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G.R. No. L-35925, January 22, 1973,
♦ Decision, Concepcion, [CJ]
♦ Separate Opinion, Makalintal, Castro, Teehankee, Antonio, Esguerra, Fernando, Barredo, Zaldivar [JJ]

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Manila

EN BANC

 

G.R. No. L-35925 January 22, 1973

CHARITO PLANAS, petitioner,
vs.
COMMISSION ON ELECTIONS, et al., respondents.

G.R. No. L-35929 January 22, 1973

PABLO C. SANIDAD, petitioner,
vs.
COMMISSION ON ELECTIONS, et al., respondents.

G.R. No. L-35940 January 22, 1973

GERARDO ROXAS, etc., et al. petitioners,
vs.
COMMISSION ON ELECTIONS, et al., respondents.

G.R. No. L-35941 January 22, 1973

EDDIE B. MONTECLARO, petitioner,
vs.
THE COMMISSION ON ELECTIONS, et al., respondents.

G.R. No. L-35942 January 22, 1973

SEDFREY A. ORDOÑEZ, et al., petitioners,
vs.
THE NATIONAL TREASURER OF THE PHILIPPINES, et al., respondents.

G.R. No. L-35948 January 22, 1973

VIDAL TAN, et al., petitioners,
vs.
COMMISSION ON ELECTIONS, et al., respondents.

G.R. No. L-35953 January 22, 1973

JOSE W. DIOKNO, et al., petitioners,
vs.
THE COMMISSION ON ELECTIONS, respondents.

G.R. No. L-35961 January 22, 1973

JACINTO JIMENEZ, petitioner,
vs.
COMMISSION ON ELECTIONS, et al., respondents.

G.R. No. L-35965 January 22, 1973

RAUL M. GONZALES, petitioner,
vs.
THE HONORABLE COMMISSION ON ELECTIONS, et al., respondents.

G.R. No. L-35979 January 22, 1973

ERNESTO HIDALGO, petitioner,
vs.
COMMISSION ON ELECTIONS, et al., respondents.

Ramon A. Gonzales for petitioner Charito Planas.

Pablito V. Sanidad and Gerardo L. Catipon for petitioner Pablo C. Sanidad.

Jovito R. Salonga and Associates and Rodrigo Law Office for petitioners Gerardo Roxas, etc., et al.

Quijano and Arroyo for petitioner Eddie B. Monteclaro.

Sedfrey A. Ordonez and Associates for petitioners Sedfrey A. Ordonez, et al.

Lorenzo M. Tañada for petitioners Vidal Tan, et al.

Francis E. Garchitorena for petitioners Jose W. Diokno, et al.

Jacinto Jimenez in his own behalf.

Raul M. Gonzales in his own behalf.

Ernesto Hidalgo in his own behalf.

Office of the Solicitor General Estelito P. Mendoza, Assistant Solicitor General Conrado T. Limcaoco, Solicitor Vicente V. Mendoza and Solicitor Reynato S. Puno for respondents.

CONCEPCION, C.J.:

On March 16, 1967, Congress of the Philippines passed Resolution No. 2, which was amended by Resolution No. 4 of said body, adopted on June 17, 1969, calling a Convention to propose amendments to the Constitution of the Philippines. Said Resolution No. 2, as amended, was implemented by Republic Act No. 6132, approved on August 24, 1970, pursuant to the provisions of which the election of delegates to said Convention was held on November 10, 1970, and the 1971 Constitutional Convention began to perform its functions on June 1, 1971. While the Convention was in session on September 21, 1972, the President issued Proclamation No. 1081 placing the entire Philippines under Martial Law. On November 29, 1972, the Convention approved its Proposed Constitution of the Republic of the Philippines. The next day, November 30, 1972, the President of the Philippines issued Presidential Decree No. 73, "submitting to the Filipino people for ratification or rejection the Constitution of the Republic of the Philippines proposed by the 1971 Constitutional Convention, and appropriating funds therefor," as well as setting the plebiscite for said ratification or rejection of the Proposed Constitution on January 15, 1973.

Soon after, or on December 7, 1972, Charito Planas filed, with this Court, Case G. R. No. L-35925, against the Commission on Elections, the Treasurer of the Philippines and the Auditor General, to enjoin said "respondents or their agents from implementing Presidential Decree No. 73, in any manner, until further orders of the Court," upon the grounds, inter alia, that said Presidential Decree "has no force and effect as law because the calling ... of such plebiscite, the setting of guidelines for the conduct of the same, the prescription of the ballots to be used and the question to be answered by the voters, and the appropriation of public funds for the purpose, are, by the Constitution, lodged exclusively in Congress ...," and "there is no proper submission to the people of said Proposed Constitution set for January 15, 1973, there being no freedom of speech, press and assembly, and there being no sufficient time to inform the people of the contents thereof."

Substantially identical actions were filed, on December 8, 1972, by Pablo C. Sanidad against the Commission on Elections (Case G.R. No. L-35929); on December 11, 1972, by Gerardo Roxas, et al., against the Commission on Elections, the Director of Printing, the National Treasurer and the Auditor General (Case G.R. No. L-35940), by Eddie B. Monteclaro against the Commission on Elections and the Treasurer of the Philippines (Case G.R. No. L-35941), and by Sedfrey A. Ordoñez, et al. against the National Treasurer and the Commission on Elections (Case G.R. No. L-35942); on December 12, 1972, by Vidal Tan, et al., against the Commission on Elections, the Treasurer of the Philippines, the Auditor General and the Director of Printing (Case G.R. No. L-35948), and by Jose W. Diokno and Benigno S. Aquino against the Commission on Elections (Case G.R. No. L-35953); on December 14, 1972, by Jacinto Jimenez against the Commission on Elections, the Auditor General, the Treasurer of the Philippines and the Director of the Bureau of Printing (Case G.R. No. L-35961), and by Raul M. Gonzales against the Commission on Elections, the Budget Commissioner, the National Treasurer and the Auditor General (Case G. R. No. L-35965); and on December 16, 1972, by Ernesto C. Hidalgo against the Commission on Elections, the Secretary of Education, the National Treasurer and the Auditor General (Case G.R. No. L-35979).

In all these cases, except the last (G.R. No. L-35979), the respondents were required to file their answers "not later than 12: 00 (o'clock) noon of Saturday, December 16, 1972." Said cases were, also, set for hearing and partly heard on Monday, December 18, 1972, at 9:30 a.m. The hearing was continued on December 19, 1972. By agreement of the parties, the aforementioned last case - G.R. No. L-35979 — was, also, heard, jointly with the others, on December 19, 1972. At the conclusion of the hearing, on that date, the parties in all of the aforementioned cases were given a short period of time within which "to submit their notes on the points they desire to stress." Said notes were filed on different dates, between December 21, 1972, and January 4, 1973.

Meanwhile, or on December 17, 1972, the President had issued an order temporarily suspending the effects of Proclamation No. 1081, for the purpose of free and open debate on the Proposed Constitution. On December 23, the President announced the postponement of the plebiscite for the ratification or rejection of the Proposed Constitution. No formal action to this effect was taken until January 7, 1973, when General Order No. 20 was issued, directing "that the plebiscite scheduled to be held on January 15, 1973, be postponed until further notice." Said General Order No. 20, moreover, "suspended in the meantime" the "order of December 17, 1972, temporarily suspending the effects of Proclamation No. 1081 for purposes of free and open debate on the proposed Constitution."

In view of these events relative to the postponement of the aforementioned plebiscite, the Court deemed it fit to refrain, for the time being, from deciding the aforementioned cases, for neither the date nor the conditions under which said plebiscite would be held were known or announced officially. Then, again, Congress was, pursuant to the 1935 Constitution, scheduled to meet in regular session on January 22, 1973, and since the main objection to Presidential Decree No. 73 was that the President does not have the legislative authority to call a plebiscite and appropriate funds therefor, which Congress unquestionably could do, particularly in view of the formal postponement of the plebiscite by the President — reportedly after consultation with, among others, the leaders of Congress and the Commission on Elections — the Court deemed it more imperative to defer its final action on these cases.

In the afternoon of January 12, 1973, the petitioners in Case G.R. No. L-35948 filed an "urgent motion," praying that said case be decided "as soon as possible, preferably not later than January 15, 1973." It was alleged in said motion, inter alia:

6. That the President subsequently announced the issuance of Presidential Decree No. 86 organizing the so-called Citizens Assemblies, to be consulted on certain public questions [Bulletin Today, January 1, 1973];

7. That thereafter it was later announced that "the Assemblies will be asked if they favor or oppose —

"[1] The New Society;

"[2] Reforms instituted under Martial Law;

"[3] The holding of a plebiscite on the proposed new Constitution and when (the tentative new date given following the postponement of the plebiscite from the original date of January 15 are February 19 and March 5);

"[4] The opening of the regular session slated on January 22 in accordance with the existing Constitution despite Martial Law." [Bulletin Today, January 3, 1973.]

8. That it was later reported that the following are to be the forms of the questions to be asked to the Citizens Assemblies: —

"[1] Do you approve of the New Society?

"[2] Do you approve of the reform measures under martial law?

"[3] Do you think that Congress should meet again in regular session?

"[4] How soon would you like the plebiscite on the new Constitution to be held?" [Bulletin Today, January 5, 1973;

9. That the voting by the so-called Citizens Assemblies was announced to take place during the period from January 10 to January 15, 1973;

10 That on January 10, 1973, it was reported that one more question would be added to the four (4) questions previously announced, and that the forms of the questions would be as follows: —

"[1] Do you like the New Society?

"[2] Do you like the reforms under martial law?

"[3] Do you like Congress again to hold sessions?

"[4] Do you like the plebiscite to be held later?

"[5] Do you like the way President Marcos is running the affairs of the government?" [Bulletin Today, January 10, 1973; additional question emphasis.]

11. That on January 11, 1973, it was reported that six (6) more questions would be submitted to the so-called Citizens Assemblies: —

"[1] Do you approve of the citizens assemblies as the base of popular government to decide issues of national interests?

"[2] Do you approve of the new Constitution?

"[3] Do you want a plebiscite to be called to ratify the new Constitution?

"[4] Do you want the elections to be held in November, 1973 in accordance with the provisions of the 1935 Constitution ?

"[5] If the elections would not be held, when do you want the next elections to be called?

"[6] Do you want martial law to continue?" [Bulletin Today, January 11, 1973; emphasis supplied.]

12. That according to reports, the returns with respect to the six (6) additional questions quoted above will be on a form similar or identical to Annex "A" hereof;

13. That attached to page 1 of Annex "A" is another page, which we marked as Annex "A-1", and which reads: —

"COMMENTS ON

QUESTION No. 1

In order to broaden the base of citizens' participation in government.

QUESTION No. 2

But we do not want the Ad Interim Assembly to be convoked. Or if it is to be convened at all, it should not be done so until after at least seven (7) years from the approval of the New Constitution by the Citizens Assemblies.

QUESTION No. 3

The vote of the Citizens Assemblies should already be considered the plebiscite on the New Constitution.

If the Citizens Assemblies approve of the New Constitution, then the new Constitution should be deemed ratified.

QUESTION No. 4

We are sick and tired of too frequent elections. We are fed up with politics, of so many debates and so much expenses.

QUESTION No. 5

Probably a period of at least seven (7) years moratorium on elections will be enough for stability to be established in the country, for reforms to take root and normalcy to return.

QUESTION No. 6

We want President Marcos to continue with Martial Law. We want him to exercise his powers with more authority. We want him to be strong and firm so that he can accomplish all his reform programs and establish normalcy in the country. If all other measures fail, we want President Marcos to declare a revolutionary government along the lines of the new Constitution without the ad interim Assembly."

Attention is respectfully invited to the comments on "Question No. 3", which reads: —

"QUESTION No. 3

The vote of the Citizens Assemblies should be considered the plebiscite on the New Constitution.

If the Citizens Assemblies approve of the New Constitution, then the new Constitution should be deemed ratified.

This, we are afraid, and therefore allege, is pregnant with ominous possibilities.

14. That, in the meantime, speaking on television and over the radio, on January 7, 1973, the President announced that the limited freedom of debate on the proposed Constitution was being withdrawn and that the proclamation of martial law and the orders and decrees issued thereunder would thenceforth strictly be enforced [Daily Express, January 8, 1973];

15. That petitioners have reason to fear, and therefore state, that the question added in the last list of questions to be asked to the Citizens Assemblies, namely: —

Do you approve of the New Constitution?" —

in relation to the question following it: —

"Do you still want a plebiscite to call to ratify the new Constitution?" —

would be an attempt to by-pass and short-circuit this Honorable Court before which the question of the validity of the plebiscite on the proposed Constitution is now pending;

16. That petitioners have reason to fear, and therefore allege, that if an affirmative answer to the two questions just referred to will be reported then this Honorable Court and the entire nation will be confronted with a fait accompli which has been attained in a highly unconstitutional and undemocratic manner;

17. That the fait accompli would consist in the supposed expression of the people approving the proposed Constitution;

18. That, if such event would happen, then the case before this Honorable Court could, to all intents and purposes, become moot because, petitioners fear, and they therefore allege, that on the basis of such supposed expression of the will of the people through the Citizens Assemblies, it would be announced that the proposed Constitution, with all its defects, both congenital and otherwise, has been ratified;

19. That, in such a situation, the Philippines will be facing a real crisis and there is likelihood of confusion if not chaos, because then, the people and their officials will not know which Constitution is in force.

20. That the crisis mentioned above can only be avoided if this Honorable Court will immediately decide and announce its decision on the present petition;

21. That with the withdrawal by the President of the limited freedom of discussion on the proposed Constitution which was given to the people pursuant to Sec. 3 of Presidential Decree No. 73, the opposition of respondents to petitioners' prayer that the proposed plebiscite be prohibited has now collapsed and that a free plebiscite can no longer be held.

At about the same time, a similar prayer was made in a "manifestation" filed by the petitioners in L-35949, "Gerardo Roxas, et al. v. Commission on Elections, et al.," and L-35942, "Sedfrey A. Ordonez, et al. v. The National Treasurer, et al."

The next day, January 13, 1973, which was a Saturday, the Court issued a resolution requiring the respondents in said three (3) cases to comment on said "urgent motion" and "manifestation," "not later than Tuesday noon, January 16, 1973." Prior thereto, or on January 15, 1973, shortly before noon, the petitioners in said Case G.R. No. L-35948 filed a "supplemental motion for issuance of restraining order and inclusion of additional respondents," praying —

... that a restraining order be issued enjoining and restraining respondent Commission on Elections, as well as the Department of LocaI Governments and its head, Secretary Jose Rono; the Department of Agrarian Reforms and its head, Secretary Conrado Estrella; the National Ratification Coordinating Committee and its Chairman, Guillermo de Vega; their deputies, subordinates and substitutes, and all other officials and persons who may be assigned such task, from collecting, certifying, and announcing and reporting to the President or other officials concerned, the so-called Citizens' Assemblies referendum results allegedly obtained when they were supposed to have met during the period comprised between January 10 and January 15, 1973, on the two questions quoted in paragraph 1 of this Supplemental Urgent Motion.

In support of this prayer, it was alleged —

3. That petitioners are now before this Honorable Court in order to ask further that this Honorable Court issue a restraining order enjoining herein respondents, particularly respondent Commission on Elections as well as the Department of Local Governments and its head, Secretary Jose Rono; the Department of Agrarian Reforms and its head, Secretary Conrado Estrella; the National Ratification Coordinating Committee and its Chairman, Guillermo de Vega; and their deputies, subordinates and/or substitutes, from collecting, certifying, announcing and reporting to the President the supposed Citizens' Assemblies referendum results allegedly obtained when they were supposed to have met during the period between January 10 and January 15, 1973, particularly on the two questions quoted in paragraph 1 of this Supplemental Urgent Motion;

4. That the proceedings of the so-called Citizens' Assemblies are illegal, null and void particularly insofar as such proceedings are being made the basis of a supposed consensus for the ratification of the proposed Constitution because: —

(a) The elections contemplated in the Constitution, Article XV, at which the proposed constitutional amendments are to be submitted for ratification, are elections at which only qualified and duly registered voters are permitted to vote, whereas, the so-called Citizens' Assemblies were participated in by persons 15 years of age and older, regardless of qualifications or lack thereof, as prescribed in the Election Code;

(b) Elections or plebiscites for the ratification of constitutional amendments contemplated in Article XV of the Constitution have provisions for the secrecy of choice and of vote, which is one of the safeguards of freedom of action, but votes in the Citizens' Assemblies were open and were cast by raising hands;

(c) The Election Code makes ample provisions for free, orderly and honest elections, and such provisions are a minimum requirement for elections or plebiscites for the ratification of constitutional amendments, but there were no similar provisions to guide and regulate proceedings of the so-called Citizens' Assemblies;

(d) It is seriously to be doubted that, for lack of material time, more than a handful of the so-called Citizens' Assemblies have been actually formed, because the mechanics of their organization were still being discussed a day or so before the day they were supposed to begin functioning: —

"Provincial governors and city and municipal mayors had been meeting with barrio captains and community leaders since last Monday (January 8, 1973) to thresh out the mechanics in the formation of the Citizens' Assemblies and the topics for discussion," (Bulletin Today, January 16, 1973).

It should be recalled that the Citizens' Assemblies were ordered formed only at the beginning of the year (Daily Express, January 1, 1971), and considering the lack of experience of the local organizers of said assemblies, as well as the absence of sufficient guidelines for organizations, it is too much to believe that such assemblies could be organized at such a short notice.

5. That for lack of material time, the appropriate amended petition to include the additional officials and government agencies mentioned in paragraph 3 of this Supplemental Urgent Motion could not be completed because, as noted in the Urgent Motion of January 12, 1973, the submission of the proposed Constitution to the Citizens' Assemblies was not made known to the public until January 11, 1973. But be that as it may, the said additional officials and agencies may be properly included in the petition at bar because: —

(a) The herein petitioners have prayed in their petition for the annulment not only of Presidential Decree No. 73, but also of "any similar decree, proclamation, order or instruction"

so that Presidential Decree No. 86, insofar at least as it attempts to submit the proposed Constitution to a plebiscite by the so-called Citizens' Assemblies, is properly in issue in this case, and those who enforce, implement, or carry out the said Presidential Decree No. 86, and the instructions incidental thereto clearly fall within the scope of this petition;

(b) In their petition, petitioners sought the issuance of a writ of preliminary injunction restraining not only the respondents named in the petition but also their "agents" from implementing not only Presidential Decree No. 73, but also "any other similar decree, order, instruction, or proclamation in relation to the holding of a plebiscite on January 15, 1973 for the purpose of submitting to the Filipino people for their ratification or rejection the 1972 Draft or proposed Constitution approved by the Constitutional Convention on November 30, 1972'; and finally,

(c) Petitioners prayed for such other relief which may be just and equitable. (p. 39, Petition).

"Therefore, viewing the case from all angles, the officials and government agencies mentioned in paragraph 3 of this Supplemental Urgent Motion, can lawfully be reached by the processes of this Honorable Court by reason of this petition, considering, furthermore, that the Commission on Elections has under our laws the power, among others, of: —

"a) Direct and immediate supervision and control over national, provincial, city, municipal and municipal district officials required by law to perform duties relative to the conduct of elections on matters pertaining to the enforcement of the provisions of this Code ... ." (Election Code of 1971, Sec. 3).

6. That unless the petition at bar is decided immediately and the Commission on Elections, together with the officials and government agencies mentioned in paragraph 3 of this Supplemental Urgent Motion are restrained or enjoined from collecting, certifying, reporting or announcing to the President the results of the alleged voting of the so-called Citizens' Assemblies, irreparable damage will be caused to the Republic of the Philippines, the Filipino people, the cause of freedom and democracy, and the petitioners herein because:

(a) After the result of the supposed voting on the questions mentioned in paragraph 1 hereof shall have been announced, a conflict will arise between those who maintain that the 1935 Constitution is still in force, on the one hand, and those who will maintain that it has been superseded by the proposed Constitution, on the other, thereby creating confusion, if not chaos;

(b) Even the jurisdiction of this Court will be subject to serious attack because the advocates of the theory that the proposed Constitution has been ratified by reason of the announcement of the results of the proceedings of the so-called Citizens' Assemblies will argue that, General Order No. 3, which shall also be deemed ratified pursuant to the Transitory Provisions of the proposed Constitution, has placed Presidential Decrees Nos. 73 and 86 beyond the reach and jurisdiction of this Honorable Court.

On the same date — January 15, 1973 — the Court passed a resolution requiring the respondents in said case G.R. No. L-35948 to "file an answer to the said motion not later than 4 P.M., Tuesday, January 16, 1973," and setting the motion for hearing "on January 17, 1973, at 9:30 a.m." While the case was being heard, on the date last mentioned, at noontime, the Secretary of Justice called on the writer of this opinion and said that, upon instructions of the President, he (the Secretary of Justice) was delivering to him (the writer) a copy of Proclamation No. 1102, which had just been signed by the President. Thereupon, the writer returned to the Session Hall and announced to the Court, the parties in G.R. No. L-35948 — inasmuch as the hearing in connection therewith was still going on — and the public there present that the President had, according to information conveyed by the Secretary of Justice, signed said Proclamation No. 1102, earlier that morning. Thereupon, the writer read Proclamation No. 1102 which is of the following tenor:

BY THE PRESIDENT OF THE PHILIPPINES

PROCLAMATION NO. 1102

" ANNOUNCING THE RATIFICATION BY THE FILIPINO PEOPLE OF THE CONSTITUTION PROPOSED BY THE 1971 CONSTITUTIONAL CONVENTION.

WHEREAS, the Constitution proposed by the nineteen hundred seventy-one Constitutional Convention is subject to ratification by the Filipino people;

WHEREAS, Citizens Assemblies were created in barrios, in municipalities and in districts/wards in chartered cities pursuant to Presidential Decree No. 86, dated December 31, 1972, composed of all persons who are residents of the barrio, district or ward for at least six months, fifteen years of age or over, citizens of the Philippines and who are registered in the list of Citizen Assembly members kept by the barrio, district or ward secretary;

WHEREAS, the said Citizens Assemblies were established precisely to broaden the base of citizen participation in the democratic process and to afford ample opportunity for the citizenry to express their views on important national issues;

WHEREAS, responding to the clamor of the people and pursuant to Presidential Decree No. 86-A, dated January 5, 1973, the following questions were posed before the Citizens Assemblies or Barangays: Do you approve of the New Constitution? Do you still want a pIebiscite to be called to ratify the new Constitution?

WHEREAS, fourteen million nine hundred seventy-six thousand five hundred sixty-one (14,976,561) members of all the Barangays (Citizens Assemblies) voted for the adoption of the proposed Constitution, as against seven hundred forty-three thousand eight hundred sixty-nine (743,869) who voted for its rejection; while on the question as to whether or not the people would still like a plebiscite to be called to ratify the new Constitution, fourteen million two hundred ninety-eight thousand eight hundred fourteen (14,298,814) answered that there was no need for a plebiscite and that the vote of the Barangays (Citizens Assemblies) should be considered as a vote in a plebiscite;

WHEREAS, since the referendum results show that more than ninety-five (95) per cent of the members of the Barangays (Citizens Assemblies) are in favor of the new Constitution, the Katipunan ng Mga Barangay has strongly recommended that the new Constitution should already be deemed ratified by the Filipino people;

NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the powers in me vested by the Constitution, do hereby certify and proclaim that the Constitution proposed by the nineteen hundred and seventy-one (1971) Constitutional Convention has been ratified by an overwhelming majority of all 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.

(Sgd.) FERDINAND E. MARCOS
President of the Philippines

By the President:

ALEJANDRO MELCHOR
Executive Secretary

Such is the background of the cases submitted for Our determination. After admitting some of the allegations made in the petition in L-35948 and denying the other allegations thereof, respondents therein alleged in their answer thereto, by way of affirmative defenses: 1) that the "questions raised" in said petition "are political in character"; 2) that "the Constitutional Convention acted freely and had plenary authority to propose not only amendments but a Constitution which would supersede the present Constitution"; 3) that "the President's call for a plebiscite and the appropriation of funds for this purpose are valid"; 4) that "there is not an improper submission" and "there can be a plebiscite under Martial Law"; and 5) that the "argument that the Proposed Constitution is vague and incomplete, makes an unconstitutional delegation of power, includes a referendum on the proclamation of Martial Law and purports to exercise judicial power" is "not relevant and ... without merit." Identical defenses were set up in the other cases under consideration.

Immediately after the hearing held on January 17, 1973, or since the afternoon of that date, the Members of the Court have been deliberating on the aforementioned cases and, after extensive discussions on the merits thereof, have deemed it best that each Member write his own views thereon and that thereafter the Chief Justice should state the result or the votes thus cast on the points in issue. Hence, the individual views of my brethren in the Court are set forth in the opinions attached hereto, except that, instead of writing their separate opinions, some Member have preferred to merely concur in the opinion of one of our colleagues.

What follows is my own view on these cases.

The first question for Our determination is whether We have authority to pass upon the validity of Presidential Decree No. 73, in view of the Solicitor General's allegation to the effect that said question is a political one. I am of the opinion — on which the Members of the Court are unanimous — that the contention of the Solicitor General is untenable and that the issue aforementioned is a justiciable one. Indeed, the contested decree purports to have the force and effect of a legislation, so that the issue on the validity thereof is manifestly a justiciable one, on the authority, not only of a long list of cases in which the Court has passed upon the constitutionality of statutes and/or acts of the Executive,1 but, also, of no less than that of Subdivision (1) of Section 2, Article VIII of the 1935 Constitution,2 which expressly provides for the authority of this Court to review cases involving said issue.

Petitioners in G.R. No. L-35948 maintain that the 1971 Constitutional Convention had exceeded its authority in approving Sections 2, 3 (par. 2) and 12 of Article XVII of the proposed Constitution. 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 free to postulate any amendment it may deem fit to propose — save perhaps what is or may be inconsistent 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 at which" " said proposals "are submitted to the people for their ratification," as provided in Section 1 of Art. XV of the 1935 Constitution.

As regards the authority of the President to issue Presidential Decree No. 73, "submitting to the Filipino people (on January 15, 1973) for ratification or rejection the Constitution of the Republic of the Philippines proposed by the 1971 Constitutional Convention and appropriating funds therefor," I find it unnecessary, for the time being, to pass upon such question, because the plebiscite ordained in said Decree has been postponed. In any event, should the plebiscite be scheduled to be held at any time later, the proper parties may then file such action as the circumstances may justify.

With respect to the question whether or not martial law per se affects the validity of a submission to the people for ratification of specific proposals for amendment of the Constitution, I consider this matter as one intimately and necessarily related to the validity of Proclamation No. 1102 of the President of the Philippines. This question has not been explicitly raised, however, in any of the cases under consideration, said cases having been filed before the issuance of such Proclamation, although the petitioners in L-35948 maintain that the issue on the referral of the Proposed Constitution to the Citizens' Assemblies may be deemed and was raised in their Supplemental Motion of January 15, 1973. At any rate, said question has not been adequately argued by the parties in any of these cases, and it would not be proper to resolve such a transcendental question without the most thorough discussion possible under the circumstances. In fairness to the petitioners in L-35948 and considering the surrounding circumstances, I believe, therefore, that, instead of dismissing the case as moot and academic, said petitioners should be given a reasonable period of time within which to move in the premises.

Recapitulating the views expressed by the Members of the Court, the result is this:

ℒαwρhi৷

1. There is unanimity on the justiciable nature of the issue on the legality of Presidential Decree No. 73.

2. On the validity of the decree itself, Justices Makalintal, Castro, Fernando, Teehankee, Esguerra and myself, or six (6) Members of the Court, are of the opinion that the issue has become moot and academic, whereas Justices Barredo, Makasiar and Antonio voted to uphold the validity of said Decree.

3. On the authority of the 1971 Constitutional Convention to pass the proposed Constitution or to incorporate therein the provisions contested by the petitioners in L-35948, Justices Makalintal, Castro, Teehankee and Esguerra opine that the issue has become moot and academic. Justices Fernando, Barredo, Makasiar, Antonio and myself have voted to uphold the authority of the Convention.

4. Justice Fernando, likewise, expressed the view that the 1971 Constitutional Convention had authority to continue in the performance of its functions despite the proclamation of Martial Law.ℒαwρhi৷ In effect, Justices Barredo, Makasiar and Antonio hold the same view.

5. On the question whether the proclamation of Martial Law affected the proper submission of the proposed Constitution to a plebiscite, insofar as the freedom essential therefor is concerned, Justice Fernando is of the opinion that there is a repugnancy between the election contemplated under Art. XV of the 1935 Constitution and the existence of Martial Law, and would, therefore, grant the petitions were they not moot and academic. Justices Barredo, Antonio and Esguerra are of the opinion that that issue involves question of fact which cannot be predetermined, and that Martial Law per se does not necessarily preclude the factual possibility of adequate freedom for the purposes contemplated.

6. On Presidential Proclamation No. 1102, the following views were expressed:

a. Justices Makalintal, Castro, Fernando, Teehankee, Makasiar, Esguerra and myself are of the opinion that question of validity of said Proclamation has not been properly raised before the Court, which, accordingly, should not pass upon such question.

b. Justice Barredo holds that the issue on the constitutionality of Proclamation No. 1102 has been submitted to and should be determined by the Court, and that the "purported ratification of the Proposed Constitution ... based on the referendum among Citizens' Assemblies falls short of being in strict conformity with the requirements of Article XV of the 1935 Constitution," but that such unfortunate drawback notwithstanding, "considering all other related relevant circumstances, ... the new Constitution is legally recognizable and should be recognized as legitimately in force.

c. Justice Zaldivar maintains unqualifiedly that the Proposed Constitution has not been ratified in accordance with Article XV of the 1935 Constitution, and that, accordingly, it has no force and effect whatsoever.

d. Justice Antonio feels "that the Court is not competent to act" on the issue whether the Proposed Constitution has been ratified by the people or not, "in the absence of any judicially discoverable and manageable standards," since the issue "poses a question of fact.

7. On the question whether or not these cases should dismissed, Justices Makalintal, Castro, Barredo, Makasiar, Antonio and Esguerra voted in the affirmative, for the reasons set forth in their respective opinions. Justices Fernando, Teehankee and the writer similarly voted, except as regards Case No. L-35948 as to which they voted to grant to the petitioners therein a reasonable period of time within which to file appropriate pleadings should they wish to contest the legality of Presidential Proclamation No. 1102. Justice Zaldivar favors the granting of said period to the petitioners in said Case No. L-35948 for the aforementioned purpose, but he believes, in effect, that the Court should go farther and decide on the merits everyone of the cases under Consideration.

WHEREFORE, all of the aforementioned cases are hereby dismissed, without special pronouncement as to costs.

It is so ordered.

Makasiar, J., concur.

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Footnotes

1 Mun. of Malabang v. Benito, L-28113, March 28, 1969; NAWASA v. Piguing, et al., L- 35573, Oct. 11, 1968; Fernandez v. P. Cuerva & Co., L-21114, Nov. 25, 1967; Gonzales v. Commission on Elections, L-28224, Nov. 29, 1967; Bara Lidasan v. COMELEC, L-28089, Oct. 25, 1967; Mun. of San Juan v. NAWASA, L-22047, Aug. 31, 1967; Mun. of San Joaquin v. Siva, L-19870, March 18, 1967; Pelayo v. Auditor General, L-23825, Dec. 24, 1965; Philippine Constitution Association v. Gimenez, L-23326, Dec. 18, 1965; Mun. of La Carlota v. NAWASA, L-20232, Sept. 30, 1964; Guevara v. Inocentes, L-25577, March 15, 1966; Gillera v. Fernandez, L-20741, Jan. 31, 1964; Siguiente v. Secretary of Justice, L-20370, Nov. 29, 1963; Mun. of Naguilian v. NAWASA, L-18540, Nov. 29, 1963; Herrera v. Liwag, L-20079, Sept. 30, 1963; Aytona v. Castillo, L-19313, Jan. 19, 1962; La Mallorca, etc. v. Ramos, et al., L-15476, Sept. 19, 1961; Tan v. De Leon, et al., L-15254, Sept. 16, 1961; Macias v. Commission on Elections, L-18684, Sept. 14, 1961; Philippine Tobacco Flue-Curing & Redrying Corp. v. Sabugo, et al., L-16017, Aug. 31, 1961; Miller v. Mardo, L-15138, July 31, 1961; Cu Bu Liong v. Estrella, et al., L-14212, July 31, 1961; Pampanga Sugar Development Co., Inc. v. Fuentes, et al., L-14738, July 31, 1961; Earnshaw Docks & Honolulu Iron Works v. Mardo, et al., L-14759, July 31, 1961; Liwanag v. Central Azucarera Don Pedro, L-15372, July 31, 1961; Lecura v. Regional Office No. 3, etc., L-15582, July 31, 1961; Pitogo v. Sen Bee Trading Co., et al., L-15693, July 31, 1961; Pascual v. Secretary of Public Works and Communications, L-10405, Dec. 29, 1960; Corominas, Jr. v. Labor Standards Commission, L-14837, June 30, 1961; City of Baguio v. NAWASA, L-12032, Aug. 31, 1959; City of Cebu v. NAWASA, L-12892, April 20, 1960; Montes v. Civil Service Board of Appeals, 101 Phil. 490; Rutter v. Esteban, 93 Phil. 68; Araneta v. Dinglasan, 84 Phil. 368; Borromeo v. Mariano, 41 Phil. 322.

2 Reiterated in the aforementioned Proposed Constitution [Subdivision (2) (a) of Section 5, Article X thereof].

The Lawphil Project - Arellano Law Foundation

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