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The major thrust of the petitions is that the act of the Citizens Assemblies as certified and proclaimed by the President on January 17, 1973 (Proclamation No. 1102) was not an act of ratification, let alone a valid one, of the proposed Constitution, because it was not in accordance with the existing Constitution [of 1935] and the Election Code of 1971. Other grounds are relied upon by the petitioners in support of their basic proposition, but to Our mind they are merely subordinate and peripheral.

Article XV, Section 1,of the 1935 Constitution provides that amendments [proposed either by Congress in joint session or by a Convention called by it for the purpose] "shall be valid part of this Constitution when approved by a majority of votes cast at an election at which the amendments submitted to the people for their ratification." At the time the Constitution was approved by the Constitutional Convention on February 8, 1935, and ratified in a plebiscite held on following May 14, the word "election" had already a definite meaning in our law and jurisprudence. It was not a vague and amorphous concept, but a procedure prescribed by statute ascertaining the people's choices among candidates for public offices, or their will on important matters submitted to the pursuant to law, for approval. It was in this sense that word was used by the framers in Article XV [also in Articles VI and VII], and in accordance with such procedure that plebiscites were held to ratify the very same Constitution in 1935 as well as the subsequent amendments thereto, thus: in 1939 [Ordinance appended to the Constitution]; 1940 [establishment of a bicameral legislature; eligibility of the President and the Vice President for re-election; creation of the Commission of Elections]; 1947 [Parity Amendment]; and 1967 [increase in membership of the House of Representatives and eligibility of members of Congress to run for the Constitutional Convention without forfeiture of their offices].

The Election Code of 1971, in its Section 2, states that "all elections of public officers except barrio officials and plebiscites shall be conducted in the manner provided by this Code." This is a statutory requirement designed, as were the other election laws previously in force, to carry out the constitutional mandate relative to the exercise of the right suffrage, and with specific reference to the term "plebiscites," under the provision of Article XV regarding ratification of constitutional amendments.

The manner of conducting elections and plebiscites provided by the Code is spelled out in other sections thereof. Section 99 requires that qualified voters be registered in a permanent list, the qualifications being those set forth in Article V, Section 1, of the 1935 Constitution on the basis of age (21), literacy and residence. These qualifications are reiterated in Section 101 of the Election Code. Section 102 enumerates the classes of persons disqualified to vote. Succeeding sections prescribe the election paraphernalia to be used, the procedure for registering voters, the records, of registration and the custody thereof, the description and printing of official ballots, the actual casting of votes and their subsequent counting by the boards of inspectors, the rules for appreciation of ballots, and then the canvass and proclamation of the results.

With specific reference to the ratification of the 1972 draft Constitution, several additional circumstances should be considered:

(1) This draft was prepared and approved by a Convention which had been convened pursuant to Resolution No. 2 passed by Congress on March 16, 1967, which provides:

(3) After the draft Constitution was approved by the Constitutional Convention on November 30, 1972, the said body adopted Resolution No. 5843, proposing "to President Ferdinand E. Marcos that a decree be issued calling a plebiscite for the ratification of the proposed New Constitution on such appropriate date as he shall determine and providing for the necessary funds therefor." Pursuant to said Resolution, the President issued Decree No. 73 on the same day, calling a plebiscite to be held on January 15, 1973, at which the proposed Constitution "shall be submitted to the people for ratification or rejection." The Decree had eighteen (18) Sections in all, prescribing in detail the different steps to be taken to carry out the process of ratification, such as: (a) publication of the proposed Constitution in English and Pilipino; (b) freedom of information and discussion; (c) registration of voters: (d) appointment of boards of election inspectors and designation of watchers in each precinct; (e) printing of official ballots; (f) manner of voting to insure freedom and secrecy thereof; (g) canvass of plebiscite returns; and (h) in general, compliance with the provisions of the Election Code of 1971, with the Commission on Elections exercising its constitutional and statutory powers of supervision of the entire process.

There can hardly be any doubt that in everybody's view - from the framers of the 1935 Constitution through all the Congresses since then to the 1971 Constitutional Convention - amendments to the Constitution should be ratified in only one way, that is, in an election or plebiscite held in accordance with law and participated in only by qualified and duly registered voters. Indeed, so concerned was this Court with the importance and indispensability of complying with the mandate of the (1935) Constitution in this respect that in the recent case of Tolentino vs. Commission on Elections, No. L-34150, October 16, 1971 (41 SCRA 702), a resolution of the (1971) Constitutional Convention submitting a proposed amendment for ratification to a plebiscite to be held in November 1971 was declared null and void. The amendment sought to reduce the voting age from twenty-one to eighteen years and was approved by the Convention for submission to a plebiscite ahead of and separately from other amendments still being or to be considered by it, so as to enable the youth to be thus enfranchised to participate in the plebiscite for the ratification of such other amendments later. This Court held that such separate submission was violative of Article XV, Section 1, of the Constitution, which contemplated that "all the amendments to be proposed by the same Convention must be submitted to the people in a single "election" or plebiscite."[*] Thus a grammatical construction based on a singular, instead of plural, rendition of the word "election" was considered a sufficient ground to rule out the plebiscite which had been called to ratify a proposed amendment in accordance with the procedure and under all the safeguards provided in the Election Law.

In the cases now before Us, what is at issue is not merely the ratification of just one amendment, as in Tolentino vs. COMELEC, but the ratification of an entire charter setting up a new form of government; and the issue has arisen not because of a disputed construction of one word or one provision in the 1935 Constitution but because no election or plebiscite in accordance with that Constitution and with the Election Code of 1971 was held for the purpose of such ratification.

The Citizens Assemblies which purportedly ratified the draft Constitution were created by Presidential Decree No. 86 dated December 31, 1972, "to broaden the base of citizen participation in the democratic process and to afford ample opportunities for the citizenry to express their views on important national issues." The Assemblies "shall consist 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 lists of Citizen Assembly members kept by the barrio, district or ward secretary." By Presidential Decree No. 86-A, dated January 5, 1973, the Assemblies were convened for a referendum between January 10 and 15, to "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."

On January 5, 1973, the newspapers came out with a list of four questions to be submitted to the Citizens Assemblies, the fourth one being as follows: "How soon would you like plebiscite on the new Constitution to be held?" It should be noted in this connection, that the President had previously announced that he had ordered the postponement of plebiscite which he had called for January 15, 1973 [Presidential Decree No. 73] for the ratification of the Constitution, and that he was considering two new dates for the purpose February 19 or March 5; that he had ordered that the registration of voters [pursuant to Presidential Decree No. 73] be extended to accommodate new voters; and that copies of the new Constitution would be distributed in eight dialects to the people. [Bulletin Today, December 24, 1972].

On January 10, 1973, it was reported that one more question would be added to the original four which were to be submitted to the Citizens Assemblies. The question concerning plebiscite was reworded as follows: "Do you like the plebiscite to be held later?" The implication, it may likewise be noted, was that the Assemblies should express their views as to when the plebiscite should be held, not as to whether or not it should be held at all.

The next day, January 11, it was reported that six additional questions would be submitted, namely:

There should be no serious dispute as to the fact that the manner in which the voting was conducted in the Citizen Assemblies, assuming that such voting was held, was not within the intendment of Article XV, Section 1, of the 1935 Constitution nor in accordance with the Election Code of 1971. The referendum can by no means be considered as the plebiscite contemplated in Section 2 of said Code and in Article XVII, Section 16, of the draft Constitution itself, or as the election intended by Congress when it passed Resolution No. 2 on March 16, 1967 calling a Convention for the revision of the 1935 Constitution. The Citizens Assemblies were not limited to qualified, let alone registered voters, but included all citizens from the age of fifteen, and regardless of whether or not they were illiterates, feeble-minded, or ex convicts [*] these being the classes of persons expressly disqualified from voting by Section 102 of the Election Code. In short, the constitutional and statutory qualifications were not considered in the determination of who should participate. No official ballots were used in the voting; it was done mostly by acclamation or open show of hands. Secrecy, which is one of the essential features of the election process, was not, therefore, observed. No set of rules for counting the votes or of tabulating them and reporting the figures was prescribed or followed. The Commission on Elections, which is the constitutional body charged with the enforcement and administration of all laws relative to the conduct of elections, took no part at all, either by way of supervision or in the assessment of the results.

It has been suggested that since according to Proclamation No. 1102, the overwhelming majority of all the members of the Citizens Assemblies had voted for the adoption of the proposed Constitution, there was a substantial compliance with Article XV, Section 1, of the 1935 Constitution and with the Election Code of 1971. The suggestion misses the point entirely. It is of the essence of a valid exercise of the right of suffrage that not only must a majority or plurality of the voters carry the day but that the same must be duly ascertained in accordance with the procedure prescribed by law. In other words, the very existence of such majority or plurality depends upon the manner of its ascertainment, and to conclude that it exists even if it has not been ascertained according to law is simply to beg the issue, or to assume the very fact to be established. Otherwise, no election or plebiscite could be questioned for non-compliance with the provisions of the Election Law as long as it is certified that a majority of the citizens had voted favorably or adversely on whatever it was that was submitted to them to vote upon.

However, a finding that the ratification of the draft Constitution by the Citizens Assemblies, as certified by the President in Proclamation No. 1102, was not in accordance with the constitutional and statutory procedure laid down for the purpose does not quite resolve the questions raised in these cases. Such a finding, in Our opinion, is on a matter which is essentially justiciable, that is, within the power of this Court to inquire into. It imports nothing more than a simple reading and application of the pertinent provisions of the 1935 Constitution, of the Election Code and of other related laws and official acts. No question of wisdom or of policy is involved. But from this finding, it does not necessarily follow that this Court may justifiably declare that the Constitution has not become effective, and for that reason give due course to these petitions or grant the writs herein prayed for. The effectivity of the said Constitution, in the final analysis, is the basic and ultimate question posed by these cases, to resolve which considerations other than judicial, and, therefore, beyond the competence of this Court, are relevant and unavoidable.

Several theories have been advanced respectively by the parties. The petitioners lay stress on the invalidity of the ratification process adopted by the Citizens Assemblies and on that premise would have this Court grant the reliefs they seek. The respondents represented by the Solicitor General, whose theory may be taken as the official position of the Government, challenged the jurisdiction of this Court on the ground that the questions raised in the petitions are political and therefore non-justiciable, and that in any case popular acquiescence in the new Constitution and the prospect of unsettling acts done in reliance thereon should caution against interposition of the power of judicial review. Respondents Gil J. Puyat and Jose Roy [in L-36165], in their respective capacities as President and President Pro-Tempore of the Senate of the Philippines, and through their counsel, Senator Arturo Tolentino, likewise invoked the political question doctrine, but on a ground not concurred in by the Solicitor General, namely, that approval of the 1973 Constitution by the people was made under a revolutionary government, in the course of a successful political revolution, which was converted by act of the people to the present de jure government under the 1973 Constitution."

Heretofore, constitutional disputes which have come before this Court for adjudication proceeded on the assumption, conceded by all, that the Constitution was in full force and effect, with the power and authority of the entire Government behind it; and the task of this Court was simply to determine whether or not the particular act or statute that was being challenged contravened some rule or mandate of that Constitution. The process employed was one of interpretation and synthesis. In the cases at bar there is no such assumption: the Constitution [1935] has been derogated and its continued existence as well as the validity of the act of derogation is issue. The legal problem posed by the situation is aggravated by the fact that the political arms of the Government the Executive Departments and the two Houses of Congress have accepted the new Constitution as effective: the former by organizing themselves and discharging their functions under it, and the latter by not convening on January 22, 1973 or at any time thereafter, as ordained by the 1935 Constitution, and in the case of a majority of the members by expressing their option to serve in the Interim National Assembly in accordance with Article XVIII, Section 2, of the 1973 Constitution.[*]

The theory advanced by Senator Tolentino, as counsel for respondents Puyat and Roy, may be taken up and restated at same length if only because it would constitute, if sustained, the most convenient ground for the invocation of the political-question doctrine. In support of his theory, Senator Tolentino contends that after President Marcos declared martial law on September 21, 1972 [Proclamation No. 1081] he established a revolutionary government when he issued General Order No. 1 the next day, wherein he proclaimed "that I shall govern the nation and direct the operation of the entire government, including all its agencies and instrumentalities, in my capacity, and shall exercise all the powers and prerogatives appurtenant and incident to my position as such Commander-in-Chief of all the Armed Forces of the Philippines." By this order, it is pointed out, the Commander-in-Chief of the Armed Forces assumed all the powers of government - executive, legislative, and judicial; and thereafter proceeded to exercise such powers by a series of Orders and Decrees which amounted to legislative enactments not justified under martial law and, in some instances, trenched upon the domain of the judiciary, by removing from its jurisdiction certain classes of cases, such as "those involving the validity, legality, or constitutionality of Proclamation No. 1081, or of any decree, order or act issued, promulgated or performed by me or by my duly designated representative pursuant thereto." [General Order No. 3 as amended by General Order No. 3-A, dated September 24, 1972]. The ratification by the Citizens Assemblies, it is averred, was the culminating act of the revolution, which thereupon converted the government into a de jure one under the 1973 Constitution.

If indeed it be accepted that the Citizens Assemblies had ratified the 1973 Constitution and that such ratification as well as the establishment of the government thereunder formed part of a revolution, albeit peaceful, then the issue of whether or not that Constitution has become effective and, as necessary corollary, whether or not the government legitimately functions under it instead of under the 1935 Constitution, is political and, therefore, non-judicial in nature. Under such a postulate what the people did in the Citizen Assemblies should be taken as an exercise of the ultimate sovereign power. If they had risen up in arms and by force deposed the then existing government and set up a new government in its place, there could not be the least doubt that their act would be political and not subject to judicial review but only to the judgment of the same body politic act, in the context just set forth, is based on realities. If a new government gains authority and dominance through force, it can be effectively challenged only by a stronger force; judicial dictum can prevail against it. We do not see that situation would be any different, as far as the doctrine of judicial review is concerned, if no force had been resorted to and the people, in defiance of the existing Constitution but peacefully because of the absence of any appreciable opposition, ordained a new Constitution and succeeded in having the government operate under it. Against such a reality, there can be no adequate judicial relief; and so courts forbear to take cognizance of the question but leave it to be decided through political means.

The logic of the political-question doctrine is illustrated in statement of the U.S. Supreme Court in a case[*] relied upon, curiously enough, by the Solicitor General, who disagrees with the revolutionary government theory of Senator Tolentino. The case involved the issue of which of two opposing governments struggling for supremacy in the State of Rhode Island was the lawful one. The issue had previously come up in several other cases before the courts of the State, which uniformly held that the inquiry belonged to the political power and not to the judicial. Commenting on the ruling thus arrived at, the U.S. Supreme Court said: "And if a State court should enter upon the inquiry proposed in this case, and should come to the conclusion that the government under which it acted had been put aside and displaced by an opposing government, it would cease to be a court, and incapable of pronouncing a judicial decision upon the question it undertook to try. If it decides at all as a court, it necessarily affirms the existence and authority of the government under which it is exercising judicial power." In other words, since the court would have no choice but to decide in one way alone in order to be able to decide at all, the question could not be considered proper for judicial determination.

It should be noted that the above statement from Luther vs. Borden would be applicable in the cases at bar only on the premise that the ratification of the Constitution was a revolutionary act and that the government now functioning it is the product of such revolution. However, we are not prepared to agree that the premise is justified.

In the first, place, with specific reference to the questioned ratification, several significant circumstances may be noted. (1) The Citizens Assemblies were created, according to Presidential Decree No. 86, "to broaden the base of citizen participation in the democratic process and to afford ample opportunities for the citizenry to express their views on important national issues." (2) The President announced, according to the Daily Express of January 2, 1973, that "the referendum will be in the nature of a loose consultation with the people." (3) The question, as submitted to them on the particular point at issue here, was "Do you a approve of the Constitution?" (4) President Marcos, in proclaiming that the Constitution had been ratified, stated as follows: "[S]ince 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." (5) There was not enough time for the Citizens Assemblies to really familiarize themselves with the Constitution, much less with the many other subjects that were submitted to them. In fact the plebiscite planned for January 15, 1973 under Presidential Decree No. 73 had been postponed to an indefinite date, the reasons for the postponement being, as attributed to the President in the newspapers, that "there was little time to campaign for or against ratification" [Daily Express, Dec. 22, 1972]; that he would base his decision [as to the date, of the plebiscite] on the compliance by the Commission [on Elections] on the publication requirement of the new Charter and on the position taken by national leaders" [Daily Express, Dec. 23, 1972]; and that "the postponement would give us more time to debate on the merits of the Charter." [Bulletin Today, Dec. 24, 1972].

The circumstances above enumerated lead us to the conclusion that the Citizens Assemblies could not have understood the referendum to be for the ratification of the Constitution, but only for the expression of their views on a consultative basis. Indeed, if the expression of those views had been intended as an act of ratification [or of rejection as a logical corollary], there would have been no need for the Katipunan ng mga Barangay to recommend that the Constitution should already be deemed ratified, for recommendation imports recognition of some higher authority in whom the final decision rests.

But then the President, pursuant to such recommendation, did proclaim that the Constitution had been ratified and had come into effect. The more relevant consideration, therefore, as far as we can see, should be as to what the President had in mind in convening the Citizens Assemblies, submitting the Constitution to them and proclaiming that the favorable expression of their views was an act of ratification. In this respect subjective factors, which defy judicial analysis and adjudication, are necessarily involved.

In positing the problem within an identifiable frame of reference we find no need to consider whether or not the regime established by President Marcos since he declared martial law and under which the new Constitution was submitted to the Citizens Assemblies was a revolutionary one. The pivotal question is rather whether or not the effectivity of the said Constitution by virtue of Presidential Proclamation No. 1102, upon the recommendation of the Katipunan ng mga Barangay, was intended to be definite and irrevocable, regardless of non-compliance with the pertinent constitutional and statutory provisions prescribing the procedure for ratification. We must confess that after considering all the available evidence and all the relevant circumstances we have found no reasonably reliable answer to the question. On one hand, We read, for instance, the following public statements of the President:

On the same occasion of the signing of Proclamation No. 1102 the President made pointed reference to "the demand of some of our citizens that when all other measures should fail, that the President be directed to organize and establish a Revolutionary Government," but in the next breath added: "if we do ratify the Constitution, how can we speak of Revolutionary Government? They cannot be compatible" "(I)t is my feeling," he said, "that the Citizens' Assemblies which submitted this recommendation merely sought to articulate their impatience with the status quo that has brought about anarchy, confusion and misery to the masses" The only alternatives which the President clearly implied by the foregoing statements were the ratification of the new Constitution and the establishment of a revolutionary government, the latter being unnecessary, in his opinion, because precisely the Constitution had been ratified. The third obvious alternative was entirely ruled out, namely, a return to the 1935 Constitution, for it was the status quo under that Constitution that had caused "anarchy, confusion and misery." The message seems clear: rather than return to such status quo, he would heed the recommendation of the Citizens' Assemblies to establish a revolutionary government, because that would be the only other way to carry out the reforms he had envisioned and initiated reforms which, in all fairness and honesty, must be given credit for the improved quality of life in its many aspects, except only in the field of civil liberties.

If there is any significance, both explicit and implicit, and certainly unmistakable, in the foregoing pronouncements, it is that the step taken in connection with the ratification of the Constitution was meant to be irreversible, and that nothing anyone could say would make the least difference. And if this is a correct and accurate assessment of the situation, then We would say that since it has been brought about by political action and is now maintained by the government that is in undisputed authority and dominance, the matter lies beyond the power of judicial review.

On the other hand, by avowals no less significant if not so emphatic in terms, President Marcos has professed fealty to the Constitution. In "Today's Revolution: Democracy" he says:

In articulating our view that the procedure of ratification that was followed was not in accordance with the 1935 Constitution and related statutes, we have discharged our sworn duty as we conceive it to be. The President should now perhaps decide, if he has not already decided, whether adherence to such procedure is weighty enough a consideration, if only to dispel any cloud of doubt that may now and in the future shroud the nation's Charter.

In the deliberations of this Court one of the issues formulated for resolution is whether or not the new Constitution, since its submission to the Citizens Assemblies, has found acceptance among the people, such issue being related to the political question theory propounded by the respondents. We have not tarried on the point at all since we find no reliable basis on which to form a judgment. Under a regime of martial law, with the free expression of opinions through the usual media vehicles restricted, we have no means of knowing, to the point of judicial certainty, whether the people have accepted the Constitution. In any event, we do not find the issue decisive insofar as our vote in these cases is concerned. To interpret the Constitution - that is judicial. That the Constitution should be deemed in effect because of popular acquiescence - that is political, and, therefore, beyond the domain of judicial review.

As far as I am concerned, I regard the present petitions as no more than mere reiterations of the Supplemental Petitions filed by Counsel Lorenzo M. Tañada on January 15, 1973 in the so called Plebiscite Cases decided by this Court on January 22, 1978. Of course, there are amplifications of some of the grounds previously alleged and in the course of the unprecedented five-day hearing that was held from February 12 to 16 last, more extensive and illuminating arguments were heard by Us, but, in my estimation, and with due recognition of the sincerety, brilliance and eloquence of counsels, nothing more cogent and compelling than what had already been previously presented by Counsel Tañada is before Us now. Accordingly, I cannot see any reason why I should change the position I took in regard to the earlier cases. I reiterate, therefore, the vote I cast when these petitions were initially considered by the Court; namely, to dismiss them.

In view, however, of the transcendental importance of the issues before the Court and the significance to our people and in history of the individual stands of the members of the Court in relation to said issues and to the final outcome of these cases, and considering that I reserved before the filing of a more extended opinion, I will take this opportunity to explain further why I hold that the 1973 Constitution is already in force, if only to clarify that apart from the people's right of revolution to which I made pointed reference in my previous opinion, I can see now, after further reflection, that the vote of the people in the referendum in the Citizens Assemblies held on January 10 to 15, 1973, upon the result of which Proclamation 1102 is based, may be viewed more importantly as a political act than as a purely legal one with the result that such vote to consider the 1973 Constitution as ratified without the necessity of holding a plebiscite in the form followed in the previous ratification plebiscites in 1935 of the Constitution itself, 1937 of women's suffrage, 1939 of the amendments to the Ordinance Appended to the Constitution, 1940 of the re-election of the President, the bicameral legislature and the Commission on Elections, 1947 of the parity amendment and 1967, rejecting the proposed increase in the members of the House of Representatives and eligibility of members of Congress to the Constitutional Convention, may be deemed as a valid ratification substantially in compliance with the basic intent of Article XV of the 1935 Constitution. If indeed this explanation may be considered as a modification of my rationalization then, I wish to emphasize that my position as to the fundamental issue regarding the enforceability of the new Constitution is even firmer now than ever before. As I shall elucidate, paramount considerations of national import have led me to the conviction that the best interests of all concerned would be best served by the Supreme Court holding that the 1973 Constitution is now in force, not necessarily as a consequence of the revolutionary concept previously suggested by me, but upon the ground that as a political, more than as a legal, act of the people, the result of the referendum may be construed as a compliance with the substantiality of Article XV of the 1935 Constitution.

The facts that gave rise to these proceedings are historical and well known. Generally, they may be taken judicial notice of. They revolve around the purported ratification of the Constitution of 1973 declared in Proclamation 1102 issued by the President on January 17, 1973.

Pursuant to a joint resolution of the Congress sitting as a constituent assembly approved on March 16, 1967, delegates to a constitutional convention to propose amendments to the Constitution of 1935 were elected in accordance with the implementing law, Republic Act 6132, on November 10, 1970. Known as the Constitutional Convention of 1971, the assembly began its sessions on June 1, 1971. After encountering a lot of difficulties, due to bitter rivalries over important positions and committees and an incomprehensible fear of overconcentrating powers in their officers, the delegates went about their work in comparatively slow pace, and by the third quarter of 1972 had finished deliberations and second-reading voting only on an insignificant number of proposals until September 21, 1972, when the President, not altogether unexpectedly, yet abruptly, issued Proclamation 1081 declaring martial law throughout the country. An attempt was made to have the Convention recessed until after the lifting of martial law, and not long after the motion of Delegate Kalaw to such effect was turned down, the activities within the assembly shifted to high gear. As if unmindful of the arrest and continued detention of several of its members, the convention gathered swift momentum in its work, and on November 30, 1972, it approved by overwhelming vote the draft of a complete constitution, instead of mere specific amendments of particular portions of the Constitution of 1935. Needless to say, before martial law was declared, there was full and unlimited coverage of the workings in the convention by the mass media. At the same time, public debates and discussions on various aspects of proposed amendments were not uncommon.

Earlier, on November 22, 1972, the Convention had Resolution No. 5843 proposing "to President Ferdinand Marcos that a decree be issued calling a plebiscite for ratification of the proposed new Constitution on appropriate date as he shall determine and providing for necessary funds therefor." Acting under this authority, December 1, 1972, the President issued Presidential Decree No. 73 submitting the draft constitution for ratification by the people at a plebiscite set for January 15, 1973. This order contained provisions more or less similar to the plebiscite laws passed by Congress relative to the past plebiscites held in connection with previous proposed amendments.

In connection with the plebiscite thus contemplated, General Order No. 17 was issued ordering and enjoining the authorities to allow and encourage public and free discussions on proposed constitution. Not only this, subsequently, under date of December 17, 1972, the President ordered the suspension the effects of martial law and lifted the suspension of privilege of the writ of habeas corpus insofar as activities connected with the ratification of the draft constitution were concerned. These two orders were not, however, to last very long. On January 7, 1973, the President, invoking information related to him that the area of public debate and discussion had opened by his previous orders was being taken advantage of by subversive elements to defeat the purposes for which they were issued and to foment public confusion, withdrew said orders and enjoined full and stricter implementation of martial law.

In the meantime, the President had issued on December 3, 1972 Presidential Decree No. 86 creating Citizens Assemblies "so as to afford ample opportunities for the citizenry to express their views on important national issues" and one of the questions presented to said assemblies was: "Do you like the plebiscite on the proposed Constitution to be held later" So, the same order of January 7, 1973, General Order No. 20, the President ordered, "that the plebiscite scheduled to be held January 15, 1973, be postponed until further notice".

In the meanwhile also, on January 5, 1973, the President issued Presidential Decree, No. 86-A providing as follows:

The first attempt to question the steps just enumerated taken by the President was in the so-called Plebiscite Cases, ten in number, which were filed by different petitioners during the first half of December 1972.[1] Their common target then was Presidential Decree No. 73, but before the said cases could be decided, the series of moves tending in effect to make them moot and academic insofar as they referred exclusively to the said Presidential Decree began to take shape upon the issuance of Presidential Decree No. 86-A, quoted above. And when Presidential Decree No. 86-B, also above quoted, was issued and the six additional questions which were first publicized on January 11, 1973 were known, together with the "comments", petitioners sensed that a new and unorthodox procedure was being adopted to secure approval by the people of the new Constitution, hence Counsel Tañada, not being satisfied with the fate of his urgent motion for early decision of the above ten cases dated January 12, 1973, filed on January 15, 1973, his supplemental motion seeking the prohibition against and injunction of the proceedings going on. Principal objective was to prevent that the President be furnished the report of the results of the referendum and thereby disable him from carrying out what petitioners were apprehensively foreseeing would be done the issuance of some kind of proclamation, order or decree, declaring that the new Constitution had been ratified. Reacting swiftly, the Court resolved on the same day, January 15, which was Monday, to consider the supplemental motion as a supplemental petition and to require the respondents to answer the same the next Wednesday, January 17th, before the hour of the hearing of the petition which set for 9:30 o'clock in the morning of that day. The details what happened that morning form part of the recital of facts the decision rendered by this Court in the ten cases on January 22, 1973 and need not be repeated here. Suffice it to state no that before the hearing could be closed and while Counsel Tañada was still insisting on his prayer for preliminary injunction or restraining order, the Secretary of Justice arrived and personally handed to the Chief Justice a copy Proclamation 1102 which had been issued at about 11:00 o'clock that same morning. In other words, the valiant and persistent efforts of petitioners and their counsels were overtaken by adverse developments, and in the mind of the majority of the members of the Court, the cases had become academic. For my part, I took the view that even on the basis of the supplemental petition and the answer thereto filed by respondents, the Court could already decide on the fundamental issue of the validity Proclamation 1102, as Justices Zaldivar, Antonio and Esguerra also believed, inasmuch as Counsel Tañada's pleading and argument had anticipated its issuance, but the majority felt it was not ready to resolve the matter, for lack, according them, of full ventilation, and so, the decision reserved petitioners the filing of the "appropriate" cases, evidently, the present ones.

II.

At the threshold, I find myself confronted by a matter which, although believed to be inconsequential by my learned brethren, I strongly feel needs special attention. I refer to the point raised by Counsel Arturo M. Tolentino for respondent Gil J. Puyat and Jose Roy, who have been sued as President and President Pro-Tempore of the Senate, to the effect that change in the composition of the Supreme Court provided for the 1973 Constitution, from the 11-man tribunal under the 1935 Constitution to a 15-man Court, makes of these cases which were filed after January 17, 1973 the date when Proclamation 1102 declared the new Constitution as ratified, political nature and beyond our jurisdiction. The main consideration submitted in this connection is that inasmuch as the number votes needed for a decision of this Court has been increased from six to eight in ordinary cases and from eight to ten for the declaration of unconstitutionality of a treaty, executive agreement[2] or law, the Court would have to resolve first as a prejudicial question whether the Court is acting in these cases as the 15-man or the 11-man Court, in which event, it would be faced with the dilemma that if it acts either as the former or as the latter, it would be prejudging the very matter in issue one way or the other, and, in effect, it would be choosing between two constitutions, which is a political determination not within the Court's competence.

While I agree that the problem is at first blush rather involved, I do not share the view that the premises laid down by counsel necessarily preclude this Court from taking a definite stand on whether the Court is acting in these cases as the 15-Man or the 11-man Court. I feel very strongly that the issue should not be ignored or dodged, if only to make the world know that the Supreme Court of the Philippines is never incognizant of the capacity in which it is acting, much less lacking in courage or wisdom to resolve an issue that relates directly to its own composition. What a disgrace it would be to admit that this Supreme Court does not know, to use a common apt expression, whether it is fish or fowl. Withal, scholars and researchers who might go over our records in the future will inevitably examine minutely how each of Us voted and upon what considerations we have individually acted, and, indeed, doubts may arise as to whether or not, despite the general result we might announce, there had been the requisite number of votes for a valid collegiate action.

For instance, it may be argued that the present cases do not involve an issue of unconstitutionality, hence, if we are acting as the 11-man Court, only six votes would suffice to declare Proclamation 1102 ineffective, and if upon analysis of our respective opinions it should be inferable therefrom that six of us have considered the matter before the Court as justiciable and at the same time have found the procedure of ratification adopted in Presidential Decrees 86-A and 86-B and related orders of the President as not being in conformity with Article XV of the old Constitution, a cloud would exist as to efficacy of the dispositive portion of Our decision dismiss these cases, even if we have it understood that by the vote of justices in favor of such dismissal, We intended to mean the implementation or enforcement of the new Constitution now being done could continue.

Be that as it may, I am against leaving such an important point open to speculation. By nature, I am averse to ambiguity and equivocation and as a member of the Supreme Court, last thing I should knowingly countenance is uncertainty as to the juridical significance of any decision of the Court which is precisely being looked upon as the haven in which doubts are supposed to be authoritatively dispelled. Besides, from the very nature of things, one thing is indubitably beyond dispute, We cannot act in both capacities of a 15-man and an 11-man Court at the same time, in like manner that it is inconceivable that the 1935 and 1973 Constitution can be considered by Us both in force. Our inescapable duty is to make a choice between them, according to what law and other considerations inherent to our function dictate. I cannot bear the thought that someone may someday say that the Supreme Court of the Philippines once decided a case without knowing the basis of its author to act or that it was ever wanting in judicial courage to define the same.

Accordingly, with full consciousness of my limitations but compelled by my sense of duty and propriety to straighten out this grave of issue touching on the capacity in which the Court acting in these cases, I hold that we have no alternative but adopt in the present situation the orthodox rule that when validity of an act or law is challenged as being repugnant constitutional mandate, the same is allowed to have effect until the Supreme Court rules that it is unconstitutional. Stated differently, We have to proceed on the assumption that the new Constitution is in force and that We are acting in these cases as the 15-man Supreme Court provided for there Contrary to counsel's contention, there is here no prejudgment for or against any of the two constitutions. The truth of matter is simply that in the normal and logical conduct of governmental activities, it is neither practical nor wise to defer the course of any action until after the courts have ascertained their legality, not only because if that were to be the rule, the functioning of government would correspondingly be undesirably hesitative and cumbersome, but more importantly, because the courts must, at the first instance, accord due respect to the acts of the other departments, as otherwise, the smooth running of the government would have to depend entirely on the unanimity of opinions among all its departments, which is hardly possible, unless it is assumed that only the judges have the exclusive prerogative of making and enforcing the law, aside from being its sole interpreter, which is contrary to all norms of juridical and political thinking. To my knowledge, there is yet no country in the world that has recognized judicial supremacy as its basic governmental principle, no matter how desirable we might believe the idea to be.

Indeed, it is not hard to visualize the difficulty if not absurdity of Our acting on the assumption that this Court is still functioning under the 1935 Constitution. It is undeniable that the whole government, including the provincial, municipal and barrio units and not excluding the lower courts up to the Court of Appeals, is operating under the 1973 Constitution. Almost daily, presidential orders and decrees of the most legislative character affecting practically every aspect of governmental and private activity as well as the relations between the government and the citizenry are pouring out from Malacañang under the authority of said Constitution. On the other hand, taxes are being exacted and penalties in connection therewith are being imposed under said orders and decrees. Obligations have been contracted and business and industrial plans have been and are being projected pursuant to them. Displacements of public officials and employees in big numbers are going on in obedience to them. For the ten justices of the Supreme Court to constitute an island of resistance in the midst of these developments, which even unreasoning obstinacy cannot ignore, much less impede, is unimaginable, let alone the absurd and complicated consequences such a position entails in the internal workings within the judiciary amount its different components, what with the lower courts considering such orders and decrees as forming part of the law of the land in making their orders and decisions, whereas the Supreme Court is holding, as it were, their effectivity at bay if it is not being indifferent to or ignoring them.

It is suggested that the President, being a man of law, committed to abide by the decision of the Supreme Court, and if the Court feels that it cannot in the meantime consider the enforcement of the new Constitution, he can wait for its decision. Accepting the truth of this assertion, it does necessarily follow that by this attitude of the President, considers the Supreme Court as still operating under the Constitution. Quite on the contrary, it is a fact that he has given instructions for the payment of the justices in accordance with the rate fixed in the New Constitution. Not only that, official alter ego, the Secretary of Justice, has been shoving this Court, since January 18, 1973, all matters related to the administrative supervision of the lower courts which by the new charter has been transferred from the Department of Justice to the Supreme Court, and as far as I know, President has not countermanded the Secretary's steps in that direction. That, on the other hand, the President has not augmented the justices of the Court to complete the prescribed number of fifteen is, in my appraisal, of no consequence considering that with the presence of ten justices who are the Court now, there is a working quorum, and the addition of new justices cannot in anyway affect the voting on the constitutional questions now before Us because, while there sufficient justices to declare by their unanimous vote illegality of Proclamation 1102, the votes of the justices to added would only be committed to upholding the same, since they cannot by any standard be expected to vote against legality of the very Constitution under which they would be appointed.

Moreover, what makes the premise of presumptive valid preferable and, even imperative, is that We are dealing here with a whole constitution that radically modifies or alters only the form of our government from presidential parliamentary but also other constitutionally institutions vitally affecting all levels of society. It is, to my mind, unrealistic to insist on that, fundamentally, the 1973 Constitution is the same 1935 Constitution, with a few improvements. A cursory perusal of the former should convince anyone that it is in essence a new one. While it does retain republicanism as the basic governmental tenet, the institutional changes introduced thereby are rather radical and its social orientation is decidedly more socialistic, just as its nationalistic features are somewhat different in certain respects. One cannot but note that the change embraces practically every part of the old charter, from its preamble down to its amending and effectivity clauses, involving as they do the statement of general principles, the citizenship and suffrage qualifications, the articles on the form of government, the judiciary provisions, the spelling out of the duties and responsibilities not only of citizens but also of officers of the government and the provisions on the national economy as well as the patrimony of the nation, not to mention the distinctive features of the general provisions. What is more, the transitory provisions notably depart from traditional and orthodox views in that, in general, the powers of government during the interim period are more or less concentrated in the President, to the extent that the continuation or discontinuance of what is now practically a one-man-rule, is even left to his discretion. Notably, the express ratification of all proclamations, orders, decrees and acts previously issued or done by the President, obviously meant to encompass those issued during martial law, is a commitment to the concept of martial law powers being implemented by President Marcos, in defiance of traditional views and prevailing jurisprudence, to the effect that the Executive's power of legislation during a regime of martial law is all inclusive and is not limited to the matters demanded by military necessity. In other words, the new constitution unlike any other constitution countenances the institution by the executive of reforms which normally is the exclusive attribute of the legislature.

Withal, the best proofs that by its expressed and implied intent, the Constitution of 1973 is a new one, are that (1) Section 16 of its Article XVII which provides that this constitution shall "supersede the Constitution of nineteen hundred and thirty-five and all amendments thereto" and (2) its transitory provisions expressly continue the effectivity of existing laws, offices and courts as well as the tenure of all incumbent officials, not adversely affected by it, which would have been unnecessary if the old constitution were being merely amended.

The new Constitution, in its Section 10, Article XVII, provides that "(T)he incumbent members of the Judiciary (which include the Chief Justice and Associate Justices of Supreme Court) may continue in office (under the constitution) until they reach the age of seventy years, etc." By virtue of the presumptive validity of the new charter, all of form part of the 15-man-Court provided for therein correspondingly, We have in legal contemplation, ceased in the meanwhile to be members of the 11-man-Court in the 1935 Constitution. Should the Court finally decide that the Constitution is invalid, then We would automatically revert to our positions in the 11-man- Court, otherwise, We would just continue to be in our membership in the 15-man-Court, unless We feel We cannot in conscience accept the legality of existence. On the other hand, if it is assumed that We are the 11-man-Court and it happens that Our collective decision is in favor of the new constitution, it would be problematical for any dissenting justice to consider himself as included automatically in the 15-man-Court, since that would tantamount to accepting a position he does not honestly believe exists.

In brief, the main contention of the petitioners is that Proclamation 1102 is invalid because the ratification of the 1973 Constitution it purports to declare as having taken place as a result of the referendum above-referred to is ineffective since it cannot be said on the basis of the said referendum that said Constitution has been "approved by a majority of the votes cast at an election" in the manner prescribed by Article XV the Constitution of 1935. More specifically, they maintain that the word "election" in the said Article has already acquired a definite accepted meaning out of the consistent holding in the past of ratification plebiscites, and accordingly, no other form of ratification can be considered contemplated by the framers of the Old Constitution than that which had been followed in 1935, 1937, 1939, 1940, 1946 and 1967, the last three or four which were held under the supervision of the Commission on Elections. Furthermore, they emphatically deny the veracity of the proclaimed results of the referendum because, according to them the referendum was a farce and its results were manufactured or prefabricated, considering that Mr. Francisco Cruz, who is supposed to have submitted the final report to the President, which served as basis for Proclamation 1102, had no official authority to render the same, and it is inconceivable and humanly impossible for anyone to have been able to gather, tabulate and canvass the 15 million votes allegedly reported within the short period of time employed. Of course, they also contend that in any event, there was no proper submission because martial law per se creates constructive duress which deprives the voters of the complete freedom needed for the exercise of their right of choice and actually, there was neither time nor opportunity for real debate before they voted.

On the other hand, the position of the Solicitor General as counsel for the respondents is that the matter raised in the petitions is a political one which the courts are not supposed to inquire into, and, anyway, there has been a substantial compliance with Article XV of the 1935 Constitution, inasmuch as, disregarding unessential matters of form, the undeniable fact is that the voting in the referendum resulted in the approval by the people of the New Constitution.

I need not dwell at length on these variant positions of the parties. In my separate opinion in the Plebiscite Cases, I already made the observation that in view of the lack of solemnity and regularity in the voting as well as in the manner of reporting and canvassing conducted in connection with the referendum, I cannot say that Article XV of the Old Constitution has been complied with, albeit I held that nonetheless, the Constitution of 1973 is already in force. In order, however, to make myself clearer on some relevant points, I would like to add a few considerations to what I have already said in the former cases.

In my opinion in those cases, the most important point I took into account was that in the face of the Presidential certification through Proclamation 1102 itself that the New Constitution has been approved by a majority of the people and having in mind facts of general knowledge which I have judicial notice of, I am in no position to deny that the result of the referendum was as the President had stated. I can believe that the figures referred to in the proclamation may not accurate, but I cannot say in conscience that all of them are manufactured or prefabricated, simply because I saw with own eyes that people did actually gather and listen to discussions, if brief and inadequate for those who are abreast of current events and general occurrences, and that they did vote. I believe I can safely say that what I have seen have also been seen by many others throughout the country and unless it can be assumed, which honestly, I do not believe to be possible, that in fact there were actually no meetings held and no voting done in more places than those wherein there were such meetings and votings, I am not prepared to discredit entirely the declaration that there was voting and that the majority of the votes were in favor of the New Constitution. If in fact there were substantially less than 14 million votes of approval, the real figure, in my estimate, could still be significant enough and legally sufficient to serve as basis for a valid ratification.

It is contended, however, that the understanding was that the referendum among the Citizens Assemblies was to be in the nature merely of a loose consultation and not an outright submission for purposes of ratification. I can see that at the outset, when the first set of questions was released, such may have been the idea. It must not be lost sight of, however, that if the newspaper reports are to be believed, and I say this only because petitioners would consider the newspapers as the official gazettes of the administration, the last set of six questions were included precisely because the reaction to the idea of mere consultation was that the people wanted greater direct participation, thru the Citizens Assemblies, in decision-making regarding matters of vital national interest. Thus, looking at things more understandingly and realistically the two questions emphasized by counsel, namely, (1) Do yo approve of the New Constitution? and (2) Do you want plebiscite to be called to ratify the new Constitution? should be considered no longer as loose consultations but as direct inquiries about the desire of the voters regarding the matters mentioned. Accordingly, I take it that if the majority had expressed disapproval of the new Constitution, the logical consequence would have been the complete abandonment of the idea of holding any plebiscite at all. On the other hand, it is very plain to see that since the majority has already approved the new Constitution, a plebiscite would be superfluous. Clear as these rationalizations may be, it must have been thought that if the holding of a plebiscite was to be abandoned, there should be a direct and expressed desire of the people to such effect in order to forestall as much as possible any serious controversy regarding the non-holding of the plebiscite required by the letter of Section 16 of Article XVII, the effectivity clause, of the new Constitution. Oddly enough, the "comments" accompanying the questions do strongly suggest this view. And as it turned out, the majority found no necessity in holding a plebiscite.

In connection with the question, Do you approve of the New Constitution? capital is being made of the point that as so framed, the thrust of the said question does not seek an answer of fact but of opinion. It is argued that it would have been factual were it worded categorically thus: Do you approve the New Constitution? The contention would have been weighty were it not unrealistic. I remember distinctly that the observation regarding the construction of the subject question was not originally made by any of the talented counsels for petitioners. It came from Mr. Justice Fred Ruiz Castro whose mastery of the English language can rightly be the cause of envy of even professors of English. None of the other members of the Court, as far as I can recall, ever noticed how the said question is phrased, or if anyone of Us did, I am not aware that he gave it more than passing attention. What I mean is that if neither any of the distinguished and learned counsels nor any member of the Court understood the said question otherwise than calling for a factual answer instead of a mere opinion, how could anyone expect the millions of unlettered members of the Citizens Assemblies to have noticed the point brought out by Justice Castro? Truth to tell, I myself did not realize the difference until Justice Castro gave it emphasis. Besides, reading the question in the light of the accompanying "comment" corresponding to it in particular, I am certain that any one who answered the same understood it in no other sense than a direct inquiry as to whether or not, as a matter of fact, he approves the New Constitution, and naturally, affirmative answer must be taken as a categorical vote of approval thereof, considering, particularly, that according to the reported result of the referendum said answer was even coupled with the request that the President defer the convening of the Interim National Assembly.

It is also contended that because of this reference in answer to that question to the deferment of the convening of the interim assembly, the said answer is at best a conditional approval not proper nor acceptable for purposes of ratification plebiscite. The contention has no basis. In interest of accuracy, the additional answer proposed in pertinent "comment" reads as follows: "But we do not want Ad Interim Assembly to be convoked etc." On the assumption that the actual answer, as reported, was of similar tenor, it is not fair to ascribe to it the imposition of a condition. At most, the intention is no more than a suggestion or a wish.

As regards said "comments", it must be considered that a martial law was declared, the circumstances surrounding making of the Constitution acquired a different and more meaningful aspect, namely, the formation of a new society. From the point of view of the President and on the basis of intelligence reports available to him, the only way to meet situation created by the subversive elements was to introduce immediately effective reforms calculated to redeem the people from the depth of retrogression and stagnation caused by rampant graft and corruption in high places, influence peddling, oligarchic political practices, private armies, anarchy, deteriorating conditions of peace and order, the so inequalities widening the gap between the rich and the poor, and many other deplorable long standing maladies crying for early relief and solution. Definitely, as in the case of rebellious movement that threatened the Quirino Administration, the remedy was far from using bullets alone. If a constitution was to be approved as an effective instrument towards the eradication of such grave problems, it had to be approved without loss of time and sans the cumbersome processes that, from the realistic viewpoint, have in the past obstructed rather than hastened the progress of the people. Stated otherwise, in the context of actualities, the evident objective in having a new constitution is to establish new directions in the pursuit of the national aspirations and the carrying out of national policies. Only by bearing these considerations in mind can the "comments" already referred to be properly appreciated. To others said "comments" may appear as evidence of corruption of the will of those who attended the assemblies, but actually, they may also be viewed in the same light as the sample ballots commonly resorted to in the elections of officials, which no one can contend are per se means of coercion. Let us not forget that the times are abnormal, and prolonged dialogue and exchange of ideas are not generally possible, nor practical, considering the need for faster decisions and more resolute action. After all voting on a whole new constitution is different from voting on one, two or three specific proposed amendments, the former calls for nothing more than a collective view of all the provisions of the whole charter, for necessarily, one has to take the good together with the bad in it. It is rare for anyone to reject a constitution only because of a few specific objectionable features, no matter how substantial, considering the ever present possibility that after all it may be cured by subsequent amendment. Accordingly, there was need to indicate to the people the paths open to them in their quest for the betterment of their conditions, and as long as it is not shown that those who did not agree to the suggestions in the "comments" were actually compelled to vote against their will, I am not convinced that the existence of said "comments" should make any appreciable difference in the court's appraisal of the result of the referendum.

I must confess that the fact that the referendum was held during martial law detracts somehow from the value that the referendum would otherwise have had. As I intimated, however, in my former opinion, it is not fair to condemn and disregard the result of the referendum barely because of martial law per se. For one thing, many of the objectionable features of martial law have not actually materialized, if only because the implementation of martial law since its inception has been generally characterized by restraint and consideration, thanks to the expressed wishes of the President that the same be made "Philippine style", which means without the rigor that has attended it in other lands and other times. Moreover, although the restrictions on the freedom of speech, the press and movement during martial law do have their corresponding adverse effects on the area of information which should be open to a voter, in its real sense what "chills" his freedom of choice and mars his exercise of discretion is suspension of the privilege of the writ of habeas corpus. The reason is simply that a man may freely and correctly vote even if the needed information he possesses as to the candidates or issues being voted upon is more or less incomplete, but when he is subject to arrest and detention without investigation and without being informed of the cause thereof, that is something else which may actually cause him to cast a captive vote. Thus, it is the suspension of the writ of habeas corpus accompanying martial law that can cause possible restraint on the freedom of choice in an election held during martial law. It is a fact, however, borne by history and actual experience, that in the Philippines, the suspension of the privilege of the writ habeas corpus has never produced any chilling effect upon the voters, since it is known by all that only those who run afoul with the law, saving inconsequential instances, have any cause for apprehension in regard to the conduct by them of the normal activities of life. And so it is recorded that in the elections of 1951 and 1971, held while the privilege of writ of habeas corpus was under suspension, the Filipino voters gave the then opposition parties overwhelming if not sweeping victories, in defiance of the respective administrations that ordered the suspensions.

At this juncture, I think it is fit to make it clear that I am not trying to show that the result of the referendum may be considered as sufficient basis for declaring that the New Constitution has been ratified in accordance with the amending clause of the 1935 Constitution. I reiterate that in point of law, I find neither strict nor substantial compliance. The foregoing discussion is only to counter, if I may, certain impression regarding the general conditions obtaining during and in relation to the referendum which could have in one way or another affected the exercise of the freedom of choice and the use of discretion by the members of the Citizens Assemblies, to the end that as far as the same conditions may be relevant in my subsequent discussions of the acceptance by the people of the New Constitution, they may also be considered.

It is my sincere conviction that the Constitution of 1973 has been accepted or adopted by the people. And on this premise, my considered opinion is that the Court may no longer decide these cases on the basis of purely legal considerations. Factors which are non-legal but nevertheless ponderous and compelling cannot be ignored, for their relevancy is inherent in the issue itself to be resolved.

In my opinion in the Plebiscite Cases, I joined my colleagues in holding that the question of whether or not there was proper submission under Presidential Decree No. 73 is justiciable, and I still hold that the propriety of submission under any other law or in any other form is constitutionally a fit subject for inquiry by the courts. The ruling in the decided cases relied upon by petitioners are to this effect. In view, however, of the factual background of the cases at bar which include ratification itself, it is necessary for me to point out that when it comes to ratification, I am persuaded that there should be a boundary beyond which the competence of the courts no longer has any reason for being, because the other side is exclusively political territory reserved for their own dominion by the people.

The main basis of my opinion in the previous cases was acceptance by the people. Others may feel there is not enough indication of such acceptance in the record and in the circumstances the Court can take judicial notice of. For my part, I consider it unnecessary to be strictly judicial in inquiring into such fact. Being personally aware, as I have already stated, that the Citizens Assemblies did meet and vote, if irregularly and crudely, it is not for me to resort, for the purposes of these cases, to judicial tape and measure, to find out with absolute precision the veracity of the total number of votes actually cast. After all, the claims that upon a comparison of conflicting reports, cases of excess votes may be found, even if extrapolated will not, as far as I can figure out, suffice to overcome the outcome officially announced. Rather than try to form a conclusion out of the raw evidence before Us which the parties did not care to really complete, I feel safer by referring to the results announced in the proclamation itself. Giving substantial allowances for possible error and downright manipulation, it must not be overlooked that, after all, their having been accepted and adopted by the President, based on official reports submitted to him in due course of performance of duty of appropriate subordinate officials, elevated them to the category of an act of a coordinate department of the government which under the principle separation of powers is clothed with presumptive correctness or at least entitled to a high degree of acceptability, until overcome by better evidence, which in these cases does not exist. In any event, considering that due to the unorthodoxy of the procedure adopted and the difficulty of an accurate checking of all the figures, I am unable to conceive of any manageable means of acquiring information upon which to predicate a denial, I have no alternative but to rely on what has been officially declared. At this point, I would venture to express the feeling that if it were not generally conceded that there has been sufficient showing of the acceptance in question by this time, there would have been already demonstrative and significant indications of a rather widespread, if not organized resistance in one form or another. Much as they are to be given due recognition as magnificent manifestations of loyalty and devotion to principles, I cannot accord to the filing of these cases as indicative enough of the general attitude of the people.

It is true that in the opinion I had the privilege of penning the Court in Tolentino vs. Comelec, 41 SCRA 702, I made strong and unequivocal pronouncements to the effect that any amendment to the Constitution of 1935, to be valid, must appear to have been made in strict conformity with the requirements of Article XV thereof. What is more, that decision asserted judicial competence to inquire into the matter of compliance or non compliance as a justiciable matter. I still believe in the correctness of those views and I would even add that I sincerely feel it reflects the spirit of the said constitutional provision. Without trying to strain any point however, I, submit the following considerations in the context of the peculiar circumstances of the cases now at bar, which are entirely different from those in the backdrop of the Tolentino rulings I have referred to.

1. Consider that in the present case what is involved is not just an amendment of a particular provision of an existing Constitution; here, it is, as I have discussed earlier above, an entirely new Constitution that is being proposed. This important circumstance makes a great deal of difference.

No less than Counsel Tolentino for herein respondents Puyat and Roy, who was himself the petitioner in the case I have just referred to is, now inviting Our attention to the exact language of Article XV and suggesting that the said Article may be strictly applied to proposed amendments but may hardly govern the ratification of a new Constitution. It is particularly stressed that the Article specifically refers to nothing else but "amendments to this Constitution" which if ratified "shall be valid as part of this Constitution." Indeed, how can a whole new constitution be by any manner of reasoning an amendment to any other constitution and how can it, if ratified, form part of such other constitution? In fact, in the Tolentino case I already somehow hinted this point when I made reference in the resolution denying the motion for reconsideration to the fact that Article XV must be followed "as long as any amendment is formulated and submitted under the aegis of the present Charter." Said resolution even added. "(T)his is not to say that the people may not, in the exercise of their inherent revolutionary powers, amend the Constitution or promulgate an entirely new one otherwise."

It is not strange at all to think that the amending clause of a constitution should be confined in its application only to proposed changes in any part of the same constitution itself, for the very fact that a new constitution is being adopted implies a general intent to put aside the whole of the old one, and what would be really incongrous is the idea that in such an eventuality, the new Constitution would subject its going into effect to any provision of the constitution it is to supersede, to use the language precisely of Section 6, Article XVII, the effectivity clause, of the New Constitution. My understanding is that generally, constitutions are self-born, they very rarely, if at all, come into being, by virtue of any provision of another constitution.[3] This must be the reason why every constitution has its own effectivity clause, so that if, the Constitutional Convention had only anticipated the idea of the referendum and provided for such a method to be used in the ratification of the New Constitution, I would have had serious doubts as to whether Article XV could have had priority of application.

2. When an entirely new constitution is proposed to supersede the existing one, We cannot but take into consideration the forces and the circumstances dictating the replacement. From the very nature of things, the proposal to ordain a new constitution must be viewed as the most eloquent expression of a people's resolute determination to bring about a massive change of the existing order, a meaningful transformation of the old society and a responsive reformation of the contemporary institutions and principles. Accordingly, should any question arise as to its effectivity and there is some reasonable indication that the new charter has already received in one way or another the sanction of the people, I would hold that the better rule is for the courts to defer to the people's judgment, so long as they are convinced of the fact of their approval, regardless of the form by which it is expressed provided it be reasonably feasible and reliable. Otherwise stated, in such instances, the courts should not bother about inquiring into compliance with technical requisites, and as a matter of policy should consider the matter non-justiciable.

3. There is still another circumstance which I consider to be of great relevancy. I refer to the ostensible reaction of the component elements, both collective and individual, of the Congress of the Philippines. Neither the Senate nor the House of Representatives has been reported to have even made any appreciable effort or attempt to convene as they were supposed to do under the Constitution of 1935 on January 22, 1973 for the regular session. It must be assumed that being composed of experienced, knowledgeable and courageous members, it would not have been difficult for said parliamentary bodies to have conceived some ingenious way of giving evidence of their determined adherence to the Constitution under which they were elected. Frankly, much as I admire the efforts of the handful of senators who had their picture taken in front of the padlocked portals of the Senate chamber, I do not feel warranted to accord such act as enough token of resistance. As Counsel Tolentino has informed the court, there was nothing to stop the senators and the congressmen to meet in any other convenient place and somehow officially organize themselves in a way that can logically be considered as a session, even if nothing were done than to merely call the roll and disperse. Counsel Tolentino even pointed out that if there were not enough members to form a quorum, any smaller group could have ordered the arrest of the absent members. And with particular relevance to the present cases, it was not constitutionally indispensable for the presiding officers to issue any call to the members to convene, hence the present prayers for mandamus have no legal and factual bases. And to top it all, quite to the contrary, the records of the Commission on Elections show that at least 15 of 24 senators and over 95 out of less than 120 members of the House of Representatives, have officially and in writing exercised the option given to them to join the Interim National Assembly under the New Constitution, thereby manifesting their acceptance of the new charter.

Now, having these facts in mind, and it being obvious that of the three great departments of the government under the 1935 Constitution, two, the Executive and the Legislative, have already accepted the New Constitution and recognized its enforceability and enforcement, I cannot see how this Supreme Court can by judicial fiat hold back the political developments taking place and for the sake of being the guardian of the Constitution and the defender of its integrity and supremacy make its judicial power prevail against the decision of those who were duly chosen by the people to be their authorized spokesmen and representatives. It is not alone the physical futility of such a gesture that concerns me. More than that, there is the stark reality that the Senators and the Congressmen, no less than the President, have taken the same oath of loyalty to the Constitution that We, the Justices, have taken and they are, therefore, equally bound with Us to preserve and protect the Constitution. If as the representatives of the people, they have already opted to accept the New Constitution as the more effective instrument for fulfillment of the national destiny, I really wonder if there is even any idealistic worth in our desperately clinging by Ourselves alone to Our sworn duty vis-a-vis the 1935 Constitution. Conscious of the declared objectives of the new dispensation and cognizant of the decisive steps being with the least loss of time, towards their accomplishment, cannot but feel apprehensive that instead of serving the best interests of our people, which to me is in reality the real meaning of our oath of office, the Court might be standing in the way of the very thing our beloved country needs to retrieve its past glory and greatness. In other words, it is my conviction that what these cases demand most of all is not a decision demonstrative of our legal erudition and Solomonic wisdom but an all rounded judgment resulting from the consideration of all relevant circumstances, principally the political, or, in brief, a decision more political than legal, which a court can render only by deferring to the apparent judgment of the people and the announcement thereof by the political departments of the government and declaring the matter non-justiciable.

4. Viewed from the strictly legal angle and in the light of judicial methods of ascertainment, I cannot agree with the Solicitor General that in the legal sense, there has been at least substantial compliance with Article XV of the 1935 Constitution, but what I can see is that in a political sense, the answers to the referendum questions were not given by the people as legal conclusions. I take it that when they answered that by their signified approval of the New Constitution, they do not consider it necessary to hold a plebiscite, they could not have had in mind any intent to do what was constitutionally improper. Basically accustomed to proceed along constitutional channels, they must have acted in the honest conviction that what was being done was in conformity with prevailing constitutional standards. We are not to assume that the sovereign people were indulging in a futile exercise of their supreme political right to choose the fundamental charter by which their lives, their liberties and their fortunes shall be safeguarded. In other words, We must perforce infer that they meant their decision to count, and it behooves this Court to render judgment herein in that context. It is my considered opinion that viewed understandingly and realistically, there is more than sufficient ground to hold that, judged by such intent and, particularly, from the political standpoint, the ratification of the 1973 Constitution declared in Proclamation 1102 complies substantially with Article XV of the 1935 Charter, specially when it is considered that the most important element of the ratification therein contemplated is not in the word "election", which conceivably can be in many feasible and manageable forms but in the word "approved" which may be said to constitute the substantiality of the whole article, so long as such approval is reasonably ascertained. In the last analysis, therefore, it can be rightly said, even if only in a broad sense, that the ratification here in question was constitutionally justified and justifiable.

5. Finally, if any doubt should still linger as to the legitimacy of the New Constitution on legal grounds, the same should be dispelled by viewing the situation in the manner suggested by Counsel Tolentino and by the writer of this opinion in his separate opinion, oft-referred to above, in the Plebiscite Cases that is, as an extra constitutional exercise by the people, under the leadership of President Marcos, of their inalienable right to change their fundamental charter by any means they may deem appropriate, the moment they are convinced that the existing one is no longer responsive to their fundamental, political and social needs nor conducive to the timely attainment of their national destiny. This is not only the teaching of the American Declaration of Independence but is indeed, a truth that is self-evident. More, it should be regarded as implied in every constitution that regardless of the language of its amending clause, once the people have given their sanction to a new charter, the latter may be deemed as constitutionally permissible even from the point of view of the preceding constitution. Those who may feel restrained to consider this view out of respect to the import of Tolentino vs. Comelec, supra., would be well advised to bear in mind that the case was decided in the context of submission, not accomplished ratification.

The language of the disputed amending clause of the 1935 Constitution should not be deemed as the be all and end all the nation. More important than even the Constitution itself with all its excellent features, are the people living under it their happiness, their posterity and their national destiny. There is nothing that cannot be sacrificed in the pursuit of these objectives, which constitute the totality of the reasons for national existence. The sacred liberties and freedom enshrined in it and the commitment and consecration thereof to the forms of democracy we have hitherto observed are mere integral parts of this totality; they are less important by themselves.

What seems to me to be bothering many of our countrymen now is that by denying the present petitions, the Court would be deemed as sanctioning, not only the deviations from traditional democratic concepts and principles but also the qualified curtailment of individual liberties now being practiced, and this would amount, it is feared, to a repudiation of our oath to support and defend the Constitution of 1935. This is certainly something one must gravely ponder upon. When I consider, however, that the President, the Vice President, the members of both Houses of Congress, not to speak of all executive departments and bureaus under them as well as all the lower courts, including the Court of Appeals have already accepted the New Constitution as an instrument of a meaningful nationwide-all-level change in our government and society purported to make more realistic and feasible, rather than idealistic and cumbersomely deliberative, the attainment of our national aspirations, I am led to wonder whether or not we, as members of the Supreme Court are being true to our duty to our people by refusing to follow suit and accept the realities of the moment, despite our being convinced of the sincerity and laudableness of their objectives, only because we feel that by the people's own act of ratifying the Constitution of 1935, they have so encased themselves within its provisions and may, therefore, no longer take measures to redeem themselves from the situation brought about by the deficiencies of the old order, unless they act in strict conformity therewith. I cannot believe that any people can be so stifled and enchained. In any event, I consider it a God-given attribute of the people to disengage themselves, if necessary, from any covenant that would obstruct their taking what subsequently appears to them to be the better road to the promotion and protection of their welfare. And once they have made their decision in that respect, whether sophisticatedly or crudely, whether in legal form or otherwise, certainly, there can be no court or power on earth that can reverse them.

I would not be human if I should be insensitive to the passionate and eloquent appeals of Counsels Tañada and Salonga that these cases be decided on the basis of conscience. That is exactly what I am doing. But if counsel mean that only by granting their petitions can this Court be worthily the bulwark of the people's faith in the government, I cannot agree, albeit my admiration and respect are all theirs for their zeal and tenacity, their industry and wisdom, their patriotism and devotion to principle. Verily, they have brought out everything in the Filipino that these cases demand.

In times of national emergencies and crises, not arising from foreign invasion, we need not fear playing opposite roles, as long as we are all animated by sincere love of country and aim exclusively at the attainment of the national destiny. Our heroes of the past, Rizal, Bonifacio, Aguinaldo, Antonio Luna, Mabini and so also with our patriots of the recent generations, Quezon, Osmeña, Roxas, Laurel and Recto, to mention only some of them, had their differences of views and they did not hesitate to take diametrically opposing sides that even reached tragic proportions, but all of them are admired and venerated.

It is my faith that to act with absolute loyalty to our country and people is more important than loyalty to any particular precept or provision of the Constitution or to the Constitution itself. My oath to abide by the Constitution binds me to whatever course of action I feel sincerely is demanded by the welfare and best interests of the people.

In this momentous juncture of our history, what is imperative is national unity. May God grant that the controversies the events leading to these cases have entail will heal after the decision herein is promulgated, so that all us Filipinos may forever join hands in the pursuit of our national destiny.

IN VIEW OF ALL THE FOREGOING, I vote to dismiss these petitions for mandamus and prohibition without costs.

Assuming, without conceding, that Article XV of the 1935 Constitution prescribes a procedure for the ratification of constitutional amendments or of a new Constitution and that such procedure was no complied with, the validity of Presidential Proclamation No. 1102 is a political, not a justiciable, issue; for it is inseparably or inextricably link with and strikes at, because it is decisive of, the validity of ratification and adoption of, as well as acquiescence of people in, the 1973 Constitution and the legitimacy of the government organized and operating thereunder. And being political, it is beyond the ambit of judicial inquiry, tested by the definition of a political question enunciated in Tañada, et. al. vs. Cuenco, et al. (103 Phil. 1051), aside from the fact the this view will not do violence to rights vested under the new Constitution, to international commitments forged pursuant thereto and to decisions rendered by the judicial as well as quasi-judicial tribunals organized and functioning or whose jurisdiction has been altered by the 1973 Constitution and the government established thereunder, and will dissipate any confusion in the minds of the citizenry, who have been obeying the mandates of the new Constitution, as well as exercising the rights and performing the obligations defined by the new Constitution, and decrees and orders issued in implementation of the same and cooperating with the administration in the renovation of our social, economic and political system as re-structured by the 1973 Constitution and by the implementing decrees and orders (see Miller vs. Johnson, 18 SW 522, 522-526, 1892).

In 1957, Mr. Chief Justice Roberto Concepcion, then Associate Justice, in behalf of the Court, defined a political question as one which, under the Constitution, is "to be decided by the people in their sovereign capacity, or in regard to which full discretionary authority had been delegated to the Legislature or Executive branch of the government." (Tañada, et al. vs. Cuenco, et al., supra).

Article XV of the 1935 Constitution provides: "Such amendments shall be valid as part of this Constitution when approved by a majority of the votes cast at an election at which the amendments are submitted to the people for ratification." Under Article XV of the 1935 Constitution, the power to propose constitutional amendments is vested in Congress or in a constitutional convention; while the power to ratify or reject such proposed amendments or new Constitution is reserved by the sovereign people. The nullification of Proclamation No. 1102 would inevitably render inoperative the 1973 Constitution, which is in fact the express prayer of the petitioners in G. R. No. L-36164. Regardless of the modality of submission or ratification or adoption even if it deviates from or violates the procedure delineated therefore by the old Constitution once the new Constitution is ratified, adopted and/or acquiesced in by the people or ratified even by a body or agency not duly authorized therefor but is subsequently adopted or recognized by the people and by the other official organs and functionaries of the government established under such a new Constitution, this Court is precluded from inquiring into the validity of such ratification, adoption or acquiescence and of the consequent effectivity of the new Constitution. This is as it should be in a democracy, for the people are the repository of all sovereign powers as well as the source of all governmental authority (Pole vs. Gray, 104 SO 2nd 841 [1958]). This basic democratic concept is expressly restated in Section 1 of Article II of the Declaration of Principles of the 1935 and 1973 Constitutions, thus: "Sovereignty resides in the people and all government authority emanates from them."

The legality of the submission is no longer relevant; because the ratification, adoption and/or acquiescence by the people cures any infirmity in its submission or any other irregularities therein which are deemed mandatory before submission as they are considered merely directory after such ratification or adoption or acquiescence by the people. As Mr. Justice Brewer, then of the Kansas State Supreme Court and later Associate Justice of the Federal Supreme Court, stated in re Prohibitory Amendment Cases (24 Kansas 700 & 710 Reprint 499, 506): "The two important, vital elements of the Legislature and a majority of the popular vote. Beyond these, other provisions are mere machineries and forms. They may not be disregarded, because by them certainty as to the essentials is secured. But they are not themselves the essentials." (Cited in Larken vs. Gronna, 285 NW 59, 61-64, 1939).

This was the ruling by the American Supreme Court in the 1939 case of Coleman vs. Miller (307 U.S. 433, 83 L.ed. 1385), where Chief Justice Hughes, speaking for the majority, stated that:

This view was likewise emphasized by Mr. Justice Black in his concurring opinion, in which Mr. Justices Roberts, Frankfurter, and Douglas join, thus:

The ruling in the cases of Gonzales vs. Comelec, et al. (L-28224, Nov. 29, 1967, 21 SCRA 774) and Tolentino vs. Comelec, et al. (L-34150, Oct. 16, 1971, 41 SCRA 702) on which petitioners place great reliance that the courts may review the propriety of a submission of a proposed constitutional amendment before the ratification or adoption of such proposed amendment by the sovereign people, hardly applies to the cases at bar; because the issue involved in the aforesaid cases refers to only the propriety of the submission of a proposed constitutional amendment to the people for ratification, unlike the present petitions, which challenge inevitably the validity of the 1973 Constitution after its ratification or adoption thru acquiescence by the sovereign people. As heretofore stated, it is specious and pure sophistry to advance the reasoning that the present petitions pray only for the nullification of the 1973 Constitution and the government operating thereunder.

One more word about the Gonzales and Tolentino cases. Both primarily stressed on the impropriety of the submission of a proposed constitutional amendment. Courts do not deal with propriety or wisdom or absence of either of an official act or of a law. Judicial power concerns only with the legality or illegality, constitutionality or unconstitutionality of an act: it inquires into the existence of power or lack of it. Judicial wisdom is not to be pitted against the wisdom of the political department of the government.

The classic example of an illegal submission that did not impair the validity of the ratification or adoption of a new Constitution is the case of the Federal Constitution of the United States. It should be recalled that the thirteen (13) original states of the American Union which succeeded in liberating themselves from England after the revolution which began on April 19, 1775 with the skirmish at Lexington, Massachusetts and ended with the surrender of General Cornwallis at Yorktown, Virginia, on October 19, 1781(Encyclopedia Brit., Vol. I, 1933 Ed., p. 776) adopted their Articles of Confederation and Perpetual Union, that was written from 1776 to 1777 and ratified on March 1, 1781 (Encyclopedia Brit., Vol. II, 1966 Ed., p. 525). About six thereafter, the Congress of the Confederation passed a resolution on February 21, 1787 calling for a Federal Constitutional Convention "for the sole and express purpose of revising the articles of confederation." (Appendix I, Federalist, Modern Library ed., p. 577, emphasis supplied).

The Convention convened at Philadelphia on May 14, 1787. Article XIII of the Articles of Confederation and Perpetual Union stated specifically:

Thus, history Professor Edward Earle Mead of Princeton University recorded that:

The liberties of the American people were guaranteed by subsequent amendments to the Federal Constitution. The doctrine of judicial review has become part of American constitutional law only by virtue of a judicial pronouncement by Chief Justice Marshall in the case of Marbury vs. Madison (1803, 1 Cranch 137).

Until this date, no challenge has been launched against the validity of the ratification of the American Constitution, nor against the legitimacy of the government organized and functioning thereunder.

In the 1946 case of Wheeler vs. Board of Trustees (37 SE 2nd 322, 326-330), which enunciated the principle that the validity of a new or revised Constitution does not depend on the method of its submission or ratification by the people, but on the fact or fiat or approval or adoption or acquiescence by the people which fact of ratification or adoption or acquiescence is all that is essential, the Court cited precisely the case of the irregular revision and ratification by state conventions of the Federal Constitution, thus:

Against the decision in the Wheeler case, supra, confirming the validity of the ratification and adoption of the American Constitution, in spite of the fact that such ratification was in clear violation of the prescription on alteration and ratification of the Articles of Confederation and Perpetual Union, petitioners in G. R. No. L-36165 dismissed this most significant historical fact by calling the Federal Constitution of the United States as a revolutionary one, invoking the opinion expressed in Vol. 16, Corpus Juris Secundum, p. 27, that it was a revolutionary constitution because it did not obey the requirement that the Articles of Confederation and Perpetual Union can be amended only with the consent of all thirteen (13) state legislatures. This opinion does not cite any decided case, but merely refers to the footnotes on the brief historic account of the United States Constitution on p. 679 of Vol. 12, CJS. Petitioners, on p. 18 of their main Notes, refer US to pp. 270-316 of the Oxford History of the American People, 1965 Ed. by Samuel Eliot Morison, who discusses the Articles of Confederation and Perpetual Union in Chapter XVIII captioned "Revolutionary Constitution Making, 1775 1781" (pp. 270-281). In Chapter XX on "The Creative Period in Politics, 1785-1788," Professor Morison delineates the genesis of the Federal Constitution, but does not refer to it even implicitly as revolutionary constitution (pp. 297-316). However, the Federal Constitution may be considered revolutionary from the view point of McIver if the term revolution is understood in "its wider sense to embrace decisive changes in the character of government, even though they do not involve the violent overthrow of an established order." (R.M. MacIver, The Web of Government, 1965 ed., p. 203).

It is rather ridiculous to refer to the American Constitution as a revolutionary constitution. The Articles of Confederation and Perpetual Union that was in force from July 12, 1776 to 1788, forged as it was during the war of independence was a revolutionary constitution of the thirteen (13) states. In the existing Federal Constitution of the United States which was adopted seven (7) or nine (9) years after the thirteen (13) states won their independence and long after popular support for the government of the Confederation had stabilized was not a product of a revolution. The Federal Constitution was a "creation of the brain and purpose of man" in an era of peace. It can only be considered revolutionary in the sense that it is a radical departure from its predecessor, the Articles of Confederation and Perpetual Union.

It is equally absurd to affirm that the present Federal Constitution of the United States is not the successor to the Articles of Confederation and Perpetual Union. The fallacy of the statement is so obvious that no further refutation is needed.

As heretofore stated, the issue as to the validity of Proclamation No. 1102 strikes at the validity and enforceability of the 1973 Constitution and of the government established and operating thereunder. Petitioners pray for a declaration that the 1973 Constitution is inoperative (L-36164). If Proclamation No. 1102 is nullified, then there is no valid ratification of the 1973 Constitution and the inevitable conclusion is that the government organized and functioning thereunder is not a legitimate government.

That the issue of the legitimacy of a government is likewise political and not justiciable, had long been decided as early as the 1849 case of Luther vs. Borden (7 How. 1, 12 L.ed., 581), affirmed in the 1900 case of Taylor vs. Beckham (178 U.S. 548, 44 L.ed. 1187) and re-enunciated in 1912 in the case of Pacific States Telephone and Telegraph Company vs. Oregon (223 U.S. 118, 133-151, 56 L.ed. 377-386). Because it reaffirmed the pronouncements in both Borden and Beckham cases, it is sufficient for us to quote the decision in Pacific States Telephone and Telegraph Co., supra, penned by Mr. Chief Justice White, who re-stated:

Even a constitutional amendment that is only promulgated by the Constitutional Convention without authority therefor and without submitting the same to the people for ratification, becomes valid, when recognized, accepted and acted upon the by Chief of State and other government functionaries, as well as by the people. In the 1903 case of Taylor vs. Commonwealth (44 SE 754-755), the Court ruled:

The sole ground urged in support of the contention that Constitution proclaimed in 1902 is invalid is that it was ordained and promulgated by the convention without being submitted for ratification or rejection by the people of the commonwealth.

The Constitution of 1902 was ordained and proclaimed by convention duly called by direct vote of the people of the state to revise and amend the Constitution of 1869. The result of the work that the convention has been recognized, accepted, and acted upon as the only valid Constitution of the state by the Governor in swearing fidelity to it and proclaiming it, as directed thereby; by the Legislature in its formal official act adopting a joint resolution, July 15, 1902, recognizing the Constitution ordained by the convention which assembled in the city of Richmond on the 12th day of June 1901, as the Constitution of Virginia; by the individual oaths of members to support it, and by its having been engaged for nearly a year in legislating under it and putting its provisions into operation but the judiciary in taking the oath prescribed thereby to support and by enforcing its provisions; and by the people in their primary capacity by peacefully accepting it and acquiescing in it, registering as voters under it to the extent of thousands through the state, and by voting, under its provisions, at a general election for their representatives in the Congress of the United States. (p. 755).

It has likewise been held that it is not necessary that voters ratifying the new Constitution are registered in the book of voters; it is enough that they are electors voting on the new Constitution. (Bott vs. Wurts, 40 A 740 [1899]; 45 LRA 251, emphasis supplied).

In the 1956 case of Thomson vs. Peoples State Bank (75 NW 2nd 370, 375), the Supreme Court of Wisconsin ruled that "irregularity in the procedure for the submission of the proposed constitutional amendment will not defeat the ratification by the people."

Again, in the 1958 case of Swaim vs. Tuscaloosa County (103 SO 2nd 769), the Alabama Supreme Court pronounced that "the irregularity in failing to publish the proposed constitutional amendment once in each of the 4 calendar weeks next preceding the calendar week in which the election was held or once in each of the 7-day periods immediately preceding the day of the election as required by the Constitution, did not invalidate the amendment which was ratified by the people."

The same principle was reiterated in 1961 by the Mississippi Supreme Court in Barnes, et al. v. Ladner (131) SO 2nd 45 462), where they admitted irregularities or illegalities committed in the procedure for submission of the proposed constitutional amendment to the people for ratification consisted of: "(a) the alleged failure of the county election commissioners of the several counties to provide a sufficient number of ballot boxes 'secured by good and substantial locks,' as provided by Section 3249, Code of 1942, Rec., to be used in the holding of the special election on the constitutional amendment, and (b) the alleged failure of the State Election Commissioners to comply with the requirements of Code Sections 3204 and 3205 in the appointment of election commissioners in each of the 82 counties. The irregularities complained of, even if proved, were not such irregularities would have invalidated the election." (Emphasis supplied; see also Sylvester vs. Tindall, 8 SO 2nd 892; 154 Fla. 663).

Even prior to the election in November, 1970 of delegates of the Constitutional Convention and during the deliberations of the Constitutional Convention from June 1, 1971 until martial law was proclaimed on Sept. 21, 1972, the salient reforms contained in the 1973 Constitution which have long been desired by the people, had been thoroughly discussed in the various committees of the Constitutional Convention, on the floor of the Convention itself, in civic forums and in all the media of information. Many of the decrees promulgated by the Chief Executive from Sept. 22, 1972 to Jan. 17, 1973 implement some of the reforms and had been ratified in Sec. 3(2) of Article XVII of the 1973 Constitution.

Petitioners cannot safely state that during martial law the majority of the people cannot freely vote for these reforms and are not complying with the implementing decrees promulgated by the President.

Free election is not inevitably incompatible with martial law. We had free elections in 1951 and 1971 when the opposition won six out of eight senatorial seats despite the suspension of the privileges of the writ of habeas corpus (see Lansang vs. Garcia, et al., Dec. 14, 1971, 42 SCRA 448), which suspension implies constraint on individual freedom as the proclamation of martial law. In both situations, there is no total blackout of human rights and civil liberties.

All the local governments, dominated either by Nacionalistas or Liberals, as well as officials of the Legislative and Executive branches of the government elected and/or appointed under the 1935 Constitution have either recognized or are now functioning under the 1973 Constitution, aside from the fact of its ratification by the sovereign people through the Citizens Assemblies. Ninety-five (95) of a total of one hundred ten (110) members of the House of Representatives including the Speaker and the Speaker Pro Tempore as well as about eleven (11) Congressmen who belong to the Liberal Party and fifteen (15) of a total of twenty-four (24) senators including Liberal senators Edgar U. Ilarde and John Osmeña opted to serve in the Interim Assembly, according to the certification of the Commission on Elections dated February 19, 1973 (Annex Rejoinder-3 to Consolidated Rejoinder of petitioners in L-36165). Only the five (5) petitioners in L-36165 close their eyes to a fait accompli. All the other functionaries recognize the new government and are performing their duties and exercising their powers under the 1973 Constitution, including the lower courts. The civil courts, military tribunals and quasi-judicial bodies created by presidential decrees have decided some criminal, civil and administrative cases pursuant to such decrees. The foreign ambassadors who were accredited to the Republic of the Philippines before martial law continue to serve as such in our country; while two new ambassadors have been accepted by the Philippines after the ratification of the 1973 Constitution on January 17, 1973. Copies of the 1973 Constitution had been furnished the United Nations Organization and practically all the other countries with which the Philippines has diplomatic relations. No adverse reaction from the United Nations or from the foreign states has been manifested. On the contrary, our permanent delegate to the United Nations Organization and our diplomatic representatives abroad appointed before martial law continue to remain in their posts and are performing their functions as such under the 1973 Constitution.

Even the Commission on Elections is now implementing the provisions of the 1973 Constitution by requiring all election registrars to register 18-year olds and above whether literates or not, who are qualified electors under the 1973 Constitution (see pars. 1-A(c), (d), & (e) of Annex A to Notes of respondents Puyat and Roy in L-36165).

In brief, it cannot be said that the people are ignoring the 1973 Constitution and the government which is enforcing the same for over 10 weeks now With the petitioners herein, secessionists, rebels and subversives as the only possible exceptions, the rest of the citizenry are complying with decrees, orders and circulars issued by the incumbent President implementing the 1973 Constitution.

Of happy relevance on this point is the holding in Miller vs. Johnson 18 SW 522:

If this Court inquires into the validity of Proclamation No. 1102 and consequently of the adoption of the 1973 Constitution it would be exercising a veto power on the act of the sovereign people, of whom this Court is merely an agent, which to say the least, would be anomalous. This Court cannot dictate to our principal, the sovereign people, as to how the approval of the new Constitution should be manifested or expressed. The sovereign people have spoken and we must abide by their decision, regardless of our notion as to what is the proper method of giving assent to the new Charter. In this respect, WE cannot presume to know better than the incumbent Chief Executive, who, unlike the members of this Court, only last January 8, 1973, We affirmed in Osmeña vs. Marcos (Pres. Election Contest No. 3, Jan. 8, 1973), was re-elected by the vote of over 5 million electors in 1969 for another term of four years until noon of December 30, 1973 under the 1935 Constitution. This Court, not having a similar mandate by direct fiat from the sovereign people, to execute the law and administer the affairs of government, must restrain its enthusiasm to sally forth into the domain of political action expressly and exclusively reserved by the sovereign people themselves.

The people in Article XV of the 1935 Constitution did not intend to tie their hands to a specific procedure for popular ratification of their organic law. That would be incompatible with their sovereign character of which We are reminded by Section 1, of Article II of both the 1935 and the 1973 Constitutions.

The opinion of Judge Thomas McIntire Cooley that the sovereign people cannot violate the procedure for ratification which they themselves define in their Constitution, cannot apply to a unitary state like the Republic of the Philippines. His opinion expressed in 1868 may apply to a Federal State like the United States, in order to secure and preserve the existence of the Federal Republic of the United States against any radical innovation initiated by the citizens of the fifty (50) different states of the American Union, which states may be jealous of the powers of the Federal government presently granted by the American Constitution. This dangerous possibility does not obtain in the case of our Republic.

Then again, Judge Cooley advanced the aforesaid opinion in 1868 when he wrote his opus "Constitutional Limitations."[*] (Vol. 6, Encyclopedia Brit., 1969 ed. pp. 445 446). It is possible that, were he live today, in a milieu vastly different from 1868 to 1898, he might have altered his views on the matter.

Even if conclusiveness is to be denied to the truth of the declaration by the President in Proclamation No. 1102 that the people through their Citizens' Assemblies had overwhelmingly approved the new Constitution due regard to a separate, coordinate and co-equal branch of the government demands adherence to the presumption of correctness of the President's declaration. Such presumption is accorded under the law and jurisprudence to officials in the lower levels of the Executive branch, there is no over-riding reason to deny the same to the Chief of State as head of the Executive Branch. WE cannot reverse the rule on presumptions, without being presumptuous, in the face of the certifications by the Office the Secretary of the Department of Local Government and Community Development. (Annexes 1, to 1-E, Annexes 2 to 2-O to the compliance with manifestation filed by the Solicitor General on behalf of the respondents public officers dated March 7, 1973). There is nothing in the records that contradicts, much less overthrow the results of the referendum as certified. Much less are We justified in reversing the burden of proof by shifting it from the petitioners to the respondents. Under the rules on pleadings, the petitioners have the duty to demonstrate by clear and convincing evidence their claim that the people did not ratify through the Citizens' Assemblies nor adopt by acquiescence the 1973 Constitution. And have failed to do so.

No member of this Tribunal is justified in resolving the issues posed by the cases at bar on the basis of reports relayed to him from private sources which could be biased and hearsay, aside from the fact that such reports are not contained in the record. Proclamation No. 1102 is not just an ordinary act of the Chief Executive. It is a well-nigh solemn declaration which announces the highest act of the sovereign people their imprimatur to the basic Charter that shall govern their lives hereafter may be for decades, if not for generations.

Petitioners decry that even 15-year olds, ex convicts and illiterates were allowed to vote in the Citizens' Assemblies, despite their admission that the term "Filipino people" in the preamble as well as "people" in Sections 1 and 5 of Article II of the 1935 Constitution and in Section 1(3) of Article III of the Bill of Rights includes all Filipino citizens of all ages, of both sexes, whether literate or illiterate, whether peaceful citizens, rebels, secessionists, convicts or ex-convicts. Without admitting that ex-convicts voted in the referendum, about which no proof was even offered, these sectors of our citizenry, whom petitioners seem to regard with contempt or decision and whom petitioners would deny their sovereign right to pass upon the basic Charter that shall govern their lives and the lives of their progenies, are entitled as much as the educated, the law abiding, and those who are 21 years of age or above to express their conformity or non conformity to the proposed Constitution, because their stake under the new Charter is not any less than the stake of the more fortunate among us. As a matter of fact, these citizens, whose juridical personality or capacity to act is limited by age, civil interdiction or ignorance deserve more solicitude from the State than the rest of the citizenry. In the ultimate analysis, the inclusion of those from 15 years up to below 21 years old, the ex-convicts and the ignorant, is more democratic as it broadens the base of democracy and therefore more faithful to the express affirmation in Section 1 of Article II of the Declaration of Principles that "sovereignty resides in the people and all government authority emanates from them."

Moreover, ex-convicts granted absolute pardon are qualified to vote. Not all ex-convicts are banned from voting. Only those who had been sentenced to at least one year imprisonment are disenfranchised but they recover their right of suffrage upon expiration of ten years after service of sentence (Sec. 102, 1971 Rev. Elec. Code). Furthermore, ex-convicts and imbeciles constitute a very negligible number in any locality or barrio, including the localities of petitioners.

Included likewise in the delegated authority of the President, is the prerogative to proclaim the results of the plebiscite or the voting the Citizens' Assemblies. Petitioners deny the accuracy or correctness of Proclamation No. 1102 that the 1973 Constitution was ratified by the overwhelming vote of close to 15 million citizens because there was no official certification to the results of the same from the Department of Local Governments. But there was such certification as per Annex 1 to 1-A to the Notes submitted by the Solicitor General counsel for respondents public officers. This should suffice to dispose of this point. Even in the absence of such certification, in much the same way that in passing law, Congress or the legislative body is presumed to be in possession of the facts upon which such laws are predicated (Justice Fernando, The Power of Judicial Review, 1967 Ed., pp. 112-11 citing Lorenzo vs. Dir., etc., [1927] 50 Phil. 595 and O'Gonmore, et al: vs. Hartford, etc., [1931] 282 U.S. 251), it should likewise be presumed that the President was in possession of the fact upon which Proclamation No. 1102 was based. This presumption is further strengthened by the fact that the Department of Local Governments, the Department National Defense and the Philippine Constabulary as well the Bureau of Posts are all under the President, which offices as his alter ego, are presumptively acting for and in behalf of the President and their acts are valid until disapproved or reprobated by the President (Planas vs. Gil, 67 Phil. 62; Villen vs. Secretary of Interior, 67 Phil. 451). To deny the truth or the proclamation of the President as to the overwhelming majority vote in the Citizens' Assemblies in favor of the new Constitution, is to charge the President with falsification, which is a most grievous accusation. Under the, rules of pleadings and evidence, the petitioners have the burden of proof by preponderance of evidence in civil cases and by proof beyond reasonable doubt in criminal prosecutions, where the accused is always presumed to be innocent. Must this constitutional right be reversed simply because the petitioner all assert the contrary? Is the rule of law they pretend invoke only valid as long as it favors them?

The presumption of regularity in the performance of official functions is accorded by the law and jurisprudence to acts of public officers whose category in the official hierarchy is very much lower than that of the Chief of State. What reason is there to withhold such a presumption in favor of the President? Does the fact that the President belong to the party in power and that four (4) of the five (5) senators who are petitioners in L-36165 belong to the opposition party, justify a discrimination against the President in matters of this nature? Unsupported as their word is by any credible and competent evidence under the rules of evidence, must the word of the petitioners prevail over that of the Chief Executive, because they happen to be former senators and delegates to the Constitutional Convention? More than any of the petitioners herein in all these cases, the incumbent President realizes that he risks the wrath of his people being visited upon him and the adverse or hostile verdict of history; because of the restrictions on the civil liberties of his people, inevitable concomitants of martial law, which necessarily entail some degree of sacrifice on the part of the citizenry. Until the contrary is established or demonstrated, herein petitioners should grant that the Chief Executive is motivated by what is good for the security and stability of the country, for the progress and happiness of the people. All the petitioners herein cannot stand on the proposition that the rights under the 1935 Constitution are absolute and invulnerable to limitations that may be needed for the purpose of bringing about the reforms for which the petitioners pretend to be clamoring for and in behalf of the people. The five (5) petitioners in L-36165 and four (4) of the seven (7) petitioners in L-36164 were all participants in the political drama of this country since 1946. They are witness to the frustrations of well-meaning Presidents who wanted to effect the reforms, especially for the benefit of the landless and the laboring class how politics and political bargaining had stymied the effectuation of such reforms thru legislation. The eight (8) petitioners in L-36164 and L-36165 may not have participated in the systematic blocking of the desired reforms in Congress or outside of it; but the question may be asked as to what exactly they did to support such reforms. For the last seven (7) decades since the turn of the century, for the last thirty-five (35) years since the establishment of the Commonwealth government in 1935 and for the last twenty seven (27) years since the inauguration of the Republic on July 4, 1946, no tangible substantial reform had been effected, funded and seriously implemented, despite the violent uprisings in the thirties, and from 1946 to 1952, and the violent demonstrations of recent memory. Congress and the oligarchs acted like ostriches, "burying their heads in timeless sand. "Now the hopes for the long-awaited reforms to be within a year or to are brighter. It would seem therefore to the duty of everyone including herein petitioners to give the present leadership the opportunity to institute and carry out the needed reforms as provided for in the new or 1973 Constitution and thru the means prescribed in that same Constitution.

As stated in Wheeler vs. Board of Trustees, "a court is never justified in placing by implication a limitation upon the sovereign."

This Court in the Gonzales and Tolentino cases transcended its proper sphere and encroached upon the province exclusively reserved to and by the sovereign people. This Court did not heed to the principle that the courts are not the fountain of all remedies for all wrongs. We cannot presume that We alone can speak with wisdom as against the judgment of the people on the basic instrument which affects their very lives. We cannot determine what is good for the people or ought to be their fundamental law. We can only exercise the power delegated to Us by the sovereign people, to apply and interpret the Constitution and the laws for the benefit of the people, not against them nor to prejudice them. We cannot perform an act inimical to the interest of Our principal, who at any time may directly exercise their sovereign power ratifying a new Constitution in the manner convenient to them.

It is pertinent to ask whether the present Supreme Court can function under the 1935 Constitution without being a part of the government established pursuant thereto. Unlike in the Borden case, supra, where there was at least another government claiming to be the legitimate organ of the state of Rhode Island (although only on paper as it had no established organ except Dorr who represented himself to be its head; in the cases at bar there is no other government distinct from and maintaining a position against the existing government headed by the incumbent Chief Executive. (See Taylor vs. Commonwealth, supra). There is not even a rebel government duly organized as such even only for domestic purposes, let alone a rebel government engaged in international negotiations. As heretofore stated, both the executive branch and the legislative branch established under the 1935 Constitution had been supplanted by the government functioning under the 1973 Constitution as of January 17, 1973. The vice president elected under the 1935 Constitution does not asset any claim to the leadership of the Republic of the Philippines. Can this Supreme Court legally exist without being part of any government?

Brilliant counsel for petitioners in L-36165 has been quite extravagant in his appraisal of Chief Justice Roger Brooke Taney whom he calls the "hero of the American Bar," because during the American civil war, he apparently had the courage to nullify the proclamation of President Lincoln suspending the privileges of the writ of habeas corpus in Ex parte Merryman (Federal Case No. 9487 [1861]). But who exactly was Chief Justice Roger Brooke Taney? The Editorial Board of Vol. 21 of the Encyclopedia Brit., 1966 ed. (pp. 778-779, 1969 ed., pp. 654-657), briefly recounts that he was born in 1777 in Calvert County, Maryland, of parents who were landed aristocrats as well as slave owners. Inheriting the traditional conservatism of his parents who belonged to the landed aristocracy, Taney became a lawyer in 1799, practiced law and was later appointed Attorney General of Maryland. He also was a member of the Maryland state legislature for several terms. He was a leader of the Federalist Party, which disintegrated after the war of 1812, compelling him to join the Democratic Party of Andrew Jackson, also a slave owner and landed aristocrat, who later appointed him first as Attorney General of the United States, then Secretary of the Treasury and in 1836 Chief Justice of the United States Supreme Court to succeed Chief Justice John Marshall, in which position he continued for 28 years until he died on October 21, 1864. His death "went largely unnoticed and unregretted." Because he himself was a slave owner and a landed aristocrat, Chief Justice Taney sympathized with the Southern States and, even while Chief Justice, hoped that the Southern States would be allowed to secede peacefully from the Union. That he had no sympathy for the Negroes was revealed by his decision in Dred Scott vs. Sandford (19 How. 398 [1857]) where he pronounced that the American Negro is not entitled to the rights of an American citizen and that his status as a slave is determined by his returning to a slave state. One can therefore discern his hostility towards President Lincoln when he decided Ex parte Merryman, which animosity to say the least does no befit a judicial mind. Such a man could hardly be spoken of as a hero of the American Bar, least of all of the American nation. The choice of heroes should not be expressed indiscriminately just to embellish one's rhetoric.

Distinguished counsel in L-36165 appears to have committed another historical error, which may be due to his rhetorical in the Encyclopedia Britannica (Vol. 9, 1969 ed., pp. 508-509) to this effect. On the contrary, Encyclopedia Britannica (Vol. 17 Encyclopedia Brit., 1966 & 1969 eds., 732-733), refers to Marshal Henri Philippe Petain as the genuine hero or "Savior of Verdun"; because he held Verdun against the 1916 offensive of the German army at the cost of 350,000 of his French soldiers, who were then demoralized and plotting mutiny. Certainly, the surviving members of the family of Marshal Petain would not relish the error. And neither would the members of the clan of Marshal Foch acknowledge the undeserved accolade, although Marshal Foch has a distinct place in history on his own merits. The foregoing clarification is offered in the interest of true scholarship and historical accuracy, so that the historians, researchers and students may not be led astray or be confused by esteemed counsel's eloquence and mastery of the spoken and written word as well as by his eminence as law professor, author of law books, political leader, and member of the newly integrated Philippine Bar.

It is quite intriguing why the eminent counsel and co-petitioner in L-36164 did not address likewise his challenge to the five (5) senators who are petitioners in L-36165 to also act as "heroes and idealists," to defy the President by holding sessions by themselves alone in a hotel or in their houses if they can muster a quorum or by causing the arrest of other senators to secure a quorum and thereafter remove respondents Puyat and Roy (Avelino, et al. vs. Cuenco, et al. [1949] 83 Phil. 17), if they believe most vehemently in the justice and correctness of their position that the 1973 Constitution has not been validly ratified, adopted or acquiesced in by the people since January 18, 1973 until the present. The proclaimed conviction of petitioners in L-36165 on this issue would have a ring of credibility, if they proceeded first to hold a rump session outside the legislative building; because it is not unreasonable to demand or to exact that he who exhorts others to be brave must first demonstrate his own courage. Surely, they will not affirm that the mere filing of their petition in L-36165 already made them "heroes and idealists." The challenge likewise seems to insinuate that the members of this Court who disagree with petitioners' views are materialistic cowards or mercenary fence-sitters. The Court need not be reminded of its solemn duty and how to perform it. We refuse to believe that petitioners and their learned as well as illustrious counsels, scholars and liberal thinkers that they are, do not recognize the sincerity of those who entertain opinions that clash with their own. Such an attitude does not sit well with the dictum that "We can differ without being difficult; we can disagree without being disagreeable," which distinguished counsel in L-36165 is wont to quote.

We reserve the right to prepare an extensive discussion of the other points raised by petitioners which We do not find now necessary to deal with in view of Our opinion on the main issue.

IN VIEW OF THE FOREGOING, ALL THE PETITIONS IN THESE FIVE CASES SHOULD BE DISMISSED.

Pursuant to Our reservation, We now discuss the other issues raised by the petitioners.

As intimated in the aforecited cases, even the courts, which affirm the proposition that the question as to whether a constitutional amendment or the revised or new Constitution has been validly submitted to the people for ratification in accordance with the procedure prescribed by the existing Constitution, is a justiciable question, accord all presumption of validity to the constitutional amendment or the revised or new Constitution after the government officials or the people have adopted or ratified or acquiesced in the new Constitution or amendment, although there was an illegal or irregular or no submission at all to the people. (Collier vs. Gray, 4th Dec. Dig. 935 [1934], Hammond vs. Clark, 71 SE 482-483; People vs. Sours, 31 Colo. 369, 74 Pac. 167, 102 Am. St. Rep. 34; Thompson vs. Winneth, 78 Neb. 379, 110 NW 1113, 10 L.R.A. [N.S.] 149; State vs. Laylin, 69 Ohio St. Rep. 1, 68 NE 574; Weston vs. Ryan, 70 Neb. 211, 97 NW 347; Combs vs. State, 81 Ga. 780, 8 SE 318; Woodward vs. State, 103 Ga. 496, 30 SE 522; Corre vs. Cooney, 70 Mont. 355, 225 P 1007, 1009). As late as 1971, the courts stressed that the constitutional amendment or the new Constitution should not be condemned "unless our judgment its nullity is manifest beyond reasonable doubt" (1971 case of Moore vs. Shanahan, 486 Pac. 2d 506, 207 Kan. 1, 645; and the 1956 case of Tipton vs. Smith, et al., supra).

Mr. Justice Enrique M. Fernando, speaking for the Court, pronounced that the presumption of constitutionality must persist in the absence of factual foundation of record to overthrow such presumption (Ermita-Malate Hotel, etc. vs. City Mayor, L-24698, July 31, 1967, 20 SCRA 849).

III. CONSTITUTIONAL CONVENTION - CO-EQUAL WITH AND INDEPENDENT OF CONGRESS, EXECUTIVE AND JUDICIARY.

The Constitutional Convention is co-ordinate and co-equal with, as well as independent of, the three grand departments of the Government, namely, the legislative, the executive and the judicial. As a fourth separate and distinct branch, to emphasize its independence, the Convention cannot be dictated to by either of the other three departments as to the content as well as the form of the Charter that it proposes. It enjoys the same immunity from interference or supervision by any of the aforesaid branches of the Government in its proceedings, including the printing of its own journals (Tañada and Fernando, Constitution of the Philippines, 1952 ed., Vol. I, pp. 8 9; Malcolm and Laurel, Phil. Const. Law, p. 22; Frantz vs. Autry, 91 Pac. 193). Implicit in that independence, for the purpose of maintaining the same unimpaired and in order that its work will not be frustrated, the Convention has the power to fix the date for the plebiscite and to provide funds therefor. To deny the Convention such prerogative, would leave it at the tender mercy of both legislative and executive branches of the Government. An unsympathetic Congress would not be disposed to submit the proposed Constitution drafted by the Constitutional Convention to the people for ratification, much less appropriate the necessary funds therefor. That could have been the fate of the 1973 Constitution, because the same abolished the Senate by creating a unicameral National Assembly to be presided by a Prime Minister who wields both legislative and executive powers and is the actual Chief Executive, for the President contemplated in the new Constitution exercises primarily ceremonial prerogatives. The new Constitution likewise shortened abruptly the terms of the members of the present Congress (whose terms end on December 31, 1973, 1975 and 1977) which provides that the new Constitution shall take effect immediately upon its ratification (Sec. 16, Article XVII, 1973 Constitution). The fact that Section 2 of the same Article XVIII secures to the members of Congress membership in the interim National Assembly as long as they opt to serve therein within thirty (30) days after the ratification of the proposed Constitution, affords them little comfort; because the convening of the interim National Assembly depends upon the incumbent President (under Sec. 3[1], Art. XVII, 1973 Constitution). Under the foregoing circumstances, the members of Congress, who were elected under the 1935 Constitution, would not be disposed to call a plebiscite and appropriate funds therefor to enable the people to pass upon the 1973 Constitution, ratification of which means their elimination from the political scene. They will not provide the means for their own liquidation.

Because the Constitutional Convention, by necessary implication as it is indispensable to its independence and effectiveness, possesses the power to call a plebiscite and to appropriate funds for the purpose, it inescapably must have the power to delegate the same to the President, who, in estimation of the Convention can better determine appropriate time for such a referendum as well as the amount necessary to effect the same; for which reason the Convention thru Resolution No. 29 approved on November 22, 1972, which superseded Resolution No. 5843 adopted on November 16, 1972, proposed to the President "that a decree be issued calling a plebiscite for the ratification of the proposed new Constitution such appropriate date as he shall determine and providing for the necessary funds therefor, ...," after stating in "whereas" clauses that the 1971 Constitutional Convention expected to complete its work by the end of November, 1972 that the urgency of instituting reforms rendered imperative the early approval of the new Constitution, and that the national and local leaders desire that there be continuity in the immediate transition from the old to the new Constitution.

If Congress can legally delegate to the Chief Executive or his subaltern the power to promulgate subordinate rules and regulations to implement the law, this authority to delegate implementing rules should not be denied to the Constitutional Convention, a co-equal body.

Apart from the delegation to the Chief Executive of the power to call a plebiscite and to appropriate funds therefor by the Constitutional Convention thru its Resolution No. 29, the organization of the Citizens' Assemblies for consultation on national issues, is comprehended within the ordinance-making power of the President under Section 63 of the Revised Administrative Code, which expressly confers on the Chief Executive the power to promulgate administrative acts and commands touching on the organization or mode of operation of the government or re-arranging or re-adjusting any district, division or part of the Philippines "or disposing of issues of general concern." (Emphasis supplied). Hence, as consultative bodies representing the localities including the barrios, their creation by the President thru Presidential Decree No. 86 of December 31, 1972, cannot be successfully challenged.

The employment by the President of these Citizens' Assemblies for consultation on the 1973 Constitution or on whether there was further need of a plebiscite thereon, both issues of national concern is still within the delegated authority reposed in him by the Constitutional Convention as aforesaid.

It should be noted that Resolution No. 29, which superseded Resolution No. 5843, does not prescribe that the plebiscite must be conducted by the Commission on Elections in accordance with the provisions of the 1971 Revised Election Code. If that were the intention of the Constitutional Convention in making the delegation, it could have easily included the necessary phrase for the purpose, some such phrase like "to call a plebiscite to be supervised by the Commission on Elections in accordance with the provisions of the 1971 Revised Election Code (or with existing laws)." That the Constitutional Convention omitted such phrase, can only mean that it left to the President the determination of the manner by which the plebiscite should be conducted, who shall supervise the plebiscite, and who can participate in the plebiscite. The fact that said Resolution No. 29 expressly states "that copies of this resolution as approved in plenary session be transmitted to the President of the Philippines and the Commission on Elections for implementation," did not in effect designate the Commission on Elections as supervisor of the plebiscite. The copies of said resolution that were transmitted to the Commission on Elections at best serve merely to notify the Commission on Elections about said resolution, but not to direct said body to supervise the plebiscite. The calling as well as conduct of the plebiscite was left to the discretion of the President, who, because he is in possession of all the facts funnelled to him by his intelligence services, was in the superior position to decide when the plebiscite shall be held, how it shall be conducted and who shall oversee it.

It should be noted that in approving said Resolution No. 29, the Constitutional Convention itself recognized the validity of, or validated Presidential Proclamation No. 1081 placing the entire country under martial law by resolving to "propose to President Ferdinand E. Marcos that a decree be issued calling a plebiscite ... ." The use of the term "decree" is significant for the basic orders regulating the conduct of all inhabitants are issued in that form and nomenclature by the President as the Commander in Chief and enforcer of martial law. Consequently, the issuance by the President of Presidential Decree No. 73 on December 1, 1972 setting the plebiscite on January 15, 1973 and appropriating funds therefor pursuant to said Resolution No. 29, is a valid exercise of such delegated authority.

Such delegation, unlike the delegation by Congress of the rule-making power to the Chief Executive or to any of his subalterns, does not need sufficient standards to circumscribe the exercise of the power delegated, and is beyond the competence of this Court to nullify. But even if adequate criteria should be required, the same are contained in the "Whereas" clauses of the Constitutional Convention Resolution No. 29, thus:

IV. VAGUENESS OR AMBIGUITY DOES NOT INVALIDATE THE 1973 CONSTITUTION

(1) Petitions challenge the 1973 draft as vague and incomplete, and alluded to their arguments during the hearings on December 18 and 19, 1972 on the Plebiscite Cases. But the inclusion of questionable or ambiguous provisions does not affect the validity of the ratification or adoption of the 1973 Constitution itself (Pope vs. Gray, 104 SO, 2d 841; 7th Dec. pp. 212-219, 1956-1966).
Alexander Hamilton, one of the leading founders and defenders of the American Constitution, answering the critics of the Federal Constitution, stated that: "I never expect to see a perfect work from imperfect man. The result of the deliberations of all collective bodies must necessarily be a compound, as well of the errors and prejudices as of the good sense and wisdom, of the individuals of whom they are composed. The compacts which are to embrace thirteen distinct States in a common bond of amity and union, must necessarily be a compromise of as many dissimilar interests and inclinations. How can perfection spring from such materials?" (The Federalist, Modern Library Ed., pp. xx-xxi).

(2) The 1973 Constitution is likewise impugned on the ground that it contains provisions which are ultra vires or beyond the power of the Constitutional Convention to propose.

This objection relates to the wisdom of changing the form of government from Presidential to Parliamentary and including such provisions as Section 3 of Article IV, Section 15 of Article XIV and Sections 3(2) and 12 of Article XVII in the 1973 Constitution.

Mr. Justice Fernando, concurring in the same Plebiscite Cases, cited the foregoing pronouncement in the Del Rosario case, supra, and added: "it seems to me a sufficient answer that once convened, the area open for deliberation to a constitutional convention, is practically limitless" (citing Cf. Koehler vs. Hill, 14 NW 738, 60 Iowa 543 [1883]; Hatch Stoneman, 6 P 734, 66 Cal. 632 [1885]; MacMillan v. Blattner, 25 NW 245, 67 Iowa 287 [1895]; State v. Powell, 27 SO 297, 77 Miss. 543 [1900]; Hammond v. Clark, 71 SE 479, 136 Ga. 313 [1911]; Hamilton v. Vaughan, 179 NW 533, 212 Mich. 31 [1920]; State v. Smith, 138 NE 881, 105 Ohio St. 570 [1922]; Looney vs. Leeper, 292 P 365, 145 Okl. 202 [1930]; School District vs. City of Pontiac, 247 NW 474, 262 Mich. 338 [1933]).

Mr. Justice Barredo, in his concurring opinion in said Plebiscite Cases, expressed the view "that when the people elected the delegates to the Convention and when the delegates themselves were campaigning, such limitation of the scope of their function and objective was not in their minds."

Petitioners next claim that the 1971 Constitutional Convention adjourned on November 30, 1972 without officially promulgating the said Constitution in Filipino as required by Sections 3(1) of Article XV on General Provisions of the 1973 Constitution. This claim is without merit because their Annex "M" is the Filipino version of the 1973 Constitution, like the English version, contains the certification by President Diosdado Macapagal of the Constitutional Convention, duly attested by its Secretary, that the proposed Constitution, approved on second reading on the 27th day of November, 1972 and on third reading in the Convention's 291st plenary session on November 29, 1972 and accordingly signed on November 1972 by the delegates whose signatures are thereunder affixed. It should be recalled that Constitutional Convention President Diosdado Macapagal was, as President of the Republic 1962 to 1965, then the titular head of the Liberal Party to which four (4) of the petitioners in L-36165 including their counsel, former Senator Jovito Salonga, belong. Are they repudiating and disowning their former party leader and benefactor?

(1) Article XV of the 1935 Constitution simply provides that "such amendments shall be valid as part of this Constitution when approved by a majority of the votes cast at an election at which the amendments are submitted to the people for ratification."

But petitioners construe the aforesaid provision to read: "Such amendments shall be valid as part of this Constitution when approved by a majority of the votes cast at an election called by Congress at which the amendments are submitted for ratification by the qualified electors defined in Article V hereof, supervised by the Commission on Elections in accordance with the existing election law and after such amendments shall have been published in all the newspapers of general circulation for at least four months prior to such election."

This position certainly imposes limitation on the sovereign people, who have the sole power of ratification, which imposition by the Court is never justified (Wheeler vs. Board of Trustees, supra).
In effect, petitioners and their counsels are amending by a strained and tortured construction Article XV of the 1935 Constitution. This is a clear case of usurpation of sovereign power they do not possess through some kind of escamotage. This Court should not commit such a grave error in the guise of judicial interpretation.

In all the cases where the court held that illegal or irregular submission, due to absence of substantial compliance with the procedure prescribed by the Constitution and/or the law, nullifies the proposed amendment or the new Constitution, the procedure prescribed by the state Constitution is so detailed that it specifies that the submission should be at a general or special election, or at the election for members of the State legislature only or of all state officials only or of local officials only, or of both state and local officials; fixes the date of the election or plebiscite limits the submission to only electors or qualified electors; prescribes the publication of the proposed amendment or a new Constitution for a specific period prior to the election or plebiscite; and designates the officer to conduct the plebiscite, to canvass and to certify the results, including the form of the ballot which should so state the substance of the proposed amendments to enable the voter to vote on each amendment separately or authorizes expressly the Constitutional Convention or the legislature to determine the procedure or certain details thereof. See the State Constitutions of Alabama [1901]; Arizona [1912]; Arkansas [1874]; Colorado [1976]; Connecticut [1818]; Florida [1887]; Georgia [1945]; Illinois [1970]; Indiana [1851]; Iowa [1857]; Kansas [1861]; Kentucky [1891]; Louisiana [1921]; Maryland [1867]; Massachusetts [1790]; Michigan [1909]; Minnesota [1857]; Mississippi [1890]; and Missouri [1945]).

Sec. 284. Legislative Proposals. Amendments may be proposed to this Constitution by the legislature in the manner following: The proposed amendments shall be read in the house in which they originate on three several days, and, if upon the third reading, three-fifths of all the members elected to that house shall vote in favor thereof, the proposed amendments shall be sent to the other house, in which they shall likewise be read on three several days, and if upon the third reading, three-fifths of all the members elected that house shall vote in favor of the proposed amendments, the legislature shall order an election by the qualified electors of the state upon such proposed amendments, to be held either at the general election next succeeding the session of the legislature at which the amendments are proposed or upon another day appointed by the legislature, not less than three months after the final adjournment of the session of the legislature at which the amendments were proposed. Notice of such election, together with the proposed amendments, shall be given by proclamation of the governor, which shall be published in every county in such manner as the legislature shall direct, for at least eight successive weeks next preceding the day appointed for such election. On the day so appointed an election shall be held for the vote of the qualified electors of the state upon the proposed amendments. If such election be held on the day of the general election, the officers of such general election shall open a poll for the vote of the qualified electors upon the proposed amendments; if it be held on a day other than that of a general election, officers for such election shall be appointed; and the election shall be held in all things in accordance with the law governing general elections. In all elections upon such proposed amendments, the votes cast thereat shall be canvassed, tabulated, and returns thereof be made to the secretary of state, and counted, in the same manner as in elections for representatives to the legislature; and if it shall thereupon appear that a majority of the qualified electors who voted at such election upon the proposed amendments voted in favor of the same, such amendments shall be valid to all intents and purposes as parts of this Constitution. The result of such election shall be made known by proclamation of the governor. Representation in the legislature shall be based upon population, and such basis of representation shall not be changed by constitutional amendments.

Sec. 285. Form of ballot for amendment. Upon the ballots used at all elections provided for in section 284 of this Constitution, the substance or subject matter of each proposed amendment shall be so printed that the nature thereof shall be clearly indicated. Following each proposed amendment on the ballot shall be printed the word "Yes" and immediately under that shall be printed the word "No". The choice of the elector shall be indicated by a cross mark made by him or under his direction, opposite the word expressing his desire, and no amendment shall be adopted unless it receives the affirmative vote of a majority of all the qualified electors who vote at such election.

Sec. 22. Constitutional amendments. Either branch of the General Assembly at a regular session thereof may propose amendments to this Constitution, and, if the same be agreed to by a majority of all the members, elected to each house, such proposed amendments shall be entered on the journal with the yeas and nays, and published in at least one newspaper in each county, where a newspaper is published, for six months immediately preceding the next general election for Senators and Representatives, at which time the same shall be submitted to the electors of the State for approval or rejection, and if a majority of the electors voting at such election adopt such amendments, the same shall become a part of this Constitution; but no more than three amendments shall be proposed or submitted at the same time. They shall be so submitted as to enable the electors to vote on each amendment separately.

Sec. 1. Proposal of amendments; publications; elections. Propositions for the amendment of this constitution may be made by either branch of the legislature; and if two thirds of all the members elected to each house shall concur therein, such proposed amendments, together with the yeas and nays, shall be entered on the journal; and the secretary of state shall cause the same to be published in at least one newspaper in each county of the state where a newspaper is published, for three months preceding the next election for representatives, at which time, the same shall be submitted to the electors, for their approval or rejection; and if a majority of the electors voting on said amendments, at said election, shall adopt the amendments, the same shall become a part of the constitution. When more than one amendment shall be submitted at the same time, they shall be so submitted as to enable the electors to vote on each amendments separately; and not more than three propositions to amend shall be submitted at the same election.

Sec. 1. Proposal in general assembly; publication; submission to voters; governor's proclamation. The General Assembly may propose Amendments to this Constitution; provided that each Amendment shall be embraced in a separate bill, embodying the Article or Section, as the same will stand when amended and passed by three fifths of all the members elected to each of the two Houses, by yeas and nays, to be entered on the Journals with the proposed Amendment. The bill or bills proposing amendment or amendments shall be published by order of the Governor, in at least two newspapers, in each County, where so many may be published, and where not more than one may be published, then in the newspaper, and in three newspapers published in the City of Baltimore, once a week for four weeks immediately preceding the next ensuing general election, at which the proposed amendment or amendments shall be submitted, in a form to be prescribed by the General Assembly, to the qualified voters of the State for adoption or rejection. The votes cast for and against said proposed amendment or amendments, severally, shall be returned to the Governor, in the manner prescribed in other cases, and if it shall appear to the Governor that a majority of the votes cast at said election on said amendment or amendments, severally, were cast in favor thereof, the Governor shall, by his proclamation, declare the said amendment or amendments having received said majority of votes, to have been adopted by the people of Maryland as part of the Constitution thereof, and henceforth said amendment or amendments shall be part of the said Constitution. When two or more amendments shall be submitted in the manner aforesaid, to the voters of this State at the same election, they shall be so submitted as that each amendment shall be voted on separately.

Sec. 2(b). Submission of amendments proposed by general assembly or by the initiative. All amendments proposed by the general assembly or by the initiative shall be submitted to the electors for their approval or rejection by official ballot title as may be provided by law, on a separate ballot without party designation, at the next general election, or at a special election called by the governor prior thereto, at which he may submit any of the amendments. No such proposed amendment shall contain more than one amended and revised article of this constitution, or one new article which shall not contain more than one subject and matters properly connected therewith. If possible, each proposed amendment shall be published once a week for two consecutive weeks in two newspapers of different political faith in each county, the last publication to be not more than thirty nor less than fifteen days next preceding the election. If there be but one newspaper in any county, publication of four consecutive weeks shall be made. If a majority of the votes cast thereon is in favor of any amendment, the same shall take effect at the end of thirty days after the election. More than one amendment at the same election shall be so submitted as to enable the electors to vote on each amendment separately.

Article XV of the 1935 Constitution does not require a specific procedure, much less a detailed procedure for submission or ratification. As heretofore stated, it does not specify what kind of election at which the new Constitution shall be submitted; nor does it designate the Commission on Elections to supervise the plebiscite. Neither does it limit the ratification to the qualified electors as defined in Article V of the 1935 Constitution. Much less does it require the publication of the proposed Constitution for any specific period before the plebiscite nor does it even insinuate that the plebiscite should be supervised in accordance with the existing election law.

(2) As aforequoted, Article XV does not indicate the procedure for submission of the proposed Constitution to the people for ratification. It does not make any reference to the Commission on Elections as the body that shall supervise the plebiscite. And Article XV could not make any reference to the Commission on Elections because the original 1935 Constitution as ratified on May 14, 1935 by the people did not contain Article X on the Commission on Elections, which article was included therein pursuant to an amendment by that National Assembly proposed only about five (5) years later on April 11, 1940, ratified by the people on June 18, 1940 as approved by the President of the United States on December 1940 (see Sumulong vs. Commission, 70 Phil. 703, 713, 715; Gonzales, Phil. Const. Law, 1966 ed., p. 13). So it cannot be said that the original framers of the 1935 Constitution as ratified May 14, 1935 intended that a body known as the Commission on Elections should be the one to supervise the plebiscite, because the Commission on Elections was not in existence then as was created only by Commonwealth Act No. 607 approved on August 22, 1940 and amended by Commonwealth Act No. 657 approved on June 21, 1941 (see Tañada & Carreon, Political Law of the Philippines, Vol. I, 1961 ed., pp. 475-476; Sumulong vs. Commission, 170 Phil. 703, 708-715; 73 Phil. 288, 290-300; Tañada & Fernando, Constitution of the Philippines, 1953 ed., Vol. I, p. 5, Vol. II, pp. 11-19).

Because before August 1940, the Commission on Election was not yet in existence, the former Department of Interior (now Department of Local Governments and Community Development) supervised the plebiscites on the 1937 amendment on woman's suffrage, the 1939 amendment to the Ordinance appended to the 1935 Constitution (Tydings-Kocialkowski Act of the U.S. Congress) and the three 1940 amendments on the establishment of a bicameral Congress, the re-election of the President and the Vice-President, and the creation of the Commission on Elections (ratified on June 18, 1940). The supervision of said plebiscites by the then Department of Interior was not automatic, but by virtue of an express authorization in Commonwealth Act Nos. 34, 49 and 517.

If the National Assembly then intended that the Commission on Elections should also supervise the plebiscite for ratification of constitutional amendments or revision, it should have likewise proposed the corresponding amendment to Article XV by providing therein that the plebiscite on amendments shall be supervised by the Commission on Elections.

3) If the framers of the 1935 Constitution and the people in ratifying the same on May 14, 1935 wanted that only the qualified voters under Article V of the 1935 Constitution should participate in the referendum on any amendment or revision thereof, they could have provided the same in 1935 or in the 1940 amendment by just adding a few words to Article XV by changing the last phrase to "submitted for ratification to the qualified electors as defined in Article V hereof," or some such similar phrases.

Then again, the term "people" in Article XV cannot be understood to exclusively refer to the qualified electors under Article V of the 1935 Constitution because the said term "people" as used in several provisions of the 1935 Constitution, does not have a uniform meaning. Thus in the preamble, the term "Filipino people" refer, to all Filipino citizens of all ages of both sexes. In Section 1 of Article II on the Declaration of Principles, the term "people" in whom sovereignty resides and from whom all government authority emanates, can only refer also to Filipino citizens of all ages and of both sexes. But in Section 5 of the same Article II on social justice, the term "people" comprehends not only Filipino citizens but also all aliens residing in the country of all ages and of both sexes. Likewise, that is the same connotation of the term "people" employed in Section 1(3) of Article III on the Bill of Rights concerning searches and seizures.

When the 1935 Constitution wants to limit action or the exercise of a right to the electorate, it does so expressly as the case of the election of senators and congressmen. Section 2 Article VI expressly provides that the senators "shall be chosen at large by the qualified electors of the Philippines as may provided by law." Section 5 of the same Article VI specifically provides that congressmen shall "be elected by the qualified electors." The only provision that seems to sustain the theory of petitioners that the term "people" in Article XV should refer to the qualified electors as defined in Article V of the 1935 Constitution is the provision that the President and Vice-President shall be elected "by direct vote of the people." (Sec. 2 of Art. VII of the 1935 Constitution). But this alone cannot be conclusive as to such construction, because of explicit provisions of Sections 2 and 5 of Article VI, which specifically prescribes that the senators and congressmen shall be elected by the qualified electors.

As aforesaid, most of the constitutions of the various states of the United States, specifically delineate in detail procedure of ratification of amendments to or revision of said Constitutions and expressly require ratification by qualified electors, not by the generic term "people".

The proposal submitted to the Ozamis Committee on the Amending Process of the 1934-35 Constitutional Convention satisfied that the amendment shall be submitted to qualified election for ratification. This proposal was not accepted indicating that the 1934-35 Constitutional Convention did intend to limit the term "people" in Article XV of the 1935 Constitution to qualified electors only. As above demonstrated, the 1934-35 Constitutional Convention limits the use of the term "qualified electors" to elections of public officials. It did not want to tie the hands of succeeding future constitutional conventions as to who should ratify the proposed amendment or revision.

(4) It is not exactly correct to opine that Article XV of 1935 Constitution on constitutional amendment contemplates the automatic applicability of election laws to plebiscites on proposed constitutional amendments or revision.

The very phraseology of the specific laws enacted by the National Assembly and later by Congress, indicates that there is need of a statute expressly authorizing the application of the election laws to plebiscites of this nature. Thus, Com. Act No. 34 on the woman's suffrage amendment enacted on September 30, 1936, consists of 12 sections and, aside from providing that "there shall be held a plebiscite on Friday, April 30, 1937, on the question of woman's suffrage and that said amendment shall be published in the Official Gazette in English and Spanish for three consecutive issues at least fifteen (15) days prior to said election, and shall be posted in a conspicuous place in its municipal and provincial office building and in its polling place not later than April 22, 1937" (Sec. 12, Com. Act No. 34), specifies that the provisions of the Election Law regarding, the holding of a special election, insofar as said provisions are not in conflict with it, should apply to the said plebiscite (Sec. 3, Com. Act No. 34)1; and, that the votes cast according to the returns of the board of inspectors shall be counted by the National Assembly (Sec. 10, Com. Act No. 34).

The election laws then in force before 1938 were found in Sections 392-483 of the Revised Administrative Code.

Sec. 1 of Com. Act No. 357, the previous Election Code enacted on August 22, 1938, makes it expressly applicable to plebiscites. Yet the subsequent laws, namely, Com. Act Nos. 492 and 517 and Rep. Act No. 73 calling for the plebiscite on the constitutional amendments in 1939, 1940 and 1946, including the amendment creating the Commission on Elections, specifically provided that the provisions of the existing election law shall apply to such plebiscites insofar as they are not inconsistent with the aforesaid Com. Act Nos. 492 and 517, as well as Rep. Act No. 73. Thus

Commonwealth Act No. 492, enacted on September 19, 1939, calling for a plebiscite on the proposed amendments to the Constitution adopted by the National Assembly on September 15, 1939, consists of 8 sections and provides that the proposed amendments to the Constitution adopted in Resolution No. 39 on September 15, 1939 "shall be submitted to the Filipino people for approval or disapproval at a general election to be held throughout the Philippines on Tuesday, October 24, 1939"; that the amendments to said Constitution proposed in "Res. No. 38, adopted on the same date, shall be submitted at following election of local officials," (Sec. 1, Com. Act No. 492) that the said amendments shall be published in English and Spanish in three consecutive issues of the Official Gazette at least ten (10) days prior to the elections; that copies thereof shall be posted not later than October 20, 1939 (Sec. 2, Com. Act 492); that the election shall be conducted according to provisions of the Election Code insofar as the same may be applicable; that within thirty (30) days after the election, Speaker of the National Assembly shall request the President to call a special session of the Assembly for the purpose of canvassing the returns and certify the results thereof (Sec. 6, Com. Act No. 492).

Commonwealth Act No. 517, consisting of 11 sections, was approved on April 25, 1940 and provided, among others: that the plebiscite on the constitutional amendments providing bicameral Congress, re-election of the President and Vice-President, and the creation of a Commission on Elections shall be held at a general election on June 18, 1940 (Sec. 1); that said amendments shall be published in three consecutive issues of the Official Gazette in English and Spanish at least 20 days prior to the election and posted in every local government office building and polling place not later than May 18, 1940 (Sec. 2); that the election shall be conducted in conformity with the Election Code insofar as the same may be applicable (Sec. 3) that copies of the returns shall be forwarded to the Secretary of National Assembly and the Secretary of Interior (Sec. 7); that the National Assembly shall canvass the returns to certify the results at a special session to be called by President (Sec. 8).

Republic Act No. 73 approved on October 21, 1946 calling for a plebiscite on the parity amendment consists of 8 sections provides that the Amendment "shall be submitted to the people, for approval or disapproval, at a general election which shall be held on March 11, 1947, in accordance with the provisions of this Act" (Sec. 1, R. A. No. 73); that the said amendment shall be published in English and Spanish in three consecutive issues of the Official Gazette at least 20 days prior to the election; that copies of the same shall be posted in a conspicuous place and in every polling place not later than February 11, 1947 (Section 2, R. A. No. 73); that the provisions of Com. Act No. 357 (Election Code) and Com. Act No. 657 creating the Commission on Elections, shall apply to the election insofar as they are not inconsistent with this Act (Sec. 3, R. A. No. 73); and that within 30 days after the election, the Senate and House of Representatives shall hold a joint session to canvass the returns and certify the results thereof (Section 6, R. A. No. 73).

From the foregoing provisions, it is patent that Article XV of the 1935 Constitution does not contemplate nor envision the automatic application of the election law; and even at that, not all the provisions of the election law were made applicable because the various laws aforecited contain several provisions which are inconsistent with the provisions of the Revised Election Code (Com. Act No. 357). Moreover, it should be noted that the period for the publication of the copies of the proposed amendments was about 10 days, 15 days or 20 days, and for posting at least 4 days, 8 days or 30 days.

Republic Acts Nos. 180 and 6388 likewise expressly provide that the Election Code shall apply to plebiscites (See. 2, R.A. No. 180, as amended, and Section 2, Rep. Act No. 6388).

If the Election Code ipso facto applies to plebiscites under Article XV of the 1935 Constitution, there would be no need for Congress to expressly provide therefor in the election laws enacted after the inauguration of the Commonwealth government under the 1935 Constitution.

(5) Article XV of the 1935 Constitution does not specify who can vote and how they shall vote. Unlike the various State Constitutions of the American Union (with few exceptions), Article XV does not state that only qualified electors can vote in the plebiscite. As above-intimated, most of the Constitutions of the various states of the United States provide for very detailed amending process and specify that only qualified electors can vote at such plebiscite or election.

Congress itself, in enacting Republic Act No. 3590, otherwise known as the Barrio Charter, which was approved on June 17, 1967 and superseded Republic Act No. 2370, expanded the membership of the barrio assembly to include citizens who are at least 18 years of age, whether literate or not, provided they are also residents of the barrio for at least 6 months (Sec. 4, R.A. No. 3590).

Sec. 4. The barrio assembly.- The barrio assembly shall consist of all persons who are residents of the barrio for at least six months, eighteen years of age or over, citizens of the Republic of the Philippines and who are duly registered in the list of barrio assembly members kept by the Barrio Secretary.

The barrio assembly shall meet at least once a year to hear the annual report of the barrio council concerning the activities and finances of the barrio.

It shall meet also at the case of the barrio council or upon written petition of at least One-Tenth of the members of the barrio assembly.

No meeting of the barrio assembly shall take place unless notice is given one week prior to the meeting except in matters involving public safety or security in which case notice within a reasonable time shall be sufficient. The barrio captain, or in his absence, the councilman acting as barrio captain, or any assembly member selected during the meeting, shall act as presiding officer at all meetings of the barrio assembly. The barrio secretary or in his absence, any member designated by the presiding officer to act as secretary shall discharge the duties of secretary of the barrio assembly.

For the purpose of conducting business and taking any official action in the barrio assembly, it is necessary that at least one-fifth of the members of the barrio assembly be present to constitute a quorum. All actions shall require a majority vote of these present at the meeting there being a quorum.

Sec. 5. Powers of the barrio assembly.- The powers of the barrio assembly shall be as follows:

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 election, 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.
A plebiscite may be called to decide on the recall of any member of the barrio council. A plebiscite shall be called to approve any budgetary, supplemental appropriations or special tax ordinances.

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

Sec 10. Qualifications of voters and candidates.- Every citizen of the Philippines, twenty-one years of age or over, able to read and write, who has been a resident of the barrio during the six months immediately preceding the election, duly registered in the list of voters kept by the barrio secretary, who is not otherwise disqualified, may vote or be a candidate in the barrio elections.

However, in the case of election of barrio officials, only Filipino citizens, who are at least 21 years of age, able to read and write, residents of the barrio during the 6 months immediately preceding the election and duly registered in the list of voters kept by the barrio secretary, not otherwise disqualified, may vote (Sec. 10, R. A. No. 3590).

Paragraph 2 of Section 6 likewise authorizes open voting as it provides that "voting procedures may be made either in writing as in regular elections, and/or declaration by the voters to the board of election tellers."

That said paragraph 2 of Section 6 provides that "all duly registered barrio assembly members qualified to vote may vote in the plebiscite," cannot sustain the position of petitioners in G. R. No. L-36165 that only those who are 21 years of age and above and who possess all other qualifications of a voter under Section 10 of R. A. No. 3590, can vote on the plebiscites referred to in Section 6; because paragraph 3 of Section 6 does not expressly limit the voting to those with the qualifications under Section 10 as said Section 6 does not distinguish between those who are 21 or above on the one hand and those 18 or above but below 21 on the other, and whether literate or not, to constitute a quorum of the barrio assembly.

Consequently, on questions submitted for plebiscite, all the registered members of the barrio assembly can vote as long as they are 18 years of age or above; and that only those who are 21 years of age or over and can read and write, can vote in the elections of barrio officials.

Otherwise, there was no sense in extending membership in the barrio assembly to those who are at least 18 years of age, whether literate or not. Republic Act No. 3590 could simply have restated Section 4 of Republic Act No. 2370, the old Barrio Charter, which provided that only those who are 21 and above can be members of the barrio assembly.

Counsels Salonga and Tañada as well as all the petitioners in L-36165 and two of the petitioners in L-36164 participated in the enactment of Republic Act No. 3590 and should have known the intendment of Congress in expanding the membership of the barrio assembly to include all those 18 years of age and above, whether literate or not.

If Congress, in the exercise of its ordinary legislative power, not as a constituent assembly, can include 18-year olds as qualified electors for barrio plebiscites, this prerogative can also be exercised by the Chief Executive as delegate of the Constitutional Convention in regard to the plebiscite on the 1973 Constitution.

As heretofore stated, the statement by the President in Presidential Proclamation No. 1102 that the 1973 Constitution was overwhelmingly ratified by the people through the Citizens' Assemblies in a referendum conducted from January 10 to 15, 1973, should be accorded the presumption of correctness; because the same was based on the certification by the Secretary of the Department of Local Government and Community Development who tabulated the results of the referendum all over the country. The accuracy of such tabulation and certification by the said Department Secretary should likewise be presumed; because it was done in the regular performance of his official functions aside from the fact that the act of the Department Secretary, as an alter ego of the President, is presumptively the act of the President himself unless the latter disapproves or reprobates the same (Villena vs. Secretary of Interior, 67 Phil. 451 ). The truth of the certification by the Department Secretary and the Chief Executive on the results of the referendum, is further strengthened by the affidavits and certifications of Governor Isidro Rodriguez of Rizal, Mayor Norberto S. Amoranto of Quezon City and Councilor Eduardo T. Parades of Quezon City.

The procedure for the ratification of the 1937 amendment on woman suffrage, the 1939 amendment to the ordinance appended to the 1935 Constitution, the 1940 amendments establishing the bicameral Congress, creating the Commission on Elections and providing for two consecutive terms for the President, and the 1947 parity amendment, cannot be invoked; because those amendments were proposed by the National Assembly as expressly authorized by Article V of the 1935 Constitution respecting woman suffrage and as a constituent assembly in all the other amendments aforementioned and therefore as such, Congress had also the authority to prescribe the procedure for the submission of the proposed amendments to the 1935 Constitution.

In the cases at bar, the 1973 Constitution was proposed by an independent Constitutional Convention, which as heretofore discussed, has the equal power to prescribe the modality for the submission of the 1973 Constitution to the people for ratification or delegate the same to the President of the Republic.

The certification of Governor Isidro Rodriguez of Rizal and Mayor Norberto Amoranto could be utilized as the basis for the extrapolation of the Citizens' Assemblies in all the other provinces, cities and municipalities in all the other provinces, cities and municipalities, and the affirmative votes in the Citizens' Assemblies resulting from such extrapolation would still constitute a majority of the total votes cast in favor of the 1973 Constitution.

As claimed by petitioners in L-36165, against the certification of the Department of Local Government and Community Development that in Rizal there were 1,126,000 Yes votes and 100,310 No votes, the certification of Governor Isidro Rodriguez of Rizal, shows only 614,157 Yes votes against 292,530 No votes. In Cavite province, there were 249,882 Yes votes against 12,269 No votes as disclosed in Annex 1-A of respondents' Compliance (the certification by the Department of Local Government and Community Development), while the alleged certification of Governor Lino Bocalan of Cavite shows only 126,163 Yes votes and 5,577 No votes. If such a ratio is extended by way of extrapolation to the other provinces, cities and towns of the country, the result would still be an overwhelming vote in favor of the 1973 Constitution.

The alleged certification by Governor Lino Bocalan of Cavite, is not true; because in his duly acknowledged certification dated March 16, 1973, he states that since the declaration of martial law and up to the present time, he has been under house arrest in his residence in Urdaneta Village, Makati, Rizal; that he never participated in the conduct of the Citizens' Assemblies on January 10 15, 1973 in the province of Cavite; that the acting chairman and coordinator of the Citizens' Assemblies at that time was Vice-Governor Dominador Camerino; and that he was shown a letter for his signature during the conduct of the Citizens' Assemblies, which he did not sign but which he referred to Vice-Governor Camerino (Annex 1-Rejoinder of the Sol. Gen. dated March 20, 1973).

Mayor Pablo Cuneta likewise executed an affidavit dated March 16, 1973 stating that on January 15, 1973, he caused the preparation of a letter addressed to Secretary Jose Roño of the Department of Local Government and Community Development showing the results of the referendum in Pasay City; that on the same day, there were still in any Citizens' Assemblies holding referendum in Pasay City, for which reason he did not send the aforesaid letter pending submittal of the other results from the said Citizens' Assemblies; and that in the afternoon of January 15, 1973, he indorsed the complete certificate of results on the referendum in Pasay City to the Office of the President (Annex 5-Rejoinder of Sol. Gen. dated March 20, 1973).

Pablo F. Samonte, Assistant City Treasurer and Officer in Charge of Pasay City also issued an affidavit dated March 15, 1973 stating that a certain Atty. Delia Sutton of the Salonga Law Office asked him for the results of the referendum; that he informed her that he had in his possession unsigned copies of such results which may not be considered official as they had then no knowledge whether the original thereof had been signed by the mayor; and that in spite of his advice that said unsigned copies were not official, she requested him if she could give her the unofficial copies thereof, which he gave in good faith (Annex C-Rejoinder to the Sol. Gen.).

There were 118,010 Yes votes as against 5,588 No votes in the Citizens' Assemblies of Quezon city (Annex V to Petitioners' Notes in L-36165). The fact that a certain Mrs. Remedio Gutierrez, wife of alleged barrio treasurer Faustino Gutierrez, of barrio South Triangle, Quezon City, states that "as far as we know, there has been no Citizens' Assembly meeting in our Area, particularly in January of this year," does not necessarily mean that there was no such meeting in said barrio; for she may not have been notified thereof and as a result she was not able to attend said meeting. Much less can it be a basis for the claim that there was no meeting at all in the other barrios of Quezon City. The barrio captain or the secretary of the barrio assembly could have been a credible witness.

Councilor Eduardo T. Paredes, chairman of the Secretariat of Quezon City Ratification and Coordinating Council, certified on March 12, 1973 that as such chairman he was in charge of the compilation and tabulation of the results of the referendum among the Citizens' Assemblies in Quezon City based on the results submitted to the Secretariat by the different Citizens' Assemblies; but many results of the referendum were submitted direct to the national agencies having to do with such activity and all of which he has no knowledge, participation and control (Annex 4 Rejoinder of the Sol. Gen.).

Governor Isidro Rodriguez of Rizal issued a certification dated March 16, 1973 that he prepared a letter to the President dated January 15, 1973 informing him of the results of the referendum in Rizal, in compliance with the instruction of the National Secretariat to submit such letter 2 or 3 days from January 10 to show the trend of voting in the Citizens' Assemblies; that the figures 614,157 and 292,530 mentioned in said letter were based on the certificates of results in his possession as of January 14, 1973, which results were made the basis of the computation of the percentage of voting trend in the province; that his letter was never intended to show the final or complete result in the referendum in the province as said referendum was then still going on from January 14-17, 1973, for which reason the said letter merely stated that it was only a "summary result"; and that after January 15, 1973, he sent to the National Secretariat all the certificates of results in 26 municipalities of Rizal for final tabulation (Annex 3-Rejoinder of the Sol. Gen.; emphasis supplied).

Lydia M. Encarnacion, acting chief of the Records Section, Department of Local Government and Community Development, issued a certificate dated March 16, 1973 that she was shown xerox copies of unsigned letters allegedly coming from Governor Lino Bocalan dated January 15, 1973 and marked "Rejoinder Annex Cavite" addressed to the President of the Philippines through the Secretary of the Department of Local Government and Community Development and another unsigned letter reportedly from Mayor Pablo Cuneta dated January 15, 1973 and marked "Rejoinder Annex Pasay City" addressed to the Secretary of the Department of Local Government and Community Development; that both xerox copies of the unsigned letters contain figures showing the results of the referendum of the Citizens' Assemblies in those areas; and that the said letters were not received by her office and that her records do not show any such documents received by her office (Annex 2-Rejoinder of the Sol. Gen.).

Thus it would seem that petitioners in L-36165 have attempted to deceive this Court by representing said unsigned letters and/or certificates as duly signed and/or containing the complete returns of the voting in the Citizens' Assemblies.

The observation We made with respect to the discrepancy between the number of Yes votes and No votes contained in the summary report of Governor Rodriguez of Rizal as well as those contained in the alleged report of Governor Lino Bocalan of Cavite who repudiated the same as not having been signed by him for he was then under house arrest, on the one hand, and the number of votes certified by the Department of Local Government and Community Development, on the other, to the effect that even assuming the correctness of the figures insisted on by counsel for petitioners in L-36165, if they were extrapolated and applied to the other provinces and cities of the country, the Yes votes would still be overwhelmingly greater than the No votes, applies equally to the alleged discrepancy between the figures contained in the certification of the Secretary of the Department of Local Government and Community Development and the figures furnished to counsel for petitioners in L-36165 concerning the referendum in Camarines Sur, Bataan and Negros Occidental.

The fact that the referendum in the municipality of Pasacao, Camarines Sur, shows that there were more votes in favor of the plebiscite to be held later than those against, only serve to emphasize that there was freedom of voting among the members of the Citizens' Assemblies all over the country during the referendum from January 10 to 15, 1973 (Annex-6 Camarines Sur to Rejoinder of Petitioners in L-36165). If there was no such freedom of choice, those who wanted a plebiscite would not outnumber those against holding such plebiscite.

The letter of Governor Felix O. Alfelor, Sr. dated January 1973 confirms the "strong manifestation of approval of the new Constitution by almost 97% by the members of the Citizens' Assemblies in Camarines Sur" (Annex-Camarines Sur to Rejoinder of Petitioners in L-36165).

The report of Governor Efren B. Pascual of Bataan shows that the members of the Citizens' Assemblies voted overwhelmingly in favor of the new Constitution despite the fact that the second set of questions including the question "Do you approve of the new Constitution?" was received only on January 10. Provincial Governor Pascual stated that "orderly conduct and favorable results of the referendum" were due not only to the coordinated efforts and cooperation of all teachers and government employees in the area but also to the enthusiastic participation by the people, showing "their preference and readiness to accept this new method of government to people consultation in shaping up government policies." (Annex-Bataan to Rejoinder of Petitioners in L-36165).

As heretofore stated, it is not necessary that voters ratifying the new Constitution are registered in the book of voters; it is enough that they are electors voting on the new Constitution (Bott vs. Wurts, 40 A 740 [1898]; 43 A 744, 881 [1899]; 45 LRA 251). The fact that the number of actual voters in the referendum in certain localities may exceed the number of voters actually registered for the 1971 elections, can only mean that the excess represents the qualified voters who are not yet registered including those who are at least 15 years of age and the illiterates. Although ex-convicts may have voted also in the referendum, some of them might have been granted absolute pardon or were sentenced to less than one year imprisonment to qualify them to vote (Sec. 201, 1971 Rev. Election Code). At any rate, the ex-convicts constitute a negligible number, discounting which would not tilt the scale in favor of the negative votes.

Similarly, the fact that Mayor Marcial F. Samson of Caloocan City, who belongs to the Liberal Party, stated in his letter dated March 13, 1973 that he does not "feel authorized by the proper authorities to confirm or deny the data" concerning the number of participants, the Yes votes and No votes in the referendum on the new Constitution among the members of the Citizens' Assemblies in Caloocan City, does not necessarily give rise to the inference that Mayor Samson of Caloocan City is being intimidated, having been recently released from detention; because in the same letter of Mayor Samson, he suggested to counsel for petitioners in L-36165 that he can secure "the true and legitimate results of the referendum" from the Office of the President (Annex Caloocan-B to Rejoinder of Petitioners in L-36165). Why did not learned and eminent counsel heed such suggestion?

Counsel for petitioners in L-36165, to sustain their position, relies heavily on the computation of the estimated turnover in the Citizens' Assemblies referendum on January 10 to 15, 1973 by a certain Professor Benjamin R. Salonga, of the Mapua Institute of Technology, ostensibly a close relative of former Senator Jovito R. Salonga, eminent counsel for petitioners in L-36165 (Annex M-as amended, to Consolidated Rejoinder of petitioners in L-36165 to the Notes of Arguments and Memorandum of respondents). Professor Salonga is not a qualified statistician, which all the more impairs his credibility. Director Tito A. Mijares of the Bureau of Census and Statistics, in his letter dated March 16, 1973 address to the Secretary of the Department of Local Government and Community Development, refutes the said computation of Professor Benjamin R. Salonga, thus:

From the foregoing analysis of the Director of Census and Statistics as of January 21, 1973, the official population projection for 15-year olds and over is 22,506,000. If 16,702,000 voted in the referendum, the participation ratio would be 74.2% of 22,506,000.

If the registered electors as of the election of November 8, 1971 numbered 11,661,909, the difference between 16,702,000 who participated in the referendum and the registered electors of 11,661,909 for the November 8, 1971 elections, is 5,040,091, which may include not only the 15-year olds and above but below 21 but also the qualified electors who were not registered before the November 8, 1971 elections as well as illiterates who are 15 years old and above but below 21.

Moreover, in the last Presidential election in November, 1969, We found that the incumbent President obtained over 5,000,000 votes as against about 3,000,000 votes for his rival LP Senator Sergio Osmeña, Jr., garnering a majority of from about 896,498 to 1,436,118 (Osmeña, Jr. vs. Marcos, Presidential Election Contest No. 3, Jan. 8, 1973).

The petitioners in all the cases at bar cannot state with justification that those who voted for the incumbent President in 1969 did not vote in favor of the 1973 Constitution during the referendum from January 10 to 15, 1973. It should also be stressed that many of the partisans of the President in the 1969 Presidential elections, have several members in their families and relatives who are qualified to participate in the referendum because they are 15 years or above including illiterates, which fact should necessarily augment the number of votes who voted for the 1973 Constitution.

(6) It is also urged that martial law being the rule of force, is necessarily inconsistent with freedom of choice, because the people fear to disagree with the President and Commander-in-Chief of the Armed Forces of the Philippines and therefore cannot voice views opposite to or critical of the position of the President on the 1973 Constitution and on the mode of its ratification.

It is also claimed or urged that there can be no free choice during martial law which inevitably generates fear in the individual. Even without martial law, the penal, civil or administrative sanction provided for the violation of ordinarily engenders fear in the individual which persuades the individual to comply with or obey the law. But before martial law was proclaimed, many individuals fear such sanctions of the law because of lack of effective equal enforcement or implementation thereof in brief, compartmentalized justice and extraneous pressures and influences frustrated the firm and just enforcement of the laws. The fear that is generated by martial law is merely the fear of immediate execution and swift enforcement of the law and therefore immediate infliction of the punishment or sanction prescribed by the law whenever it is transgressed during the period of martial law. This is not the fear that affects the voters' freedom of choice or freedom to vote for or against the 1973 Constitution. Those who cringe in fear are the criminals or the law violators. Surely, petitioners do not come under such category.

(7) Petitioners likewise claim that open voting by viva voce or raising of hands violates the secrecy of the ballot as by the election laws. But the 1935 Constitution does not require secret voting. We search in vain for such guarantee or prescription in said organic law. The Commission on Elections under the 1940 Amendment, embodied as Article X is merely mandated to insure "free, orderly and honest election." Congress, under its plenary law-making authority, could have validly prescribed in the election law open voting in the election of public officers, without trenching upon the Constitution. Any objection to such a statute concerns its wisdom or propriety, not its legality or constitutionality. Secret balloting was demanded by partisan strife in elections for elective officials. Partisanship based on party or personal loyalties does not generally obtain in a plebiscite on proposed constitutional amendments or on a new Constitution. We have seen even before and during martial law that voting in meetings of government agencies or private organizations is usually done openly. This is specially true in sessions of Congress, provincial boards, city councils, municipal boards and barrio councils when voting on national or local issues, not on personalities.

Then again, open voting was not a universal phenomenon in the Citizens' Assemblies. It might have been true in certain areas, but that does not necessarily mean that it was done throughout the country.

The recent example of an open voting is the last election on March 3, 1973 of the National Press Club officers who were elected by acclamation presided over by its former president, petitioner Eduardo Monteclaro in L-36236 (see Bulletin Today, p. 8, March 3, 1973 issue). There can be no more hardboiled group of persons than newspapermen, who cannot say that voting among them by acclamation was characterized by fear among the members of the National Press Club.

Moreover, petitioners would not be willing to affirm that all the members of the citizenry of this country are against the new Constitution. They will not deny that there are those who favor the same, even among the 400,000 teachers among whom officers of the Department of Education campaigned for the ratification of the new Constitution.

Not one of the petitioners can say that the common man farmer, laborer, fisherman, lowly employee, jeepney driver, taxi driver, bus driver, pedestrian, salesman, or salesgirl does not want the new Constitution, or the reforms provided for therein.

(8) Petitioners likewise claim that there was no sufficient publicity given to the new Constitution. This is quite inaccurate; because even before the election in November, 1970 of delegates to the Constitutional Convention, the proposed reforms were already discussed in various forums and through the press as well as other media of information. Then after the Constitutional Convention convened in June, 1971, specific reforms advanced by the delegates were discussed both in committee hearings as well as in the tri-media the press, radio and television. Printed materials on the proposed reforms were circulated by their proponents. From June, 1971 to November 29, 1972, reforms were openly discussed and debated except for a few days after the proclamation of martial law on September 21, 1972. From the time the Constitutional Convention reconvened in October, 1972 until January 7, 1973, the provisions of the new Constitution were debated and discussed in forums sponsored by private organizations universities and debated over the radio and on television. The Philippines is a literate country, second only to Japan in the Far East, and more literate perhaps than many of mid-western and southern states of the American Union and Spain. Many residents in about 1,500 towns and 33,000 barrios of the country have radios. Even the illiterates listened to radio broadcasts on and discussed the provisions of the 1973 Constitution.

As reported by the eminent and widely read columnist, Teodoro Valencia in his column in Bulletin Today, March 4, 1973 issue, "Otto Lang, Hollywood producer director (Tora, Tora, Tora) went around the country doing a 30-minute documentary on the Philippines for American television stated that what impressed him most in his travel throughout the country was the general acceptance of the New Society by the people which he saw in his 6-week travel from Aparri to Jolo."

The report of Frank Valeo (Bulletin Today, March 3 and 4, 1973 and Daily Express, March 3, and Sunday Express, March 4), Secretary of the United States Senate, who conducted a personal survey of the country as delegate of Senator Mike Mansfield, Chairman, Committee on US-Philippine relations, states:

Martial law has paved the way for a re-ordering of the basic social structure of the Philippines. President Marcos has been prompt and sure-footed in using the power of presidential decree under martial law for this purpose. He has zeroed in on areas which have been widely recognized as prime sources of the nation's difficulties land tenancy, official corruption, tax evasion and abuse of oligarchic economic power. Clearly, he knows the targets. What is not yet certain is how accurate have been his shots. Nevertheless, there is marked public support for his leadership and tangible alternatives have not been forthcoming. That would suggest that he may not be striking too far from the mark.

The United States business community in Manila seems to have been re-assured by recent developments. (Emphasis supplied.)

Petitioners cannot safely assume that all the peaceful citizens of the country, who constitute the majority of the population, do not like the reforms stipulated in the new Constitution, as well as the decrees, orders and circulars issued to implement the same. It should be recalled, as hereinbefore stated, that all these reforms were the subject of discussion both in the committee hearings and on the floor of the Constitutional Convention, as well as in public forums sponsored by concerned citizens or civic organizations at which Con-Con delegates as well as other knowledgeable personages expounded their views thereon and in all the media of information before the proclamation of martial law on September 21, 1972. This is the reason why the Constitutional Convention, after spending close to P30 million during the period from June 1, 1971 to November 29, 1972, found it expedient to accelerate their proceedings in November, 1972 because all views that could possibly be said on the proposed provisions of the 1973 Constitution were already expressed and circulated. The 1973 Constitution may contain some unwise provisions. But this objection to such unwise or vague provisions, as heretofore stated, refers to the wisdom of the aforesaid provisions, which issue is not for this Court to decide; otherwise We will be substituting Our judgment for the judgment of the Constitutional Convention and in effect acting as a constituent assembly.

Consequently, in the promulgation and enforcement of Executive Order No. 68, the President of the Philippines has acted in conformity with the generally accepted principles and policies of international law which are part of our Constitution.

The promulgation of said executive order is an exercise by the President of his powers as Commander in Chief of all our armed forces, as upheld by this Court in the case of Yamashita vs. Styver (L-129, 42 Off. Gaz., 664) when We said:

Chief Justice Stone of the United States Supreme Court likewise appears to subscribe to this view, when, in his concurring opinion in Duncan vs. Kahanamoku (327 U.S. 304 [1946]), he defined martial law as "the exercise of the power which resides in the executive branch of the government to preserve order and insure the public safety in times of emergency, when other branches of the government are unable to function, or their functioning would itself threaten the public safety." (Emphasis supplied). There is an implied recognition in the aforesaid definition of martial law that even in places where the courts can function, such operation of the courts may be affected by martial law should their "functioning threaten the public safety." It is possible that the courts, in asserting their authority to pass upon questions which may adversely affect the conduct of the punitive campaign against rebels, secessionists, dissidents as well as subversives, martial law may restrict such judicial function until the danger to the security of the state and of the people shall have been decimated.

From the foregoing citations, under martial law occasioned by severe crisis generated by revolution, insurrection or economic depression or dislocation, the government exercises more powers and respects fewer rights in order "to end the crisis and restore normal times." The government can assume additional powers indispensable to the attainment of that end the complete restoration of peace. In our particular case, eradication of the causes that incited rebellion and subversion as secession, is the sine qua non to the complete restoration of normalcy. Exercise of legislative power by the President as Commander in Chief, upon his proclamation of martial law, is justified because, as he professes, it is directed towards the institution of radical reforms essential to the elimination of the causes of rebellious, insurgent or subversive conspiracies and the consequent dismantling of the rebellious, insurgent or subversive apparatus.

Hence, the issuance of Presidential Decree Nos. 86 and 86-A as well as Proclamation No. 1102 is indispensable to the effectuation of the reforms within the shortest possible time to hasten the restoration of normalcy.

"Must the government be too strong for the liberties of the people; or must it be too weak to maintain its existence?" That was the dilemma that vexed President Lincoln during the American Civil War, when without express authority in the Constitution and the laws of the United States, he suspended one basic human freedom the privilege of the writ of habeas corpus in order to preserve with permanence the American Union, the Federal Constitution of the United States and all the civil liberties of the American people. This is the same dilemma that presently confronts the Chief Executive of the Republic of the Philippines, who, more than the Courts and Congress, must, by express constitutional mandate, secure the safety of our Republic and the rights as well as lives of the people against open rebellion, insidious subversion secession. The Chief Executive announced repeatedly that in choosing to proclaim martial law, the power expressly vested in him by the 1935 Constitution (Sec. 10[2], Art. VII, 1935 Constitution) to insure our national and individual survival in peace and freedom, he is in effect waging a peaceful, democratic revolution from the center against the violent revolution and subversion being mounted by the economic oligarchs of the extreme right, who resist reforms to maintain their economic hegemony, and the communist rebels a Maoist oriented secessionists of the extreme left who demand swift institution of reforms. In the exercise of his constitutional and statutory powers, to save the state and to protect the citizenry against actual and threatened assaults from insurgents, secessionists and subversives, doctrinaire concepts and principles, no matter how revered they may be by jurisprudence and time, should not be regarded as peremptory commands; otherwise the dead hand of the past will regulate and control the security and happiness of the living present. A contrary view would be to deny the self-evident proposition that constitutions and laws are mere instruments for the well-being, peace, security and prosperity of the country and its citizenry. The law as a means of social control is not static but dynamic. Paraphrasing Mr. Justice Frankfurter, the Constitution is neither a printed finality nor the imprisonment of the past, but the enfolding of the future. In the vein of Mr. Justice Holmes, the meaning of the words of the Constitution is not to be determined by merely opening a dictionary. Its terms must be construed in the context of the realities in the life of a nation it is intended to serve. Because experience may teach one generation to doubt the validity and efficacy of the concepts embodied in the existing Constitution and persuade another generation to abandon them entirely, heed should be paid to the wise counsel of some learned jurists that in the resolution of constitutional questions like those posed before Us the blending of idealism and practical wisdom or progressive legal realism should be applied (see Alexander M. Bickel, the Supreme Court and the Idea of Progress, 1970 ed., pp. 19-21). To Justice Frankfurter, law is "a vital agency for human betterment" and constitutional law "is applied politics using the word in its noble sense." (Frankfurter, Law and Politics, 1939 ed., pp. 3 & 6; emphasis supplied). Justice Brandeis gave utterance to the truth that "Our Constitution is not a straight jacket. It is a living organism. As such, it is capable of growth or expansion and adaptation to new conditions. Growth implies changes, political, economic and social." (Brandeis Papers, Harvard Law School; emphasis supplied). Harvard Professor Thomas Reed Powell emphasizes "practical wisdom," for "the logic of constitutional law is the common sense of the Supreme Court." (Powell, the Validity of State Legislation, under the Webb-Kenyon Law, 2 Southern Law Quarterly, pp. 112, 138-139, cited in Bickel's Opus, supra; emphasis supplied).

The eternal paradox in this finite world of mortal and fallible men is that nothing is permanent except change. Living organisms as well as man-made institutions are not immutable. Civilized men organize themselves into a State only for the purpose of serving their supreme interest their welfare. To achieve such end, they created an agency known as the government. From the savage era thru ancient times, the Middle Ages, the Dark Ages and the Renaissance to this era of sophisticated electronics and nuclear weaponry, states and governments have mutated in their search for the magic instrument for their well-being. It was trial and error then as it is still now. Political philosophies and constitutional concepts, forms and kinds of government, had been adopted, overturned, discarded, re-adopted or modified to suit the needs of a given society at a particular given epoch. This is true of constitutions and laws because they are not "the infallible instruments of a manifest destiny." No matter how we want the law to be stable, it cannot stand still. As Mr. Justice Holmes aptly observed, every "constitution is an experiment as all life is an experiment," (Abrahms vs. U.S., 250 US 616, 631) for "the life of the law is not logic, but experience." In the pontifical tones of Mr. Justice Benjamin Nathan Cardozo, "so long as society is inconstant, there can be no constancy in law," and "there will be change whether we will it or not." As Justice Jose P. Laurel was wont to say, "We cannot, Canute-like, command the waves of progress to halt."

Thus, political scientists and jurists no longer exalt with vehemence a "government that governs least." Adherents there are to the poetic dictum of Alexander Pope: "For forms of government let fools contest; whatever is best administered is best." (Poems of Pope, 1931 Cambridge ed., p. 750). In between, the shades vary from direct democracy, representative democracy, welfare states, socialist democracy, mitigated socialism, to outright communism which degenerated in some countries into totalitarianism or authoritarianism.

Hence, even the scholar, who advances academic opinions unrelated to factual situations in the seclusion of his ivory tower, must perforce submit to the inexorable law of change in his views, concepts, methods and techniques when brought into the actual arena of conflict as a public functionary face to face with the practical problems of state, government and public administration. And so it is that some learned jurists, in the resolution of constitutional issues that immediately affect the lives, liberties and fortunes of the citizens and the nation, recommend the blending of idealism with practical wisdom which legal thinkers prefer to identify as progressive legal realism. The national leader, who wields the powers of government, must and has to innovate if he must govern effectively to serve the supreme interests of the people. This is especially true in times of great crises where the need for a leader with vision, imagination, capacity for decision and courageous action is greater, to preserve the unity of people, to promote their well-being, and to insure the safety and stability of the Republic. When the methods of rebellion and subversion have become covert, subtle and insidious, there should be a recognition of the corresponding authority on the part of the Commander-in-Chief of the Armed Forces to utilize all the available techniques to suppress the peril to the security of the government and the State.

Over a century and a half ago, Thomas Jefferson, one of the founding fathers of the American Constitution and former President of the United States, who personifies the progressive liberal, spoke the truth when he said that some men "ascribe men of the preceding age a wisdom more than human, and suppose what they did to be beyond amendment. ... But I know also, that laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed and manners and opinions change, with the change of circumstances, institutions must also advance, and keep pace with the times." (Vol. 12, Encyclopedia Brittanica, 1969 ed., p. 989).

The wisdom of the decision of the Chief Executive can only be judged in the perspective of history. It cannot be adequately and fairly appraised within the present ambience, charged as it is with so much tension and emotion, if not partisan passion. The analytical, objective historians will write the final verdict in the same way that they pronounced judgment on President Abraham Lincoln who suspended the privilege of the writ of habeas corpus without any constitutional or statutory authority therefor and of President Franklin Delano Roosevelt who approved the proclamation of martial law in 1941 by the governor of Hawaii throughout the Hawaiian territory. President Lincoln not only emancipated the Negro slaves in America, but also saved the Federal Republic of the United States from disintegration by his suspension of the privilege of the writ of habeas corpus, which power the American Constitution and Congress did not then expressly vest in him. No one can deny that the successful defense and preservation of the territorial integrity of the United States was due in part, if not to a great extent, to the proclamation of martial law over the territory of Hawaii main bastion of the outer periphery or the outpost of the American defense perimeter in the Pacific which protected the United States mainland not only from actual invasion but also from aerial or naval bombardment by the enemy. Parenthetically, the impartial observer cannot accurately conclude that the American Supreme Court acted with courage in its decision in the cases of Ex parte Milligan and Duncan vs. Kahanamoku (filed on May 10, 1865 argued on March 5 to 13, 1866, decided on April 3, 1866, and opinion delivered on December 17, 1866) after the lifting of the proclamation suspending the privilege of the writ of habeas corpus, long after the Civil War and the Second World ended respectively on April 9 or 26, 18-65 (Vol. 1, Encyclopedia Britannica, 1969 ed., pp. 730, 742) and on September 2, 1945 (Vol. 23, Encyclopedia Britannica, 1969 ed., p. 799). Was the delay on the part of the American Supreme Court in deciding these cases against the position of the United States President in suspending the privilege of the writ of habeas corpus in one case and approving the proclamation of martial law in the other deliberate as an act of judicial statesmanship and recognition on their part that an adverse court ruling during the period of such a grave crisis might jeopardize the survival of the Federal Republic of the United States in its life-and-death struggle against an organized and well armed rebellion within its own borders and against a formidable enemy from without its territorial confines during the last global armageddon?

VIII. DOCTRINE OF SEPARATION OF POWERS PRECLUDES MANDAMUS AGAINST SENATORS

In G. R. No. L-36165, mandamus will not lie to compel respondents Gil Puyat and Jose Roy to convene the Senate of the Philippines even on the assumption that the 1935 Constitution still subsists; because pursuant to the doctrine of separation of powers under the 1935 Constitution, the processes of this Court cannot legally reach a coordinate branch of the government or its head. This is a problem that is addressed to the Senate itself for resolution; for it is purely an internal problem of the Senate. If a majority of the senators can convene, they can elect a new Senate President and a new Senate President Pro Tempore. But if they have no quorum, those present can order the arrest of the absent members (Sec. 10[2], Art. VI, 1935 Constitution). If this fails, then there is no remedy except an appeal to the people. The dictum ubi jus, ubi remedium, is not absolute and certainly does not justify the invocation of the power of this Court to compel action on the part of a co-equal body or its leadership. This was emphasized with sufficient clarity by this Court in the 1949 case of Avelino vs. Cuenco (83 Phil. 17, 22,24), with which the distinguished counsels for the petitioners in L-36164 and L-36165 are familiar. We stress that the doctrine of separation of powers and the political nature of the controversy such as this, preclude the interposition of the Judiciary to nullify an act of a coordinate body or to command performance by the head of such a co-ordinate body of his functions..

Mystifying is the posture taken by counsels for petitioners in referring to the political question doctrine almost in mockery as a magic formula which should be disregarded by this Court, forgetting that this magic formula constitutes an essential skein in the constitutional fabric of our government, which, together with other basic constitutional precepts, conserves the unity of our people, strengthens the structure of the government and assures the continued stability of the country against the forces of division, if not of anarchy.

Moreover, if they have a quorum, the senators can meet anywhere. Validity of the acts of the Senate does not depend on the place of session; for the Constitution does not designate the place of such a meeting. Section 9 of Article VI imposes upon Congress to convene in regular session every year on the 4th Monday of January, unless a different date is fixed by law, or on special session called by the President. As former Senator Arturo Tolentino, counsel for respondents Puyat and Roy in L-36165, stated, the duty to convene is addressed to all members of Congress, not merely to its presiding officers. The fact that the doors of Congress are padlocked, will not prevent the senators especially the petitioners in L-36165 if they are minded to do so, from meeting elsewhere at the Sunken Gardens, at the Luneta Independence Grandstand, in any of the big hotels or theaters, in their own houses, or at the Araneta Coliseum, which is owned by the father-in-law of petitioner Gerardo Roxas in L-36165.

However, a session by the Senate alone would be purely an exercise in futility, for it cannot validly meet without the lower House (Sec. 10[5], Art. VI, 1935 Constitution). Hence, this petition by five former senators for mandamus in L-36165 is useless.

And, as pointed out by former Senator Arturo Tolentino, counsel for respondents Puyat and Roy, mandamus will lie only if there is a law imposing on the respondents the duty to convene the body. The rule imposing such a duty invoked by petitioners in L-36165 is purely an internal rule of the Senate; it is not a law because it is not enacted by both Houses and approved by the President.

The Constitutional provision on the convening of Congress, is addressed to the individual members of the legislative body (Sec. 9, Art. VI of 1935 Constitution).

As heretofore stated, Proclamation No. 1102 is an enactment of the President as Commander-in-Chief during martial law as directly delegated to him by Section 10(2) of Article VII of the 1935 Constitution.

A declaration that the 1973 Constitution is unenforceable and inoperative is practically deciding that the same is unconstitutional.
The proposed Constitution is an act of the Constitutional Convention, which is co-equal and coordinate with as well as independent of either Congress or the Chief Executive. Hence, its final act, the 1973 Constitution, must have the same category at the very least as the act of Congress itself.

Consequently, the required vote to nullify Proclamation No. 1102 and the 1973 Constitution should be eight (8) under Section 10 of Article VIII of the 1935 Constitution in relation to Section 9 of the Judiciary Act or Republic Act No. 296, as amended, or should be ten (10) under Section 2(2) of Article X of the 1973 Constitution. Should the required vote of eight (8) or ten (10), as the case may be, for the declaration of invalidity or unconstitutionality be not achieved, the 1973 Constitution must be deemed to be valid, in force and operative.

X. ARTICLE OF FAITH

We yield to no man as devotees of human rights and civil liberties. Like Thomas Jefferson, We swear "eternal hostility towards any form of tyranny over the mind of man" as well as towards bigotry and intolerance, which are anathema to a free spirit. But human rights and civil liberties under a democratic or republican state are never absolute and never immune to restrictions essential to the common weal. A civilized society cannot long endure without peace and order, the maintenance of which is the primary function of the government. Neither can civilized society survive without the natural right to defend itself against all dangers that may destroy its life, whether in the form of invasion from without or rebellion and subversion from within. This is the first law of nature and ranks second to none in the hierarchy of all values, whether human or governmental. Every citizen, who prides himself in being a member or a civilized society under an established government, impliedly submits to certain constraints on his freedom for the general welfare and the preservation of the State itself, even as he reserves to himself certain rights which constitute limitations on the powers of government. But when there is an inevitable clash between an exertion of governmental authority and the assertion of individual freedom, the exercise of which freedom imperils the State and the civilized society to which the individual belongs, there can be no alternative but to submit to the superior right of the government to defend and preserve the State. In the language of Mr. Justice Holmes often invoked by herein petitioners "when it comes to a decision involving its (state life, the ordinary rights of individuals must yield to what he (the President) deems the necessities of the moment. Public danger warrants the substitution of executive process for judicial process. (See Keely vs. Sanders, 99 U.S. 441, 446, 25 L ed. 327, 328). This was admitted with regard to killing men in the actual clash of arms. And we think it is obvious, although it was disputed, that the same is true of temporary detention to prevent apprehended harm." (Moyer vs. Peabody, 212 U.S. 77, 85, 53 L ed., 411, 417).

The rhetoric of freedom alone is not enough. It must be the rhetoric of freedom with order and security for all, that should be the shibboleth; for freedom cannot be enjoyed in an environment of disorder and anarchy.

The incumbent Chief Executive who was trying to gain the support for his reform program long before September 21, 1972, realized almost too late that he was being deceived by his partymates as well as by the opposition, who promised him cooperation, which promises were either offered as a bargaining leverage to secure concessions from him or to delay the institution of the needed reforms. The people have been victimized by such bargaining and dilly-dallying. To vert a terrifying blood bath and the breakdown of the Republic, the incumbent President proclaimed martial law to save the Republic from being overrun by communists, secessionists and rebels by effecting the desired reforms in order to eradicate the evils that plague our society, which evils have been employed by the communists, the rebels and secessionists to exhort the citizenry to rise against the government. By eliminating the evils, the enemies of the Republic will be decimated. How many of the petitioners and their counsels have been utilizing the rebels, secessionists and communists for their own personal or political purposes and how many of them are being used in turn by the aforesaid enemies of the State for their own purposes?

If the petitioners are sincere in their expression of concern for the greater mass of the populace, more than for their own selves, they should be willing to give the incumbent Chief Executive a chance to implement the desired reforms. The incumbent President assured the nation that he will govern within the framework of the Constitution and if at any time, before normalcy is restored, the people thru their Citizens' Assemblies, cease to believe in his leadership, he will step down voluntarily from the Presidency. But if, as apprehended by the petitioners, he abuses and brutalizes the people, then to the battlements we must go to man the ramparts against tyranny. This, it is believed, he knows only too well; because he is aware that he who rides the tiger will eventually end inside the tiger's stomach. He who toys with revolution will be swallowed by that same revolution. History is replete with examples of libertarians who turned tyrants and were burned at stake or beheaded or hanged or guillotined by the very people whom they at first championed and later deceived. The most bloody of such mass executions by the wrath of a wronged people, was the decapitation by guillotine of about 15,000 Frenchmen including the leaders of the French revolution, like Robespierre, Danton, Desmoulins and Marat. He is fully cognizant of the lessons of history.

The issues raised for determination, on which the resolution of the Motion to Dismiss hinges, are as follows:

The undisputed facts that led to the issuance of Proclamation No. 1102 and Presidential Decrees Nos. 86 and 86-A are fully set forth in the majority and dissenting opinions in the Plebiscite cases decided on January 22, 1973, and need not be repeated here.

Petitioners seek to set at naught Proclamation No. 1102 and Presidential Decrees Nos. 86 and 86-A, claiming that the ratification of the new Constitution pursuant to the said decrees is invalid and of no effect. Presidential Decree No. 86 organized the barangays or Citizens Assemblies composed of all citizens at least fifteen years of age, and through these assemblies the proposed 1972 Constitution was submitted to the people for ratification. Proclamation No. 1102 of the President announced or declared the result of the referendum or plebiscite conducted through the Citizens Assemblies, and that 14,976,561 members thereof voted for the ratification of the new Constitution and 743,869 voted against it. Petitioners assail these two acts of the President as unauthorized and devoid of legal effect.

But looking through the veneer of judicial conformity with which the petitions have been adroitly contrived, what is sought to be invalidated is the new Constitution itself - the very framework of the present Government since January 17, 1973. The reason is obvious. The Presidential Decrees set up the means for the ratification and acceptance of the new Constitution and Proclamation No. 1102 simply announced the result of the referendum or plebiscite by the people through the Citizens Assemblies. The Government under the new Constitution has been running on its tracks normally and apparently without obstruction in the form of organized resistance capable of jeopardizing its existence and disrupting its operation. Ultimately the issue is whether the new Constitution may be set aside by this Court. But has it the power and authority to assume such a stupendous task when the result of such invalidation would be to subject this nation to divisive controversies that may totally destroy the social order which the Government under the new Constitution has been admirably protecting and promoting under Martial Law? That the new Constitution has taken deep root and the people are happy and contended with it is a living reality which the most articulate critics of the new order cannot deny. 95 out of 108 members of the House of Representatives have opted to serve in the interim National Assembly provided for under the new Constitution. 15 out of 24 Senators have done likewise. The members of the Congress did not meet anymore last January 22, 1973, not because they were really prevented from so doing but because of no serious effort on their parts to assert their offices under the 1935 Constitution. In brief, the Legislative Department under the 1935 Constitution is a thing of the past. The Executive Department has been fully reorganized; the appointments of key executive officers including those of the Armed Forces were extended and they took an oath to support and defend the new Constitution. The courts, except the Supreme Court by reason of these cases, have administered justice under the new constitution. All government offices have dealt with the public and performed their functions according to the new Constitution and laws promulgated thereunder.

If the real purpose of the petitions is to set aside the new Constitution, how can this Court justify its assumption of jurisdiction when no power has conferred upon it the jurisdiction to declare the Constitution or any part thereof null and void? It is the height of absurdity and impudence for a court to wage open war against the organic act to which it owes its existence. The situation in which this Court finds itself does not permit it to pass upon the question whether or not the new Constitution has entered into force and has superseded the 1935 Constitution. If it declares that the present Constitution has not been validly ratified, it has to uphold the 1935 Constitution as still the prevailing organic law. The result would be too anomalous to describe, for then this Court would have to declare that it is governed by one Constitution or the 1935 Constitution, and the legislative and executive branches by another or the 1972 Constitution.

If it declares that the 1972 Constitution is now operative, how can it exercise judicial discretion in these cases when it would have no other choice but to uphold the new Constitution as against any other one? In the circumstances it would be bereft of judicial attributes as the matter would then be not meet for judicial determination, but one addressed to the sovereign power of the people who have already spoken and delivered their mandate by accepting the fundamental law on which the government of this Republic is now functioning. To deny that the new Constitution has been accepted and actually is in operation would be flying in the face of reason and pounding one's bare head against a veritable stone wall or a heavily reinforced concrete, or simply "kicking the deadly pricks" with one's bare foot in an effort to eliminate the lethal points.

When a Constitution has been in operation for sometime, even without popular ratification at that, submission of the people thereto by the organization of the government provided therein and observance of its prescriptions by public officers chosen thereunder, is indicative of approval. Courts should be slow in nullifying a Constitution claimed to have been adopted not in accordance with constitutional or statutory directives [Miller vs. Johnson, 92 Ky. 589; 189 S.W. 522; Taylor vs Commonwealth, 101; Va. 829; 44 S.E. 754; Smith vs. Good, 34 F 204, 207; Wiston vs. Ryan, 70 Neb. 211; 97 N.W. 347].

Certainly the invalidation of Proclamation No. 1102 and Presidential Decrees Nos. 86 and 86-A by this Court would smack of plain political meddling which is described by the United States Supreme Court as "entering a political thicket" in Colegrove vs. Green, 328 U.S. p. 549. At this juncture it would be the part of wisdom for this Court to adopt the proper attitude towards political upheavals and realize that the question before Us is political and not fit for judicial determination. For a political question is one entrusted to the people for judgment in their sovereign capacity (Tañada vs. Cuenco, G. R. No. L-10520, Feb. 28,1967; 100 Phil. 1101), or to a co-equal and coordinate branch of the Government (Vera vs. Arellano, 77 Phil. 192; Mabanag vs. Lopez Vito, 78 Phil. 1; Alejandrino vs. Quezon, 46 Phil. 35; Cabili vs. Francisco, G. R. No. 4638, May 8, 1931). A case involves a political question when there would be "the impossibility of undertaking independent resolutions without expressing a lack of respect due to coordinate branches of government", or when there is "the potentiality of embarrassment from multifarious pronouncements by various departments on one question."

To preserve the prestige and eminence that this Court has long enjoyed as the "ultimate organ of the "Supreme Law of the Land" in that vast range of legal problems often strongly entangled in popular feeling on which this Court must pronounce", let us harken to the following admonition of Justice Frankfurter in his dissent in Baker vs. Carr, 369 U.S. 186; 82 S. Ct. 691; 7 L. Ed. 2d. 663:

The Court's authority possessed neither of the purse nor the sword ultimately rests on sustained public confidence in its moral sanction. Such feeling must be nourished by the Court's complete detachment, in fact and appearance, from political entanglements and abstention from injecting itself into the clash of political forces in political settlement." (Emphasis supplied)

The people have accepted and submitted to a Constitution to replace the 1935 Constitution. The new organic law is now in the plenitude of its efficacy and vigor. We are now living under its aegis and protection and only the cynics will deny this. This Court should not in the least attempt to act as a super-legislature or a super-board of canvassers and sow confusion and discord among our people by pontificating there was no valid ratification of the new Constitution. The sober realization of its proper role and delicate function and its consciousness of the limitations on its competence, especially situations like this, are more in keeping with the preservation of our democratic tradition than the blatant declamations of those who wish the Court to engage in their brand of activism and would not mind plunging it into the whirlpool of passion and emotion in an effort to capture the intoxicating applause of the multitude.

In these five cases, the main issue to be resolved by the Court is whether or not the Constitution proposed by the Constitutional Convention of 1971 had been ratified in accordance with the provisions of Article XV of the 1935 Constitution. In the plebiscite cases which were decided by this Court on January 22, 1973,[1] I held the view that this issue could be properly resolved by this Court, and that it was in the public interest that this Court should declare then whether or not the proposed Constitution had been validly ratified. The majority of this Court, however, was of the view that the issue was not squarely raised in those cases, and so the Court, as a body, did make any categorical pronouncement on the question of whether or not the Constitution proposed by the 1971 Convention was validly ratified. I was the only one who expressed the opinion that the proposed Constitution was not validly ratified and therefore "it should not be given force and effect."

The Court is now called upon to declare, and to inform the people of this country, whether or not that proposed Constitution had been validly ratified and had come into effect.

The Solicitor General, however, contends that this Court has no jurisdiction to resolve the issue that we have mentioned because that issue is a political question that cannot be decided by this Court. This contention by the Solicitor General is untenable. A political question relates 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 legislative, or to the executive, branch of the government.[2] The courts have the power to determine whether the acts of the executive are authorized by the Constitution and the laws whenever they are brought before the court in a judicial proceeding. The judicial department of the government exercises a sort of controlling, or rather restraining, power over the two other departments of the government. Each of the three departments, within its proper constitutional sphere, acts independently of the other, and restraint is only placed on one department when that sphere is actually transcended. While a court may not restrain the executive from committing an unlawful act, it may, when the legality of such an act is brought before it in a judicial proceeding, declare it to be void, the same as it may declare a law enacted by the legislature to be unconstitutional.[3] It is a settled doctrine that every officer under a constitutional government must act according to law and subject to its restrictions, and every departure therefrom, or disregard thereof, must subject him to the restraining and controlling power of the people, acting through the agency of the judiciary. It must be remembered that the people act through the courts, as well as through the executive or the legislature. One department is just as representative as the other, and judiciary is the department which is charged with the special duty of determining the limitations which the law places upon all official actions.[4] In the case of Gonzales v. Commission on Elections,[5] this Court ruled that the issue as to whether or not a resolution of Congress acting as a constituent assembly violates the Constitution is not a political question and is therefore subject to judicial review. In the case of Avelino v. Cuenco,[6] this Court held that the exception to the rule that courts will not interfere with a political question affecting another department is when such political question involves an issue as to the construction and interpretation of the provision of the constitution. And so, it has been held that the question of whether a constitution shall be amended or not is a political question which is not in the power of the court to decide, but whether or not the constitution has been legally amended is a justiciable question.[7]

My study on the subject of whether a question before the court is political or judicial, based on decisions of the courts in the United States where, after all, our constitutional system has been patterned to a large extent made me arrive at the considered view that it is in the power of this Court, as the ultimate interpreter of the Constitution, to determine the validity of the proposal, the submission, and the ratification of any change in the Constitution. Ratification or non-ratification of a constitutional amendment is a vital element in the procedure to amend the constitution, and I believe that the Court can inquire into, and decide on, the question of whether or not an amendment to the constitution, as in the present cases, has been ratified in accordance with the requirements prescribed in the Constitution that was amended. And so, in the cases now before Us, I believe that the question of whether or not the Constitution proposed by the 1971 Constitutional Convention had been validly ratified or not is a justiciable question.

The Chief Justice, in his opinion, has discussed lengthily the subject on whether or not, the cases, before Us involve a political, or a judicial, question. I fully concur with his conclusion that the question involved in these cases is justiciable.

On the question now of whether or not the Constitution proposed by the 1971 Constitutional Convention has been validly ratified, I am reproducing herein pertinent portions of my dissenting opinion in the plebiscite cases:

The ratification of the Constitution proposed by the 1971 Constitutional Convention must be done in accordance with the provisions of Section 1, Article XV of the 1935 Constitution of the Philippines, which reads:

This Court, in the case of Tolentino vs. Commission Elections, L-35140, October 16, 1971 (41 SCRA 715), speaking through Mr. Justice Barredo, said:

It is very plain from the very wordings of Proclamation No. 1102 that the provisions of Section 1 of Article XV of the Constitution of 1935 were not complied with. It is not necessary that evidence be produced before this Court to show that no elections were held in accordance with the provisions of the Election Code. Proclamation No. 1102 unequivocally states that the proposed Constitution of 1972 was voted upon by the barangays. It is very clear, therefore, that the voting held in these barangays is not the election contemplated in the provisions of Section 1, Article XV, of the 1935 Constitution. The election contemplated in said constitutional provision is an election held in accordance with the provisions of the election law, where only the qualified and registered voters of the country would cast their votes, where official ballots prepared for the purpose are used, where the voters would prepare their ballots in secret inside the voting booths in the polling places established in the different election precincts throughout the country, where the election is conducted by election inspectors duly appointed in accordance with the election law, where the votes are canvassed and reported in a manner provided for in the election law. It was this kind of election that was held on May 14, 1935, when the Constitution of 1935 was ratified; on April 30, 1937, when the amendment to the Constitution providing for Women's Suffrage was ratified; on June 18, 1940, when the 1940 Amendments to the Constitution were ratified; on March 11, 1947 when the Parity Amendment to the Constitution was ratified; and on November 14, 1967 when the amendments to the Constitution to increase the number of Members of the House of Representatives and to allow the Members of Congress to run in the elections for Delegates to the Constitutional Convention of 1971 were rejected.

I cannot see any valid reason why the practice or procedure in the past, in implementing the constitutional provision requiring the holding, of an election to ratify or reject an amendment to the Constitution, has not been followed in the case of the Constitution proposed by the 1971 Constitutional Convention.

It is my view that the President of the Philippines cannot by decree order the ratification of the proposed 1972 Constitution thru a voting in the barangays and make said result the basis for proclaiming the ratification of the proposed constitution. It is very clear, to me, that Proclamation No. 1102 was issued in complete disregard or in violation, of the provisions of Section 1 of Article X of the 1935 Constitution.

Proclamation No. 1102 mentions, furthermore, that on the question as to whether or not the people would still like a plebiscite to be called to ratify the new Constitution, 14,298,814 members of the barangays answered that there was no need for a plebiscite but that the vote of the barangays should be considered a vote in a plebiscite. It would thus appear that the barangays assumed the power to determine whether a plebiscite as ordained in the Constitution be held or not. Indeed, the provision of Section 1, Article XV of the Constitution was completely disregarded.

The affirmative votes cast in the barangays are not the votes contemplated in Section 1 of Article XV of the 1935 Constitution. The votes contemplated in said constitutional provision are votes obtained through the election processes as provided by law.

But what is more noteworthy is the fact that the voting in the barangays, except in very few instances, was done by the raising of hands by the persons indiscriminately gathered to participate in the voting, where even children below 15 years of age were included. This is a matter of common observation, or of common knowledge, which the Court may take judicial notice of. To consider the votes in the barangays as expressive of the popular will and use them as the basis in declaring whether a Constitution is ratified or rejected is to resort to a voting by demonstrations, which is would mean the rule of the crowd, which is only one degree higher than the rule by the mob. Certainly, so important a question as to whether the Constitution, which is the supreme law of the land, should be ratified or not, must not be decided by simply gathering people and asking them to raise their hands in answer to the question of whether the vote for or against a proposed Constitution. The election as provided by law should be strictly observed in determining the will of the sovereign people in a democracy. In our Republic, the will of the people must be expressed through the ballot in a manner that is provided by law.

It is said that in a democracy, the will of the people is the supreme law. Indeed, the people are sovereign, but the will of the people must be expressed in a manner as the law and the demands a well-ordered society require. The rule of law must prevail even over the apparent will of the majority of the people, if that will had not been expressed, or obtained, in accordance with the law. Under the rule of law, public questions must be decided in accordance with the Constitution and the law. This is specially true in the case of adoption of a constitution or in the ratification of an amendment to the Constitution.

The following citations are, to me, very relevant in the effort to determine whether the proposed Constitution of 1972 had been validly ratified or not:

In our jurisprudence I find an instance where this Court did not allow the will of the majority to prevail, because the requirements of the law were not complied with. In the case of Monsale v. Nico, 83 Phil. 758, Monsale and Nico were both candidates for the office of Municipal Mayor of Miagao, Iloilo, in the elections of November 11, 1947. Monsale had duly filed his certificate of candidacy before the expiration of the period for the filing of the same. However, on October 10, 1947, after the period for the filing of the certificate of candidacy, Monsale withdrew his certificate of candidacy. But on November 7, 1947 Monsale attempted to revive his certificate of candidacy by withdrawing the withdrawal of certificate of candidacy. The Commission on Elections, November 8, 1947, ruled that Monsale could no longer be a candidate. Monsale nevertheless proceeded with his candidacy. The boards of inspectors in Miagao, however, did not count the votes cast for Monsale upon the ground that the votes cast for him were stray votes, because he was considered as having no certificate of candidacy. On the other hand, the boards of inspectors credited Nico with 2,291 votes, and Nico was proclaimed elected. Monsale filed a protest against the election of Nico in the Court of First Instance of Iloilo. In the count of the ballots during the proceedings in the trial court, it appeared that Monsale had obtained 2,877 votes while Nico obtained 2,276 votes, or a margin of 601 votes in favor of Monsale. The Court of First Instance of Iloilo decided the election protest in favor of Monsale. Upon appeal by Nico, this Court reversed the decision of the lower court. This Court declared that because Monsale withdrew his certificate of candidacy, his attempt to revive it by withdrawing his withdrawal of his certificate of candidacy did not restore the effectiveness of his certificate of candidacy, and this Court declared Nico the winner in spite of the fact that Monsale had obtained more votes than he.

We have cited this Monsale case to show that the will of the majority of the voters would not be given effect, as declared by this Court, if certain legal requirements have not been complied with in order to render the votes valid and effective to decide the result of an election.

And so, in the cases now before this Court, the fact that the voting in the citizens assemblies (barangays) is not the election that is provided for in the 1935 Constitution for the ratification of the amendment to the Constitution, the affirmative votes cast in those assemblies can not be made the basis for declaring the ratification of the proposed 1972 Constitution, in spite of the fact that it was reported that 14,976,561 members of the citizens assemblies voted for the adoption as against 743,869 for the rejection, because the votes thus obtained were not in accordance with the provisions of Section 1 of Article XV of the 1935 Constitution of the Philippines. The rule of law mast be upheld.

My last observation: One of the valid grounds against the holding of the plebiscite on January 15, 1973, as provided in Presidential Decree No. 73, is that there is no freedom on the part of the people to exercise their right of choice because of the existence of martial law in our country. The same ground holds true as regards to the voting of the barangays on January 10 to 15, 1973. More so, because by General Order No. 20, issued on January 7, 1973, the President of the Philippines ordered "that the provisions of Section 3 of Presidential Decree No. 73 in so far as they allow free public discussion of the proposed constitution, as well as my order of December 17, 1972 temporarily suspending the effects of Proclamation No. 1081 for the purpose of free and open debate on the proposed constitution, be suspended in the meantime." It is, therefore, my view that voting in the barangays on January 10, 1973 was not free, and so this is one added reason why the results of the voting in the barangays should not be made the basis for proclamation of the ratification of the proposed Constitution.

It is my view, therefore, that Proclamation No. 1102 repugnant to the 1935 Constitution, and so it is invalid, and should not be given effect. The Constitution of 1972 proposed by the 1971 Constitutional Convention should be considered as not yet ratified by the people of this Republic, and so it should not be given force and effect.

It is urged by the Solicitor General, however, that the voting in the citizens assemblies was a substantial compliance with the provisions of Article XV of the 1935 Constitution. The Solicitor General maintains that the primary thrust of the provision of Article XV of the 1935 Constitution is that "to be valid, amendments must gain the approval of the majority recognition of the democratic postulate that sovereign resides in the people." It is not disputed that in a democratic sovereignty resides in the people. But the term "people" must be understood in its constitutional meaning, and they are "those persons who are permitted by the Constitution to exercise the elective franchise."[8] Thus, in Section 2 of Article VII of the 1935 Constitution, it is provided that "the President shall hold his office during a term of four years and, together with the Vice-President chosen for the same term, shall be elected by direct vote of the people" Certainly under that constitutional provision, the "people" who elect directly the President and the Vice-President are no other than the persons who, under the provisions of the same Constitution, are granted the right to vote. In like manner the provision in Section 1 of Article II of the 1935 Constitution which says "Sovereignty resides in the people and all government authority emanates from them", the "people" who exercise the sovereign power are no other than the persons who have the right to vote under the Constitution. In the case of Garchitorena vs. Crescini,[9] this Court, speaking through Mr. Justice Johnson, said, "In democracies, the people, combined, represent the sovereign power of the State. Their sovereign authority is expressed through the ballot, of the qualified voters, in duly appointed elections held from time to time, by means of which they choose their officials for definite fixed periods, and to whom they entrust, for the time being, as their representatives, the exercise of the powers of government." In the case of Moya v. Del Fierro,[10] this Court, speaking through Mr. Justice Laurel, said, "As long as popular government is an end to be achieved and safeguarded, suffrage, whatever may be the modality and form devised, must continue to be the means by which the great reservoir of power must be emptied into the receptacular agencies wrought by the people through their Constitution in the interest of good government and the common weal. Republicanism, in so far as it implies the adoption of a representative type of government, necessarily points to the enfranchised citizen as a particle of popular sovereignty and as the ultimate source of the established authority." And in the case of Abanil v. Justice of the Peace of Bacolod,[11] this Court said: "In the scheme of our present republican government, the people are allowed to have a voice therein through the instrumentality of suffrage to be availed of by those possessing certain prescribed qualifications. The people, in clothing a citizen with the elective franchise for the purpose of securing a consistent and perpetual administration of the government they ordain, charge him with the performance of a duty in the nature of a public trust, and in that respect constitute him a representative of the whole people. This duty requires that the privilege thus bestowed exclusively for the benefit of the citizen or class of citizens professing it, but in good faith and with an intelligent zeal for the general benefit and welfare of the state. (U.S. v. Cruikshauk, 92 U.S. 588)." There is no question, therefore, that when we talk of sovereign people, what is meant are the people who act through the duly qualified and registered voters who vote during an election that is held as provided in the Constitution or in the law.

The term "election" as used in Section 1 of Article XV of the 1935 Constitution should be construed along with the term "election" as used in the Provisions of Section 4 of the Philippine Independence Act of the Congress of the United States, popularly known as the Tydings-McDuffie Law (Public Act No. 127). Said Section 4 of the Tydings-McDuffie Law provides as follows:

It is clear therefore, that the ratification or any amendment to the 1935 Constitution could only be done by holding an election, as the term "election" was understood, and practiced, when the 1935 Constitution as drafted. The alleged referendum in the citizens assemblies participated in by persons aged 15 years or more, regardless of whether they were qualified voters or not, voting by raising their hands, and the results of the voting reported by the barrio or ward captain, to the municipal mayor, who in turn submitted the report to the provincial Governor, and the latter forwarding the reports to the Department of Local Governments, all without the intervention of the Commission on Elections which is the constitutional body which has exclusive charge of the enforcement and administration of all laws, relative to the conduct of elections was not only a non-substantial compliance with the provisions of Section 1 of Article XV of the 1935 Constitution but a downright violation of said constitutional provision. It would be indulging in sophistry to maintain that the voting in the citizens assemblies amounted to a substantial compliance with the requirements prescribed in Section 1 of Article XV of the 1935 Constitution.

It is further contended by the Solicitor General, that even if the Constitution proposed by the 1971 Constitutional Convention was not ratified in accordance with the provisions of Section 1 of Article XV of the 1935 Constitution, the fact is that after the President of the Philippines had issued Proclamation No. 1102 declaring that the said proposed Constitution "has been ratified by overwhelming majority of all the votes cast by the members of all the barangays (citizens assemblies) throughout the Philippines and had thereby come into effect" the people have accepted the new Constitution. What appears to me, however, is that practically it is only the officials and employees under the executive department of the Government who have been performing their duties apparently in observance of the provisions of the new Constitution. It could not be otherwise, because the President of the Philippines, who is the head of the executive department, had proclaimed that the new Constitution had come into effect, and his office had taken the steps to implement the provisions of the new Constitution. True it is, that some 92 members of the House of Representatives and 15 members of the Senate, of the Congress of the Philippines had expressed their option to serve in the interim National Assembly that is provided for in Section 2 of Article XVII of the proposed Constitution. It must be noted, however, that of the 15 senators who expressed their option to serve in the interim National Assembly only one them took his oath of office; and of the 92 members of the House of Representatives who opted to serve in the interim National Assembly, only 22 took their oath of office. The fact that only one Senator out of 24, and only 22 Representative out of 110, took their oath of office, is an indication that only a small portion of the members of Congress had manifested the acceptance of the new Constitution. It is in the taking of the oath of office where the affiant says that he swears to "support and defend the Constitution" that the acceptance of the Constitution is made manifest. I agree with counsel petitioners in L-36165 (Gerardo Roxas, et al. v. Alejandro Melchor, et al.) when he said that the members of Congress who opted to serve in the interim National Assembly did only ex abundante cautela, or by way of a precaution, making sure, that in the event the new Constitution becomes definitely effective and the interim National Assembly convened, they can participate in legislative work in the capacity as duly elected representatives of the people, which otherwise they could not do if they did not manifest their option to serve, and that option had to be made within 30 day from January 17, 1973, the date when Proclamation No. 110 was issued. Of course, if the proposed Constitution does not become effective, they continue to be members of Congress under the 1935 Constitution. Let it be considered that the members of the House of Representatives were elected in 1969 to serve a term which will yet expire on December 31, 1973. Whereas, of the Senators who opted to serve in the interim National Assembly, the term of some of them will yet expire on December 31, 1973, some on December 31, 1975, and the rest on December 31, 1977. Let if be noted that 9 Senators did not opt to serve in the interim National Assembly, and 18 members of the House of Representatives also did not opt to serve in the interim National Assembly.

Neither can it be said that the people have accepted the new Constitution. I cannot, in conscience, accept the reported affirmative votes in the citizens assemblies as a true and correct expression by the people of their approval, or acceptance, of the proposed Constitution. I have my serious doubts regarding the freedom of the people to express their views regarding the proposed Constitution during the voting in the citizens assemblies, and I have also my serious doubts regarding the truthfulness and accuracy of the reports of the voting in the citizens assemblies. This doubt has been engendered in my mind after a careful examination and study of the records of these cases, particularly with respect to the reports of the voting in the citizens assemblies. Perhaps, it may be said that the people, or the inhabitants of this country, have acquiesced to the new Constitution, in the sense that they have continued to live peacefully and orderly under the government that has been existing since January 17, 1973 when it was proclaimed that the new Constitution came into effect. But what could the people do? In the same way that the people have lived under martial law since September 23, 1972, they also have to live under the government as it now exists, and as it has existed since the declaration of martial law on September 21, 1972, regardless of what Constitution is operative whether it is the 1935 Constitution or the new Constitution. Indeed, there is nothing that the people can do under the circumstances actually prevailing in our country today circumstances, known to all, and which I do not consider necessary to state in this opinion. I cannot agree, therefore, with my worthy colleagues in the Court who hold the view that the people have accepted the new Constitution, and that because the people have accepted it, the new Constitution should be considered as in force, regardless of the fact that it was not ratified in accordance with the provisions of Section 1 of Article XV of the 1935 Constitution.

It is my honest view that the Constitution proposed by the 1971 Constitutional Convention has not come into effect. I do not say, however, that the proposed Constitution is invalid. To me, the validity of the proposed Constitution is not in issue in the cases before Us. What the petitioners assail is not the validity of the proposed Constitution but the validity of Presidential Proclamation No. 1102 which declares the proposed Constitution as having been ratified and has come into effect. It being my considered view that the ratification of the proposed Constitution, as proclaimed in Proclamation No. 1102, is not in accordance with the provisions of Section 1 of Article XV, of the 1935 Constitution, I hold that Proclamation No. 1102 is invalid and should not be given force and effect. Their proposed Constitution, therefore, should be considered as not yet validly ratified, and so it is not in force. The proposed Constitution may still be submitted to a plebiscite in conformity with Section 1 of Article XV of the 1935 Constitution. Incidentally, I must state that the Constitution is still in force, and this Court is still functioning under the 1935 Constitution.

I sincerely believe that the proposed Constitution may still be submitted to the people in an election or plebiscite held in accordance with the provisions of Section 1 of Article XV of the 1935 Constitution. In fact, as we have adverted to in this opinion, this was the mandate of Congress when, on March 16, 1967, it passed Resolution No. 2 calling a convention to propose amendments to the 1935 Constitution. The Court may take judicial notice of the fact that the President of the Philippines has reassured the nation that the government of our Republic since the declaration of martial law is not a revolutionary government, and that he has been acting all the way in consonance with his powers under the Constitution. The people of this Republic has reason to be happy because, according to the President, we still have a constitutional government. It being my view that the 1935 Constitution is still in force, I believe Congress may still convene and pass a law calling for an election at which the Constitution proposed by the 1971 Constitutional Convention will be submitted to the people their ratification or rejection. A plebiscite called pursuant to Section 1 of Article XV of the 1935 Constitution is an assurance to our people that we still have in our country the Rule of Law and that the democratic system of government that has been implanted in our country by the Americans, and which has become part of our social and political fabric, is still a reality.

The views that I have expressed in this opinion are inspired by a desire on my part to bring about stability in democratic and constitutional system in our country. I feel that if this Court would give its imprimatur to the ratification of the proposed Constitution, as announced in Proclamation No. 1102, it being very clear that the provisions of Section 1 of Article XV of the 1935 Constitution had not been complied with, We will be opening the gates for a similar disregard of the Constitution in the future. What I mean is that if this Court now declares that a new Constitution is now in force because the members of the citizens assemblies had approved the said new Constitution, although that approval was not in accordance with the procedure and the requirements prescribed in the 1935 Constitution, it can happen again in some future time that some amendments to the Constitution may be adopted, even in a manner contrary to the existing Constitution and the law, and then said proposed amendment is submitted to the people in any manner and what will matter is that a basis is claimed that there was approval by the people. There will not be stability in our constitutional system, and necessarily no stability in our government. As a member of this Court I only wish to contribute my humble efforts to prevent the happening of such a situation in the future.

It appearing to me that the announced ratification of the proposed Constitution through the voting in the citizens assemblies is a clear violation of the 1935 Constitution, what I say in this opinion is simply an endeavor on my part to be true to my oath of office to defend and support the 1935 Constitution. I am inspired by what the great jurist and statesman, Jose P. Laurel, said:

Let our judges be as it were the vestal keepers of the purity and sanctity of our Constitution, and the protection and vindication of popular rights will be safe and secure in their reverential guardianship.

I only wish to help prevent, if I can, democracy and the liberties of our people from vanishing in our land, because, as Justice George Sutherland of the U. S. Supreme Court said:

No question more momentous, none impressed with such transcendental significance is likely to confront this Court in the near or distant future as that posed by these petitions. For while the specific substantive issue is the validity of Presidential Proclamation No. 1102, an adverse judgment may be fraught with consequences that, to say the least, are far-reaching in its implications. As stressed by respondents, "what petitioners really seek to invalidate is the new Constitution."[1] Strict accuracy would of course qualify such statement that what is in dispute, as noted in the opinion of the Chief Justice, goes only as far as the validity of its ratification. It could very well be though that the ultimate outcome is not confined within such limit, and this is not to deny that under its aegis, there have been marked gains in the social and economic sphere, but given the premise of continuity in a regime under a fundamental law, which itself explicitly recognizes the need for change and the process for bringing it about,[2] it seems to me that the more appropriate course is this Court to give heed to the plea of petitioners that the most serious attention be paid to their submission that the challenged executive act fails to meet the test of constitutionality. Under the circumstances, with regret and with due respect for the opinion of my brethren, I must perforce dissent. It would follow therefore that the legal position taken by the Chief Justice as set forth with his usual lucidity and thoroughness has, on the whole, my concurrence, subject, of course, to reservations insofar as it contains views and nuances to which I have in the past expressed doubts. Nonetheless, I feel that a brief expression of the reasons for the stand I take would not be amiss.

In coping with its responsibility arising from the function of judicial review, this Court is not expected to be an oracle given to utterances of eternal verities, but certainly it is more than just a keen but passive observer of the contemporary scene. It is, by virtue of its role under the separation of powers concept, involved not necessarily as a participant in the formation of government policy, but as an arbiter of its legality. Even then, there is realism in what Lerner did say about the American Supreme Court as "the focal point of a set of dynamic forces which [could play] havoc with the landmarks of the American state and determine the power configuration of the day."[3] That is why there is this caveat. In the United States as here, the exercise of the power of judicial review is conditioned on the necessity that the decision of a case or controversy before it so requires. To repeat, the Justices of the highest tribunal are not, as Justice Frankfurter made clear, "architects of policy. They can nullify the policy of others, they are incapable of fashioning their own solutions for social problems."[4] Nonetheless, as was stressed by Professors Black[5] and Murphy,[6] a Supreme Court by the conclusion it reaches and the decision it renders does not merely check the coordinate branches, but also by its approval stamps with legitimacy the action taken. Thus in affirming constitutional supremacy, the political departments could seek the aid of the judiciary. For the assent it gives to what has been done conduces to its support in a regime where the rule of law holds sway. In discharging such a role, this Court must necessarily take in account not only what the exigent needs of the present demand but what may lie ahead in the unexplored and unknown vistas of the future. It must guard against the pitfall of lack of understanding of the dominant forces at work to seek a better life for all, especially those suffering from the pangs of poverty and disease, by a blind determination to adhere to the status quo. It would be tragic, and a clear case of its being recreant to its trust, if the suspicion can with reason be entertained that its approach amounts merely to a militant vigilantism that is violently opposed to any form of social change. It follows then that it does not suffice that recourse be had only to what passes for scholarship in the law that could be marred by inapplicable erudition and narrow legalism. Even with due recognition, such factors, however, I cannot, for reasons to be set more lengthily and in the light of the opinion of the Chief Justice, reach the same result as the majority of my brethren. For, in the last analysis, it is my firm conviction that the institution of judicial review speaks too clearly for the point to be missed that official action, even with due allowance made for the good faith that invariably inspires the step taken, has to face the gauntlet of a court suit whenever there is a proper case with the appropriate parties.

1. Respondents are acting in the soundest constitutional tradition when, at the outset, they would seek a dismissal of these petitions. For them, the question raised is political and thus beyond the jurisdiction of this Court. Such an approach cannot be indicted for unorthodoxy. It is implicit in the concept of the rule of law that rights belong to the people and the government possesses powers only. Essentially then, unless such an authority may either be predicated on express or implied grant in the Constitution or the statutes, an exercise thereof cannot survive an inquiry as to its validity. Respondents through Solicitor-General Mendoza would deny our competence to proceed further. It is their view, vigorously pressed and plausibly asserted, that since what is involved is not merely the effectivity of an amendment but the actual coming into effect of a new constitution, the matter is not justiciable. The immediate reaction is that such a contention is to be tested in the light of the fundamental doctrine of separation of powers that it is not only the function but the solemn duty of the judiciary to determine what the law is and to apply it in cases and controversies that call for decision.[7] Since the Constitution pre-eminently occupies the highest rung in the hierarchy of legal norms, it is in the judiciary, ultimately this Tribunal, that such a responsibility is vested. With the 1935 Constitution containing, as above noted, an explicit article on the subject of amendments, it would follow that the presumption to be indulged in is that the question of whether there has been deference to its terms is for this Court to pass upon. What is more, the Gonzales,[8] Tolentino[9] and Planas[10] cases speak unequivocally to that effect. Nor is it a valid objection to this conclusion that what was involved in those cases was the legality of the submission and not ratification, for from the very language of the controlling article, the two vital steps are proposal and ratification, which as pointed out in Dillon v. Gloss,[11] "cannot be treated as unrelated acts, but as succeeding steps in a single endeavor."[12] Once an aspect thereof is viewed as judicial, there would be no justification for considering the rest as devoid of that character. It would be for me then an indefensible retreat, deriving no justification from circumstances of weight and gravity, if this Court were to accede to what is sought by respondents and rule that the question before us is political.

On this point, it may not be inappropriate to refer to a separate opinion of mine in Lansang v. Garcia.[13] Thus: "The term has been made applicable to controversies clearly non-judicial and therefore beyond its jurisdiction or to an issue involved in a case appropriately subject to its cognizance, as to which there has been a prior legislative or executive determination to which deference must be paid. It has likewise been employed loosely to characterize a suit where the party proceeded against is the President or Congress, or any branch thereof. If to be delimited with accuracy, "political questions" should refer to such as would under the Constitution be decided by the people in their sovereign capacity or in regard to full discretionary authority is vested either in the President or Congress. It is thus beyond the competence of the judiciary to pass upon. Unless clearly falling within the formulation, the decision reached by the political branches whether in the form of a congressional act or an executive order could be tested in court. Where private rights are affected, the judiciary has no choice but to look into its validity. It is not to be lost sight of that such a power comes into play if there be an appropriate proceeding that may be filed only after each coordinate branch has acted. Even when the Presidency or Congress possesses plenary powers, its improvident exercise or the abuse thereof, if shown, may give rise to a justiciable controversy. For the constitutional grant of authority is usually unrestricted. There are limits to what may be done and how it is to be accomplished. Necessarily then, the courts in the proper exercise of judicial review could inquire into the question of whether or not either of the two coordinate branches has adhered to what is laid down by the Constitution. The question thus posed is judicial rather than political."[14] The view entertained by Professor Dodd is not too dissimilar. For him such a term "is employed to designate certain types of functions committed to the political organs of government (the legislative and executive departments, or either of them) and not subject to judicial investigation."[15] After a thorough study of American judicial decisions, both federal and state, he could conclude: "The field of judicial nonenforceability is important, but is not large when contrasted with the whole body of written constitutional texts. The exceptions from judicial enforceability fall primarily within the field of public or governmental interests."[16] Nor was Professor Weston's formulation any different. As was expressed by him: "Judicial questions, in what may be thought the more useful sense, are those which the sovereign has set to be decided in the courts. Political questions, similarly, are those which the sovereign has entrusted to the so-called political departments of government or has reserved to be settled by its own extra-governmental action."[17] What appears undeniable then both from the standpoint of Philippine as well as American decisions is the care and circumspection required before the conclusion is warranted that the matter at issue is beyond judicial cognizance, a political question being raised.

2. The submission of respondents on this subject of political question, admittedly one of complexity and importance, deserves to be pursued further. They would derive much aid and comfort from the writings of both Professor Bickel[18] of Yale and Professor Freund[19] of Harvard, both of whom in turn are unabashed admirers of Justice Brandeis. Whatever be the merit inherent in their lack of enthusiasm for a more active and positive role that must be played by the United States Supreme Court in constitutional litigation, it must be judged in the light of our own history. It cannot be denied that from the well nigh four decades of constitutionalism in the Philippines, even discounting an almost similar period of time dating from the inception of American sovereignty, there has sprung a tradition of what has been aptly termed as judicial activism. Such an approach could be traced to the valedictory address before the 1935 Constitutional Convention of Claro M. Recto. He spoke of the trust reposed in the judiciary in these words: "It is one of the paradoxes of democracy that the people at times place more confidence in instrumentalities of the State other than those directly chosen by them for the exercise of their sovereignty."[20] It would thus appear that even then this Court was expected not to assume an attitude of timidity and hesitancy when a constitutional question is posed. There was the assumption of course that it would face up to such a task, without regard to political considerations and with no thought except that of discharging its trust. Witness these words Justice Laurel in an early landmark case, People v. Vera,[21] decided in 1937: "If it is ever necessary for us to make vehement affirmance during this formative period of political history, it is that we are independent of the Executive no less than of the Legislative department of our government independent in the performance of our functions, undeterred by any consideration, free from politics, indifferent to popularity, and unafraid of criticism in the accomplishment of our sworn duty as we see it and as we understand it."[22] The hope of course was that such assertion of independence impartiality was not mere rhetoric. That is a matter more appropriately left to others to determine. It suffices to stake that what elicits approval on the part of our people of a judiciary ever alert to inquire into alleged breaches of the fundamental law is the realization that to do so is merely to do what is expected of it and that thereby there is no invasion of spheres appropriately belonging to the political branches. For it needs to be kept in kind always that it can act only when there is a suit with proper parties before it, wherein rights appropriate for judicial enforcement are sought to be vindicated. Then, too, it does not approach constitutional questions with dogmatism or apodictic certainty nor view them from the shining cliffs of perfection. This is not to say though that it is satisfied with an empiricism untroubled by the search for jural consistency and rational coherence. A balance has to be struck. So juridical realism requires. Once allowance made that for all its care and circumspection this Court manned by human beings fettered by fallibility, nonetheless earnestly and sincerely striving to do right, the public acceptance of its vigorous pursuit of the task of assuring that the Constitution be obeyed is easy to understand. It has not in the past shirked its responsibility to ascertain whether there has been compliance with and fidelity to constitutional requirements. Such is the teaching of a host of cases from Angara v. Electoral Commission[23] to Planas v. Commission on Elections.[24] It should continue to exercise its jurisdiction, even in the face of a plausible but not sufficiently persuasive insistence that the matter before it is political.

Nor am I persuaded that the reading of the current drift in American legal scholarship by the Solicitor-General and his equally able associates presents the whole picture. On the question of judicial review, it is not a case of black and white; there are shaded areas. It goes too far, in my view, if the perspective is one of dissatisfaction, with its overtones of distrust. This expression of disapproval has not escaped Dean Rostow of Yale, who began one of his most celebrated legal essays. The Democratic Character of Judicial Review, thus: "A theme of uneasiness, and even of guilt, colors the literature about judicial review. Many of those who have talked, lectured, and written about the Constitution have been troubled by a sense that judicial review is undemocratic."[25] He went on to state: "Judicial review, they have urged, is an undemocratic shoot on an otherwise respectable tree. It should be cut off, or at least kept pruned and inconspicuous."[26] His view was precisely the opposite. Thus: "The power of constitutional review, to be exercised by some part of the government, is implicit in the conception of a written constitution delegating limited powers. A written constitution would promote discord rather than order in society if there were no accepted authority to construe it, at the least in case of conflicting action by different branches of government or of constitutionally unauthorized governmental action against individuals. The limitation and separation of powers, if they are to survive, require a procedure for independent mediation and construction to reconcile the inevitable disputes over the boundaries of constitutional power which arise in the process of government."[27] More than that, he took pains to emphasize: "Whether another method of enforcing the Constitution could have been devised, the short answer is that no such method developed. The argument over the constitutionality of judicial review has long since been settled by history. The power and duty of the Supreme Court to declare statutes or executive action unconstitutional in appropriate cases is part of the living Constitution. 'The course of constitutional history,' Mr. Justice Frankfurter recently remarked, 'has cast responsibilities upon the Supreme Court which it would be "stultification" for it to evade.'[28] "Nor is it only Dean Rostow who could point Frankfurter, reputed to belong to the same school of thought opposed to judicial activism, if not its leading advocate during his long stay in the United States Supreme Court, as one fully cognizant of the stigma that attaches to a tribunal which neglects to meet the demands of judicial review. There is a statement of similar importance from Professor Mason: "In Stein v. New York Frankfurter remarked, somewhat self-consciously perhaps, that the 'duty of deference cannot be allowed imperceptibly to slide into abdication.'[29] "Professor Konefsky, like Dean Rostow, could not accept characterization of judicial review as undemocratic. Thus his study of Holmes and Brandeis, the following appears: "When it is said that judicial review is an undemocratic feature of our political system, it ought also to be remembered that architects of that system did not equate constitutional government with unbridled majority rule. Out of their concern for political stability and security for private rights, they designed a structure whose keystone was to consist of barriers to the untrammeled exercise of power by any group. They perceived no contradiction between effective government and constitutional checks. To James Madison, who may legitimately be regarded as the philosopher of the Constitution, the scheme of mutual restraints was the best answer to what he viewed as the chief problem in erecting a system of free representative government: 'In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.'"[30]

There is thus an inevitability to the flowering of judicial review. Could it be that the tone of discontent apparent in the writings of eminent authorities on the subject evince at the most fears that the American Supreme Court might overstep the bounds allotted to the judiciary? It cannot be a denial of the fitness of such competence being vested in judges and of their being called upon to fulfill such a trust whenever appropriate to the decision of a case before them. That is why it has been correctly maintained that notwithstanding the absence of any explicit provision in the fundamental law of the United States Constitution, that distinguished American constitutional historian, Professor Corwin, could rightfully state that judicial review "is simply incidental to the power of courts to interpret the law, of which the Constitution is part, in connection with the decision of cases."[31] This is not to deny that there are those who would place the blame or the credit, depending upon one's predilection, on Marshall's epochal opinion in Marbury v. Madison.[32] Curtis belonged to that persuasion. As he put it: "The problem was given no answer by the Constitution. A hole was left where the Court might drive in the peg of judicial supremacy, if it could. And that is what John Marshall did."[33] At any rate there was something in the soil of American juristic thought resulting in this tree of judicial power so precariously planted by Marshall striking deep roots and showing wonderful vitality and hardiness. It now dominates the American legal scene. Through it, Chief Justice Hughes, before occupying that exalted position, could state in a lecture: "We are under a Constitution, but the Constitution is what the judges say it is."[34] The above statement is more than just an aphorism that lends itself to inclusion in judicial anthologies or bar association speeches. It could and did provoke from Justice Jackson, an exponent of the judicial restraint school of thought, this meaningful query: "The Constitution nowhere provides that it shall be what the judges say it is. How, did it come about that the statement not only could be but could become current as the most understandable comprehensive summary of American Constitutional law?"[35] It is no wonder that Professor Haines could pithily and succinctly sum up the place of the highest American tribunal in the scheme of things in this wise: "The Supreme Court of the United States has come to be regarded as the unique feature of the American governmental system."[36] Let me not be misunderstood. There is here no attempt to close one's eyes to a discernible tendency on the part of some distinguished faculty minds to look askance at what for them may be inadvisable extension of judicial authority. For such indeed is the case as reflected in two leading cases of recent vintage, Baker v. Carr,[37] decided in 1962 and Powell v. MacCormack,[38] in 1969, both noted in the opinion of the Chief Justice. The former disregarded the warning of Justice Frankfurter in Colegrove v. Green[39] about the American Supreme Court declining jurisdiction on the question of apportionment as to do so would cut very deep into the very being of Congress."[40] For him, the judiciary "ought not to enter this political thicket." Baker has since then been followed; it has spawned a host of cases.[41] Powell, on the question of the power of a legislative body to exclude from its ranks a person whose qualifications are uncontested, for many the very staple of what is essentially political, certainly goes even further than the authoritative Philippine decision of Vera v. Avelino.[42] It does look then that even in the United States, the plea for judicial self-restraint, even if given voice by those competent in the field of constitutional law, has fallen on deaf ears. There is in the comments of respondents an excerpt from Professor Freund quoting from one of his essays appearing in a volume published in 1968. It is not without interest to note that in another paper, also included therein, he was less than assertive about the necessity for self-restraint and apparently mindful of the claims of judicial activism. Thus: "First of all, the Court has a responsibility to maintain the constitutional order, the distribution of public power, and the limitations on that power."[43] As for Professor Bickel, it has been said that as counsel for the New York Times in the famous Vietnam papers case,[44] he was less than insistent on the American Supreme Court exercising judicial self-restraint. There are signs that the contending forces on such question, for some an unequal contest, are now quiescent. The fervor that characterized the expression of their respective points of view appears to have been minimized. Not that it is to be expected that it will entirely disappear, considering how dearly cherished are, for each group, the convictions, prejudices one might even say, entertained. At least what once was fitly characterized as the booming guns of rhetoric, coming from both directions, have been muted. Of late, scholarly disputations have been centered on the standards that should govern the exercise of the power of judicial review. In his celebrated Holmes lecture in 1959 at the Harvard Law School, Professor Wechsler advocated as basis for decision what he termed neutral principles of constitutional law.[45] It has brought forth a plethora of law review articles, the reaction ranging from guarded conformity to caustic criticism.[46] There was, to be sure, no clear call to a court in effect abandoning the responsibility incumbent on it to keep governmental agencies within constitutional channels. The matter has been put in temperate terms by Professor Frank thus: "When allowance has been made for all factors, it nevertheless seems to me that the doctrine of political questions ought to be very sharply confined to where the functional reasons justify it and that in a give involving its expansion there should be careful consideration also of the social considerations which may militate against it. The doctrine has a certain specious charm because of its nice intellectualism and because of the fine deference it permits to expertise, to secret knowledge, and to the prerogatives of others. It should not be allowed to grow as a merely intellectual plant."[47]

It is difficult for me at least, not to be swayed by appraisal, coming from such impeccable sources of the worth and significance of judicial review in the United States. I cannot resist the conclusion then that the views advanced on this subject by distinguished counsel for petitioners, with Senators Lorenzo M. Tañada and Jovito Salonga at the van, rather than the advocacy of the Solicitor-General, possess the greater weight and carry persuasion. So much then for the invocation of the political question principle as a bar to the exercise of our jurisdiction.

3. That brings me to the issue of the validity of the ratification. The crucial point that had to be met is whether Proclamation No. 1102 manifests fidelity to the explicit terms of Article XV. There is, of course, the view not offensive to reason that a sense of the realities should temper the rigidity of devotion to the strict letter of the text to allow deference to its spirit to control. With due recognition of its force in constitutional litigation,[48] if my reading of the events and the process that led to such proclamation, so clearly set forth in the opinion of the Chief Justice, is not inaccurate, then it cannot be confidently asserted that there was such compliance. It would be to rely on conjectural assumptions that did founder on the rock of the undisputed facts. Any other conclusion would, for me, require an interpretation that borders on the strained. So it has to be if one does not lose sight of how the article on amendments is phrased. A word, to paraphrase Justice Holmes may not be a crystal, transparent and unchanged, but it is not, to borrow from Learned Hand, that eminent jurist, a rubber band either. It would be unwarranted in my view then to assert that the requirements of the 1935 Constitution have been met. There are American decisions,[49] and they are not few in number, which require that there be obedience to the literal terms of the applicable provision. It is understandable why it should be thus. If the Constitution is the supreme law, then its mandate must be fulfilled. No evasion is tolerated. Submission to its commands can be shown only if each and every word is given meaning rather than ignored or disregarded. This is not to deny that a recognition conclusive effect attached to the electorate manifesting its will to vote affirmatively on the amendments proposed poses an obstacle to the judiciary being insistent on the utmost regularity. Briefly stated, substantial compliance is enough. A great many American State decisions may be cited in support of such a doctrine.[50]

Even if the assumption be indulged in that Article XV is not phrased in terms too clear to be misread, so that this Court is called upon to give meaning and perspective to what could be considered words of vague generality, pregnant with uncertainty, still whatever obscurity it possesses is illumined when the light of the previous legislation is thrown on it. In the first Commonwealth Act,[51] submitting to the Filipino people for approval or disapproval certain amendments to the original ordinance appended to the 1935 Constitution, it was made that the election for such purpose was to "be conducted in conformity with the provisions of the Election Code insofar as the same may be applicable."[52] Then came the statute,[53] calling for the plebiscite on the three 1940 amendments providing for the plebiscite on the three 1930 amendments providing for a bicameral Congress or a Senate and a House of Representatives to take the place of a unicameral National Assembly,[54] reducing the term of the President to four years but allowing his re-election with the limitation that he cannot serve more than eight consecutive years,[55] and creating an independent Commission on Elections.[56] Again, it was expressly provided that the election "shall be conducted in conformity with the provisions of the Election Code in so far as the same may be applicable."[57] The approval of the present parity amendment was by virtue of a Republic Act[58] which specifically made applicable the then Election Code.[59] There is a similar provision in the legislation,[60] which in cotemplation of the 1971 Constitutional Convention, saw to it that there be an increase in the membership of the House of Representatives a maximum of one hundred eighty and assured the eligibility of senators and representatives to become members of such constituent body without forfeiting their seats, as proposed amendments to be voted on in the 1967 elections.[61] That is the consistent course of interpretation followed by the legislative branch. It is most persuasive, if not controlling. The restraints thus imposed would set limits to the Presidential action taken, even on the assumption that either as an agent of the Constitutional Convention or under his martial law prerogatives, he was not devoid of power to specify the mode of ratification. On two vital points, who can vote and how they register their will, Article XV had been given a definitive construction. That is why I fail to see sufficient justification for this Court affixing the imprimatur of its approval on the mode employed for the ratification of the revised Constitution as reflected in Proclamation No. 1102.

4. Nor is the matter before us solely to be determined by the failure to comply with the requirements of Article XV. Independently of the lack of validity of the ratification of the new Constitution, if it be accepted by the people, in whom sovereignty resides according to the Constitution,[62] then this Court cannot refuse to yield assent to such a political decision of the utmost gravity, conclusive in its effect. Such a fundamental principle is meaningless if it does not imply, to follow Laski, that the nation as a whole constitutes the "single center of ultimate reference," necessarily the possessor of that "power that is able to resolve disputes by saying the last word."[63] If the origins of the democratic polity enshrined in the 1935 Constitution with the declaration that the Philippines is a republican state could be traced back to Athens and to Rome, it is no doubt true, as McIver pointed out, that only with the recognition of the nation as the separate political unit in public law is there the juridical recognition of the people composing it "as the source of political authority."[64] From them, as Corwin did stress, emanate "the highest possible embodiment of human will,"[65] which is supreme and must be obeyed. To avoid any confusion and in the interest of clarity, it should be expressed in the manner ordained by law. Even if such is not the case, however, once it is manifested, it is to be accepted as final and authoritative. The government which is merely an agency to register its commands has no choice but to submit. Its officials must act accordingly. No agency is exempt such a duty, not even this Court. In that sense, the lack of regularity in the method employed to register its wishes is fatal in its consequences. Once the fact of acceptance by people of a new fundamental law is made evident, the judiciary is left with no choice but to accord it recognition. The obligation to render it obeisance falls on the courts as well.

There are American State decisions that enunciate such a doctrine. While certainly not controlling, they are not entirely bereft of persuasive significance. In Miller v. Johnson,[66] decided in 1892, it was set forth in the opinion of Chief Justice Holt that on May 3, 1890, an act was passed in Kentucky, providing for the calling of a convention for the purpose of framing a new constitution and the election of delegates. It provided that before any form of constitution made by them should become operative, it should be submitted to the vote of the state and ratified by a majority of those voting. The constitution then in force authorized the legislature, the preliminary steps having been taken, to call a convention "for the purpose of readopting, amending, or changing" it contained no provision giving the legislature the power to require a submission of its work to a vote of the people. The convention met in September, 1890. By April, 1891, it completed a draft of a constitution, submitted it to a popular vote, and then adjourned until September following. When the convention reassembled, the delegates made numerous changes in instrument. As thus amended, it was promulgated by the convention of September 28, 1891, as the new constitution. An action was brought to challenge its validity. It failed in the lower court. In affirming such judgment dismissing the action, Chief Justice Holt stated: "If a set of men, not selected by the people according to the forms of law, were to formulate an instrument and declare it the constitution, it would undoubtedly be the duty of the courts to declare its work a nullity. This would be revolution, and this the courts of the existing government must resist until they are overturned by power, and a new government established. The convention, however, was the offspring of law. The instrument which we are asked to declare invalid as a constitution has been made and promulgated according to the forms of law. It is a matter of current history that both the executive and legislative branches of the government have recognized its validity as a constitution, and are now daily doing so. While the judiciary should protect the rights of the people with great care and jealousy, because this is its duty, and also because; in times of great popular excitement, it is usually their last resort, yet it should at the same time be careful not to overstep the proper bounds of its power, as being perhaps equally dangerous; and especially where such momentous results might follow as would be likely in this instance, if the power of the judiciary permitted, and its duty requires, the overthrow of the work of the convention."[67] In Taylor v. Commonwealth,[68] a 1903 decision, it was contended that the Virginia Constitution reclaimed in 1902 is invalid as it was ordained and promulgated by the convention without being submitted for ratification or rejection by the people. The Court rejected such a view. As stated in the opinion of Justice Harrison: "The Constitution of 1902 was ordained and proclaimed by a convention duly called by direct vote of the people of the state to revise and amend the Constitution of 1869. The result of the work of the convention has been recognized, accepted, and acted upon as the only valid Constitution of the state by the Governor in swearing fidelity to it and proclaiming it, as directed thereby; by the Legislature in its formal official act adopting a joint resolution, July 15, 1902, recognizing the Constitution ordained by the convention which assembled in the city of Richmond on the 12th day of June, 1901, as the Constitution of Virginia; by the individual oaths of members to support it, and by enforcing its provisions; and 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. The Constitution having been thus acknowledged and accepted by the office administering the government and by the people of the state, and there being no government in existence under the Constitution of 1869 opposing or denying its validity, we have no difficulty in holding that the Constitution in question, which went into effect at noon on the 10th day of July, 1902, is the only rightful, valid, and existing Constitution of this state, and that to it all the citizens of Virginia owe their obedience and loyal allegiance."[69]

It cannot be plausibly asserted then that premises valid in law are lacking for the claim that the revised Constitution has been accepted by the Filipino people. What is more, so it has been argued, it is not merely a case of its being implied. Through the Citizens Assemblies, there was a plebiscite with the result as indicated in Proclamation No. 1102. From the standpoint of respondents then, they could allege that there was more than just mere acquiescence by the sovereign people. Its will was thus expressed formally and unmistakably. It may be added that there was nothing inherently objectionable in the informal method followed in ascertaining its preference. Nor is the fact that Filipinos of both sexes above the age of fifteen were given the opportunity to vote to be deplored. The greater the base of mass participation, the more there is fealty to the democratic concept. It does logically follow likewise that such circumstances being conceded, then no justifiable question may be raised. This Court is to respect what had thus received the people's sanction. That is not for me though whole of it. Further scrutiny even then is not entirely foreclosed. There is still an aspect that is judicial, an inquiry may be had as to whether such indeed was the result. This is no more than what the courts do in election cases. There are other factors to bear in mind. The fact that the President so certified is well-nigh conclusive. There is in addition the evidence flowing from the conditions of peace and stability. There thus appears to be conformity to the existing order of things. The daily course of events yields such a conclusion. What is more, the officials under the 1935 Constitution, including practically all Representatives and a majority of the Senators, have signified their assent to it. The thought persists, however, that as yet sufficient time has not elapsed to be really certain.

Nor is this all. There is for me an obstacle to the petitions being dismissed for such ascertainment of popular will did take place during a period of martial law. It would have been different had there been that freedom of debate with the least interference, thus allowing a free market of ideas. If it were thus, it could be truly said that there was no barrier to liberty of choice. It would be a clear-cut decision either way. One could be certain as to the fact of the acceptance of the new or of adherence to the old. This is not to deny that votes are cast by individuals with their personal concerns uppermost in mind, worried about their immediate needs and captive to their existing moods. That is inherent in any human institution, much more so in a democratic polity. Nor is it open to any valid objection because in the final analysis the state exists for the individuals who in their collectivity compose it. Whatever be their views, they are entitled to respect. It is difficult for me, however, at this stage to feel secure in the conviction that they did utilize the occasion afforded to give expression to what was really in their hearts. This is not to imply that such doubt could not be dispelled by evidence to the contrary. If the petitions be dismissed however, then such opportunity is forever lost.

5. With the foregoing legal principles in mind, I find myself unable to join the ranks of my esteemed brethren who vote for the dismissal of these petitions. I cannot yield an affirmative response to the plea of respondents to consider the matter closed, the proceedings terminated once and for all. It is not an easy decision to reach. It has occasioned deep thought and considerable soul-searching. For there are countervailing considerations that exert a compulsion not easy to resist. It can be asserted with truth, especially in the field of social and economic rights, that with the revised Constitution, there is an auspicious beginning for further progress. Then too it could resolve what appeared to be the deepening contradictions of political life, reducing at times governmental authority to near impotence and imparting a sense of disillusionment in democratic processes. It is not too much to say therefore that there had indeed been the revision of a fundamental law to vitalize the very values out of which democracy grows. It is one which has all the earmarks of being responsive to the dominant needs of the times. It represents an outlook cognizant of the tensions of a turbulent era that is the present. That is why for some what was done represented an act of courage and faith, coupled with the hope that the solution arrived at is a harbinger of a bright and rosy future.

It is such a comfort then that even if my appraisal of the situation had commanded a majority, there is not, while these lawsuits are being further considered, the least interference, with the executive department. The President in the discharge of all his functions is entitled to obedience. He remains commander-in-chief with all the constitutional powers it implies. Public officials can go about their accustomed tasks in accordance with the revised Constitution. They can pursue even the tenor of their ways. They are free to act according to its tenets. That was so these past few weeks, even petitions were filed. There was not at any time any thought of any restraining order. So it was before. That is how things are expected to remain even if the motions to dismiss were not granted. It might be asked though, suppose the petitions should prevail? What then? Even so, the decision of this Court need not be executory right away. Such a disposition of a case before this Court is not novel. That was how it was done in the Emergency Powers Act controversy.[70] Once compliance is had with the requirements of Article XV of the 1935 Constitution, to assure that the coming force of the revised charter is free from any taint of infirmity, then all doubts are set at rest.

For some, to so view the question before us is to be caught in a web of unreality, to cherish illusions that cannot stand the test of actuality. What is more, it may give the impression of reliance on what may, for the practical man of affairs, be no more than gossamer distinctions and sterile refinements unrelated to events. That may be so, but I find it impossible to transcend what for me are the implications of traditional constitutionalism. This is not to assert that an occupant of the bench is bound to apply with undeviating rigidity doctrines which may have served their day. He could at times even look upon them as mere scribblings in the sands to be washed away by the advancing tides of the present. The introduction of novel concepts may be carried only so far though. As Cardozo put the matter: "The judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant, roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to "the primordial necessity of order in the social life." Wide enough in all conscience is the field of discretion that remains."[71] Moreover what made it difficult for this Court to apply settled principles, which for me have not lost their validity, is traceable to the fact that the revised Constitution was made to take effect immediately upon ratification. If a period of time were allowed to elapse precisely to enable the judicial power to be exercised, no complication would have arisen. Likewise, had there been only one or two amendments, no such problem would be before us. That is why I do not see sufficient justification for the orthodoxies of constitutional law not to operate.

Even with full realization then that the approach pursued is not all that it ought to have been and the process of reasoning not without its shortcomings, the basic premises of a constitutional democracy, as I understand them and as set forth in the preceding pages, compel me to vote the way I did.

I would herein make an exposition of the fundamental reasons and considerations for my stand.
The unprecedented and precedent-setting issue submitted by petitioners for the Court's resolution is the validity and constitutionality of Presidential Proclamation No. 1102 issued on January 17, 1973, certifying and proclaiming that the Constitution proposed by the 1971 Constitutional Convention "has been ratified by an overwhelming majority of all the votes cast by the members of all the Barangays (Citizens Assemblies) throughout the Philippines, and has thereby come into effect."

More specifically, the issue submitted is whether the purported ratification of the proposed Constitution by means of the Citizens Assemblies has substantially complied with the mandate of Article XV of the existing Constitution of 1935 that duly proposed amendments thereto, in toto or parts thereof, "shall be valid as part of this Constitution when approved by a majority of the votes cast at an election at which the amendments are submitted to the people for their ratification."[1]

A necessary corollary issue is whether the purported ratification of the proposed Constitution as signed on November 30, 1972 by the 1971 Constitutional Convention may be said also to have substantially complied with its own mandate that "(T)his Constitution shall take immediately upon its ratification by a majority of the votes cast in a plebiscite called for the purpose and except as herein provided, shall supersede the Constitution of Nineteen hundred and thirty-five and all amendments thereto."[2]

Respondents contend that "(A)lthough apparently what is sought to be annulled is Proclamation No. 1102, what petitioners really seek to invalidate is the new Constitution", and their actions must be dismissed, because:

Respondents themselves assert that "Proclamation No. 1102 is plainly merely declaratory of the fact that the 1973 Constitution has been ratified and has come into force.[4]

The measure of the fact of ratification is Article XV of the 1935 Constitution. This has been consistently held by the Court in the Gonzales:[5] and Tolentino[6] cases.

In the Tolentino case, this Court emphasized "that the provisions of Section 1 of Article XV of the Constitution, dealing with the procedure or manner of amending the fundamental law are binding upon the Convention and the other departments of the government. It must be added that they are no less binding upon the people."[7]

In the same Tolentino case, this Court further proclaimed that "as long as any amendment is formulated and submitted under the aegis of the present Charter, any proposal for such amendment which is not in conformity with the letter, spirit and intent of the Charter for effecting amendments, cannot receive the sanction of this Court."[8]

As continues to be held by a majority of this Court, proposed amendments to the Constitution "should be ratified in only one way, that is, in an election or plebiscite held in accordance with law and participated in only by qualified and duly registered voters"[9] and under the supervision of the Commission on Elections.[10]

Hence, if the Court declares Proclamation 1102 null and void because on its face, the purported ratification of the proposed Constitution has not faithfully nor substantially observed nor complied with the mandatory requirements of Article XV of the (1935) Constitution, it would not be "invalidating" the proposed new Constitution but would be simply declaring that the announced fact of ratification thereof by means of the Citizens Assemblies referendums does not pass the constitutional test and that the proposed new Constitution has not constitutionally come into existence.

Since Proclamation 1102 is acknowledged by respondent to be "plainly merely declaratory" of the disputed fact of ratification, they cannot assume the very fact to be established and beg the issue by citing the self-same declaration as proof of the purported ratification therein declared.

What complicates the cases at bar is the fact that the proposed 1972 Constitution was enforced as having immediately taken effect upon the issuance on January 17, 1973 of Proclamation 1102 and the question of whether "confusion and disorder in government affairs would (not) result" from a judicial declaration of nullity of the purported ratification is raised by the Solicitor-General on behalf of respondents.

A comparable precedent of great crisis proportions is found in the Emergency Powers cases,[11] wherein the Court in its Resolution of September 16, 1949 after judgment was initially not obtained on August 26, 1949 for lack of the required six (6) votes, finally declared in effect that the pre-war emergency powers delegated by Congress to the President, under Commonwealth Act 671 in pursuance of Article VI, Section 26 of the Constitution, had ceased and became inoperative at the latest in May, 1946 when Congress met in its first regular session on May 25, 1946.

Then Chief Justice Manuel V. Moran recited the great interests and important rights that had arisen under executive orders "issued in good faith and with the best of intentions by three successive Presidents, and some of them may have already produced extensive effects on the life of the nation" in the same manner as may have arisen under the bona fide acts of the President now in the honest belief that the 1972 Constitution had been validly ratified by means of the Citizens Assemblies referendums and indicated the proper course and solution therefor, which were duly abided by and confusion and disorder as well as harm to public interest and innocent parties thereby avoided as follows:

Then Chief Justice Moran, who penned the Court's majority resolution, explained his vote for annulment despite the great difficulties and possible "harmful consequences" in the following passage, which bears re-reading:

The harmful consequences which, as I envisioned in my concurring opinion, would come to pass should the said executive orders be immediately declared null and void are still real. They have not disappeared by reason of the fact that a special session of Congress is not now forthcoming. However, the remedy now lies in the hands of the Chief Executive and of Congress, for the Constitution vests in the former the power to call a special session should the need for one arise, and in the latter, the power to pass a valid appropriations act.

That Congress may again fail to pass a valid appropriations act is a remote possibility, for under the circumstances it fully realizes its great responsibility of saving the nation from breaking down; and furthermore, the President in the exercise of his constitutional powers may, if he so desires, compel Congress to remain in special session till it approves the legislative measures most needed by the country.

Democracy is on trial in the Philippines, and surely it will emerge victorious as a permanent way of life in this country, if each of the great branches of the Government, within its own allocated sphere, complies with its own constitutional duty, uncompromisingly and regardless of difficulties.

Our Republic is still young, and the vital principles underlying its organic structure should be maintained firm and strong, hard as the best of steel, so as to insure its growth and development along solid lines of a stable and vigorous democracy.[14]

The late Justice Pedro Tuason who penned the initial majority judgment (declaring null and void the rental and export control executive orders) likewise observed that "(T)he truth is that under our concept of constitutional government, in times of extreme perils more than in normal circumstances 'the various branches, executive, legislative, and judicial,' given the ability to act, are called upon 'to perform the duties discharge the responsibilities committed to respectively.'"[15]

It should be duly acknowledged that the Court's task of discharging its duty and responsibility has been considerably lightened by the President's public manifestation of adherence to constitutional processes and of working within the proper constitutional framework as per his press conference of January 20,1973, wherein he stated that "(T)he Supreme Court is the final arbiter of the Constitution. It can and will probably determine the validity of this Constitution. I did not want to talk about this because actually there is a case pending before the Supreme Court. But suffice it to say that I recognize the power of the Supreme Court. With respect to appointments, the matter falls under a general provision which authorizes the Prime Minister to appoint additional members to the Supreme Court. Until the matter of the new Constitution is decided, I have no intention of utilizing that power."[16]

Thus, it is that as in an analogous situation wherein the state Supreme Court of Mississippi held that the questions of whether the submission of the proposed constitutional amendment of the State Constitution providing for an elective, instead of an appointive, judiciary and whether the proposition was in fact adopted, were justifiable and not political questions, we may echo the words therein of Chief Justice Whitfield that "(W)e do not seek a jurisdiction not imposed upon us by the Constitution. We could not, if we would, escape the exercise of that jurisdiction which the Constitution has imposed upon us. In the particular instance in which we are now acting, our duty to know what the Constitution of the state is, and in accordance with our oaths to support and maintain it in its integrity, imposed on us a most difficult and embarrassing duty, one which we have not sought, but one which, like all others, must be discharged."[17]

In confronting the issues at bar, then, with due regard for my colleagues' contrary views, we are faced with the hard choice of maintaining a firm and strict perhaps, even rigid stand that the Constitution is a "superior paramount law, unchangeable by ordinary means" save in the particular mode and manner prescribed therein by the people, who, in Cooley's words, so "tied up (not only) the hands of their official agencies, but their own hands as well"[18] in the exercise of their sovereign will or a liberal and flexible stand that would consider compliance with the constitutional article on the amending process as merely directory rather than mandatory.

The first choice of a strict stand, as applied to the cases at bar, signifies that the Constitution may be amended in toto or otherwise exclusively "by approval by a majority of the votes cast an election at which the amendments are submitted to the people for their ratification",[19] participated in only by qualified and duly registered voters twenty-one years of age or over[20] and duly supervised by the Commission on Elections,[21] in accordance with the cited mandatory constitutional requirements.

The alternative choice of a liberal stand would permit a disregard of said requirements on the theory urged by respondents that "the procedure outlined in Article XV was not intended to be exclusive of other procedures especially one which contemplates popular and direct participation of the citizenry",[22] that the constitutional age and literacy requirements and other statutory safeguards for ascertaining the will of the majority of the people may likewise be changed as "suggested, if not prescribed, by the people (through the Citizens Assemblies) themselves",[23] and that the Comelec is constitutionally "mandated to oversee elections (of public officers) and not plebiscites."[24]

To paraphrase U.S. Chief Justice John Marshall who first declared in the historic 1803 case of Marbury vs. Madison[25] the U.S. Supreme Court's power of judicial review and to declare void laws repugnant to the Constitution, there is no middle ground between these two alternatives. As Marshall expounded it: "(T)he Constitution is either a superior paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, alterable when the legislature shall please to alter it. If the former part of the alternative be true,