SEPARATE OPINIONSJAVELLANA
VS. EXECUTIVE SECRETARY
SEPARATE
OPINIONS
MAKALINTAL, J.:
CASTRO, J.,
Concurring:
The preliminary
question before this Court was whether
or not the petitioners had made out a sufficient prima facie
case in their petitions to justify their being given due course.
Considering
on the one hand the urgency of the matter and on the other hand its
transcendental
importance, which suggested the need for hearing the side of the
respondents
before that preliminary question was resolved, We required them to
submit
their comments on the petitions. After the comments were filed, We
considered
them as motions to dismiss so that they could be orally argued. As it
turned
out, the hearing lasted five days, morning and afternoon, and could not
have been more exhaustive if the petitions had been given due course
from
the beginning.
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.cralaw:red
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].cralaw:red
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.cralaw:red
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.cralaw:red
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:
Sec. 7. The amendments proposed by the
Convention
shall be valid and considered part of the Constitution when approved by
a majority of the votes cast in an election at which they are submitted
to the people for their ratification pursuant to Article XV of the
Constitution.
(2) Article
XVII, Section 16 of the draft itself
states:
Sec. 16. This Constitution shall take
effect
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.
The same
procedure is prescribed in Article XVI,
Section 2, for the ratification of any future amendment to or revision
of the said Constitution.
(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.cralaw:red
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.cralaw:red
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.cralaw:red
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].cralaw:red
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.cralaw:red
The next day,
January 11, it was reported that
six additional questions would be submitted, namely:
(1) Do you approve of the citizens
assemblies
as the base of popular government to decide issues of national interest?
(2) Do you approve of the new
Constitution?
(3) Do you want a plebiscite to be
called to
ratify
the new Constitution?
(4) Do you want the elections to be
held in
November,
1973 in accordance with the provisions of the 1935 Constitution?
(5) If the elections would not be
held, when
do
you want the next elections to be called?
(6) Do you want martial law to
continue?
[Bulletin
Today, January 11, 1973; emphasis supplied].
Appended to the
six additional questions above quoted
were the suggested answers, thus:
COMMENTS ON
QUESTION No. 1
In order to broaden the base of
citizens'
participation
in government.
QUESTION No. 2
But we do not want the Ad Interim
Assembly
to
be convoked. Or if it is to be convened at all, it should not be done
so
until after at least seven (7) years from the approval of the New
Constitution
by the Citizens Assemblies.
QUESTION No. 3
If the Citizens Assemblies approve of
the
New
Constitution, then the new Constitution should be deemed ratified.
The vote of the Citizens Assemblies
should
already
be considered the plebiscite on the New Constitution.
QUESTION No. 4
We are sick and tired of too frequent
elections.
We are fed up with politics, of so many debates and so much expenses.
QUESTION No. 5
Probably a period of at least seven
(7)
years
moratorium on elections will be enough for stability to be established
in the country, for reforms to take root and normalcy to return.
QUESTION No. 6
We want President Marcos to continue
with
Martial
Law. We want him to exercise his powers with more authority. We want
him
to be strong and firm so that he can accomplish all his reform program
and establish normalcy in the country. If all other measures fail, we
want
President Marcos to declare a revolutionary government along the lines
of the new Constitution without the ad interim Assembly.
So it was that
on January 11, 1973, the second day
of the purported referendum, the suggestion was broached, for the first
time, that the plebiscite should be done away with and a favorable vote
by the Assemblies deemed equivalent to ratification. This was done, not
in the questionnaire itself, but in the suggested answer to question
No.
3. Strangely, however, it was not similarly suggested that an
unfavorable
vote be considered as rejection.
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.cralaw:red
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.cralaw:red
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.cralaw:red
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.cralaw:red
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.cralaw:red
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.cralaw:red
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.cralaw:red
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].cralaw:red
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.cralaw:red
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.cralaw:red
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:
Speaking about
the proclamation of martial law,
he said:
I reiterate what I have said in the past:
there
is no turning back for our people.
We have committed ourselves to this
revolution.
We have pledged to it our future, our fortunes, our lives, our destiny.
We have burned our bridges behind us. Let no man misunderstand the
strength
of our resolution. (A Report to the Nation, Jan. 7, 1973).
On the occasion
of the signing of Proclamation No.
1102 on January 17, 1973, the President said the following, among other
things:
We can, perhaps delimit the power of the
people
to speak on legal matters, on justiciable matters, on matters that may
come before the experts and interpreters of the law. But we cannot
disqualify
the people from speaking on what we and the people consider purely
political
matters especially those that affect the fundamental law of the land.
The political questions that were
presented
to
the people are exactly those that refer to the form of government which
the people want. The implications of disregarding the people's
will
are too awesome to be even considered. For if any power in government
should
even dare to disregard the people's will there would be valid ground
for
revolt.
Let it be known to everybody that the
people
have
spoken and they will no longer tolerate any attempt to undermine the
stability
of their Republic; they will rise up in arms not in revolt against the
Republic but in protection of the Republic which they have installed.
It
is quite clear when the people say, we ratify the Constitution, that
they
mean they will not discard, the Constitution.
On January 19,
1973 the Daily Express published statement
of the President made the day before, from which the following portion
is quoted:
The times are too grave and the stakes
too high
for us permit the customary concessions to traditional democratic
process
to hold back our people's clear and unequivocal resolve and mandate to
meet and overcome the extraordinary challenges presented by these
extraordinary
times.
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.cralaw:red
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:
I believe, therefore, in the necessity of
Revolution
as an instrument of individual and social change but that in a
democratic
society, revolution is of necessity, constitutional, peaceful, and
legal.
In his TV
address of September 23, 1972, President
Marcos told the nation:
I have proclaimed martial law in
accordance
with
the powers vested in the President by the Constitution of the
Philippines.
xxx xxx xxx
I repeat, this is not a military
takeover of
civil
government functions. The Government of the Republic of the Philippines
which was established by our people in 1946 continues.
xxx xxx xxx
I assure you that I am utilizing this
power
vested
in me by the Constitution to save the Republic and reform our society.
I have had to use this constitutional
power
in
order that we may not completely lose the civil rights and freedom
which
we cherish.
We are against the wall. We must now
defend the
Republic with the stronger powers of the Constitution. [Vital
Documents, pp. 1-12; emphasis supplied].
In the report
of an interview granted by the President
to the Newsweek Magazine [published in the issue of January 29, 1973],
the following appears:
xxx xxx xxx
Q. Now that you have gotten off the
constitutional
track, won't you be in serious trouble if you run into critical
problems
with your programs?
A. I have never gotten off the
constitutional
track. Everything I am doing is in accordance with the 1935
Constitution.
The only thing is that instead of 18-year-olds voting, we have allowed
15-year-olds the right to vote. But the 15-year-olds of today are
high-school
students, if not graduates, and they are better informed than my
contemporaries
at that age. On the matter of whether it is constitutional to proclaim
martial law, it is constitutional because the Constitution provides for
it in the event of invasion, insurrection, rebellion or immediate
danger
thereof. We may quarrel about whether what we have gone through is
sufficient
cause to proclaim martial law but at the very least there is a danger
of
rebellion because so many of our soldiers have been killed. You must
remember
this [martial law provision] was lifted from the American legislation
that
was the fundamental law of our country.
xxx xxx xxx
In the light of
this seeming ambivalence, the choice
of what course of action to pursue belongs to the President. We have
earlier
made reference to subjective factors on which this Court, to our mind,
is in no position to pass judgment. Among them is the President's own
assessment
of the will of the people as expressed through the Citizens Assemblies
and of the importance of the 1973 Constitution to the successful
implementation
of the social and economic reforms he has started or envisioned. If he
should decide that there is no turning back, that what the people
recommended
through the Citizens Assemblies, as they were reported to him, demand
that
the action he took pursuant thereto be final and irrevocable, then
judicial
review is out of the question.
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.cralaw:red
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.cralaw:red
We, therefore,
vote not to give due course to
the instant petitions.
BARREDO, J.,Concurring:
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.
I.
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.cralaw:red
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.cralaw:red
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.cralaw:red
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.cralaw:red
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".cralaw:red
In the meanwhile
also, on January 5, 1973, the
President issued Presidential Decree, No. 86-A providing as follows:
PRESIDENTIAL DECREE NO. 86-ASTRENGTHENING AND DEFINING THE ROLE
OFBARANGAYS(CITIZENS ASSEMBLIES)
WHEREAS, on the basis of preliminary and
initial
reports from the field as gathered from barangays (citizens assemblies)
that have so far been established, the people would like to decide for
themselves questions or issues, both local and national, affecting
their
day-to-day lives and their future;
WHEREAS, the barangays (citizens
assemblies)
would
like themselves to be the vehicle for expressing the views of the
people
on important national issues;
WHEREAS, such barangays (citizens
assemblies)
desire that they be given legal status and due recognition as
constituting
the genuine, legitimate and valid expression of the popular will; and
WHEREAS, the people would like the
citizens
assemblies
to conduct immediately a referendum on certain specified questions such
as the ratification of the new Constitution, continuance of martial
law,
the convening of Congress on January 22, 1973, and the elections in
November
1973 pursuant to the 1935 Constitution.
NOW, THEREFORE, I, FERDINAND E.
MARCOS,
President
of the Philippines, by virtue of the powers vested in me by the
Constitution
as Commander-in-Chief of all Armed Forces of the Philippines, do hereby
declare as part of the law of the land the following:
1. The present barangays (citizens
assemblies)
are created under Presidential Decree No. 86 dated December 31, 1972,
shall
constitute the base for citizen participation in governmental affairs
and
their collective views shall be considered in the formulation of
national
policies or programs and, wherever practicable, shall be translated
into
concrete and specific decision;
2. Such barangays (citizens
assemblies)
shall
consider vital national issues now confronting the country, like the
holding
of the plebiscite on the new Constitution, the continuation of martial
rule, the convening of Congress on January 22, 1973, and the holding of
elections in November 1973, and others in the future, which shall serve
as guide or basis for action or decision by the national government;
3. The barangays (citizens assemblies)
shall
conduct
between January 10 and 15, 1973, a referendum on important national
issues,
including those specified in paragraph 2 hereof, and submit results
thereof
to the Department of Local Governments Community Development
immediately
thereafter, pursuant to express will of the people as reflected in the
reports gathered from the many thousands of barangays (citizens
assemblies)
throughout the country.
4. This Decree shall take effect
immediately.
Done in the City of Manila, this 5th
day of
January,
in the year of Our Lord, nineteen hundred and seventy three.
And on January
7, 1973, this was followed by Presidential
Decree No. 86-B reading, thus:
PRESIDENTIAL DECREE NO. 86-BDEFINING FURTHER THE ROLE OF
BARANGAYS
(CITIZENS
ASSEMBLIES)
WHEREAS, since their creation pursuant to
Presidential
Decree No. 86 dated December 31, 1972, the Barangays (Citizens
Assemblies)
have petitioned the Office of the President to submit them for
resolution
important national issues;
WHEREAS, one of the questions
persistently
mentioned
refers to the ratification of the Constitution
proposed by the 1971 Constitutional
Convention;
WHEREAS, on the basis of the said
petitions,
it
is evident that the people believe that the submission of the proposed
Constitution to the Citizens Assemblies or Barangays should be taken as
a plebiscite in itself in view of the fact that freedom of debate has
always
been limited to the leadership in political, economic and social
fields,
and that it is now necessary to bring this down to the level of the
people
themselves through the Barangays or Citizens Assemblies;
NOW THEREFORE, I, FERDINAND E. MARCOS,
President
of the Philippines, by virtue of the powers in me vested by the
Constitution,
do hereby order that important national issues shall from time to time
be referred to the Barangays (Citizens Assemblies) for resolution in
accordance
with Presidential Decree No. 86-A dated January 5, 1973 and that the
initial
referendum shall include the matter of ratification of the Constitution
proposed by the 1971 Constitutional Convention.
The Secretary of the Department of
Local
Governments
and Community Development shall insure the implementation of this Order.
Done in the City of Manila, this 7th
day of
January
in the year of Our Lord, nineteen hundred and seventy-three.
And so it was
that by January 10, 1973, when the
Citizens Assemblies thus created started the referendum which was held
from said date to January 15, 1973, the following questions were
submitted
to them:
(1) Do you like the New Society?
(2) Do you like the reforms under
martial
law?
(3) Do you like Congress again to hold
sessions?
(4) Do you like the plebiscite to be
held
later?
(5) Do you like the way President
Marcos is
running
the affairs of the government?
but on January
11, 1973, six questions were added
as follows:
(1) Do you approve of the citizens
assemblies
as the base of popular government to decide issues of national
interests?
(2) Do you approve of the New
Constitution?
(3) Do you want a plebiscite to be
called to
ratify
the new Constitution?
(4) Do you want the elections to be
held in
November,
1973 in accordance with the provisions of the 1935 Constitution?
(5) If the elections would not be
held, when
do
you want it to be called?
(6) Do you want martial law to
continue?
It is not
seriously denied that together with the
question the voters were furnished "comments" on the said questions
more
or less suggestive of the answer desired. It may assumed that the said
"comments" came from official sources, albeit specifically
unidentified.
As petitioners point out, the most relevant of these "comments" were
the
following:
COMMENTS ON
xxx xxx xxx
QUESTION No. 2
But we do not want the Ad Interim
Assembly
to
be convoke. Or if it is to be convened at all, it should not be done so
until after at least seven (7) years from the approval of the New
Constitution
by the Citizens Assemblies.
QUESTION No. 3
The vote of the Citizens Assemblies
should
already
be considered the plebiscite on the New Constitution.
If the Citizens Assemblies approve of
the
new
Constitution then the new Constitution should be deemed ratified.
The Solicitor
General claims, and there seems to
be showing otherwise, that the results of the referendum were
determined
in the following manner:
Thereafter, the results of the voting
were
collated
and sent to the Department of Local Governments. The transmission of
the
results was made by telegram, telephone, the provincial government SSB
System in each province connecting all towns; the SSB communication of
the PACD connecting most provinces; the Department of Public
Information
Network System; the Weather Bureau Communication System connecting all
provincial capitals and the National Civil Defense Network connecting
all
provincial capitals. The certificates of results were then flown to
Manila
to confirm the previous figures received by the aforementioned means of
transmission. The certificates of results tallied with the previous
figures
taken with the exception of few cases of clerical errors.
The Department adopted a system of
regionalizing
the receiving section of the Citizens Assemblies operation at the
Department
wherein the identity of the barrio and the province was immediately
given
to a staff in charge of each region. Every afternoon at 2:00 o'clock,
the
11 regions submitted the figures they received from the field to the
central
committee to tabulate the returns. The last figures were tabulated at
12
midnight of January 16, 1973 and early morning of January 17, 1973 and
were then communicated to the President by the Department of Local
Governments.
The development
culminated in the issuance by the
President of Proclamation 1102 on January 17, 1973. Said proclamation
reads:
PROCLAMATION NO. 1102ANNOUNCING THE RATIFICATION BY THE
FILIPINO
PEOPLEOF THE CONSTITUTION PROPOSED BY THE
1971
CONSTITUTIONAL CONVENTION.
WHEREAS, the Constitution proposed by the
nineteen
hundred seventy-one Constitutional Convention is subject to
ratification
by the Filipino people;
WHEREAS, Citizens Assemblies were
created in
barrios
in municipalities and in districts/wards in chartered cities pursuant
to
Presidential Decree No. 6, dated December 31, 1972, composed of all
persons
who are residents of the barrio, district or ward for at least six
months,
fifteen years of age or over, citizens of the Philippines and who are
registered
in the list of Citizen Assembly members kept by the barrio, district or
ward secretary;
WHEREAS, the said Citizens Assemblies
were
establish
precisely to broaden the base of citizen participation in the
democratic
process and to afford ample opportunity for the citizen to express
their
views on important national issues;
WHEREAS, responding to the clamor of
the
people
an pursuant to Presidential Decree No. 86-A, dated January 5, 1973, the
following questions were posed before Citizens' Assemblies or
Barangays:
Do you approve of the New Constitution? Do you still want a plebiscite
to be called to ratify the new Constitution?
WHEREAS, fourteen million nine hundred
seventy-six
thousand five hundred sixty one (14,976,561) members of all the
Barangays
(Citizens Assemblies) voted for the adoption of the proposed
Constitution,
as against seven hundred forty-three thousand eight hundred sixty nine
(743,869) who voted for its rejection; while on the question as to
whether
or not the people would still like a plebiscite to be called to ratify
the new Constitution fourteen million two hundred ninety-eight thousand
eight hundred fourteen (14,298,814) answered that there was no need for
plebiscite and that the vote of the Barangays (Citizens Assemblies)
should
be considered as a vote in a plebiscite;
WHEREAS, since the referendum results
show
that
more than ninety-five (95) percent of the members of the Barangays
(Citizen
Assemblies) are in favor of the New Constitution, the Katipunan ng Mga
Barangay has strongly recommended that the new Constitution should
already
be deemed ratified by the Filipino people;
NOW, THEREFORE, I, FERDINAND E.
MARCOS,
President
of the Philippines, by virtue of the powers in me vested by the
Constitution,
do hereby certify and proclaim that the Constitution proposed by the
nineteen
hundred and seventy-one (1971) Constitutional Convention has been
ratified
by an overwhelmingly majority of all of the votes cast by the members
of
all the Barangays (Citizens Assemblies) throughout the Philippines, and
has thereby come into effect.
IN WITNESS WHEREOF, I have hereunto
set my
hand
and caused the seal of the Republic of the Philippines to be affixed.
Done in the City of Manila, this 17th
day of
January,
in the year of Our Lord, nineteen hundred and seventy-three.
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.cralaw:red
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.cralaw:red
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.cralaw:red
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.cralaw:red
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.cralaw:red
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.cralaw:red
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.cralaw:red
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.cralaw:red
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.
III.
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.cralaw:red
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.cralaw:red
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.cralaw:red
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.cralaw:red
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.cralaw:red
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.cralaw:red
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.cralaw:red
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.cralaw:red
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.cralaw:red
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.
IV.
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.cralaw:red
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.cralaw:red
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.cralaw:red
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.cralaw:red
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.cralaw:red
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.cralaw:red
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.cralaw:red
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.cralaw:red
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.cralaw:red
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.cralaw:red
V.
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.cralaw:red
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.cralaw:red
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.cralaw:red
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.cralaw:red
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.cralaw:red
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.cralaw:red
IN VIEW OF ALL
THE FOREGOING, I vote to dismiss
these petitions for mandamus and prohibition without costs.
MAKASIAR, J.,
Concurring:
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).cralaw:red
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).cralaw:red
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:
Thus the political departments of the
government
dealt with the effect of both previous rejection and attempted
withdrawal
and determined that both were ineffectual in the presence of an actual
ratification. This decision by the political departments of the
Government
as to the validity of the adoption of the Fourteenth amendment has been
accepted.
We think that
in accordance with this historic precedent
the question of the efficacy of ratifications by state legislatures, in
the light of previous rejection or attempted withdrawal, should be
regarded
as a political question pertaining to the political departments, with
the
ultimate authority in the Congress in the exercise of its control over
the promulgation of the adoption of the amendment.
This view was
likewise emphasized by Mr. Justice
Black in his concurring opinion, in which Mr. Justices Roberts,
Frankfurter,
and Douglas join, thus:
The Constitution grants Congress
exclusive
power
to control submission of constitutional amendments. Final determination
by Congress that ratification by three-fourths of the States has taken
place "is conclusive upon the courts." In the exercise of that power,
Congress,
of course, is governed by the Constitution. However, whether
submission,
intervening procedure or Congressional determination of ratification
conforms
to the commands of the Constitution, calls for decisions by a
"political
department" of questions of a type which this Court has frequently
designated
"political." And decision of a "political question" by the "political
department"
to which the Constitution has committed it "conclusively binds the
judges,
as well as all other officers, citizens and subjects of.government."
Proclamation under authority of Congress that an amendment has been
ratified
will carry with it a solemn assurance by the Congress that ratification
has taken place as the Constitution commands. Upon this assurance a
proclaimed
amendment must be accepted as a part of the Constitution, leaving to
the
judiciary its traditional authority of interpretation. To the extent
that
the Court's opinion in the present case even impliedly assumes a power
to make judicial interpretation of the exclusive constitutional
authority
of Congress over submission and ratification of amendments, we are
unable
to agree. (American Constitutional Issues, by Pritchett, 1962
Ed.,
p. 44).
The doctrine in
the aforesaid case of Coleman vs.
Miller was adopted by Our Supreme Court in toto in Mabanag vs.
Lopez
Vito (78 Phil. 1).
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.cralaw:red
It should be
stressed that even in the Gonzales
case, supra, We held that:
Indeed, the power to amend the
Constitution or
to propose amendments thereto is not included in the general grant of
legislative
powers to Congress. It is part of the inherent powers of the
people
as the repository of sovereignty in a republican state, such as
ours
to make, and hence, to amend their own Fundamental Law. Congress may
propose
amendments to the same explicitly grants such power. Hence, when
exercising
the same, it is said that Senators and Members of the House of
Representatives
act, not as members, but as component elements of a constituent
assembly.
When acting as such, the members of Congress derive their authority
from
the Constitution, unlike the people, when performing the same function,
for their authority does not emanate from the Constitution they
are
the very source of all powers of government, including the Constitution
itself. (21 SCRA 787).
We did not
categorically and entirely overturn the
doctrine in Mabanag vs. Lopez Vito (78 Phil. 1) that both the proposal
to amend and the ratification of such a constitutional amendment are
political
in nature forming as they do the essential parts of one political
scheme
the amending process. WE merely stated therein that the force of the
ruling
in the said case of Mabanag vs. Lopez Vito has been weakened by
subsequent
cases. Thus, We pronounced therein:
It is true that in Mabanag vs. Lopez
Vito, this
Court characterizing the issue submitted thereto as a political one,
declined
to pass upon the question whether or not a given number of votes cast
in
Congress in favor of a proposed amendment to the Constitution
which
was being submitted to the people for ratification satisfied the
three fourths vote requirement of the fundamental law. The force of
this
precedent has been weakened, however, by Suanes vs. Chief Accountant of
the Senate, Avelino vs. Cuenco, Tañada vs. Cuenco and Macias vs.
Commission on Elections. In the first, we held the officers and
employees
of the Senate Electoral Tribunal are supervision and control, not of
that
of the Senate President, claimed by the latter; in the second, this
Court
proceeded to determine the number of Senators necessary for a quorum in
the Senate; in the third we nullified the election, by Senators
belonging
to the party having the largest number of votes in said chamber
purporting
to act on behalf of the party having the second largest number of votes
therein, of two (2) Senators belonging to the first party, as members,
for the second party, of the Senate Electoral Tribunal; and in the
fourth,
we declared unconstitutional an act of Congress purporting to apportion
the representative districts for the House of Representatives, upon the
ground that the apportionment had not been made as may be possible
according
to the number of inhabitants of each province. Thus we rejected the
theory
advanced in these four (4) cases, that the issues therein raised were
political
questions the determination of which is beyond judicial review. (21
SCRA
pp. 785-786).
for which
reason We concluded:
In short, the issue of whether or not a
resolution
of Congress before acting as a constituent assembly violates the
Constitution is essentially justiciable, not political, and, hence,
subject
to judicial review, and to the extent that this view may be
inconsistent
with the stand taken in Mabanag vs. Lopez Vito, the latter should be
deemed
modified accordingly. (p. 787, emphasis supplied).
In the
Tolentino case, supra, We reiterated
the foregoing statements (41 SCRA 703-714). The inevitable consequence
therefore is that the validity of the ratification or adoption of or
acquiescence
by the people in the 1973 Constitution, remains a political issue
removed
from the jurisdiction of this Court to review.
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.cralaw:red
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).cralaw:red
The Convention
convened at Philadelphia on May
14, 1787. Article XIII of the Articles of Confederation and Perpetual
Union
stated specifically:
The articles of this confederation shall
be
inviolably
observed in every state, and the union shall be perpetual; nor shall
any
alterations at any time hereafter be made in any of them; unless such
alteration
be agreed to in a congress of the united states, and be afterwards
confirmed
by the legislatures of every state. (See the Federalist, Appendix II,
Modern
Library Ed., 1937, p. 584; emphasis supplied).
But the
foregoing requirements prescribed by the
Articles of Confederation and Perpetual Union for the alteration for
the
ratification of the Federal Constitution as drafted by the Philadelphia
Convention were not followed. Fearful the said Federal Constitution
would
not be ratified by the legislatures as prescribed, the Philadelphia
Convention
adopted a resolution requesting the Congress of the Confederation to
pass
a resolution providing that the Constitution should be submitted to
elected
state conventions and if ratified by the conventions in nine (9)
states,
not necessarily in all thirteen (13) states, the said Constitution
shall
take effect.
Thus, history
Professor Edward Earle Mead of Princeton
University recorded that:
It would have been a counsel of
perfection to
consign the new constitution to the tender mercies of the legislatures
of each and all of the 13 states. Experience clearly indicated that
ratification
then would have had the same chance as the scriptural camel passing
through
the eye of a needle. It was therefore determined to recommend to
Congress
that the new Constitution be submitted to conventions in the several
states
especially elected to pass upon it and that, furthermore, the new
government
should go into effect if and when it should be ratified by nine of the
thirteen states. (The Federalist, Modern Library Ed., 1937,
Introduction
by Edward Earle Mead, pp. viii-ix; emphasis supplied)
Historian
Samuel Eliot Morison similarly recounted:
The Convention, anticipating that the
influence
of many state politicians would be Antifederalist, provided for
ratification
of the Constitution by popularly elected conventions in each state.
Suspecting
that Rhode Island, at least, would prove recalcitrant, it declared that
the Constitution would go into effect as soon as nine states ratified.
The convention method had the further advantage that judges, ministers,
and others ineligible to state legislatures, could be elected to a
convention.
The nine-state provision was, of course, mildly revolutionary. But the
Congress of the Confederation, still sitting in New York to carry on
federal
government until relieved, formally submitted the new constitution to
the
states and politely faded out before the first presidential
inauguration.
(The Oxford History of the Am. People, by Samuel Eliot Morison, 1965
ed.,
p. 312).
And so the
American Constitution was ratified by
nine (9) states on June 21, 1788 and by the last four states on May 29,
1790 (12 C.J. p. 679 footnote, 16 C.J.S., 27). by the state
conventions
and not by all thirteen (13) state legislatures as required by Article
XIII of the Articles of Confederation and Perpetual Union
aforequoted
and in spite of the fact that the Federal Constitution as originally
adopted
suffers from two basic infirmities, namely, the absence of a bill of
Rights
and of a provision affirming the power of judicial review.
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).cralaw:red
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.cralaw:red
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:
No case identical in its facts with the
case
now under consideration has been called to our attention, and we have
found
none. We think that the principle which we apply in the instant case
was
very clearly applied in the creation of the constitution of the United
States. The convention created by a resolution of Congress had
authority
to do one thing, and one only, to wit, amend the articles of
confederation.
This they did not do, but submitted to the sovereign power, the people,
a new constitution. In this manner was the constitution of the United
States
submitted to the people and it became operative as the organic law of
this
nation when it had been properly adopted by the people.
Pomeroy's Constitutional Law, p. 55,
discussing
the convention that formulated the constitution of the United States,
has
this to say: "The convention proceeded to do, and did accomplish, what
they were not authorized to do by a resolution of Congress that called
them together. That resolution plainly contemplated amendments to the
articles
of confederation, to be submitted to and passed by the Congress, and
afterwards
ratified by all the State legislatures, in the manner pointed out by
the
existing organic law. But the convention soon became convinced that any
amendments were powerless to effect a cure; that the disease was too
deeply
seated to be reached such tentative means. They saw that the system
they
were called to improve must be totally abandoned, and that the national
idea must be re-established at the center of their political society.
It
was objected by some members, that they had no power, no authority, to
construct a new government. They had no authority, if their decisions
were
to be final; and no authority whatsoever, under the articles of
confederation,
to adopt the course they did. But they knew that their labors were only
to be suggestions; and that they as well as any private individuals,
and
any private individuals as well as they, had a right to propose a plan
of government to the people for their adoption. They were, in fact, a
mere
assemblage of private citizens, and their work had no more binding
sanction
than a constitution drafted by Mr. Hamilton in his office would have
had.
The people, by their expressed will, transformed this suggestion, this
proposal, into an organic law, and the people might have done the same
with a constitution submitted to them by a single citizen."
xxx xxx xxx
When the people adopt a completely
revised
or
new constitution, the framing or submission of the instrument is not
what
gives it binding force and effect. The fiat of the people and only the
fiat of the people, can breathe life into a constitution.
xxx xxx xxx
We do not hesitate to say that a court
is
never
justified in placing by implication a limitation upon the sovereign.
This
would be an authorized exercise of sovereign power by the court. In
State
v. Swift, 69 Ind. 505, 519, the Indiana Supreme Court said: "The people
of a State may form an original constitution, or abrogate an old one
and
form a new one, at any time, without any political restriction except
the
constitution of the United States." (37 SE 327-328, 329, emphasis
supplied).
In the 1903
case of Weston vs. Ryan, the Court held:
It remains to be said that if we felt at
liberty
to pass upon this question, and were compelled to hold that the act of
February 23, 1887, is unconstitutional and void, it would not, in our
opinion,
by any means follow that the amendment is not a part of our state
Constitution.
In the recent case of Taylor vs. Commonwealth (Va.) 44 S.E. 754, the
Supreme
Court of Virginia hold that their state Constitution of 1902, having
been
acknowledged and accepted by the officers administering the state
government,
and by the people, and being in force without opposition, must be
regarded
as an existing Constitution irrespective of the question as to whether
or not the convention which promulgated it had authority so to do
without
submitting it to a vote of the people. In Brittle v. People, 2 Neb.
198,
is a similar holding as to certain provisions of the Nebraska
Constitution
of 1886, which were added by the Legislature at the requirement of
Congress,
though never submitted to the people for their approval." (97 NW
349-350;
emphasis supplied).
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.cralaw:red
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.cralaw:red
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.cralaw:red
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:
In view of the importance of the subject,
the
apparent misapprehension on one side and seeming misconception on the
other,
suggested by the argument as to the full significance of the previous
doctrine,
we do not content ourselves with a mere citation of the cases, but
state
more at length than we otherwise would the issues and the doctrine
expounded
in the leading and absolutely controlling case Luther v. Borden,
7 How. 1, 12 L.ed. 581.
xxx xxx xxx
On this subject
it was said (p. 38):
"For if this court is authorized to enter
upon
this inquiry, proposed by the plaintiff, and it should be decided that
the character government had no legal existence during the period of
time
above mentioned, if it had been annulled by the adoption of the
opposing
government, then the laws passed by its legislature during that
time
were nullities; its taxes wrongfully collected, its salaries and
compensations
to its officers illegally paid ; its public accounts improperly settled
and the judgments and sentences of its courts in civil and criminal
cases
null and void, and the officers who carried their decisions into
operation
answerable as trespassers, if not in some cases as criminals."
"The fourth section of the fourth article
of
the Constitution of the United States shall guarantee to every state in
the Union a republican form of government, and shall protect each of
them
against invasion; and on the application of the Legislature or of the
Executive
(when the legislature cannot be convened) against domestic violence.
"Under this article of the Constitution,
it
rests
with Congress to decide what government is established one in a state.
For, as the United State guarantee to each state a republican
government,
Congress must necessarily decide what government is established in the
state before it can determine whether it is republican or not. And when
the senators and representatives of a state are admitted into the
Councils
of the Union, the authority of the government under which they were
appointed,
as well as its republican character, is recognized by the proper
constitutional
authority. And its decision is binding on every other department of the
government, and could not be questioned in a judicial tribunal. It is
true
that the contest in this case did not last long enough to bring the
matter
to this issue; and as no senators or representatives were elected under
the authority of the government of which Mr. Dorr was the head,
Congress
was not called upon to decide the controversy. Yet the right to decide
is placed there and not in the courts."
We do not stop
to cite other cases which indirectly
or incidentally refer to the subject, but conclude by directing
attention
to the statement by the court, speaking through Mr. Chief Justice
Fuller,
in Taylor vs. Beckham, 178 U.S. 548, 44 L.ed. 1187, 20 Sup. Ct. Rep.
890,
1009, where, after disposing of a contention made concerning the 14th
Amendment,
and coming to consider a proposition which was necessary to be decided
concerning the nature and effect of the guaranty of S 4 of article 4,
it
was said (p. 578):
"But it is said that the 14th Amendment
must
be read with S 4 of article 4, of the Constitution, providing that the
United States shall guarantee to every state in this Union a republican
form of government, and shall protect each of them against invasion;
and
on application of the legislature, or the Executive (when the
legislature
cannot be convened), against domestic violence."
"It was long ago settled that the
enforcement
of this guaranty belonged to the political department. Luther v.
Borden,
7 How. 1, 12 L.ed. 581. In that case it was held that the question,
which
of the two opposing governments of Rhode Island, namely, the charter
government
or the government established by a voluntary convention, was the
legitimate
one, was a question for the determination of the political department;
and when that department had decided, the courts were bound to take
notice
of the decision and follow it."
As the issues
presented, in their very essence, are,
and have long since by this Court been, definitely determined to be
political
and governmental, and embraced within the scope of the scope of the
powers
conferred upon Congress, and not, therefore within the reach of
judicial
power, it follows that the case presented is not within our
jurisdiction,
and the writ of error must therefore be, and it is, dismissed for want
of jurisdiction. (223 U.S. pp. 142-151; emphasis supplied).
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.cralaw:red
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).cralaw:red
The Court in the
Taylor case above-mentioned further
said:
While constitutional procedure for
adoption or
proposal to amend the constitution must be duly followed, without
omitting
any requisite steps, courts should uphold amendment, unless satisfied
that
the Constitution was violated in submitting the proposal. Substance
more
than form must be regarded in considering whether the complete
constitutional
system for submitting the proposal to amend the constitution was
observed.
In the 1925
case of Taylor vs. King (130 A 407, 408
410), the Court stated:
There may be technical error in the
manner in
which a proposed amendment is adopted, or in its advertisement, yet, if
followed, unobjected to, by approval of the electors, it becomes part
of
the Constitution. Legal complaints to the submission may be made prior
to taking the vote, but, if once sanctioned, the amendment is embodied
therein, and cannot be attacked, either directly or collaterally,
because
of any mistake antecedent thereto. Even though it be submitted at an
improper
time, it is effective for all purposes when accepted by the majority.
Armstrong
v. King, 281 Pa. 207, 126 A. 263. (130 A 409).
Even if the act
of the Constitutional Convention
is beyond its authority, such act becomes valid upon ratification or
adoption
or acquiescence by the people. Thus, in the 1905 case of Ex parte
Birmingham
and A.R. Company (42 SO pp. 118 & 123), the Alabama Supreme Court
upheld
this principle and stated that: "The authorities are almost uniform
that
this ratification of an unauthorized act by the people (and the people
are the principal in this instance) renders the act valid and binding."
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).cralaw:red
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).cralaw:red
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.cralaw:red
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.cralaw:red
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.cralaw:red
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).cralaw:red
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.cralaw:red
Of happy
relevance on this point is the holding
in Miller vs. Johnson 18 SW 522:
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 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.
Is the question, therefore, one of a judicial character? It is our
undoubted
duty, if a statute be unconstitutional to so declare it; also, if a
provision
of the state constitution be in conflict with the federal constitution,
to hold the former invalid. But this is a very different case. It may
be
said, however, that, for every violation of or non-compliance with the
law, there should be a remedy in the courts. This is not, however,
always
the case. For instance, the power of a court as to the acts of the
other
departments of the government is not an absolute one, but merely to
determine
whether they have kept within constitutional limits, it is a duty
rather
than a power, The judiciary cannot compel a co-equal department to
perform
a duty. It is responsible to the people; but if it does act, then, when
the question is properly presented, it is the duty of the court to say
whether it has conformed to the organic law. 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
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
required, the overthrow of the work of the convention.
After the American Revolution, the state
of
Rhode
Island retained its colonial character as its constitution, and no law
existed providing for the making of a new one. In 1841 public meetings
were held, resulting in the election of a convention to form a new
one,
to be submitted to a popular vote. The convention framed one, submitted
it to a vote, and declared it adopted. Elections were held for state
officers,
who proceeded to organize a new government. The charter government did
not acquiesce in these proceedings, and finally declared the state
under
martial law. It called another convention, which in 1843 formed a new
constitution.
Whether the charter government, or the one established by the voluntary
convention, was the legitimate one, was uniformly held by the courts of
the state not to be a judicial, but a political question; and the
political
department having recognized the one, it was held to be the duty of the
judiciary to follow its decision. The supreme court of the United
States,
in Luther v. Borden, 7 How. 1, while not expressly deciding the
principle,
as it held the federal court, yet in the argument approves it, and in
substance
says that where the political department has decided such a matter the
judiciary should abide by it.
Let us illustrate the difficulty of a
court
deciding
the question: Suppose this court were to hold that the convention, when
it reassembled, had no power to make any material amendment, and that
such
as were made are void by reason of the people having theretofore
approved
the instrument. Then, next, this court must determine what amendments
were
material; and we find the court, in effect, making a constitution. This
would be arrogating sovereignty to itself. Perhaps the members of the
court
might differ as to what amendments are material, and the result would
be
confusion and anarchy. One judge might say that all the amendments,
material
and immaterial, were void; another, that the convention had then the
implied
power to correct palpable errors, and then the court might differ as to
what amendments are material. If the instrument as ratified by the
people
could not be corrected or altered at all, or if the court must
determine
what changes were material, then the instrument, as passed upon by the
people or as fixed by the court would be lacking a promulgation by the
convention; and, if this be essential, then the question would arise,
what
constitution are we now living under, and what is the organic law of
the
state? A suggestion of these matters shows what endless confusion and
harm
to the state might and likely would arise. If, through error of
opinion,
the convention exceeded its power, and the people are dissatisfied,
they
have ample remedy, without the judiciary being asked to overstep the
proper
limits of its power. The instrument provides for amendment and change.
If a wrong has been done, it can, in the proper way in which it should
be remedied, is by the people acting as a body politic. It is not a
question
of whether merely an amendment to a constitution, made without calling
a convention, has been adopted, as required by that constitution. If it
provides how it is to be done, then, unless the manner be followed, the
judiciary, as the interpreter of that constitution, will declare the
amendment
invalid. Koehler v. Hill, 60 Iowa, 543, 14 N.W. Rep. 738, and 15 N.W.
Rep.
609; State v. Tuffy, 1 Nev. 391, 12 Pac. Rep. 835. But it is a case
where
a new constitution has been formed and promulgated according to the
forms
of law. Great interests have already arisen under it; important rights
exist by virtue of it; persons have been convicted of the highest crime
known to the law, according to its provisions; the political power of
the
government has in many ways recognized it; and, under such
circumstances,
it is our duty to treat and regard it as a valid constitution, and now
the organic law of our commonwealth.
We need not consider the validity of the
amendments
made after the convention reassembled. If the making of them was in
excess
of its powers, yet, as the entire instrument has been recognized as
valid
in the manner suggested, it would be equally an abuse of power by the
judiciary
and violative of the rights of the people, who can and properly
should
remedy the matter, if not to their liking, if it were to declare
the instrument of a portion invalid, and bring confusion and anarchy
upon
the state. (emphasis supplied).
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.cralaw:red
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.cralaw:red
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.cralaw:red
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.cralaw:red
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.cralaw:red
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.cralaw:red
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.cralaw:red
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.cralaw:red
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.cralaw:red
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.cralaw:red
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.cralaw:red
IN VIEW OF THE
FOREGOING, ALL THE PETITIONS IN
THESE FIVE CASES SHOULD BE DISMISSED.cralaw:red
MAKASIAR, J., concurring:
Pursuant to Our
reservation, We now discuss the
other issues raised by the petitioners.
II.
EVEN IF THE ISSUE IS JUSTICIABLE,
THE
PEOPLE'S
RATIFICATION, ADOPTION OR ACQUIESCENCE CREATES STRONG PRESUMPTION OF
VALIDITY
OF 1973 CONSTITUTION.
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).cralaw:red
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.cralaw:red
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.cralaw:red
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.cralaw:red
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.cralaw:red
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.cralaw:red
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.cralaw:red
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:
WHEREAS, the 1971 Constitutional
Convention is
expected to complete its work of drafting a proposed new Constitution
for
the Republic by the end of November, 1972;
WHEREAS, in view of the urgency of
instituting
reforms, the early approval of the New Constitution has become
imperative;
WHEREAS, it is the desire of the
national
and
local leaders that there be continuity in the immediate political
transition
from the old to the New Constitution;" (Annex "1" of Answer, Res. No.
29,
Constitutional Convention).
As Mr. Justice
Fernando, with whom Messrs. Justices
Barredo, Antonio and the writer concurred in the Plebiscite Cases,
stated:
Once this work of drafting has been
completed,
it could itself direct the submission to the people for ratification as
contemplated in Article XV of the Constitution. Here it did not do so.
With Congress not being in session, could the President, by the decree
under question, call for such a plebiscite? Under such circumstances, a
negative answer certainly could result in the work of the Convention
being
rendered nugatory. The view has been repeatedly expressed in many
American
state court decisions that to avoid such undesirable consequence the
task
of submission becomes ministerial, with the political branches devoid
of
any discretion as to the holding of an election for that purpose. Nor
is
the appropriation by him of the amount necessary to be considered as
offensive
to the Constitution. If it were done by him in his capacity as
President,
such an objection would indeed have been formidable, not to say
insurmountable.
If the appropriation were made in his capacity as agent of the
Convention
to assure that there be submission to the people, then such an argument
loses force. The Convention itself could have done so. It is
understandable
why it should be thus. If it were otherwise, then a legislative body,
the
appropriating arm of the government, could conceivably make use of such
authority to compel the Convention to submit to its wishes, on pain of
being rendered financially distraught. The President then, if
performing
his role as its agent, could be held as not devoid of such competence.
(pp. 2-3, concurring opinion of J. Fernando in L-35925, etc., emphasis
supplied).
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.cralaw:red
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.
Article IV
Sec. 3. The right of the people to be
secure
in
their persons, houses, papers, and effects against unreasonable
searches
and seizures of whatever nature and for any purpose shall not be
violated,
and no search warrant or warrant of arrest shall issue except upon
probable
cause to be determined by the judge, or such other responsible officer
as may be authorized by law, after examination under oath or
affirmation
of the complainant and the witnesses may produce, and particularly
describing
the place to be searched, and the persons or things to be seized.
Article XIV
Sec. 15. Any provision of paragraph
one,
Section
fourteen, Article Eight and of this Article notwithstanding, the Prime
Minister may enter into international treaties or agreements as the
national
welfare and interest may require." (Without the consent of the National
Assembly.)
Article XVII
Sec. 3(2) All proclamations, orders,
decrees,
instructions, and acts promulgated, issued, or done by the incumbent
President
shall be part of the law of the land, and shall remain valid, legal,
binding
and effective even after lifting of martial law or the ratification of
this Constitution, unless modified, revoked, or superseded by
subsequent
proclamations, orders, decrees, instructions, or other acts of the
incumbent
President, or unless expressly and explicitly modified or repealed by
the
regular National Assembly.
xxx xxx xxx
Sec. 12. All treaties, executive
agreements,
and
contracts entered into by the Government, or any subdivision, agency,
or
instrumentality thereof, including government-owned or controlled
corporations,
are hereby recognized as legal, valid and binding. When the national
interest
so requires, the incumbent President of the Philippines or the interim
Prime Minister may review all contracts, concessions, permits, or other
forms of privileges for the exploration, development, exploitation, or
utilization of natural resources entered into, granted, issued or
acquired
before the ratification of this Constitution.
In the
Plebiscite Cases (L-35925, L-35929, L-35940,
L-35942, L-35948, L-35953, L-35961, L-35965, & L-35979), Chief
Justice
Roberto Concepcion, concurred in by Justices Fernando, Barredo, Antonio
and the writer, overruled this objection, thus:
Regardless of the wisdom and moral
aspects of
the contested provisions of the proposed Constitution, it is my
considered
view that the Convention was legally deemed fit to propose save
perhaps
what is or may be insistent with what is now known, particularly in
international
law, as Jus Cogens not only because the Convention exercised
sovereign
powers delegated thereto by the people although insofar only as
the
determination of the proposals to be made and formulated by said body
is
concerned but also, because said proposals cannot be valid as
part
of our Fundamental Law unless and until "approved by the majority of
the
votes cast at an election which" said proposals "are submitted to the
people
for their ratification," as provided in Section 1 of Article XV of the
1935 Constitution. (Pp. 17-18, Decision in L-35925, etc.).
This Court
likewise enunciated in Del Rosario vs.
Comelec (L-32476, Oct. 20, 1970, 35 SCRA 367) that the Constitutional
Convention
has the authority to "entirely overhaul the present Constitution and
propose
an entirely new Constitution based on an ideology foreign to the
democratic
system; because the same will be submitted to the people for
ratification.
Once ratified by the sovereign people, there can be no debate about the
validity of the new 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]).cralaw:red
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."
V.1973 CONSTITUTIONDULY ADOPTED AND PROMULGATED.
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?
VI.ARTICLE XV OF 1935 CONSTITUTION
DOES
NOTPRESCRIBE
ANY PROCEDURE FOR RATIFICATION OF1973 CONSTITUTION.
(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.cralaw:red
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]).cralaw:red
As typical
examples:
Constitution
of Alabama (1901):
Article XVIII.
Mode of Amending the Constitution
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.cralaw:red
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.cralaw:red
Constitution
of Arkansas (1874):
Article XIX.
Miscellaneous Provisions.cralaw:red
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.cralaw:red
Constitution
of Kansas (1861):
Article XIV.
Amendments.cralaw:red
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.cralaw:red
Constitution
of Maryland (1867):
Article XIV.
Amendments to the Constitution.cralaw:red
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.cralaw:red
Constitution
of Missouri (1945):
Article XII.
Amending the Constitution.cralaw:red
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.cralaw:red
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.cralaw:red
(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).cralaw:red
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.cralaw:red
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.cralaw:red
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.cralaw:red
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.cralaw:red
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.cralaw:red
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".cralaw:red
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.cralaw:red
(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.cralaw:red
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).cralaw:red
The election laws
then in force before 1938 were
found in Sections 392-483 of the Revised Administrative Code.cralaw:red
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).cralaw:red
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).cralaw:red
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).cralaw:red
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.cralaw:red
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).cralaw:red
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.cralaw:red
(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.cralaw:red
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).cralaw:red
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.cralaw:red
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.cralaw:red
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.cralaw:red
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.cralaw:red
Sec. 5. Powers
of the barrio assembly.-
The powers of the barrio assembly shall be as follows:
a. To recommend to the barrio council the
adoption
of measures for the welfare of the barrio;
b. To decide on the holding of a
plebiscite
as
provided for in Section 6 of this Act;
c. To act on budgetary and
supplemental
appropriations
and special tax ordinances submitted for its approval by the barrio
council;
and
d. To hear the annual report council
concerning
the activities and finances of the assembly.
Sec. 6.
Plebiscite.- A plebiscite may
be held in the barrio when authorized by a majority vote of the members
present in the barrio assembly, there being a quorum, or when called by
at least four members of the barrio council; Provided, however, That no
plebiscite shall be held until after thirty days from its approval by
either
body, and such plebiscite has been given the widest publicity in the
barrio,
stating the date, time, and place thereof, the questions or issues to
be
decided, action to be taken by the voters, and such other information
relevant
to the holding of the plebiscite.
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.cralaw:red
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.cralaw:red
xxx
xxx xxx
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.cralaw:red
The following
persons shall not be qualified to
vote:
a. Any person who has been sentenced by
final
judgment to suffer one year or more of imprisonment, within two years
after
service of his sentence;
b. Any person who has violated his
allegiance
to the Republic of the Philippines; and
c. Insane or feeble-minded persons.
All these
barrio assembly members, who are at least
18 years of age, although illiterate, may vote at the plebiscite on the
recall of any member of the barrio council or on a budgetary,
supplemental
appropriation, or special ordinances, a valid action on which requires
"a majority vote of all of the barrio assembly members registered in
the
list of the barrio secretary" (par. 5, Sec. 6, R.A. No. 3590). Such
plebiscite
may be authorized by a majority vote of the members present in the
barrio
assembly, there being a quorum (par. 1, Sec. 6).
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).cralaw:red
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.cralaw:red
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.cralaw:red
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.cralaw:red
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.cralaw:red
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.cralaw:red
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.cralaw:red
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.cralaw:red
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.cralaw:red
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.cralaw:red
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).cralaw:red
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).cralaw:red
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.).cralaw:red
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.cralaw:red
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.).cralaw:red
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).cralaw:red
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.).cralaw:red
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.cralaw:red
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.cralaw:red
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.cralaw:red
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).cralaw:red
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).cralaw:red
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.cralaw:red
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:
1) I do not quite understand why (Problem
1)
all qualified registered voters and the 15-20-year-old youths (1972)
will
have to be estimated in order to give a 101.9% estimate of the
percentage
participation of the "15-20 year old plus total number of qualified
voters"
which does not deem to answer the problem. This computation apparently
fails to account for some 5.6 million persons "21 years old and over"
who
were not registered voters (COMELEC), but who might be qualified to
participate
at the Citizen's Assembly.
2) The official population projection
of
this
office (medium assumption) for "15 year olds and over" as of January 1,
1973 is 22.506 million. If total number of participants at the
Citizens'
Assembly Referendum held on January 10-15, 1973 was 16.702 million,
participation
rate will therefore be the ratio of the latter figure to the former
which
gives 74.2%.
3) I cannot also understand c-2
"Solution to
Problem
11." The "difference or implied number of 15-20 year olds" of 5,039,906
would represent really not only all 15-year olds and over who
participated
at the Citizens' Assembly but might not have been registered voters at
the time, assuming that all the 11,661,909 registered voted at
Citizens'
Assembly. Hence, the "estimate percentage participation of 15-20 years
olds" of 105.6% does not seem to provide any meaningful information.
To obtain the participation rate of
"15-20
years
old" one must divide the number in this age group, which was estimated
to be 4.721 million as of January 1, 1973 by the population of "15
years
old and over" for the same period which was estimated to be 22.506
million,
giving 21.0%.
In Problem III, it should be observed
that
registered
voters also include names of voters who are already dead. It cannot
therefore
be assumed that all of them participated at the Citizens' Assembly. It
can therefore be inferred that "a total number of persons 15 and over
unqualified/disqualified
to vote" will be more than 10,548,197 and hence the "difference or
implied
number of registered voters that participated" will be less than
6,153,618.
I have reservations on whether an
"appropriate
number of qualified voters that supposedly voted" could be meaningfully
estimated.
5) The last
remark will therefore make the ratio
(a) [Solution to Problem] more than 1.71 and that for (b), accordingly,
will also be less than 36.8%." (Annex F Rejoinder).
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.cralaw:red
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.cralaw:red
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).cralaw:red
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.cralaw:red
(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.cralaw:red
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.cralaw:red
(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.cralaw:red
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.cralaw:red
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.cralaw:red
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.cralaw:red
(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.cralaw:red
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.cralaw:red
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.
VI.PRESIDENT, AS COMMANDER IN CHIEF,
EXERCISESLEGISLATIVE POWERS DURING MARTIAL
LAW.
The position of the respondent public
officers
that undermartial law, the President as Commander-in-Chief is vested
with
legislative powers, is sustained by the ruling in the 1949 case of
Kuroda
vs. Jalandoni, et al. (83 Phil. 171, 177-178) which reiterates the 1945
case of Yamashita vs. Styer (75 Phil. 563, 571-72). The trial of
General
Kuroda was after the surrender of Japan on October 2, 1945 (23 Encyc.
Brit.
1969 ed., p. 799) and hence no more martial law in the Philippines.
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.cralaw:red
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:
"War is not ended simply because
hostilities
have ceased. After cessation of armed hostilities, incidents of war may
remain pending which should be disposed of as in time of war. "An
important
incident to a conduct of war is the adoption measures by the military
command
not only to repel and defeat the enemies but to seize and subject to
disciplinary
measures those enemies who in their attempt to thwart or impede our
military
effort have violated the law of war." (Ex parte Quirin, 317 U.S., 1; 63
Sup. Ct., 2.) Indeed, the power to create a military commission for the
trial and punishment of war criminals is an aspect of waging war. And,
in the language of a writer, a military commission "has jurisdiction so
long as the technical state of war continues. This includes the period
of an armistice, or military occupation, up to the effective date of
treaty
of peace, and may extend beyond, by treaty agreement." (Cowles, Trial
of
War Criminals by Military Tribunals, American Bar Association Journal,
June, 1944).
Consequently,
the President as Commander-in-Chief
is fully empowered to consummate this unfinished aspect of war, namely
the trial and punishment of war criminals, through the issuance and
enforcement
of Executive Order No. 68. (83 Phil. 177-178; emphasis supplied).
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.cralaw:red
The foregoing
view appears to be shared by Rossiter
when he stated:
Finally, this strong government, which in
some
instances might become an outright dictatorship, can have no other
purposes
than the preservation of the independence of the state, the maintenance
of the existing constitutional order, and the defense of the political
and social liberties of the people. It is important to recognize the
true
and limited ends of any practical application of the principle of
constitutional
dictatorship. Perhaps the matter may be most clearly stated in this
way:
the government of a free state is proceeding on its way and meeting the
usual problems of peace and normal times within the limiting framework
of its established constitutional order. The functions of government
are
parceled out among a number of mutually independent offices and
institutions;
the power to exercise those functions is circumscribed by
well-established
laws, customs, and constitutional prescriptions; and the people for
whom
this government was instituted are in possession of a lengthy catalogue
of economic, political, and social rights which their leaders recognize
as inherent and inalienable. A severe crisis arises the country
is
invaded by a hostile power, or a dissident segment of the citizenry
revolts,
or the impact of a world-wide depression threatens to bring the
nation's
economy in ruins. The government meets the crisis by assuming more
powers
and respecting fewer rights. The result is a regime which can act
arbitrarily
and even dictatorially in the swift adaption of measures designed to
save
the state and its people from the destructive effects of the particular
crisis. And the narrow duty to be pursued by this strong government,
this
constitutional dictatorship? Simply this and nothing more: to end the
crisis
and restore normal times. The government assumes no power and abridges
no right unless plainly indispensable to that end; it extends no
further
in time than the attainment of that end; and it makes no alteration in
the political, social and economic structure of the nation which cannot
be eradicated with the restoration of normal times. In short, the aim
of
constitutional dictatorship is the complete restoration of the status
quo
ante bellum. This historical fact does not comport with philosophical
theory,
that there never has been a perfect constitutional dictatorship, is an
assertion that can be made without fear of contradiction. But this is
true
of all institutions of government, and the principle of constitutional
dictatorship remains eternally valid no matter how often and seriously
it may have been violated in practice. (Constitutional Dictatorship,
1948
ed., by Clinton L. Rossiter, p. 7; emphasis supplied.)
Finally,
Rossiter expressly recognizes that during
martial law, the Chief Executive exercises legislative power, whether
of
temporary or permanent character, thus:
The measures adopted in the prosecution
of a
constitutional dictatorship should never be permanent in character or
effect.
Emergency powers are strictly conditioned by their purpose and this
purpose
is the restoration of normal conditions. The actions directed to this
end
should therefore be provisional. For example, measures of a legislative
nature which work a lasting change in the structure of the state or
constitute
permanent derogations from existing law should not be adopted under an
emergency enabling act, at least not without the positively registered
approval of the legislature. Permanent laws, whether adopted in regular
or irregular times, are for parliaments to enact. By this same token,
the
decisions and sentences of extraordinary courts should be reviewed by
the
regular courts after the termination of the crisis.
But what if a
radical act of permanent character,
one working lasting changes in the political and social fabric, is
indispensable
to the successful prosecution of the particular constitutional
dictatorship?
The only answer can be: it must be resolutely taken and openly
acknowledged.
President Lincoln found it necessary to proceed to the revolutionary
step
of emancipation in aid of his conservative purpose of preserving the
Union;
as a constitutional dictator he had a moral right to take this radical
action. Nevertheless, it is imperative that any action with such
lasting
effects should eventually receive the positive approval of the people
or
of their representatives in the legislature. (p. 303, emphasis
supplied).
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.cralaw:red
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.cralaw:red
"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).cralaw:red
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.cralaw:red
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.cralaw:red
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).cralaw:red
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 POWERSPRECLUDES 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.cralaw:red
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.cralaw:red
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.cralaw:red
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.cralaw:red
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).
IXTO NULLIFY PROCLAMATION NO. 1102
AND 1973
CONSTITUTIONREQUIRES EIGHT OR TEN VOTES
OFSUPREME
COURT.
The petitioners in L-36164 and L-36236
specifically
pray for a declaration that the alleged ratification of the 1973
Constitution
is null and void and that the said 1973 Constitution be declared
unenforceable
and inoperative.
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.cralaw:red
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.cralaw:red
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.
HENCE, THE
DISMISSAL OF THESE FIVE CASES IS JUSTIFIED.
ESGUERRA, J.,
Concurring:
These petitions seek to stop and prohibit
the
respondents
Executive Officers from implementing the Constitution signed on
November
30, 1972; in L-36165, to compel respondents Gil Puyat and Jose J. Roy,
President and President Pro-Tempore, respectively, of the Senate under
the 1935 Constitution, to convene the Senate in regular session which
should
have started on January 22, 1973; to nullify Proclamation No. 1102 of
the
President, issued on January 17, 1973, which declared the ratification
of the Constitution on November 30, 1972, by the Filipino people,
through
the barangays or Citizens Assemblies established under Presidential
Decree
No. 86 issued on December 31, 1972, which were empowered under
Presidential
Decree No. 86-A, issued on January 5, 1973, to act in connection with
the
ratification of said Constitution.
Grounds for the
petitions are as follows:
1. That the Constitutional Convention was
not
a free forum for the making of a Constitution after the declaration of
Martial Law on September 21, 1972.
2. The Convention was not empowered to
incorporate
certain provisions in the 1972 Constitution because they are highly
unwise
and objectionable and the people were not sufficiently informed about
them.
3. The President had no authority to
create
and
empower the Citizens' Assemblies to ratify the new Constitution at the
referendum conducted in connection therewith, as said assemblies were
merely
for consultative purposes, and
4. The provisions of Article XV of the
1935
Constitution
prescribing the manner of amending the same were not duly observed.
The petitions
were not given due course immediately
but were referred to the Solicitor General as counsel for the
respondents
for comment, with three members of the Court, including the
undersigned,
voting to dismiss them outright. The comments were considered motions
to
dismiss which were set for hearing and extensively argued. Thereafter
both
parties submitted their notes and memoranda on their oral arguments.
I.
The issues raised for determination, on
which
the resolution of the Motion to Dismiss hinges, are as follows:
1. Is the question presented political
and,
hence,
beyond the competence of this Court to decide, or is it justiciable and
fit for judicial determination?
2. Was the new Constitution of
November 30,
1972,
ratified in accordance with the amending process prescribed by Article
XV of the 1935 Constitution?
3. Has the new Constitution been
accepted
and
acquiesced in by the Filipino people?
4. Is the new Constitution actually in
force
and
effect?
5. If the answers to questions Nos. 3
and 4
be
in the affirmative, are petitioners entitled to the reliefs prayed for?
II.The pivotal question in these cases is
whether
the
issue raised is highly political and, therefore, not justiciable. I
maintain
that this Court should abstain from assuming jurisdiction, but,
instead,
as an act of judicial statesmanship, should dismiss the petitions. In
resolving
whether or not the question presented is political, joint discussion of
Issues Nos. 1, 3 and 4 is necessary so as to arrive at a logical
conclusion.
For after the acceptance of a new Constitution and acquiescence therein
by the people by putting it into practical operation, any question
regarding
its validity should be foreclosed and all debates on whether it was
duly
or lawfully ushered into existence as the organic law of the state
become
political and not judicial in character.
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.cralaw:red
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.cralaw:red
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.cralaw:red
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.cralaw:red
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.cralaw:red
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].cralaw:red
In Miller vs.
Johnson, supra, the Court
said:
But it is a case where a new constitution
has
been formed and promulgated according to the forms of law. Great
interests
have already arisen under it; important rights exist by virtue of it;
persons
have been convicted of the highest crimes known to the law, according
to
its provisions; the political power of the government has in many ways
recognized it; and, under such circumstances, it is our duty to treat
and
regard it as a valid constitution, and now the organic law of our
state.
We need not consider the validity of the amendments made after the
convention
reassembled. If the making of them was in excess of its power, yet as
the
entire instrument has been recognized as valid in the manner suggested,
it would be equally an abuse of power by the judiciary, and violative
of
the rights of the people, who can and properly should remedy the
matter, if not to their liking, if it were to declare the
instrument
or a portion invalid, and bring confusion and anarchy upon the state.
(Emphasis
supplied)
In Smith vs.
Good, supra, the Court said:
It is said that a state court is
forbidden from
entering upon such an inquiry when applied to a new constitution, and
not
an amendment, because the judicial power presupposes an established
government,
and if the authority of that government is annulled and overthrown, the
power of its courts is annulled with it; therefore, if a state court
should
enter upon such an inquiry, come to the conclusion that the government
under which it acted had been displaced by an opposing government, it
would
cease to be a court, and it would be incapable of pronouncing a
judicial
decision upon the question before it; but, if it decides at all, it
must
necessarily affirm the existence of the government under which it
exercises
its judicial powers. (Emphasis supplied)
These rules are
all traceable to Luther vs. Borden,
48 U.S (7 How.), 12 L. Ed. 581, 598 (1849) where it was held:
Judicial power presupposes an established
government
capable of enacting laws and enforcing their execution, and appointing
judges to expound and administer them. The acceptance of the judicial
office
is a recognition of the authority of government from which it is
derived.
And if the authority of the government is annulled and overthrown, the
power of its courts and other officers is annulled with it. And if a
State
court should enter upon the inquiry proposed in this case, and should
come
to 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
be 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.
The foreign
relations of the Republic of the Philippines
have been normally conducted on the basis of the new Constitution and
no
state with which we maintain diplomatic relations has withdrawn its
recognition
of our government. (For particulars about executive acts done under the
new Constitution, see pages 22-25 of the Comments of the Solicitor
General
dated February 3, 1973).
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.cralaw:red
FOR ALL THE
FOREGOING, I vote to dismiss all petitions.
ZALDIVAR, J.,
Concurring
and Dissenting:
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.cralaw:red
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.cralaw:red
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.cralaw:red
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:
"Section 1. The Congress in joint session
assembled
by a vote of three fourths of all the Members of the Senate and of the
House of Representatives voting separately, may propose amendments to
the
Constitution or call a convention for that purpose. 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 their ratification."
It is in
consonance with the abovequoted provision
of the 1935 Constitution that on March 16, 1967, the Congress of the
Philippines
Resolution No. 2 calling a convention to propose amendments to the
Constitution
of the Philippines. Sec. 7 of said Resolution No. 2 reads as follows:
"Section 7. The amendments proposed by
the
Convention
shall be valid and considered part of the Constitution when approved by
a majority of the votes cast in an election at which they are submitted
to the people for their ratification pursuant to Article XV of the
Constitution.
It follows that
from the very resolution of the Congress
of the Philippines which called for the 1971 Constitutional Convention,
there was a clear mandate that the amendments proposed by the 1971
Convention,
in order to be valid and considered part of the Constitution, must be
approved
by majority of the votes cast in an election at which they are
submitted
to the people for the ratification as provided in the Constitution.
This Court, in
the case of Tolentino vs. Commission
Elections, L-35140, October 16, 1971 (41 SCRA 715), speaking through
Mr.
Justice Barredo, said:
"The Constitutional Convention of 1971,
as any
other convention of the same nature, owes its existence and all its
authority
and power from the existing Constitution of the Philippines. This
Convention
has not been called by the people directly as in the case of a
revolutionary
convention which drafts the first Constitution of an entirely new
government
born of either a war of liberation from a mother country or of
revolution
against an existing government or of a bloodless seizure of power a la
coup d'etat. As to such kind of conventions, it is absolutely true that
the convention is completely without restraint and omnipotent all wise,
and it as to such conventions that the remarks of Delegate Manuel Roxas
of the Constitutional Convention of 1934 quoted by Senator Pelaez
refer.
No amount of rationalization can belie the fact that the current
convention
came into being only because it was called by a resolution of a joint
session
of Congress acting as a constituent assembly by authority of Section 1,
Article XV of the present Constitution."
"As to matters not related to its
internal
operation
and the performance of its assigned mission to propose amendments to
the
Constitution, the Convention and its officers and members are all
subject
to all the provisions of the existing Constitution. Now we hold that
even
as to its latter task of proposing amendments to the Constitution, it
is
subject to the provisions of Section 1 of Article XV."
In Proclamation
No. 1102, issued on January 17, 1973,
the President of the Philippines certified that as a result of the
voting
before the barangays (Citizens Assemblies) 14,976,561 members of the
barangays
voted for the adoption of the proposed Constitution, as against 743,869
who voted for its rejection, and on the basis of the overwhelming
majority
of the votes cast by the members of all the barangays throughout the
Philippines,
the President proclaimed that the Constitution proposed by the 1971
Convention
has been ratified and has thereby come into effect.
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.cralaw:red
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.cralaw:red
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.cralaw:red
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.cralaw:red
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.
"An election is the embodiment of the
popular
will, the expression of the sovereign power of the people. In common
parlance,
an election is the act of casting and receiving the ballots, counting
them,
and making the return." (Hontiveros vs. Altavas, 24 Phil. 632, 637).
"Election" implies a choice by an
electoral
body
at the time and substantially in the manner and with the safeguards
provided
by law with respect to some question or issue. (Leffel v. Brown, Com.
P1.,
159 N.E. 2d 807, 808 cited in 29 C.J.S. 13 at footnote 6.5).
"The statutory method whereby qualified
voters
or electors pass on various public matters submitted to them the
election of officers, national, state, county, township the
passing
on various other questions submitted for their determination." (29
C.J.S.
13, citing Iowa-Illinois Gas & Elec. Co. v. City of Bettendorf, 41
N.W. 2d 1, 5, 241 Iowa 358).
"Election" is expression of choice by
voters
of body politic. (Ginsburg v. Giles, 72 S.W. 2d 438, 254 Ky. 720, in
Words
and Phrases, Permanent Edition, p. 234).
"The right to vote may be exercised only
on
compliance
with such statutory requirements as have been set by the legislature."
(People ex rel. Rago v. Lipsky, 63 N.E. 2d 642, 327 III. App. 63;
Rothfels
v. Southworth, 356 P. 2d 612, 11 Utah 2d 169 in 29 C.J.S. 38).
(Emphasis
supplied).
In this
connection I herein quote the pertinent provisions
of the Election Code of 1971:
"Sec. 2. Applicability of this Act.-
All elections of public officers except barrio officials and
plebiscites
shall be conducted in the manner provided by this Code."
"Sec 99. Necessity of registration
to be
entitled
to vote.- In order that a qualified voter may vote in any
regular
or special election or in any plebiscite, he must be registered in the
permanent list of voters for the city, municipality or municipal
district
in which he resides: Provided, that no person shall register more than
once without first applying for cancellation of his previous
registration."
(Emphasis supplied). (Please see also Sections 100-102, Election Code
of
1971, R.A. No. 6388)
It is stated in
Proclamation No. 1102 that the voting
was done by the members of citizens assemblies who are 15 years of age
or over. Under the provision of Section I of Article V of the 1935
Constitution,
the age requirement to be a qualified voter is 21 years or over.
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.cralaw:red
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.cralaw:red
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:
"When it is said that "the people" have
the
right
to alter or amend the constitution, it must not be understood that term
necessarily includes all the inhabitants of the state. Since the
question
of the adoption or rejection of a proposed new constitution or
constitutional
amendment must be answered a vote, the determination of it rests with
those
who, by existing constitution, are accorded the right of suffrage. But
the qualified electors must be understood in this, as in many other
cases,
as representing those who have not the right to participate in the
ballot.
If a constitution should be abrogated and a new one adopted, by the
whole
mass of people in a state acting through representatives not chosen by
the "people" in political sense of the term, but by the general body of
the populace, the movement would be extra-legal." (BIack's
Constitutional
Law, Second Edition, pp. 47-48).
"The theory of our political system is
that the
ultimate sovereignty is in the people, from whom springs all legitimate
authority. The people of the Union created a national constitution, and
conferred upon it powers of sovereignty on certain subjects, and the
people
of each State created a State government, to exercise the remaining
powers
of sovereignty so far as they were disposed to allow them to be
exercised
at all. By the constitution which they establish, they not only tie up
the hands of their official agencies, but their own hands as well; and
neither the officers of the State, nor the whole people as an aggregate
body, are at liberty to take action in opposition to this fundamental
law."
(Cooley's Constitutional Limitations, 8th Edition, Vol. I, p. 81 cited
in Graham v. Jones, 3 So. 2d. 761, 782).
"The theory that a favorable vote by the
electorate,
however unanimous, on a proposal to amend a constitution, may cure,
render
innocuous, all or any antecedent failures to observe commands of that
Constitution
in respect of the formulation or submission of proposed amendments
thereto,
does not prevail in Alabama, where the doctrine of the stated theory
was
denied, in obvious effect, by the pronouncement 60 years ago of broad,
wholesome constitutional principles in Collier v. Frierson, supra,
as quoted in the original opinion, ante. The people themselves are
bound
by the Constitution; and, being so bound, are powerless, whatever their
numbers, to change or thwart its mandates, except through the peaceful
means of a constitutional convention, or of an amendment according to
the
mode therein prescribed, or through the exertion of the original right
of revolution. "The Constitution may be set aside by revolution, but it
can only be amended in the way it provides," said Hobson, C.J., in
McCreary
v. Speer, 156 Ky. 783, 791, 162 S.W. 99, 103. (Johnson vs. Craft, et
al.,
87 So. 375, 385, 387, On Rehearing).
"The fact that a majority voted for the
amendment,
unless the vote was taken as provided by the Constitution, is not
sufficient
to make a change in that instrument. Whether a proposed amendment has
been
legally adopted is a judicial question, for the court must uphold and
enforce
the Constitution as written until it is amended in the way which it
provides
for." Wood v. Tooker, 15 Mont. 8, 37 Pac 840, 25 L.R.A. 560;
McConaughty
v. State, 106 Minn. 409, 119 N.W. 408; Oakland Paving Company v.
Hilton,
69 Cal. 499, 11 Pac. 3; Utter v. Mosely, 16 Idaho 274, 100 Pac. 1958,
133
Am. St. Rep. 94, 18 Ann. Cas. 723. (McCreary v. Speer, 162 S.W. 99,
104).
"Provisions of a constitution regulating
its
own amendment, are not merely directory, but are mandatory; and a
strict
observance of every substantial mandatory; and a strict observance of
every
substantial requirement is essential to the validity of the proposed
amendment.
These provisions are as binding on the people as on the legislature,
and
the former are powerless by vote of acceptance to give legal sanction
to
an amendment the submission of which was made in disregard of the
limitations
contained in the constitution." (16 C.J.S. 35-36. cited in Graham v.
Jones,
3 So. 2d 761, 782).
"It is said that chaos and confusion in
the
government
affairs of the State will result from the Court's action in declaring
the
proposed constitutional amendment void. This statement is grossly and
manifestly
inaccurate. If confusion and chaos should ensue, it will not be due to
the action of the Court but will be the result of the failure of the
drafters
joint resolution to observe, follow and obey the plain essential
provisions
of the Constitution. Furthermore, to say that, the Court disregards its
sworn duty to enforce the Constitution, chaos and confusion will
result,
is an inherently weak argument in favor of the alleged
constitutionality
of the proposed amendment. It is obvious that, if the Court were to
countenance
the violations of the sacramental provisions Constitution, those who
would
thereafter desire to violate it disregard its clear mandatory
provisions
would resort to the scheme of involving and confusing the affairs of
the
State then simply tell the Court that it was powerless to exercise one
of its primary functions by rendering the proper decree to make the
Constitution
effective." (Graham v. Jones, 3 So. 2d. 761, 793-794).
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.cralaw:red
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.cralaw:red
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.cralaw:red
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.cralaw:red
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.cralaw:red
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:
Section 4. After the President of the
United
States certified that the constitution conforms with the provisions of
this act, it shall be submitted to the people of the Philippine Islands
for their ratification or rejection at an election to he held within
months
after the date of such certification, on a date to be fixed by the
Philippine
Legislature at which election, the qualified voters of the Philippine
Islands
shall have an opportunity to vote directly or against the proposed
constitution
and ordinances append thereto. Such election shall be held in such
manner
as may prescribed by the Philippine Legislature to which the return of
the election shall be made. The Philippine Legislature shall certify
the
result to the Governor-General of the Philippine Islands, together with
a statement of the votes cast, and a copy of said constitution
ordinances.
If a majority of the votes cast shall be for the constitution, such
vote
shall be deemed an expression of the will of the people of the
Philippine
Independence, and the Governor-General shall, within thirty days after
receipt of the certification from the Philippine Legislature, issue a
proclamation
for the election of officers of the government of the Commonwealth of
the
Philippine Islands provided for in the Constitution.
It can safely
be said, therefore, that when the framers
of the 1935 Constitution used, the word "election" in Section I Article
XV of the 1935 Constitution they had no other idea in mind except the
elections
that were periodically held in the Philippines for the choice of public
officials prior to the drafting of the 1935 Constitution, and also the
"election" mentioned in the Independence Act at which "the qualified
voters
of the Philippine Islands shall have an opportunity to vote directly
for
or against the proposed constitution." It is but logical to expect
that
the framers of the 1935 Constitution would provide a mode of ratifying
an amendment to that Constitution similar to the mode of ratifying the
original Constitution itself.
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.cralaw:red
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.cralaw:red
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.cralaw:red
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.cralaw:red
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.cralaw:red
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.cralaw:red
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.cralaw:red
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:
The saddest epitaph which can be carved
in
memory
of a vanished liberty is that it was lost because its possessors failed
to stretch forth a saving hand while yet there was time.
I concur fully
with the personal views expressed
by the Chief Justice in the opinion that he has written in these cases.
Along with him, I vote to deny the motion to dismiss and give due
course
to the petitions in these cases.
FERNANDO, J.,
Dissenting:
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.cralaw:red
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.cralaw:red
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.cralaw:red
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.cralaw:red
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.cralaw:red
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.cralaw:red
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.cralaw:red
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.cralaw:red
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.cralaw:red
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.cralaw:red
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.cralaw:red
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.cralaw:red
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.
TEEHANKEE, J.,
Dissenting:
The masterly opinion of the Chief Justice
wherein
he painstakingly deals with the momentous issues of the cases at bar in
all their complexity commands my concurrence.
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:
"the Court may not inquire into the
validity
of the procedure for ratification" which is "political in character"
and
that "what is sought to be invalidated is not an act of the President
but
of the people;
"(T)he fact of approval of the new
Constitution
by an overwhelming majority of the votes cast as declared and certified
in Proclamation No. 1102 is conclusive on the courts;
"Proclamation No. 1102 was
issued by
the
President in the exercise of legislative power under martial law.
Alternatively, or contemporaneously, he did so as "agent" of the
Constitutional
Convention;"
"alleged defects, such as absence
of
secret
voting, enfranchisement of persons less than 21 years, non supervision
(by) the Comelec are matters not required by Article XV of the 1935
Constitution"; (sic)
"after ratification, whatever
defects
there
might have been in the procedure are overcome and mooted (and muted) by
the fact of ratification"; and
"(A)ssuming finally that Article
XV of
the
1935 Constitution was not strictly followed, the ratification of the
new
Constitution must nonetheless be respected. For 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."[3]
To test the
validity of respondents' submittal that
the Court, in annulling Proclamation No. 1102 would really be
"invalidating
the new Constitution", the terms and premises of the issues have to be
defined.
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.cralaw:red
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.cralaw:red
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.cralaw:red
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.cralaw:red
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.cralaw:red
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:
Upon the other hand, while I believe that
the
emergency powers had ceased in June 1945, I am not prepared to hold
that
all executive orders issued thereafter under Commonwealth Act No. 671,
are per se null and void. It must be borne in mind that these executive
orders had been issued in good faith and with the best of intentions by
three successive Presidents, and some of them may have already produced
extensive effects in the life of the nation. We have, for instance,
Executive
Order No. 73, issued on November 12, 1945, appropriating the sum of
P6,750,000
for public works; Executive Order No. 86, issued on January 7, 1946,
amending
a previous order regarding the organization of the Supreme Court;
Executive
Order No. 89, issued on January 1, 1946, reorganizing Courts of First
Instance;
Executive Order No. 184, issued on November 19, 1948, controlling rice
and palay to combat hunger; and other executive orders appropriating
funds
for other purposes. The consequences of a blanket nullification of all
these executive orders will be unquestionably serious and harmful. And
I hold that before nullifying them, other important circumstances
should
be inquired into, as for instance, whether or not they have been
ratified
by Congress expressly or impliedly, whether their purposes have already
been accomplished entirely or partially, and in the last instance, to
what
extent; acquiescence of litigants; de facto officers; acts and
contracts
of parties acting in good faith; etc. It is my opinion that each
executive
order must be viewed in the light of its peculiar circumstances, and,
if
necessary and possible, nullifying it, precautionary measures should be
taken to avoid harm to public interest and innocent parties.[12]
Initially, then
Chief Justice Moran voted with a
majority of the Court to grant the Araneta and Guerrero petitions
holding
null and void the executive orders on rentals and export control but to
defer judgment on the Rodriguez and Barredo petitions for judicial
declarations
of nullity of the executive orders appropriating the 1949-1950 fiscal
year
budget for the government and P6 million for the holding of the 1949
national
elections. After rehearsing, he further voted to also declare null and
void the last two executive orders appropriating funds for the 1949
budget
and elections, completing the "sufficient majority" of six against four
dissenting justices "to pronounce a valid judgment on that matter."[13]
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:
However, now that the holding of a
special
session
of Congress for the purpose of remedying the nullity of the executive
orders
in question appears remote and uncertain, I am compelled to, and do
hereby,
give my unqualified concurrence in the decision penned by Mr. Justice
Tuason
declaring that these two executive orders were issued without authority
of law.
While in voting
for a temporary deferment of the
judgment, I was moved by the belief that positive compliance with the
Constitution
by the other branches of the Government, which is our prime concern in
all these cases, would be effected, and indefinite deferment will
produce
the opposite result because it would legitimize a prolonged or
permanent
evasion of our organic law. Executive orders which are, in our opinion,
repugnant to the Constitution, would be given permanent life, opening
the
way or practices which may undermine our constitutional structure.
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.cralaw:red
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.cralaw:red
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.cralaw:red
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.cralaw:red
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.cralaw:red
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, then a legislative act, contrary to the Constitution, is not
law;
if the latter part be true, then written constitutions are absurd
attempts
on the part of a people, to limit a power, in its own nature,
illimitable."
As was to be
restated by Justice Jose P. Laurel
a century and a third later in the 1936 landmark case of Angara vs.
Electoral
Commission,[26]
"(T)he Constitution sets forth in no uncertain language the
restrictions
and limitations upon governmental powers and agencies. If these
restrictions
and limitations are transcended it would be inconceivable if the
Constitution
had not provided for a mechanism by which to direct the course of
government
along constitutional channels, for then the distribution of powers
would
be mere verbiage, the bill of rights mere expressions of sentiment, and
the principles of good government mere political apothegms. Certainly,
the limitations of good government and restrictions embodied in our
Constitution
are real as they should be in any living Constitution."
Justice Laurel
pointed out that in contrast to
the United States Constitution, the Philippine Constitution as "a
definition
of the powers of government" placed upon the judiciary the great burden
of "determining the nature, scope and extent of such powers" and
stressed
that "when the judiciary mediates to allocate constitutional
boundaries,
it does not assert any superiority over the other departments but only
asserts the solemn and sacred obligation entrusted to it by the
Constitution
to determine conflicting claims of authority under the Constitution and
to establish for the parties in an actual controversy the rights which
the instrument secures and guarantees to them."
II.
Marshall was to
utter much later in the equally
historic 1819 case of McCulloch vs. Maryland[27]
the "climactic phrase,"[28]
"we must never forget that it is a constitution we are
expounding,"
termed by Justice Frankfurter as "the single most important utterance
in
the literature of constitutional law most important because most
comprehensive and comprehending."[29]
This enduring concept to my mind permeated to this Court's exposition
and
rationale in the hallmark case of Tolentino, wherein we rejected the
contentions
on the Convention's behalf "that the issue is a political question and
that the Convention being a legislative body of the highest order is
sovereign,
and as such, its acts impugned by petitioner are beyond the control of
Congress and the Courts."[30]
This Court
therein made its unequivocal choice
of strictly requiring faithful (which really includes substantial)
compliance
with the mandatory requirements of the amending process.cralaw:red
1. In denying
reconsideration of our judgment
of October 16, 1971 prohibiting the submittal in an advance election of
1971 Constitutional Convention's Organic Resolution No. 1 proposing to
amend Article V, section 1 of the Constitution by lowering the voting
age
to 18 years (vice 21 years)[30a]
"without prejudice to other amendments that will be proposed in the
future
on other portions of the amended section", this Court stated that "the
constitutional provision in question (as proposed) presents no doubt
which
may be resolved in favor of respondents and intervenors. We do not
believe
such doubt can exist only because it is urged that the end sought to be
achieved is to be desired. Paraphrasing no less than the President of
Constitutional
Convention of 1934, Claro M. Recto, let those who would put aside,
invoking
grounds at best controversial, any mandate of the fundamental law
purportedly
in order to attain some laudable objective bear in mind that someday
somehow
others with purportedly more laudable objectives may take advantage of
the precedent and continue the destruction of the Constitution, making
those who laid down the precedent of justifying deviations from the
requirements
of the Constitution the victims of their own folly."[31]
2. This Court
held in Tolentino that:
As to matters not
related to its internal operation
and the performance of its assigned mission to propose amendments to
the
Constitution, the Convention and its officers and members are all
subject
to all the provisions of the existing Constitution. Now We hold that
even
as to its latter task of proposing amendments to the Constitution, it
is
subject to the provisions of Section 1 of Article XV. This must be so,
because it is plain to Us that the framers of the Constitution took
care
that the process of amending the same should not be undertaken with the
same ease and facility in changing an ordinary legislation.
Constitution
making is the most valued power, second to none, of the people in a
constitutional
democracy such as the one our founding fathers have chosen for this
nation,
and which we of the succeeding generations generally cherish. And
because
the Constitution affects the lives, fortunes, future and every other
conceivable
aspect of the lives of all the people within the country and those
subject
to its sovereignty, every degree of care is taken in preparing and
drafting
it. A constitution worthy of the people for deliberation and study. It
is obvious that correspondingly, any amendment of the Constitution is
of
no less importance than the whole Constitution itself, and perforce
must
be conceived and prepared with as much care and deliberation. From the
very nature of things, the drafters of an original constitution, as
already
observed earlier, operate without any limitations, restraints or
inhibitions
save those that they may impose upon themselves. This is not
necessarily
true of subsequent conventions called to amend the original
constitution.
Generally, the framers of the latter see to it that their handiwork is
not lightly treated and as easily mutilated or changed, not only for
reasons
purely personal but more importantly, because written constitutions are
supposed to be designed so as to last for some time, if not for ages,
or
for, at least, as long as they can be adopted to the needs and
exigencies
of the people, hence, they must be insulated against precipitate and
hasty
actions motivated by more or less passing political moods or fancies.
Thus,
as a rule, the original constitutions carry with them limitations and
conditions,
more or less stringent, made so by the people themselves, in regard to
the process of their amendment. And when such limitations or conditions
are so incorporated in the original constitution, it does not lie in
the
delegates of any subsequent convention to claim that they may ignore
and
disregard such conditions because they are powerful and omnipotent as
their
original counterparts.[32]
3. This Court in
Tolentino likewise formally adopted
the doctrine of proper submission first advanced in Gonzales vs.
Comelec,[33]
thus:
We are certain no
one can deny that in order that
a plebiscite for the ratification of an amendment to the Constitution
may
be validly held, it must provide the voter not only sufficient time but
ample basis for an intelligent appraisal of the nature of amendment per
se as well as its relation to the other parts of the Constitution with
which it has to form a harmonious whole. In the context of the present
state of things, where the Convention hardly started considering the
merits
of hundreds, if not thousands, proposals to amend the existing
Constitution,
to present to people any single proposal or a few of them cannot comply
with this requirement. We are of the opinion that the present
Constitution
does not contemplate in Section 1 of Article XV a plebiscite or
"election"
wherein the people are in the dark as to frame of reference they can
base
their judgment on. We reject the rationalization that the present
Constitution
is a possible frame of reference, for the simple reason that
intervenors
themselves are stating the sole purpose of the proposed amendment is to
enable the eighteen year olds to take part in the election for the
ratification
of the Constitution to be drafted by the Convention. In brief, under
the
proposed plebiscite, there can be, in the language of Justice Sanchez,
speaking for the six members of the Court in Gonzales, supra, 'no
proper
submission.'"[34]
4. Four other
members of the Court[35]
in a separate concurrence in Tolentino, expressed their "essential
agreement"
with Justice Sanchez' separate opinion in Gonzales on the need for
"fair
submission (and) intelligent rejection" as "minimum requirements that
must
be met in order that there can be a proper submission to the people of
a proposed constitutional amendment" thus:
Amendments must be fairly laid before the
people
for their blessing or spurning. The people are not to be mere rubber
stamps.
They are not to vote blindly. They must be afforded ample opportunity
to
mull over the original provisions, compare them with the proposed
amendments,
and try to reach a conclusion as the dictates of their conscience
suggest,
free from the incubus of extraneous or possibly insidious influences.
We
believe the word "submitted" can only mean that the government, within
its maximum capabilities, should strain every effort to inform every
citizen
of the provisions to be amended, and the proposed amendments and the
meaning,
nature and effects thereof. By this, we are not to be understood as
saying
that, if one citizen or 100 citizens or 1,000 citizens cannot be
reached,
then there is no submission within the meaning of the word as intended
by the framers of the Constitution. What the Constitution in effect
directs
is that the government, in submitting an amendment for ratification,
should
put every instrumentality or agency within its structural framework to
enlighten the people, educate them with respect to their act of
ratification
or rejection. For as we have earlier stated, one thing is submission
and
another is ratification. There must be fair submission, intelligent
consent
or rejection.[36]
They stressed
further the need for undivided attention,
sufficient information and full debate, conformably to the intendment
of
Article XV, section 1 of the Constitution, in this wise:
A number of
doubts or misgivings could conceivably
and logically assail the average voter. Why should the voting age be
lowered
at all, in the first place? Why should the new voting age be precisely
18 years, and not 19 or 20? And why not 17? Or even 16 or 15? Is the
18-year
old as mature as the 21-year old, so that there is no need of an
educational
qualification to entitle him to vote? In this age of permissiveness and
dissent, can the 18-year old be relied upon to vote with judiciousness
when the 21-year old, in the past elections, has not performed so well?
If the proposed amendment is voted down by the people, will the
Constitutional
Convention insist on the said amendment? Why is there an unseemly haste
on the part of the Constitutional Convention in having this particular
proposed amendment ratified at this particular time? Do some of the
members
of the Convention have future political plans which they want to begin
to subserve by the approval this year of this amendment? If this
amendment
is approved, does it thereby mean that the 18-year old should not also
shoulder the moral and legal responsibilities of the 21-year old? Will
he be required to compulsory military service under the colors? Will
the
contractual consent be reduced to 18 years? If I vote against the
amendment,
will I not be unfair to my own child who will be 18 years old, come
1973?
The above are
just samplings from here, there
and everywhere from a domain (of searching questions) the bounds
of which are not immediately ascertainable. Surely, many more questions
can be added to the already long litany. And the answers cannot except
as the questions are debated fully, pondered upon purposefully, and
accorded
undivided attention.cralaw:red
Scanning the
contemporary scene, we say that the
people are not, and by election time will not be, sufficiently informed
of the meaning, nature and effects of the proposed constitutional
amendment.
They have not been afforded ample time to deliberate thereon
conscientiously.
They have been and are effectively distracted from a full and
dispassionate
consideration of the merits and demerits of the proposed amendment by
their
traditional pervasive involvement in local elections and politics. They
cannot thus weigh in tranquility the need for and the wisdom proposed
amendment.[37]
5. This Court
therein dismissed the plea of disregarding
mandatory requirements of the amending process "in favor of allowing
the
sovereign people to express their decision on the proposed amendments"
as "anachronistic in the real constitutionalism and repugnant to the
essence
of the rule of law," in the following terms:
The preamble of the Constitution says
that the
Constitution has been ordained by the 'Filipino people, imploring the
aid
of Divine Providence.' Section 1 of Article XV is nothing than a part
of
the Constitution thus ordained by the people. Hence, in construing said
section, We must read it as if the people had said, 'This Constitution
may be amended, but it is our will that the amendment must be proposed
and submitted to Us for ratification only in the manner herein
provided.'Accordingly, the real issue here cannot be whether or not the
amending
process delineated by the present Constitution may be disregarded in
favor
of allowing the sovereign people to express their decision on the
proposed
amendments, if only because it is evident that the very idea of
departing
from the fundamental law is anachronistic in the realm of
constitutionalism
and repugnant to the essence of the rule of law; rather, it is whether
or not the provisional nature of the proposed amendment and the manner
of its submission to the people for ratification or rejection conform
with
the mandate of the people themselves in such regard, as expressed in,
the
Constitution itself.[38]
6. This Court,
in not heeding the popular clamor,
thus stated its position: "(I)t would be tragic and contrary to the
plain
compulsion of these perspectives, if the Court were to allow itself in
deciding this case to be carried astray by considerations other than
the
imperatives of the rule of law and of the applicable provisions of the
Constitution. Needless to say, in a larger measure than when it binds
other
departments of the government or any other official or entity, the
Constitution
imposes upon the Court the sacred duty to give meaning and vigor to the
Constitution, by interpreting and construing its provisions in
appropriate
cases with the proper parties and by striking down any act violative
thereof.
Here, as in all other cases, We are resolved to discharge that duty.[39]
7. The Chief
Justice, in his separate opinion
in Tolentino concurring with this Court's denial of the motion for
reconsideration,
succinctly restated this Court's position on the fundamentals, as
follows:
On the premature
submission of a partial amendment
proposal, with a "temporary provisional or tentative character":
"a partial amendment would deprive the voters of the context which is
usually
necessary for them to make a reasonably intelligent appraisal of the
issue
submitted for their ratification or rejection. Then, too, the
submission
to a plebiscite of a partial amendment, without a definite frame of
reference,
is fraught with possibilities which may jeopardize the social fabric.
For
one thing, it opens the door to wild speculations. It offers ample
opportunities
for overzealous leaders and members of opposing political camps to
unduly
exaggerate the pros and cons of the partial amendment proposed. In
short,
it is apt to breed false hopes and create wrong impressions. As a
consequence,
it is bound to unduly strain the people's faith in the soundness and
validity
of democratic processes and institutions.cralaw:red
On the plea to
allow submission to the sovereign
people of the "fragmentary and incomplete" proposal, although
inconsistent
with the letter and spirit of the Constitution: "The view, has, also,
advanced
that the foregoing considerations are not decisive on the issue before
Us, inasmuch as the people are sovereign, and the partial amendment
involved
in this case is being submitted to them. The issue before Us is whether
or not said partial amendment may be validly submitted to the people
for
ratification "in a plebiscite coincide with the local elections in
November
1971," and this particular issue will not be submitted to the people.
What
is more, the Constitution does not permit its submission to the people.
The question sought to be settled in the scheduled plebiscite is
whether
or not the people are in favor of the reduction of the voting age.cralaw:red
On a "political"
rather than "legalistic" approach:
"Is this approach to the problem too "legalistic?" This term has
possible
connotations. It may mean strict adherence to the law, which in the
case
at bar is the Supreme Law of the land. On point, suffice it to say
that,
in compliance with the specific man of such Supreme Law, the members of
the Supreme Court taken the requisite "oath to support and defend the
Constitution."
Then, again, the term "legalistic" may be used to suggest inversely
that
the somewhat strained interpretation of the Constitution being urged
upon
this Court be tolerated or, at least, overlooked, upon the theory that
the partial amendment on voting age is badly needed and reflects the
will
of the people, specially the youth. This course of action favors, in
effect,
adoption of a political approach, inasmuch as the advisability of the
amendment
and an appraisal of the people's feeling thereon political matters. In
fact, apart from the obvious message of the mass media, and, at times,
of the pulpit, the Court has been literally bombarded with scores of
handwritten
letters, almost all of which bear the penmanship and the signature of
girls,
as well as letterhead of some sectarian educational institutions,
generally
stating that the writer is 18 years of age and urging that she or he be
allowed to vote. Thus, the pressure of public opinion has brought to
bear
heavily upon the Court for a reconsideration of its decision in the
case
at bar.cralaw:red
As above stated,
however, the wisdom of the amendment
and the popularity thereof are political questions beyond our province.
In fact, respondents and the intervenors originally maintained that We
have no jurisdiction to entertain the petition herein, upon the ground
that the issue therein raised is a political one. Aside from the
absence
of authority to pass upon political question, it is obviously improper
and unwise for the bench to develop into such questions owing to the
danger
of getting involved in politics, more likely of a partisan nature, and,
hence, of impairing the image and the usefulness of courts of justice
as
objective and impartial arbiters of justiciable controversies.cralaw:red
Then, too, the
suggested course of action, if
adopted, would constitute a grievous disservice to the people and the
very
Convention itself. Indeed, the latter and the Constitution it is in the
process of drafting stand essentially for the Rule of Law. However, as
the Supreme Law of the land, a Constitution would not be worthy of its
name, and the Convention called upon to draft it would be engaged in a
futile undertaking, if we did not exact faithful adherence to the
fundamental
tenets set forth in the Constitution and compliance with its provisions
were not obligatory. If we, in effect, approved, consented to or even
overlooked
a circumvention of said tenets and provisions, because of the good
intention
with which Resolution No. 1 is animated, the Court would thereby become
the Judge of the good or bad intentions of the Convention and thus be
involved
in a question essentially political in nature.cralaw:red
This is confirmed
by the plea made in the motions
for reconsideration in favor of the exercise of judicial statesmanship
in deciding the present case. Indeed, "politics" is the word commonly
used
to epitomize compromise, even with principles, for the sake of
political
expediency or the advancement of the bid for power of a given political
party. Upon the other hand, statesmanship is the expression usually
availed
of to refer to high politics or politics on the highest level. In any
event,
politics, political approach, political expediency and statesmanship
are
generally associated, and often identified, with the dictum that "the
end
justifies the means." I earnestly hope that the administration of
justice
in this country and the Supreme Court, in particular, will adhere to or
approve or indorse such dictum."[40]
Tolentino, he
pointed out that although "(M)ovants'
submittal that "(T)he primary purpose for the submission of the
proposed
amendment lowering the voting age to the plebiscite on November 8, 1971
is to enable the youth 18 to 20 years who comprise more than three (3)
million of our population to participate in the ratification of the new
Constitution in so far as "to allow young people who would be governed
by the Constitution to be given a say on what kind of Constitution they
will have" is a laudable end, those urging the vitality and importance
of the proposed constitutional amendment and its approval ahead of the
complete and final draft of the Constitution must seek a valid solution
to achieve it in a manner sanctioned by the amendatory process ordained
by our people in the present Constitution"[41]
so that there may be "submitted, not piece-meal, but by way of complete
and final amendments as an integrated whole (integrated either with the
subsisting Constitution or with the new proposed Constitution)."
9. The universal
validity of the vital constitutional
precepts and principles above-enunciated can hardly be gainsaid. I fail
to see the attempted distinction of restricting their application to
proposals
for amendments of particular provisions of the Constitution and not to
so-called entirely new Constitutions. Amendments to an existing
Constitution
presumably may be only of certain parts or in toto, and in the
latter
case would rise to an entirely new Constitution. Where this Court held
in Tolentino that "any amendment of the Constitution is of no less
importance
than the whole Constitution itself and perforce must be conceived and
prepared
with as much care and deliberation", it would appeal that the reverse
would
equally be true; which is to say, that the adoption of a whole new
Constitution
would be of no less importance than any particular amendment and
therefore
the necessary care and deliberation as well as the mandatory
restrictions
and safeguards in the amending process ordained by the people
themselves
so that "they (may) be insulated against precipitate and hasty actions
motivated by more or less passing political moods or fancies" must
necessarily
equally apply thereto.cralaw:red
III.
1. To restate the basic premises, the
people
provided in Article XV of the Constitution for the amending process
only
"by approval by a majority of the votes cast at an election at which
the
(duly proposed) amendments are submitted to the people for their
ratification."
The people
ordained in Article V, section 1 that
only those thereby enfranchised and granted the right of suffrage may
speak
the "will of the body politic", viz., qualified literate voters twenty
one years of age or over with one year's residence in the municipality
where they have registered.cralaw:red
The people, not
as yet satisfied, further provided
by amendment duly approved in 1940 in accordance with Article XV, for
the
creation of an independent Commission on Elections with "exclusive
charge"
for the purpose of "insuring free, orderly and honest elections" and
ascertaining
the true will of the electorate and more, as ruled by this Court
in Tolentino, in the case of proposed constitutional amendments,
insuring
proper submission to the electorate of such proposals.[42]
2. A
Massachussets case[43]
with a constitutional system and provisions analogous to ours, best
defined
the uses of the term "people" as a body politic and "people" in the
political
sense who are synonymous with the qualified voters granted the right to
vote by the existing Constitution and who therefore are "the sole
organs
through which the will of the body politic can be expressed."
It was pointed out therein that "(T)he word
'people'
may have somewhat varying significations dependent upon the connection
in which it is used. In some connections in the Constitution it is
confined
to citizens and means the same as citizens. It excludes aliens. It
includes
men, women and children. It comprehends not only the sane, competent,
law-abiding
and educated, but also those who are wholly or in part dependents and
charges
upon society by reason of immaturity, mental or moral deficiency or
lack
of the common essentials of education. All these persons are secured
fundamental
guarantees of the Constitution in life, liberty and property and the
pursuit
of happiness, except as these may be limited for the protection of
society."
In the sense of
"body politic (as) formed by voluntary
association of individuals" governed by a constitution and common laws
in a "social compact for the common good" and in another sense of
"people"
in a "practical sense" for "political purposes" it was therein
fittingly
stated that in this sense, "people" comprises many who, by reason of
want
of years, of capacity or of the educational requirements of Article 20
of the amendments of the Constitution, can have no voice in any
government
and who yet are entitled to all the immunities and protection
established
by the Constitution. 'People' in this aspect is coextensive with the
body
politic. But it is obvious that 'people' cannot be used with this broad
meaning of political signification. The 'people' in this connection
means
that part of the entire body of inhabitants who under the Constitution
are intrusted with the exercise of the sovereign power and the conduct
of government. The 'people' in the Constitution in a practical sense
means
those who under the existing Constitution possess the right to exercise
the elective franchise and who, while that instrument remains in force
unchanged, will be the sole organs through which the will of the body
politic
can be expressed. 'People' for political purposes must be considered
synonymous
with qualified voters.'"
As was also ruled
by the U.S. Supreme Court, "While
the people are thus the source of political power, their governments,
national
and state, have been limited by constitutions, and they have themselves
thereby set bounds to their own power, as against the sudden impulse of
mere majorities."[44]
From the text of Article XV of our
Constitution,
requiring approval of amendment proposals "by a majority of the votes
cast
at an election at which the amendments are submitted to the people for
their ratification", it seems obvious as above-stated that "people" as
therein used must be considered synonymous with "qualified voters" as
enfranchised
under Article V, Section 1 of the Constitution since only
"people"
who are qualified voters can exercise the right of suffrage and cast
their
votes.cralaw:red
3. Sound
constitutional policy and the sheer necessity
of adequate safeguards as ordained by the Constitution and implementing
statutes to ascertain and record the will of the people in free,
orderly
and honest elections supervised by the Comelec make it imperative that
there be strict adherence to the constitutional requirements laid down
for the process of amending in toto or in part the supreme law of the
land.cralaw:red
Even at barrio
level[45]
the Revised Barrio Charter fixes certain safeguards for the holding of
barrio plebiscites thus: "Sec. 6. Plebiscite. A plebiscite may be
held in the barrio when authorized by a majority vote of the members
present
in the barrio assembly, there being a quorum, or when called by at
least
four members of the barrio council: Provided, however, That no
plebiscite
shall be held until after thirty days from its approval by either body,
and such plebiscite has been given the widest publicity in the barrio,
stating the date, time and place thereof, the questions or issues to be
decided, action to be taken by the voters, and such other information
relevant
to the holding of the plebiscite."[46]
As to voting at
such barrio plebiscites, the Charter
further requires that "(A)ll duly registered barrio assembly members
qualified
to vote may vote in the plebiscite. Voting procedures may be made
either
in writing as in regular elections, and/or declaration by the voters to
the board of election tellers."[47]
The subjects of the barrio plebiscites are
likewise
delimited thus: "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"
and
the required majority vote is specified: "(F)or taking action on any of
the above enumerated measures, majority vote of all the barrio assembly
members registered in the list of the barrio secretary is necessary."[48]
The
qualifications for voters in such barrio plebiscites
and elections of barrio officials[49]
comply with the suffrage qualifications of Article V, Section 1 of the
Constitution and provide that "(S)ec. 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 by the barrio secretary, who is not otherwise
disqualified,
may vote or be a candidate in the barrio elections."[50]
IV.
1. Since it appears on the face of
Proclamation
1102 that the mandatory requirements under the above-cited
constitutional
articles have not been complied with and that no election or plebiscite
for ratification as therein provided as well as in section 16 of
Article
XVII of the proposed Constitution itself[51]
has been called or held, there cannot be said to have been a valid
ratification.cralaw:red
2. Petitioners
raised serious questions as to
the veracity and genuineness of the reports or certificates of results
purportedly showing unaccountable discrepancies in seven figures in
just
five provinces[52]
between the reports as certified by the Department of Local Governments
and the reports as directly submitted by the provincial and city
executives,
which latter reports respondents disclaimed, inter alia, as not
final and complete or as not signed;[53]
whether the reported votes of approval of the proposed Constitution
conditioned
upon the non-convening of the interim National Assembly provided in
Article
XVII, Section 1 thereof,[54]
may be considered as valid; the allegedly huge and uniform votes
reported;
and many others.cralaw:red
3. These
questions only serve to justify and show
the basic validity of the universal principle governing written
constitutions
that proposed amendments thereto or in replacement thereof may be
ratified
only in the particular mode or manner prescribed therein by the people.
Under Article XV, Section 1 of our Constitution, amendments thereto may
be ratified only in the one way therein provided, i.e. in an election
or
plebiscite held in accordance with law and duly supervised by the
Commission
on Elections, and which is participated in only by qualified and duly
registered
voters. In this manner, the safeguards provided by the election code
generally
assure the true ascertainment of the results of the vote and interested
parties would have an opportunity to thresh out properly before the
Comelec
all such questions in pre-proclamation proceedings.cralaw:red
4. At any rate,
unless respondents seriously intend
to question the very statements and pronouncements in Proclamation 1102
itself which shows on its face, as already stated, that the mandatory
amending
process required by the (1935) Constitution was not observed, the cases
at bar need not reach the stage of answering the host of questions,
raised
by petitioners against the procedure observed by the Citizens
Assemblies
and the reported referendum results since the purported
ratification
is rendered nugatory by virtue of such non-observance.cralaw:red
5. Finally, as to
respondents' argument that the
President issued Proclamation 1102 "as "agent" of the Constitutional
Convention"[55]
under Resolution No. 5844 approved on November 22, 1973, and "as agent
of the Convention the President could devise other forms of plebiscite
to determine the will of the majority vis-a-vis the ratification of the
proposed Constitution."[56]
The minutes of
November 22, 1972 of the Convention,
however, do not at all support this contention. On the contrary, the
said
minutes fully show that the Convention's proposal and "agency" was that
the President issue a decree precisely calling a plebiscite for the
ratification
of the proposed new Constitution on an appropriate date, under the
charge
of the Comelec, and with a reasonable period for an information
campaign,
as follows:
12. Upon
recognition by the Chair, Delegate Duavit
moved for the approval of the resolution, the resolution portion of
which
read as follows:
"RESOLVED, AS IT IS HEREBY RESOLVED, that
the
1971 Constitutional Convention propose 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, and 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."
He suggested that in view of the expected
approval
of the final draft of the new Constitution by the end of November 1972
according to the Convention's timetable, it would be necessary to lay
the
groundwork for the appropriate agencies of the government to undertake
the necessary preparation for the plebiscite.
12.2 Interpellating, Delegate Pimentel
(V.)
contended
that the resolution was unnecessary because Section 15, Article XVII on
the Transitory Provision, which had already been approved on second and
third readings, provided that the new constitution should be ratified
in
a plebiscite called for the purpose by the incumbent President.
Delegate
Duavit replied that the provision referred to did not include the
appropriation
of funds for the plebiscite and that, moreover, the resolution was
intended
to serve formal notice to the President and the Commission on Elections
to initiate the necessary preparations.
12.4 Interpellating, Delegate Madarang
suggested
that a reasonable period for an information campaign was necessary in
order
to properly apprise the people of the implications and significance of
the new charter. Delegate Duavit agreed, adding that this was precisely
why the resolution was modified to give the President the discretion to
choose the most appropriate date for the plebiscite.
12.5 Delegate Laggui asked whether a
formal
communication
to the President informing him of the adoption of the new Constitution
would not suffice considering that under Section 15 of the Transitory
Provisions,
the President would be duty-bound to call a plebiscite for its
ratification.
Delegate Duavit replied in the negative, adding that the resolution was
necessary to serve notice to the proper authorities to prepare
everything
necessary for the plebiscite.
12.6 In reply to Delegate Britanico,
Delegate
Duavit stated that the mechanics for the holding of the plebiscite
would
be laid down by the Commission on Elections in coordination with the
President.
12.7 Delegate Catan inquired if such
mechanics
for the plebiscite could include a partial lifting of martial law in
order
to allow the people to assemble peaceably to discuss the new
Constitution.
Delegate Duavit suggested that the Committee on Plebiscite and
Ratification
could coordinate with the COMELEC on the matter.
12.8 Delegate Guzman moved for the
previous
question.
The Chair declared that there was one more interpellant and that a
prior
reservation had been made for the presentation of such a motion.
12.8a Delegate Guzman withdrew his
motion.
12.9 Delegate Astilla suggested in his
interpellation
that there was actually no need for such a resolution in view of the
provision
of section 15, Article XVII on the Transitory Provisions. Delegate
Duavit
disagreed, pointing out that the said provision did not provide for the
funds necessary for the purpose.
13. Delegate Ozamiz then moved to close
the
debate
and proceed to the period of amendment.
Upon request of
the Chair, Delegate Duavit restated
the resolution for voting.
I, therefore,
vote to deny respondents' motion to
dismiss and to give due course to the petitions.
Promulgated: June
4, 1973[*]
ANTONIO, J.,
Concurring:
In conformity with my reservation, I shall
discuss
the grounds for my concurrence.
I.It is my view that to preserve the
independence
of
the State, the maintenance of the existing constitutional order and the
defense of the political and social liberties of the people, in times
of
a grave emergency, when the legislative branch of the government is
unable
to function or its functioning would itself threaten the public safety,
the Chief Executive may promulgate measures legislative in character,
for
the successful prosecution of such objectives. For the "President's
power
as Commander- in-chief has been transformed from a simple power of
military
command to a vast reservoir of indeterminate powers in time of
emergency.
In other words, the principal canons of constitutional interpretation
areset aside so far as concerns both the scope of the national power
and
the capacity of the President to gather unto himself all
constitutionally
available powers in order the more effectively to focus them upon the
task
of the hour." (Corwin, The President: Office & Powers, pp. 317,
318,
[1948]).
1. The
proclamation of martial rule, ushered the
commencement of a crisis government in this country. In terms of power,
crisis government in a constitutional democracy entails the
concentration
of governmental power. "The more complete the separation of powers in a
constitutional system, the more difficult, and yet the more necessary"
according to Rossiter, "will be their fusion in time of crisis. The
power
of the state in crisis must not only be concentrated and expanded, it
must
be freed from the normal system of constitutional and legal
limitations.
One of the basic features of emergency powers is the release of the
government
from the paralysis of constitutional restraints" (Rossiter,
Constitutional
Dictatorship, p. 290).cralaw:red
It is clearly
recognized that in moments of peril
the effective action of the government is channeled through the person
of the Chief Executive. "Energy in the executive," according to
Hamilton,
"is essential to the protection of the community against foreign
attacks
to the protection of property against those irregular and high-handed
combinations
which sometimes interrupt the ordinary course of justice; to the
security
of liberty against the enterprises and assaults of ambition, of
faction,
and of anarchy." (The Federalist, Number 70). "The entire strength of
the
nation", said Justice Brewer in the Debs case (158 U.S. 564; 39 L. ed.
1092), "may be used to enforce in any part of the land the full and
free
exercise of all national powers and the security of all rights
entrusted
by the constitution to its care." The marshalling and employment of the
"strength of the nation" are matters for the discretion of the Chief
Executive.
The President's powers in time of emergency defy precise definition
since
their extent and limitations are largely dependent upon conditions and
circumstances.cralaw:red
2. The power of
the President to act decisively
in a crisis has been grounded on the broad conferment upon the
Presidency
of the Executive power, with the added specific grant of power under
the
"Commander-in-Chief" clause of the constitution. The contours of such
powers
have been shaped more by a long line of historical precedents of
Presidential
action in times of crisis, rather than judicial interpretation. Lincoln
wedded his powers under the "commander-in-chief" clause with his duty
"to
take care that the laws be faithfully executed," to justify the series
of extraordinary measures which he took the calling of volunteers
for military service, the augmentation of the regular army and navy,
the
payment of two million dollars from unappropriated funds in the
Treasury
to persons unauthorized to receive it, the closing of the Post Office
to
"treasonable correspondence", the blockade of southern ports, the
suspension
of the writ of habeas corpus, the arrest and detention of persons "who
were represented to him" as being engaged in or contemplating
"treasonable
practices" all this for the most part without the least statutory
authorization. Those actions were justified by the imperatives of his
logic,
that the President may, in an emergency thought by him to require it,
partially
suspend the constitution. Thus his famous question: "Are all laws but
one
to be unexecuted, and the Government itself go to pieces lest that one
be violated?" The actions of Lincoln "assert for the President",
according
to Corwin, "an initiative of indefinite scope and legislative in effect
in meeting the domestic aspects of a war emergency." (Corwin, The
President:
Office & Powers, p. 280 [1948]). The facts of the civil war have
shown
conclusively that in meeting the domestic problems as a consequence of
a great war, an indefinite power must be attributed to the President to
take emergency measures. The concept of "emergency" under which the
Chief
Executive exercised extraordinary powers underwent correlative
enlargement
during the first and second World Wars. From its narrow concept as an
"emergency"
in time of war during the Civil War and World War I, the concept has
been
expanded in World War II to include the "emergency" preceding the war
and
even after it. "The Second World War" observed Corwin and Koenig, was
the
First World War writ large, and the quasi-legislative powers of
Franklin
Roosevelt as "Commander-in-Chief in wartime" burgeoned correspondingly.
The precedents were there to be sure, most of them from the First World
War, but they proliferated amazingly. What is more, Roosevelt took his
first step toward war some fifteen months before our entrance into
shooting
war. This step occurred in September, 1940, when he handed over fifty
so-called
overage destroyers to Great Britain. The truth is, they were not
overage,
but had been recently reconditioned and recommissioned. Actually,
what
President Roosevelt did was to take over for the nonce Congress's power
to dispose of property of the United States (Article IV, Section 3) and
to repeal at least two statutes." (Corwin & Koenig, The Presidency
Today, New York University Press, 1956; sf Corwin, The President:
Office
and Powers, 1948.)
The creation of
public offices is a power confided
by the constitution to Congress. And yet President Wilson, during World
War I on the basis of his powers under the "Commander-in-Chief" clause
created "offices" which were copied in lavish scale by President
Roosevelt
in World War II. In April 1942, thirty-five "executive agencies" were
purely
of Presidential creation. On June 7, 1941 on the basis of his powers as
"Commander-in-Chief", he issued an executive order seizing the North
American
Aviation plant of Inglewood, California, where production stopped as a
consequence of a strike. This was justified by the government as the
exercise
of presidential power growing out of the "duty constitutionally and
inherently
resting upon the President to exert his civil and military as well as
his
moral authority to keep the defense efforts of the United States a
going
concern" as well as "to obtain supplies for which Congress has
appropriated
money, and which it has directed the President to obtain." On a similar
justification, other plants and industries were taken over by the
government.
It is true that in Youngstown Sheet & Tube vs. Sawyer (343 U.S.
579;
72 S. Ct. 863; 96 L. Ed. 1153, [1952]), the Supreme Court of the United
States did not sustain the claims that the President could, as the
Nation's
Chief Executive and Commander-in-Chief of the armed forces, validly
order
the seizure of most of the country's steel mills. The Court however did
not face the naked question of the President's power to seize steel
plants
in the absence of any congressional enactment or expressions of policy.
The majority of the Court found that this legislative occupation of the
field made untenable the President's claim of authority to seize the
plants
as an exercise of inherent executive power or as Commander-in-Chief.
Justice
Clark, in his concurrence to the main opinion of the Court, explicitly
asserted that the President does possess, in the absence of restrictive
legislation, a residual or resultant power above or in consequence of
his
granted powers, to deal with emergencies that he regards as threatening
the national security. The same view was shared with vague
qualification
by Justices Frankfurter and Jackson, two of the concurring Justices.
The
three dissenting Justices, speaking through Chief Justice Vinson,
apparently
went further by quoting with approval a passage extracted from the
brief
of the government in the case of United States vs. Midwest Oil Co.,
(236
U.S. 459 59 L. Ed. 673, 35 S. Ct. 309) where the court sustained the
power
of the President to order withdrawals from the public domain not only
without
Congressional sanction but even contrary to Congressional statutes.cralaw:red
It is evident
therefore that the Steel Seizure
Case, cannot be invoked as an authority to support the view that the
President
in times of a grave crisis does not possess a residual power above or
in
consequence of his granted powers, to deal with emergencies that he
regards
as threatening the national security. The lesson of the Steel Seizure
case,
according to Corwin and Koenig, "Unquestionablytends to supplement
presidential emergency power to adopt temporary remedial legislation
when
Congress has been, in the judgment of the President, unduly remiss in
taking
cognizance of and acting on a given situation." (Corwin and Koenig, The
Presidency Today, New York University Press, 1956).cralaw:red
The accumulation
of precedents has thus built
up the presidential power under emergency conditions to "dimensions of
executive prerogative as described by John Locke, of a power to wit, to
fill needed gaps in the law, or even to supersede it so far as may be
requisite
to realize the fundamental law of nature and government, namely, that
as
much as may be all the members of society are to be preserved." (Corwin
and Koenig, The Presidency Today).cralaw:red
In the light of
the accumulated precedents, how
could it be reasonably argued, therefore, that the President had no
power
to issue Presidential Decrees Nos. 86 and 86-A as well as Proclamation
No. 1102, since these measures were considered indispensable to effect
the desired reforms at the shortest time possible and hasten the
restoration
of normalcy? It is unavailing for petitioners to contend that we are
not
faced by an actual "shooting war" for today's concept of the emergency
which justified the exercise of those powers has of necessity been
expanded
to meet the exigencies of new dangers and crisis that directly threaten
the nation's continued and constitutional existence. For as Corwin
observed:
"today the concept of 'war' as a special type of emergency warranting
the
realization of constitutional limitations tends to spread, as it were,
in both directions, so that there is not only "the war before the war,"
but the 'war after the war.' Indeed, in the economic crisis from which
the New Deal may be said to have issued, the nation was confronted in
the
opinion of the late President with an 'emergency greater than war'; and
in sustaining certain of the New Deal measures the Court invoked the
justification
of 'emergency.' In the final result constitutional practices of wartime
have moulded the Constitution to greater or less extent for peacetime
as
well, seem likely to do so still more pronouncedly under fresh
conditions
of crisis." (Corwin, Ibid. p. 318).cralaw:red
The same view was
expressed by Rossiter, thus:
The second crisis is rebellion, when the
authority
of a constitutional government is resisted openly by large numbers of
citizens
who are engaged in violent insurrection against enforcement of its laws
or are bent on capturing it illegally or destroying it altogether. The
third crisis, one recognized particularly in modern times as
sanctioning
emergency action by constitutional governments, is economic depression.
The economic troubles which plagued all the countries of the world in
the
early thirties involved governmental methods of an unquestionably
dictatorial
character in many democracies. It was thereby acknowledged that an
economic
existence as a war or a rebellion. And these are not the only cases
which
have justified extraordinary governmental action in nations like the
United
States. Fire, flood, drought, earthquake, riots, great strikes have all
been dealt with by unusual and of dictatorial methods. Wars are not won
by debating societies, rebellions are not suppressed by judicial
injunctions,
reemployment of twelve million jobless citizens will not be effected
through
a scrupulous regard for the tenets of free enterprise, hardships caused
by the eruptions of nature cannot be mitigated letting nature take its
course. The Civil War, the depression of 1933 and the recent global
conflict
were not and could not have been successfully resolved by governments
similar
to those of James Buchanan, William Howard Taft, or Calvin Coolidge.
(Rossiter,
Constitutional Dictatorship Crisis of Government in the Modern
Democracies,
p. 6 [1948).
II.We are next confronted with the insistence
of
Petitioners
that the referendum in question not having been done inaccordance with
the provisions of existing election laws, which only qualified voters
who
are allowed to participate, under the supervision of the Commission on
Elections, the new Constitution, should therefore be a nullity. Such an
argument is predicated upon an assumption, that Article XV of the 1935
Constitution provides the method for the revision of the constitution,
and automatically apply in the final approval of such proposed new
Constitution
the provisions of the election law and those of Article V and X of the
old Constitution. We search in vain for any provision in the old
charter
specifically providing for such procedure in the case of a total
revision
or a rewriting of the whole constitution.
1. There is
clearly a distinction between revision
and amendment of an existing constitution. Revision may involve a
rewriting
of the whole constitution. The act of amending a constitution, on the
other
hand, envisages a change of only specific provisions. The intention of
an act to amend is not the change of the entire constitution but only
the
improvement of specific parts of the existing constitution of the
addition
of provisions deemed essential as a consequence of new constitutions or
the elimination of parts already considered obsolete or unresponsive to
the needs of the times.[1]
The 1973 Constitution is not a mere amendment to the 1935 Constitution.
It is a completely new fundamental charter embodying new political,
social
and economic concepts.cralaw:red
According to an
eminent authority on Political
Law, "The Constitution of the Philippines and that of the United States
expressly provide merely for methods of amendment. They are silent on
the
subject of revision. But this is not a fatal omission. There is nothing
that can legally prevent a convention from actually revising the
Constitution
of the Philippines or of the United States even were such conventions
called
merely for the purpose of proposing and submitting amendments to the
people.
For in the final analysis, it is the approval of the people that gives
validity to any proposal of amendment or revision." (Sinco, Philippine
Political Law, p. 49).cralaw:red
Since the 1935
Constitution does not specifically
provide for the method or procedure for the revision or for the
approval
of a new constitution, should it now be held, that the people have
placed
such restrictions on themselves that they are not disabled from
exercising
their right as the ultimate source of political power from changing the
old constitution which, in their view, was not responsive to their
needs
and in adopting a new charter of government to enable them to rid
themselves
from the shackles of traditional norms and to pursue with new dynamism
the realization of their true longings and aspirations, except in the
manner
and form provided by Congress for previous plebiscites? Was not the
expansion
of the base of political participation, by the inclusion of the youth
in
the process of ratification who after all constitute the preponderant
majority
more in accord with the spirit and philosophy of the constitution that
political power is inherent in the people collectively? As clearly
expounded
by Justice Makasiar, in his opinion, in all the cases cited where the
Courts
held that the submission of the proposed amendment was illegal due to
the
absence of substantial compliance with the procedure prescribed by the
constitution, the procedure prescribed by the state Constitution, is so
detailed, that specified the manner in which such submission shall be
made,
the persons qualified to vote for the same, the date of election and
other
definite standards, from which the court could safely ascertain whether
or not the submission was in accordance with the Constitution.
Thus
the case of In re McConaughy (119 N.E. 408) relied upon in one of the
dissenting
opinions involved in the application of the provisions of the state
Constitution
of Minnesota which clearly prescribed in detail the procedure under
which
the Constitution may be amended or revised.[2]
This is not true with our Constitution. In the case of revision there
are
no "standards meet for judicial judgment."[3]
The framers of
our Constitution were free to provide
in the Constitution the method or procedure for the revision or
rewriting
of the entire constitution, and if such was their intention, they could
and should have so provided. Precedents were not wanting. The
constitutions
of the various states of the American Union did provide for procedures
for their amendment and methods for their revision.[4]
Certainly, We cannot, under the guise of
interpretation,
modify, revise, amend, remodel or rewrite the 1935 Charter. To declare
what the law is, or has been, is a judicial power, but to declare what
the law shall be is not within Our judicial competence and authority.cralaw:red
Upon the other
hand, since our fundamental charter
has not provided the method or procedure for the revision or complete
change
of the Constitution, it is evident that the people have reserved such
power
in themselves. They decided to exercise it not through their
legislature,
but through a Convention expressly chosen for that purpose. The
Convention
as an independent and sovereign body has drafted not an amendment but a
completely new Constitution, which decided to submit to the people for
approval, not through an act of Congress, but by means of decrees to be
promulgated by the President. In view of the inability of Congress to
act,
it was within the constitutional powers of the President, either as
agent
of the Constitutional Convention, or under his authority under martial
law, to promulgate the necessary measures for the ratification of the
proposed
new Constitution. The adoption the new Charter was considered as a
necessary
basis for all the reforms set in motion under the new society, to root
out the causes of unrest. The imperatives of the emergency underscored
the urgency of its adoption. The people in accepting such procedure and
in voting overwhelmingly for the approval of the new Constitution have,
in effect, ratified the method and procedure taken. "When the people
adopt
completely revised or new constitution," said the Court in Wheeler v.
Board
of Trustees (37 SE 2nd 322, 326-330), "the framing or submission of the
instrument is not what gives it binding force and effect. The fiat of
the
people, and only the fiat of the people, can breathe life into a
constitution."
This has to be so
because, in our political system,
all political power is inherent in the people and free governments are
founded on their authority and instituted for their benefit. Thus
Section
1 of Article II of the 1935 Constitution declares that: "Sovereignty
resides
in the people and all government authority emanate from them."
Evidently
the term people refers to the entire citizenry and not merely to the
electorate,
for the latter is only a fraction of the people and is only an organ of
government for the election of government officials.
III.The more compelling question, however is:
Has
this
Court the authority to nullify an entire Constitution that is already
effective
as it has been accepted and acquiesced in by the people as shown by
their
compliance with the decree promulgated thereunder, their cooperation in
its implementation, and is now maintained by the Government that is in
undisputed authority and dominance?
Of course it is
argued that acquiescence by the
people can be deduced from their acts of conformity, because under a
regime
of martial law the people are bound to obey and act in conformity with
the orders of the President, and has absolutely no other choice. The
flaw
of this argument lies in its application of a mere theoretical
assumption
based on the experiences of other nations on an entirely different
factual
setting. Such an assumption flounders on the rock of reality. It is
true
that as a general rule martial law is the use of military forces to
perform
the functions of civil government. Some courts have viewed it as a
military
regime which can be imposed in emergency situations. In other words,
martial
rule exists when the military rises superior to the civil power in the
exercise of some or all the functions of government. Such is not the
case
in this country. The government functions thru its civilian officials.
The supremacy of the civil over the military authority is manifest.
Except
for the imposition of curfew hours and other restrictions required for
the security of the State, the people are free to pursue their ordinary
concerns.cralaw:red
In short, the
existing regime in this Country,
does not contain the oppressive features, generally associated with a
regime
of Martial law in other countries. "Upon the other hand the masses of
our
people have accepted it, because of its manifold blessings. The once
downtrodden
rice tenant has at long last been emancipated a consummation
devoutly
wished by every Philippine President since the 1930's. The laborer now
holds his head high because his rights are amply protected and
respected."[*]
A new sense of discipline has swiftly spread beyond the corridors of
government
into the social order. Responding to the challenges of the New Society,
the people have turned in half a million loose firearms, paid their
taxes
on undeclared goods and income in unprecedented numbers and amount,
lent
their labors in massive cooperation in land reform, in the repair
of dikes, irrigation ditches, roads and bridges, in reforestation, in
the
physical transformation of the environment to make ours a cleaner and
greener
land. "The entire country is turning into one vast garden growing food
for the body, for thought and for the soul."[*]
More important the common man has at long last been freed from the
incubus
of fear.cralaw:red
"Martial law has
paved the way for a re-ordering
of the basic social structure of the Philippines" reported Frank Valeo
to the United States Senate. "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 his
targets
there is marked public support for his leadership." (Bulletin Today,
March
3 and 4, 1973).cralaw:red
In a similar
vein, C.L. Sulzberger, a foreign
affairs columnist wrote, in the April 11 issue of The New York Times:
During his first Presidential term
(1965-1969),
Mr. Marcos was discouraged by the failure of legislators to approve
urgently
needed reforms. He found his second term further frustrated by spread
riots,
a Maoist uprising in Luzon and a much more serious Moslem insurrection
in the southern islands from Mindanao across the Sulu archipelago to
the
frontier regions of Malaysia and Indonesia. Manila claims this war is
Maoist-coordinated.
Mr. Marcos has now in effect taken all
the
reins
of power and makes no promise as to when he will relinquish them. But,
while fettering a free press, terminating Congress and locking up some
opponents (many of whom were later amnestied), he has hauled the
Philippines
out of stagnation.
Sharecropping is being ended as more than
three
million acres of arable land are redistributed with state funds. New
roads
have been started. The educational system is undergoing revision, a
corruption
is diminished. In non-communist Asia it is virtually impossible to
wholly
end it and this disagreeable phenomenon still reaches very high.
Mr. Marcos, an imaginative, gifted man,
hopes
to reshape society by creating an agrarian middle-class to replace the
archaic sharecropper-absentee landlord relationship. He is even pushing
for a birth control program with the tacit acceptance of the Catholic
Church.
He has started labor reforms and increased wages. (Daily Express, April
15, 1973).
As explained in
this writer's opinion of April 24,
1973 on the "Constancia" and "Manifestation" of counsel for petitioners:
The new Constitution is considered
effective
"if the norms created in conformity with it are by and large applied
and
obeyed. As soon as the old Constitution loses its effectiveness and the
new Constitution has become effective, the acts that appear with the
subjective
meaning of creating or applying legal norms are no longer interpreted
by
presupposing the old basic norm, but by presupposing the new one. The
statutes
issued under the old Constitution and not taken over are no longer
regarded
as valid, and the organs authorized by the old Constitution no longer
competent."
(Kelsen, Pure Theory of Law, [1967]).
The essentially
political nature of the question
is at once made manifest by understanding that in the final analysis,
what
is assailed is not merely the validity of Proclamation No. 1102 of the
President which is merely declaratory of the fact of approval or
ratification,
but the legitimacy of the government. It is addressed more to the
framework
and political character of this Government which now functions under
the
new Charter. It seeks to nullify a Constitution that is already
effective.
In such a
situation, We do not see how the question
posed by petitioners could be judicially decided. "Judicial power
presupposes
an established government capable of enacting laws and enforcing their
execution, and of appointing judges to expound and administer them. 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."
(Luther v. Borden, 48 U.S. [7 How.] 1, 12 L. Ed. 598).cralaw:red
In other words,
where a complete change in the
fundamental law has been effected through political action, the Court
whose
existence is affected by such change is, in the words of Mr. Melville
Fuller
Weston, "precluded from passing upon the fact of change by a logical
difficulty
which is not to be surmounted."[5]
Such change in the organic law relates to the existence of a prior
point
in the Court's "chain of title" to its authority and "does not relate
merely
to a question of the horizontal distribution of powers."[6]
It involves in essence a matter 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."[7]
The non-judicial
character of such a question
has been recognized in American law. "From its earliest opinions this
Court
has consistently recognized," said Justice Frankfurter, in his
illuminating
dissent in Baker v. Carr, 369 U.S. 186, 7 L. Ed. 2d. 633, 722, 726,
727),
"a class of controversies which do not lend themselves to judicial
standards
and judicial remedies. To classify the various instances as "political
questions" is rather a form of stating this conclusion than revealing
of
analysis. The crux of the matter is that courts are not fit
instruments
of decision where what is essentially at stake is the composition of
those
large contests of policy traditionally fought out in non-judicial
forums,
by which governments and the actions of governments are made and
unmade."
The diversity of
views contained in the opinions
of the members of this Court, in the cases at bar, cannot be a case on
"right" or "wrong" views of the Constitution. It is one of attitudes
and
values. For there is scarcely any principle, authority or
interpretation
which has not been countered by the opposite. At bottom, it is the
degree
of one's faith in the nation's leadership and in the maturity of
judgment of our people.cralaw:red
IN VIEW OF THE
FOREGOING, the dismissal of these
five cases, and the conclusion of this Court in its judgment of March
31,
1973 are fully justified. The question becomes wholly moot except
for this consideration, that, when the judges as individuals or as a
body
of individuals come to decide which king or which constitution they
will
support and assert to represent, it may often be good judgment for them
to follow the lead of the men who, as a practical matter, are likely to
be looked to by the people as more representative of themselves and
conversely
are likely to be more directly in touch with popular sentiment. If,
however,
the judges hold too strong views of their own to be able to take this
course,
they may follow their own leads at their own hazard. No question of law
is involved. (Political Questions, 38 Harvard Law Review [1924-25], pp.
305-309).cralaw:red
Barredo,
Makasiar, and Esguerra, JJ., concur.
APPENDIX TO OPINION(G.R. Nos. L-36142, 36164,
36165,
36236
& 36283)PROVISIONS OF STATE CONSTITUTIONSSPECIFICALLYPROVIDING FOR
AMENDMENT
AND
REVISION
1. Alaska
(1959) Art. XIII.
Amendment and Revision.
Sec. 1.
Amendments. Amendments to this constitution
may be proposed by a two-thirds vote of each house of the legislature.
The secretary of state shall prepare a ballot title and proposition
summarizing
each proposed amendment, and shall place them on the ballot for the
next
statewide election. If a majority of the votes cast on the proposition
favor the amendment, it becomes effective thirty days after the
certification
of the election returns by the secretary of state.cralaw:red
Sec. 2.
Convention. The legislature may call constitutional
conventions at any time.cralaw:red
Sec. 3. Call by
referendum. If during any ten-year
period a constitutional convention has not been held, the secretary of
state shall place on the ballot for the next general election the
question:
"Shall there be a Constitutional Convention?" If a majority of the
votes
cast on the question are in the negative, the question need not be
placed
on the ballot until the end of the next ten-year period. If a majority
of the votes cast on the question are in the affirmative, delegates to
the convention shall be chosen at the next regular statewide election,
unless the legislature provides for the election of the election
delegates
at a special election. The secretary of state shall issue the call for
the convention. Unless other provisions have been made by law, the call
shall conform as nearly as possible to the act calling the Alaska
Constitutional
Convention of 1955, including, but not limited to, number of members,
districts,
election and certification of delegates, and submission and
ratification
of revisions and ordinances.cralaw:red
Sec. 4. Powers.
Constitutional conventions shall
have plenary power to amend or revise the constitution, subject only to
ratification by the people. No call for a constitutional convention
shall
limit these powers of the convention.cralaw:red
2. California
(1879) Art. XVIII.
Amending and Revising the Constitution.
Sec. 1.
Constitutional amendments. Any amendment
or amendments to this Constitution may be proposed in the Senate or
Assembly,
and if two-thirds of all the members elected to each of the houses
shall
vote in favor thereof, such proposed amendment or amendments shall be
entered
in their Journals, with the yeas and nays taken thereon; and it shall
be
the duty of the Legislature to submit such proposed amendment or
amendments
to the people in such manner, and at such time, and after such
publication
as may be deemed expedient. Should more amendments than one be
submitted
at the same election they shall be so prepared and distinguished, by
numbers
or otherwise, that each can be voted on separately. If the people shall
approve and ratify such amendment or amendments, or any of them, by a
majority
of the qualified electors voting thereon such amendment or amendments
shall
become a part of this constitution.cralaw:red
Sec. 2.
Constitutional convention. Whenever two-thirds
of the members elected to each branch of the Legislature shall deem it
necessary to revise this Constitution, they shall recommend to the
electors
to vote at the next general for or against a Convention for that
purpose,
and if a majority of the electors voting at such election on the
proposition
for a Convention shall vote in favor thereof, the Legislature shall, at
its next session, provide by law for calling the same. The Convention
shall
consist of a number of delegates not to exceed that of both branches of
the Legislature, who shall be chosen in the same manner, and have the
same
qualifications, as Members of the Legislature. The delegates so elected
shall meet within three months after their election at such place as
the
Legislature may direct. At a special election to be provided for by
law,
the Constitution that may be agreed upon by such Convention shall be
submitted
to the people for their ratification or rejection, in such manner as
the
Convention may determine. The returns of such election shall, in such
manner
as the Convention shall direct, be certified to the Executive of the
State,
who shall call to his assistance the Controller, Treasurer, and
Secretary
of State, and compare the returns so certified to him; and it shall be
the duty of the Executive to declare, by his proclamation, such
Constitution,
as may have been ratified by a majority of all the votes cast at such
special
election, to be the Constitution of the State of California.cralaw:red
3. Colorado
(1876) Art. XIX.
Amendments.
Sec. 1.
Constitutional convention; how called.
The general assembly may at any time be a vote of two-thirds of the
members
elected to each house, recommend to the electors of the state, to vote
at the next general election for or against a convention to revise,
alter
and amend this constitution; and if a majority of those voting on the
question
shall declare in favor of such convention, the general assembly shall,
at the next session, provide for the calling thereof. The number of
members
of the convention shall be twice that of the senate and they shall be
elected
in the same manner, at the same places, and in the same districts. The
general assembly shall, in the act calling the convention, designate
the
day, hour and place of its meeting; fix the pay of its members and
officers,
and provide for the payment of the same, together with the necessary
expenses
of the convention. Before proceeding, the members shall take an oath to
support the constitution of the United States, and of the state of
Colorado,
and to faithfully discharge their duties as members of the convention.
The qualifications of members shall be the same as of members of the
senate;
and vacancies occurring shall be filled in the manner provided for
filling
vacancies in the general assembly. Said convention shall meet within
three
months after such election and prepare such revisions, alterations or
amendments
to the constitution as may be deemed necessary; which shall be
submitted
to the electors for their ratification or rejection at an election
appointed
by the convention for that purpose, not less than two nor more than six
months after adjournment thereof; and unless so submitted and approved
by a majority of the electors voting at the election, no such revision,
alteration or amendment shall take effect.cralaw:red
Sec. 2.
Amendments to constitution; how adopted.
Any amendment or amendments to this constitution may be proposed in
either
house of the general assembly, and if the same shall be voted for by
two-thirds
of all the members elected to each house, such proposed amendment or
amendments,
together with the ayes and noes of each house hereon, shall be entered
in full on their respective journals; the proposed amendment or
amendments
shall be published with the laws of that session of the general
assembly,
and the secretary of state shall also cause the said amendment or
amendments
to be published in full in not more than one newspaper of general
circulation
in each county, for four successive weeks previous to the next general
election for members of the general assembly; and at said election the
said amendment or amendments shall be submitted to the qualified
electors
of the state for their approval or rejection, and such as are approved
by a majority of those voting thereon shall become part of this
constitution.cralaw:red
Provided, that if
more than one amendment be submitted
at any general election, each of said amendments shall be voted upon
separately
and votes thereon cast shall be separately counted the same as though
but
one amendment was submitted. But the general assembly shall have no
power
to propose amendments to more than six articles of this constitution at
the same session.cralaw:red
4. Delaware
(1897) Art. XVI.
Amendments and Conventions.
Sec. 1. Proposal
of constitutional amendments
in general assembly; procedure. Any amendment or amendments to this
Constitution
may be proposed in the Senate or House of Representatives; and if the
same
shall be agreed to by two-thirds of all the members elected to each
House,
such proposed amendment or amendments shall be entered on their
journals,
with the yeas and nays taken thereon, and the Secretary of State shall
cause such proposed amendment or amendments to be published three
months
before the next general election in at least three newspapers in each
County
in which such newspaper shall be published; and if in the General
Assembly
next after the said election such proposed amendment or amendments
shall
upon yea and nay vote be agreed to by two-thirds of all the members
elected
to each House, the same shall thereupon become part of the Constitution.cralaw:red
Sec. 2.
Constitutional conventions; procedure;
compensation of delegates; quorum; powers and duties; vacancies. The
General
Assembly by a two-thirds vote of all the members elected to each House
may from time to time provide for the submission to the qualified
electors
of the State at the general election next thereafter the question,
"Shall
there be a Convention to revise the Constitution and amend the same?;"
and upon such submission, if a majority of those voting on said
question
shall decide in favor of a Convention for such purpose, the General
Assembly
at its next session shall provide for the election of delegates to such
convention at the next general election. Such Convention shall be
composed
of forty-one delegates, one of whom shall be chosen from each
Representative
District by the qualified electors thereof, and two of whom shall be
chosen
from New Castle County, two from Kent County and two from Sussex County
by the qualified electors thereof respectively. The delegates so chosen
shall convene at the Capital of the State on the first Tuesday in
September
next after their election. Every delegate shall receive for his
services
such compensation as shall be provided by law. A majority of the
Convention
shall constitute a quorum for the transaction of business. The
Convention
shall have the power to appoint such officers, employees and assistants
as it may be deem necessary, and fix their compensation, and provide
for
the printing of its documents, journals, debates and proceedings. The
Convention
shall determine the rules of its proceedings, and be the judge of the
elections,
returns and qualifications of its members. Whenever there shall be a
vacancy
in the office of delegate from any district or county by reason of
failure
to elect, ineligibility, death, resignation or otherwise, a writ of
election
to fill such vacancy shall be issued by the Governor, and such vacancy
shall be filled by the qualified electors of such district or county.cralaw:red
5. Florida
(1887) Art. XVII.
Amendments.
Sec. 1. Method of
amending constitution. Either
branch of the Legislature, at any regular session, or at any special or
extra-ordinary session thereof called for such purpose either in the
governor's
original call or any amendment thereof, may propose the revision or
amendment
of any portion or portions of this Constitution. Any such revision or
amendment
may relate to one subject or any number of subjects, but no amendment
shall
consist of more than one revised article of the Constitution.cralaw:red
If the proposed
revision or amendment is agreed
to by three-fifths of the members elected to each house, it shall be
entered
upon their respective journals with the yeas and nays and published in
one newspaper in each county where a newspaper is published for two
times,
one publication to be made not earlier than ten weeks and the other not
later than six weeks, immediately preceding the election at which the
same
is to be voted upon, and thereupon submitted to the electors of the
State
for approval or rejection at the next general election, provided,
however,
that such revision or amendment may be submitted for approval or
rejection
in a special election under the conditions described in and in the
manner
provided by Section 3 of Article XVII of the Constitution. If a
majority
of the electors voting upon the amendment adopt such amendment the same
shall become a part of this Constitution.cralaw:red
Sec. 2. Method of
revising constitution. If at
any time the Legislature, by a vote of two-thirds of all the members of
both Houses, shall determine that a revision of this Constitution is
necessary,
such determination shall be entered upon their respective Journals,
with
yea's and nay's thereon. Notice of said action shall be published
weekly
in one newspaper in every county in which a newspaper is published, for
three months preceding the next general election of Representatives,
and
in those countries where no newspaper is published, notice shall be
given
by posting at the several polling precincts in such counties for six
weeks
next preceding said election. The electors at said election may vote
for
or against the revision in question. If a majority of the electors so
voting
be in favor of revision, the Legislature chosen at such election shall
provide by law for a Convention to revise the Constitution, said
Convention
to be held within six months after the passage of such law. The
Convention
shall consist of a number equal to the membership of the House of
Representatives,
and shall be apportioned among the several counties in the same manner
as members of said House.cralaw:red
6. Idaho
(1890) Art. XIX.
Amendments.
Sec. 1. How
amendments may be proposed. Any amendment
or amendments to this Constitution may be proposed in either branch of
the legislature, and if the same shall be agreed to by two-thirds of
all
the members of each of the two houses, voting separately, such proposed
amendment or amendments shall, with the yeas and nays thereon, be
entered
on their journals, and it shall be the duty of the legislature to
submit
such amendment or amendments to the electors of the state at the next
general
election, and cause the same to be published without delay for at least
six consecutive weeks, prior to said election, in not less than one
newspaper
of the general circulation published in each county; and if a majority
of the electors shall ratify the same, such amendment or amendments
shall
become a part of this Constitution.cralaw:red
Sec. 3. Revision
or amendments by convention.
Whenever two-thirds of the members elected to each branch of the
legislature
shall deem it necessary to call a convention to revise or amend this
Constitution,
they shall recommend to the electors to vote at the next general
election,
for or against a convention, and if a majority of all the electors
voting
at said election shall have voted for a convention, the legislature
shall
at the next session provide by law for calling the same; and such
convention
shall consist of a number of members, not less than double the number
of
the most numerous branch of the legislature.cralaw:red
7. Iowa
(1857) Art. X.
Amendments to the Constitution.
Sec. 3.
Convention. At the general election to
be held in the year one thousand eight hundred and seventy, and in each
tenth year thereafter, and also at such times as the General Assembly
may,
by law, provide, the question, "Shall there be a Convention to revise
the
Constitution, and amend the same?" shall be decided by the electors
qualified
to vote for members of the General Assembly; and in case a majority of
the electors so qualified, voting at such election, for and against
such
proposition, shall decide in favor of a Convention for such purpose,
the
General Assembly, at its next session, shall provide by law for the
election
of delegates to such Convention.cralaw:red
8. Michigan
(1909) Art. XVII.
Amendments and Revision.
Sec. 1.
Amendments to constitution; proposal by
legislature; submission to electors. Any amendment or amendments to
this
constitution may be proposed in the senate or house of representatives.
If the same shall be agreed to by 2/3 of the members elected to each
house,
such amendment or amendments shall be entered on the journals,
respectively,
with the yeas and nays taken thereon; and the same shall be submitted
to
the electors at the next spring or autumn election thereafter, as the
legislature
shall direct; and, if a majority of the electors qualified to vote for
members of the legislature voting thereon shall ratify and approve such
amendment or amendments, the same shall become part of the constitution.cralaw:red
Sec. 4. General
revision; convention; procedure.
At the Biennial Spring Election to be held in the year 1961, in each
sixteenth
year thereafter and at such times as may be provided by law, the
question
of a General Revision of the Constitution shall be submitted to the
Electors
qualified to vote for members of the Legislature. In case a majority of
the Electors voting on the question shall decide in favor of a
Convention
for such purpose, at an Election to be held not later than four months
after the Proposal shall have been certified as approved, the Electors
of each House of Representatives District as then organized shall Elect
One Delegate for each Electors of each Senatorial District as then
organized
shall Elect One Delegate for each State Senator to which the District
is
entitled. The Delegates so elected shall convene at the Capital City on
the First Tuesday in October next succeeding such election, and shall
continue
their sessions until the business of the convention shall be completed.
A majority of the delegates elected shall constitute a quorum for the
transaction
of business. No proposed constitution or amendment adopted by such
convention
shall be submitted to the electors for approval as hereinafter provided
unless by the assent of a majority of all the delegates elected to the
convention, the yeas and nays being entered on the journal. Any
proposed
constitution or amendments adopted by such convention shall be
submitted
to the qualified electors in the manner provided by such convention on
the first Monday in April following the final adjournment of the
convention;
but, in case an interval of at least 90 days shall not intervene
between
such final adjournment and the date of such election. Upon the approval
of such constitution or amendments by a majority of the qualified
electors
voting thereon such constitution or amendments shall take effect on the
first day of January following the approval thereof.cralaw:red
9. Minnesota
(1857) Art. XIV.
Amendments to the Constitution.
Sec. 1.
Amendments to constitution; majority vote
of electors voting makes amendment valid. Whenever a majority of both
houses
of the legislature shall deem it necessary to alter or amend this
Constitution,
they may proposed such alterations or amendments, which proposed
amendments
shall be published with the laws which have been passed at the same
session,
and said amendments shall be submitted to the people for their approval
or rejection at any general election, and if it shall appear, in a
manner
to be provided by law, that a majority of all the electors voting at
said
election shall have voted for and ratified such alterations or
amendments,
the same shall be valid to all intents and purposes as a part of this
Constitution.
If two or more alterations or amendments shall be submitted at the same
time, it shall be so regulated that the voters shall vote for or
against
each separately.cralaw:red
Sec. 2. Revision
of constitution. Whenever two-thirds
of the members elected to each branch of the legislature shall think it
necessary to call a convention to revise this Constitution, they shall
recommend to the electors to vote at the next general election for
members
of the legislature, for or against a convention; and if a majority of
all
the electors voting at said election shall have voted for a convention,
the legislature shall, at their next session, provide by law for
calling
the same. The convention shall consist of as many members as the House
of Representatives, who shall be chosen in the same manner, and shall
meet
within three months after their election for the purpose aforesaid.cralaw:red
Sec. 3.
Submission to people of revised constitution
drafted at convention. Any convention called to revise this
constitution
shall submit any revision thereof by said convention to the people of
the
State of Minnesota for their approval or rejection at the next general
election held not less than 90 days after the adoption of such
revision,
and, if it shall appear in the manner provided by law that three-fifths
of all the electors voting on the question shall have voted for and
ratified
such revision, the same shall constitute a new constitution of the
State
of Minnesota. Without such submission and ratification, said revision
shall
be of no force or effect. Section 9 of Article IV of the Constitution
shall
not apply to election to the convention.cralaw:red
10. Nevada
(1864) Art. 16.
Amendments.
Sec. 1.
Constitutional amendments; procedure.
Any amendment or amendments to this Constitution may be proposed in the
Senate or Assembly; and if the same shall be agreed to by a Majority of
all the members elected to each of the two houses, such proposed
amendment
or amendments shall be entered on their respective journals, with the
Yeas
and Nays taken thereon, and referred to the Legislature then next to be
chosen, and shall be published for three months next preceding the time
of making such choice. And if in the Legislature next chosen as
aforesaid,
such proposed amendment or amendments shall be agreed to by a majority
of all the members elected to each house, then it shall be the duty of
the Legislature to submit such proposed amendment or amendments to the
people, in such manner and at such time as the Legislature shall
prescribe;
and if the people shall approve and ratify such amendment or amendments
by a majority of the electors qualified to vote for members of the
Legislature
voting thereon, such amendment or amendments shall become a part of the
Constitution.cralaw:red
Sec. 2.
Convention for revision of constitution;
procedure. If at any time the Legislature by a vote of two-thirds of
the
Members elected to each house, shall determine that it is necessary to
cause a revision of this entire Constitution they shall recommend to
the
electors at the next election for Members of the Legislature, to vote
for
or against a convention, and if it shall appear that a majority of the
electors voting at such election, shall have voted in favor of calling
a Convention, the Legislature shall, at its next session provide by law
for calling a Convention to be holden within six months after the
passage
of such law, and such Convention shall consist of a number of Members
not
less that of both branches of the legislature. In determining what is a
majority of the electors voting such election, reference shall be had
to
the highest number of vote cast at such election for the candidates of
any office or on any question.cralaw:red
11. New
Hamspire (1784).
Art. 99. Revision
of constitution provided for.
It shall be the duty of the selectmen, and assessors, of the several
towns
and places in this state, in warning the first annual meetings for the
choice of senators, after the expiration of seven years from the
adoption
of this constitution, as amended, to insert expressly in the warrant
this
purpose, among the others for the meeting, to wit, to take the sense of
the qualified voters on the subject of a revision of the constitution;
and, the meeting being warned accordingly, and not otherwise, the
moderator
shall take the sense of the qualified voters present as to the
necessity
of a revision; and a return of the number of votes for and against such
necessity, shall be made by the clerk sealed up, and directed to the
general
court at their then next session; and if, it shall appear to the
general
court by such return, that the sense of the people of the state has
taken,
and that, in the opinion of the majority of the qualified voters in the
state, present and voting at said meetings, there is a necessity for a
revision of the constitution, it shall be the duty of the general court
to call a convention for that purpose, otherwise the general court
shall
direct the sense of the people to be taken, and then proceed in the
manner
before mentioned. The delegates to be chosen in the same manner, and
proportioned,
as the representatives to the general court; provided that no
alterations
shall be made in this constitution, before the same shall be laid
before
the towns and unincorporated places, and approved by two thirds of the
qualified voters present and voting on the subject.cralaw:red
12. Oklahoma
(1907) Art. XXIV.
Constitutional Amendments.
Sec. 1.
Amendments proposed by legislature; a
submission to vote. Any amendment or amendments to this Constitution
may
be proposed in either branch of the Legislature, and if the same shall
be agreed to by a majority of all the members elected to each of the
two
houses, such proposed amendment or amendments shall, with yeas and nays
thereon, be entered in their journals and referred by the Secretary of
State to the people for their approval or rejection, at the next
regular
general election, except when the Legislature, by a two-thirds vote of
each house, shall order a special election for that purpose. If a
majority
of all the electors voting at such election shall vote in favor of any
amendment thereto, it shall thereby become a part of this Constitution.cralaw:red
If two or more
amendments are proposed they shall
be submitted in such manner that electors may vote for or against them
separately.cralaw:red
No proposal for
the amendment or alteration of
this Constitution which is submitted to the voters shall embrace more
than
one general subject and the voters shall vote separately for or against
each proposal submitted; provided, however, that in the submission of
proposals
for the amendment of this Constitution by articles, which embrace one
general
subject, each proposed article shall be deemed a single proposals or
proposition
Sec. 2.
Constitutional convention to propose amendments
or new constitution. No convention shall be called by the Legislature
to
propose alterations, revisions, or amendments to this Constitution, or
to propose a new Constitution, unless the law providing for such
convention
shall first be approved by the people on a referendum vote at a regular
or special election, and any amendments, alterations, revisions, or new
Constitution, proposed by such convention, shall be submitted to the
electors
of the State at a general or special election and be approved by a
majority
of the electors voting thereon, before the same shall become effective
Provided, That the question of such proposed convention shall be
submitted
to the people at least once in every twenty years.cralaw:red
13. Oregon
(1859) Art. XVII.
Amendments and Revisions.
Sec. 1. Method of
amending constitution. Any amendment
or amendments to this Constitution may be proposed in either branch of
the legislative assembly, and if the same shall be agreed to by a
majority
of all the members elected to each of the two houses, such proposed
amendment
or amendments shall, with the yeas and nays thereon, be entered in
their
journals and referred by the secretary of state to the people for their
approval or rejection, at the next regular election, except when the
legislative
assembly shall order a special election for that purpose. If a majority
of the electors voting on any such amendment shall vote in favor
thereof,
it shall thereby become a part of this Constitution. The votes for and
against such amendment, or amendments, severally, whether proposed by
the
legislative assembly or by initiative petition, shall be canvassed by
the
secretary of state in the presence of the governor, and if it shall
appear
to the governor that the majority of the votes cast at said election on
said amendment, or amendments, severally, are cast in favor thereof, it
shall be his duty forthwith after such canvass, by his proclamation, to
declare the said amendment, or amendments, severally, having received
said
majority of votes to have been adopted by the people of Oregon as part
of the Constitution thereof, and the same shall be in effect as a part
of the Constitution from the date of such proclamation. 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 that each
amendment
shall be voted on separately. No convention shall be called to amend or
propose amendments to this Constitution, or to propose a new
Constitution,
unless the law providing for such convention shall first be approved by
the people on a referendum vote at a regular general election. This
article
shall not be construed to impair the right of the people to amend this
Constitution by vote upon an initiative petition therefor.cralaw:red
Sec. 2. Method of
revising constitution. (1) In
addition to the power to amend this Constitution granted by Section 1,
Article IV, and section 1 of this Article, a revision of all or part of
this Constitution may be proposed in either house of the Legislative
Assembly
and, if the proposed revision is agreed to by at least two-thirds of
all
the members of each house, the proposed revision shall, with the yeas
and
nays thereon, be entered in their journals and referred by the
Secretary
of State to the people for their approval or rejection, notwithstanding
section 1, Article IV of this Constitution, at the next regular
state-wide
primary election, except when the Legislative Assembly orders a special
election for that purpose. A proposed revision may deal with more than
one subject and shall be voted upon as one question. The votes for and
against the proposed revision shall be canvassed by the Secretary of
State
in the presence of the Governor and, if it appears to the Governor that
the majority of the votes cast in the election on the proposed revision
are in favor of the proposed revision, he shall, promptly following the
canvass, declare, by his proclamation, that the proposed revision has
received
a majority of votes and has been adopted by the people as the
Constitution
of the State of Oregon, as the case may be. The revision shall be in
effect
as the Constitution or as a part of this Constitution from the date of
such proclamation.cralaw:red
14. Utah
(1896) Art. 23.
Amendments.
Sec. 1.
Amendments; method of proposal and approval.
Any amendments to his Constitution may be proposed in either house of
the
Legislature, and if two-thirds of all the members elected of the two
houses,
shall vote in favor thereof, such proposed amendment or amendments
shall
be entered on their respective journals with the yeas and nays taken
thereon;
and the Legislature shall cause the same to be published in at least
one
newspaper in every county of the State, where a newspaper is published,
for two months immediately preceding the next general election, at
which
time the said amendment or amendments shall be submitted to the
electors
of the State, for their approval or rejection, and if a majority of the
electors voting thereon shall approve the same, such amendment or
amendments
shall become part of this Constitution. If two or more amendments are
proposed,
they shall be so submitted as to enable the electors to vote on each of
them separately.cralaw:red
Sec. 2. Revision
of the Constitution by convention.
Whenever two-thirds of the members, elected to each branch of the
Legislature,
shall deem it necessary to call a convention to revise or amend this
Constitution,
they shall recommend to the electors to vote at the next general
election,
for or against a convention, and, if a majority of all the electors,
voting
at such election, shall vote for a convention. The Legislature, at its
next session, shall provide by law for calling the same. The convention
shall consist of not less than the number of members in both branches
of
the Legislature.cralaw:red
15. Wyoming
(1890) Art. XX.
Amendments.
Sec. 1. Procedure
for amendments. Any amendment
or amendments to this Constitution may be proposed in either branch of
the legislature, and, if the same shall be agreed to by two-thirds of
all
the members of the two houses, voting separately, such proposed
amendment
or amendments shall, with the yeas and nays thereon, be entered on
their
journals, and it shall be the duty of the legislature to submit such
amendment
or amendments to the electors of the state at the next general
election,
in at least one newspaper of general circulation, published in each
county,
and if a majority of the electors shall ratify the same, such amendment
or amendments shall become a part of this constitution.cralaw:red
Sec. 2. How voted
for. If two or more amendments
are proposed, they shall be submitted in such manner that the electors
shall vote for or against each of them separately.cralaw:red
Sec. 3.
Constitutional convention; provision for.
Whenever two-thirds of the members elected to each branch of the
legislature
shall deem it necessary to call a convention to revise or amend this
constitution,
they shall recommend to the electors to vote at the next general
election
for or against a convention, and if a majority of all the electors
voting
at such election shall have voted for a convention, the legislature
shall
at the next session provide by a law for calling the same; and such
convention
shall consist of a number of members, not less than double that of the
most numerous branch of the legislature.cralaw:red
Sec. 4. New
constitution. Any constitution adopted
by such convention shall have no validity until it has been submitted
to
and adopted by the people.
______________________________
Endnotes
MAKALINTAL, J.,
Concurring:
[*]
The undersigned [Justice Querube C. Makalintal] who had reserved his
right
to do so, filed a separate dissenting opinion when the Court denied a
motion
for reconsideration, and voted in favor of the validity of the
questioned
Resolution. Mr. Justice Enrique M. Fernando joined in the dissent.
[*]
Thus, by Presidential Decree No. 86, what the Constitutional Convention
itself had proposed unsuccessfully as an amendment to the 1935
Constitution,
reducing the voting age from 21 to 18, but the submission of which to a
plebiscite was declared invalid by this Court in Tolentino vs. COMELEC,
became a reality of an even more far-reaching import since
fifteen-year
olds were included in the Citizens Assemblies.
[*]
According to the Solicitor General, 92 Congressmen and 15 Senators
[both
numbers constituting majorities] have expressed their option.
[*]
Luther v. Borden, 48 U.S. [7 Haw.] 1, 12 L. Ed. 581 [1849].
BARREDO, J.,
Concurring:
[1]
Charito Planas vs. Comelec, et al., L-35925, January 22, 1973; Pablo C.
Sanidad vs. Comelec, L-35929, January 22, 1973; Gerardo Roxas, etc., et
al. vs. Comelec, et al., L-35940, January 22, 1973; Eddie B. Monteclaro
vs. Comelec, et al., L-35941, January 22, 1973; Sedfrey A.
Ordoñez,
et al., vs. The National Treasurer of the Philippines, et al., L-35942,
January 22, 1973; Vidal Tan, et al., vs. Comelec, et al., L-35948,
January
22, 1973; Jose W. Diokno, et al., vs. Comelec, L-35953, January 22,
1973;
Jacinto Jimenez vs. Comelec, et al., L-35961, January 22, 1973; Raul M.
Gonzales vs. Comelec, et al., L-35965, January 22, 1973 and Ernesto
Hidalgo
vs. Comelec, et al., L-35979, January 22, 1973.
[2]
Executive Agreements are not included in the corresponding provision of
the 1935 Constitution.
[3]
It must be recalled that in the Tolentino case, the Constitutional
Convention
intended to submit one amendment which was to form part of the
Constitution
still being prepared by it separately from the rest of the other parts
of such Constitution still unfinished, and We held that a piece-meal
submission
was improper. We had no occasion to express any view as to how a whole
new Constitution may be ratified.
MAKASIAR, J., Concurring:
[*]
In 1880, he also wrote his "Constitutional Law." Judge Cooley, who was
born in Attica, New York in 1824, died in 1898. Judge Cooley was also
professor
and later dean of the Law Department of the University of Michigan and
Justice of the State Supreme Court of Michigan from 1864 to 1885, when
he failed to win re-election to the Court.
ZALDIVAR, J.,
Concurring:
[1]
Charito Planas v. Commission on Elections, et al., L-35925; Pablo C.
Sanidad
v. Commission on Elections, L-35929; Gerardo Roxas, etc., et al. v.
Commission
on Elections, et al., L-35940; Eddie B. Monteclaro v. The Commission on
Elections, et al., Sedfrey A. Ordoñez, et al. v. The National
Treasurer
of Philippines, et al., L-35942; Vidal Tan, et al. v. Commission on
Elections,
et al., L-35948; Jose W. Diokno, et al. v. The Commission on Elections,
L-35953; Jacinto Jimenez v. Commission on Elections, et al., L-35961;
Raul
M. Gonzales v. The Honorable Commission on Elections, et al., L-35965;
Ernesto Hidalgo v. Commission Elections, et al., L-35979.
[2]
See Tañada, et al. v. Cuenco, L-10520, Feb. 28, 1957; Baker v.
Carr,
369 U.S. 186 (1962).
[3]
See 16 Am. Jur. 2d. p. 468, Note 14, and cases cited therein.
[4]
Cooke v. Iverson, 108 Minn. 388, 122 NW 251.
[5]
L-38196, November 9, 1967, 21 SCRA 774.
[6]
83 Phil. 1957.
[7]
McConaughy v. Secretary of State, 119 N.W. 408, 413; 32A Words and
Phrases
p. 516. See also the plebiscite cases, mentioned in [End]note 1, ante.
[8]
Cooley, Constitutional Limitation, 8th Ed., Vol. I, p. 82.
[9]
39 Phil. 258, 268.
[10]
69 Phil. 199, 204.
[11]
70 Phil. 28, 31.
FERNANDO, J.,
Dissenting:
[1]
Memorandum for Respondents, 2.
[2]
According to the 1935 Constitution: "The Congress, in joint session
assembled,
by a vote of three-fourths of all the members of the Senate and of the
House of Representatives voting separately, may propose amendments to
this
Constitution or call a convention for that purpose. 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 their ratification." Art. XV, Section 1.
[3]
Lerner, Ideas are Weapons, 426 [1939]. Earlier, in this collection of
essays,
Lerner made this not-entirely-inaccurate observation: "No governmental
institution that consists of a group of legal technicians appointed for
life can ever hope to cope with, much less solve, the exigent problems
of our polity." Ibid., 231. He was referring of course to the Supreme
Court
of the United States.
[4]
Frankfurter, Mr. Justice Holmes and the Supreme Court, 25-26 [1938].
[5]
Black, The People and the Court [1960].
[6]
Murphy, Elements of Judicial Strategy [1964].
[7]
Cf. Angara v. Electoral Commission, 63 Phil. 139 [1936]; Tañada
v. Cuenco, 103 Phil. 1051 [1957]; Vera v. Arca, L-25721, May 26, 1969,
28 SCRA 351.
[8]
Gonzales v. Commission on Elections, L-28196, Nov. 9, 1967, 21 SCRA 774.
[9]
Tolentino v. Commission on Elections, L-24150, Oct. 16, 1971, 41 SCRA
702.
[10]
Planas v. Commission on Elections, L-35925, Jan. 25, 1973.
[11]
256 US 368 [1921].
[12]
Ibid., 374-375.
[13]
L-33964, Dec. 11, 1971, 42 SCRA 448.
[14]
Ibid., 504-505.
[15]
Dodd, Judicially Nonenforceable Provisions of Constitutions, in I
Selected
Essays on Constitutional Law 355, 387 [1938].
[16]
Ibid., 395.
[17]Weston,
Political Questions, I Selected Essays on Constitutional Law 418, 422
[1938].
[18]
Cf. Bickel, The Least Dangerous Branch [1962].
[19]
Cf. Freund, On Understanding the Supreme Court (1950). Also his The
Supreme
Court of the United States [1962].
[20]
Laurel, S., VII Proceedings of the Philippine Constitutional Convention
[1934-1935], Appendix L, 800.
[21]
65 Phil. 56 [1937].
[22]
Ibid., 96.
[23]
63 Phil. 139 [1936].
[24]
L-35925, January 22, 1973.
[25]
Rostow, The Democratic Character of Judicial Review in Selected Essays
on Constitutional Law 1938 1962, 1, 2 [1963].
[26]
Ibid.
[27]
Ibid., 3.
[28]
Ibid., 3-4. The decision of Justice Frankfurter referred to is that of
Rochin v. People of California, 342 US 165 [1952].
[29]
Mason, The Supreme Court from Taft to Warren, 154 [1967]. The words of
Justice Frankfurter found in his opinion in Stein v. New York, 346 US
156
[1953].
[30]
Konefsky, The Legacy of Holmes and Brandeis, 293 [1956].
[31]
Corwin, Judicial Review in I Selected Essays on Constitutional Law,
449,
450 [1938].
[32]
1 Cranch 137 [1803].
[33]
Curtis, Lions Under the Throne, 12 [1947].
[34]
Addresses and Papers of Charles Evans Hughes, 139-140 [1908].
[35]
Jackson, Robert H. The Struggle for Judicial Supremacy, 3 [1949].
[36]
Haines, Charles Grove, The Role of the Supreme Court in American
Government
and Politics, 1789-1835, 3 [1960].
[37]
369 US 186.
[38]
395 US 486.
[39]
328 US 549 [1946].
[40]
Ibid., 556.
[41]
Cf. Wesberry v. Sanders, 376 US 1, 11 L ed 2d 481, 84 S Ct. [1964];
Wright
v. Rockefeller, 376 US 52, 11 L ed 2d 512, 84 S Ct [1964]; Reynolds v.
Sims, 377 US 533, 12 L ed 2d 506, 84 S Ct 1362 (1964); WMCA v. Lomenzo,
377 US 633, 12 L ed 2d 568, 84 S Ct. [1964]; Maryland Committee v.
Tauses,
377 US 656, 12 L ed 2d 595, 84 S Ct. 1442 [1964]; Davis v. Mann, 377 US
678, 12 L ed 2d 609, 84 S Ct. 1453 [1964]; Roman v. Sincock, 377 US
695,
12 L ed 2d 620, 84 S.Ct. 1462 [1964]; Lucas v. Colorado General
Assembly,
377 US 713, L ed 2d 632, 84 S Ct. 1472 [1964]; Fortson v. Dorsey, 379
us
433, 13 L ed 2d 401, 85 S Ct. 498 [1965]; Burns v. Richardson, 384 US
73,
16 L ed 2d 376, 86 S Ct. 1286 [1966]; Sailors v. Kent Board of
Education,
387 US 105, 18 L ed 2d 650, 87 S Ct. 1549 [1967]; Dusch v. Davis, 387
US
112, 18 L ed 2d 656, 87 S Ct. 1554 [1967].
[42]
77 Phil. 192 [1946].
[43]
Ibid., 56.
[44]
New York Times Company v. United States, 29 L ed. 822 [1971].
[45]
Wechsler, Toward Neutral Principles of Constitutional Law, 72 Harv. Law
Review 77 [1959]. It is the first essay in his Principles, Politics and
Fundamental Law.
[46]
The principal articles are: Pollak, Constitutional Adjudication:
Relative
or Absolute Neutrality, 11 J. Pub. L. 48 [1962]; Rostow, American Legal
Realism and the Sense of Profession, 34 Rocky Mt. L. Rev. 123, 136-46
[1962];
Henkin, Some Reflections on Current Constitutional Controversy, 109 U.
Pa. L. Rev. 637 [1961]; Henson, A Criticism of Criticism: In re
Meaning,
29 Fordham L. Rev. 553 [1961]; Miller, A Note on the Criticism of
Supreme
Court Decisions, 10 J. Pub. L. 139 [1961], Wright, The Supreme Court
Cannot
be Neutral, 40 Texas L. Rev. 599 [1961]; Arnold, Professor Hart's
Theology,
73 Harv. L. Rev. 1298 [1960]; Black, The Lawfulness of the Segration
Decisions,
69 Yale L. J. 421 [1960]; Griswold, Of Time and Attitudes: Professor
art
and Judge Arnold, 74 Harv. L. Rev. 81 [1960]; Karst, Legislative Facts
in Constitutional Litigation, 1960 Supreme Court Rev. 75; Miller and
Howell
The Myth of Neutrality in Constitutional Adjudication, 27U. Chi. L.
Rev.
661 [1960]; Mueller & Schwartz, The Principle of Neutral
Principles,
7 U.C.L.A.L. Rev. 571 [1960]; Hart, Forward, The Time Chart of the
Justices,
73 Harv. L. Rev. 84 [1959]; Pollak, Racial Domination and Judicial
Integrity:
A Reply to Professor Wechsler, 108 U. Pa. L. Rev. 1 [1959].
[47]
Cahn, Supreme Court and Supreme Law, 40 [1954].
[48]
Cf. Tañada v. Cuenco, 103 Phil. 1051, 1089 [1957].
[49]
Collier v. Frierson, 124 Ala. 100 [1854]; Green v. Weller, 32 Miss. 650
[1856]; Penn v. Tollison, 26 Ark. 545 [1871]; Koehler v. Hill, 60 Iowa
543, 14 NW 738 [1883]; McMillan v. Blattner, 67 Iowa 287, 25 NW 245
[1885];
State v. Davis, 2D Neb. 220, 19 Pac. 894 [1888]; State v. Tooker, 15
Mont.
8, 37 Pac. 840 [1894]; Russie v. Brazzell, 128 Mo. 93, 30 SW 526
[1895];
State v. Powell, 77 Miss. 543, 27 So. 927 [1900]; State v. Brookhart,
113
Iowa 250, 84 NW 1064 [1901]; In re Denny, 156 Ind. 104, 59 NE 359
[1901];
Utter v. Moseley, 16 Idaho 274, 100 P. 1058 [1909]; Willis v. Kalbach,
109 Va. 475, 64 SE 342 [1909]; People ex rel. Swift v. Luce, 74 Misc.
Rep.
551, 133 US 9 [1912]; McCreary v. Speer, 156 Ky. 783, 162 SW 99 [1914];
State v. Donald, 160 Wis. 21, 151 NW 331 [1915]; State v. Marcus, 160
Wis.
354, 152 NW 419 [1915]; State v. Campbell, 94 Ohio St. 403, 115 NE 29
[1916];
In re Opinion of Justices, 226 Mars. 607, 115 NE 921 [1917]; Scott v.
Vouchan,
202 Mich. 692, 168 NW 709 [1918]; Hooper v. State, 89 So. 593, 206 Ala.
371 [1921]; Switzer v. State, 103 Ohio St. 306, 133 NE 552 [1921];
Johnson
v. Craft, 87 So. 375, 205 Ala. 386 [1921]; In re Opinion of the
Justices,
237 Mars. 589, 130 NE 202 [1921]; Power v. Robertson, 130 Miss. 188, 93
So. 769 [1922]; Hamilton v. Deland, 191 NW 829, 221 Mich. 541 [1923];
In
re Initiative Petition, 89 Okl. 124, 214 P. 186 [1923]; Armstrong v.
King,
281 Pa. 207, 126 A. 263 [1924]; McAdams v. Henley, 169 Ark. 97, 273 SW
355 [1925]; Heinitsh v. Floyd, 130 SC 434, 126 SE 336 [1925]; State v.
Zimmerman, 187 Wis. 180, 204 NW 803 [1925]; Brown v. City of New York,
125 Misc. Rep. 1, 210 NYS 786 [1926]; State ex rel. Bahns v. City of
New
Orleans, 163 La. 777 So. 718 [1927]; Duncan v. Record Pub. Co., 145 SC
196, 143 SE 31 [1928]; Lane v. Lukens, 48 Idaho 517, 283 P. 532 [1929];
School Dist. of City of Pontiac v. City of Pontiac, 262 Mich. 338, 247
NW 474 [1933]; Collier v. Gray, 116 Fla. 845, 157 So. 40 [1934]; In re
Opinion to Governor, 55 R.I. 56, 178 A. 433 [1935]; State ex rel Landis
v. Thompson, 120 Fla. 860,163 So. 270 [1935]; Tausig v. Lawrence, 328
Pa.
408, 197 A. 235 [1938]; Downs v. City of Bromingham, 240 Ala. 177, 198
So. 231 [1940]; Graham v. Jones, 198 La. 507, 3 So. 2d 761 [1941];
Pearson
v. Taylor, 159 Fla. 775, 32 So. 2d 826 [1947]; Palmer v. Dunn, 216 SC
558,
59 SE 158 [1950].
[50]
Cf. Wells v. Bain, 75 Pa. St. 39, 15 Am. Rep. 563 [1874]; Senate File
No.
31, 25 Neb. 864, 41 NW 981 [1889]; State v. Grey, 21 Nev. 378, 32 Pac.
190 [1893]; Nesbit v. People, 19 Colo. 441, 36 Pac. 221 [1894]; Hays v.
Hays, 5 Idaho 154, 47 P. 732 [1897]; Lovett v. Ferguson, 10 SD 44, 71
NW
756 [1897]; Russell v. Grey, 164 Mo. 69, 63 SW 849 [1901]; Gabbert v.
Chicago,
R.I. Ry. Co. 171 Mo. 84, 70 SW [1902]; People v. Sours, 31 Colo. 369,
102
74 P. 167 [1903]; People v. Loomis, 135 Mich. 556, 98 NW 262 [1904];
West
v. State, 50 Fla. 154, 39 So. 412 [1905]; State v. Winnett, 78 Neb.
379,
110 NW 113 [1907]; Farrell v. Port of Columbia, 50 Or. 169, 93 P. 254
[1908];
In re Mcconaughy, 106 Minn. 392, 119 NW 408 [1909]; Fletcher v.
Gifford,
20 Idaho 18, 115 P. 824 (1911); Hammond v. Clark, 136 Ga. 313, 71 SE
479
[1911], Crawford v. Gilchrist, 64 Fla. 41, 59 So. 963 [1912]; Cudihee
v.
Phelps, 76 Wash. 314, 136 P. 367 [1913]; State v. Fairley, 76 Wash.
332,
136 P. 374 [1913]; Tabor v. City of Walla Walla, 77 Wash. 579, 137 P.
1040
[1914]; State v. Alderson, 49 Mont. 387, 142 P. 210 [1914]; Ramsey v.
Persinger,
43 Okl. 41,141 P. 13 [1914]; Cress v. Estes, 43 Okl. 213 P. 411 [1914];
Cooney v. Foote, 142 Ga. 647, 83 SE 537 [1914]; Hildreth v. Taylor, 117
Ark. 465, 175 SW 40 [1915]; Jones v. McDade, 200 Ala. 230, 75 So. 988
[1917];
State v. Wetz, 40 N.D. 299, 168 NW 835 [1918]; Ex Parte Ming, 42 Nev.
472,
181 P. 319 [1919]; Lee V. Price, 54 Utah, 474, 181 P. 948 [1919]; Erwin
v. Nolan, 280 Mo. 401, 217 SW 752 [1922]; Boyd v. Olcott, 102 Or. 327,
202 P. 431 [1921]; Thompson v. Livingston, 116 S.C. 412, 107 SE 581
[1921];
Thrailkill v. Smith, 106 Ohio St. 1, 138 NE 532 [1922]; Brawner v.
Curran,
141 Ind. 586, 119 A. 250 [1922]; Fahey v. Hackmann, 291 Mo. 351 SW 752
[1922]; Goolsby v. Stephens, 155 Ga. 529, 117 SE 439 [1923]; Manos v.
State,
98 Tax. Cr. 87, 263 SW 310 [1924]; State v. Zimmermann, 187 Wis. 180,
208
NW 803 [1925]; Taylor v. King, 284 Pa. 235, 130 A. 407 [1925]; Board of
Liquidation of State Debt of Louisiana v. Whitney-Central Trust and
Savings
Bank, 168 La. 560, 122 So. 850 [1929]; State v. Cline, 118 Neb. 150,
224
NW 6 [1929]; California Teacher's Ass'n. v. Collins, 1 Cal. 2d 202, 34
P. 2d 134 [1934]; Collier v. Gray, 116 Fla. 845, 157 So. 40 [1934];
State
ex rel. State Bldg. Commission v. Smith, 335 Mo. 840, 74 SW 2d 27
[1934];
Mayer v. Adams, 182 Ga. 524, 186 SE 420 (1936); Doody v. State ex rel.
Mobile County, 233 Ala. 287, 171 So. 504 [1937]; Swanson v. State, 132
Neb. 82, 271 NW 264 [1937; Stonns v. Heck, 238 Ala. 196, 190 So. 78
[1939];
Graham v. Jones, 198 La. 507, 3 So. 2d 761 [1941]; In re Initiative
Petition
No. 224, 197 Okl. 432, 172 P. 2d 324 [1946]; City of Jackson v. Nims,
316
Mich. 694, 26 NW 2d 569 (1947); Keenan v. Price, 68 Idaho 423, 195 P.
2d
662 [1948].
[51]
Commonwealth Act No. 492 [1939].
[52]
Ibid., Section 3.
[53]
Commonwealth Act No. 517 [1940].
[54]
Article VI of the 1935 Constitution.
[55]
Article VII of the 1935 Constitution.
[56]
It is to be noted that under Commonwealth Act No. 607 [1940],
subsequently
amended by Commonwealth Act No. 657 [1940], there was a statutory
creation
of an independent Commission on Elections.
[57]
Section 3, Commonwealth Act No. 517.
[58]
Republic Act No. 73 [1946].
[59]
Section 3 of Republic Act 73 reads as follows: "The provisions of
Commonwealth
Act Numbered Three Hundred and fifty-seven, otherwise known as the
Election
Code, and Commonwealth Numbered Six hundred and fifty-seven, entitled
"An
Act to Reorganize the Commission on Elections," in so far as they are
not
inconsistent herewith, are hereby made applicable to the election
provided
for in this Act."
[60]
Republic Act 4913 [1967].
[61]Section 3 of Republic Act 4913 reads thus: "The provisions of Republic
Act Numbered One hundred eighty, as amended, insofar as they are not
inconsistent
herewith, are made applicable to the election provided for in this
Act."
It is to be remembered that in the plebiscite held, the two proposals
last.
Cf. on this point, Gonzales v. Commission on Elections, L-28196, Nov.
9,
1967, 21 SCRA 774.
[62]
The 1935 Constitution provides: "The Philippines is a republican state.
Sovereignty resides in the people and all government authority emanates
from them." Article II, Section 1.
[63]
Laski, Grammar of Politics, 4th ed., 34 [1937].
[64]
Mclver, The Web of Government, 84 [1947].
[65]
Corwin, The Higher Law Background of American Constitutional Law, in 1
Selected Essays on Constitutional Law 3 [1938].
[66]
92 Ky. 589, 18 SW 522.
[67]
Ibid., 523.
[68]
101 Va. 829, 44 SE 754.
[69]
Ibid., 755. A similar approach may be noted in Arie v. State, 23 Okl.
166,
100 P. 23 [1909] and Hammond v. Clark, 136 Ga. 313, 71 SE 479 [1911].
[70]
Araneta v. Dinglasan. 84 Phil. 368 [1949].
[71]
Cardozo, The Nature of the Judicial Process, 141 [1921].
TEEHANKEE, J.,
Dissenting:
[1]Section 1, which is the lone Section of Art. XV; emphasis supplied.
[2]
Article XVII, Section 16, proposed Constitution of Nov. 30,1972;
emphasis
supplied.
[3]
All quotations from respondents' memo of arguments dated March 2, 1973,
pp. 2-5; emphasis supplied.
[4]
Respondents' memo dated March 2, 1973, p. 8; emphasis supplied.
[5]
Gonzales vs. Comelec, 21 SCRA 774 [No. 9, 1967].
[6]
Tolentino vs. Comelec, 41 SCRA 702 [Oct. 16, 1971].
[7]
Resolution on motion for reconsideration in Tolentino Comelec, L-34150;
dated Nov. 4, 1971, at page 3, per Barredo, J. with seven Justices
concurring;
emphasis supplied.
[8]
Idem, at page 4, emphasis supplied.
[9]
Joint opinion of JJ. Makalintal and Castro, p. 153.
[10]
Article X, Sec. 1 of the Constitution entrusts "exclusive charge" of
the
conduct of elections to the Comelec. See also the Election Code of 1971.
[11]
Araneta vs. Dinglasan [L-2044]; Araneta vs. Angeles [L-2756]; Rodriguez
vs. Treasurer [L-3054]; Guerrero vs. Commissioner of Customs; and
Barredo
vs. Comelec [L-3056], jointly decided and reported in 84 Phil. 368.
[12]
Idem, at pp. 384-385; emphasis supplied.
[13]
Idem, at p. 437.
[14]
Idem, at pp. 435-437.
[15]
Idem, at p. 383. Justice Tuason further duly noted that "These
observations,
though beyond the issue as formulated in this decision, may, We trust,
also serve to answer the vehement plea that for the good of the Nation,
the President should retain his extraordinary powers as long as turmoil
and other ills directly or indirectly traceable to the late war harass
the Philippines."
[16]
Petitioner Monteclaro's notes of oral argument dated February 23, 1973,
p. 2, and Annex A thereof.
[17]
State vs. Powell, 77 Miss. 543, 27 south 927.
[18]
Cooley's Constitutional Limitations, 8th Ed., Vol. I, p. 81.
[19]
Article XV, sec. 1, Constitution.
[20]
Article V, sec. 1, Constitution.
[21]
Article X, sec. 2, Constitution.
[22]
Respondents' Memo dated March 2, 1973, p. 5.
[23]
Respondents' Comment dated Feb. 3, 1973, p. 67.
[24]
Idem, at p. 46; note in parentheses supplied.
[25]
1 Cranch 137 [1803].
[26]
63 Phil. 134 [1936].
[27]
4 Wheaton 316 [1819].
[28]
Dean Pollak's "The Constitution and the Supreme Court", Vol. 1, p. 221.
[29]
Justice Felix Frankfurter, Of Law and Men [1956], p. 5.
[30]
Tolentino vs. Comelec L-34150; decision of October 16, 1971, per
Barredo,
J. at p. 8.
[30a]
Con-Con Res. No. 1 proposing the urgent lowering of the voting age to
enfranchise
the 18-year olds retained the "permissive" language of section 1, Art.
V. Thus, the proposed amendment read "Section 1. Suffrage may be
exercised
by [male] citizens of the Philippines not otherwise disqualified by
law,
who are (twenty one) EIGHTEEN years of age or over and are able to read
and write."
[31]
Resolution of Nov. 4, 1971, per Barredo, J. at p. 15.
[32]
Decision of Oct. 16, 1971, at p. 21.
[33]
21 SCRA 774 [Nov. 9, 1967].
[34]
Decision of Oct. 16, 1971, at p. 24.
[35]
Reyes, J.B.L. [now retired], Zaldivar, Castro and Makasiar, JJ.
[36]
Idem, at pp. 1-2.
[37]
Idem, at p. 3.
[38]
Resolution of Nov. 4, 1971 in Tolentino, per Barredo, J.; pp. 3-4.
[39]
Decision of Oct. 16, 1971 in Tolentino, per Barredo, J. at p. 19.
[40]
All quotations are from the Chief Justice's concurring opinion in
Tolentino,
pp. 4-7.
[41]
Separate op. of J. Teehankee concurring in Res. of No. 4, 1971 in
Tolentino,
pp. 8, 9, 10.
[42]
This Court thus declared in Tolentino the Con-Con voting age reduction
resolution as null and void and prohibited its submittal at the 1971
elections
for lack of proper submission since it did not "provide the voter ample
basis for an intelligent appraisal of the amendment. "Doc. of October
16,
1971, per Barredo, J.
[43]
In re-Opinion of Justices, 115 N.E. Rep. 922-923.
[44]
Duncan vs. McCall, 139 U.S. 449, 35 L. Ed. 219.
[45]
"Barrios are units of municipalities or municipal districts in which
they
are situated." Rep. Act 3590, Sec. 2.
[46]
Rep. Act 3590, sec. 6, par. 1.
[47]
Idem, par. 2.
[48]
Idem, par. 3 and 4, emphasis supplied.
[49]
One barrio lieutenant and six barrio councilmen; "Voting shall be by
secret
ballot." idem, sec. 8.
[50]
Idem, Sec. 10, italics supplied. The same section further disqualifies
persons convicted by final judgment to suffer one year or more of
imprisonment
"within two years after service" or who have violated their allegiance
to the Republic and insane or feeble-minded persons.
[51]
Supra, p. 2.
[52]
Rizal, Cavite, Bataan, Camarines Sur and Negros Occidental,
petitioners'
manifestation and supplemental rejoinder dated March 21, 1973 in
L-36165.
[53]
Respondents' Rejoinder dated March 20, 1973 and Sur-Rejoinder dated
March
29, 1973.
[54]
Under Proclamation No. 1103 dated Jan. 17, 1973, it is recited that
"fourteen
million nine hundred seventy six thousand five hundred sixty one
[14,976,561]
members of all the Barangays voted for the adoption of the proposed
Constitution,
as against seven hundred forty-three thousand eight hundred sixty nine
[743,869] who voted for its rejection; but a majority of those who
approved
the new Constitution conditioned their votes on the demand that the
interim
National Assembly provided in its Transitory Provisions should not be
convened."
[55]
Respondents' Memo dated March 2, 1973, supra, p. 2.
[56]
As restated by Barredo, J. in his separate op. in the plebiscite cases,
who, however, did not look on the same with favor, since the
constitutional
point [that the Comelec has exclusive charge of the conduct of
elections
and plebiscites] seems to have been overlooked in the Assemblies."
[57]
Convention Minutes of Nov. 22, 1972 submitted as Annex A of
petitioner-delegate
Sedfrey A. Ordoñez et al. in the plebiscite case L-359042, par.
12 of petition and admitted in par. 4 of answer of therein respondents
dated Dec. 15, 1972.
ANTONIO, J.,
Concurring:
[*]
First decision promulgated by First Division of the Supreme Court.
[1]
"When a house is completely demolished and another is erected on the
same
location, do you have a changed, repaired and altered house, or do you
have a new house? Some of the material contained in the old house may
be
used again, some of the rooms may be constructed the same, but this
does
not alter the fact that you have altogether another or a new house. We
conclude that the instrument as contained in Ga. L. 1945, pp. 8 to 89,
inclusive, is not an amendment to the constitution of 1877; but on the
contrary it is a completely revised or new Constitution." [Wheeler v.
Board
of Trustees, 37 S.E. 2d 322, 327].
"Every proposal
which
affects a change in a Constitution or adds or takes away from it is an
"amendment', while a "revision" implies a re-examination and statement
of the Constitution, or some part of it, in a corrected or improved
form."
[Const. Secs. 196, 197, Staples v. Gilmer, 33 S.E. 2d 49, 53 183 Va.
613].
"Amendment" and
"revision"
of constitution are separate procedures each having a substantial field
of application not mere alternative procedures in the same field."
[McFadden
v. Jordan, 196 P. 2d 787, 797 32 Cal. 2d 330].
[2]
Cf. Sections 1 and 2 of Article XIV, Constitution of Minnesota in
Appendix.
[3]
Baker v. Carr, 369 U.S. 186; 7 L. ed. 663.
[4]
Cf. State Constitutions of Alaska, California, Delaware, Florida,
Michigan,
Minnesota, Nevada, New Hampshire, Oklahoma, Oregon, Utah and Wyoming in
Appendix to this opinion.
[*]
Leon O. Ty, Seven Months of Martial Law, Daily Express.
[*]
Panorama, May 6, 1973.
[5]
"A written constitution is susceptible of change in two ways: by
revolution,
which implies action not pursuant to any provision of the constitution
itself; and by revision, which implies action pursuant to some
procedural
provision in the constitution. This distinction is concerned with the
quare
and not with the quantum of change. It may be significant, however,
that
the alleged alteration does or does not purport to affect the existence
of the court itself. In the nature of things, a revolutionary charge
does
not admit judicial power as such to determine the fact of its
occurrence.
If a revolutionary constitution sets up a court differently constituted
from the pre-revolutionary court, neither tribunal is confronted with a
substantial problem, for neither can deny the act by which it was
created
without denying the fact of its creation. Thus, the Supreme Court in
Luther
v. Borden [supra] uses language substantially parallel with what has
been
indicated above as logical explanation of the Duke of York's case. For
the court to give serious judicial consideration to such a question
would
present "the singular spectacle of a court sitting as a court to
declare
that we are not a court." (Brittle v. People, 2 Neb. 198, 214 [1873]).
And even the alleged new Constitution purports to leave intact the
former
court and to permit its work to go on without hiatus, the decision
which
the judges must make is still an individual choice to be made by them
as
a matter of practical politics. Two commissions are being held out to
them,
and if they will act as a court, they must assess under which
commission
they are acting. To put the matter another way, it must be true that in
the first case above, of two constitutions purporting to establish two
different courts, the men who were judges under the old regime
and
the men who are called to be judges under the new have each to decide
as
individuals what they are to do; and it may be that they choose at
grave
peril with the factional outcome still uncertain. And, although it is
equally
obvious, the situation is logically identical where the same men are
nominated
to constitute the court under both the old and new constitution, at a
time
when the alleged change is occurring, if it is peaceably and against a
placid popular background. Men under such circumstances may write most
praiseworthily principles of statesmanship, upon sovereignty and, its
nature,
modes of action, and upon the bases of government, to justify the
choice
between the two commissions. They can assert their choice in the course
of purported judicial action. But they cannot decide as a court, for
the
decision, once made, by a retroactive hypothesis excludes any
assumption
of controversiality in the premises
"Where the
alleged
change
occurs not through revolutionary measures but through what has been
called
revision, these logical difficulties disappear in one aspect, but
become
far more embarrassing in another. Where the alteration purports to be
made
along the lines of a procedural method laid down in the constitution,
there
is a standard which the court can apply and, by so doing, it can
perceive
judicially whether or not the change has followed the prescribed lines.
If it has, there is no difficulty in pronouncing as a matter of law its
accomplishment. Only one exception is possible, namely, the case where
the alteration purports at once to abolish the court or to depose its
personnel.
Then, although there would be a question of law to be decided, it may
be
wondered who there is to decide it. Suppose, however, the mode of
change
has failed in some way to conform to a directory provision of the
amending
clause of the constitution; is the court to declare the attempt at
alteration
unsuccessful? It would seem, as a matter of law, that it must do so;
and
yet what is the situation if the proponents of the change say, "It is
true
that this measure failed under the amending clause, but as a
revolutionary
measure it was a success and we insist upon its recognition." Clearly
the
members of the court are now more badly than ever entangled in the
logical
difficulties which attend a purported judicial pronouncement upon the
achievement
or non-achievement of revolutionary change. For the temptation will be
great to treat the matter as a legal question. The times are peaceful.
The changes probably do no affect the tenure of many offices of any
branch
of the government. The popular inertia is likely to allow the court
successfully
to assume the question to be one of law. The path of fallacy is not too
strikingly fallacious to the uncritical observer. It may lead to just
results.
The judges' personal inclinations will be to show deference to the
expression
of popular sentiment which has been given. And yet, if they declare the
change in force, they are truly making a personal declaration that they
believe the change to be the directly expressed will of the sovereign,
which will they assert to be law, but the fact of existence of which
will
and this is the real decision is not ascertainable in the given
case
by any legal means. It is submitted that this is true, and that the
conclusions
offered in the discussion of revolutionary change are true, also,
whether
the quantum of change involved be vast or almost negligible.
"The net result
of the
preceding discussion is this: that in almost the whole field of
problems
which the Duke of York's case and the American constitutional amendment
cases presented, the court as a court is precluded from passing upon
the
fact of change by a logical difficulty which is not to be surmounted.
It
follows that there is no room for considering whether the court ought
graciously
and deferentially to look to the executive or legislative for a
decision
that a change has or has not taken place."
[6 and 7]
Ibid., pp. 301, 305.
APPENDIX TO OPINION
The inclusion in the Appendix
of provisions for Amendment and Revision in State Constitutions,
adopted
after 1935, is only to stress the fact that the distinction between
Amendment
and Revision of Constitution, which existed at the time of the adoption
of the 1935 Constitution, has continued up to the present.
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