Javellana vs.

The Executive Secretary The Facts: Sequence of events that lead to the filing of the Plebiscite then Ratification Cases.

The Plebiscite Case On March 16, 1967, Congress of the Philippines passed Resolution No. 2, which was amended by R e s o l u t i o n N o . 4 o f s a i d b o d y , a d o p t e d o n J u n e 1 7 , 1 9 6 9 , c a l l i n g a C o n v e n t i o n t o p r o p o s e amendments to the Constitution of the Philippines. Said Resolution No. 2, as amended, was implemented by Republic Act No. 6132, approved on August24, 1970, pursuant to the provisions of which the election of delegates to the said Convention was held on November 10, 1970, and the 1971 Constitutional Convention began to perform its functions on June 1, 1971. While the Convention was in session on September 21, 1972, the President issued Proclamation No.1081 placing the entire Philippines under Martial Law. On November 29, 1972, the Convention approved its Proposed Constitution of the Republic of the Philippines. The next day, November 30, 1972, the President of the Philippines issued Presidential Decree No. 73, "submitting to the Filipino people for ratification or rejection the Constitution of the Republic of the Philippines proposed by the 1971 Constitutional Convention, and appropriating funds therefor," as well as setting the plebiscite for said ratification or rejection of the Proposed Constitution on January 15, 1973. On December 7, 1972, Charito Planas filed a case against the Commission on Elections, the Treasurer o f t h e Philippines and the Auditor General, to enjoin said "respondents or their a g e n t s f r o m implementing Presidential Decree No. 73, in any manner, until further orders of the Court," upon the grounds, inter alia, that said Presidential Decree "has no force and effect as law because the calling ...of such plebiscite, the setting of guidelines for the conduct of the same, the prescription of the ballots to be used and the question to be answered by the voters, and the appropriation of public funds for the p u r p o s e , a r e , b y t h e C o n s t i t u t i o n , l o d g e d e x c l u s i v e l y i n C o n g r e s s . . . , " a n d " t h e r e i s n o p r o p e r submission to the people of said Proposed Constitution set for January 15, 1973, there being no freedom of speech, press and assembly, and there being no sufficient time to inform the people of the contents thereof." On December 17, 1972, the President had issued an order temporarily suspending the effects of Proclamation No. 1081, for the purpose of free and open debate on the Proposed Constitution. On December 23, the President announced the postponement of the plebiscite for the ratification or rejection of the Proposed Constitution. No formal action to this effect was taken until January 7, 1973,when General Order No. 20 was issued, directing "that the plebiscite scheduled to be held on January15, 1978, be postponed until further notice." Said General Order No. 20,

moreover, "suspended in themeantime" the "order of December 17, 1972, temporarily suspending the effects of Proclamation No.1081 for purposes of free and open debate on the proposed Constitution."Because of these events relative to the postponement of the aforementioned plebiscite, the Courtdeemed it fit to refrain, for the time being, from deciding the aforementioned cases, for neither the datenor the conditions under which said plebiscite would be held were known or announced officially. Then,again, Congress was, pursuant to the 1935 Constitution, scheduled to meet in regular session onJanuary 22, 1973, and since the main objection to Presidential Decree No. 73 was that the Presidentdoes not have the legislative authority to call a plebiscite and appropriate funds therefor, whichCongress unquestionably could do, particularly in view of the formal postponement of the plebiscite bythe President reportedly after consultation with, among others, the leaders of Congress and theCommission on Elections the Court deemed it more imperative to defer its final action on these cases. "In the afternoon of January 12, 1973, the petitioners in Case G.R. No. L-35948 filed an "urgentmotion," praying that said case be decided "as soon as possible, preferably not later than January 15,1973."The next day, January 13, 1973, which was a Saturday, the Court issued a resolution requiring therespondents in said three (3) cases to comment on said "urgent motion" and "manifestation," "not later than Tuesday noon, January 16, 1973." Prior thereto, or on January 15, 1973, shortly before noon, thepetitioners in said Case G.R. No. L-35948 riled a "supplemental motion for issuance of restraining order and inclusion of additional respondents," praying:"... that a restraining order be issued enjoining and restraining respondent Commission on Elections, aswell as the Department of Local Governments and its head, Secretary Jose Roo; the Department of Agrarian Reforms and its head, Secretary Conrado Estrella; the National Ratification CoordinatingCommittee and its Chairman, Guillermo de Vega; their deputies, subordinates and substitutes, and allother officials and persons who may be assigned such task, from collecting, certifying, and announcinga n d r e p o r t i n g t o t h e P r e s i d e n t o r o t h e r o f f i c i a l s c o n c e r n e d , t h e s o - c a l l e d C i t i z e n s ' A s s e m b l i e s referendum results allegedly obtained when they were supposed to have met during the periodcomprised between January 10 and January 15, 1973, on the two questions quoted in paragraph 1 of this Supplemental Urgent Motion."On the same date January 15, 1973 the Court passed a resolution requiring the respondents in saidcase G.R. No. L-35948 to file "file an answer to the said motion not later than 4 P.M., Tuesday, January16, 1973," and setting the motion for hearing "on January 17, 1973, at 9:30 a.m." While the case wasbeing heard, on the date last mentioned, at noontime, the Secretary of Justice called on the writer of t h i s o p i n i o n a n d s a i d t h a t , u p o n i n s t r u c t i o n s o f t h e P r e s i d e n t , h e ( t h e S e c r e t a r y o f J u s t i c e ) w a s delivering to him (the writer) a copy of Proclamation No. 1102, which had just been signed by thePresident. Thereupon, the writer returned to the Session Hall and announced to the Court, the partiesin G.R. No. L-35948 inasmuch as the hearing in connection therewith was still going on and the publicthere present that the President had, according to information conveyed by the Secretary of Justice,signed said Proclamation No. 1102, earlier that morning.Thereupon, the writer read Proclamation No. 1102 which is of the following tenor: ____________________________ "BY THE PRESIDENT OF THE PHILIPPINES"PROCLAMATION NO. 1102" A N N O U N C I N G T H E R A T I F I C A T I O N B Y T H E F I L I P I N O P E O P L E O F T H E C O N S T I T U T I O N PROPOSED BY THE 1971 CONSTITUTIONAL CONVENTION." W H E R E A S , t h e C o n s t i t u t i o n p r o p o s e d b y t h e n i n e t e e n h u n d r e d s e v e n t y - o n e C o n s t i t u t i o n a l Convention is subject to ratification by the Filipino people;"WHEREAS, Citizens Assemblies were created in barrios, in municipalities and in

districts/wards inchartered cities pursuant to Presidential Decree No. 86, dated December 31, 1972, composed of allpersons 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 bythe barrio, district or ward secretary;"WHEREAS, the said Citizens Assemblies were established precisely to broaden the base of citizenparticipation in the democratic process and to afford ample opportunity for the citizenry to express their views on important national issues;"WHEREAS, responding to the clamor of the people and pursuant to Presidential Decree No. 86-A,d a t e d J a n u a r y 5 , 1 9 7 3 , t h e f o l l o w i n g q u e s t i o n s w e r e p o s e d b e f o r e t h e C i t i z e n s A s s e m b l i e s o r Barangays: Do you approve of the New Constitution? Do you still want a plebiscite to be called to ratifythe new Constitution?"WHEREAS, fourteen million nine hundred seventy-six thousand five hundred sixtyone (14,976,561)m e m b e r s o f a l l t h e B a r a n g a ys ( C i t i z e n s A s s e m b l i e s ) v o t e d f o r t h e a d o p t i o n o f t h e p r o p o s e d Constitution, as against seven hundred forty-three thousand eight hundred sixty-nine (743,869) whovoted 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 eighthundred fourteen (14,298,814) answered that there was no need for a plebiscite and that the vote of the Barangays (Citizens Assemblies) should be considered as a vote in a plebiscite;" W H E R E A S , since the referendum results show that more than ninety-five (95) per cent o f t h e members of the Barangays (Citizens Assemblies) are in favor of the new Constitution, the Katipunan ngMga Barangay has strongly recommended that the new Constitution should already be deemed ratifiedby the Filipino people;"NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of thepowers in me vested by the Constitution, do hereby certify and proclaim that the Constitution proposedby the nineteen hundred and seventy-one (1971) Constitutional Convention has been ratified by ano v e r w h e l m i n g m a j o r i t y o f a l l o f t h e v o t e s c a s t b y t h e m e m b e r s o f a l l t h e B a r a n g a ys ( C i t i z e n s 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 thePhilippines to be affixed."Done in the City of Manila, this 17th day of January, in the year of Our Lord, nineteen hundred andseventy-three.(Sgd.) FERDINAND E. MARCOS"President of the Philippines"By the President:"ALEJANDRO MELCHOR"Executive Secretary" _________________________________ The Ratification Case On January 20, 1973, Josue Javellana filed Case G.R. No. L-36142 against the Executive Secretaryand the Secretaries of National Defense, Justice and Finance, to restrain said respondents "and their subordinates or agents from implementing any of the provisions of the propose Constitution not foundin the present Constitution" referring to that of 1935. The petition therein, filed by Josue Javellana, as a"Filipino citizen, and a qualified and registered voter" and as "a class suit, for himself, and in behalf of all citizens and voters similarly situated," was amended on or about January 24, 1973. After reciting insubstance the facts set forth in the decision in the plebiscite cases, Javellana alleged that the Presidenthad announced "the immediate implementation of the New Constitution, thru his Cabinet, respondentsincluding," and that the latter "are acting without, or in excess of jurisdiction in implementing the saidproposed Constitution" upon the ground: "that the President, as Commander-in-Chief of the ArmedForces of the Philippines, is without authority to create the Citizens Assemblies"; that the same "arewithout power to approve the proposed Constitution ..."; "that the President is without power to proclaimthe ratification by the Filipino

people of the proposed Constitution"; and "that the election held to ratifythe proposed Constitution was not a free election, hence null and void." The Issue: 1. Is the issue of the validity of Proclamation No. 1102 a justiciable, or political and therefore non- justiciable, question?2. Has the Constitution proposed by the 1971 Constitutional Convention been ratified validly (withs u b s t a n t i a l , i f n o t s t r i c t , compliance) conformably to the applicable constitutional and s t a t u t o r y provisions?3. Has the aforementioned proposed Constitution acquiesced in (with or without valid ratification) by thepeople? (acquiesced - "permission" given by silence or passiveness. Acceptance or agreement bykeeping quiet or by not making objections.)4. Are petitioners entitled to relief?5. Is the aforementioned proposed Constitution in force? The Resolution: Summary: The court was severely divided on the following issues raised in the petition: but when the crucialquestion of whether the petitioners are entitled to relief, six members of the court (Justices Makalintal,Castro, Barredo, Makasiar, Antonio and Esguerra) voted to dismiss the petition. Concepcion, together Justices Zaldivar, Fernando and Teehankee, voted to grant the relief being sought, thus upholding the1973 Constitution. Details: 1. Is the issue of the validity of Proclamation No. 1102 a justiciable, or political and thereforenon-justiciable, question? On the first issue involving the political-question doctrine Justices M a k a l i n t a l , Z a l d i v a r , C a s t r o , Fernando, Teehankee and myself, or six (6) members of the Court, hold that the issue of the validity of Proclamation No. 1102 presents a justiciable and non-political question. Justices Makalintal and Castrodid not vote squarely on this question, but, only inferentially, in their discussion of the second question.Justice Barredo qualified his vote, stating that "inasmuch as it is claimed there has been approval bythe people, the Court may inquire into the question of whether or not there has actually been such anapproval, and, in the affirmative, the Court should keep hands-off out of respect to the people's will, but,in negative, the Court may determine from both factual and legal angles whether or not Article XV of the1935 Constitution been complied with." Justices Makasiar, Antonio, Esguerra, or three (3) members of the Court hold that the issue is political and "beyond the ambit of judicial inquiry." 2. Has the Constitution proposed by the 1971 Constitutional Convention been ratified validly(with substantial, if not strict, compliance) conformably to the applicable constitutional andstatutory provisions? On the second question of validity of the ratification, Justices Makalintal, Zaldivar, Castro, Fernando,Teehankee and myself, or six (6) members of the Court also hold that the Constitution proposed by the1971 Constitutional Convention was not validly ratified in accordance with Article XV, section 1 of the1935 Constitution, which provides only one way for ratification, i.e., "in an election or plebiscite held inaccordance with law and participated in only by qualified and duly registered voters.Justice Barredo qualified his vote, stating that "(A)s to whether or not the 1973 Constitution has beenvalidly ratified pursuant to Article XV, I still maintain that in the light of traditional concepts regarding themeaning and intent of said Article, the referendum in the Citizens' Assemblies, specially in the manner the votes therein were cast, reported and canvassed, falls short of the requirements thereof. In view,however, of the fact that I have no means of refusing to recognize as a judge that factually there wasvoting and that the majority of the

votes were for considering as approved the 1973 Constitution withoutthe necessity of the usual form of plebiscite followed in past ratifications, I am constrained to hold that,in the political sense, if not in the orthodox legal sense, the people may be deemed to have cast their favorable votes in the belief that in doing so they did the part required of them by Article XV, hence, itmay be said that in its political aspect, which is what counts most, after all, said Article has beensubstantially complied with, and, in effect, the 1973 Constitution has been constitutionally ratified."Justices Makasiar, Antonio and Esguerra, or three (3) members of the Court hold that under their viewthere has been in effect substantial compliance with the constitutional requirements for valid ratification. 3. Has the aforementioned proposed Constitution acquiesced in (with or without validr a t i f i c a t i o n ) b y t h e p e o p l e ? On the third question of acquiescence by the Filipino people in the a f o r e m e n t i o n e d p r o p o s e d Constitution, no majority vote has been reached by the Court.