G.R. No. L-36142, March 31, 1973,
♦ Resolution,
Concepcion, [CJ]
♦ Concurring Opinion,
Makalintal, Castro, Barredo, Makasiar, Esguerra, Antonio [JJ]
♦ Concurring & Dissenting Opinion,
Zaldivar [J]
♦ Dissenting Opinion,
Fernando, Teehankee [JJ]
EN BANC
G.R. No. L-36142 March 31, 1973
JOSUE JAVELLANA, petitioner,
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF NATIONAL DEFENSE, THE SECRETARY OF JUSTICE AND THE SECRETARY OF FINANCE, respondents.
G.R. No. L-36164 March 31, 1973
VIDAL TAN, J. ANTONIO ARANETA, ALEJANDRO ROCES, MANUEL CRUDO, ANTONIO U. MIRANDA, EMILIO DE PERALTA AND LORENZO M. TAÑADA, petitioners,
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF FINANCE , THE SECRETARY OF JUSTICE, THE SECRETARY OF LAND REFORM, THE SECRETARY OF NATIONAL DEFENSE, THE AUDITOR GENERAL, THE BUDGET COMMISSIONER, THE CHAIRMAN OF PRESIDENTIAL COMMISSION ON REORGANIZATION, THE TREASURER OF THE PHILIPPINES, THE COMMISSION ON ELECTIONS AND THE COMMISSIONER OF CIVIL SERVICE, respondents.
G.R. No. L-36165 March 31, 1973.
GERARDO ROXAS, AMBROSIO PADILLA, JOVITO R. SALONGA, SALVADOR H. LAUREL, RAMON V. MITRA, JR. and EVA ESTRADA-KALAW, petitioners,
vs.
ALEJANDRO MELCHOR, in his capacity as Executive Secretary; JUAN PONCE ENRILE, in his capacity as Secretary of National Defense; General ROMEO ESPINO, in his capacity as Chief of Staff of the Armed Forces of the Philippines; TANCIO E. CASTAÑEDA, in his capacity as Secretary General Services; Senator GIL J. PUYAT, in his capacity as President of the Senate; and Senator JOSE ROY, his capacity, as President Pro Tempore of the of the Senate, respondents.
G.R. No. L-36236 March 31, 1973
EDDIE B. MONTECLARO, [personally and in his capacity as President of the National Press Club of the Philippines], petitioner,
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF PUBLIC INFORMATION, THE AUDITOR GENERAL, THE BUDGET COMMISSIONER & THE NATIONAL TREASURER, respondents.
G.R. No. L-36283 March 31, 1973
NAPOLEON V. DILAG, ALFREDO SALAPANTAN, JR., LEONARDO ASODISEN, JR., and RAUL M. GONZALEZ, petitioners,
vs.
THE HONORABLE EXECUTIVE SECRETARY, THE HONORABLE SECRETARY OF NATIONAL DEFENSE, THE HONORABLE BUDGET COMMISSIONER, THE HONORABLE AUDITOR GENERAL, respondents.
Ramon A. Gonzales for petitioner Josue Javellana.
Lorenzo M. Tañada and Associates for petitioners Vidal Tan, et al.
Tañada, Salonga, Ordoñez, Rodrigo, Sanidad, Roxas. Gonzales and Arroyo for petitioners Gerardo Roxas, et al.
Joker P. Arroyo and Rogelio B. Padilla for petitioner Eddie Monteclaro.
Raul M. Gonzales and Associates for petitioners Napoleon V. Dilag, et al.
Arturo M. Tolentino for respondents Gil J. Puyat and Jose Roy.
Office of the Solicitor General Estelito P. Mendoza, Solicitor Vicente V. Mendoza and Solicitor Reynato S. Puno for other respondents.
Separate Opinions
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."1Strict 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,2it 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 Black5and Murphy,6a Supreme Court by the conclusion it reaches and the decision it renders does not merely check the coordinate branches, but also by its approval stamps with legitimacy the action taken. Thus in affirming constitutional supremacy, the political departments could seek the aid of the judiciary. For the assent it gives to what has been done conduces to its support in a regime where the rule of law holds sway. In discharging such a role, this Court must necessarily take in account not only what the exigent needs of the present demand but what may lie ahead in the unexplored and unknown vistas of the future. It must guard against the pitfall of lack of understanding of the dominant forces at work to seek a better life for all, especially those suffering from the pangs of poverty and disease, by a blind determination to adhere to the status quo. It would be tragic, and a clear case of its being recreant to its trust, if the suspicion can with reason be entertained that its approach amounts merely to a militant vigilantism that is violently opposed to any form of social change. It follows then that it does not suffice that recourse be had only to what passes for scholarship in the law that could be marred by inapplicable erudition and narrow legalism. Even with due recognition, such factors, however, I cannot, for reasons to be set more lengthily and in the light of the opinion of the Chief Justice, reach the same result as the majority of my brethren. For, in the last analysis, it is my firm conviction that the institution of judicial review speaks too clearly for the point to be missed that official action, even with due allowance made for the good faith that invariably inspires the step taken, has to face the gauntlet of a court suit whenever there is a proper case with the appropriate parties.
1. Respondents are acting in the soundest constitutional tradition when, at the outset, they would seek a dismissal of these petitions. For them, the question raised is political and thus beyond the jurisdiction of this Court. Such an approach cannot be indicted for unorthodoxy. It is implicit in the concept of the rule of law that rights belong to the people and the government possesses powers only. Essentially then, unless such an authority may either be predicated on express or implied grant in the Constitution or the statutes, an exercise thereof cannot survive an inquiry as to its validity. Respondents through Solicitor-General Mendoza would deny our competence to proceed further. It is their view, vigorously pressed and plausibly asserted, that since what is involved is not merely the effectivity of an amendment but the actual coming into effect of a new constitution, the matter is not justiciable. The immediate reaction is that such a contention is to be tested in the light of the fundamental doctrine of separation of powers that it is not only the function but the solemn duty of the judiciary to determine what the law is and to apply it in cases and controversies that call for decision.7Since 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,8Tolentino9and Planas10cases 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."12Once an aspect thereof is viewed as judicial, there would be no justification for considering the rest as devoid of that character. It would be for me then an indefensible retreat, deriving no justification from circumstances of weight and gravity, if this Court were to accede to what is sought by respondents and rule that the question before us is political.
On this point, it may not be inappropriate to refer to a separate opinion of mine in Lansang v. Garcia.13Thus: "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."14The 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."15After 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."16Nor 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."17What appears undeniable then both from the standpoint of Philippine as well as American decisions is the care and circumspection required before the conclusion is warranted that the matter at issue is beyond judicial cognizance, a political question being raised.
2. The submission of respondents on this subject of political question, admittedly one of complexity and importance, deserves to be pursued further. They would derive much aid and comfort from the writings of both Professor Bickel18of Yale and Professor Freund19of 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,21decided 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."22The 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 23to Planas v. Commission on Elections.24It should continue to exercise its jurisdiction, even in the face of a plausible but not sufficiently persuasive insistence that the matter before it is political.
Nor am I persuaded that the reading of the current drift in American legal scholarship by the Solicitor-General and his equally able associates presents the whole picture. On the question of judicial review, it is not a case of black and white; there are shaded areas. It goes too far, in my view, if the perspective is one of dissatisfaction, with its overtones of distrust. This expression of disapproval has not escaped Dean Rostow of Yale, who began one of his most celebrated legal essays. The Democratic Character of Judicial Review, thus: "A theme of uneasiness, and even of guilt, colors the literature about judicial review. Many of those who have talked, lectured, and written about the Constitution have been troubled by a sense that judicial review is undemocratic."25He 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."26His 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."27More 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.' "28Nor 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.' "29Professor 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."31This 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.32Curtis 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."33At 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 ... ."34The 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?"35It 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."36Let 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,37decided in 1962 and Powell v. MacCormack,38in 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."40For him, the judiciary "ought not to enter this political thicket." Baker has since then been followed; it has spawned a host of cases.41Powell, 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,42It 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."43As for Professor Bickel, it has been said that as counsel for the New York Times in the famous Vietnam papers case,44he 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.45It has brought forth a plethora of law review articles, the reaction ranging from guarded conformity to caustic criticism.46There was, to be sure, no clear call to a court in effect abandoning the responsibility incumbent on it to keep governmental agencies within constitutional channels. The matter has been put in temperate terms by Professor Frank thus: "When allowance has been made for all factors, it nevertheless seems to me that the doctrine of political questions ought to be very sharply confined to where the functional reasons justify it and that in a give involving its expansion there should be careful consideration also of the social considerations which may militate against it. The doctrine has a certain specious charm because of its nice intellectualism and because of the fine deference it permits to expertise, to secret knowledge, and to the prerogatives of others. It should not be allowed to grow as a merely intellectual plant."47
It is difficult for me at least, not to be swayed by appraisal, coming from such impeccable sources of the worth and significance of judicial review in the United States. I cannot resist the conclusion then that the views advanced on this subject by distinguished counsel for petitioners, with Senators Lorenzo M. Tañada and Jovito Salonga at the van, rather than the advocacy of the Solicitor-General, possess the greater weight and carry persuasion. So much then for the invocation of the political question principle as a bar to the exercise of our jurisdiction.
3. That brings me to the issue of the validity of the ratification. The crucial point that had to be met is whether Proclamation No. 1102 manifests fidelity to the explicit terms of Article XV. There is, of course, the view not offensive to reason that a sense of the realities should temper the rigidity of devotion to the strict letter of the text to allow deference to its spirit to control. With due recognition of its force in constitutional litigation,48if 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,49and 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,51submitting 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."52Then came the statute,53calling 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,54reducing 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,55and creating an independent Commission on Elections.56Again, 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."57The approval of the present parity amendment was by virtue of a Republic Act58which specifically made applicable the then Election Code.59There is a similar provision in the legislation,60which 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.61That is the consistent course of interpretation followed by the legislative branch. It is most persuasive, if not controlling. The restraints thus imposed would set limits to the Presidential action taken, even on the assumption that either as an agent of the Constitutional Convention or under his martial law prerogatives, he was not devoid of power to specify the mode of ratification. On two vital points, who can vote and how they register their will, Article XV had been given a definitive construction. That is why I fail to see sufficient justification for this Court affixing the imprimatur of its approval on the mode employed for the ratification of the revised Constitution as reflected in Proclamation No. 1102.
4. Nor is the matter before us solely to be determined by the failure to comply with the requirements of Article XV. Independently of the lack of validity of the ratification of the new Constitution, if it be accepted by the people, in whom sovereignty resides according to the Constitution,62then 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."63If 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."64From them, as Corwin did stress, emanate "the highest possible embodiment of human will,"65which is supreme and must be obeyed. To avoid any confusion and in the interest of clarity, it should be expressed in the manner ordained by law. Even if such is not the case, however, once it is manifested, it is to be accepted as final and authoritative. The government which is merely an agency to register its commands has no choice but to submit. Its officials must act accordingly. No agency is exempt such a duty, not even this Court. In that sense, the lack of regularity in the method employed to register its wishes is fatal in its consequences. Once the fact of acceptance by people of a new fundamental law is made evident, the judiciary is left with no choice but to accord it recognition. The obligation to render it obeisance falls on the courts as well.
There are American State decisions that enunciate such a doctrine. While certainly not controlling, they are not entirely bereft of persuasive significance. In Miller v. Johnson,66decided 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."67In Taylor v. Commonwealth,68a 1903 decision, it was contended that the Virginia Constitution reclaimed in 1902 is invalid as it was ordained and promulgated by the convention without being submitted for ratification or rejection by the people. The Court rejected such a view. As stated in the opinion of Justice Harrison: "The Constitution of 1902 was ordained and proclaimed by a convention duly called by direct vote of the people of the state to revise and amend the Constitution of 1869. The result of the work of the convention has been recognized, accepted, and acted upon as the only valid Constitution of the state by the Governor in swearing fidelity to it and proclaiming it, as directed thereby; by the Legislature in its formal official act adopting a joint resolution, July 15, 1902, recognizing the Constitution ordained by the convention which assembled in the city of Richmond on the 12th day of June, 1901, as the Constitution of Virginia; by the individual oaths of members to support it, and by enforcing its provisions; and the people in their primary capacity by peacefully accepting it and acquiescing in it, by registering as voters under it to the extent of thousands throughout the state, and by voting, under its provisions, at a general election for their representatives in the Congress of the United States. The Constitution having been thus acknowledged and accepted by the office administering the government and by the people of the state, and there being no government in existence under the Constitution of 1869 opposing or denying its validity, we have no difficulty in holding that the Constitution in question, which went into effect at noon on the 10th day of July, 1902, is the only rightful, valid, and existing Constitution of this state, and that to it all the citizens of Virginia owe their obedience and loyal allegiance."69
It cannot be plausibly asserted then that premises valid in law are lacking for the claim that the revised Constitution has been accepted by the Filipino people. What is more, so it has been argued, it is not merely a case of its being implied. Through the Citizens Assemblies, there was a plebiscite with the result as indicated in Proclamation No. 1102. From the standpoint of respondents then, they could allege that there was more than just mere acquiescence by the sovereign people. Its will was thus expressed formally and unmistakably. It may be added that there was nothing inherently objectionable in the informal method followed in ascertaining its preference. Nor is the fact that Filipinos of both sexes above the age of fifteen were given the opportunity to vote to be deplored. The greater the base of mass participation, the more there is fealty to the democratic concept. It does logically follow likewise that such circumstances being conceded, then no justifiable question may be raised. This Court is to respect what had thus received the people's sanction. That is not for me though whole of it. Further scrutiny even then is not entirely foreclosed. There is still an aspect that is judicial, an inquiry may be had as to whether such indeed was the result. This is no more than what the courts do in election cases. There are other factors to bear in mind. The fact that the President so certified is well-nigh conclusive. There is in addition the evidence flowing from the conditions of peace and stability. There thus appears to be conformity to the existing order of things. The daily course of events yields such a conclusion. What is more, the officials under the 1935 Constitution, including practically all Representatives and a majority of the Senators, have signified their assent to it. The thought persists, however, that as yet sufficient time has not elapsed to be really certain.
Nor is this all. There is for me an obstacle to the petitions being dismissed for such ascertainment of popular will did take place during a period of martial law. It would have been different had there been that freedom of debate with the least interference, thus allowing a free market of ideas. If it were thus, it could be truly said that there was no barrier to liberty of choice. It would be a clear-cut decision either way. One could be certain as to the fact of the acceptance of the new or of adherence to the old. This is not to deny that votes are cast by individuals with their personal concerns uppermost in mind, worried about their immediate needs and captive to their existing moods. That is inherent in any human institution, much more so in a democratic polity. Nor is it open to any valid objection because in the final analysis the state exists for the individuals who in their collectivity compose it. Whatever be their views, they are entitled to respect. It is difficult for me, however, at this stage to feel secure in the conviction that they did utilize the occasion afforded to give expression to what was really in their hearts. This is not to imply that such doubt could not be dispelled by evidence to the contrary. If the petitions be dismissed however, then such opportunity is forever lost.
5. With the foregoing legal principles in mind, I find myself unable to join the ranks of my esteemed brethren who vote for the dismissal of these petitions. I cannot yield an affirmative response to the plea of respondents to consider the matter closed, the proceedings terminated once and for all. It is not an easy decision to reach. It has occasioned deep thought and considerable soul-searching. For there are countervailing considerations that exert a compulsion not easy to resist. It can be asserted with truth, especially in the field of social and economic rights, that with the revised Constitution, there is an auspicious beginning for further progress. Then too it could resolve what appeared to be the deepening contradictions of political life, reducing at times governmental authority to near impotence and imparting a sense of disillusionment in democratic processes. It is not too much to say therefore that there had indeed been the revision of a fundamental law to vitalize the very values out of which democracy grows. It is one which has all the earmarks of being responsive to the dominant needs of the times. It represents an outlook cognizant of the tensions of a turbulent era that is the present. That is why for some what was done represented an act of courage and faith, coupled with the hope that the solution arrived at is a harbinger of a bright and rosy future.
It is such a comfort then that even if my appraisal of the situation had commanded a majority, there is not, while these lawsuits are being further considered, the least interference, with the executive department. The President in the discharge of all his functions is entitled to obedience. He remains commander-in-chief with all the constitutional powers it implies. Public officials can go about their accustomed tasks in accordance with the revised Constitution. They can pursue even the tenor of their ways. They are free to act according to its tenets. That was so these past few weeks, even petitions were filed. There was not at any time any thought of any restraining order. So it was before. That is how things are expected to remain even if the motions to dismiss were not granted. It might be asked though, suppose the petitions should prevail? What then? Even so, the decision of this Court need not be executory right away. Such a disposition of a case before this Court is not novel. That was how it was done in the Emergency Powers Act controversy.70Once compliance is had with the requirements of Article XV of the 1935 Constitution, to assure that the coming force of the revised charter is free from any taint of infirmity, then all doubts are set at rest.
For some, to so view the question before us is to be caught in a web of unreality, to cherish illusions that cannot stand the test of actuality. What is more, it may give the impression of reliance on what may, for the practical man of affairs, be no more than gossamer distinctions and sterile refinements unrelated to events. That may be so, but I find it impossible to transcend what for me are the implications of traditional constitutionalism. This is not to assert that an occupant of the bench is bound to apply with undeviating rigidity doctrines which may have served their day. He could at times even look upon them as mere scribblings in the sands to be washed away by the advancing tides of the present. The introduction of novel concepts may be carried only so far though. As Cardozo put the matter: "The judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant, roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to "the primordial necessity of order in the social life." Wide enough in all conscience is the field of discretion that remains."71Moreover what made it difficult for this Court to apply settled principles, which for me have not lost their validity, is traceable to the fact that the revised Constitution was made to take effect immediately upon ratification. If a period of time were allowed to elapse precisely to enable the judicial power to be exercised, no complication would have arisen. Likewise, had there been only one or two amendments, no such problem would be before us. That is why I do not see sufficient justification for the orthodoxies of constitutional law not to operate.
Even with full realization then that the approach pursued is not all that it ought to have been and the process of reasoning not without its shortcomings, the basic premises of a constitutional democracy, as I understand them and as set forth in the preceding pages, compel me to vote the way I did.
Footnotes
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.
I7 Weston, Political Questions, I Selected Essays an 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).
46 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. v. 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," is 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).
Separate Opinions
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:5and Tolentino6cases.
— 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"9and under the supervision of the Commission on Elections.10
— Hence, if the Court declares Proclamation 1102 null and void because on its face, the purported ratification of the proposed Constitution has not faithfully nor substantially observed nor complied with the mandatory requirements of Article XV of the (1935) Constitution, it would not be "invalidating" the proposed new Constitution but would be simply declaring that the announced fact of ratification thereof by means of the Citizens Assemblies referendums does not pass the constitutional test and that the proposed new Constitution has not constitutionally come into existence.
— Since Proclamation 1102 is acknowledged by respondent to be "plainly merely declaratory" of the disputed fact of ratification, they cannot assume the very fact to be established and beg the issue by citing the self-same declaration as proof of the purported ratification therein declared.
What complicates the cases at bar is the fact that the proposed 1972 Constitution was enforced as having immediately taken effect upon the issuance on January 17, 1973 of Proclamation 1102 and the question of whether "confusion and disorder in government affairs would (not) result" from a judicial declaration of nullity of the purported ratification is raised by the Solicitor-General on behalf of respondents.
A comparable precedent of great crisis proportions is found in the Emergency Powers cases,11wherein the Court in its Resolution of September 16, 1949 after judgment was initially not obtained on August 26, 1949 for lack of the required six (6) votes, finally declared in effect that the pre-war emergency powers delegated by Congress to the President, under Commonwealth Act 671 in pursuance of Article VI, section 26 of the Constitution, had ceased and became inoperative at the latest in May, 1946 when Congress met in its first regular session on May 25, 1946.
Then Chief Justice Manuel V. Moran recited the great interests and important rights that had arisen under executive orders "issued in good faith and with the best of intentions by three successive Presidents, and some of them may have already produced extensive effects on the life of the nation" — in the same manner as may have arisen under the bona fide acts of the President now in the honest belief that the 1972 Constitution had been validly ratified by means of the Citizens Assemblies referendums — and indicated the proper course and solution therefor, which were duly abided by and confusion and disorder as well as harm to public interest and innocent parties thereby avoided as follows:
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.
That Congress may again fail to pass a valid appropriations act is a remote possibility, for under the circumstances it fully realizes its great responsibility of saving the nation from breaking down; and furthermore, the President in the exercise of his constitutional powers may, if he so desires, compel Congress to remain in special session till it approves the legislative measures most needed by the country.
Democracy is on trial in the Philippines, and surely it will emerge victorious as a permanent way of life in this country, if each of the great branches of the Government, within its own allocated sphere, complies with its own constitutional duty, uncompromisingly and regardless of difficulties.
Our Republic is still young, and the vital principles underlying its organic structure should be maintained firm and strong, hard as the best of steel, so as to insure its growth and development along solid lines of a stable and vigorous democracy.14
The late Justice Pedro Tuason who penned the initial majority judgment (declaring null and void the rental and export control executive orders) likewise observed that "(T)he truth is that under our concept of constitutional government, in times of extreme perils more than in normal circumstances 'the various branches, executive, legislative, and judicial,' given the ability to act, are called upon 'to perform the duties discharge the responsibilities committed to respectively.' "15
It should be duly acknowledged that the Court's task of discharging its duty and responsibility has been considerably lightened by the President's public manifestation of adherence to constitutional processes and of working within the proper constitutional framework as per his press conference of January 20,1973, wherein he stated that "(T)he Supreme Court is the final arbiter of the Constitution. It can and will probably determine the validity of this Constitution. I did not want to talk about this because actually there is a case pending before the Supreme Court. But suffice it to say that I recognize the power of the Supreme Court. With respect to appointments, the matter falls under a general provision which authorizes the Prime Minister to appoint additional members to the Supreme Court. Until the matter of the new Constitution is decided, I have no intention of utilizing that power."16
Thus, it is that as in an analogous situation wherein the state Supreme Court of Mississippi held that the questions of whether the submission of the proposed constitutional amendment of the State Constitution providing for an elective, instead of an appointive, judiciary and whether the proposition was in fact adopted, were justifiable and not political questions, we may echo the words therein of Chief Justice Whitfield that "(W)e do not seek a jurisdiction not imposed upon us by the Constitution. We could not, if we would, escape the exercise of that jurisdiction which the Constitution has imposed upon us. In the particular instance in which we are now acting, our duty to know what the Constitution of the state is, and in accordance with our oaths to support and maintain it in its integrity, imposed on us a most difficult and embarrassing duty, one which we have not sought, but one which, like all others, must be discharged."17
In confronting the issues at bar, then, with due regard for my colleagues' contrary views, we are faced with the hard choice of maintaining a firm and strict — perhaps, even rigid — stand that the Constitution is a "superior paramount law, unchangeable by ordinary means" save in the particular mode and manner prescribed therein by the people, who, in Cooley's words, so "tied up (not only) the hands of their official agencies, but their own hands as well"18in the exercise of their sovereign will or a liberal and flexible stand that would consider compliance with the constitutional article on the amending process as merely directory rather than mandatory.
The first choice of a strict stand, as applied to the cases at bar, signifies that the Constitution may be amended in toto or otherwise exclusively "by approval by a majority of the votes cast an election at which the amendments are submitted to the people for their ratification",19participated in only by qualified and duly registered voters twenty-one years of age or over20and duly supervised by the Commission on Elections,21in accordance with the cited mandatory constitutional requirements.
The alternative choice of a liberal stand would permit a disregard of said requirements on the theory urged by respondents that "the procedure outlined in Article XV was not intended to be exclusive of other procedures especially one which contemplates popular and direct participation of the citizenry",22that 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",23and 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. Madison25the 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 27the "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."29This 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.
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. Comelec33, 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 Court35in 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.
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.
— 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.
— 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.
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.
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.
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.
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.
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 case43with 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.
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.
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 officials49comply 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 itself51has been called or held, there cannot be said to have been a valid ratification.
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 provinces52between 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;53whether 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,54may be considered as valid; the allegedly huge and uniform votes reported; and many others.
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.
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.
5. Finally, as to respondents' argument that the President issued Proclamation 1102 "as "agent" of the Constitutional Convention"55under 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.ℒαwρhi৷ 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.
x x x x x x x x x
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.
x x x x x x x x x
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.ℒαwρhi৷
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.ℒαwρhi৷
1.8a 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.
13.1 Floor Leader Montejo stated that there were no reservations to amend the resolution.
13.2 Delegate Ozamiz then moved for the previous question. Submitted to a vote, the motion was approved.
Upon request of the Chair, Delegate Duavit restated the resolution for voting.
14.1. Delegate Ordoñez moved for nominal voting. Submitted to a vote, the motion was lost.
14.2. Thereupon, the Chair submitted the resolution to a vote. It was approved by a show of hands.57
I, therefore, vote to deny respondents' motion to dismiss and to give due course to the petitions.
Promulgated: June 4, 1973*
Footnotes
* First decision promulgated by First Division of the Supreme Court.
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 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. "Dec. 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.
The Lawphil Project - Arellano Law Foundation
