finally,

[c]   Petitioners prayed for such other relief
which may be just and equitable. 
[p. 39, Petition].

‘Therefore, viewing the case from all angles, the officials and
government agencies mentioned in paragraph 3 of this Supplemental Urgent
Motion, can lawfully be reached by the processess 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 and 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 an answer to the said motion not later
than 4 P.M., Tuesday, January 16, 1973,’ and setting the motion for hearing ‘on
January 17, 1973, at 9:30 a.m.’ While the case was being heard, on the date
last mentioned, at noontime, the Secretary of Justice called on the writer of
this opinion and said that, upon instructions of the President, he (the
Secretary of Justice) was delivering to him (the writer) a copy of Proclamation
No. 1102, which had just been signed by the President.  Thereupon, the writer returned to the Session
Hall and announced to the Court, the parties in G.R. No. L-35948 – inasmuch as
the hearing in connection therewith was still going on – and the public there
present that the President had, according to information conveyed by the
Secretary of Justice, signed said Proclamation No. 1102, earlier that
morning.  Thereupon, the writer read
Proclamation No. 1102 which is of the following tenor:

‘BY
THE PRESIDENT OF THE PHILIPPINES

‘PROCLAMATION
NO. 1102

‘ANNOUNCING
THE RATIFICATION BY THE FILIPINO PEOPLE OF THE CONSTITUTION PROPOSED BY THE
1971 CONSTITUTIONAL CONVENTION.

‘WHEREAS, the Constitution proposed by the nineteen hundred
seventy-one Constitutional Convention is subject to ratification by the
Filipino people;

‘WHEREAS, Citizens Assemblies were created in barrios, in
municipalities and in districts/wards in chartered cities pursuant to
Presidential Decree No. 86, dated December 31, 1972, composed of all persons
who are residents of the barrio, district or ward for at least six months,
fifteen years of age or over, citizens of the Philippines and who are
registered in the list of Citizen Assembly members kept by the barrio, district
or ward secretary;

‘WHEREAS, the said Citizens Assemblies were established precisely
to broaden the base of citizen participation in the democratic process and to
afford ample opportunity for the citizenry to express their views on important
national issues;

‘WHEREAS, responding to the clamor of the people and pursuant to
Presidential Decree No. 86-A, dated January 5, 1973, the following questions
were posed before the Citizens Assemblies or Barangays:  Do you approve of the New Constitution?  Do you still want a plebiscite to be called
to ratify the new Constitution?

‘WHEREAS, fourteen million nine hundred seventy-six thousand five
hundred sixty one (14,976,561) members of all the Barangays
(Citizens Assemblies) voted for the adoption of the proposed Constitution, as
against seven hundred forty-three thousand eight hundred sixty-nine (743,869)
who voted for its rejection; while on the question as to whether or not the
people would still like a plebiscite to be called to ratify the new
Constitution, fourteen million two hundred ninety-eight thousand eight hundred
fourteen (14,298,814) answered that there was no need for a plebiscite and that
the vote of the Barangays (Citizens Assemblies)
should be considered as a vote in a plebiscite;

‘WHEREAS, since the referendum results show that more than
ninety-five (95) per cent of the members of the Barangays
(Citizens Assemblies) are in favor of the new Constitution, the Katipunan ng Mga Barangay has strongly
recommended that the new Constitution should already be deemed ratified by the
Filipino people;

‘NOW, THEREFORE, I,
FERDINAND E. MARCOS, President of the Philippines, by virtue of the
powers in me vested by the Constitution, do hereby certify and proclaim that
the Constitution proposed by the nineteen hundred and seventy-one (1971)
Constitutional Convention has been ratified by an overwhelming majority of all
of the votes cast by the members of all the Barangays
(Citizens Assemblies) throughout the Philippines, and has thereby come into
effect.

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

‘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 for Our
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 of 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.

“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.”

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 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 of 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 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
proposed 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. Gonzalez,^[6] against
the Executive Secretary, the Secretary of National Defense, the Budget
Commissioner and the Auditor General.

Likewise, on January
23, 1973, Gerardo Roxas, Ambrosio Padilla, Jovito R. Salonga, Salvador H.
Laurel,^[7] Ramon V. Mitra,
Jr. and Eva Estrada-Kalaw, the first as “duly
elected Senator and Minority Floor Leader of the Senate,” and the others
as “duly elected members” thereof, filed Case G. R. No. L-36165,
against the Executive Secretary, the Secretary of National Defense, the Chief
of Staff of the Armed Forces of the Philippines, the Secretary of General
Services, the President and the President Pro Tempore of the Senate.  In their petition – as amended on January 26,
1973 – petitioners Gerardo Roxas, et al. allege, inter
alia, that the term of office of three (3) of the
aforementioned petitioners^[8] would
expire on December 31, 1975, and that of the others^[9] on
December 31, 1977; that pursuant to our 1935 Constitution, “which is still
in force,” Congress of the Philippines “must convene for its 8th
Session on Monday, January 22, 1973, at 10:00 A. M., which is the regular
customary hour of its opening session”; that “on said day, from 10:00
A. M. up to the afternoon,” said petitioners, “along with their other
colleagues, were unlawfully prevented from using the Senate Session Hall, the same having been closed by
the authorities in physical possession and control of the Legislative
Building”; that “(a)t about 5:00 to 6:00 P.M. of the said day, the premises of the entire Legislative
Building were ordered cleared by the same authorities, and no one was allowed
to enter and have access to said premises”; that “(r)espondent Senate President Gil J. Puyat
and, in his absence, respondent President Pro Tempore Jose Roy were asked by
petitioning Senators to perform their duties under the law and the Rules of the
Senate, but unlawfully refrained and continue to refrain from doing so”;
that the petitioners “are ready and willing to perform their duties as
duly elected members of the Senate of the Philippines,” but respondents
Secretary of National Defense, Executive Secretary and Chief of Staff,
“through their agents and representatives, are preventing petitioners from
perform­ing their duties as duly elected Senators of the Philippines”;
that “the Senate premises in the Congress of the Philippines Building * *
* are occupied by and are under the physical control of the elements of
military organizations under the direction of said respondents”; that, as
per “official reports, the Department of General Services * * * is now the
civilian agency in custody of the premises of the Legislative Building”;
that respondents “have unlawfully excluded and prevented, and continue to
so exclude and prevent” the petitioners “from the performance of
their sworn duties, invoking the alleged approval of the 1972 (1973)
Constitution of the Philippines by action of the so-called Citizens’ Assemblies
on January 10, 1973 to January 15, 1973, as stated in and by virtue of
Proclamation No. 1102 signed and issued by the President of the
Philippines”; that “the alleged creation of the Citizens’ Assemblies
as instrumentalities for the ratification of the Constitution of the Republic
of the Philippines” is inherently illegal and palpably unconsti­tutional;
that respondents Senate President and Senate President Pro Tempore “have
unlawfully refrained and continue to refrain from and/or unlawfully neglected
and continue to neglect the performance of their duties and functions as such
officers under the law and the Rules of the Senate” quoted in the
petition; that because of events supervening the institution of the plebiscite
cases, to which reference has been made in the preceding pages, the Supreme
Court dismissed said cases on January 22, 1973, by a majority vote, upon the
ground that the petitions therein had become moot and academic; that the alleged
ratification of the 1972 (1973) Constitution “is illegal, unconstitutional
and void and * * * cannot have superseded and revoked the 1935
Constitution,” for the reasons specified in the petition as amended; that,
by acting as they did, the respondents and their “agents, representatives
and subordinates * * * have excluded the petitioners from an office to
which” they “are lawfully entitled”; that “respondents Gil
J. Puyat and Jose Roy have unlawfully refrained from
convening the Senate for its 8th session, assuming general jurisdiction over
the Session Hall and the premises of the Senate and * * * continue such
inaction up to this time and * * * a writ of mandamus is warranted in
order to compel them to comply with the duties and functions specifically enjoined
by law”; and that “against the above mentioned unlawful acts of the
respondents, the petitioners have no appeal nor other speedy and adequate
remedy in the ordinary course of law except by invoking the equitable remedies
of mandamus and prohibition with the provisional remedy of preliminary
mandatory injunction.”

Premised upon the foregoing allegations, said petitioners prayed
that, “pending hearing on the merits, a writ of preliminary mandatory
injunction be issued ordering the respondents Executive Secretary, the
Secretary of National Defense, the Chief of Staff of the Armed Forces of the
Philippines, and the * * * Secretary of General Services, as well as all their
agents, representatives and subordinates to vacate the premises of the Senate
of the Philippines and to deliver physical possession of the same to the
President of the Senate or his authorized representative”; and that
“after hearing, judgment be rendered declaring null and void Proclamation
No. 1102 * * * and any order, decree, or proclamation having the same import
and objective, issuing the writs of prohibition and mandamus, as prayed
for against the above-mentioned respondents, and making the writ of injunction
permanent; and that a writ of mandamus be issued against the respondents
Gil J. Puyat and Jose Roy directing them to comply
with their duties and functions as President and President Pro Tempore,
respectively, of the Senate of the Philippines, as provided by law and the
Rules of the Senate.”

Required to comment on the above-mentioned petitions and/or
amended petitions, respondents filed, with the leave of Court first had and
obtained, a consolidated comment on said petitions and/or amended petitions,
alleging that the same ought to have been, dismissed outright; controverting petitioners’ allegations concerning the
alleged lack or impairment of the freedom of the 1971 Constitutional Convention
to approve the proposed Constitution, its alleged lack of authority to
incorporate certain contested provisions thereof, the alleged lack of authority
of the President to create and establish Citizens’ Assemblies “for the
purpose of submitting to them the matter of ratification of the new
Constitution,” the alleged “improper or inadequate submission of the
proposed constitution,” the “procedure for ratification adopted * * *
through the Citizens’ Assemblies”;
and maintaining that: (1) “(t)he Court is without jurisdiction to act on these petitions”; (2) the questions
raised therein are “political in character and therefore nonjusticiable“; (3) “(t)here was substantial
compliance with article XV of the 1935 Constitution”; (4) “(t)he
Constitution was properly submitted to the people in a free, orderly and honest
election”; (5) “Proclamation No. 1102, certifying the results of the
election, is conclusive upon the courts”; and (6) “(t)he amending
process, outlined in Article XV of the 1935 Constitution is not exclusive of
other modes of amendment.”

Respondents Puyat and Roy, in said Case
G.R. No. L-36165, filed their separate comment therein; alleging that
“(t)he subject matter” of said case “is a highly political
question which, under the circumstances, this * * * Court would not be in a position to act upon judicially,” and that, in view of the opinions expressed by three members of this Court
in its decision in the plebiscite cases, in effect upholding the validity of
Proclamation No. 1102, “further proceedings in this case may only be an
academic exercise in futility.”

On February 5, 1973,
the Court issued a resolution requiring respondents in L-36236 to comment on
the petition therein not later than Saturday,
February 10, 1973, and setting the case for hearing on February 12, 1973, at 9:30 a.m. 
By resolution dated February 7,
1973, this Court resolved to consider the comments of the
respondents in cases G.R. Nos. L-36142, L-36164 and L-36165, as motions to dismiss the petitions therein, and
to set said cases for hearing on the same date and time as L-36236.  On that date, the parties in G.R. No. L-36283^[10]
agreed that the same be, likewise, heard, as it was, in fact, heard jointly with the aforementioned cases
G.R. Nos. L-36142, L-36164, L-36165 and
L-36236. The hearing, which began on February 12, 1973, shortly after 9:30
a.m., was continued not only that afternoon, but, also, on February 13, 14, 15
and 16, morning and afternoon, after which the parties were granted up to
February 24, 1973, noon, within which to submit their notes of oral arguments
and additional arguments, as well as the documents required of them or whose
presentation was reserved by them.  The
same resolution granted the parties until March
1, 1973, to reply to the notes filed by their respective
opponents.  Counsel for the petitioners
in G.R. Nos. L-36164 and L-36165 filed their aforementioned notes on February
24, 1973, on which date the Solicitor General sought an extension of time up to
March 3, 1973, within which to file his notes, which was granted, with the
understanding that said notes shall include his reply to the notes already
filed by the petitioners in G.R. Nos. L-36164 and L-36165.  Counsel for the petitioners, likewise, moved
and were granted an extension of time, to expire on March 10, 1973, within which to file, as they
did, their notes in reply to those submitted by the Solicitor General on March 3, 1973.  On March
21, 1973, petitioners in L-36165 filed a “Manifestation and
Supplemental Rejoinder,” whereas the Office of the Solicitor General
submitted in all these cases a “Rejoinder, to Petitioners’ Replies.”

After deliberating on these cases, the members of the Court agreed
that each would write his own opinion and serve a copy thereof on his
colleagues, and this they did. 
Subsequently, the Court discussed said opinions and votes were cast
thereon.  Such individual opinions are
appended hereto.

Accordingly, the writer will first express his personal opinion
on the issues before the Court.  After
the exposition of his aforesaid opinion, the writer will make, concurrently
with his colleagues in the Court, a resume or summary of the votes by them in
these cases.

Writers Personal
Opinion

I

Alleged academic futility of further proceedings in
G.R. No. L-36165.

This defense or theory, set up by counsel for respon­dents Gil J.
Puyat and Jose Roy in G.R. No. L-36165, and, also, by
the Solicitor General, is predicated upon the fact that, in Our decision in the
plebiscite cases, Mr. Justice Barredo had expressed
the view that the 1935 Constitution had “pro tanto
passed into history” and “been legitimately supplanted by the
Constitution now in force by virtue of Proclamation No. 1102 * * * “; that
Mr. Justice Antonio did not feel “that this Court is competent to
act” in said cases  “in the
absence of any judicially discoverable and manageable standards” and
because “the access to relevant information is insufficient to assure the
correct determination of the issue,” apart from the circumstance that
“the new constitution has been promulgated and great interests have
already arisen under it” and that the political organ of the Government has
recognized its provisions; whereas, Mr. Justice Esguerra
had postulated that “(w)ithout any competent
evidence * * * about the circumstances attending the holding” of the
“referendum or plebiscite” thru the Citizens’ Assemblies, he
“cannot say that it was not lawfully held” and that, accordingly, he assumed “that what the proclamation (No. 1102) says on its face is
true and until overcome by satisfactory evidence” he could not
“subscribe to the claim that such plebiscite was not held
accordingly”; and that he accepted “as a fait accompli that
the Constitution adopted (by the 1971 Constitutional Convention) on November
30, 1972, has been duly ratified.”

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.

I am unable to share this view. 
To begin with, Mr. Justice Barredo announced
publicly, in open court, during the hearing of these cases, that he was and is
willing to be convinced that his aforementioned opinion in the plebiscite cases
should be reconsidered and changed.  In
effect, he thus declared that he had an open mind in connection with the cases
at bar, and that in deciding the same he would not necessarily adhere to said
opinion if the petitioners herein succeeded in convincing him that their view
should be sustained.

Secondly, counsel for the aforesaid respondents had apparently
assumed that, under the 1935 Constitution, eight (8) votes are necessary to
declare invalid the contested Proclamation No. 1102. I do not believe that this
assumption is borne out by any provision of said Constitution Section 10 of
Article VIII thereof reads:

“All cases involving the constitutionality of a treaty or law
shall be heard and decided by the Supreme Court in banc, and no
treaty or law may be declared unconstitutional without the concurrence of
two-thirds of all the members of the Court.”

Pursuant to this section, the concurrence of two-thirds of all
the Members of the Supreme Court is required only to declare a “treaty or
law” unconstitutional.  Construing
said provision, in a resolution dated September
16, 1949, then Chief Justice Moran, voicing the unanimous view of
the Members of this Court, postulated:

“* * * There is nothing either in the Constitution or in the
Judiciary Act requiring the vote of eight Justices to nullify a rule or
regulation or an executive order issued by the President.  It is very significant that in the previous
drafts of section 10, Article VIII of the Constitution, ‘executive order’ and
‘regulation’ were included among those that required for their
nullification the vote of two-thirds of all the members of the Court.  But ‘executive order’ and ‘regulation’ were
later deleted from the final draft (Aruego, The Framing of the Philippine Constitution, Vol. I,
pp. 495, 496), and thus a mere majority
of six members of this Court is enough to nullify them.“^[11]

The distinction is not without reasonable foundation.  The two-thirds vote (eight [8] votes)
requirement, indeed, was made to apply only to treaty and law, because, in
these cases, the participation of the two other departments of the government –
the Executive and the Legislative – is present, which circumstance is absent in the case of rules, regulations and
executive orders.  Indeed, a law
(statute) passed by Congress is subject to the approval or veto of the
President, whose disapproval cannot be overridden except by the vote of
two-thirds (2/3) of all members of each House of Congress.^[12] A
treaty is entered into by the President with the concurrence of the Senate,^[13] which is not required in the case of rules,
regulations or executive orders which are exclusive acts of the President.  Hence, to nullify the same, a lesser number
of votes is necessary in the Supreme Court than that required to invalidate a
law or treaty.

Although the foregoing
refers to rules, regulations and executive orders issued by the President, the
dictum applies with equal force to executive proclamations, 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 Philippine’s 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.

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 Barcelon vs. Baker^[20] and
Montenegro vs. 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 vs. Commission on Elections,^[22] the political-question theory adopted in Mabanag vs. 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 vs. Baker and
Mabanag vs. 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:

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 vs. 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.

* * *      * * *

”
‘ * * * 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 III. 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 a 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 to him, free from
judicial control, so long as he observes the laws and acts within the limits
of the power conferred.  His discretionary acts
cannot be controllable, not primarily because they are of a political nature,
but because the Constitution and laws have placed the particular matter under
his control.  But every officer under a constitutional government must act according
to law and subject to its restrictions, and every departure therefrom
or disregard thereof must subject him to 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.’ (Italics 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 court 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 vs. 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 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 vs. Borden^[31] in support of its 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.

Luther vs. 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.

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.

The charter government, which was supported by a large number of
citizens of the state, contested, however, the validity of said
proceedings.  This notwithstanding, one
Thomas W. Dorr, who had been elected governor under the new Constitution of the
rebels, prepared to assert authority by force of arms, and many citizens
assembled to support him.  Thereupon, the charter government passed an
Act declaring the state under Martial Law and adopted measures to repel
the threatened attack and subdue the rebels. 
This was the state of affairs when the defendants, who were in the
military service of charter government and were to arrest Luther, for engaging
in the support of the rebel government – which
was never able to exercise any authority in the state – broke into his house.

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.

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 vs. 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 analagous 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.

Then, too, the case of Luther vs. 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 vs. 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.

In short, the views expressed by the Federal Supreme Court in
Luther vs. Borden, decided in 1849, on matters other than those
referring to its power to review decisions of a state court concerning the
constitution and government of that state, not the Federal Constitution
or Government, are manifestly neither controlling, nor even persuasive in the
present cases, having — as the Federal Supreme Court admitted — no
authority whatsoever to pass upon such matters or to review decisions of
said state court thereon.  In fact,
referring to that case, the Supreme Court of Minnessota
had the following to say:

“Luther vs. Borden, 7 How. 1, 12 L. Ed. 581, is
always cited by those who assert that the courts have no power to determine
questions of a political character.  It
is interesting historically, but it has not
the slightest application
to the case at bar.   When carefully
analyzed, it appears that it merely determines that the federal courts will accept as final and controlling a decision of the
highest court of a state upon a question of the construction of the
Constitution of the state.* *
*.”^[33]

Baker vs. Carr,^[34] cited by respondents, involved an
action to annul a Tennessee
statute apportioning the seats in the General Assembly among the counties of
the State, upon the theory that the legislation violated the equal protection
clause.  A district court dismissed the
case upon the ground, among others, that the issue was a political one, but,
after a painstaking review of the jurisprudence on the matter, the Federal
Supreme Court reversed the
appealed decision and held that said issue was
justiciable
and non-political, inasmuch as: “*
* * (d)eciding whether a matter has in any
measure been committed by the Constitution to another branch of
government, or whether the action of that branch exceeds whatever
authority has been committed, is itself a delicate exercise in constitutional
interpretation, and is a responsibility
of this Court as ultimate interpreter of the Constitution * * *.”

Similarly, in Powell vs. McCormack,^[35] the same Court, speaking through then
Chief Justice, Warren, reversed a decision of the Court of Appeals
of New York affirming that of a Federal District Court, dismissing Powell’s
action for a declaratory judgment
declaring thereunder that he — whose qualifications
were uncontested — had been unlawfully excluded from the 90th Congress of the
U.S.  Said dismissal was predicated upon
the ground, inter alia, that the issue was political, but the Federal Supreme Court
held that it was clearly a justiciable one.

The Supreme Court of Minnessota
undertook a careful review of American jurisprudence on the matter.  Owing to the lucidity of its appraisal
thereof, We append the same to this opinion as Annex A thereof.

After an exhaustive analysis of the cases on this subject, the
Court concluded:

“The authorities are thus practically
uniform in holding that
whether a constitutional amendment has been properly adopted according to the
requirements of an existing Constitution is
a judicial question.  There can be little doubt that the
consensus of judicial opinion is to the effect that it is the absolute duty of the judiciary to determine whether the Constitution has been
amended in the manner required by the Constitution, unless a special tribunal
has been created to determine the question; and even then many of the courts
hold that the tribunal cannot be permitted to illegally amend the organic law.
* * *.”^[36]

In the light of the foregoing, and considering that Art. XV of
our 1935 Constitution prescribes the method or procedure for its amendment, it
is clear to my mind that the question
whether or not the revised Constitution drafted by the 1971 Constitutional
Convention has been ratified in accordance with said Art. XV is a justiciable one and non-political in nature, and that it is
not only subject to judicial inquiry, but, also, that it is the Court’s bounden
duty to decide such question.

The Supreme Court of the United States has meaningfully postulated that “the
courts cannot reject as ‘no law suit’ ” –  because it allegedly involves a political
question – “a bona fide controversy as to whether some action denominated
‘political’ exceeds constitutional
authority.”^[37]

III

Has the proposed new or revised Constitution been
ratified conformably to said Art. XV of the 1935 Consti­tution?

Petitioners in L-36142 maintain the negative view, upon the
ground: (1) that the President “is without authority to create the
Citizens’ Assemblies” through which, respondents maintain, the proposed
new Constitution has been ratified; (2) that said Assemblies “are without
power to approve the proposed Constitution”; (3) that the President
“is without power to proclaim the ratification by the Filipino people of
the proposed Constitution”; and (4) that “the election held (in the
Citizens’ Assemblies) to ratify the proposed Constitution was not a free
election, hence null and void.”

Apart from substantially reiterating these grounds in support of
said negative view, the petitioners in L-36164 contend: (1) that the President
“has no power to call a plebiscite for the ratification or rejection”
of the proposed new Constitution or “to appropriate funds for the holding
of the said plebiscite”; (2) that the proposed new or revised Constitution
“is vague and incomplete,” as well as “contains provisions which
are beyond the powers of the 1971 Convention to enact,” thereby rendering
it “unfit for * * * submission to the people”; (3) that “(t)he
period of time between November 30, 1972 when the 1972 draft was approved and January 11-15, 1973,” when
the Citizens’ Assemblies supposedly ratified said draft, “was too short,
worse still, there was practically no time for the Citizens’ Assemblies to
discuss the merits of the Constitution which the majority of them have not read
and which they never knew would be submitted to them for ratification until
they were asked the question — ‘do you approve the New Constitution? ‘ during
the said days of the voting”; and that “(t)here was altogether no
freedom of discussion and no opportunity to concentrate on the matter submitted
to them when the 1972 draft was supposedly submitted to the Citizens’
Assemblies for ratification.”

Petitioner in L-36236
added, as arguments in support of the negative view, that: (1) “(w)ith a government-controlled press, there can never be a
fair and proper submission of the proposed Constitution to the people”;
and (2) Proclamation No. 1102 is null and void “(i)nasmuch as the ratification process” prescribed
“in the 1935 Constitution was not followed.”

Besides adopting substantially some of the grounds relied upon by
the petitioners in the above-mentioned cases, the petitioners in L-36283 argue
that “(t)he creation of the Citizens’
Assemblies as the vehicle for the ratification of the Constitution was a
deception upon the people since the President announced the postponement of
January 15, 1973 plebiscite to either February 19 or March 5, 1973.”^[38]

The reasons adduced by the petitioners in L-36165 in favor of the
negative view have already been set forth earlier in this opinion.  Hence, it is unnecessary to reproduce them
here.  So it is, with respect to the
positions taken in L-36165 by counsel for therein respondents Gil J. Puyat and Jose Roy – although more will be said later about
them – and by the Solicitor General, on behalf of the other respondents in that
case and the respondents in the other cases.

1.
What is the procedure prescribed by the 1935 Constitution for its amendment?

Under section 1 of Art. XV of said Constitution, three (3) steps
are essential, namely:

1. That the amendments to the Constitution be pro­posed either by
Congress or by a convention called for that purpose, “by a vote of three-fourths
of all the Members of the Senate and the House of Representatives voting
separately,” but “in joint session assembled”;

2. That such amendments be “submitted to the people for their
ratification” at an “election”; and

3. That such amendments be “approved by a majority of the
votes cast” in said election.

Compliance with the first requirement is virtually conceded,
although the petitioners in L-36164 question the authority of the 1971
Constitutional Convention to incorporate
certain provisions into the draft of the new or revised Constitution.  The main issue in these five (5) cases
hinges, therefore, on whether or not the last two (2) requirements have been
complied with.

2. Has
the contested draft of the new or revised Constitution been “submitted to
the people for their ratification” conformably to Art. XV of the
Constitution?

In this connection, other provisions of the 1935 Constitution
concerning “elections” must, also, be taken into account, namely,
section 1 of Art. V and Art. X of said Constitution.  The former reads:

“Section 1.  Suffrage
may be exercised by male citizens of the Philippines
not otherwise disqualified by law, who are twenty-one years of age or over and
are able to read and write, and who shall have resided in the Philippines
for one year and in the municipality wherein they propose to vote for at least
six months preceding the election.  The
National Assembly shall extend the right of suffrage to women if in a
plebiscite which shall be held for that purpose within two years after the
adoption of this Constitution, not less than three hundred thousand women
possessing the necessary qualifications shall vote affirmatively on the
question.”

Sections 1 and 2 of Art. X of the Constitution ordain in part:

“Section 1. There shall be an independent Commission
on Elections composed of a Chairman and two other Members to be appointed by
the President with the consent of the Commission on Appointments, who shall
hold office for a term of nine years and may not be reappointed. * * *

“* * *              * * *

“Sec. 2. The Commission on Elections shall have exclusive charge of
the enforcement and administration of all laws relative to the conduct
of elections and shall exercise all other functions which may be conferred
upon it by law.  It shall decide, save
those involving the right to vote, all administrative questions, affecting
elections, including the determination of the number and location of polling
places, and the appointment of election inspectors and of other election
officials.  All law enforcement agencies
and instrumentalities of the Government, when so required by the Commission,
shall act as its deputies for the purpose of insuring free, orderly, and
honest elections.  The decisions, orders,
and rulings of the Commission shall be subject to review by the Supreme Court.

“* * *         *
* * “^[39]

a.  Who may vote in a
plebiscite under Art. V of the Constitution?

Petitioners maintain that
section 1 of Art. V of the Constitution is a limitation upon the exercise of the right of suffrage.  They claim that no other persons than
“citizens of the Philippines not otherwise disqualified by law, who are twenty-one years of age or over
and are able to read and write,
and who shall have resided in the Philippines for one year and in the
municipality wherein they propose to vote for at least six months preceding the election,” may
exercise the right of suffrage in the Philippines.  Upon the other hand, the Solicitor General
contends that said provision merely guarantees the right of suffrage to persons possessing
the aforementioned qualifications and none of the disqualifications prescribed
by law, and that said right may be vested by competent authorities in persons lacking some or
all of the aforementioned qualifications, and possessing some of the aforesaid
disqualifications.  In support of this
view, he invokes the permissive nature of the language – “(s)uffrage may be exercised” — used in section 1 of Art.
V of the Constitution, and the provisions of the Revised Barrio Charter,
Republic Act No. 3590, particularly sections 4 and 6 thereof, providing that
citizens of the Philippines “eighteen years of age or over,” who are
registered in the list of barrio assembly members, shall be members thereof
and may participate as such in the plebiscites prescribed in said Act.

I cannot accept the Solicitor General’s theory. Art. V of the
Constitution declares who may exercise the right of suffrage,
so that those lacking the qualifications therein prescribed may not exercise
such right.  This view is borne out by the
records of the Constitutional Convention that drafted the 1935
Constitution.  Indeed, section 1 of Art.
V of the 1935 Constitution was largely based on the report of the committee on
suffrage of the Convention that drafted said Constitution, which report was, in
turn, “strongly influenced by the election laws then in force in the
Philippines * * *”^[40]
Said committee had recommended: (1) “That the right of suffrage should be
exercised only by male citizens of the Philippines.” (2) “That it
should be limited to those who could read and
write.” (3) “That the duty to vote should be made obligatory.” It appears that the first recommendation was discussed
extensively in the Conven­tion, and that, by way of compromise, it was
eventually agreed to include, in section 1 of Art. V of the Constitution, the
second sentence thereof imposing upon the National Assembly, established by the
original Constitution — instead of the bicameral Congress subsequently created
by amend­ment of said Constitution — the duty to “extend the right of
suffrage to women, if in a plebiscite to be held for that purpose within two
years after the adoption of this Constitution, not less than three hundred
thousand women possessing the necessary qualifications shall vote affirmatively
on the question.”^[41]

The third recommendation
on “compulsory” voting was, also, debated upon rather
extensively, after which it was rejected by the Convention.^[42] This accounts, in my opinion, for the
permissive language used in the first sentence of said Art. V. Despite some
debates on the age qualification — amendments having been proposed to reduce
the same to 18 or 20, which were rejected, and the residence qualification, as
well as the disqualifications to the exercise of the right of suffrage – the second recommendation limiting the right of suffrage to those who could “read and
write” was — in the language of
Dr. Jose M. Aruego, one of the Delegates to said
Convention “readily approved in the Convention without any dissenting vote,”
although there was some debate on whether the Fundamental Law should specify
the language or dialect that the voter could read and write, which was decided
in the negative.^[43]

What is relevant to the issue before Us is the fact that the
constitutional provision under consideration was meant to be and is a grant
or conferment of a right to persons possessing the qualifications and none of
the disqualifications therein mentioned, which in turn, constitute a limitation of or restriction to said
right, and cannot, accordingly, be dispensed with, except by constitutional
amendment.  Obvi­ously, every such
constitutional grant or conferment of a right is necessarily a negation of the
authority of Congress or of any other
branch of the Government to deny said right to the subject of the grant — and,
in this sense only, may the same partake of the nature of a guarantee.  But, this does not imply, not even remotely,
that the Fundamental Law allows Congress or anybody else to vest in those
lacking the qualifications and having the disqualifications mentioned in the
Constitution the right of suffrage.

At this juncture, it is
noteworthy that the committee on suffrage responsible for the adoption of
section 1 of Art. V of the Constitution was “strongly influenced by
the election laws then in force in the Philippines.” Our first Election Law was Act 1582,
passed on January 9, 1907, which was partly amended by Acts 1669, 1709, 1726
and 1768, and incorporated into the Administrative Code of 1916 — Act 2657 —as
chapter 20 thereof, and then in the Administrative Code of 1917 — Act 2711 — as
chapter 18 thereof, which, in turn, was amended by Act 3387, approved on
December 3, 1927.  Sections 431 and 432
of said Code of 1917, prescribing, respectively, the qualifications for and
disqualifications from voting, are quoted below.^[44] In
all of these legislative acts, the provisions concerning the qualifications of
voters partook of the nature of a grant or recognition of the right of suffrage, and, hence, of a denial thereof to those who
lacked the requisite qualifications and possessed any of the statutory
disqualifications.  In short, the history
of section 1, Art. V of the Constitution, shows beyond doubt that the same con­ferred
— not guaranteed — the authority to exercise the right of suffrage to persons
having the qualifications prescribed therein and none of the disqualifications
to be specified in ordinary laws and, by necessary implication, denied such right to those lacking any of said qualifications or having any of the aforementioned disqualifications.

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 vs. 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.

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

It is similarly inconceivable that those who drafted the 1935
Constitution intended section 1 of Art. V thereof to apply only to
elections of public officers, not to plebiscites for the ratification of amendments to the
Fundamental Law or a revision thereof, or of an entirely new Constitution, and to permit the legislature to
require lesser qualifications for such ratification, notwithstanding the fact
that the object thereof is much more important — if not fundamental, such as
the basic changes introduced in the draft of the revised Constitution adopted
by the 1971 Constitutional Convention, which are intended to be in force
permanently, or, at least for many
decades, and to affect the way of life of the nation – and, accordingly,
demands greater experience and maturity on the part of the electorate than that
required for the election of public officers,^[49] whose average term ranges from 2 to 6 years.

It is admitted that
persons 15 years of age or over, but below 21 years, regardless of whether or
not they possessed the other qualifications laid down in both the Constitution
and the present Election Code,^[50] and of whether or not they are disqualified
under the provisions of said Constitution and Code,^[51] or
those of Republic Act No. 3590^[52] have
participated and voted in the Citizens’ Assemblies that have allegedly ratified
the new or revised Constitution drafted by the 1971 Constitutional Convention.

In fact, according to the
latest official data, the total umber 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
14,976,561 “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 far exceeded the
number of registered voters under
the Election Code in force in January 1973.

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 “the 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 with the illegal or
spurious * * *.”^[54]

In Usman
vs. 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 vs.
Benville County Commissioners, 65 N.W. 956, 64
Min. 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 in the measure proposed.”^[58]

In short, said Art. XV 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. And the 1935 Constitution has been so consistently
interpreted in all plebiscites for the ratification or
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.

b. How should
the plebiscite be held?  ( COMELEC
supervision indispensable; essential requisites)

Just as essential as compliance with said Art. V of the 1935
Constitution is that of Art. X thereof, particularly its sections 1 and 2.  Indeed, section 1 provides that “(t)here
shall be an independent Commission on Elections * * *.”
The point to be stressed here is the term “independent.” Indeed, why
was the term used?

In the absence of said constitutional provision as to the
independence of the Commission, would it have been dependent upon either
Congress or the Judiciary?  The answer
must be in the negative, because the functions of the Commission –
“enforcement and administration” of election laws – are neither
legislative nor judicial in nature, and, hence, beyond the field allocated to
either Congress or courts of justice. 
Said functions are by their nature essentially executive, for
which reason, the Commission would be under the “control” of the
President, pursuant to section 10, paragraph (1) of Art. VII of the
Constitution, if Art. X thereof did not explicitly declare that it (the
Commission) is an “independent” body. 
In other words, in amending the original 1935 Constitution, by inserting
therein said Art. X, on the Commission on Elections, the purpose was to make
said Commission independent principally
of the Chief Execu­tive.

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.

The independence of the Commission was sought to be strengthened by the long term of office of
its members – nine (9) years, except those first appointed^[59] the
longest under the Constitution, second only to that of the Auditor General,^[60] by
providing that they may not be removed from office except by impeachment,
placing them, in this respect, on the same plane as the President, the
Vice-President, the Justices of the Supreme Court and the Auditor General; that
they may not be reappointed; that their salaries “shall be neither
increased nor diminished during their term of office”; that the decisions
of the Commission “shall be subject to review by the Supreme Court”
only^[61] that
“(n)o pardon, parole, or suspension of sentence for the violation of any
election law may be granted without the favorable recommendation of the
Commission”^[62];
and that its chairman and
members “shall not, during their continuance in office, engage in the
practice of any profession, or intervene, directly or indirectly, in the
management or control of any private enterprise which in anyway may be affected
by the functions of their office; nor shall they, directly or indirectly, be
financially interested in any contract with the Government or any subdivision
or instrumentality thereof.”^[63] Thus, the framers of the amendment to the
original Constitution of 1935 endeavored to do everything possible to protect
and insure the independence of each member of the Commission.

With respect to the
functions thereof as a body, section 2 of said Art. X ordains that
“(t)he Commission on Elections shall have exclusive charge of the enforcement and
administration of all laws relative to the conduct of
elections, “apart from such other “functions which may be conferred
upon it by law.” It further provides that the Commission “shall
decide, save those involving the right to vote, all administrative
questions, affecting elections, including the determination of the number and
location of polling places, and the appointment of election inspectors and of
other election officials.” And, to forestall possible conflicts or
frictions between the Commission, on the one hand, and the other offices or
agencies of the executive department, on the other, said section 2 postulates
that “(a)ll law enforcement agencies and instrumentalities of the
Government, when so required by the Commission, shall act as its deputies for the purpose of insuring free,
orderly, and honest elections.” Not satisfied with this, it declares, in
effect, that “(t)he decisions, orders, and rulings of the Commission”
shall not be subject to review, except by the Supreme Court.

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; the 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
national files of registered voters; the composition and appointment of boards
of election inspectors; the particulars of the official ballots to be used and
the precautions to be taken to insure the 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, provincial and
national boards of canvassers; the representation of 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 violations of the provisions
of said Election Code and the penalties for such violations.

Few laws may be found with such a meticulous and elaborate set of
provisions aimed at “insuring free, orderly, and honest elections,”
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
elections 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.

In Glenn vs. Guan,^[65]
involving the casting of many votes, openly, without complying with the
requirements of the law pertinent thereto, it was held that the “election
officers” involved “cannot be too strongly condemned” therefor
and that if they “could legally dispense with such requirement * * * they
could with equal propriety dispense with all of them, including the one that the vote shall be by secret ballot, or even by
ballot at all * * *.”

Moreover, upon the formal presentation to the Executive of the
proposed Constitution drafted by the 1971 Constitutional Convention, or on
December 1, 1972, Presidential Decree No. 73 (on the validity of which — which
was contested in the plebiscite cases, as well as in the 1972 habeas corpus
cases.^[66]
We need not, in the cases at bar, express any opinion) was issued, calling a
plebiscite, to be held on January 15, 1973, at which the proposed Constitution
would be submitted to the people for ratification or rejection; directing the
publication of said proposed Constitution; and declaring, inter alia, that
“(t)he provisions of the Election Code of 1971, insofar as they are not
inconsistent” with said decree — excepting those “regarding rights
and obligations of political parties and candidates” — “shall apply to the
conduct of the plebiscite.” Indeed, section 2 of said Election Code of
1971 provides that “(a)Il elections of public officers except barrio officials
and plebiscites shall be conducted in the manner
provided by this Code.” General Order No. 20, dated January 7, 1973,
postponing, until further notice, “the plebiscite scheduled to be held on
January 15, 1973,” said nothing about the procedure to be followed in the
plebiscite to take place at such notice, and no other order or decree has been
brought to Our attention, expressly or impliedly repealing the provisions of
Presidential Decree No. 73, insofar as said procedure is concerned.

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 the proposed Constitution * * *
temporarily suspending the effects of Proclamation No. 1081 for the purposes of
free and open debate 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 the
ratification or rejection of the proposed Constitution — remained in force,
assuming that said Decree is valid.

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
decisions”; that such Citizens’ Assemblies “shall consider vital
national issue * * * 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 do 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 in Art.
V of the 1935 Constitution.  The
provision of Presidential Decree No. 86-A directing the immediate submission of
the result thereof to the Department of Local Governments and 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 relative 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.

We are told that Presidential Decree No. 86 was further amended
by Presidential Decree No. 86-B, dated January 7, 1973, ordering “that
important national issues shall from time to time be referred to the Barangays (Citizens Assemblies) for resolution in
accordance with Presidential Decree No. 86-A dated January 5, 1973 and that the
initial referendum shall include the matter of ratification of the Constitution
proposed by the 1971 Constitutional Convention” and that “(t)he
Secretary of the Department of Local Governments and Community Development
shall insure the implementation of this order.” As in the case of
Presidential Decrees Nos. 86 and 86-A, the foregoing directives do not
necessarily exclude the exercise of the powers vested by the 1935 Constitution
in the Commission on Elections, even if the Executive had the authority to
repeal Art. X of our Fundamental Law — which he does not possess.  Copy of Presidential Decree No. 86-B is
appended hereto as Annex B hereof.

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 Executive Department, who had been publicly urged and
ostensibly promised to work for the ratification of the proposed revised
Constitution would be favored thereby, owing to the practically 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 filed 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
ensure 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 authorities agree that the
legal definition of an election, as well as that which is usually understood by
the term, is a choosing or a selection by those having a right to participate
(in the selection) of those who shall fill the office, or of the adoption or rejection of any public measure affecting the
territory involved 15 Cyc. 279; Lewis vs.
Boynton, 25 Cols. 486, 55 Pac. 732; Saunders vs.
Haynes, 13 Col. 145; Seaman vs. Baughman, 82 Iowa
216, 47 N.W. 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 the 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 “substantially” complied with; and that
the Court should 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 whom its powers
are derived.

The major flaw in this process of rationalization is that it
assumes, as a fact, the very premise on which it is predicated, and which,
moreover, is contested by the petitioners. 
As the Supreme Court of Minnessota has aptly
put it –

” * * * every officer under a constitutional government must act according to
law and subject to its restrictions, and every
departure therefrom or disregard thereof must subject him to the
restraining and controlling 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. * * *.”

Accordingly, the issue boils down to whether or not the Executive
acted within the limits of his authority when he certified in Proclamation No.
1102 “that the Constitution proposed by the nineteen hundred and seventy–one (1971) Constitutional Convention has been ratified by an
overwhelming majority of all of the votes cast by the members of all the Barangays (Citizens Assemblies) throughout the Philippines,
and has thereby come into effect.”

In this connection, it is not claimed that the Chief Executive
had personal knowledge of the data he certified in said proclamation.  Moreover, Art. X of the 1935 Constitution was
precisely inserted to place beyond the Executive the power to supervise
or even exercise any authority whatsoever over “all laws relative to the conduct of
elections,” and, hence, whether the elections are for the choice or
selection of public officers or for the ratification or rejection of any
proposed amendment, or revision of the Fundamental Law, since the proceedings
for the latter are, also, referred to in said Art. XV as “elections.”

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 province to the Department of Local Governments and
Community Development, which tabulated the results of the voting in the
citizens assemblies through out the Philippines and then turned them over to
Mr. Francisco 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 Local Governments and
Community Development) to the Chief Executive, who, accordingly, issued
Proclamation No. 1102.

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

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

The theory that said
proclamation is “conclusive” upon the Court is clearly
untenable.  If it were, acts of the
Executive and those of Congress could not possibly be annulled or invalidated
by courts of justice.  Yet, such is not
the case.  In fact, even a resolution of
Congress declaring that a given person has been elected President or
Vice-President of the Philippines as
provided in the Constitution^[69] is
not conclusive upon the
courts.  It is no more than prima facie evidence of what is attested to by
said resolution.^[70] If assailed directly in appropriate
proceedings, such as an election protest, if and when authorized by law, as it
is in the Philippines, the Court may receive evidence and declare,
in accordance therewith, who was duly elected to the office involved.^[71] If
prior to the creation of the Presidential Electoral Tribunal, no such protest
could be filed, it was not because the resolution of
Congress declaring who had been elected President or Vice-President was conclusive upon courts of justice, but because there was no law permitting the filing of such protest and declaring what court or body would hear and decide the same.  So too, a declaration to the effect that a
given amendment to the Constitution or revised or new Constitution has been
ratified by a majority of the votes cast therefor, may be duly assailed in court and be the object of judicial inquiry, in direct proceedings therefor —
such as the cases at bar — and the issue raised therein may and should be decided in
accordance with the evidence presented.

The case of In re McConaughy^[72]
is squarely in point.  “As the
Constitution stood from the organization of the state” – of Minnessota – “all taxes were required to be raised
under the system known as the ‘general property tax.’ Dissatisfaction with the
results of this method and the development of more scientific and satisfactory
methods of raising revenue induced the Legislature to submit to the people an
amendment to the Constitution which provided merely that taxes shall be uniform
upon the same class of subjects.  The
proposed amendment was submitted at the general election held in November 1906
and in due time it was certified by the state canvassing board and
proclaimed by the Governor as having been legally adopted.  Acting upon the assumption that the amendment
had become part of the Constitution, the Legislature enacted statutes providing
for a State Tax Commission and a mortgage registry tax, and the latter statute,
upon the same theory, was held constitutional” by said Court.  “The district court found that the
amendment had not in fact been adopted and on this appeal” the Supreme Court was “required to determine the correctness of that conclusion.”

Referring to the effect of the certification of the
State Board of Canvassers created by the Legislature and of the proclamation made by
the Governor based thereon, the Court held: “It will be noted that this
board does no more than tabulate the reports received from the various county
boards and add up and certify the results. 
State vs. Mason, 45 Wash
234, 88 Pac. 126, 9 L.R.A. (U.S.)
1221. It is settled law that the decisions of election officers, and canvassing
boards are not conclusive and
that the final decision must rest
with the courts, unless the law declares that the decisions of the board shall
be final” — and there is no such law in the cases at bar. ” * * * The
correctness of the conclusion of the state board rests upon the correctness of
the returns made by the county boards and it is inconceivable that it
was intended that this statement result should be final and conclusive regardless
of the actual facts.  The
proclamation of the Governor adds nothing in the way of conclusiveness to the
legal effect of the action of the canvassing board.  Its purpose is to formally notify the people
of the state of the result of the voting as found by the canvassing board.  James on Const. Conv.
(4th. Ed.) sec. 523.”

In Bott vs. Wartz,^[73]
the Court reviewed the statement of results of the election made by the canvassing
board, in order that the true results could be judicially determined.  And so did the court in Rice vs. Palmer.^[74]

Inasmuch as Art. X of the 1935 Constitution places under the
“exclusive” charge of the Commission on Elections, “the enforcement
and administration of all laws relative to the conduct of elections,” independently of the Executive, and there is
not even a certification by the Commission in support of the alleged results of the citizens’ assemblies
relied upon in Proclamation No. 1102 — apart from the fact that on January 17,
1973 neither the alleged president of the Federation of Provincial or City Barangays nor the Department of Local Governments had
certified to the President the alleged result of the citizens’ assemblies all
over the Philippines — it follows necessarily that, from a constitutional and
legal viewpoint, Proclamation No. 1102 is not even prima facie evidence
of the alleged ratification of the proposed Constitution.

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.

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 “under 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; additional question
underscored.]

“[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 of 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 or
satisfactory.  The approval of the majority
of the votes cast in a 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 — indicate
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.

“* * * *           *
* * * * *

“* * * 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 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. * * * 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 as 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 to 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 a 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.

If this was the situation in Bataan —
one of the province 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 vs. 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, 1973, 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.

As regards the so-called political organs of the Government, I
gather that respondents refer mainly to the offices under the Executive Department.  In a sense, the latter performs some
functions which, from a constitutional viewpoint, are political in nature, such
as in recognizing a new state or government, in accepting diplomatic
representatives accredited to our Government, and even in devising
administrative means and ways to better carry into effect Acts of Congress
which define the goals or objectives thereof, but are either imprecise or
silent on the particular measures to be resorted to in order to achieve the
said goals or delegate the power to do so, expressly or impliedly, to the
Executive.  This, notwithstanding, the
political organ of a government that purports to be republican is essentially
the Congress or Legislative Department. 
Whatever may be the functions allocated to the Executive Department —
specially under a written, rigid Constitution, with a republican system of
Government like ours — the role of that Department is inherently, basically and
fundamentally executive in nature — to “take care that the laws be faithfully
executed,” in the language of our 1935 Constitution.^[79]

Consequently, I am not prepared to concede that the acts of the
officers and offices of the Executive Department, in line with Proclamation No.
1102, connote a recognition thereof or an acquiescence thereto.  Whether they recognized the proposed
Constitution or acquiesce thereto or not is something that cannot legally,
much less necessarily or even normally, be deduced from their acts in accordance
therewith, because they are bound to obey and act in conformity with
the orders of the President, under whose “control” they are, pursuant to the 1935 Constitution.  They
have absolutely no other choice, specially in view of Proclamation
No. 1081 placing the Philippines
under Martial Law.  Besides, by virtue of
the very decrees, orders and instructions issued by the President thereafter,
he had assumed all powers of Government — although some
question his authority to do so — and, consequently, there is hardly anything
he has done since the issuance of Proclamation No. 1102, on January 17, 1973 —
declaring that the Constitution proposed by the 1971 Constitutional Convention
has been ratified by the overwhelming majority of the people — that he could
not do under the authority he claimed to have under Martial Law, since
September 21, 1972, except the power of supervision over inferior courts and
its personnel, which said proposed Constitution would place under the Supreme
Court, and which the President has not ostensibly exercised, except as to some
minor routine matters, which the Department of Justice has continued to handle,
this Court having preferred to maintain the status
quo in connection therewith
pending final determination of these cases, in which the effectivity
of the aforementioned Constitution is disputed.

Then, again, a given department of the Government cannot
generally be said to have “recognized” its own, acts.  Recognition
normally connotes the acknowledgment by a party of the acts of another.  Accordingly, when a
subordinate officer or office of the Government complies with the commands of a
superior officer or office, under whose
supervision and control he or it is, the former merely obeys the
latter.  Strictly speaking, and from a
legal and constitutional viewpoint, there is no act of recognition involved
therein.  Indeed, the lower officer or
office, if he or it acted otherwise, would just be guilty of insubordination.

Thus, for instance, the case of Taylor
vs. Commonwealth^[80]
— cited by respondents herein in support of the theory of the people’s
acquiescence — involved a constitution ordained in 1902 and “proclaimed by
a convention duly called by a direct vote of the people of the state to revise
and amend the Constitution of 1869.  The
result of the work of that Convention has been recognized, accepted  and acted upon as the only valid
Constitution of the State” by —

1. The “Governor of the State in swearing fidelity to it and
proclaiming it, as directed thereby”;

2. The “Legislature in its
formal official act adopting a joint resolution July 15, 1902,
recognizing the Constitution ordained by the Convention * * *”;

3. The “individual oaths of its members to support it, and by its having been engaged for nearly a year, in legislating under it and putting
its provisions into operation * * *”;

4.  The “judiciary in
taking the oath prescribed thereby to support it and by enforcing its
provisions * * *”; and

5. The “people in their primary capacity by peacefully
accepting it and acquiescing in it, by registering as voters under it to the
extent of thousands throughout the State, and by voting, under its provisions,
at a general election for their representatives in the Congress of the United
States.”

Note that the New Constitution of Virginia, drafted by a
convention whose members were elected directly by the people, was not submitted to the people for ratification or rejection
thereof.  But, it was recognized, not by the
convention itself, but by other sectors of the Government, namely,
the Governor; the Legislature — not merely by individual acts of its members,
but by formal joint resolution of its two (2) chambers; by the
judiciary; and by the people, in the various ways specified above.  What is more, there was no martial law.  In the present cases, none of the foregoing acts of acquiescence was present.  Worse still, there is martial law, the
strict enforcement of which was announced shortly before the alleged citizens’ assemblies.  To top it all, in the Taylor case, the effectivity of the contested amendment was not contested judicially until about one (1) year after the amendment had
been put into operation in all branches of the Government, and
complied with by the people who participated in the elections held pursuant to
the provisions of the new Constitution. 
In the cases under consideration, the
legality of Presidential Decree No. 73 calling a plebiscite to be held on
January 15, 1973, was impugned as early as December 7, 1972, or five (5) weeks before the scheduled plebiscite,
whereas the validity of Proclamation No. 1102 declaring on January 17,
1973, that the proposed Constitution had been ratified – despite General Order
No. 20, issued on January 7, 1972, formally and officially suspending the plebiscite until further notice was impugned
as early as January 20, 1973, when L-36142 was filed or three (3)days after the issuance of Proclamation No. 1102.

It is further alleged that a majority of the members of our House
of Representatives and Senate have acquiesced in the new or revised
Constitution, by filing written statements opting to serve in the Ad Interim
Assembly established in the Transitory Provisions of said Constitution.  Individual acts of recognition by members of
our legislature, as well as of other collegiate bodies under the government,
are invalid as acts of said legislature or bodies, unless its members have
performed said acts in session duly assembled, or unless
the law provides otherwise, and there is no such law in the Philippines.  This is a well-established principle of
Administrative Law and of the Law of Public Officers, and no plausible reason
has been adduced to warrant departure therefrom.^[81]

Indeed, if the members of Congress were generally agreeable to
the proposed Constitution, why did it become necessary to padlock its premises
to prevent its meeting in session on January
22, 1973, and thereafter as provided in the 1935 Constitution?  It is true that, theoretically, the members
of Congress, if bent on discharging their functions under said Constitution,
could have met in any other place, the building in which they perform their
duties being immaterial to the legality of their official acts.  The force of this argument is, however,
offset or dissipated by the fact that, on or about December 27, 1972, immediately
after a conference between the Executive, on the one hand, and members of
Congress, on the other, some of whom expressed the wish to meet in session on
January 22, 1973, as provided in the 1935 Constitution, a Daily Express
columnist (Primitivo Mijares)
attributed to Presidential Assistant Guillermo de Vega a statement to the
effect that ” ‘certain members of the Senate appear to be missing the
point in issue’ when they reportedly insisted
on taking up first the question of convening Congress.” The Daily Express of that
date,^[82]
likewise, headlined, on its front page, a “Senatorial Plot Against
‘Martial Law Government’ Disclosed.” Then, in its issue of December 29, 1972, the same paper
imputed to the Executive an appeal “to diverse groups involved in a conspiracy to undermine” his powers “under martial law to desist from provoking a constitutional crisis * * * which may result in the exercise by me of
authority which I have not exercised.“

No matter how good the intention behind these statements may have
been, the idea implied therein was too clear and ominous for any
member of Congress who thought of organizing, holding or taking part in a
session of Congress, not to get the impression that he could hardly do so
without inviting or risking the application of Martial Law to him.  Under these conditions, I do not feel
justified in holding that the failure of the members of Congress to meet since January 22, 1973, was due to their
recognition, acquiescence in or conformity with the provisions of the aforementioned
Constitution, or its alleged ratification.

For the same reasons, especially because of Proclama­tion No.
1081, placing the entire Philippines under Martial Law, neither am I prepared
to declare that the people’s inaction as regards Proclamation No. 1102, and
their compliance with a number of Presidential orders, decrees and/or
instructions — some or many of which have admittedly had salutary effects —
issued subsequently thereto amounts, constitutes or attests to a ratification,
adoption or approval of said Proclamation No. 1102. In the words of the Chief
Executive, “martial law connotes power of the gun, meant coercion by the
military, and compulsion and intimidation.”^[83]
The failure to use the gun
against those who comply with the orders of the party wielding the weapon does not
detract from the intimidation that Martial Law necessarily connotes.  It may reflect the good, reasonable and
wholesome attitude of the person who has the gun, either pointed at others,
without pulling the trigger, or merely kept in its holster, but not without
warning that he may or would use it if he deemed it necessary.  Still, the intimidation is there, and
inaction or obedience of the people, under these conditions, is not necessarily
an act of conformity or acquiescence. 
This is specially so when we consider that the masses are, by and large,
unfamiliar with the
parliamentary system, the new form of government introduced in the proposed
Constitution, with the particularity that it is not even identical to that
existing in England and other parts of the world, and that even experienced
lawyers and social scientists find it difficult to grasp the full
implications of some provisions incorporated therein.

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 an 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.

Similarly, a certification, if any, of the Secretary of the Department
of Local Governments and Community Develop­ment about the tabulated results of
the voting in the Citizens’ Assemblies allegedly held all over the
Philippines – and the records do not show that any such certification,
either to the President of the Philippines or to the President of the
Federation or National Association of presidents of Provincial Associations of presidents of municipal associations of
presidents of barrio or ward assemblies of citizens — would not, legally and
constitutionally, be worth the paper on which it is written.  Why? 
Because said Department Secretary is not the officer designated by law to superintend
plebiscites or elections held for the ratification or rejection of a proposed
amendment or revision of the Constitution and, hence, to tabulate the results
thereof.  Worse still, it is the officer
or department which, according to Article X of the 1935 Constitution, should not and must not be allowed to participate in said plebiscite — if plebiscite there was.

After citing approvingly its ruling in United
States vs. Sandoval,^[84]
the Highest Court of the United States
declared that courts “will not stand impotent before an
obvious instance of a manifestly unauthorized exercise of power.”^[85]

I cannot honestly say, therefore, that the people
have impliedly or expressly indicated their conformity to the proposed
Constitution.

VI

Are the Parties entitled to any relief?

Before attempting to
answer this question, a few words must be
said about the procedure followed in these five (5) cases.  In this connection, it should be noted that
the Court has not as yet decided whether or not to give due course to the
petitions herein or to require the respondents to answer thereto.  Instead, it has required the respondents to
comment on the respective petitions — with three (3) members of the Court
voting to dismiss them outright and then considered the comments thus submitted
by the respondents as motions to dismiss, as well as set the same for
hearing.  This was due to the
transcendental nature of the main issue raised, the necessity of deciding the
same with utmost dispatch, and the main defense set up by respondents herein,
namely, the alleged political nature of said issue, placing the same, according
to respondents, beyond the ambit of judicial inquiry and determination.  If this defense was sustained, the cases
could readily be dismissed; but, owing to the importance of the questions
involved, a reasoned resolution was demanded by public interest.  At the same time, respondents had cautioned
against a judicial inquiry into the merits of the issues posed on account of
the magnitude of the evil consequences, it was claimed, which would result from
a decision thereon, if adverse to the Government.

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 he 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.

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 — their respective counsel filed
extensive notes on their oral 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 documents 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.

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 opinions 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.                  

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

In all other respects and with regard to the other respondents 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 or
substantially, or has been acquiesced in by the people or a 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.

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.

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.

It should be stated that by virtue of the various approaches and
views expressed during the deliberations, it was agreed to synthesize the basic
issues at bar in broad general terms in five questions for purposes of taking
the votes.  It was further agreed of
course that each member of the Court would expound in his individual opinion
and/or concurrence his own approach to the stated issues and deal with them and
state (or not) his opinion thereon singly or jointly and with such priority,
qualifications and modifications as he may deem proper, as well as discuss
thereon other related issues which he may consider vital and relevant to the
cases at bar.

The five questions thus agreed upon as reflecting the basic
issues herein involved are the following:

1.  Is the issue of the
validity of Proclamation No. 1102 a justiciable, or
political and therefore non-justiciable, question?

2. Has the Constitution proposed by the 1971 Constitutional
Convention been ratified validly (with substantial, if not strict, compliance)
conformably to the applicable constitutional and statutory provisions?

4.  Has the aforementioned
proposed Constitution been acquiesced in (with or without valid ratification)
by the people?

5.  Are petitioners entitled
to relief?  And

Is the aforementioned proposed Constitution in force?

The results of the voting, premised on the individual views
expressed by the members of the Court in their respective opinions and/or
concurrences, are as follows:

1. On the first issue involving the political-question doctrine,
Justices Makalintal, Zaldivar,
Castro, Fernando, Teehankee and myself, or six (6)
members of the Court, hold that the issue of the validity of Proclamation No.
1102 presents a justiciable and non-political
question.  Justices Makalintal
and Castro did not vote squarely on this question, but, only inferentially, in
their discussion of the second question. 
Justice Barredo qualified his vote, stating
that “inasmuch as it is claimed that there has been approval by the
people, the Court may inquire into the question of whether or not there has
actually been such an approval, and, in the affirmative, the Court should keep
its hands-off out of respect to the people’s will, but, in the negative, the
Court may determine from both factual and legal angles whether or not Article
XV of the 1935 Constitution has been complied with.” Justices Makasiar, Antonio and Esguerra,
or three (3) members of the Court hold that the issue is political and
“beyond the ambit of judicial inquiry.”

2. On the second question of validity of the ratification,
Justices Makalintal, Zaldivar,
Castro, Fernando, Teehankee and myself, or six (6)
members of the Court also hold that the Constitution proposed by the 1971
Constitutional Convention was not validly ratified in accordance with Article
XV, section 1 of the 1935 Constitution, which provides only one way for
ratification, i.e., “in an election or plebiscite held in accordance with
law and participated in only by qualified and duly registered voters.”^[87]

Justice Barredo qualified his vote,
stating that “(A)s to whether or not the 1973 Constitution has been
validly ratified pursuant to Article XV, I still maintain that in the light of
traditional concepts regarding the meaning and intent of said Article, the
referendum in the Citizens’ Assemblies, specially in the manner the votes
therein were cast, reported and canvassed, falls short of the requirements
thereof.  In view, however, of the fact
that I have no means of refusing to recognize as a judge that factually there
was voting and that the majority of the votes were for considering as approved
the 1973 Constitution without the necessity of the usual form of plebiscite
followed in past ratifications, I am constrained to hold that, in the political
sense, if not in the orthodox legal sense, the people may be deemed to have
cast their favorable votes in the belief that in doing so they did the part
required of them by Article XV, hence, it may be said that in its political
aspect, which is what counts most, after all, said Article has been
substantially complied with, and, in effect, the 1973 Constitution has been
constitutionally ratified.”

Justices Makasiar, Antonio and Esguerra, or three (3) members of the Court hold that under
their view there has been in effect substantial compliance with the
constitutional requirements for valid ratification.

3. On the third question of acquiescence by the Filipino people in
the aforementioned proposed Constitution, no majority vote has been reached by
the Court.

Four (4) of its members, namely, Justices Barredo,
Makasiar, Antonio and Esguerra
hold that “the people have already accepted the 1973 Constitution.”^[88]

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 or acquiesced in by the people must be accorded recognition by
the Court, I am not at this stage prepared to state that such doctrine calls
for application in view of the shortness of time that has elapsed and the
difficulty of ascertaining what is the mind of the people in the absence of the
freedom of debate that is a concomitant feature of martial law.”

Three (3) members of the Court express their lack of knowledge
and/or competence to rule on the question. 
Justices Makalintal and Castro are joined by
Justice Teehankee in their statement that “Under
a regime of martial law, with the free expression of opinions through the usual
media vehicles 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.  Justices Makalintal
and Castro so voted on the strength of their view that “(T)he effectivity of the said Constitution, in the final
analysis, is the basic and ultimate question posed by these cases to resolve
which considerations other than judicial, and therefore beyond the competence
of this Court,^[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.

5.  On the fifth question of
whether the new Constitution of 1973 is in force:

Four (4) members of the Court, namely,
Justices Barredo, Makasiar,
Antonio and Esguerra hold that it is in force by
virtue of the people’s acceptance thereof;

Four (4) members of the Court, namely,
Justices Makalintal, Castro, Fernando and Teehankee cast no vote thereon on the premise stated in
their votes on the third question that they could not state with judicial
certainty whether the people have accepted or not accepted the Constitution;

and

Two (2) members of the Court, namely, Justice Zaldivar
and myself voted that the Constitution proposed by the 1971 Constitutional
Convention is not in force;

with
the result that there are not enough votes to declare that the new Constitution
is not in force.

ACCORDINGLY, by virtue of the majority of six (6) votes of
Justices Makalintal, Castro, Barredo,
Makasiar, Antonio and Esguerra
with the four (4) dissenting votes of the Chief Justice and Justices Zaldivar, Fernando and Teehankee,
all the aforementioned cases are hereby dismissed.  This being the vote of the majority, there is
no further judicial obstacle to the new Constitution being considered in force
and effect.  It is so ordered.

Makalintal, Ruiz Castro, Barredo, Makasiar, Antonio, and Esguerra, JJ., voted to dismiss the cases.

Zaldivar, J., dissents
in line with the personal opinion of the Chief Justice, and also dissents in a
separate opinion.

Fernando, J., dissents in
conformity with the personal views of the Chief Justice, except as to such portions
thereof on which he expresses his own thoughts as set forth in his dissenting
opinion.

Teehankee, J., dissents in conformity with the Chief Justice’s
personal opinion and files a separate dissent.

---

^[1]
Justices Makalintal, Castro, Barredo,
Makasiar, Antonio and Esguerra.

^[2]
Chief Justice Concepcion and Justices Fernando and Teehankee.

^[3]
Justice Zaldivar.

^[4]
Case G. R. No. L-36164.

^[5]
Case G. R. No. L-36236.

^[6]
Case G. R. No. L-36283.

^[7]
Who withdrew as petitioner on January
25, 1973.

^[8]
Originally, Gerardo Roxas, Ambrosio
Padilla and Salvador II, Laurel.
Now, after the withdrawal of the latter, the first two (2) only.

^[9]
Namely, Jovito R. Salonga,
Ramon V. Mitra, Jr. and Eva Estrada­ Kalaw.

^[10]
Napoleon V. Wag, et al. vs. Executive Secretary, et al.

^[11]
Araneta vs. Dinglasan,
84 Phil. 431, 437-438. See, also, Gonzales vs. Commission on Elections,
L-28196 & L-28224, Nov. 9, 1967.
Italics supplied.

^[12]
Art. VI, sec. 20(1), Constitution.

^[13]
Art. VII, sec. 10(7), Constitution.

^[14]
Italics supplied.

^[15]
Sec page 4, last paragraph, of his Comment dated Feb. 6, 1973.

^[16]
In re Opinion of Justices, 107 Atl. 673, 5 A. L. R.
1412; Crawford, Secretary of State vs. Gilchrist, 59 So. Rep. 963;
McAdams vs. Henley, 273 So. Rep. 355; Egbert v. City of Demseith, 74 N.
D. 1, 168 A. L. R. 621, 24 N. W. 2nd 907; State ex rel.
Landis, Atty. Gen. vs. Thompson, 163 So. Rep. 270; St. Louis Brequing Asso­ciation vs. George H. Moore, 64 L ed.
947; Ellingham vs. Dye, 99 N. E. Rep. 18; Johnson vs. Craft, 87
So. Rep. 375.

^[17]
Mun. of Malabang vs.
Benito, L-28113, Mar. 28, 1969; NAWASA vs. Piguing,
et al., L-35573, Oct. 11, 1968; Fernandez vs. P. Cuerva
& Co., L-21114, Nov. 25, 1967; Gonzales vs. Commission on Elections,
L-28224, Nov. 29, 1967; Bara Lidasan
vs. COMELEC, L-28089, Oct. 25, 1967; Mun. of San
Juan vs. NAWASA, L-22047, Aug. 31, 1967; Mun. of San
Joaquin vs. Siva, L-19870, Mar. 18, 1967; Pelayo vs.
Auditor General, L-23825, Dec. 24,
1965; Philippine Constitution Association vs. Gimenez, L-23326, Dec. 18; 1965; Mun.
of La Carlota vs. NAWASA, L-20232, Sept. 30, 1964; Guevara vs. Inocentes, L-25577, Mar. 15, 1966; Gillera
vs. Fernandez, L-20741, Jan. 31, 1964; Siguiente
vs. Secretary of Justice, L-20370, Nov. 29, 1963; Mun. of Naguilian vs.
NAWASA, L-18540, Nov. 29, 1963; Herrera vs. Liwag,
L-20079, Sept. 30, 1963; Aytona vs. Castillo,
L-19313, Jan. 19, 1962; La Mallorca, etc. vs.
Ramos, et al., L-15476, Sept. 19, 1961; Tan vs. De Leon, et al.,
L-15254, Sept. 16, 1961; Macias vs. Commission on Elections, L-18684,
Sept. 14, 1961; Philippine Tobacco Flue-Curing & Redrying
Corp. vs. Sabugo, et al., L-16017, Aug. 31,
1961; Miller vs. Mardo, L-15138, July 31,
1961; Cu Bu Liong vs. Estrella,
et al., L-14212, July 31, 1961; Pampanga Sugar
Development Co., Inc. vs. Fuentes, et al., L-14738, July 31, 1961; Earnshaw Docks & Honolulu Iron Works vs. Mardo, et al., L-14759, July 31, 1961; Liwanag
vs. Central Azucarera Don Pedro, L-15372, July
31, 1961; Lecura vs. Regional Office No. 3,
etc., L-15582, July 31, 1961; Pitogo vs. Sen Bee Trading Co., et al., L-15693, July 31, 1961; Pascual vs. Sec. of Public Works and Communications,
L-10405, Dec. 29, 1960; Corominas, Jr. vs.
Labor Standards Commission, L-14837, June 30, 1061:  City
of Baguio vs. NAWASA, L-12032, Aug. 31,
1959; City of Cebu vs. NAWASA, L-12892, April 20,
1960; Montes vs. Civil Service Board of Appeals, 101 Phil. 490; Rutter vs. Esteban, 93 Phil. 68; Araneta
vs. Dinglasan, 84 Phil. 368; Borromeo vs. Mariano, 41 Phil. 322.

^[18]
G. R. Nos. L-35925, L-35929, L-35940, L-35941, L-35942, L-35948, L-35953,
L-35961, L-35965 and L-35979, I decided on January 22, 1973.

^[19]
L-33964, Teodosio Lansang,
et al. vs. Brigadier-General Eduardo M. Garcia; L-33965, Rogelio V. Arienda vs. Secretary of National Defense, et -al.;
L-33973, Luzvimindo David vs. Gen. Eduardo
Garcia, et al.; L-33962, Felicidad G. Prudente vs. General Manuel Yan,
et al.; L-34004, Domingo E. de Lara vs. Brigadier-General Eduardo M.
Garcia; L-34013, Reynaldo Rimando vs.
Brigadier Gen. Eduardo M. Garcia; L-34039, Carlos C. Rabago
vs. Brig. Gen. Eduardo Garcia, et al.; L-34265, Antolin
Oreta, Jr. vs. Gen. Eduardo Garcia, et al.;
and L-14339, Gary B. Olivar, et al. vs. Gen.
Eduardo Garcia, et al.

^[20]
5 Phil. 87.

^[21]
91 Phil. 882.

^[22]
G. R. Nos. L-28196 and L-28224, Nov.
9, 1967.

^[23]
78 Phil 1.

^[24]
Supra.

^[25]
In re McConaughy, 119 N. W. 408, 417.

^[26]
103 Phil. 1051, 1067.

^[27]
119 N.W. 408, 411, 417.

^[28]
92 Ky. 589, 18 S. W. 522, 523.

^[29]
Citing Koehler vs. Hill, 60 Iowa
543, 14 N. W. Rep. 738, and 15 N. W. Rep. 609; State vs. Tufly, 19 Nev.
391, 12 Pac. Rep. 835, Supra, p. 524.

^[30]
Angara vs. Electoral
Commission, 63 Phil. 139, 157. Italics supplied.

^[31]
12 L.ed. 581 (1849).

^[32]
Luther vs. Borden, supra. p. 598. Italics supplied.

^[33]
In re McConaughy, supra, p. 416. Italics supplied.

^[34]
369 U. S. 186,
7 L. ed. 2d. 663, 82 S. Ct. 691 (March 26, 1962).

^[35]
395 U. S. 486,
23 L. ed. 2d. 491, 89 S. Ct. 1944 (1969).

^[36]
In re McConaughy,
119 N. W. 408, 415. Italics supplied. The observation as to the uniformity of
authorities on the matter has been reiterated in Winget
vs. Holm, 244 N. W. 329, 332.

^[37] Baker vs. Carr, 369 U. S. 186, 7 L. ed. 663, 686, 82 S. Ct. 691.

^[38]
See p. 5 of the Petition.

^[39]
Italics supplied.

^[40]
The Framing of the Philippine Constitution, by Aruego,
Vol. 1, p. 215.

^[41]
The Framing of the Philippine Constitution, by Aruego,
Vol. 1, pp. 215, 221, 227-228.

^[42]
Ibid. pp. 222-224.

^[43]
Id., pp. 224-227.

^[44]
“SEC. 431. Qualifications prescribed for voters.- Every male person who is not a
citizen or subject of a foreign power, twenty-one years of age or over, who
shall have been a resident of the Philippines for one year and of the
municipality in which he shall offer to vote for six months next preceding the
day of voting is entitled to vote in all elections if comprised within either
of the following three classes:

“(a)    Those who, under the laws in force in the
Philippine Islands upon the twenty-eighth day of August, nineteen hundred and
sixteen, were legal voters and had exercised the right of suffrage.

“(b)    Those who own real property to the value of
five hundred pesos, declared in their name for taxation purposes for a period
of not less than one year prior to the date of the election, or who annually
pay thirty pesos or more of the established taxes.

“(c)    Those who are able to read and write either
Spanish, English, or a native language.

“SEC. 432. Disqualifications.- The
following persons shall be disqualified from voting:

“(a)    Any person who, since the thirteenth day of
August, eighteen hundred and ninety-eight, has been sentenced by final judgment
to suffer not less than eighteen months of imprisonment, such disability not
having been removed by plenary pardon.

“(b)    Any person who has violated an oath of
allegiance taken by him to the United States.

“(c)    Insane or feeble-minded persons.

“(d)    Deaf-mutes who cannot read and write.

“(e)    Electors registered under subsection (c) of
the next preceding section who, after failing to make a sworn statement to the
satisfaction of the board of inspectors at any of its two meetings for
registration and revision, that they are incapacitated for preparing their
ballots due to permanent physical disability, present themselves at the hour of
voting as incapacitated, irrespective of whether such incapacity be real or
feigned.”

^[45]
L-34150, October 16 and November
4, 1971.

^[46]
“For taking action on any of the above enumerated measures, majority vote
of all the barrio assembly members registered in the list of the barrio
secretary is necessary.”

^[47]
“All duly registered barrio assembly members qualified to vote may vote in
the plebiscite. Voting procedures may be made either in writing as in regular
elections, and/or declaration by the voters to the board of election tellers.
The board of election tellers shall be the same board envisioned by section 8,
paragraph 2 of this Act, in case of vacancies in this body, the barrio council
may fill the same.”

^[48]
Eduards vs. Lesueur,
53 S.W. 1130; Johnson vs. Grand Forks County, 113 N.W. 1071; Ellingham vs.
Dye (1912), 178 Ind. 336, 99 N.E. 1; State vs. Marcus, 160 Wis. 354, 152
N.W. 419.

^[49]
In Alcantara vs.
Secretary of the Interior, 61 Phil. 459, this Court held that “when a
state constitution enumerates and fixes the qualifications of those who may exercise the right of suffrage, the legislature cannot
take from nor add to said
qualifications unless the power to do so is conferred upon it by the
constitution itself.”

Since suffrage, according to
Webster, is a voice given not only in the choice of a man for an office or
trust, but, also, in deciding a controverted question, it follows, considering the said ruling in Alcantara,
that the constitutional qualifications for voters apply equally to voters in
elections to public office and to voters in a plebiscite.

Similarly, the Revised Election
Code provides in its section 2 that all elections of public officers by the
people” and all votings
in connection with plebiscites shall
be conducted in conformity with the provisions of said Code.

^[50]
Republic Act No. 6388, section 101 of
which, in part, provides:

“SEC. 101. Qualifications prescribed for a voter.- Every citizen of the Philippines,
not otherwise disqualified by law, twenty-one years of age or over, able to
read and write, who shall have resided in the Philippines for one year and in
the city, municipality or muni­cipal district wherein he proposes to vote for
at least six months immediately preceding the election, may vote at any
election.

“* * *     * * *      *
* *”

^[51]
“SEC. 102. Disqualifications.- The following persons shall not be qualified to vote:

“(a)    Any
person who has been sentenced by final judgment to suffer an imprisonment of not
less than one year, such disability not having been removed by plenary
pardon:  Provided, however, That
any person disqualified to vote under this paragraph shall auto­matically
re-acquire the right to vote upon expiration of ten years after service of sentence
unless during such period, he shall have been sentenced by final judgment to
suffer an imprisonment of not less than one year.

“(b)    Any person who has been adjudged by final
judgment by competent court of having violated his allegiance to the Republic
of the Philippines.

“(c)
Insane of feeble-minded persons.

“(d)
Person who cannot prepare their ballots themselves.

^[52]
“SEC. 10. * * *

“The following persons shall
not be qualified to vote:

“a.  Any person who has been sentenced by final
judgment to suffer one year or more of imprisonment within two years after
service of his sentence;

“b.  Any person who has violated his allegiance to
the Republic of the Philippines;
and

“c.  Insane or feeble-minded persons.”

^[53]
20 C.J., 179-181, quoted in Demeterio vs. Lopez,
50 Phil. 43, 60. See, also, Garchitorena vs. Crescini, 39 Phil. 258.

^[54]
Baldaf vs. Gunson, 8
P. 2d. 265. See, also, Martin vs.
McGarr, 117 P. 323; Glenn vs. Guan, 64 S.W.
2d. 168. Italics supplied.

^[55]
L-33325 and L-34043, December 29,
1971.

^[56]
Hopkins vs. City of Daluth, 83 N.W. 536, 538. Italics supplied.

^[57]
Maddox vs. Board of State
Canvassers, 149 P. 2d. 112, 115. Italics supplied.

^[58]
Port of Palm Beach District, et al. vs. State, 22 So. 2d.
581, 582-583. Italics supplied.

^[59]
Art. X, section 1 of the 1935 Constitution.

^[60]
Ten (10) years.

^[61]
Art. X, section 2 of the 1935 Constitution.

^[62]
Ibid.

^[63]
Art. X, section 3 of the 1935 Constitution.

^[64]
“SEC. 5. Organization of the
Commission on Elections.— The
Commission shall adopt its own rules of procedure. Two members of the
Commission shall constitute a quorum. The concurrence of two members
shall be necessary for the pronouncement or issuance of a decision, order or
ruling.

“The Commission shall have an
executive officer and such other subordinate officers and employees as may be
necessary for the efficient performance of its functions and duties, all of
whom shall be appointed by the Commission in accordance with the Civil Service
Law and rules.

“The executive officer of the
Commission, under the direction of the Chairman, shall have charge of the
administrative business of the Commission, shall have the power to administer
oaths in connection with all matters involving the business of the Commission,
and shall perform such other duties as may be required of him by the Com­mission.

“SEC; 6. Power of the Commission to Investigate and to Hear Controversy and
Issue Subpoena.— The
Commission or any of the members thereof shall, in compliance with the
requirement of due process, have the power to summon the parties to a controversy
pending before it, issue subpoenae and subpoenae duces tecum and otherwise take testimony in any
investigation or hearing pending before it, and delegate such power to any
officer of the Commission who shall be it, and delegate such power to any
officer of the Commission who shall be a member of the Philippine Bar. In case
of failure of a witness to attend, the Commission, upon proof of service of the
subpoenae to said witness, may issue a warrant
to arrest the witness and bring him before the Commission or officer before
whom his attendance is required. The Commission shall have the power to punish contempts provided for in the Rules of Court under the same
procedure and with the same penalties provided therein. Any controversy
submitted to the Commission shall after compliance with’ the requirements of
due process be heard and decided by it within thirty days after submission of
the case.

“The Commission may, when it
so requires, deputize any member of any national or local law enforcement
agency and/or instru­mentality of the government to execute under its direct
and immediate supervision any of its final decisions, orders, instructions or
rulings.

“Any decision, order or
ruling of the Commission on Election controversies may be reviewed by the Supreme
Court by writ of certiorari in accordance with the Rules of
Court or such applicable laws as may be enacted.

“Any violation of any final executory decision, order or ruling of the Commission shall
constitute contempt thereof.”

^[65]
64 S.W. 2d. 168.

^[66]
L-35538, Roces,
et al. vs. Secretary of National Defense, et al; L-35539, Diokno vs. Hon. Enrile, et
al.; L-35540, Soliven, et al vs. Secretary
of National Defense, et al.; L-35546, Aquino, Jr., et al. vs. Hon. Enrile,
et al.; L-35547, Garcia II vs. Hon. Enrile,
et al.; L-35567, Doronila, et al. vs.
Secretary of National Defense, et al.; L-35573, Rondon
vs. Hon. Enrile, et al.

^[67]

“PRESIDENTIAL DECREE NO. 86-A

“STRENGTHENING AND DEFINING THE ROLE

OF BARANGAYS (CITIZENS ASSEMBLIES)

“WHEREAS, on the basis of preliminary and initial reports
from the field as gathered from barangays (citizens
assemblies) that have so far been established, the people would like to decide
for themselves questions or issues, both local and national, affecting their
day-to-day lives and their future;

“WHEREAS, the barangays (citizens assemblies) would like themselves to be
the vehicle for expressing the views of the people on important national
issues;

“WHEREAS, such barangays (citizens assemblies) desire that they be given legal
status and due recognition as constituting the genuine, legitimate and valid
expression of the popular will; and

“WHEREAS, the people would
like the citizens assemblies to conduct immediately a referendum on certain
specified questions such as the ratification of the new Constitution,
continuance of martial law, the convening of Congress on January 22, 1973, and
the elections in November 1973 pursuant to the 1935 Constitution.

“NOW, THEREFORE, I, FERDINAND
E. MARCOS, President of the Philippines, by virtue of the powers vested in me
by the Constitution as Commander-in-Chief of all Armed Forces of the
Philippines do hereby declare as part of the law of the land the following:

“1.  The present barangays
(citizens assemblies) are created under Presidential Decree No. 86 dated
December 31 1972, shall constitute the base for citizen participation in
governmental affairs and their collective views shall be considered in the
formulation of national policies or programs and, wherever practicable, shall
be translated into concrete and specific decision;

“2.  Such barangays
(citizens assemblies) shall consider vital national issues now confronting the
country, hike the holding of the plebiscite on the new Constitution, the
continuation of martial rule, the convening of Congress on January 22, 1973,
and the holding of elections in November 1973, and others in the future, which
shall serve as guide or basis for action
or decision by the national government;

“3.  The barangays
(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, pursuant to the express will
of the people as reflected in the reports gathered from the many thousands of barangays (citizens assemblies) throughout the country.

“4.  This Decree shall take effect immediately.

“Done in the City of Manila,
this 5th day of January, in the year of Our Lord, nineteen hundred and
seventy-three.” (Italics supplied).

^[68]
McKinney vs. Barker, 180 Ky.
526, 203 S.W. 303, 304.

^[69]
Art. VII, section 2, 1935 Constitution.

^[70]
Michael W. Roche vs. Lamb, et al. 306 N.Y.S. 2d. 515, (Dec. 17, 1969);
State ex rel. Suthre vs.
Bryne, 258 N.W. 121; State ex rel.
Shriver vs. Hayes, 76 N.E. 2d. 869; Smith vs. Bangham,
76 P. 2d. 1022; McKin vs. Brast,
et al, 117 S.E. 875; Head vs. Hood, 107 So. 854; State ex rel Watson vs. Pigg, 46
N.E. 232.

^[71]
See cases cited in the preceding footnote. See, also, Tiegs
vs. Patterson, 318 P. 2d. 588; State ex rel.
Brown vs. St. Joseph, 95
N.E. 2d. 632; Williamson vs. State Election Board, 431 P. 2d. 352; Baker
vs. Conway, 108 So. 18; ,Cohoon vs. Swain, 5 S.E. 2d. ; State ex rel vs. Walcott, 83 A. 2d. 762; Doyly
vs. Ries, 285 N.W. 480; Grossglaus
vs. Board of Election, 86 N.E. 2d. 245; Walker vs. Hughes, 36 A.
2d. 47; Reese vs. Dempsey, 152 P. 2d. 157; Dodd vs. Gower, 62
S.W. 2d. 1; Galloways vs. Bradburn,
82 S.W. 1013; Hagan vs. Henry, 76 S.W. 2d. 994.

^[72]
106 Minn. 392, 119 N.W. 408, 409.

^[73]
63 N.J. Law, 289.

^[74]
78 Ark. 439, 96 S.W. 396.

^[75]
See cases listed on page 49,
footnotes 3, 4 and 5.

^[76]
On December 19, 1972.

^[77]
24 Kansas 700, 714. See,
also,
State ex rel. Williams vs. Robb, 183 P. 2d. 223, 228; Harris vs. Shanahan, 387 P. 2d. 771, 784, 785.

^[78]
369 U.S. 186, 7
L. ed. 2d. 663, 684. Citing Chaselton
Corp. vs. Sinclair,
264 U.S. 543,
547, 548, 68 L. ed. 841, 843, 44 S. Ct. 405.

^[79]
Art. VII, section 10, paragraph (1).

^[80]
101 Va. 529, 44 S. E. 754.

^[81]
Marifosquc, et al. vs. Luna, 101 Phil. 1223
(unreported); 37 Am. Jur. 669; 62 C.J.S. 749-750;
Guevara vs. Inocentes, L-25577, March 15, 1966.

^[82]
Which, in some respects, is regarded as an organ of the Administration, and the
news items published therein are indisputably censored by the Department of
Public Information.

^[83]
Daily Express, November 29, 1972,
p. 4. Italics supplied.

^[84]
231 U.S. 28, 58
L. ed. 107, 114, 34 S. Ct. 1.

^[85]
Baker vs. Carr, 369 U.S.
186, 7 L. ed. 2d. 663, 82 S. Ct. 691.

^[86]
Justice Barredo’s opinion in the plebiscite cases.

^[87]
Joint Opinion of Justices Makalintal and
Castro, p. 3.

^[88]
Justice Barredo’s
language.

^[89]
At p. 16, joint opinion of Justices Makalintal and Castro.

^[90]
Joint Opinion of Justices Makalintal and Castro, pp. 12-16.

^[91]
At p. R, idem.

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