Javellana
v. Executive Secretary
G.R. No. L-36142 March 31, 1973
Concepcion, C.J.
Facts:
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.
Josue Javellana filed Case against the Executive Secretary
and the Secretaries of National Defense, Justice and Finance, to restrain said respondents
“and their subordinates or agents from implementing any of the provisions of the
propose Constitution not found in the present Constitution” — referring to that
of 1935. The petition therein, filed by Josue Javellana, as a “Filipino citizen,
and a qualified and registered voter” and as “a class suit, for himself, and in
behalf of all citizens and voters similarly situated,” was amended on or about January
24, 1973. After reciting in substance the facts set forth in the decision in the
plebiscite cases, Javellana alleged that the President had announced “the immediate
implementation of the New Constitution, thru his Cabinet, respondents including,”
and that the latter “are acting without, or in excess of jurisdiction in implementing
the said proposed Constitution” upon the ground: “that the President, as Commander-in-Chief
of the Armed Forces of the Philippines, is without authority to create the Citizens
Assemblies”; that the same “are without power to approve the proposed Constitution
...”; “that the President is without power to proclaim the ratification by the Filipino
people of the proposed Constitution”; and “that the election held to ratify the
proposed Constitution was not a free election, hence null and void.”
Disclaimer:
For
failure to muster the required number of votes to declare the unconstitutionality
of the 1973 Constitution proposed for ratification by the 1971 Constitutional Convention,
as illustrated by the summary of votation on each issue raised in Javellana found at the foot of this section,
the same 1973 Constitution was declared constitutional. Quite confusingly, the Supreme
Court resolved to adopt Chief Justice Concepcion’s opinion which held the unconstitutionality
of the 1973 Constitution.
Issue:
Does
the issue on the validity of Proclamation No. 1102 partake of the nature of a political,
and, hence, non-justiciable question?
Held:
No.
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.
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.
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. Thus the Legislature may in its discretion determine whether
it will pass law or submit a proposed constitutional amendment to the people. The
courts have no judicial control over such matters, not merely because they involve
political questions, but because they are matters which the people have by the
Constitution delegated to the Legislature.
The
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. 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.
The
Supreme Court has neither the authority nor the discretion to decline passing upon
said issue, but are under the ineluctable obligation to settle it. Courts have a
duty, rather than a power, to determine whether another branch of the government
has kept within constitutional limits. If the Constitution provides how it may be
amended — as it is in our 1935 Constitution —then, unless the manner is followed,
the judiciary as the interpreter of that constitution, will declare the amendment
invalid.
Considering
that Art. XV of our 1935 Constitution prescribes the method or procedure for its
amendment, 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.
Issue:
Has the proposed
new or revised Constitution been ratified conformably to said Art. XV of the 1935
Constitution?
Corollary-issue
(a):
What
is the procedure prescribed by the 1935 Constitution for its amendment?
Held:
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. The main issue
in this case hinges, therefore, on whether or not the last 2 requirements have been
complied with.
Corollary issue (b):
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?
Held:
No.
In this connection, other provisions of the 1935 Constitution
concerning “elections” must, also, be taken into account, namely, section I of Art.
V and Art. X of said Constitution. The former reads:
Section 1. Suffrage may be exercised by male citizens
of the Philippines not otherwise disqualified by law, who are twenty-one years of
age or over and are able to read and write, and who shall have resided in the Philippines
for one year and in the municipality wherein they propose to vote for at least six
months preceding the election. The National Assembly shall extend the right of suffrage
to women, if in a plebiscite which shall be held for that purpose within two years
after the adoption of this Constitution, not less than three hundred thousand women
possessing the necessary qualifications shall vote affirmatively on the question.
Sections 1 and 2
of Art. X of the Constitution ordain in part:
Section 1. There shall be an independent Commission
on Elections composed of a Chairman and two other Members to be appointed by the
President with the consent of the Commission on Appointments, who shall hold office
for a term of nine years and may not be reappointed. ...
xxx xxx xxx
Sec. 2. The Commission on Elections shall have exclusive
charge of the enforcement and administration of all laws relative to the
conduct of elections and shall exercise all other functions which may be
conferred upon it by law. It shall decide, save those involving the right to vote,
alladministrative questions, affecting elections, including the determination
of the number and location of polling places, and the appointment of election inspectors
and of other election officials. All law enforcement agencies and instrumentalities
of the Government, when so required by the Commission, shall act as its deputies
for the purpose of insuring fee, orderly, and honest elections. The decisions,
orders, and rulings of the Commission shall be subject to review by the Supreme
Court.
xxx xxx xxx
Who may vote in
a plebiscite under Article V of the Constitution?
Article 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. 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 the Supreme Court in Tolentino v. Commission on Elections,
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.
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, 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,” (a)ll duly registered barrio assembly members
qualified to vote” — who, pursuant to section 10 of the same Act, must be
citizens “of the Philippines, twenty-one years of age or over, able to read
and write,” and residents the barrio “during the six months immediately preceding
election, duly registered in the list of voters” and “ otherwise disqualified ...”
— just like the provisions of present and past election codes of the Philippines
and Art. V of the 1935 Constitution — “may vote in the plebiscite.”
The apparent conflict should resolved
in favor of the 21-year-old members of the assembly, not only because this interpretation
is in accord with Art. V the Constitution, but, also, because provisions of a Constitution
— particularly of a written and rigid one, like ours generally accorded a mandatory
status — unless the intention to the contrary is manifest, which is not so as regards
said Art. V — for otherwise they would not have been considered sufficiently important
to be included in the Fundamental Law of the land. Besides, it would be illogical,
if not absurd, believe that Republic Act No. 3590 requires, for the most important
measures for which it demands — in addition to favorable action of the barrio
council — the approval of barrio assembly through a plebiscite,
lesser qualifications than those prescribed in dealing with ordinary measures for
which such plebiscite need not be held.
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, and of whether or not they are disqualified under
the provisions of said Constitution and Code, or those of Republic Act No. 3590,
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 number of registered voters 21 years of age
or over in the entire Philippines, available in January 1973, was less than 12 million.
Yet, Proclamation No. 1102 states that 14,976,56 “members of all the Barangays (Citizens
Assemblies) voted for the adoption of the proposed Constitution, as against ...
743,869 who voted for its rejection,” whereas, on the question whether or not the
people still wanted a plebiscite to be called to ratify the new Constitution, “...
14,298,814 answered that there was no need for a plebiscite and that the vote of
the Barangays (Citizens Assemblies) should be considered as a vote in a plebiscite.”
In other words, it is conceded that the number of people who allegedly voted at
the Citizens’ Assemblies for exceeded the
number of registered voters under the
Election Code in force in January 1973.
It is thus clear that the proceedings
held in such Citizens’ Assemblies 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.
Art. XV envisages
— with the term “votes cast” — choices made on
ballots — not orally or by raising — by
the persons taking part in plebiscites. And the 1935 Constitution has been consistently
interpreted in all plebiscites for the ratification rejection of proposed
amendments thereto, from 1935 to 1967. Hence, the viva voce voting
in the Citizens’ Assemblies was and is null and void ab initio.
How
should the plebiscite be held? Is COMELEC supervision indispensible?
Yes.
Just as essential as compliance with said Art. V of the
19 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.”
In the absence of
said constitutional provision as to the independence of the Commission, would it
have been depends upon either Congress or the Judiciary? The answer must be the
negative, because the functions of the Commission — “enforcement and administration”
of election laws — are neither legislative nor judicial in nature, and, hence, beyond
the field allocated to either Congress or courts of justice. Said functions are
by their nature essentially executive, for which reason, the Commission would be under the
“control” of the President, pursuant to section 10, paragraph (1) of Art. VII of
the Constitution, if Art. X thereof did not explicitly declare that it (the Commission)
is an “independent” body. In other words, in amending the original 1935 Constitution,
by inserting therein said Art. X, on the Commission on Elections, the purpose was
to make said Commission independent principally
of the Chief Executive.
With respect to the
functions of COMELEC as a body, section 2 of said Art. X ordains that “(t)he Commission
on Elections shall have exclusive
charge of the enforcement and administration
all laws relative to the conduct of elections,” apart from such other “functions
which may be conferred upon it by law.” It further provides that the Commission
“shall decide, save those involving the right to vote, all administrative
question affecting elections, including the determination of the number and location
of polling places, and the appointment of election inspectors and of other election
officials.” And, to forests possible conflicts or frictions between the Commission,
on one hand, and the other offices or agencies of the executive department, on the
other, said section 2 postulates that “(a)ll law enforcement agencies and instrumentalities of the Government,
when so required by the Commission, shall act as its deputies for the purpose of insuring free, orderly, and honest elections.” Not satisfied
with this, it declares, in effect, that “(t)he decisions, orders, and ruling of
the Commission” shall not be subject to review, except by the Supreme Court.
Few laws may be found
with such meticulous and elaborate set of provisions aimed at “insuring free, orderly,
and honest election,” as envisaged in section 2 of Art. X of the Constitution. Yet,
none of the foregoing constitutional and statutory provisions was followed by the
so-called Barangays or Citizens’ Assemblies. And no reasons have been given, or
even sought to be given therefor. In many, if not most, instances,
the election were held a viva voce, thus depriving the electorate of the right to vote secretly
— one of the most, fundamental and critical features of our election laws from time
immemorial — particularly at a time when the same was of utmostimportance,
owing to the existence of Martial Law.
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 was issued, calling a plebiscite, to be held on January 15, 1973, at which
the proposed Constitution would be submitted to the people for ratification or rejection;
directing the publication of said proposed Constitution; and declaring, inter
alia, that “(t)he provision of the Election Code of 1971, insofar as they are
not inconsistent” with said decree — excepting those “regarding right and obligations
of political parties and candidates” — “shall apply to the conduct of the
plebiscite.” Indeed, section 2 of said Election Code of 1971 provides that “(a)ll
elections of public officers except barrio officials and plebiscites shall
be conducted in the manner provided by this Code.” General Order No. 20, dated January
7, 1973, postponing until further notice, “the plebiscite scheduled to be held on
January 15, 1973,” said nothing about the procedure to be followed in plebiscite
to take place at such notice, and no other order or decree has been brought to Our
attention, expressly or impliedly repealing the provisions of Presidential Decree
73, insofar as said procedure is concerned.
Upon the other hand,
said General Order No. 20 expressly suspended “the provisions of Section 3 of Presidential
Decree No. 73 insofar as they allow free public discussion of proposed Constitution
... temporarily suspending effects of Proclamation No. 1081 for the purposes of
free open dabate on the proposed Constitution ... .” This specific mention of the
portions of the decrees or orders or instructions suspended by General Order No.
20 necessarily implies that all other portions of said decrees, orders or instructions
— and, hence, the provisions of Presidential Decree No. 73 outlining the procedure
to be followed in the plebiscite for ratification or rejection of the proposed Constitution
— remained in force, assuming that said Decree is valid.
It is claimed
that by virtue of Presidential Decree No. 86-A — the text of which is quoted below
— the Executive declared, inter alia, that the collective views expressed
in the Citizens’ Assemblies “shall be considered in the formulation of national
policies or programs and, wherever practicable, shall be translated into concrete
and specific decision”; that such Citizens’ Assemblies “shall consider vital national
issues ... like the holding of the plebiscite on the new Constitution ... and others
in the future, which shall serve as guide or basis for action or decision
by the national government”; and that the Citizens’ Assemblies “shall conduct between
January 10 and 15, 1973, a referendum on important national issues, including
those specified in paragraph 2 hereof, and submit the results thereof to the Department
of Local Governments and Community Development immediately thereafter, ... .” As
in Presidential Decree No. 86, this Decree No. 86-A does not and cannot exclude
the exercise of the constitutional supervisory power of the Commission on Elections
or its participation in the proceedings in said Assemblies, if the same had been
intended to constitute the “election” or Plebiscite required Art. V of the 1935
Constitution. The provision of Decree No. 86-A directing the immediate submission
of the result thereof to the Department of Local Governments Community Development
is not necessarily inconsistent with, and must be subordinate to the constitutional
power of the Commission on Elections to exercise its “exclusive authority over the
enforcement and administration of all laws to the conduct of elections,” if the
proceedings in the Assemblies would partake of the nature of an “election” or plebiscite
for the ratification or rejection of the proposed Constitution.
Presidential Decree
No. 86 was further amended by Presidential Decree No. 86-B, dated 1973, ordering
“that important national issues shall from time to time; be referred to the Barangays
(Citizens Assemblies) for resolution in accordance with Presidential Decree No.
86-A dated January 5, 1973 and that the initial referendum include the matter of
ratification of the Constitution by the 1971 Constitutional Convention” and that
“(t)he Secretary of the Department of Local Governments and Community Development
shall insure the implementation of this order.” As in the case of Presidential Decrees
Nos. 86 and 86-A, the foregoing directives do not necessarily exclude exercise of
the powers vested by the 1935 Constitution in the Commission on Elections, even
if the Executive had the authority to repeal Art. X of our Fundamental Law — which
he does not possess.
The point
is that, such of the Barrio Assemblies as were held took place without the intervention
of the Commission on Elections, and without complying with the provisions of the
Election Code of 1971 or even of those of Presidential Decree No. 73. What is more,
they were held under the supervision of the very officers and agencies of the
Executive Department sought to be excluded therefrom by Art. X of the 1935 Constitution.
Worse still, said officers and agencies of the 1935 Constitution would be favored
thereby, owing to the practical indefinite extension of their respective terms of
office in consequence of section 9 of the Transitory Provisions, found in Art. XVII
of the proposed Constitution, without any elections therefor. And the procedure
therein mostly followed is such that there is no reasonable means of checking
the accuracy of the returns files by the officers who conducted said plebiscites.
This is another patent violation of Art. of the Constitution which can hardly be
sanctioned. And, since the provisions of this article form part of the fundamental
scheme set forth in the 1935 Constitution, as amended, to insure the “free, orderly,
and honest” expression of the people’s will, the aforementioned violation thereof
renders null and void the contested proceedings or alleged plebiscite in the Citizens’
Assemblies, insofar as the same are claimed to have ratified the revised Constitution
proposed by the 1971 Constitutional Convention. “...(a)ll the authorities agree
that the legal definition of an election, as well as that which is usually and ordinarily
understood by the term, is a choosing or as election by those having a right to
participate (in the selection) of those who shall fill the offices, or of the
adoption or rejection of any public measure affecting the territory involved.
Issue:
Has
the proposed Constitution aforementioned been approved by a majority of the people
in Citizens’ Assemblies allegedly held throughout the Philippines?
Held:
No.
The issue boils downs to whether or not the Executive acted
within the limits of his authority when he certified in Proclamation No. 1102 “that
the Constitution proposed by the nineteen hundred and seventy-one (1971) Constitutional
Convention has been ratified by an overwhelming majority of all of the votes cast
by the members of all the Barangays (Citizens Assemblies) throughout the Philippines
and has thereby come into effect.”
In this connection,
it is not claimed that the Chief Executive had personal knowledge of the data he
certified in said proclamation. Moreover, Art. X of the 1935 Constitution was precisely
inserted to place beyond
the Executive the power to supervise or even exercise
any authority
whatsoever over “all laws relative
to the conduct of elections,” and, hence, whether the elections are for the choice
or selection of public officers or for the ratification or rejection of any proposed
amendment, or revision of the Fundamental Law, since the proceedings for the latter
are, also, referred to in said Art. XV as “elections”.
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 said municipal associations had reported the results of the citizens’
assemblies in their respective municipalities to the corresponding Provincial Association,
which, in turn, transmitted the results of the voting in the to the Department of
Local Governments and Community Development, which tabulated the results of the
voting in the citizens’ assemblies throughout the Philippines and then turned them
over to Mr. Franciso Cruz, as President or acting President of the National Association
or Federation, whereupon Mr. Cruz, acting in a ceremonial capacity, reported said
results (tabulated by the Department of Governments and Community Development) to
the Chief Executive, who, accordingly, issued Proclamation No. 1102.
The record shows,
however, that Mr. Cruz was not even a member
of any barrio council since 1972, so that he could
possibly have been a member
on January 17, 1973, of a municipal association
of presidents of barrio or ward citizens’ assemblies, much less of a
Provincial, City or National Association or Federation of Presidents of
any such provincial or city associations.
Secondly, at the
conclusion of the hearing of these cases February 16, 1973, and in the resolution
of the Supreme Court of same date, the Solicitor General was asked to submit, together
with his notes on his oral argument, a true copy of aforementioned report of Mr.
Cruz to the President and of “(p)roclamation, decree, instruction, order, regulation
or circular, if any, creating or directing or authorizing creation, establishment
or organization” of said municipal, provincial and national associations, but neither
a copy of alleged report to the President, nor a copy of any “(p)roclamation, decree,
instruction, order, regulation or circular,” has been submitted to the Supreme
Court. In the absence of said report, “(p)roclamation, decree, instruction,” etc.,
Proclamation No. 1102 is devoid of any factual
and legalfoundation. Hence, the conclusion set forth in the dispositive
portion of said Proclamation No. 1102, to the effect that the proposed new or revised
Constitution had been ratified by majority of the votes cast by the people, cannot
possibly have any legal effect or value.
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.
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 beingeighteen (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.
The questions propounded in the Citizens’ Assemblies reads:
[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?
[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?
To begin with, questions
nos. 1, 2, 3, 4, 5, 6, 9, 10 and 11 are not proper in a plebiscite for the ratification
of a proposed Constitution or of a proposed amendment thereto. Secondly, neither
is the language of question No. 7 — “Do you approve the new Constitution?” One approves
“of” the act of another which does not need such approval for the effectivity of said act, which
the first person, however, finds to be good, wise satisfactory. The approval of
the majority of the votes cast in plebiscite is, however, essential for
an amendment to the Constitution to be valid as part thereof. Thirdly, if the proceedings
in the Citizens’ Assemblies constituted a plebiscite question No. 8 would have been
unnecessary and improper, regardless of whether question No. 7 were answered affirmatively
or negatively. If the majority of the answers to question No. 7 were in the affirmative,
the proposed Constitution would have become effective and no other plebiscite could
be held thereafter in connection therewith, even if the majority of the answers
to question No. 8 were, also, in the affirmative. If the majority of the answers
to question No. 7 were in the negative, neither may another plebiscite be held,
even if the majority of the answers to question No. 8 were in the affirmative. In
either case, not more than one plebiscite could be held for the ratification or rejection
of the proposed Constitution. In short, the insertion of said two (2) questions
— apart from the other questions adverted to above — indicates strongly that the
proceedings therein did not partake of the nature of a plebiscite or election for the
ratification or rejection of the proposed Constitution.
Issue:
Have
the people acquiesced in the proposed Constitution?
Held:
No.
It cannot be said that the acts the officers and offices of the Executive Department,
in line with Proclamation No. 1102, connote a recognition thereof o an acquiescence
thereto. Whether they recognized the proposed Constitution or acquiesce thereto
or not is something that cannot legally, much less necessarily or even normally,
be deduced from their acts in accordance therewith, because the are bound to obey
and act in conformity with the orders of the President, under whose “control” they
are, pursuant to the 1935 Constitution. They have absolutely no other choice, specially
in view of Proclamation No. 1081 placing the Philippines under Martial Law. Besides,
by virtue of the very decrees, orders and instructions issued by the President thereafter,
he had assumed all powers of Government — although some question his authority to
do so — and, consequently, there is hardly anything he has done since the issuance
of Proclamation No. 1102, on January 17, 1973 — declaring that the Constitution
proposed by the 1971 Constitutional Convention has been ratified by the overwhelming
majority of the people — that he could not do under the authority he claimed to
have under Martial Law, since September 21, 1972, except the power of supervision
over inferior courts and its personnel, which said proposed Constitution would place
under the Supreme Court, and which the President has not ostensibly exercised, except
as to some minor routine matters, which the Department of Justice has continued
to handle, the Supreme 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.
To
digress, a certification, if any, of the Secretary
of the Department of Local Governments and Community Development about the tabulated
results of the voting in the Citizens Assemblies allegedly held all over the
Philippines — and the records do not show that any such certification, to the President
of the Philippines or to the President Federation or National Association of presidents
of Provincial Associations of presidents of municipal association presidents of
barrio or ward assemblies of citizens — would not, legally and constitutionally,
be worth the paper on which it is written. Why? Because said Department Secretary
is not the officer designated by law to superintend plebiscites or elections held
for the ratification or rejection of a proposed amendment or revision of the Constitution
and, hence, to tabulate the results thereof. Worse still, it is the department which,
according to Article X of the Constitution, should not and must
not be
all participate in said plebiscite — if plebiscite there was.
Resume of the Votes Cast and the Court’s
Resolution:
The five questions
thus agreed upon as reflecting the basic issues herein involved are the following:
- Is the issue of the validity of Proclamation No. 1102 a justiciable,
or political and therefore non-justiciable, question?
- 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?
- Has the aforementioned proposed Constitution acquiesced in
(with or without valid ratification) by the people?
- 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 respect opinions and/or concurrences, are as follows:
1. On the first issue
involving the political-question doctrine Justices Makalintal, Zaldivar, Castro,
Fernando, Teehankee and myself, or six (6) members of the Court, hold that the issue
of the validity of Proclamation No. 1102 presents a justiciable and non-political
question. Justices Makalintal and Castro did not vote squarely on this question,
but, only inferentially, in their discussion of the second question. Justice Barredo
qualified his vote, stating that “inasmuch as it is claimed there has been approval
by the people, the Court may inquire into the question of whether or not there has
actually been such an approval, and, in the affirmative, the Court should keep hands-off
out of respect to the people’s will, but, in negative, the Court may determine from
both factual and legal angles whether or not Article XV of the 1935 Constitution
been complied with.” Justices Makasiar, Antonio, Esguerra, or three (3) members
of the Court hold that the issue is political and “beyond the ambit of judicial
inquiry.”
2. On the
second question of validity of the ratification, Justices Makalintal, Zaldivar,
Castro, Fernando, Teehankee and myself, or six (6) members of the Court also hold
that the Constitution proposed by the 1971 Constitutional Convention was not validly
ratified in accordance with Article XV, section 1 of the 1935 Constitution, which
provides only one way for ratification, i.e., “in an election or plebiscite held
in accordance with law and participated in only by qualified and duly registered
voters.
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.”
Two (2) members
of the Court, namely, Justice Zaldivar and myself hold that there can be no free
expression, and there has even been no expression, by the people qualified to vote
all over the Philippines, of their acceptance or repudiation of the proposed Constitution
under Martial Law. Justice Fernando states that “(I)f it is conceded that the doctrine
stated in some American decisions to the effect that independently of the validity
of the ratification, a new Constitution once accepted acquiesced in by the people
must be accorded recognition by the Court, I am not at this stage prepared to state
that such doctrine calls for application in view of the shortness of time that has
elapsed and the difficulty of ascertaining what is the mind of the people in the
absence of the freedom of debate that is a concomitant feature of martial law.”
Three (3)
members of the Court express their lack of knowledge and/or competence to rule on
the question. Justices Makalintal and Castro are joined by Justice Teehankee in
their statement that “Under a regime of martial law, with the free expression of
opinions through the usual media vehicle restricted, (they) have no means of knowing,
to the point of judicial certainty, whether the people have accepted the Constitution.”
4. On the
fourth question of relief, six (6) members of the Court, namely, Justices Makalintal,
Castro, Barredo, Makasiar, Antonio and Esguerra voted to DISMISS the petition. Justice
Makalintal and Castro so voted on the strength of their view that “(T)he effectivity
of the said Constitution, in the final analysis, is the basic and ultimate question
posed by these cases to resolve which considerations other than judicial, an therefore
beyond the competence of the Supreme Court, are relevant and unavoidable.”
Four (4) members
of the Court, namely, Justices Zaldivar, Fernando, Teehankee and myself voted to
deny respondents’ motion to dismiss and to give due course to the petitions.
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.
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