JOSUE
JAVELLANA,
Petitioner,
G. R. No. L-36142
March 31, 1973
-versus-
THE
EXECUTIVE SECRETARY,
THE SECRETARY OF NATIONAL DEFENSE,
THE SECRETARY OF JUSTICE
and THE SECRETARY OF FINANCE,
Respondents.
________________________________________
VIDAL
TAN, J. ANTONIO ARANETA,
ALEJANDRO ROCES, MANUEL CRUDO,
ANTONIO U. MIRANDA, EMILIO DE PERALTA
and LORENZO M. TAÑADA,
Petitioners,
G. R. No. L-36164
March 31, 1973
-versus-
THE
EXECUTIVE SECRETARY,
THE SECRETARY OF FINANCE ,
THE SECRETARY OF JUSTICE,
THE SECRETARY OF LAND REFORM,
THE SECRETARY OF NATIONAL DEFENSE,
THE AUDITOR GENERAL, THE BUDGET
COMMISSIONER, THE CHAIRMAN OF
PRESIDENTIAL COMMISSION ON
REORGANIZATION,
THE TREASURER OF THE PHILIPPINES,
THE COMMISSION ON ELECTIONS
and THE COMMISSIONER OF CIVIL SERVICE,
Respondents.
________________________________________________
GERARDO
ROXAS, AMBROSIO PADILLA,
JOVITO R. SALONGA, SALVADOR H. LAUREL,
RAMON V. MITRA, JR. and EVA
ESTRADA-KALAW,
Petitioners,
G. R. No. L-36165
March 31, 1973.
-versus-
ALEJANDRO
MELCHOR, IN HIS CAPACITY
AS EXECUTIVE SECRETARY; JUAN PONCE
ENRILE,
IN HIS CAPACITY AS SECRETARY OF NATIONAL
DEFENSE;
GENERAL ROMEO ESPINO, IN HIS CAPACITY AS
CHIEF OF STAFF OF THE ARMED FORCES OF
THE
PHILIPPINES;
TANCIO E. CASTAÑEDA, IN HIS
CAPACITY
AS SECRETARY
OF GENERAL SERVICES; SENATOR GIL J.
PUYAT,
IN HIS CAPACITY AS PRESIDENT OF THE
SENATE;
and SENATOR JOSE ROY, IN HIS CAPACITY AS
PRESIDENT PRO-TEMPORE OF THE SENATE,
Respondents.
___________________________________________________________
EDDIE
B. MONTECLARO,
[PERSONALLY AND IN HIS CAPACITY AS
PRESIDENT
OF THE NATIONAL PRESS CLUB OF THE
PHILIPPINES,
Petitioner,
G. R. No. L-36236
March 31, 1973
-versus-
THE
EXECUTIVE SECRETARY,
THE SECRETARY OF PUBLIC INFORMATION,
THE AUDITOR GENERAL, THE BUDGET
COMMISSIONER
and THE NATIONAL TREASURER,
Respondents.
____________________________________________________
NAPOLEON
V. DILAG, ALFREDO SALAPANTAN, JR.,
LEONARDO ASODISEN, JR., and RAUL M.
GONZALEZ,
Petitioners,
G. R. No. L-36283
March 31, 1973
-versus-
THE
HONORABLE EXECUTIVE SECRETARY,
THE HONORABLE SECRETARY OF NATIONAL
DEFENSE,
THE HONORABLE BUDGET COMMISSIONER
and THE HONORABLE AUDITOR GENERAL,
Respondents.
R
E S O L U T I O N
CONCEPCION, C.J.:
The
above-entitled five [5] cases are a sequel
of cases G. R. Nos. L-35925, L-35929, L-35940, L-35941, L-35942,
L-35948,
L-35953, L-35961, L-35965 and L-35979, decided on January 22, 1973, to
which We will hereafter refer collectively as the plebiscite cases.
Background of
the Plebiscite Cases.chanrobles virtual law library
The factual
setting thereof is set forth in the
decision therein rendered from which We quote:
On March 16,
1967, Congress of the Philippines
passed Resolution No. 2, which was amended by Resolution No. 4 of said
body, adopted on June 17, 1969, calling a Convention to propose
amendments
to the Constitution of the Philippines. Said Resolution No. 2, as
amended,
was implemented by Republic Act No. 6132, approved on August 24, 1970,
pursuant to the provisions of which the election of delegates to said
Convention
was held on November 10, 1970, and the 1971 Constitutional Convention
began
to perform its functions on June 1, 1971. While the Convention was in
session
on September 21, 1972, the President issued Proclamation No. 1081
placing
the entire Philippines under Martial Law. On November 29, 1972, the
Convention
approved its Proposed Constitution of the Republic of the Philippines.
The next day, November 30, 1972, the President of the Philippines
issued
Presidential Decree No. 73, "submitting to the Filipino people for
ratification
or rejection the Constitution of the Republic of the Philippines
proposed
by the 1971 Constitutional Convention, and appropriating funds
therefor,"
as well as setting the plebiscite for said ratification or rejection of
the Proposed Constitution on January 15, 1973.cralaw:red
Soon after, or on
December 7, 1972, Charito Planas
filed, with this Court, Case G.R. No. L-35925, against the Commission
on
Elections, the Treasurer of the Philippines and the Auditor General, to
enjoin said "respondents or their agents from implementing Presidential
Decree No. 73, in any manner, until further orders of the Court," upon
the grounds, inter alia, that said Presidential Decree "has no force
and
effect as law because the calling of such plebiscite, the setting of
guidelines
for the conduct of the same, the prescription of the ballots to be used
and the question to be answered by the voters, and the appropriation of
public funds for the purpose, are, by the Constitution, lodged
exclusively
in Congress" and "there is no proper submission to the people of said
Proposed
Constitution set for January 15, 1973, there being no freedom of
speech,
press and assembly, and there being no sufficient time to inform the
people
of the contents thereof."
Substantially
identical actions were filed, on
December 8, 1972, by Pablo C. Sanidad against the Commission on
Elections
[Case G. R. No. L- 35929] on December 11, 1972, by Gerardo Roxas, et
al.,
against the Commission on Elections, the Director of Printing, the
National
Treasurer and the Auditor General [Case G. R. L-35940], by Eddie B.
Monteclaro
against the Commission on Elections and the Treasurer of the
Philippines
[Case G. R. No. L-35941], and by Sedfrey Ordoñez, et al. against
the National Treasurer and the Commission on Elections [Case G. R. No.
L-35942]; on December 12, 1972, by Vidal Tan, et al., against the
Commission
on Elections, the Treasurer of the Philippines, the Auditor General and
the Director of Printing [Case G. R. No. L-35948] and by Jose W. Diokno
and Benigno S. Aquino against the Commission on Elections [Case G. R.
No.
L-35953]; on December 14, 1972, by Jacinto Jimenez against the
Commission
on Elections, the Auditor General, the Treasurer of the Philippines and
the Director of the Bureau of Printing [Case G. R. No. L-35961], and by
Raul M. Gonzales against the Commission on Elections, the Budget
Commissioner,
the National Treasurer and the Auditor General [Case G. R. No.
L-35965];
and on December 16, 1972, by Ernesto C. Hidalgo against the Commission
on Elections, the Secretary of Education, the National Treasurer and
the
Auditor General [Case G. R. No. L-35979].cralaw:red
In all these
cases, except the last [G. R. No.
L-35979], the respondents were required to file their answers "not
later
than 12:00 [o'clock] noon of Saturday, December 16, 1972." Said cases
were,
also, set for hearing and partly heard on Monday, December 18, 1972, at
9:30 a.m. The hearing was continued on December 19, 1972. By agreement
of the parties, the aforementioned last case G.R. No.
L-35979
was, also, heard, jointly with the others, on December 19, 1972. At the
conclusion of the hearing, on that date, the parties in all of the
aforementioned
cases were given a short period of time within which "to submit their
notes
on the points they desire to stress." Said notes were filed on
different
dates, between December 21, 1972, and January 4, 1973.cralaw:red
Meanwhile, or on
December 17, 1972, the President
had issued an order temporarily suspending the effects of Proclamation
No. 1081, for the purpose of free and open debate on the Proposed
Constitution.
On December 23, the President announced the postponement of the
plebiscite
for the ratification or rejection of the Proposed Constitution. No
formal
action to this effect was taken until January 7, 1973, when General
Order
No. 20 was issued, directing "that the plebiscite scheduled to be held
on January 15, 1978, be postponed until further notice." Said General
Order
No. 20, moreover, "suspended in the meantime" the "order of December
17,
1972, temporarily suspending the effects of Proclamation No. 1081 for
purposes
of free and open debate on the proposed Constitution."
In view of these
events relative to the postponement
of the aforementioned plebiscite, the Court deemed it fit to refrain,
for
the time being, from deciding the aforementioned cases, for neither the
date nor the conditions under which said plebiscite would be held were
known or announced officially. Then, again, Congress was, pursuant to
the
1935 Constitution, scheduled to meet in regular session on January 22,
1973, and since the main objection to Presidential Decree No. 73 was
that
the President does not have the legislative authority to call a
plebiscite
and appropriate funds therefor, which Congress unquestionably could do,
particularly in view of the formal postponement of the plebiscite by
the
President reportedly after consultation with, among others, the
leaders
of Congress and the Commission on Elections the Court deemed it
more
imperative to defer its final action on these cases.cralaw:red
"In the afternoon
of January 12, 1973, the petitioners
in Case G.R. No. L-35948 filed an "urgent motion," praying that said
case
be decided "as soon as possible, preferably not later than January 15,
1973." It was alleged in said motion, inter alia:
"6. That the
President subsequently announced
the issuance of Presidential Decree No. 86 organizing the so-called
Citizens
Assemblies, to be consulted on certain public questions [Bulletin
Today,
January 1, 1973];
"7. That
thereafter it was later announced that
"the Assemblies will be asked if they favor or oppose
[1] The New Society;
[2] Reforms instituted under Martial
Law;
[3] The holding of a plebiscite on the
proposed
new Constitution and when (the tentative new dates given following the
postponement of the plebiscite from the original date of January 15 are
February 19 and March 5);
[4] The opening of the regular session
slated
on January 22 in accordance with the existing Constitution despite
Martial
Law." [Bulletin Today, January 3, 1973].
"8. That it was
later reported that the following
are to be the forms of the questions to be asked to the Citizens
Assemblies:
[1] Do you approve of the New Society?
[2] Do you approve of the reform
measures
under
martial law?
[3] Do you think that Congress should
meet
again
in regular session?
[4] How soon would you like the
plebiscite
on
the new Constitution to be held? [Bulletin Today, January 5, 1973].
"9. That the
voting by the so-called Citizens Assemblies
was announced to take place during the period from January 10 to
January
15, 1973;
"10. That on
January 10, 1973, it was reported
that on more question would be added to the four (4) question
previously
announced, and that the forms of the question would be as follows:
[1] Do you like the New Society?
[2] Do you like the reforms under
martial
law?
[3] Do you like Congress again to hold
sessions?
[4] Do you like the plebiscite to be
held
later?
[5] Do you like the way President
Marcos
running
the affairs of the government? [Bulletin Today, January 10, 1973;
emphasis
an additional question].
"11. That on
January 11, 1973, it was reported that
six (6) more questions would be submitted to the so-called Citizens
Assemblies:
[1] Do you approve of the citizens
assemblies
as the base of popular government to decide issues of national
interests?
[2] Do you approve of the new
Constitution?
[3] Do you want a plebiscite to be
called to
ratify
the new Constitution?
[4] Do you want the elections to be
held in
November,
1973 in accordance with the provisions of the 1935 Constitution?
[5] If the elections would not be
held, when
do
you want the next elections to be called?
[6] Do you want martial law to
continue?
[Bulletin
Today, January 11, 1973; emphasis supplied]
"12. That
according to reports, the returns with
respect to the six (6) additional questions quoted above will be on a
form
similar or identical to Annex "A" hereof;
"13. That
attached to page 1 of Annex "A" is another
page, which we marked as Annex "A-1", and which reads:
COMMENTS ON
QUESTION No. 1
In order to broaden the base of
citizens'
participation
in government.
QUESTION No. 2
But we do not want the Ad Interim
Assembly
to
be convoked. Or if it is to be convened at all, it should not be done
so
until after at least seven (7) years from the approval of the New
Constitution
by the Citizens Assemblies.
QUESTION No. 3
The vote of the Citizens Assemblies
should
already
be considered the plebiscite on the New Constitution.
If the Citizens Assemblies approve of
the
New
Constitution, then the new Constitution should be deemed ratified.
QUESTION No. 4
We are sick and tired of too frequent
elections.
We are fed up with politics, of so many debates and so much expenses.
QUESTION No. 5
Probably a period of at least seven
(7)
years
moratorium on elections will be enough for stability to be established
in the country, for reforms to take root and normalcy to return.
QUESTION No. 6
We want President Marcos to continue
with
Martial
Law. We want him to exercise his powers with more authority. We want
him
to be strong and firm so that he can accomplish all his reform programs
and establish normalcy in the country. If all other measures fail, we
want
President Marcos to declare a revolutionary government along the lines
of the new Constitution without the ad interim Assembly."
"Attention is respectfully invited to
the
comments
on "Question No. 3," which reads:
QUESTION No. 3
The vote of the Citizens Assemblies
should
be
considered the plebiscite on the New Constitution.
If the Citizens Assemblies approve of the
New
Constitution, then the new Constitution should be deemed ratified.
This, we are afraid, and therefore
allege,
is
pregnant with ominous possibilities.
14. That, in the meantime, speaking on
television
and over the radio, on January 7, 1973, the President announced that
the
limited freedom of debate on the proposed Constitution was being
withdrawn
and that the proclamation of martial law and the orders and decrees
issued
thereunder would thenceforth strictly be enforced [Daily Express,
January
8, 1973];
15. That petitioners have reason to
fear,
and
therefore state, that the question added in the last list of questions
to be asked to the Citizens Assemblies, namely:
Do you approve of the New Constitution?
in relation to the question following
it:
Do you still want a plebiscite to be
called
to
ratify the new Constitution?"
would be an attempt to by-pass and
short-circuit
this Honorable Court before which the question of the validity of the
plebiscite
on the proposed Constitution is now pending;
"16. That petitioners have reason to
fear,
and
therefore allege, that if an affirmative answer to the two questions
just
referred to will be reported then this Honorable Court and the entire
nation
will be confronted with a fait accompli which has been attained in a
highly
unconstitutional and undemocratic manner;
"17. That the fait accompli would
consist in
the
supposed expression of the people approving the proposed Constitution;
"18. That, if such event would happen,
then
the
case before this Honorable Court could, to all intents and purposes,
become
moot because, petitioners fear, and they therefore allege, that on the
basis of such supposed expression of the will of the people through the
Citizens Assemblies, it would be announced that the proposed
Constitution,
with all its defects, both congenital and otherwise, has been ratified;
"19. That, in such a situation the
Philippines
will be facing a real crisis and there is likelihood of confusion if
not
chaos, because then, the people and their officials will not know which
Constitution is in force.
"20. That the crisis mentioned above
can
only
be avoided if this Honorable Court will immediately decide and announce
its decision on the present petition;
"21. That with the withdrawal by the
President
of the limited freedom of discussion on the proposed Constitution which
was given to the people pursuant to Sec. 3 of Presidential Decree No.
73,
the opposition of respondents to petitioners' prayer at the plebiscite
be prohibited has now collapsed and that a free plebiscite can no
longer
be held."
At about the
same time, a similar prayer was made
in a "manifestation" filed by the petitioners in L-35949, "Gerardo
Roxas,
et al. v. Commission on Elections, et al.," and L-35942, "Sedfrey A.
Ordoñez,
et al. v. The National Treasurer, et al."
The next day,
January 13, 1973, which was a Saturday,
the Court issued a resolution requiring the respondents in said three
(3)
cases to comment on said "urgent motion" and "manifestation," "not
later
than Tuesday noon, January 16, 1973." Prior thereto, or on January 15,
1973, shortly before noon, the petitioners in said Case G.R. No.
L-35948
riled a "supplemental motion for issuance of restraining order and
inclusion
of additional respondents," praying
"That a restraining order be issued
enjoining
and restraining respondent Commission on Elections, as well as the
Department
of Local Governments and its head, Secretary Jose Roño; the
Department
of Agrarian Reforms and its head, Secretary Conrado Estrella; the
National
Ratification Coordinating Committee and its Chairman, Guillermo de
Vega;
their deputies, subordinates and substitutes, and all other officials
and
persons who may be assigned such task, from collecting, certifying, and
announcing and reporting to the President or other officials concerned,
the so-called Citizens' Assemblies referendum results allegedly
obtained
when they were supposed to have met during the period comprised between
January 10 and January 15, 1973, on the two questions quoted in
paragraph
1 of this Supplemental Urgent Motion."
In support of
this prayer, it was alleged
"3. That petitioners are now before this
Honorable
Court in order to ask further that this Honorable Court issue a
restraining
order enjoining herein respondents, particularly respondent Commission
on Elections as well as the Department of Local Governments and its
head,
Secretary Jose Roño; the Department of Agrarian Reforms and its
head, Secretary Conrado Estrella; the National Ratification
Coordinating
Committee and its Chairman, Guillermo de Vega; and their deputies,
subordinates
and/or substitutes, from collecting, certifying, announcing and
reporting
to the President the supposed Citizens' Assemblies referendum results
allegedly
obtained when they were supposed to have met during the period between
January 10 and January 15, 1973, particularly on the two questions
quoted
in paragraph 1 of this Supplemental Urgent Motion;
"4. That the proceedings of the so-called
Citizens'
Assemblies are illegal, null and void particularly insofar as such
proceedings
are being made the basis of a supposed consensus for the ratification
of
the proposed Constitution because:
[a] The elections contemplated in the
Constitution,
Article XV, at which the proposed constitutional amendments are to be
submitted
for ratification, are elections at which only qualified and duly
registered
voters are permitted to vote, whereas, the so called Citizens'
Assemblies
were participated in by persons 15 years of age and older, regardless
of
qualifications or lack thereof, as prescribed in the Election Code;
[b] Elections or plebiscites for the
ratification
of constitutional amendments contemplated in Article XV of the
Constitution
have provisions for the secrecy of choice and of vote, which is one of
the safeguards of freedom of action, but votes in the Citizens'
Assemblies
were open and were cast by raising hands;
[c] The Election Code makes ample
provisions
for free, orderly and honest elections, and such provisions are a
minimum
requirement for elections or plebiscites for the ratification of
constitutional
amendments, but there were no similar provisions to guide and regulate
proceedings of the so called Citizens' Assemblies;
[d] It is seriously to be doubted that,
for
lack
of material time, more than a handful of the so called Citizens'
Assemblies
have been actually formed, because the mechanics of their organization
were still being discussed a day or so before the day they were
supposed
to begin functioning:
"Provincial governors and city and
municipal
mayors had been meeting with barrio captains and community leaders
since
last Monday [January 8, 1973) to thresh out the mechanics in the
formation
of the Citizens Assemblies and the topics for discussion." [Bulletin
Today,
January 10, 1973]
"It should be recalled that the
Citizens'
Assemblies
were ordered formed only at the beginning of the year [Daily Express,
January
1, 1973], and considering the lack of experience of the local
organizers
of said assemblies, as well as the absence of sufficient guidelines for
organization, it is too much to believe that such assemblies could be
organized
at such a short notice.
"5. That for
lack of material time, the appropriate
amended petition to include the additional officials and government
agencies
mentioned in paragraph 3 of this Supplemental Urgent Motion could not
be
completed because, as noted in the Urgent Motion of January 12, 1973,
the
submission of the proposed Constitution to the Citizens' Assemblies was
not made known to the public until January 11, 1973. But be that as it
may, the said additional officials and agencies may be properly
included
in the petition at bar because:
[a] The herein petitioners have prayed in
their
petition for the annulment not only of Presidential Decree No. 73, but
also of "any similar decree, proclamation, order or instruction.
so that
Presidential Decree No. 86, insofar at least
as it attempts to submit the proposed Constitution to a plebiscite by
the
so-called Citizens' Assemblies, is properly in issue in this case, and
those who enforce, implement, or carry out the said Presidential Decree
No. 86. and the instructions incidental thereto clearly fall within the
scope of this petition;
[b] In their petition, petitioners sought
the
issuance of a writ of preliminary injunction restraining not only the
respondents
named in the petition but also their "agents" from implementing not
only
Presidential Decree No. 73, but also "any other similar decree, order,
instruction, or proclamation in relation to the holding of a plebiscite
on January 15, 1973 for the purpose of submitting to the Filipino
people
for their ratification or rejection the 1972 Draft or proposed
Constitution
approved by the Constitutional Convention on November 30, 1972"; and
finally,
[c] Petitioners prayed for such other
relief
which may be just and equitable. [p. 39, Petition].
"Therefore,
viewing the case from all angles, the
officials and government agencies mentioned in paragraph 3 of this
Supplemental
Urgent Motion, can lawfully be reached by the processes of this
Honorable
Court by reason of this petition, considering, furthermore, that the
Commission
on Elections has under our laws the power, among others, of:
(a) Direct and immediate supervision and
control
over national, provincial, city, municipal and municipal district
officials
required by law to perform duties relative to the conduct of elections
on matters pertaining to the enforcement of the provisions of this
Code."
[Election Code of 1971, Sec. 3].
"6. That unless
the petition at bar is decided immediately
and the Commission on Elections, together with the officials and
government
agencies mentioned in paragraph 3 of this Supplemental Urgent Motion
are
restrained or enjoined from collecting, certifying, reporting or
announcing
to the President the results of the alleged voting of the so-called
Citizens'
Assemblies, irreparable damage will be caused to the Republic of the
Philippines,
the Filipino people, the cause of freedom an democracy, and the
petitioners
herein because:
[a] After the result of the supposed
voting on
the questions mentioned in paragraph 1 hereof shall have been
announced,
a conflict will arise between those who maintain that the 1935
Constitution
is still in force, on the one hand, and those who will maintain that it
has been superseded by the proposed Constitution, on the other, thereby
creating confusion, if not chaos;
[b] Even the jurisdiction of this
Court will
be
subject to serious attack because the advocates of the theory that the
proposed Constitution has been ratified by reason of the announcement
of
the results of the proceedings of the so-called Citizens' Assemblies
will
argue that, General Order No. 3, which shall also be deemed ratified
pursuant
to the Transitory Provisions of the proposed Constitution, has placed
Presidential
Decree Nos. 73 and 86 beyond the reach and jurisdiction of this
Honorable
Court."
On the same
date January 15, 1973 the
Court passed a resolution requiring the respondents in said case G. R.
No. L-35948 to file "file an answer to the said motion not later than 4
P.M., Tuesday, January 16, 1973," and setting the motion for hearing
"on
January 17, 1973, at 9:30 a.m." While the case was being heard, on the
date last mentioned, at noontime, the Secretary of Justice called on
the
writer of this opinion and said that, upon instructions of the
President,
he (the Secretary of Justice) was delivering to him [the writer] a copy
of Proclamation No. 1102, which had just been signed by the President.
Thereupon, the writer returned to the Session Hall and announced to the
Court, the parties in G. R. No. L-35948 inasmuch as the hearing
in
connection therewith was still going on and the public there
present
that the President had, according to information conveyed by the
Secretary
of Justice, signed said Proclamation No. 1102, earlier that morning.
Thereupon,
the writer read Proclamation No. 1102 which is of the following tenor:
"BY THE
PRESIDENT OF THE PHILIPPINES"PROCLAMATION
NO. 1102"ANNOUNCING
THE RATIFICATION BY THE
FILIPINO
PEOPLE OF THE CONSTITUTION PROPOSED BY THE 1971 CONSTITUTIONAL
CONVENTION.
"WHEREAS, the Constitution proposed by the
nineteen
hundred seventy-one Constitutional Convention is subject to
ratification
by the Filipino people;
"WHEREAS,
Citizens Assemblies were created in
barrios, in municipalities and in districts/wards in chartered cities
pursuant
to Presidential Decree No. 86, dated December 31, 1972, composed of all
persons who are residents of the barrio, district or ward for at least
six months, fifteen years of age or over, citizens of the Philippines
and
who are registered in the list of Citizen Assembly members kept by the
barrio, district or ward secretary;
"WHEREAS, the
said Citizens Assemblies were established
precisely to broaden the base of citizen participation in the
democratic
process and to afford ample opportunity for the citizenry to express
their
views on important national issues;
"WHEREAS,
responding to the clamor of the people
and pursuant to Presidential Decree No. 86-A, dated January 5, 1973,
the
following questions were posed before the Citizens Assemblies or
Barangays:
Do you approve of the New Constitution? Do you still want a plebiscite
to be called to ratify the new Constitution?
"WHEREAS,
fourteen million nine hundred seventy-six
thousand five hundred sixty-one (14,976,561) members of all the
Barangays
(Citizens Assemblies) voted for the adoption of the proposed
Constitution,
as against seven hundred forty-three thousand eight hundred sixty-nine
(743,869) who voted for its rejection; while on the question as to
whether
or not the people would still like a plebiscite to be called to ratify
the new Constitution, fourteen million two hundred ninety-eight
thousand
eight hundred fourteen (14,298,814) answered that there was no need for
a plebiscite and that the vote of the Barangays (Citizens Assemblies)
should
be considered as a vote in a plebiscite;
"WHEREAS, since
the referendum results show that
more than ninety-five (95) per cent of the members of the Barangays
(Citizens
Assemblies) are in favor of the new Constitution, the Katipunan ng Mga
Barangay has strongly recommended that the new Constitution should
already
be deemed ratified by the Filipino people;
"NOW, THEREFORE,
I, FERDINAND E. MARCOS, President
of the Philippines, by virtue of the powers in me vested by the
Constitution,
do hereby certify and proclaim that the Constitution proposed by the
nineteen
hundred and seventy-one (1971) Constitutional Convention has been
ratified
by an overwhelming majority of all of the votes cast by the members of
all the Barangays (Citizens Assemblies) throughout the Philippines, and
has thereby come into effect.cralaw:red
"IN WITNESS
WHEREOF, I have hereunto set my hand
and caused the seal of the Republic of the Philippines to be affixed.cralaw:red
"Done in the City
of Manila, this 17th day of
January, in the year of Our Lord, nineteen hundred and seventy-three.
(Sgd.)
FERDINAND E.
MARCOS"President of
the Philippines"By the
President:"ALEJANDRO
MELCHOR"Executive
Secretary"
Such is the
background of the cases submitted
determination. After admitting some of the allegations made in the
petition
in L-35948 and denying the other allegations thereof, respondents
therein
alleged in their answer thereto, by way affirmative defenses: 1) that
the
"questions raised" in said petition "are political in character"; 2)
that
"the Constitutional Convention acted freely and had plenary authority
to
propose not only amendments but a Constitution which would supersede
the
present Constitution"; 3) that "the President's call for a plebiscite
and
the appropriation of funds for this purpose are valid"; 4) that "there
is not an improper submission" and "there can be a plebiscite under
Martial
Law"; and 5) that the "argument that the Proposed Constitution is vague
and incomplete, makes an unconstitutional delegation of power, includes
a referendum on the proclamation of Martial Law and purports to
exercise
judicial power" is "not relevant and without merit." Identical defenses
were set up in the other cases under consideration.cralaw:red
Immediately after
the hearing held on January
17, 1973, or since the afternoon of that date, the Members of the Court
have been deliberating on the aforementioned cases and, after extensive
discussions on the merits thereof, have deemed it best that each Member
write his own views thereon and that thereafter the Chief Justice
should
state the result or the votes thus cast on the points in issue. Hence,
the individual views of my brethren in the Court are set forth in the
opinions
attached hereto, except that, instead of writing their separate
opinions,
some Members have preferred to merely concur in the opinion of one of
our
colleagues.cralaw:red
Then the writer
of said decision expressed his
own opinion on the issues involved therein, after which he
recapitulated
the views of the Members of the Court, as follows:
1. There is unanimity on the justiciable
nature
of the issue on the legality of Presidential Decree No. 73.
2. On the validity of the decree
itself,
Justices
Makalintal, Castro, Fernando, Teehankee, Esguerra and myself, or six
(6)
Members of the Court, are of the opinion that the issue has become moot
and academic, whereas Justices Barredo, Makasiar and Antonio voted to
uphold
the validity of said Decree.
3. On the authority of the 1971
Constitutional
Convention to pass the proposed Constitution or to incorporate therein
the provisions contested by the petitioners in L-35948, Justices
Makalintal,
Castro, Teehankee and Esguerra opine that the issue has become moot and
academic. Justices Fernando, Barredo, Makasiar, Antonio and myself have
voted to uphold the authority of the Convention.
4. Justice Fernando, likewise,
expressed the
view
that the 1971 Constitutional Convention had authority to continue in
the
performance of its functions despite the proclamation of Martial Law.
In
effect, Justices Barredo, Makasiar and Antonio hold the same view.
5. On the question whether the
proclamation
of
Martial Law affected the proper submission of the proposed Constitution
to a plebiscite, insofar as the freedom essential therefor is
concerned,
Justice Fernando is of the opinion that there is a repugnancy between
the
election contemplated under Art. XV of the 1935 Constitution and the
existence
of Martial Law, and would, therefore, grant the petitions were they not
moot and academic. Justices Barredo, Antonio and Esguerra are of the
opinion
that issue involves questions of fact which cannot be predetermined,
and
that Martial Law per se does not necessarily preclude the factual
possibility
of adequate freedom, for the purposes contemplated.
6. On Presidential Proclamation No.
1102,
the
following views were expressed:
a. Justices Makalintal, Castro,
Fernando,
Teehankee,
Makasiar, Esguerra and myself are of the opinion that the question of
validity
of said Proclamation has not been properly raised before the Court,
which,
accordingly, should not pass upon such question.
b. Justice Barredo holds that the
issue on
the
constitutionality of Proclamation No. 1102 has been submitted to and
should
be determined by the Court, and that the "purported ratification of the
Proposed Constitution based on the referendum among Citizens'
Assemblies
falls short of being in strict conformity with the requirements of
Article
XV of the 1935 Constitution," but that such unfortunate drawback
notwithstanding,
"considering all other related relevant circumstances, the new
Constitution
is legally recognizable and should be recognized as legitimately in
force."
c. Justice Zaldivar maintains
unqualifiedly that
the Proposed Constitution has not been ratified in accordance with
Article
XV of the 1935 Constitution, and that, accordingly, it has no force and
effect whatsoever.
d. Justice Antonio feels "that the
Court
is not
competent to act" on the issue whether the Proposed Constitution has
been
ratified by the people or not, "in the absence of any judicially
discoverable
and manageable standards," since the issue "poses a question of fact.
7. On the
question whether or not these cases should
be dismissed, Justices Makalintal, Castro, Barredo, Makasiar, Antonio
and
Esguerra voted in the affirmative, for the reasons set forth in their
respective
opinions. Justices Fernando, Teehankee, and the writer similarly voted,
except as regards Case No. L-35948 as to which they voted to grant to
the
petitioners therein a reasonable period of time within which to file
appropriate
pleadings should they wish to contest the legality of Presidential
Proclamation
No. 1102. Justice Zaldivar favors the granting of said period to the
petitioners
in said Case No. L-35948 for the aforementioned purpose, but he
believes,
in effect, that the Court should go farther and decide on the merits
everyone
of the cases under consideration.
Accordingly, the
Court acting in conformity
with the position taken by six (6) of its members,[1]
with three (3) members dissenting,[2]
with respect to G. R. No. L-35948 only and another member[3]
dissenting, as regards all of the cases, dismissed the same, without
special
pronouncement as to costs.
The Present
Cases
Prior thereto, or
on January 20, 1973, Josue Javellana
filed Case G. R. No. L-36142 against the Executive Secretary and the
Secretaries
of National Defense, Justice and Finance, to restrain said respondents
"and their subordinates or agents from implementing any of the
provisions
of the propose Constitution not found in the present
Constitution"
referring to that of 1935. The petition therein, filed by Josue
Javellana,
as a "Filipino citizen, and a qualified and registered voter" and as "a
class suit, for himself, and in behalf of all citizens and voters
similarly
situated," was amended on or about January 24, 1973. After reciting in
substance the facts set forth in the decision in the plebiscite cases,
Javellana alleged that the President had announced "the immediate
implementation
of the New Constitution, thru his Cabinet, respondents including," and
that the latter "are acting without, or in excess of jurisdiction in
implementing
the said proposed Constitution" upon the ground: "that the President,
as
Commander-in-Chief of the Armed Forces of the Philippines, is without
authority
to create the Citizens Assemblies"; that the same "are without power to
approve the proposed Constitution"; "that the President is without
power
to proclaim the ratification by the Filipino people of the proposed
Constitution";
and "that the election held to ratify the proposed Constitution was not
a free election, hence null and void."
Similar actions
were filed on January 23, 1973,
by Vidal Tan, J. Antonio Araneta, Alejandro Roces, Manuel Crudo,
Antonio
U. Miranda, Emilio de Peralta and Lorenzo M. Tañada, against the
Executive Secretary, the Secretaries of Finance, Justice, Land Reform,
and National Defense, the Auditor General, the Budget Commissioner, the
Chairman of the Presidential Commission on Reorganization, the
Treasurer
of the Philippines, the Commission on Elections and the Commissioner of
Civil Service[4]
on February 3, 1973, by Eddie Monteclaro, personally and as President
of
the National Press Club of the Philippines, against the Executive
Secretary,
the Secretary of Public Information, the Auditor General, the Budget
Commissioner
and the National Treasurer[5]
and on February 12, 1973, by Napoleon V. Dilag, Alfredo Salapantan,
Jr.,
Leonardo Asodisen, Jr. and Raul M. Gonzales[6]
against the Executive Secretary, the Secretary of National Defense, the
Budget Commissioner and the Auditor General.cralaw:red
Likewise, on
January 23, 1973, Gerardo Roxas,
Ambrosio Padilla, Jovito R. Salonga, Salvador H. Laurel,[7]
Ramon V. Mitra, Jr. and Eva Estrada-Kalaw, the first as "duly elected
Senator
and Minority Floor Leader of the Senate," and others as "duly elected
members"
thereof, filed Case G. R. No. L-36165, against the Executive Secretary,
the Secretary National Defense, the Chief of Staff of the Armed Forces
of the Philippines, the Secretary of General Services, the President
and
the President Pro Tempore of the Senate. In their petition as
amended
on January 26, 1973 petitioners Gerardo Roxas, et al. allege, inter
alia, that the term of office of three of the aforementioned
petitioners[8]
would expire on December 31, 1975, and that of the others[9]
on December 31, 1977; that pursuant to our 1935 Constitution, "which is
still in force Congress of the Philippines "must convene for its 8th
Session
on Monday, January 22, 1973, at 10:00 A.M., which is regular customary
hour of its opening session"; that "on said day, from 10:00 A.M. up to
the afternoon," said petitioner "along with their other colleagues,
were
unlawfully prevented from using the Senate Session Hall, the same
having
been closed by the authorities in physical possession and control the
Legislative
Building"; that "(a)t about 5:00 to 6:00 P.M. the said day, the
premises
of the entire Legislative Building were ordered cleared by the same
authorities,
and no one was allowed to enter and have access to said premises"; that
"(r)espondent Senate President Gil J. Puyat and, in his absence,
respondent
President Pro Tempore Jose Roy we asked by petitioning Senators to
perform
their duties under the law and the Rules of the Senate, but unlawfully
refrained and continue to refrain from doing so"; that the petitioners
ready and willing to perform their duties as duly elected members of
the
Senate of the Philippines," but respondent Secretary of National
Defense,
Executive Secretary and Chief of Staff, "through their agents and
representatives,
are preventing petitioners from performing their duties as duly elected
Senators of the Philippines"; that "the Senate premise in the Congress
of the Philippines Building are occupied by and are under the physical
control of the elements military organizations under the direction of
said
respondents"; that, as per "official reports, the Department of General
Services is now the civilian agency in custody of the premises of the
Legislative
Building"; that respondents "have unlawfully excluded and prevented,
and
continue to so exclude and prevent" the petitioners "from the
performance
of their sworn duties, invoking the alleged approval of the 1972 (1973)
Constitution of the Philippines by action of the so-called Citizens'
Assemblies
on January 10, 1973 to January 15, 1973, as stated in and by virtue of
Proclamation No. 1102 signed and issued by the President of the
Philippines";
that "the alleged creation of the Citizens' Assemblies as
instrumentalities
for the ratification of the Constitution of the Republic of the
Philippines"
is inherently illegal and palpably unconstitutional; that respondents
Senate
President and Senate President Pro Tempore "have unlawfully refrained
and
continue to refrain from and/or unlawfully neglected and continue to
neglect
the performance of their duties and functions as such officers under
the
law and the Rules of the Senate" quoted in the petition; that because
of
events supervening the institution of the plebiscite cases, to which
reference
has been made in the preceding pages, the Supreme Court dismissed said
cases on January 22, 1973, by a majority vote, upon the ground that the
petitions therein had become moot and academic; that the alleged
ratification
of the 1972 (1973) Constitution "is illegal, unconstitutional and void
and cannot have superseded and revoked the 1935 Constitution," for the
reasons specified in the petition as amended; that, by acting as they
did,
the respondents and their "agents, representatives and subordinates
have
excluded the petitioners from an office to which" they "are lawfully
entitled";
that "respondents Gil J. Puyat and Jose Roy have unlawfully refrained
from
convening the Senate for its 8th session, assuming general jurisdiction
over the Session Hall and the premises of the Senate and continue such
inaction up to this time and a writ of mandamus is warranted in order
to
compel them to comply with the duties and functions specifically
enjoined
by law"; and that "against the above mentioned unlawful acts of the
respondents,
the petitioners have no appeal nor other speedy and adequate remedy in
the ordinary course of law except by invoking the equitable remedies of
mandamus and prohibition with the provisional remedy of preliminary
mandatory
injunction."
Premised upon the
foregoing allegations, said
petitioners prayed that, "pending hearing on the merits, a writ of
preliminary
mandatory injunction be issued ordering respondents Executive
Secretary,
the Secretary of National Defense, the Chief of Staff of the Armed
Forces
of the Philippines, and theSecretary of General Service, as well
as
all their agents, representatives and subordinates to vacate the
premises
of the Senate of the Philippines and to deliver physical possession of
the same to the President of the Senate or his authorized
representative";
and that hearing, judgment be rendered declaring null and Proclamation
No. 1102 and any order, decree, proclamation having the same import and
objective, issuing writs of prohibition and mandamus, as prayed for
against
above-mentioned respondents, and making the writ injunction permanent;
and that a writ of mandamus be issued against the respondents Gil J.
Puyat
and Jose Roy directing them to comply with their duties and functions
as
President and President Pro Tempore, respectively, of the Senate of
Philippines,
as provided by law and the Rules of the Senate."
Required to
comment on the above-mentioned petitions
and/or amended petitions, respondents filed, with the leave Court first
had and obtained, a consolidated comment on said petitions and/or
amended
petitions, alleging that the same ought to have been dismissed
outright;
controverting petitioners' allegations concerning the alleged lack of
impairment
of the freedom of the 1971 Constitutional Convention to approve the
proposed
Constitution, its alleged lack of authority to incorporate certain
contested
provisions thereof, the alleged lack of authority of the President to
create
and establish Citizens' Assemblies "for the purpose of submitting to
them
the matter of ratification of the new Constitution," the alleged
"improper
or inadequate submission of the proposed constitution," the "procedure
for ratification adopted through the Citizens Assemblies"; maintaining
that: 1) "(t)he Court is without jurisdiction to act on these
petitions";
2) the questions raised therein are "political in character and,
therefore,
nonjusticiable"; 3) "there was substantial compliance with Article XV
of
the 1935 Constitution"; 4) "(t)he Constitution was properly submitted
to
the people in a free, orderly and honest election; 5) "Proclamation No.
1102, certifying the results of the election, is conclusive upon the
courts";
and 6) "(t)he amending process outlined in Article XV of the 1935
Constitution
is not exclusive of other modes of amendment."
Respondents Puyat
and Roy, in said Case G. R.
No. L-36165, filed their separate comments therein, alleging that
"(t)he
subject matter" of said case "is a highly political question which,
under
the circumstances, this Court would not be in a position to act upon
judicially,"
and that, in view of the opinions expressed by three members of this
Court
in its decision in the plebiscite cases, in effect upholding the
validity
of Proclamation No. 1102, "further proceedings in this case may only be
an academic exercise in futility."
On February 5,
1973, the Court issued a resolution
requiring respondents in L-36236 to comment on the petition therein not
later than Saturday, February 10, 1973, and setting the case for
hearing
on February 12, 1973, at 9:30 a.m. By resolution dated February 7,
1973,
this Court resolved to consider the comments of the respondents in
cases
G. R. Nos. L-36142, L-36164, and L-36165, as motions to dismiss the
petitions
therein, and to set said cases for hearing on the same date and time as
L-36236. On that date, the parties in G. R. No. L-36283[10]
agreed that the same be, likewise, heard, as it was, in fact, heard
jointly
with the aforementioned cases G. R. Nos. L-36142, L-36164, L-36165 and
L-36236. The hearing, which began on February 12, 1973, shortly after
9:30
a.m., was continued not only that afternoon, but, also, on February 13,
14, 15 and 16, morning and afternoon, after which the parties were
granted
up to February 24, 1973, noon, within which to submit their notes of
oral
arguments and additional arguments, as well as the documents required
of
them or whose presentation was reserved by them. The same resolution
granted
the parties until March 1, 1973, to reply to the notes filed by their
respective
opponents. Counsel for the petitioners in G. R. Nos. L-36164 and
L-36165
filed their aforementioned notes on February 24, 1973, on which date
the
Solicitor General sought an extension of time up to March 3, 1973,
within
which to file his notes, which was granted, with the understanding that
said notes shall include his reply to the notes already filed by the
petitioners
in G. R. Nos. L-36164 and L-36165. Counsel for the petitioners,
likewise,
moved and were granted an extension of time, to expire on March 10,
1973,
within which to file, as they did, their notes in reply to those
submitted
by the Solicitor General on March 3, 1973. On March 21, 1973,
petitioners
in L-36165 filed a "Manifestation a Supplemental Rejoinder," whereas
the
Office of the Solicitor General submitted in all these cases a
"Rejoinder
Petitioners' Replies."
After
deliberating on these cases, the members
of the Court agreed that each would write his own opinion and serve a
copy
thereof on his colleagues, and this they did. Subsequently, the Court
discussed
said opinions and votes were cast thereon. Such individual opinions are
appended hereto.
Accordingly, the writer will first express
his
personal opinion on the issues before the Court. After the exposition
of
his aforesaid opinion, the writer will make, concurrently with his
colleagues
in the Court, a resume of summary of the votes cast by them in these
cases.
Writer's
Personal Opinion
I.Alleged academic futility of
further
proceedings
in G. R. L-36165.
This defense or
theory set up by counsel for respondents
Gil J. Puyat and Jose Roy in G. R. No. L-36165, and, also, by the
Solicitor
General, is predicated upon the fact that, in Our decision in the
plebiscite
cases, Mr. Justice Barredo had expressed the view that the 1935
Constitution
had "pro tanto passed into history" and "been legitimately
supplanted
by the Constitution now in force by virtue of Proclamation No. 1102";
that
Mr. Justice Antonio did not feel "that this Court is competent to act"
in said cases "in the absence of any judicially discoverable and
manageable
standards" and because "the access to relevant information is
insufficient
to assure the correct determination of the issue," apart from the
circumstance
that "the new Constitution has been promulgated and great interests
have
already arisen under it" and that the political organ of the Government
has recognized its provisions; whereas, Mr. Justice Esguerra had
postulated
that "(w)ithout any competent evidence about the circumstances
attending
the holding" of the "referendum or plebiscite" thru the Citizens'
Assemblies,
he "cannot say that it was not lawfully held" and that, accordingly, he
assumed "that what the proclamation [No. 1102] says on its face is true
and until overcome by satisfactory evidence" he could not "subscribe to
the claim that such plebiscite was not held accordingly"; and that he
accepted
"as a fait accompli that the Constitution adopted [by the 1971
Constitutional
Convention] on November 30, 1972, has been duly ratified.cralaw:red
Counsel for
respondents Gil J. Puyat and Jose
Roy goes on to say that, under these circumstances, "it seems remote or
improbable that the necessary eight [8] votes under the 1935
Constitution,
and much less the ten [10] votes required by the 1972 [1973]
Constitution,
can be obtained for the relief sought in the Amended Petition" in G. R.
No. L-36165.cralaw:red
I am unable to
share this view. To begin with,
Mr. Justice Barredo announced publicly, in open court, during the
hearing
of these cases, that he was and is willing to be convinced that his
aforementioned
opinion in the plebiscite cases should be reconsidered and changed. In
effect, he thus declared that he had an open mind in connection with
the
cases at bar, and that in deciding the same he would not necessarily
adhere
to said opinion if the petitioners herein succeeded in convincing him
that
their view should be sustained.cralaw:red
Secondly, counsel
for the aforesaid respondents
had apparently assumed that, under the 1935 Constitution, eight [8]
votes
are necessary to declare invalid the contested Proclamation No. 1102. I
do not believe that this assumption is borne out by any provision of
said
Constitution. Section 10 of Article VIII thereof reads:
All cases involving the constitutionality
of
a treaty or law shall be heard and decided by the Supreme Court in
banc,
and no treaty or law may be declared unconstitutional without the
concurrence
of two thirds of all the members of the Court.
Pursuant to
this section, the concurrence of two-thirds
of all the Members of the Supreme Court is required only to declare a
"treaty
or law" unconstitutional. Construing said provision, in a resolution
dated
September 16, 1949, then Chief Justice Moran, voicing the unanimous
view
of the Members of this Court, postulated:
There is nothing either in the
Constitution or
in the Judiciary Act requiring the vote of eight Justices to nullify a
rule or regulation or an executive order issued by the President. It is
very significant that in the previous drafts of Section 10, Article
VIII
of the Constitution, "executive order" and "regulation" were included
among
those that required for their nullification the vote of two-thirds of
all
the members of the Court. But "executive order" and "regulation" were
later
deleted from the final draft (Aruego, The Framing of the Philippine
Constitution,
Vol. I, pp. 495, 496), and thus a mere majority of six members of this
Court is enough to nullify them.[11]
The distinction
is not without reasonable foundation.
The two thirds vote (eight [8] votes) requirement, indeed, was made to
apply only to treaty and law, because, in these cases, the
participation
of the two other departments of the government the Executive and
the Legislative is present, which circumstance is absent in the
case
of rules, regulations and executive orders. Indeed, a law [statute]
passed
by Congress is subject to the approval or veto of the President, whose
disapproval cannot be overridden except by the vote of two-thirds (2/3)
of all members of each House of Congress.[12]
A treaty is entered into by the President with the concurrence of the
Senate,[13]
which is not required in the case of rules, regulations or executive
orders
which are exclusive acts of the President. Hence, to nullify the same,
a lesser number of votes is necessary in the Supreme Court than that
required
to invalidate a law or treaty.
Although the
foregoing refers to rules, regulations
and executive orders issued by the President, the dictum applies with
equal
force to executive proclamation, like said Proclamation No. 1102,
inasmuch
as the authority to issue the same is governed by section 63 of the
Revised
Administrative Code, which provides:
Administrative acts and commands of the
(Governor-General)
President of the Philippines touching the organization or mode of
operation
of the Government or rearranging or readjusting any of the districts,
divisions,
parts or ports of the (Philippine Islands) Philippines and all acts and
commands governing the general performance of duties by public
employees
or disposing of issues of general concern shall be made effective in
executive
orders.
Executive orders fixing the dates when
specific
laws, resolutions, or orders are to have or cease to (have) effect and
any information concerning matters of public moment determined by law,
resolution, or executive orders, may be promulgated in an executive
proclamation,
with all the force of an executive order.[14]
In fact, while
executive orders embody administrative
acts or commands of the President, executive proclamations are mainly
informative
and declaratory in character, and so does counsel for respondents Gil
J.
Puyat and Jose Roy maintain in G. R. No. L-36165.[15]
As a consequence, an executive proclamation has no more than "the force
of an executive order," so that for the Supreme Court to declare such
proclamation
unconstitutional, under the 1935 Constitution, the same number of votes
needed to invalidate an executive order, rule or regulation
namely,
six [6] votes, would suffice.
As regards the
applicability of the provisions
of the proposed new Constitution, approved by the 1971 Constitutional
Convention,
in the determination of the question whether or not it is now in force,
it is obvious that such question depends upon whether or not the said
new
Constitution has been ratified in accordance with the requirements of
the
1935 Constitution, upon the authority of which said Constitutional
Convention
was called and approved the proposed Constitution. It is well settled
that
the matter of ratification of an amendment to the Constitution should
be
settled by applying the provisions of the Constitution in force at the
time of the alleged ratification, or the old Constitution.[16]
II.Does the issue on the validity
of
Proclamation
No. 1102partake of the nature of a
political,
and, hence, non-justiciable question?
The Solicitor
General maintains in his comment
the affirmative view and this is his main defense. In support thereof,
he alleges that "petitioners would have this Court declare as invalid
the
New Constitution of the Republic" from which he claims
"this
Court now derives its authority"; that "nearly 15 million of our body
politic
from the age of 15 years have mandated this Constitution to be the New
Constitution and the prospect of unsettling acts done in reliance on it
caution against interposition of the power of judicial review"; that
"in
the case of the New Constitution, the government has been recognized in
accordance with the New Constitution"; that "the country's foreign
relations
are now being conducted in accordance with the new charter"; that
"foreign
governments have taken note of it"; that the "plebiscite cases" are
"not
precedents for holding questions regarding proposal and ratification
justiciable";
and that "to abstain from judgment on the ultimate issue of
constitutionality
is not to abdicate duty."
At the outset, it
is obvious to me that We are
not being asked to "declare" the new Constitution invalid. What
petitioners
dispute is the theory that it has been validly ratified by the people,
especially that they have done so in accordance with Article XV of the
1935 Constitution. The petitioners maintain that the conclusion reached
by the Chief Executive in the dispositive portion of Proclamation No.
1102
is not borne out by the whereases preceding the same, as the predicates
from which said conclusion was drawn; that the plebiscite or "election"
required in said Article XV has not been held; that the Chief Executive
has no authority, under the 1935 Constitution, to dispense with said
election
or plebiscite; that the proceedings before the Citizens' Assemblies did
not constitute and may not be considered as such plebiscite; that the
facts
of record abundantly show that the aforementioned Assemblies could not
have been held throughout the Philippines from January 10 to January
15,
1973; and that, in any event, the proceedings in said Assemblies are
null
and void as an alleged ratification of the new Constitution proposed by
the 1971 Constitutional Convention, not only because of the
circumstances
under which said Assemblies had been created and held, but, also,
because
persons disqualified to vote under Article V of the Constitution were
allowed
to participate therein, because the provisions of our Election Code
were
not observed in said Assemblies, because the same were not held under
the
supervision of the Commission on Elections, in violation of section 2
of
Article X of the 1935 Constitution, and because the existence of
Martial
Law and General Order No. 20, withdrawing or suspending the limited
freedom
to discuss the merits and demerits of said proposed Constitution,
impaired
the people's freedom in voting thereon, particularly a viva voce, as it
was done in many instances, as well as their ability to have a
reasonable
knowledge of the contents of the document on which they were allegedly
called upon to express their views.cralaw:red
Referring now
more specifically to the issue on
whether the new Constitution proposed by the 1971 Constitutional
Convention
has been ratified in accordance with the provisions of Article XV of
the
1935 Constitution is a political question or not, I do not hesitate to
state that the answer must be in the negative. Indeed, such is the
position
taken by this Court,[17]
in an endless line of decisions, too long to leave any room for
possible
doubt that said issue is inherently and essentially justiciable. Such,
also, has been the consistent position of the courts of the United
States
of America, whose decisions have a persuasive effect in this
jurisdiction,
our constitutional system in the 1935 Constitution being patterned
after
that of the United States. Besides, no plausible reason has, to my
mind,
been advanced to warrant a departure from said position, consistently
with
the form of government established under said Constitution
Thus, in the
aforementioned plebiscite cases,[18]
We rejected the theory of the respondents therein that the question
whether
Presidential Decree No. 73 calling a plebiscite to be held on January
15,
1973, for the ratification or rejection of the proposed new
Constitution,
was valid or not, was not a proper subject of judicial inquiry because,
they claimed, it partook of a political nature, and We unanimously
declared
that the issue was a justiciable one. With identical unanimity, We
overruled
the respondents' contention in the 1971 habeas corpus cases,[19]
questioning Our authority to determine the constitutional sufficiency
of
the factual bases of the Presidential proclamation suspending the
privilege
of the writ of habeas corpus on August 21, 1971, despite the opposite
view
taken by this Court in Barcelona v. Baker[20]
and Montenegro v. Castañeda,[21]
insofar as it adhered to the former case, which view We, accordingly,
abandoned
and refused to apply. For the same reason, We did not apply and
expressly
modified, in Gonzales v. Commission on Elections,[22]the political-question theory adopted in
Mabanag
v. Lopez Vito.[23]Hence, respondents herein urge Us to
reconsider
the
action thus taken by the Court and to revert to and follow the views
expressed
in Barcelon v. Baker and Mabanag v. Lopez Vito.[24]
The reasons
adduced in support thereof are, however,
substantially the same as those given in support of the
political-question
theory advanced in said habeas corpus and plebiscite cases, which were
carefully considered by this Court and found by it to be legally
unsound
and constitutionally untenable. As a consequence, Our decision in the
aforementioned
habeas corpus cases partakes of the nature and effect of a stare
decisis
which gained added weight by its virtual reiteration in the plebiscite
cases.cralaw:red
The reason why
the issue under consideration and
other issues of similar character are justiciable, not political, is
plain
and simple. One of the principal bases of the non-justiciability of
so-called
political questions is the principle of separation of powers
characteristic
of the Presidential system of government the functions of which
are
classified or divided, by reason of their nature, into three (3)
categories,
namely: 1) those involving the making of laws, which are allocated to
the
legislative department; 2) those concerned mainly with the enforcement
of such laws and of judicial decisions applying and/or interpreting the
same, which belong to the executive department; and 3) those dealing
with
the settlement of disputes, controversies or conflicts involving
rights,
duties or prerogatives that are legally demandable and enforceable,
which
are apportioned to courts of justice. Within its own sphere but
only
within such sphere each department is supreme and independent of
the others, and each is devoid of authority, not only to encroach upon
the powers or field of action assigned to any of the other departments,
but, also, to inquire into or pass upon the advisability or wisdom of
the
acts performed, measures taken or decisions made by the other
departments
provided that such acts, measures or decisions are within the area
allocated
thereto by the Constitution.[25]
This principle of
separation of powers under the
presidential system goes hand in hand with the system of checks and
balances,
under which each department is vested by the Fundamental Law with some
powers to forestall, restrain or arrest a possible or actual misuse or
abuse of powers by the other departments. Hence, the appointing power
of
the Executive, his pardoning power, his veto power, his authority to
call
the Legislature or Congress to special sessions and even to prescribe
or
limit the object or objects of legislation that may be taken up in such
sessions, etc. Conversely, Congress or an agency or arm thereof
such
as the commission on Appointments may approve or disapprove some
appointments made by the President. It, also, has the power of
appropriation,
to "define, prescribe, and apportion the jurisdiction of the various
courts,"
as well as that of impeachment. Upon the other hand, under the judicial
power vested by the Constitution, the "Supreme Court and such inferior
courts as may be established by law," may settle or decide with
finality,
not only justiciable controversies between private individuals or
entities,
but, also, disputes or conflicts between a private individual or
entity,
on the one hand, and an officer or branch of the government, on the
other,
or between two (2) officers or branches of service, when the latter
officer
or branch is charged with acting without jurisdiction or in excess
thereof
or in violation of law. And so, when a power vested in said officer or
branch of the government is absolute or unqualified, the acts in the
exercise
of such power are said to be political in nature, and, consequently,
non-justiciable
or beyond judicial review. Otherwise, courts of justice would be
arrogating
upon themselves a power conferred by the Constitution upon another
branch
of the service to the exclusion of the others. Hence, in Tañada
v. Cuenco,[26]this Court quoted with approval from In re
McConaughy,[27]
the following:
"At the threshold of the case we are met
with
the assertion that the questions involved are political, and not
judicial.
If this is correct, the court has no jurisdiction as the certificate of
the state canvassing board would then be final, regardless of the
actual
vote upon the amendment. The question thus raised is a fundamental one;
but it has been so often decided contrary to the view contended for by
the Attorney General that it would seem to be finally settled.
"What is generally meant, when it is said
that
a question is political, and not judicial, is that it is a matter which
is to be exercised by the people in their primary political capacity,
or
that it has been specifically delegated to some other department or
particular
officer of the government, with discretionary power to act. See State
vs.
Cunningham, 81 Wis. 497, N.W. 724, 15 L.R.A. 561; In re Gunn, 50 Kan.
155;
32 Pac. 470, 948, 19 L.R.A. 519; Green vs. Mills, 69 Fed. 852, 16
C.C.A.
516, 30 L.R.A. 90; Fletcher vs. Tuttle 151 Ill. 41, 37 N.E. 683, 25
L.R.A.
143, 42 Am. St. Rep. 220. Thus the Legislature may in its discretion
determine
whether it will pass law or submit a proposed constitutional amendment
to the people. The courts have no judicial control over such matters,
not
merely because they involve political questions, but because they are
matters
which the people have by the Constitution delegated to the Legislature.
The Governor may exercise the powers delegated him, free from judicial
control, so long as he observes the laws act within the limits of the
power
conferred. His discretionary acts cannot be controllable, not primarily
because they are of a politics nature, but because the Constitution and
laws have placed the particular matter under his control. But every
officer
under constitutional government must act accordingly to law and subject
its restrictions, and every departure therefrom or disregard thereof
must
subject him to that restraining and controlling power of the people,
acting
through the agency of the judiciary; for it must be remembered that the
people act through courts, as well as through the executive or the
Legislature.
One department is just as representative as the other, and the
judiciary
is the department which is charged with the special duty of determining
the limitations which the law places upon all official action. The
recognition
of this principle, unknown except in Great Britain and America, is
necessary,
to "the end that the government may be one of laws and not of
men"
words which Webster said were the greatest contained in any written
constitutional
document." (Emphasis supplied).
and, in an
attempt to describe the nature of a political
question in terms, it was hoped, understandable to the laymen, We added
that "the term "political question" connotes, in legal parlance, what
it
means in ordinary parlance, namely, a question of policy" in matters
concerning
the government of a State, as a body politic. "In other words, in the
language
of Corpus Juris Secundum (supra), it refers to "those questions
which, under the Constitution, are to be decided by the people in their
sovereign capacity, or in regard to which full discretionary authority
has been delegated to the Legislature or executive branch of the
government."
It is concerned with issues dependent upon the wisdom, not legality, of
a particular measure."
Accordingly, when
the grant of power is qualified,
conditional or subject to limitations, the issue on whether or not the
prescribed qualifications or conditions have been met, or the
limitations
respected, is justiciable or non-political, the crux of the problem
being
one of legality or validity of the contested act, not its wisdom.
Otherwise,
said qualifications, conditions or limitations particularly those
prescribed or imposed by the Constitution would be set at naught.
What is more, the judicial inquiry into such issue and the settlement
thereof
are the main functions of courts of justice under the Presidential form
of government adopted in our 1935 Constitution, and the system of
checks
and balances, one of its basic predicates. As a consequence, We have
neither
the authority nor the discretion to decline passing upon said issue,
but
are under the ineluctable obligation made particularly more
exacting
and peremptory by our oath, as members of the highest Court of the
land,
to support and defend the Constitution to settle it. This
explains
why, in Miller v. Johnson,[28]it was held that courts have a "duty,
rather than
a power", to determine whether another branch of the government has
"kept
within constitutional limits." Not satisfied with this postulate, the
court
went farther and stressed that, if the Constitution provides how it may
be amended as it is in our 1935 Constitution "then, unless
the manner is followed, the judiciary as the interpreter of that
constitution,
will declare the amendment invalid."[29]
In fact, this very Court speaking through Justice Laurel, an
outstanding
authority on Philippine Constitutional Law, as well as one of the
highly
respected and foremost leaders of the Convention that drafted the 1935
Constitution declared, as early as July 15, 1936, that "(i)n
times
of social disquietude or political excitement, the great landmarks of
the
Constitution are apt to be forgotten or marred, if not entirely
obliterated.
In cases of conflict, the judicial department is the only
constitutional
organ which can be called upon to determine the proper allocation of
powers
between the several departments" of the government.[30]
The Solicitor
General has invoked Luther v. Borden[31]
in support of his stand that the issue under consideration is
non-justiciable
in nature. Neither the factual background of that case nor the action
taken
therein by the Federal Supreme Court has any similarity with or bearing
on the cases under consideration.cralaw:red
Luther v. Borden
was an action for trespass filed
by Luther with the Circuit Court of the United States against Borden
and
others for having forcibly entered into Luther's house, in Rhode
Island,
sometime in 1842. The defendants who were in the military service of
said
former colony of England, alleged in their defense that they had acted
in obedience to the commands of a superior officer, because Luther and
others were engaged in a conspiracy to overthrow the government by
force
and the state had been placed by competent authority under Martial Law.
Such authority was the charter government of Rhode Island at the time
of
the Declaration of Independence, for unlike other states which
adopted
a new Constitution upon secession from England Rhode Island
retained
its form of government under a British Charter, making only such
alterations,
by acts of the Legislature, as were necessary to adapt it to its
subsequent
condition as an independent state. It was under this form of government
when Rhode Island joined other American states in the Declaration of
Independence
and, by subsequently ratifying the Constitution of the United States,
became
a member of the Union. In 1843, it adopted a new Constitution.cralaw:red
Prior thereto,
however, many citizens had become
dissatisfied with the charter government. Memorials addressed by them
to
the Legislature having failed to bring about the desired effect,
meetings
were held and associations formed by those who belonged to this
segment
of the population which eventually resulted in a convention
called
for the drafting of a new Constitution to be submitted to the people
for
their adoption or rejection. The convention was not authorized by any
law
of the existing government. The delegates to such convention framed a
new
Constitution which was submitted to the people. Upon the return of the
votes cast by them, the convention declared that said Constitution had
been adopted and ratified by a majority of the people and became the
paramount
law and Constitution of Rhode Island.cralaw:red
The charter
government, which was supported by
a large number of citizens of the state, contested, however, the
validity
of said proceedings. This notwithstanding, one Thomas W. Dorr, who had
been elected governor under the new Constitution of the rebels,
prepared
to assert authority by force of arms, and many citizens assembled to
support
him. Thereupon, the charter government passed an Act declaring the
state
under Martial Law and adopted measures to repel the threatened attack
and
subdue the rebels. This was the state of affairs when the defendants,
who
were in the military service of the charter government and were to
arrest
Luther, for engaging in the support of the rebel government which
was never able to exercise any authority in the state broke into
his house.cralaw:red
Meanwhile, the
charter government had taken measures
to call its own convention to revise the existing form of government.
Eventually,
a new constitution was drafted by a convention held under the authority
of the charter government, and thereafter was adopted and ratified by
the
people. "(T)he times and places at which the votes were to be given,
the
persons who were to receive and return them, and the qualifications of
the voters having all been previously authorized and provided for by
law
passed by the charter government," the latter formally surrendered all
of its powers to the new government, established under its authority,
in
May 1843, which had been in operation uninterruptedly since then.cralaw:red
About a year
before, or in May 1842, Dorr, at
the head of a military force, had made an unsuccessful attempt to take
possession of the state arsenal in Providence, but he was repulsed,
and,
after an "assemblage of some hundreds of armed men under his command at
Chepatchet in the June following, which dispersed upon approach of the
troops of the old government, no further effort was made to establish"
his government until the Constitution of 1843" adopted under the
auspices of the charter government "went into operation, the
charter
government continued to assert its authority and exercise its powers
and
to enforce obedience throughout the state."
Having offered to
introduce evidence to prove
that the constitution of the rebels had been ratified by the majority
of
the people, which the Circuit Court rejected, apart from rendering
judgment
for the defendants, the plaintiff took the case for review to the
Federal
Supreme Court which affirmed the action of the Circuit Court, stating:
It is worthy of remark, however, when we
are
referring to the authority of State decisions, that the trial of Thomas
W. Dorr took place after the constitution of 1843 went into operation.
The judges who decided that case held their authority under that
constitution
and it is admitted on all hands that it was adopted by the people of
the
State, and is the lawful and established government. It is the
decision,
therefore, of a State court, whose judicial authority to decide upon
the
constitution and laws of Rhode Island is not questioned by either party
to this controversy, although the government under which it acted was
framed
and adopted under the sanction and laws of the charter government.
The point,
then, raised here has been already decided
by the courts of Rhode Island. The question relates, altogether, to the
constitution and laws of that State, and the well settled rule in this
court is, that the courts of the United States adopt and follow the
decisions
of the State courts in questions which concern merely the constitution
and laws of the State.
Upon what ground
could the Circuit Court of the
United States which tried this case have departed from this rule, and
disregarded
and overruled the decisions of the courts of Rhode Island? Undoubtedly
the courts of the United States have certain powers under the
Constitution
and laws of the United States which do not belong to the State courts.
But the power of determining that a State government has been lawfully
established, which the courts of the State disown and repudiate, is not
one of them. Upon such a question the courts of the United States are
bound
to follow the decisions of the State tribunals, and must therefore
regard
the charter government as the lawful and established government during
the time of this contest.[32]
It is thus
apparent that the context within which
the case of Luther v. Borden was decided is basically and fundamentally
different from that of the cases at bar. To begin with, the case did
not
involve a federal question, but one purely municipal in nature. Hence,
the Federal Supreme Court was "bound to follow the decisions of the
State
tribunals" of Rhode Island upholding the constitution adopted under the
authority of the charter government. Whatever else was said in that
case
constitutes, therefore, an obiter dictum. Besides, no decision
analogous
to that rendered by the State Court of Rhode Island exists in the cases
at bar. Secondly, the states of the Union have a measure of internal
sovereignty
upon which the Federal Government may not encroach, whereas ours is a
unitary
form of government, under which our local governments derive their
authority
from the national government. Again, unlike our 1935 Constitution, the
charter or organic law of Rhode Island contained no provision on the
manner,
procedure or conditions for its amendment.cralaw:red
Then, too, the
case of Luther v. Borden hinged
more on the question of recognition of government, than on recognition
of constitution, and there is a fundamental difference between these
two
(2) types of recognition, the first being generally conceded to be a
political
question, whereas the nature of the latter depends upon a number of
factors,
one of them being whether the new Constitution has been adopted in the
manner prescribed in the Constitution in force at the time of the
purported
ratification of the former, which is essentially a justiciable
question.
There was, in Luther v. Borden, a conflict between two (2) rival
governments,
antagonistic to each other, which is absent in the present cases. Here,
the Government established under the 1935 Constitution is the very same
government whose Executive Department has urged the adoption of the new
or revised Constitution proposed by the 1971 Constitutional Convention
and now alleges that it has been ratified by the people.cralaw:red
In short, the
views expressed by the Federal Supreme
Court in Luther v. Borden, decided in 1849, on matters other than those
referring to its power to review decisions of a state court concerning
the constitution and government of that state, not the Federal
Constitution
or Government, are manifestly neither, controlling, nor even persuasive
in the present cases, having as the Federal Supreme Court
admitted
no authority whatsoever to pass upon such matters or to review
decisions
of said state court thereon. In fact, referring to that case, the
Supreme
Court of Minnessota had the following to say:
Luther v. Borden, 7 How. 1, 12 L. Ed.
581, is
always cited by those who assert that the courts have no power to
determine
questions of a political character. It is interesting historically, but
it has not the slightest application to the case at bar. When carefully
analyzed, it appears that it merely determines that the federal courts
will accept as final and controlling a decision of the highest court of
a state upon a question of the construction of the Constitution of the
state.[33]
Baker v. Carr,[34]cited by respondents, involved an action to
annul
a Tennessee statute apportioning the seats in the General Assembly
among
the counties of the State, upon the theory that the legislation
violated
the equal protection clause. A district court dismissed the case upon
the
ground, among others, that the issue was a political one, but, after a
painstaking review of the jurisprudence on the matter, the Federal
Supreme
Court reversed the appealed decision and held that said issue was
justiciable
and non-political, inasmuch as:"deciding whether a matter has in any
measure
been committed by the Constitution to another branch of government, or
whether the action of that branch exceeds whatever authority has been
committed,
is itself a delicate exercise in constitutional interpretation, and is
a responsibility of this Court as ultimate interpreter of the
Constitution."
Similarly, in
Powell v. McCormack,[35]
the same Court, speaking through then Chief
Justice
Warren, reversed a decision of the Court of Appeals of New York
affirming
that of a Federal District Court, dismissing Powell's action for a
declaratory
judgment declaring thereunder that he whose qualifications were
uncontested
had been unlawfully excluded from the 90th Congress of the U.S. Said
dismissal
was predicated upon the ground, inter alia, that the issue was
political,
but the Federal Supreme Court held that it was clearly a justiciable
one.cralaw:red
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 ratifiedconformably to said Art. XV of
the
1935
Constitution?
Petitioners in
L-36142 maintain the negative view,
upon ground: 1) that the President "is without authority to create the
Citizens' Assemblies" through which, respondents maintain, the proposed
new Constitution has been ratified; that said Assemblies "are without
power
to approve the proposed Constitution"; 3) that the President "is
without
power to proclaim the ratification by the Filipino people of the
proposed
Constitution"; and 4) that "the election held (in the Citizens'
Assemblies)
to ratify the proposed Constitution was not a free election, hence null
and void."
Apart from
substantially reiterating these grounds
support of said negative view, the petitioners in L-36164 contend: 1)
that
the President "has no power to call a plebiscite for the ratification
or
rejection" of the proposed new Constitution or "to appropriate funds
for
the holding of the said plebiscite"; 2) that the proposed new or
revised
Constitution "is vague and incomplete," as well as "contains provisions
which are beyond the powers of the 1971 Convention to enact," thereby
rendering
it "unfit for submission the people;" 3) that "(t)he period of
time
between November 1972 when the 1972 draft was approved and January
11-15,
1973," when the Citizens' Assemblies supposedly ratified said draft,
"was
too short, worse still, there was practically no time for the Citizens'
Assemblies to discuss the merits of the Constitution which the majority
of them have not read a which they never knew would be submitted to
them
ratification until they were asked the question "do you approve
of
the New Constitution?" during the said days of the voting"; and that
"(t)here
was altogether no freedom discussion and no opportunity to concentrate
on the matter submitted to them when the 1972 draft was supposedly
submitted
to the Citizens' Assemblies for ratification."
Petitioner in
L-36236 added, as arguments in support
of the negative view, that : 1) "(w)ith a government-controlled press,
there can never be a fair and proper submission of the proposed
Constitution
to the people"; and 2) Proclamation No. 1102 is null and void
"(i)nasmuch
as the ratification process" prescribed "in the 1935 Constitution was
not
followed."
Besides adopting
substantially some of the grounds
relied upon by the petitioners in the above-mentioned cases, the
petitioners
in L-36283 argue that "(t)he creation of the Citizens' Assemblies as
the
vehicle for the ratification of the Constitution was a deception upon
the
people since the President announced the postponement of the January
15,
1973 plebiscite to either February 19 or March 5, 1973."[38]
The reasons
adduced by the petitioners in L-36165
in favor of the negative view have already been set forth earlier in
this
opinion. Hence, it is unnecessary to reproduce them here. So it is,
with
respect to the positions taken in L-36165 by counsel for therein
respondents
Gil J. Puyat and Jose Roy although more will be said later about
them and by the Solicitor General, on behalf of the other
respondents
in that case and the respondents in the other cases.cralaw:red
1. What is the
procedure prescribed by the
1935 Constitution for its amendment?
Under Section 1
of Art. XV of said Constitution,
three (3) steps are essential, namely:
1. That the amendments to the
Constitution be
proposed either by Congress or by a convention called for that purpose,
"by a vote of three-fourths of all the Members of the Senate and the
House
of Representatives voting separately," but "in joint session assembled";
2. That such amendments be "submitted
to the
people
for their ratification" at an "election"; and
3. That such amendments be "approved
by a
majority
of the votes cast" in said election.
Compliance with
the first requirement is virtually
conceded, although the petitioners in L-36164 question the authority of
the 1971 Constitutional Convention to incorporate certain provisions
into
the draft of the new or revised Constitution. The main issue in these
five
(5) cases hinges, therefore, on whether or not the last two (2)
requirements
have been complied with.
2. Has the
contested draft of the new or revised
Constitution been submitted to the people for their ratification
conformably
to Art. XV of the Constitution?
In this
connection, other provisions of the 1935
Constitution concerning "elections" must, also, be taken into account,
namely, section I of Art. V and Art. X of said Constitution. The former
reads:
Section 1. Suffrage may be exercised by
male
citizens of the Philippines not otherwise disqualified by law, who are
twenty-one years of age or over and are able to read and write, and who
shall have resided in the Philippines for one year and in the
municipality
wherein they propose to vote for at least six months preceding the
election.
The National Assembly shall extend the right of suffrage to women, if
in
a plebiscite which shall be held for that purpose within two years
after
the adoption of this Constitution, not less than three hundred thousand
women possessing the necessary qualifications shall vote affirmatively
on the question.
Sections 1 and
2 of Art. X of the Constitution ordain
in part:
Section 1. There shall be an independent
Commission
on Elections composed of a Chairman and two other Members to be
appointed
by the President with the consent of the Commission on Appointments,
who
shall hold office for a term of nine years and may not be reappointed.
xxx xxx xxx
Sec. 2. The Commission on Elections
shall
have
exclusive charge of the enforcement and administration of all laws
relative
to the conduct of elections and shall exercise all other functions
which
may be conferred upon it by law. It shall decide, save those involving
the right to vote, all administrative questions, affecting elections,
including
the determination of the number and location of polling places, and the
appointment of election inspectors and of other election officials. All
law enforcement agencies and instrumentalities of the Government, when
so required by the Commission, shall act as its deputies for the
purpose
of insuring fee, orderly, and honest elections. The decisions, orders,
and rulings of the Commission shall be subject to review by the Supreme
Court.
xxx xxx xxx[39]
a. Who
may vote in a plebiscite under Art.
V of the Constitution?
Petitioners
maintain that Section 1 of Art. V
of the Constitution is a limitation upon the exercise of the right of
suffrage.
They claim that no other persons than "citizens of the Philippines not
otherwise disqualified by law, who are twenty-one years of age or over
and are able to read and write, and who shall have resided in the
Philippines
for one year and in the municipality wherein they propose to vote for
at
least six months preceding the election," may exercise the right of
suffrage
in the Philippines. Upon the other hand, the Solicitor General contends
that said provision merely guarantees the right of suffrage to persons
possessing the aforementioned qualifications and none of the
disqualifications,
prescribed by law, and that said right may be vested by competent
authorities
in persons lacking some or all of the aforementioned qualifications,
and
possessing some of the aforesaid disqualifications. In support of this
view, he invokes the permissive nature of the language
"(s)uffrage
may be exercised" used in Section 1 of Art. V of the
Constitution,
and the provisions of the Revised Barrio Charter, Republic Act No.
3590,
particularly Sections 4 and 6 thereof, providing that citizens of the
Philippines
"eighteen years of age or over," who are registered in the list of
barrio
assembly members, shall be members thereof and may participate as such
in the plebiscites prescribed in said Act.cralaw:red
I cannot accept
the Solicitor General's theory.
Art. V of the Constitution declares who may exercise the right of
suffrage,
so that those lacking the qualifications therein prescribed may not
exercise
such right. This view is borne out by the records of the Constitutional
Convention that drafted the 1935 Constitution. Indeed, Section 1 of
Art.
V of the 1935 Constitution was largely based on the report of the
committee
on suffrage of the Convention that drafted said Constitution which
report
was, in turn, "strongly influenced by the election laws then in force
in
the Philippines."[40]
"Said committee had recommended: 1) "That the right of suffrage should
exercised only by male citizens of the Philippines." 2) "That should be
limited to those who could read and write." 3) "That the duty to vote
should
be made obligatory." It appears that the first recommendation was
discussed
extensively in the Convention, and that, by way of compromise, it was
eventually
agreed to include, in Section 1 of Art. V of the Constitution, the
second
sentence thereof imposing upon the National Assembly established by the
original Constitution instead of the bicameral Congress
subsequently
created by amendment said Constitution the duty to "extend the
right
of suffrage women, if in a plebiscite to, be held for that purpose
within
two years after the adoption of this Constitution, not less than three
hundred thousand women possessing the necessary qualifications shall
vote
affirmatively on the question."[41]
The third
recommendation on "compulsory" voting
was, also debated upon rather extensively, after which it was rejected
by the Convention.[42]
This accounts, in my opinion, for the permissive language used in the
first
sentence of said Art. V. Despite some debates on the age
qualification
amendment having been proposed to reduce the same to 18 or 20, which
were
rejected, and the residence qualification, as well as the
disqualifications
to the exercise of the right of suffrage the second
recommendation
limiting the right of suffrage to those who could "read and write"
was
in the language of Dr. Jose M. Aruego, one of the Delegates to said
Convention
"readily approved in the Convention without any dissenting vote,"
although
there was some debate on whether the Fundamental Law should specify the
language or dialect that the voter could read and write, which was
decided
in the negative.[43]
What is relevant
to the issue before Us is the
fact that the constitutional provision under consideration was meant to
be and is a grant or conferment of a right to persons possessing the
qualifications
and none of the disqualifications therein mentioned, which in turn,
constitute
a limitation of or restriction to said right, and cannot, accordingly,
be dispensed with, except by constitutional amendment. Obviously, every
such constitutional grant or conferment of a right is necessarily a
negation
of the authority of Congress or of any other branch of the Government
to
deny said right to the subject of the grant and, in this sense
only,
may the same partake of the nature of a guarantee. But, this does not
imply
not even remotely, that the Fundamental Law allows Congress or anybody
else to vest in those lacking the qualifications and having the
disqualifications
mentioned in the Constitution the right of suffrage.cralaw:red
At this juncture,
it is noteworthy that the committee
on suffrage responsible for the adoption of section 1 of Art. V of the
Constitution was "strongly influenced by the election laws then in
force
in the Philippines." Our first Election Law was Act 1582, passed on
January
9, 1907, which was partly amended by Acts 1669, 1709, 1726 and 1768,
and
incorporated into the Administrative Code of 1916 Act 2657
as Chapter 20 thereof, and then in the Administrative Code of
1917
Act 2711 as Chapter 18 thereof, which, in turn, was amended by
Act
3387, approved on December 3, 1927. Sections 431 and 432 of said Code
of
1917, prescribing, respectively, the qualifications for and
disqualifications
from voting, are quoted below.[44]
In all of these legislative acts, the provisions concerning the
qualifications
of voters partook of the nature of a grant or recognition of the right
of suffrage, and, hence, of a denial thereof to those who lacked the
requisite
qualification and possessed any of the statutory disqualifications. In
short, the history of Section 1, Art. V of the Constitution, shows
beyond
doubt than the same conferred not guaranteed the authority
to persons having the qualifications prescribed therein and none of
disqualifications
to be specified in ordinary laws and, necessary implication, denied
such
right to those lacking any said qualifications, or having any of the
aforementioned
disqualifications.cralaw:red
This view is
further bolstered by the fact that
the 1971 Constitutional Convention sought the submission to a
plebiscite
of a "partial amendment" to said Section 1 of Art. V of the 1935
Constitution,
by reducing the voting age from twenty-one (21) years to eighteen (18)
years, which, however, did not materialize on account of the decision
of
this Court in Tolentino v. Commission on Elections,[45]
granting the writs, of prohibition and injunction therein applied for,
upon the ground that, under the Constitution, all of the amendments
adopted
by the Convention should be submitted in "an election" or a single
election,
not separately or in several or distinct elections, and that the
proposed
amendment sought to be submitted to a plebiscite was not even a
complete
amendment, but a "partial amendment" of said Section 1, which could be
amended further, after its ratification, had the same taken place, so
that
the aforementioned partial amendment was, for legal purposes, no more
than
a provisional or temporary amendment. Said partial amendment was
predicated
upon the generally accepted contemporary construction that, under the
1935
Constitution, persons below twenty-one (21) years of age could not
exercise
the right of suffrage, without a previous amendment of the Constitution.cralaw:red
Upon the other
hand, the question, whether 18-year-old
members of barrio assemblies may vote in barrio assembly plebiscites
is,
to say the least, a debatable one. Indeed, there seems to be a conflict
between the last paragraph of said Section 6 of Rep. Act No. 3590,[46]
pursuant to which the "majority vote of all the barrio assembly
members"
(which include all barrio residents 18 years of age or over, duly
registered
in the list of barrio assembly members) is necessary for the approval,
in an assembly plebiscite, of "any budgetary, supplemental
appropriations
or special tax ordinances," whereas, according to the paragraph
preceding
the penultimate one of said Section,[47]
"(a)ll duly registered barrio assembly members qualified to vote"
who, pursuant to Section 10 of the same Act, must be citizens "of the
Philippines,
twenty-one years of age or over, able to read and write," and residents
the barrio "during the six months immediately preceding election, duly
registered in the list of voters" and " otherwise disqualified" just
like
the provisions of present and past election codes of the Philippines
and
Art. V of the 1935 Constitution "may vote in the plebiscite."
I believe,
however, that the apparent conflict
should resolved in favor of the 21-year-old members of the assembly,
not
only because this interpretation is in accord with Art. V the
Constitution,
but, also, because provisions of a Constitution particularly of a
written and rigid one, like ours generally accorded a mandatory
status
unless the intention to the contrary is manifest, which is not so as
regards
said Art. V for otherwise they would not have been considered
sufficiently
important to be included in the Fundamental Law of the land.[48]
Besides, it would be illogical, if not absurd, believe that Republic
Act
No. 3590 requires, for the most important measures for which it
demands
in addition to favorable action of the barrio council the
approval
of barrio assembly through a plebiscite, lesser qualifications than
those
prescribed in dealing with ordinary measures for which such plebiscite
need not be held.cralaw:red
It is similarly
inconceivable that those who drafted
the 1935 Constitution intended Section 1 of Art. V thereof to apply
only
to elections of public officers, not to plebiscites for the
ratification
of amendments to the Fundamental Law or revision thereof, or of an
entirely
new Constitution, and permit the legislature to require lesser
qualifications
for such ratification, notwithstanding the fact that the object thereof
much more important if not fundamental, such as the basic changes
introduced in the draft of the revised Constitution adopted by the 1971
Constitutional Convention, which a intended to be in force permanently,
or, at least, for many decades, and to affect the way of life of the
nation
and, accordingly, demands greater experience and maturity on the part
of
the electorate than that required for the election of public officers,[49]
whose average term ranges from 2 to 6 years.cralaw:red
It is admitted
that persons 15 years of age or
over, but below 21 years, regardless of whether or not they possessed
the
other qualifications laid down in both the Constitution and the present
Election Code,[50]
and of whether or not they are disqualified under the provisions of
said
Constitution and Code,[51]
or those of Republic Act No. 3590,[52]
have participated and voted in the Citizens' Assemblies that have
allegedly
ratified the new or revised Constitution drafted by the 1971
Constitutional
Convention.cralaw:red
In fact,
according to the latest official data,
the total number of registered voters 21 years of age or over in the
entire
Philippines, available in January 1973, was less than 12 million. Yet,
Proclamation No. 1102 states that 14,976,56 "members of all the
Barangays
(Citizens Assemblies) voted for the adoption of the proposed
Constitution,
as against 743,869 who voted for its rejection," whereas, on the
question
whether or not the people still wanted a plebiscite to be called to
ratify
the new Constitution, "14,298,814 answered that there was no need for a
plebiscite and that the vote of the Barangays (Citizens Assemblies)
should
be considered as a vote in a plebiscite." In other words, it is
conceded
that the number of people who allegedly voted at the Citizens'
Assemblies
for exceeded the number of registered voters under the Election Code in
force in January 1973.cralaw:red
It is thus clear
that the proceedings held in
such Citizens' Assemblies and We have more to say on this point
in
subsequent pages were fundamentally irregular, in that persons
lacking
the qualifications prescribed in Section 1 of Art. V of the
Constitution
were allowed to vote in said Assemblies. And, since there is no means
by
which the invalid votes of those less than 21 years of age can be
separated
or segregated from those of the qualified voters, the proceedings in
the
Citizens' Assemblies must be considered null and void.[53]
It has been held
that "(t)he power to reject an
entire poll should be exercised in a case where it is impossible to
ascertain
with reasonable certainty the true vote," as where "it is impossible to
separate the legal votes from the illegal or spurious."[54]
In Usman v.
Commission on Elections, et al.,[55]
We held:
Several circumstances, defying exact
description
and dependent mainly on the factual milieu of the particular
controversy,
have the effect of destroying the integrity and authenticity of
disputed
election returns and of avoiding their prima facie value and
character.
If satisfactorily proven, although in a summary proceeding, such
circumstances
as alleged by the affected or interested parties, stamp the election
returns
with the indelible mark of falsity and irregularity, and, consequently,
of unreliability, and justify their exclusion from the canvass.
Then, too, the
1935 Constitution requires "a majority
of the votes cast" for a proposed amendment to the Fundamental Law to
be
"valid" as part thereof, and the term "votes cast" has a well-settled
meaning.
The term "votes
cast"was held in Smith v.
Renville County Commissioners, 65 N.W. 956, 64 Minn. 16, to have been
used
as an equivalent of "ballots cast."[56]
The word "cast"
is defined as "to deposit formally
or officially."[57]
It seems to us
that a vote is cast when a ballot
is deposited indicating a "choice." The word "cast" means "deposit (a
ballot)
formally or officially. In simple words, We would define a "vote
cast" as the exercise on a ballot of the choice of the voter on the
measure
proposed.[58]
In short, said
Art. XV envisages with the
term "votes cast" choices made on ballots not orally or by
raising by the persons taking part in plebiscites. This is but
natural
and logical, for, since the early years of the American regime, we had
adopted the Australian Ballot System, with its major characteristics,
namely,
uniform official ballots prepared and furnished by the Government and
secrecy
in the voting, with the advantage of keeping records that permit
judicial
inquiry, when necessary, into the accuracy of the election returns. And
the 1935 Constitution has been consistently interpreted in all
plebiscites
for the ratification rejection of proposed amendments thereto, from
1935
to 1967. Hence, the viva voce voting in the Citizens' Assemblies was
and
is null and void ab initio.cralaw:red
b. How should
the plebiscite be held? (COMELEC
supervision indispensable; essential requisites)
Just as essential
as compliance with said Art.
V of the 1935 Constitution is that of Art. X thereof, particularly its
Sections 1 and 2. Indeed, section 1 provides that "(t)here shall be an
independent Commission on Elections." The point to be stressed here is
the term "independent." Indeed, why was the term used?
In the absence of
said constitutional provision
as to the independence of the Commission, would it have been depends
upon
either Congress or the Judiciary? The answer must be the negative,
because
the functions of the Commission "enforcement and administration"
of election laws are neither legislative nor judicial in nature,
and, hence, beyond the field allocated to either Congress or courts of
justice. Said functions are by their nature essentially executive, for
which reason, the Commission would be under the "control" of the
President,
pursuant to section 10, paragraph (1) of Art. VII of the Constitution,
if Art. X thereof did not explicitly declare that it (the Commission)
is
an "independent" body. In other words, in amending the original 1935
Constitution,
by inserting therein said Art. X, on the Commission on Elections, the
purpose
was to make said Commission independent principally of the Chief
Executive.cralaw:red
And the reason
therefor is, also, obvious. Prior
to the creation of the Commission on Elections as a constitutional
organ,
election laws in the Philippines were enforced by the then Department
of
the Interior, through its Executive Bureau, one of the offices under
the
supervision and control of said Department. The same like other
departments
of the Executive Branch of the Government was, in turn, under the
control of the Chief Executive, before the adoption of the 1935
Constitution,
and had been, until the abolition of said Department, sometime ago,
under
the control of the President of the Philippines, since the effectivity
of said Fundamental Law. Under the provisions thereof, the Executive
could
so use his power of control over the Department of the Interior and its
Executive Bureau as to place the minority party at such a great, if not
decisive, disadvantage, as to deprive it, in effect, of the opportunity
to defeat the political party in power, and, hence, to enable the same
to perpetuate itself therein. To forestall this possibility, the
original
1935 Constitution was amended by the establishment of the Commission on
Elections as a constitutional body independent primarily of the
President
of the Philippines.cralaw:red
The independence
of the Commission was sought
to be strengthened by the long term of office of its members nine
(9) years, except those first appointed[59]
the longest under the Constitution, second only to that of the Auditor
General;[60]
by providing that they may not be removed from office except by
impeachment,
placing them, in this respect, on the same plane as the President, the
Vice-President, the Justices of the Supreme Court and the Auditor
General;
that they may not be reappointed; that their salaries, "shall be
neither
increased nor diminished during their term of office"; that the
decisions
the Commission "shall be subject to review by the Supreme Court" only;[61]
that "(n)o pardon, parole, or suspension sentence for the violation of
any election law may be granted without the favorable recommendation of
the Commission";[62]
and, that its chairman and members "shall not, during the continuance
in
office, engage in the practice of any profession or intervene, directly
or indirectly, in the management or control of any private enterprise
which
in anyway may affected by the functions of their office; nor shall
they,
directly or indirectly, be financially interested in any contract with
the Government or any subdivision or instrumentality thereof."[63]
Thus, the framers of the amendment to the original Constitution of 1935
endeavored to do everything possible protect and insure the
independence
of each member of the Commission.cralaw:red
With respect to
the functions thereof as a body,
Section 2 of said Art. X ordains that "(t)he Commission on Elections
shall
have exclusive charge of the enforcement and administration all laws
relative
to the conduct of elections," apart from such other "functions which
may
be conferred upon it by law." It further provides that the Commission
"shall
decide, save those involving the right to vote, all administrative
question
affecting elections, including the determination of the number and
location
of polling places, and the appointment of election inspectors and of
other
election officials." And, to forests possible conflicts or frictions
between
the Commission, on one hand, and the other offices or agencies of the
executive
department, on the other, said Section 2 postulates that "(a)ll law
enforcement
agencies and instrumentalities of the Government, when so required by
the
Commission, shall act as its deputies for the purpose of insuring free,
orderly, and honest elections." Not satisfied with this, it declares,
in
effect, that "(t)he decisions, orders, and ruling of the Commission"
shall
not be subject to review, except by the Supreme Court.cralaw:red
In accordance
with the letter and spirit of said
Art. X of the Constitution, Rep. Act No. 6388, otherwise known as the
Election
Code of 1971, implements the constitutional powers of the Commission on
Elections and grants additional powers thereto, some of which are
enumerated
in Sections 5 and 6 of said Act, quoted below.[64]
Moreover, said Act contains, inter alia, detailed provisions
regulating
contributions and other (corrupt) practices; the establishment of
election
precincts; the designation and arrangement of polling places, including
voting booths, to protect the secrecy of the ballot; formation of lists
of voters, the identification and registration of voters, the
proceedings
therefor, as well as for the inclusion in, or exclusion or cancellation
from said list and the publication thereof; the establishment of
municipal,
provincial and files of registered voters; the composition and
appointment
of board of election inspectors; the particulars of the official
ballots
to be used and the precautions to be taken to insure authenticity
thereof;
the procedure for the casting of votes; the counting of votes by boards
of inspectors; the rules for the appreciation of ballots and the
preparation
and disposition of election returns; the constitution and operation of
municipal, provincials and national boards of canvassers; the
presentation
of the political parties and/or their candidates in each election
precinct;
the proclamation of the results, including, in the case of election of
public officers, election contests; and the jurisdiction of courts of
justice
in cases of violation of the provisions of said Election Code and the
penalties
for such violations.cralaw:red
Few laws may be
found with such meticulous and
elaborate set of provisions aimed at "insuring free, orderly, and
honest
election," as envisaged in Section 2 of Art. X of the Constitution.
Yet,
none of the foregoing constitutional and statutory provisions was
followed
by the so-called Barangays or Citizens' Assemblies. And no reasons have
been given, or even sought to be given therefor. In many, if not most,
instances, the election were held a viva voce, thus depriving the
electorate
of the right to vote secretly one of the most, fundamental and
critical
features of our election laws from time immemorial particularly
at
a time when the same was of utmost importance, owing to the existence
of
Martial Law.cralaw:red
In Glen v. Gnau,[65]
involving the casting of many votes openly, without complying with the
requirements of the law pertinent thereto, it was held that the
"election
officers" involved "cannot be too strongly condemned" therefor and that
if they "could legally dispense with such requirement, they could with
equal propriety, dispense with all of them, including the one that the
vote shall be by secret ballot, or even by no ballot at all."
Moreover, upon
the formal presentation to the
Executive of the proposed Constitution drafted by the 1971
Constitutional
Convention, or on December 1, 1972, Presidential Decree No. 73 (on the
validity of which was contested in the plebiscite cases, as well as in
the 1972 habeas corpus cases[66]
We need not, in the case of bar, express any opinion) was issued,
calling
a plebiscite, to be held on January 15, 1973, at which the proposed
Constitution
would be submitted to the people for ratification or rejection;
directing
the publication of said proposed Constitution; and declaring, inter
alia, that "(t)he provision of the Election Code of 1971, insofar
as
they are not inconsistent" with said decree excepting those
"regarding
right and obligations of political parties and candidates" "shall
apply to the conduct of the plebiscite." Indeed, Section 2 of said
Election
Code of 1971 provides that "(a)ll elections of public officers except
barrio
officials and plebiscites shall be conducted in the manner provided by
this Code." General Order No. 20, dated January 7, 1973, postponing
until
further notice, "the plebiscite scheduled to be held on January 15,
1973,"
said nothing about the procedure to be followed in plebiscite to take
place
at such notice, and no other order or decree has been brought to Our
attention,
expressly or impliedly repealing the provisions of Presidential Decree
73, insofar as said procedure is concerned.cralaw:red
Upon the other
hand, said General Order No. 20
expressly suspended "the provisions of Section 3 of Presidential Decree
No. 73 insofar as they allow free public discussion of proposed
Constitutiontemporarily suspending effects of Proclamation No. 1081 for the
purposes
of free open dabate on the proposed Constitution." This specific
mention
of the portions of the decrees or orders or instructions suspended by
General
Order No. 20 necessarily implies that all other portions of said
decrees,
orders or instructions and, hence, the provisions of Presidential
Decree No. 73 outlining the procedure to be followed in the plebiscite
for ratification or rejection of the proposed Constitution
remained
in force, assuming that said Decree is valid.cralaw:red
It is claimed
that by virtue of Presidential Decree
No. 86-A the text of which is quoted below[67]
the Executive declared, inter alia, that the collective views expressed
in the Citizens' Assemblies "shall be considered in the formulation of
national policies or programs and, wherever practicable, shall be
translated
into concrete and specific decision"; that such Citizens' Assemblies
"shall
consider vital national issues like the holding of the plebiscite on
the
new Constitution and others in the future, which shall serve as guide
or
basis for action or decision by the national government"; and that the
Citizens' Assemblies "shall conduct between January 10 and 15, 1973, a
referendum on important national issues, including those specified in
paragraph
2 hereof, and submit the results thereof to the Department of Local
Governments
and Community Development immediately thereafter." As in Presidential
Decree
No. 86, this Decree No. 86-A does not and cannot exclude the exercise
of
the constitutional supervisory power of the Commission on Elections or
its participation in the proceedings in said Assemblies, if the same
had
been intended to constitute the "election" or Plebiscite required Art.
V of the 1935 Constitution. The provision of Decree No. 86-A directing
the immediate submission of the result thereof to the Department of
Local
Governments Community Development is not necessarily inconsistent with,
and must be subordinate to the constitutional power of the Commission
on
Elections to exercise its "exclusive authority over the enforcement and
administration of all laws to the conduct of elections," if the
proceedings
in the Assemblies would partake of the nature of an "election" or
plebiscite
for the ratification or rejection of the proposed Constitution.cralaw:red
We are told that
Presidential Decree No. 86 was
further amended by Presidential Decree No. 86-B dated 1973, ordering
"that
important national issues shall from time to time; be referred to the
Barangays
(Citizens Assemblies) for resolution in accordance with Presidential
Decree
No. 86-A dated January 5, 1973 and that the initial referendum include
the matter of ratification of the Constitution by the 1971
Constitutional
Convention" and that "(t)he Secretary of the Department of Local
Governments
and Community Development shall insure the implementation of this
order."
As in the case of Presidential Decrees Nos. 86 and 86-A, the foregoing
directives do not necessarily exclude exercise of the powers vested by
the 1935 Constitution in the Commission on Elections, even if the
Executive
had the authority to repeal Art. X of our Fundamental Law which
he
does not possess. Copy of Presidential Decree No. 86-B is appended
hereto
as Annex B hereof.cralaw:red
The point is
that, such of the Barrio Assemblies
as were held took place without the intervention of the Commission on
Elections,
and without complying with the provisions of the Election Code of 1971
or even of those of Presidential Decree No. 73. What is more, they were
held under the supervision of the very officers and agencies of the
Executive
Department sought to be excluded therefrom by Art. X of the 1935
Constitution.
Worse still, said officers and agencies of the 1935 Constitution would
be favored thereby, owing to the practical indefinite extension of
their
respective terms of office in consequence of Section 9 of the
Transitory
Provisions, found in Art. XVII of the proposed Constitution, without
any
elections therefor. And the procedure therein mostly followed is such
that
there is no reasonable means of checking the accuracy of the returns
files
by the officers who conducted said plebiscites. This is another patent
violation of Art. X of the Constitution which can hardly be sanctioned.
And, since the provisions of this article form part of the fundamental
scheme set forth in the 1935 Constitution, as amended, to insure the
"free,
orderly, and honest" expression of the people's will, the
aforementioned
violation thereof renders null and void the contested proceedings or
alleged
plebiscite in the Citizens' Assemblies, insofar as the same are claimed
to have ratified the revised Constitution proposed by the 1971
Constitutional
Convention. "All the authorities agree that the legal definition of an
election, as well as that which is usually and ordinarily understood by
the term, is a choosing or as election by those having a right to
participate
[in the selection] of those who shall fill the offices, or of the
adoption
or rejection of any public measure affecting the territory involved. 15
Cyc. 279; Lewis v. Boynton, 25 Colo. 486, 55 Pac. 732; Saunders v.
Haynes,
13 Cal. 145; Seaman v. Baughman, 82 Iowa 216, 47 N.W. 1091, 11 L.R.A.
354;
State v. Hirsh, 125 Ind. 207, 24 N.E. 1062, 9 L.R.A. 170; Bouvier's Law
Dictionary.[68]
IV.Has the proposed Constitution
aforementioned
been approvedby a majority of the people in
Citizens'
Assemblies allegedly held throughout the Philippines?
Respondents
maintain the affirmative, relying
upon Proclamation No. 1102, the validity of which is precisely being
contested
by petitioners herein. Respondents claim that said proclamation is
"conclusive"
upon this Court, or is, at least, entitled to full faith and credence,
as an enrolled bill; that the proposed Constitution has been, in fact,
ratified, approved or adopted by the "overwhelming" majority of the
people;
that Art. XV of the 1935 Constitution has thus been "substancially"
complied
with; and that the Court refrain from passing upon the validity of
Proclamation
No. 1102, not only because such question is political in nature, but,
also,
because should the Court invalidate the proclamation, the former would,
in effect, veto the action of the people in whom sovereignty resides
and
from its power are derived.cralaw:red
The major flaw in
this process of rationalization
is that it assumes, as a fact, the very premise on which it is
predicated,
and which, moreover, is contested by the petitioners. As the Supreme
Court
of Minnessota has aptly put it:
Every officer under a constitutional
government
must act according to law and subject to its restrictions, and every
departure
therefrom or disregard thereof must subject him to the restraining and
controlling of the people, acting through the agency of the judiciary;
for it must be remembered that the people act through courts, as well
as
through the executive or the Legislature. One department is just as
representative
as the other, and the judiciary is the department which is charged with
the special duty of determining the limitations which the law places
upon
all official action.
Accordingly,
the issue boils downs to whether or
not the Executive acted within the limits of his authority when he
certified
in Proclamation No. 1102 "that the Constitution proposed by the
nineteen
hundred and seventy-one (1971) Constitutional Convention has been
ratified
by an overwhelming majority of all of the votes cast by the members of
all the Barangays (Citizens Assemblies) throughout the Philippines and
has thereby come into effect."
In this
connection, it is not claimed that the
Chief Executive had personal knowledge of the data he certified in said
proclamation. Moreover, Art. X of the 1935 Constitution was precisely
inserted
to place beyond the Executive the power to supervise or even exercise
any
authority whatsoever over "all laws relative to the conduct of
elections,"
and, hence, whether the elections are for the choice or selection of
public
officers or for the ratification or rejection of any proposed
amendment,
or revision of the Fundamental Law, since the proceedings for the
latter
are, also, referred to in said Art. XV as "elections".cralaw:red
The Solicitor
General stated, in his argument
before this Court, that he had been informed that there was in each
municipality
a municipal association of presidents of the citizens' assemblies for
each
barrio of the municipality; that the president of each such municipal
association
formed part of a provincial or city association of presidents of such
municipal
associations; that the president of each one of these provincial or
city
associations in turn formed part of a National Association or
Federation
of Presidents of such Provincial or City Associations; and that one
Francisco
Cruz from Pasig, Rizal, as President of said National Association or
Federation,
reported to the President of the Philippines, in the morning of January
17, 1973, the total result of the voting in the citizens' assemblies
all
over the country from January 10 to January 15, 1973. The Solicitor
General
further intimated that the said municipal associations had reported the
results of the citizens' assemblies in their respective municipalities
to the corresponding Provincial Association, which, in turn,
transmitted
the results of the voting in the to the Department of Local Governments
and Community Development, which tabulated the results of the voting in
the citizens' assemblies throughout the Philippines and then turned
them
over to Mr. Franciso Cruz, as President or acting President of the
National
Association or Federation, whereupon Mr. Cruz, acting in a ceremonial
capacity,
reported said results (tabulated by the Department of Governments and
Community
Development) to the Chief Executive, who, accordingly, issued
Proclamation
No. 1102.cralaw:red
The record shows,
however, that Mr. Cruz was not
even a member of any barrio council since 1972, so that he could
possibly
have been a member on January 17, 1973, of a municipal association of
presidents
of barrio or ward citizens' assemblies, much less of a Provincial, City
or National Association or Federation of Presidents of any such
provincial
or city associations.cralaw:red
Secondly, at the
conclusion of the hearing of
these cases February 16, 1973, and in the resolution of this Court of
same
date, the Solicitor General was asked to submit, together with his
notes
on his oral argument, a true copy of aforementioned report of Mr. Cruz
to the President and of "(p)roclamation, decree, instruction, order,
regulation
or circular, if any, creating or directing or authorizing creation,
establishment
or organization" of said municipal, provincial and national
associations,
but neither a copy of alleged report to the President, nor a copy of
any
"(p)roclamation, decree, instruction, order, regulation or circular,"
has
been submitted to this Court. In the absence of said report,
"(p)roclamation,
decree, instruction," etc., Proclamation No. 1102 is devoid of any
factual
and legal foundation. Hence, the conclusion set forth in the
dispositive
portion of said Proclamation No. 1102, to the effect that the proposed
new or revised Constitution had been ratified by majority of the votes
cast by the people, can not possibly have any legal effect or value.cralaw:red
The theory that
said proclamation is "conclusive
upon Court is clearly untenable. If it were, acts of the Executive and
those of Congress could not possibly be annulled or invalidated by
courts
of justice. Yet, such is not the case. In fact, even a resolution of
Congress
declaring that a given person has been elected President or
Vice-President
of the Philippines as provided in the Constitution,[69]
is not conclusive upon the courts. It is no more than prima facie
evidence of what is attested to by said resolution.[70]
If assailed directly in appropriate proceedings, such as an election
protest,
if and when authorized by law, as it is in the Philippines, the Court
may
receive evidence and declare, in accordance therewith, who was duly
elected
to the office involved.[71]
If prior to the creation of the Presidential Electoral Tribunal, no
such
protest could be filed, it was not because the resolution of Congress
declaring
who had been elected President or Vice-President was conclusive upon
courts
of justice, but because there was no law permitting the filing of such
protest and declaring what court or body would hear and decide the
same.
So, too, a declaration to the effect that a given amendment to the
Constitution
or revised or new Constitution has been ratified by a majority of the
votes
cast therefor, may be duly assailed in court and be the object of
judicial
inquiry, in direct proceedings therefor such as the cases at
bar
and the issue raised therein may and should be decided in accordance
with
the evidence presented.cralaw:red
The case of In re
McConaughy[72]
is squarely in point. "As the Constitution stood from the organization
of the state" of Minnessota "all taxes were required to be
raised under the system known as the 'general property tax.'
Dissatisfaction
with the results of this method and the development of more scientific
and satisfactory methods of raising revenue induced the Legislature to
submit to the people an amendment to the Constitution which provided
merely
that taxes shall be uniform upon the same class of subjects. This
proposed
amendment was submitted at the general election held in November, 1906,
and in due time it was certified by the state canvassing board and
proclaimed
by the Governor as having been legally adopted. Acting upon the
assumption
that the amendment had become a part of the Constitution, the
Legislature
enacted statutes providing for a State Tax Commission and a mortgage
registry
tax, and the latter statute, upon the same theory, was held
constitutional"
by said Court. "The district court found that the amendment had no in
fact
been adopted, and on this appeal" the Supreme Court was "required to
determine
the correctness of that conclusion."
Referring to the
effect of the certification of
the State Board of Canvassers created by the Legislature and of the
proclamation
made by the Governor based thereon, the Court held: "It will be noted
that
this board does no more than tabulate the reports received from the
various
county board and add up and certify the results. State v. Mason, 45
Wash.
234, 88 Pac. 126, 9 L.R.A. [U.S.] 1221. It is settled law that the
decisions
of election officers, and canvassing boards are not conclusive and that
the final decision must rest with the courts, unless the law declares
that
the decisions of the board shall be final" and there is no such
law
in the cases at bar. "The correctness of the conclusion of the state
board
rests upon the correctness of the returns made by the county boards and
it is inconceivable that it was intended that this statement of result
should be final and conclusive regardless of the actual facts. The
proclamation
of the Governor adds nothing in the way of conclusiveness to the legal
effect of the action of the canvassing board. Its purpose is to
formally
notify the people of the state of the result of the voting as found by
the canvassing board. James on Const. Conv. [4th Ed.] sec. 523."
In Bott v. Wartz,[73]
the Court reviewed the statement of results of the election made by the
canvassing board, in order that the true results could be judicially
determined.
And so did the court in Rice v. Palmer.[74]
Inasmuch as Art.
X of the 1935 Constitution places
under the "exclusive" charge of the Commission on Elections, "the
enforcement
and administration of all laws relative to the conduct of elections,"
independently
of the Executive, and there is not even a certification by the
Commission
in support of the alleged results of the citizens' assemblies relied
upon
in Proclamation No. 1102 apart from the fact that on January 17,
1973 neither the alleged president of the Federation of Provincial or
City
Barangays nor the Department of Local Governments had certified to the
President the alleged result of the citizens' assemblies all over the
Philippines
it follows necessarily that, from a constitutional and legal viewpoint,
Proclamation No. 1102 is not even prima facie evidence of the
alleged
ratification of the proposed Constitution.cralaw:red
Referring
particularly to the cases before Us,
it will be noted that, as pointed out in the discussion of the
preceding
topic, the new or revised Constitution proposed by the 1971
Constitutional
Convention was not ratified in accordance with the provisions of the
1935
Constitution. In fact, it has not even been, ratified in accordance
with
said proposed Constitution, the minimum age requirement therein for the
exercise of the right of suffrage being eighteen (18) years, apart from
the fact that Art. VI of the proposed Constitution requires "secret"
voting,
which was not observed in many, if not most, Citizens' Assemblies.
Besides,
both the 1935 Constitution and the proposed Constitution require a
"majority
of the votes cast" in an election or plebiscite called for the
ratification
of an amendment or revision of the first Constitution or the
effectivity
of the proposed Constitution, and the phrase "votes cast" has been
construed
to mean "votes made in writing not orally, as it was in many Citizens'
Assemblies.[75]
Even counsel for
Gil J. Puyat and Jose Roy, as
respondents in L-36165, asserts openly that Art. XV of the Constitution
has not been complied with, and since the alleged substantial
compliance
with the requirements thereof partakes of the nature of a defense set
up
by the other respondents in these cases, the burden of proving such
defense
which, if true, should be within their peculiar knowledge is
clearly
on such respondents. Accordingly, if despite the extensive notes and
documents
submitted by the parties herein, the members of the Court do not know
or
are not prepared to say whether or not the majority of the people or of
those who took part in the Citizens' Assemblies have assented to the
proposed
Constitution, the logical step would be to give due course to these
cases,
require the respondents to file their answers, and the plaintiffs their
reply, and, thereafter, to receive the pertinent evidence and then
proceed
to the determination of the issues raised thereby. Otherwise, we would
be placing upon the petitioners the burden of disproving a defense set
up by the respondents, who have not so far established the truth of
such
defense.cralaw:red
Even more
important, and decisive, than the foregoing
is the circumstance that there is ample reason to believe that many, if
not most, of the people did not know that the Citizens' Assemblies
were,
at the time they were held, plebiscites for the ratification or
rejection
of the proposed Constitution. Hence, in Our decision in the plebiscite
cases, We said, inter alia:
Meanwhile, or on December 17, 1972, the
President
had issued an order temporarily suspending the effects of Proclamation
No. 1081, for the purpose of free and open debate on the Proposed
Constitution.
On December 23, the President announced the postponement of the
plebiscite
for the ratification or rejection of the Proposed Constitution. No
formal
action to this effect was taken until January 7, 1973, when General
Order
No. 20 was issued, directing "that the plebiscite scheduled to be held
on January 15, 1973, be postponed until further notice." Said General
Order
No. 20, moreover, "suspended in the meantime" the "order of December
17,
1972, temporarily suspending the effects of Proclamation No. 1081 for
purposes
of free and open debate on the proposed Constitution.
In view of these events relative to the
postponement
of the aforementioned plebiscite, the Court deemed it fit to refrain,
for
the time being, from deciding the aforementioned cases, for neither the
date nor the conditions under which said plebiscite would be held were
known or announced officially. Then again, Congress was, pursuant to
the
1935 Constitution, scheduled to meet in regular session on January 22,
1973, and since the main objection to Presidential Decree No. 73 was
that
the President does not have the legislative authority to call a
plebiscite
and appropriate funds therefor, which Congress unquestionably could do,
particularly in view of the formal postponement of the plebiscite by
the
President reportedly after consultation with, among others, the
leaders
of Congress and the Commission on Elections the Court deemed it
more
imperative to defer its final action on these cases.
And,
apparently, the parties in said cases entertained
the same belief, for, on December 23, 1972 four (4) days after
the
last hearing of said cases[76]
the President announced the postponement of the plebiscite scheduled by
Presidential Decree No. 73 to be held on January 15, 1973, after
consultation
with the Commission on Elections and the leaders of Congress, owing to
doubts on the sufficiency of the time available to translate the
proposed
Constitution into some local dialects and to comply with some
pre-electoral
requirements, as well as to afford the people a reasonable opportunity
to be posted on the contents and implications of said transcendental
document.
On January 7, 1973, General Order No. 20 was issued formally,
postponing
said plebiscite "until further notice." How can said postponement be
reconciled
with the theory that the proceedings in the Citizens' Assemblies
scheduled
to be held from January 10 to January 15, 1973, were "plebiscites," in
effect, accelerated, according to the theory of the Solicitor General,
for the ratification of the proposed Constitution? If said Assemblies
were
meant to be the plebiscites or elections envisaged in Art. XV of the
Constitution,
what, then, was the "plebiscite" postponed by General Order No. 20?
Under
these circumstances, it was only reasonable for the people who attended
such assemblies to believe that the same were not an "election" or
plebiscite
for the ratification or adoption of said proposed Constitution.
And, this belief
is further bolstered up by the
questions propounded in the Citizens' Assemblies, namely:
[1] Do you like the New Society?
[2] Do you like the reforms under
martial
law?
[3] Do you like Congress again to hold
sessions?
[4] Do you like the plebiscite to be
held
later?
[5] Do you like the way President
Marcos is
running
the affairs of the government? [Bulletin Today, January 10, 1973;
emphasis
an additional question]
[6] Do you approve of the citizens
assemblies
as the base of popular government to decide issues of national
interests?
[7] Do you approve of the new
Constitution?
[8] Do you want a plebiscite to be
called to
ratify
the new Constitution?
[9] Do you want the elections to be
held in
November,
1973 in accordance with the provisions of the 1935 Constitution?
[10] If the elections would not be
held,
when
do you want the next elections to be called?
[11] Do you want martial law to
continue?
[Bulletin
Today, January 11, 1973]
To begin with,
questions Nos. 1, 2, 3, 4, 5, 6, 9,
10 and 11 are not proper in a plebiscite for the ratification of a
proposed
Constitution or of a proposed amendment thereto. Secondly, neither is
the
language of question No. 7 "Do you approve the new Constitution?"
One approves "of" the act of another which does not need such approval
for the effectivity of said act, which the first person, however, finds
to be good, wise satisfactory. The approval of the majority of the
votes
cast in plebiscite is, however, essential for an amendment to the
Constitution
to be valid as part thereof. Thirdly, if the proceedings in the
Citizens'
Assemblies constituted a plebiscite question No. 8 would have been
unnecessary
and improper, regardless of whether question No. 7 were answered
affirmatively
or negatively. If the majority of the answers to question No. 7 were in
the affirmative, the proposed Constitution would have become effective
and no other plebiscite could be held thereafter in connection
therewith,
even if the majority of the answers to question No. 8 were, also, in
the
affirmative. If the majority of the answers to question No. 7 were in
the
negative, neither may another plebiscite be held, even if the majority
of the answers to question No. 8 were in the affirmative. In either
case,
not more than one plebiscite could be held for the ratification or
rejection
of the proposed Constitution. In short, the insertion of said two (2)
questions
apart from the other questions adverted to above indicates
strongly
that the proceedings therein did not partake of the nature of a
plebiscite
or election for the ratification or rejection of the proposed
Constitution.
Indeed, I can
not, in good conscience, declare
that the proposed Constitution has been approved or adopted by the
people
in the citizens' assemblies all over the Philippines, when it is, to my
mind, a matter of judicial knowledge that there have been no such
citizens'
assemblies in many parts of Manila and suburbs, not to say, also, in
other
parts of the Philippines. In a letter of Governor Efren B. Pascual of
Bataan
dated January 15, 1973, to the Chief Executive, the former reported:
This report includes a resumee (sic)
of
the activities we undertook in effecting the referendum on the eleven
questions
you wanted our people consulted on and the Summary of Results thereof
for
each municipality and for the whole province.
Our initial plans and preparations,
however,
dealt only on the original five questions. Consequently, when we
received
an instruction on January 10 to change the questions, we urgently
suspended
all scheduled Citizens Assembly meetings on that day and called all
Mayors,
Chiefs of Offices and other government officials to another conference
to discuss with them the new set of guidelines and materials to be used.
On January 11,
another instruction from the top was
received to include the original five questions among those to be
discussed
and asked in the Citizens' Assembly meetings. With this latest order,
we
again had to make modifications in our instructions to all those
managing
and supervising the holding of the Citizens' Assembly meetings
throughout
the province. Aside from the coordinators we had from the Office
of the Governor, the splendid cooperation and support extended by
almost
all government officials and employees in the province, particularly of
the Department of Education, PC and PACD personnel, provided us with
enough
hands to trouble shoot and implement sudden changes in the instructions
anytime and anywhere needed. As to our people, in general, their
enthusiastic
participation showed their preference and readiness to accept this new
method of government to people consultation in shaping up government
policies.
Thus, as late as
January 10, 1973, the Bataan
officials had to suspend "all scheduled Citizens' Assembly meetings"
and
call all available officials "to discuss with them the new set of
guidelines
and materials to be used. " Then, "on January 11, another instruction
from
the top was received to include the original five questions among those
be discussed and asked in the Citizens' Assembly meetings. With this
latest
order, we again had to make modifications in our instructions to all
those
managing and supervising holding of the Citizens' Assembly meetings
throughout
province. As to our people, in general, their enthusiastic
participation
showed their preference and readiness to accept the new method of
government
to people consultation in shaping up government policies."
This
communication manifestly shows: 1) that,
as late a January 11, 1973, the Bataan officials had still to
discuss
not put into operation means and ways to carry out the changing
instructions
from the top on how to organize the citizens' assemblies, what to do
therein
and even what questions or topics to propound or touch in said
assemblies;
2) that the assemblies would involve no more than consultations or
dialogues
between people and government not decisions be made by the
people;
and 3) that said consultations were aimed only at "shaping up
government
policies" and, hence could not, and did not, partake of the nature of a
plebiscite for the ratification or rejection of a proposed amendment of
a new or revised Constitution for the latter does not entail the
formulation
of a policy of the Government, but the making of decision by the people
on the new way of life, as a nation, they wish to have, once the
proposed
Constitution shall have been ratified.cralaw:red
If this was the
situation in Bataan one
of the provinces nearest to Manila as late as January 11, 1973,
one
can easily imagine the predicament of the local officials and people in
the remote barrios in northern and southern Luzon, in the Bicol region,
in the Visayan Islands and Mindanao. In fact, several members of the
Court,
including those of their immediate families and their household,
although
duly registered voters in the area of Greater Manila, were not even
notified
that citizens' assemblies would be held in the places where their
respective
residences were located. In the Prohibition and Amendment case,[77]
attention was called to the "duty cast upon the court of taking
judicial
cognizance of anything affecting the existence and validity of any law
or portion of the Constitution." In line with its own pronouncement in
another case, the Federal Supreme Court of the United States stressed,
in Baker v. Carr,[78]
that "a court is not at liberty to shut its eyes to an obvious mistake,
when the validity of the law depends upon the truth of what is
declared."
In the light of
the foregoing, I cannot see how
the question under consideration can be answered or resolved otherwise
than in the negative.
V.Have the people acquiesced in
the
proposed
Constitution?
It is urged that
the present Government of the
Philippines is now and has been run, since January 17, 1971, under the
Constitution drafted by the 1971 Constitutional Convention; that the
political
department of the Government has recognized said revised Constitution;
that our foreign relations are being conducted under such new or
revised
Constitution; that the Legislative Department has recognized the same;
and that the people, in general, have, by their acts or omissions,
indicated
their conformity thereto.cralaw:red
As regards the
so-called political organs of the
Government, gather that respondents refer mainly to the offices under
the
Executive Department. In a sense, the latter performs some functions
which,
from a constitutional viewpoint, are politics in nature, such as in
recognizing
a new state or government, in accepting diplomatic representatives
accredited
to our Government, and even in devising administrative means and ways
to
better carry into effect. Acts of Congress which define the goals or
objectives
thereof, but are either imprecise or silent on the particular measures
to be resorted to in order to achieve the said goals or delegate the
power
to do so, expressly or impliedly, to the Executive. This,
notwithstanding,
the political organ of a government that purports to be republican is
essentially
the Congress or Legislative Department. Whatever may be the functions
allocated
to the Executive Department specially under a written, rigid
Constitution
with a republican system of Government like ours the role of that
Department is inherently, basically and fundamentally executive in
nature
to "take care that the laws be faithfully executed," in the language of
our 1935 Constitution.[79]
Consequently, I
am not prepared to concede that
the acts the officers and offices of the Executive Department, in line
with Proclamation No. 1102, connote a recognition thereof o an
acquiescence
thereto. Whether they recognized the proposed Constitution or acquiesce
thereto or not is something that cannot legally, much less necessarily
or even normally, be deduced from their acts in accordance therewith,
because
the are bound to obey and act in conformity with the orders of the
President,
under whose "control" they are, pursuant to the 1935 Constitution. They
have absolutely no other choice, specially in view of Proclamation No.
1081 placing the Philippines under Martial Law. Besides, by virtue of
the
very decrees, orders and instructions issued by the President
thereafter,
he had assumed all powers of Government although some question
his
authority to do so and, consequently, there is hardly anything he
has done since the issuance of Proclamation No. 1102, on January 17,
1973
declaring that the Constitution proposed by the 1971 Constitutional
Convention
has been ratified by the overwhelming majority of the people that
he could not do under the authority he claimed to have under Martial
Law,
since September 21, 1972, except the power of supervision over inferior
courts and its personnel, which said proposed Constitution would place
under the Supreme Court, and which the President has not ostensibly
exercised,
except as to some minor routine matters, which the Department of
Justice
has continued to handle, this Court having preferred to maintain the
status
quo in connection therewith pending final determination of these cases,
in which the effectivity of the aforementioned Constitution is disputed.cralaw:red
Then, again, a
given department of the Government
cannot generally be said to have "recognized" its own acts. Recognition
normally connotes the acknowledgment by a party of the acts of another.
Accordingly, when a subordinate officer or office of the Government
complies
with the commands of a superior officer or office, under whose
supervision
and control he or it is, the former merely obeys the latter. Strictly
speaking,
and from a legal and constitutional viewpoint, there is no act of
recognition
involved therein. Indeed, the lower officer or office, if he or it
acted
otherwise, would just be guilty of insubordination.cralaw:red
Thus, for
instance, the case of Taylor v. Commonwealth[80]
cited by respondents herein in support of the theory of the people's
acquiescence
involved a constitution ordained in 1902 and "proclaimed by a
convention
duly called by a direct vote of the people of the state to revise and
amend
the Constitution of 1869. The result of the work of that Convention has
been recognized, accepted and acted upon as the only valid Constitution
of the State" by:
1. The "Governor of the State in swearing
fidelity
to it and proclaiming it, as directed thereby";
2. The "Legislature in its formal
official
act
adopting a joint resolution, July 15, 1902, recognizing the
Constitution
ordained by the Convention";
3. The "individual oaths of its
members to
support
it, and by its having been engaged for nearly a year, in legislating
under
it and putting its provisions into operation";
4. The "judiciary in taking the oath
prescribed
thereby to support it and by enforcing its provisions"; and
5. The "people in their primary
capacity by
peacefully
accepting it and acquiescing in it, by registering as voters under it
to
the extent of thousands throughout the State, and by voting, under its
provisions, at a general election for their representatives in the
Congress
of the United States."
Note that the
New Constitution of Virginia, drafted
by a convention whose members were elected directly by the people, was
not submitted to the people for ratification or rejection thereof. But,
it was recognized, not by the convention itself, but by other sectors
of
the Government, namely, the Governor; the Legislature not merely
by individual acts of its members, but by formal joint resolution of
its
two (2) chambers; by the judiciary; and by the people, in the various
ways
specified above. What is more, there was no martial law. In the present
cases, none of the foregoing acts of acquiescence was present. Worse
still,
there is martial law, the strict enforcement of which was announced
shortly
before the alleged citizens' assemblies. To top it all, in the Taylor
case,
the effectivity of the contested amendment was not contested judicially
until about one (1) year after the amendment had been put into
operation
in all branches of the Government, and complied with by the people who
participated in the elections held pursuant to the provisions of the
new
Constitution. In the cases under consideration, the legality of
Presidential
Decree No. 73 calling a plebiscite to be held on January 15, 1973, was
impugned as early as December 7, 1972, or five (5) weeks before the
scheduled
plebiscite, whereas the validity of Proclamation No. 1102 declaring on
January 17, 1973, that the proposed Constitution had been
ratified
despite General Order No. 20, issued on January 7, 1972, formally and
officially
suspending the plebiscite until further notice was impugned as
early
as January 20, 1973, when L-36142 was filed, or three (3) days after
the
issuance of Proclamation No. 1102.
It is further
alleged that a majority of the members
of our House of Representatives and Senate have acquiesced in the new
or
revised Constitution, by filing written statements opting to serve in
the
Ad Interim Assembly established in the Transitory Provisions of said
Constitution.
Individual acts of recognition by members of our legislature, as well
as
of other collegiate bodies under the government, are invalid as acts of
said legislature or bodies, unless its members have performed said acts
in session duly assembled, or unless the law provides otherwise, and
there
is no such law in the Philippines. This is a well-established principle
of Administrative Law and of the Law of Public Officers, and no
plausible
reason has been adduced to warrant departure therefrom.[81]
Indeed, if the
members of Congress were generally
agreeable to the proposed Constitution, why did it become necessary to
padlock its premises to prevent its meeting in session on January 22,
1973,
and thereafter as provided in the 1935 Constitution? It is true that,
theoretically,
the members of Congress, if bent on discharging their functions under
said
Constitution, could have met in any other place, the building in which
they perform their duties being immaterial to the legality of their
official
acts. The force of this argument is, however, offset or dissipated by
the
fact that, on or about December 27, 1972, immediately after a
conference
between the Executive, on the one hand, and members of Congress, on the
other, some of whom expressed the wish to meet in session on January
22,
1973, as provided in the 1935 Constitution, a Daily Express columnist
[Primitivo
Mijares] attributed to Presidential Assistant Guillermo de Vega a
statement
to the effect that "'certain members of the Senate appear to be missing
the point in issue' when they reportedly insisted on taking up first
the
question of convening Congress." The Daily Express of that date,[82]
likewise, headlined, on its front page, a "Senatorial Plot Against
'Martial
Law Government' Disclosed". Then, in its issue of December 29, 1972,
the
same paper imputed to the Executive an appeal "to diverse groups
involved
in a conspiracy to undermine" his powers" under martial law to desist
from
provoking a constitutional crisis which may result in the exercise by
me
of authority I have not exercised."
No matter how
good the intention behind these
statement may have been, the idea implied therein was too clear an
ominous
for any member of Congress who thought of organizing, holding or taking
part in a session of Congress, not to get the impression that he could
hardly do so without inviting or risking the application of Martial Law
to him. Under these conditions, I do not feel justified in holding that
the failure of the members of Congress to meet since January 22, 1973,
was due to their recognition, acquiescence in or conformity with the
provisions
of the aforementioned Constitution, or its alleged ratification.cralaw:red
For the same
reasons, especially because of Proclamation
No. 1081, placing the entire Philippines under Martial Law, neither am
I prepared to declare that the people's inaction as regards
Proclamation
No. 1102, and their compliance with a number of Presidential orders,
decrees
and/or instructions some or many of which have admittedly had
salutary
effects issued subsequently thereto amounts, constitutes or
attests
to a ratification, adoption or approval of said Proclamation No. 1102.
In the words of the Chief Executive, "martial law connotes power of the
gun, meant coercion by the military, and compulsion and intimidation."[83]
The failure to use the gun against those who comply with the orders of
the party wielding the weapon does not detract from the intimidation
that
Martial Law necessarily connotes. It may reflect the good, reasonable
and
wholesome attitude of the person who has the gun, either pointed at
others,
without pulling the trigger, or merely kept in its holster, but not
without
warning that he may or would use it if he deemed it necessary. Still,
the
intimidation is there, and inaction or obedience of the people, under
these
conditions, is not necessarily an act of conformity or acquiescence.
This
is specially so when we consider that the masses are, by and large,
unfamiliar
with the parliamentary system, the new form of government introduced in
the proposed Constitution, with the particularity that it is not even
identical
to that existing in England and other parts of the world, and that even
experienced lawyers and social scientists find it difficult to grasp
the
full implications of some provisions incorporated therein.cralaw:red
As regards the
applicability to these cases of
the "enrolled bill" rule, it is well to remember that the same refers
to
a document certified to the President for his action under the
Constitution
by the Senate President and the Speaker of the House of
Representatives,
and attested to by the Secretary of the Senate and the Secretary of the
House of Representatives, concerning legislative measures approved by
the
two Houses of Congress. The argument of the Solicitor General is,
roughly,
this: If the enrolled bill is entitled to full faith and credence and,
to this extent, it is conclusive upon the President and the judicial
branch
of the Government, why should Proclamation No. 1102 merit less
consideration
than in enrolled bill?
Before answering
this question, I would like to
ask the following: If, instead of being certified by the aforementioned
officers of Congress, the so-called enrolled bill were certified by,
say,
the President of the Association of Sugar Planters and/or Millers of
the
Philippines, and the measure in question were a proposed legislation
concerning
Sugar Plantations and Mills sponsored by said Association, which even
prepared
the draft of said legislation, as well as lobbied actually for its
approval,
for which reason the officers of the Association, particularly, its
aforementioned
president whose honesty and integrity are unquestionable
were
present at the deliberations in Congress when the same approved the
proposed
legislation, would the enrolled bill rule apply thereto? Surely, the
answer
would have to be in the negative. Why? Simply, because said Association
President has absolutely no official authority to perform in connection
therewith, and, hence, his certification is legally, as good as
non-existent.cralaw:red
Similarly, a
certification, if any, of the Secretary
of the Department of Local Governments and Community Development about
the tabulated results of the voting in the Citizens Assemblies
allegedly
held all over the Philippines and the records do not show that
any
such certification, to the President of the Philippines or to the
President
Federation or National Association of presidents of Provincial
Associations
of presidents of municipal association presidents of barrio or ward
assemblies
of citizens would not, legally and constitutionally, be worth the
paper on which it is written. Why? Because said Department Secretary is
not the officer designated by law to superintend plebiscites or
elections
held for the ratification or rejection of a proposed amendment or
revision
of the Constitution and, hence, to tabulate the results thereof. Worse
still, it is the department which, according to Article X of the
Constitution,
should not and must not be all participate in said plebiscite if
plebiscite there was.cralaw:red
After citing
approvingly its ruling in United
States v. Sandoval,[84]
the Highest Court of the United States that courts "will not stand
impotent
before an obvious instance of a manifestly unauthorized exercise of
power."[85]
I cannot honestly
say, therefore, that the people
impliedly or expressly indicated their conformity to the proposed
Constitution.
VI.Are the Parties entitled to any
relief?
Before attempting
to answer this question, a few
words be said about the procedure followed in these five (5) cases. In
this connection, it should be noted that the Court has not decided
whether
or not to give due course to the petitions herein or to require the
respondents
to answer thereto. Instead, it has required the respondents to comment
on the respective petitions with three (3) members of the voting
to dismiss them outright and then considers comments thus
submitted
by the respondents as motions to dismiss, as well as set the same for
hearing.
This was due to the transcendental nature of the main issue raised, the
necessity of deciding the same with utmost dispatch, and the main
defense
set up by respondents herein, namely, the alleged political nature of
said
issue, placing the same, according to respondents, beyond the ambit of
judicial inquiry and determination. If this defense was sustained, the
cases could readily be dismissed; but, owing to the importance of the
questions
involved, a reasoned resolution was demanded by public interest. At the
same time, respondents had cautioned against a judicial inquiry into
the
merits of the issues posed on account of the magnitude of the evil
consequences,
it was claimed, which would result from a decision thereon, if adverse
to the Government.cralaw:red
As a matter of
fact, some of those issues had
been raised in the plebiscite cases, which were dismissed as moot and
academic,
owing to the issuance of Proclamation No. 1102 subsequently to the
filing
of said cases, although before the rendition of judgment therein. Still
one of the members of the Court [Justice Zaldivar] was of the opinion
that
the aforementioned issues should be settled in said cases, and he,
accordingly,
filed an opinion passing upon the merits thereof. On the other hand,
three
(3) members of the Court Justices Barredo, Antonio and
Esguerra
filed separate opinions favorable to the respondents in the plebiscite
cases, Justice Barredo holding "that the 1935 Constitution has pro
tanto
passed into history and has been legitimately supplanted by the
Constitution
in force by virtue of Proclamation 1102."[86]
When the petitions at bar were filed, the same three (3) members of the
Court, consequently, voted for the dismissal of said petitions. The
majority
of the members of the Court did not share, however, either view,
believing
that the main question that arose before the rendition of said judgment
had not been sufficiently discussed and argued as the nature and
importance
thereof demanded.cralaw:red
The parties in
the cases at bar were accordingly
given every possible opportunity to do so and to elucidate on and
discuss
said question. Thus, apart from hearing the parties in oral argument
for
five (5) consecutive days morning and afternoon, or a total of
exactly
26 hours and 31 minutes the respective counsel filed extensive
notes
on their or arguments, as well as on such additional arguments as they
wished to submit, and reply notes or memoranda, in addition to
rejoinders
thereto, aside from a sizeable number of document in support of their
respective
contentions, or as required by the Court. The arguments, oral and
written,
submitted have been so extensive and exhaustive, and the documents
filed
in support thereof so numerous and bulky, that, for all intents and
purposes,
the situation is as if disregarding forms the petitions had
been given due course and the cases had been submitted for decision.cralaw:red
Accordingly, the
majority of the members of the
Court believe that they should express their views on the
aforementioned
issues as if the same were being decided on the merits, and they have
done
so in their individual opinion attached hereto. Hence, the resume of
the
votes cast and the tenor of the resolution, in the last pages hereof,
despite
the fact that technically the Court has not, as yet, formally given due
course to the petitions herein.
And, now, here are my views on the reliefs
sought
by the parties.cralaw:red
In L-36165, it is
clear that we should not issue
the writ of mandamus prayed for against Gil J. Puyat and Jose Roy,
President
and President Pro Tempore respectively of the Senate, it being settled
in our jurisdiction, based upon the theory of separation of powers,
that
the judiciary will not issue such writ to the head of a co-equal
department,
like the aforementioned officers of the Senate.cralaw:red
In all other
respects and with regard to the other
respondent in said case, as well as in cases L-36142, L-36164, L-36236
and L-36283, my vote is that the petitions therein should be given due
course, there being more than prima facie showing that the proposed
Constitution
has not been ratified in accordance with Article XV of the 1935
Constitution,
either strictly, substantially, or has been acquiesced in by the people
or majority thereof; that said proposed Constitution is not in force
and
effect; and that the 1935 Constitution is still the Fundamental Law of
the Land, without prejudice to the submission of said proposed
Constitution
to the people at a plebiscite for its ratification or rejection in
accordance
with Articles V, X and XV of the 1935 Constitution and the provisions
of
the Revised Election Code in force at the time of such plebiscite.cralaw:red
Perhaps others
would feel that my position in
these cases overlooks what they might consider to be the demands of
"judicial
statesmanship," whatever may be the meaning of such phrase. I am aware
of this possibility, if not probability; but "judicial statesmanship,"
though consistent with Rule of Law, cannot prevail over the latter.
Among
consistent ends or consistent values, there always is a hierarchy, a
rule
of priority.cralaw:red
We must realize
that the New Society has many
achievements which would have been very difficult, if not impossible,
to
accomplish under the old dispensation. But, in and for the judiciary,
statesmanship
should not prevail over the Rule of Law. Indeed, the primacy of the law
or of the Rule of Law and faithful adherence thereto are basic,
fundamental
and essential parts of statesmanship itself.
Resume of the
Votes Cast and the Court's Resolution
As earlier
stated, after the submittal by the
members of the Court of their individual opinions and/or concurrences
as
appended hereto, the writer will now make, with the concurrence of his
colleagues, a resume or summary of the votes cast by each of them.cralaw:red
It should be
stated that by virtue of the various
approaches and views expressed during the deliberations, it was agreed
to synthesize the basic issues at bar in broad general terms in five
questions
for purposes of taking the votes. It was further agreed of course that
each member of the Court would expound in his individual opinion and/or
concurrence his own approach to the stated issues and deal with them
and
state (or not) his opinion thereon singly or jointly and with such
priority,
qualifications and modifications as he may deem proper, as well as
discuss
thereon other related issues which he may consider vital and relevant
to
the cases at bar.cralaw:red
The five
questions thus agreed upon as reflecting
the basic issues herein involved are the following:
1. Is the issue of the validity of
Proclamation
No. 1102 a justiciable, or political and therefore non-justiciable,
question?
2. Has the Constitution proposed by
the
1971
Constitutional Convention been ratified validly (with substantial, if
not
strict, compliance) conformably to the applicable constitutional and
statutory
provisions?
3. Has the aforementioned proposed
Constitution
acquiesced in (with or without valid ratification) by the people?
4. Are petitioners entitled to
relief? and
5. Is the aforementioned proposed
Constitution
in force?
The results of
the voting, premised on the individual
views expressed by the members of the Court in their respect opinions
and/or
concurrences, are as follows:
1. On the first
issue involving the political-question
doctrine Justices Makalintal, Zaldivar, Castro, Fernando, Teehankee and
myself, or six (6) members of the Court, hold that the issue of the
validity
of Proclamation No. 1102 presents a justiciable and non-political
question.
Justices Makalintal and Castro did not vote squarely on this question,
but, only inferentially, in their discussion of the second question.
Justice
Barredo qualified his vote, stating that "inasmuch as it is claimed
there
has been approval by the people, the Court may inquire into the
question
of whether or not there has actually been such an approval, and, in the
affirmative, the Court should keep hands-off out of respect to the
people's
will, but, in negative, the Court may determine from both factual and
legal
angles whether or not Article XV of the 1935 Constitution been complied
with." Justices Makasiar, Antonio, Esguerra, or three (3) members of
the
Court hold that the issue is political and "beyond the ambit of
judicial
inquiry."
2. On the second
question of validity of the ratification,
Justices Makalintal, Zaldivar, Castro, Fernando, Teehankee and myself,
or six (6) members of the Court also hold that the Constitution
proposed
by the 1971 Constitutional Convention was not validly ratified in
accordance
with Article XV, section 1 of the 1935 Constitution, which provides
only
one way for ratification, i.e., "in an election or plebiscite held in
accordance
with law and participated in only by qualified and duly registered
voters.[87]
Justice Barredo
qualified his vote, stating that
"(A)s to whether or not the 1973 Constitution has been validly ratified
pursuant to Article XV, I still maintain that in the light of
traditional
concepts regarding the meaning and intent of said Article, the
referendum
in the Citizens' Assemblies, specially in the manner the votes therein
were cast, reported and canvassed, falls short of the requirements
thereof.
In view, however, of the fact that I have no means of refusing to
recognize
as a judge that factually there was voting and that the majority of the
votes were for considering as approved the 1973 Constitution without
the
necessity of the usual form of plebiscite followed in past
ratifications,
I am constrained to hold that, in the political sense, if not in the
orthodox
legal sense, the people may be deemed to have cast their favorable
votes
in the belief that in doing so they did the part required of them by
Article
XV, hence, it may be said that in its political aspect, which is what
counts
most, after all, said Article has been substantially complied with,
and,
in effect, the 1973 Constitution has been constitutionally ratified."
Justices
Makasiar, Antonio and Esguerra, or three
(3) members of the Court hold that under their view there has been in
effect
substantial compliance with the constitutional requirements for valid
ratification.cralaw:red
3. On the third
question of acquiescence by the
Filipino people in the aforementioned proposed Constitution, no
majority
vote has been reached by the Court.cralaw:red
Four (4) of its
members, namely, Justices Barredo,
Makasiar, Antonio and Esguerra hold that "the people have already
accepted
the 1973 Constitution."
Two (2) members
of the Court, namely, Justice
Zaldivar and myself hold that there can be no free expression, and
there
has even been no expression, by the people qualified to vote all over
the
Philippines, of their acceptance or repudiation of the proposed
Constitution
under Martial Law. Justice Fernando states that "(I)f it is conceded
that
the doctrine stated in some American decisions to the effect that
independently
of the validity of the ratification, a new Constitution once accepted
acquiesced
in by the people must be accorded recognition by the Court, I am not at
this stage prepared to state that such doctrine calls for application
in
view of the shortness of time that has elapsed and the difficulty of
ascertaining
what is the mind of the people in the absence of the freedom of debate
that is a concomitant feature of martial law."[88]
Three (3) members
of the Court express their lack
of knowledge and/or competence to rule on the question. Justices
Makalintal
and Castro are joined by Justice Teehankee in their statement that
"Under
a regime of martial law, with the free expression of opinions through
the
usual media vehicle restricted, (they) have no means of knowing, to the
point of judicial certainty, whether the people have accepted the
Constitution."[89]
4. On the fourth
question of relief, six (6) members
of the Court, namely: Justices Makalintal, Castro, Barredo, Makasiar,
Antonio
and Esguerra voted to DISMISS the petition. Justice Makalintal and
Castro
so voted on the strength of their view that "(T)he effectivity of the
said
Constitution, in the final analysis, is the basic and ultimate question
posed by these cases to resolve which considerations other than
judicial,
an therefore beyond the competence of this Court,[90]
are relevant and unavoidable."[91]
Four (4) members
of the Court, namely, Justices
Zaldivar, Fernando, Teehankee and myself voted to deny respondents'
motion
to dismiss and to give due course to the petitions.cralaw:red
5. On the fifth
question of whether the new Constitution
of 1973 is in force:
Four (4) members of the Court, namely,
Justices
Barredo, Makasiar, Antonio and Esguerra hold that it is in force by
virtue
of the people's acceptance thereof;
Four (4) members of the Court, namely,
Justices
Makalintal, Castro, Fernando and Teehankee cast no vote thereon on the
premise stated in their votes on the third question that they could not
state with judicial certainty whether the people have accepted or not
accepted
the Constitution; and
Two (2) members of the Court,
namely,
Justice
Zaldivar and myself voted that the Constitution proposed by the 1971
Constitutional
Convention is not in force;
with the result
that there are not enough votes to
declare that the new Constitution is not in force.
ACCORDINGLY, by
virtue of the majority of six
(6) votes of Justices Makalintal, Castro, Barredo, Makasiar, Antonio
and
Esguerra with the four (4) dissenting votes of the Chief Justice and
Justices
Zaldivar, Fernando and Teehankee, all the aforementioned cases are
hereby
dismissed. This being the vote of the majority, there is no further
judicial
obstacle to the new Constitution being considered in force and effect.cralaw:red
It is so ordered.cralaw:red
Makalintal,
Castro, Barredo, Makasiar, Antonio,
and Esguerra, JJ., concur.
________________________________________
Endnotes
[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-36293.
[7]
Who withdrew as petitioner on January 25, 1973.
[8]
Originally, Gerardo Roxas, Ambrosio Padilla and Salvador H. 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. Dilag, et al. v. Executive Secretary, et al.
[11]
Araneta v. Dinglasan, 84 Phil. 431, 437-438. See, also, Gonzales v.
Commission
on Elections, L-28196 & L-28224, Nov. 9, 1967. Emphasis ours.
[12]
Art. VI, Sec. 20(1), Constitution.
[13]
Art. VII, Sec. 10(7), Constitution.
[14]
Emphasis ours.
[15]
See 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 v.
Gilchrist,
59 So. Rep. 963; McAdams v. Henley, 273 S.W. 355; Egbert v. City of
Dunseith,
74 N.D. 1, 168 A.L.R. 621, 24 N.W. 2d. 907; State ex rel. Landis, Atty.
Gen. v. Thompson, 163 So. Rep. 270; St. Louis Brewing Association v.
Moore,
64 L. ed. 947; Ellingham v. Dye, 99 N.E. Rep. 1, 18; Johnson v. Craft,
87 So. Rep. 375.
[17]
Mun. of Malabang v. Benito, L-28113, Mar. 28, 1969; NAWASA v. Piguing,
et al., L-35573, Oct. 11, 1968; Fernandez v. P. Cuerva & Co.,
L-21114,
Nov. 25, 1967; Gonzales v. Commission on Elections, L-28224, Nov. 29,
1967;
Bara Lidasan v. COMELEC, L-28089, Oct. 25, 1967; Mun. of San Juan v.
NAWASA,
L-22047, Aug. 31, 1967; Mun. of San Joaquin v. Siva, L-19870, Mar. 18,
1967; Pelayo v. Auditor General, L-23825, Dec. 24, 1965; Philippine
Constitution
Association v. Gimenez, L-23326, Dec. 18, 1965; Mun. of La Carlota v.
NAWASA,
L-20232, Sept. 30, 1964; Guevara v. Inocentes, L-25577, Mar. 15, 1966;
Gillera v. Fernandez, L-20741, Jan. 31, 1964; Siguiente v. Secretary of
Justice, L-20370, Nov. 29, 1963; Mun. of Naguilian v. NAWASA, L-18540,
Nov. 29, 1963; Herrera v. Liwag, L-20079, Sept. 30, 1963; Aytona v.
Castillo,
L-19313, Jan. 19, 1962; La Mallorca, etc. v. Ramos, et al., L-15476,
Sept.
19, 1961; Tan v. De Leon, et al., L-15254, Sept. 16, 1961; Macias v.
Commission
on Elections, L-18684, Sept. 14, 1961; Philippine Tobacco Flue-Curing
&
Redrying Corp. v. Sabugo, et al., L-16017, Aug. 31, 1961; Miller v.
Mardo,
L-15138, July 31, 1961; Cu Bu Liong v. Estrella, et al., L-14212, July
31, 1961; Pampanga Sugar Development Co., Inc. v. Fuentes, et al.,
L-14738,
July 31, 1961; Earnshaw Docks & Honolulu Iron Works v. Mardo, et
al.,
L-14759, July 31, 1961; Liwanag v. Central Azucarera Don Pedro,
L-15372,
July 31, 1961; Lecura v. Regional Office No. 3, etc., L-15582, July 31,
1961; Pitogo v. Sen Bee Trading Co., et al., L-15693, July 31, 1961;
Pascual
v. Sec. of Public Works and Communications, L-10405, Dec. 29, 1960;
Corominas,
Jr. v. Labor Standards Commission, L-14837, June 30, 1961; City of
Baguio
v. NAWASA, L-12032, Aug. 31, 1959; City of Cebu v. NAWASA, L-12892,
April
20,1960; Montes v. Civil Service Board of Appeals, 101 Phil. 490,
Rutter
v. Esteban, 93 Phil. 68; Araneta v. Dinglasan, 84 Phil. 368; Borromeo
v.
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, decided on January 22, 1973
[19]
L-33964, Teodosio Lansang, et al. v. Brigadier-General Eduardo M.
Garcia;
L-33965, Rogelio V. Arienda v. Secretary of National Defense, et al.;
L-33973,
Luzvimindo David v. Gen. Eduardo Garcia, et al.; L-33962, Felicidad G.
Prudente v. General Manuel Yan, et al.; L-34004, Domingo E. de Lara v.
Brigadier-General Eduardo M. Garcia; L-34013, Reynaldo Rimando v. Brig.
Gen. Eduardo M. Garcia; L-34039, Carlos C. Rabago v. Brig. Gen. Eduardo
Garcia, et al.; L-34265, Antolin Oreta, Jr. v. Gen. Eduardo Garcia, et
al.; and L-34339, Gary B. Olivar, et al. v. 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 v. Hill, 60 Iowa 543, 14 N.W. Rep. 738, and 15 N.W. Rep.
609; State v. Tufly, 19 Nev. 391, 12 Pac. Rep. 835.
[30]
Angara v. Electoral Commission, 63 Phil. 139, 157. Emphasis ours.
[31]
12 L. ed. 581 (1849).
[32]
Luther v. Borden, supra, p. 598. Emphasis ours.
[33]
In re McConaughy, supra, p. 416. Emphasis ours.
[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. Emphasis ours. The observation as
to the uniformity of authorities on the matter has been reiterated in
Winget
v. Holm, 244 N.W. 329, 332.
[37]
Baker v. Carr, 369 U.S. 186, 7 L. ed. 2d 663, 686, 82 S. Ct. 691.
[38]
See p. 5 of the Petition.
[39]
Emphasis ours.
[40]
The Framing of the Philippine Constitution, by Aruego, Vol. I p. 215.
[41]
The Framing of the Philippine Constitution, by Aruego, Vol. I 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:chanroblesvirtuallawlibrary
"(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 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:chanroblesvirtuallawlibrary
"(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
preparing their ballots due to permanent physical disability, present
themselves
at the hour of voting as incapacitated, irrespective 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]
Edwards v. Lesueur, 33 S.W. 1130; Johnson v. Grand Forks County, 113
N.W.
1071; Ellingham v. Dye (1912), 178 Ind. 336, 99 N.E. 1; State v.
Marcus,
160 Wis. 354, 152 N.W. 419.
[49]
In Alcantara v. 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:chanroblesvirtuallawlibrary
"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.
xxx
xxx xxx
[51]
"Sec. 102. Disqualifications. - The following persons shall not be
qualified
to vote:chanroblesvirtuallawlibrary
"(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 reacquire 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 or
feeble-minded
persons.
"(d) Persons who cannot
prepare their ballots themselves."
[52]
"Sec. 10.
"The following persons
shall not be qualified to vote:chanroblesvirtuallawlibrary
"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 Demetrio v. Lopez, 50 Phil. 45, 60. See,
also,
Garchitorena v. Crescini, 39 Phil. 258.
[54]
Baldauf v. Gunson, 8 P. 2d. 265. See, also, Martin v. McGarr, 117 P.
323,
Glenn v. Gnau, 64 S.W. 2d. 168. Emphasis ours.
[55]
L-33325 and L-34043, December 29, 1971.
[56]
Hopkins v. City of Duluth, 83 N.W. 536, 538. Emphasis ours.
[57]
Maddox v. Board of State Canvassers, 149 P. 2d. 112, 115. Emphasis ours.
[58]
Port of Palm Beach District v. State, 22 So. 2d. 581, 582-583. Emphasis
ours.
[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 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 he
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 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 land 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 controversy submitted to the Commission shall after complaince 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, deputized 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 a certiorari in accordance with the Rules
of Court or such applicable laws as may 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, Roses, et al. v. Secretary of National Defense, et al.;
L-35539,
Diokno v. Hon. Enrile, et al.; L-35540, Soliven, et al. v. Secretary of
National Defense, et al.; L-35546, Aquino, Jr., et al. v. Hon. Enrile,
et al.; L-35547, Garcia II v. Hon. Enrile, et al.; L-35567 Doronila, et
al. v. Secretary of National Defense, et al.; L-35573, Randon v. 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) have so far been established, the people would
like
to decide 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,
like 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." (Emphasis ours.).
[68]
McKinney v. Baker, 180 Ky. 526 203 S.W. 303, 304. Emphasis ours.
[69]
Art. VII, section 2, 1935 Constitution.
[70]
Michael W. Roche v. Lamb, 306 N.Y.S. 2d. 515 (Dec. 17, 1969); State ex
rel. Sathre v. Bryne, 258 N.W. 121; State ex rel. Shriver v. Hayes, 76
N.E. 2d. 869; Smith v. Bangham, 76 p 2d. 1022. McKim v. Brast, 117 S.E.
875; Head v. Wood, 107 So. 854; State ex rel. Watson v. Pigg, 46 N.E.
2d.
232.
[71]
See cases cited in the preceding footnote. See, also, Tiegs v.
Patterson,
318 P. 2d. 588; State ex rel. Brown v. St. Joseph Circuit Court, 95
N.E.
2d. 632; Williamson v. State Election Board, 431 P. 2d. 352, Baker v.
Conway,
108 So. 18; Cohoon v. Swain, 5 S.E. 2d. 1; State ex rel. Mitchell v.
Walcott,
83 A. 2d. 762; Doyle v. Ries, 285 N.W. 480; Grossglaus v. Board of
Elections
of Stark County, 88 N.E. 2d. 245; Walker v. Hughes, 36 A. 2d. 47; Reese
v. Dempsey, 152 P. 2d. 157; Dodd v. Gower, 62 S.W. 2d. 1; Galloway v.
Bradburn,
82 S.W. 1013; Hagan v. Henry, 76 S.W. 2d. 994.
[72]
106 Minn 392, 119 N.W. 408, 409.
[73]
63 N.J. Law, 289, cited in In re McConaughy, supra.
[74]
78 Ark. 439, 96 S.W. 396, cited in In re McConaughy, supra.
[75]
See cases listed on pages 105-106, footnotes 56, 57 and 58.
[76]
On December 19, 1972.
[77]
24 Kansas 700, 714. See, also, State ex rel. Williams v. Robb, 183 P.
2d.
223, 228; Harris v. Shanahan, 387 P. 2d. 771, 784, 785.
[78]
369 U.S. 186, 7 L.ed. 2d. 663, 684, citing Chaselton Corp. v. 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]
Marifosque, et al. v. Luna, 101 Phil. 1223 [unreported]; 37 Am. Jur.
669;
62 C.J.S. 749-750; Guevara v. 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. Emphasis ours.
[84]
231 U.S. 28, 58 L. ed. 107, 114, 34 S. Ct. 1.
[85]
Baker v. 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. 153.
[88]
Justice Barredo's language.
[89]
At p. 153, Joint Opinion of Justices Makalintal and Castro.
[90]
Joint Opinion of Justices Makalintal and Castro, p. 153.
[91]
At p. 8, Idem. |