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
MAKALINTAL and CASTRO, JJ., concurring:
The preliminary question before this Court was whether or not the petitioners had made out a sufficient prima facie case in their petitions to justify their being given due course. Considering on the one hand the urgency of the matter and on the other hand its transcendental importance, which suggested the need for hearing the side of the respondents before that preliminary question was resolved, We required them to submit their comments on the petitions. After the comments were filed We considered them as motions to dismiss so that they could be orally argued. As it turned out, the hearing lasted five days, morning and afternoon, and could not have been more exhaustive if the petitions had been given due course from the beginning.
The major thrust of the petitions is that the act of the Citizens Assemblies as certified and proclaimed by the President on January 17, 1973 (Proclamation No. 1102) was not an act of ratification, let alone a valid one, of the proposed Constitution, because it was not in accordance with the existing Constitution (of 1935) and the Election Code of 1971. Other grounds are relied upon by the petitioners in support of their basic proposition, but to our mind they are merely subordinate and peripheral.
Article XV, Section 1, of the 1935 Constitution provides that amendments (proposed either by Congress in joint session or by a Convention called by it for the purpose) "shall be valid part of this Constitution when approved by a majority of votes cast at an election at which the amendments submitted to the people for their ratification." At the time Constitution was approved by the Constitutional Convention on February 8, 1935, and ratified in a plebiscite held on following May 14, the word "election" had already a definite meaning in our law and jurisprudence. It was not a vague and amorphous concept, but a procedure prescribed by statute ascertaining the people's choices among candidates for public offices, or their will on important matters submitted to the pursuant to law, for approval. It was in this sense that word was used by the framers in Article XV (also in Articles VI and VII), and in accordance with such procedure that plebiscites were held to ratify the very same Constitution in 1935 as well as the subsequent amendments thereto, thus: in 1939 (Ordinance appended to the Constitution); 1940 (establishment of a bicameral legislature; eligibility of the President and the Vice President for re election; creation of the Commission of Elections); 1947 (Parity Amendment); and 1967 (increase in membership of the House of Representatives and eligibility of members of Congress to run for the Constitutional Convention without forfeiture of their offices).
The Election Code of 1971, in its Section 2, states that "all elections of public officers except barrio officials and plebiscites shall be conducted in the manner provided by this Code." This is a statutory requirement designed, as were the other election laws previously in force, to carry out the constitutional mandate relative to the exercise of the right suffrage, and with specific reference to the term "plebiscites," the provision of Article XV regarding ratification of constitutional amendments.
The manner of conducting elections and plebiscites provided by the Code is spelled out in other sections thereof. Section 99 requires that qualified voters be registered in a permanent list, the qualifications being those set forth in Article V, Section 1, of the 1935 Constitution on the basis of age (21), literacy and residence. These qualifications are reiterated in Section 101 of the Election Code. Section 102 enumerates the classes of persons disqualified to vote. Succeeding sections prescribe the election paraphernalia to be used, the procedure for registering voters, the records, of registration and the custody thereof, the description and printing of official ballots, the actual casting of votes and their subsequent counting by the boards of inspectors, the rules for appreciation of ballots, and then the canvass and proclamation of the results.
With specific reference to the ratification of the 1972 draft Constitution, several additional circumstances should be considered:
(1) This draft was prepared and approved by a Convention which had been convened pursuant to Resolution No. 2 passed by Congress on March 16, 1967, which provides:
Sec. 7. The amendments proposed by the Convention shall be valid and considered part of the Constitution when approved by a majority of the votes cast in an election at which they are submitted to the people for their ratification pursuant to Article XV of the Constitution.
(2) Article XVII, Section 16, of the draft itself states:
Sec. 16. This Constitution shall take effect immediately upon its ratification by a majority of the votes cast in a plebiscite called for the purpose and, except as herein provided, shall supersede the Constitution of nineteen hundred and thirty-five and all amendments thereto.
The same procedure is prescribed in Article XVI, Section 2, for the ratification of any future amendment to or revision of the said Constitution.
(3) After the draft Constitution was approved by the Constitutional Convention on November 30, 1972 the said body adopted Resolution No. 5843, proposing "to President Ferdinand E. Marcos that a decree be issued calling a plebiscite for the ratification of the proposed New Constitution on such appropriate date as he shall determine and providing for the necessary funds therefor." Pursuant to said Resolution the President issued Decree No. 73 on the same day, calling a plebiscite to be held on January 15, 1973, at which the proposed Constitution "shall be submitted to the people for ratification or rejection." The Decree had eighteen (18) sections in all, prescribing in detail the different steps to be taken to carry out the process of ratification, such as: (a) publication of the proposed Constitution in English and Pilipino; (b) freedom of information and discussion; (c) registration of voters: (d) appointment of boards of election inspectors and designation of watchers in each precinct; (e) printing of official ballots; (f) manner of voting to insure freedom and secrecy thereof; (g) canvass of plebiscite returns; and (h) in general, compliance with the provisions of the Election Code of 1971, with the Commission on Elections exercising its constitutional and statutory powers of supervision of the entire process.
There can hardly be any doubt that in everybody's view — from the framers of the 1935 Constitution through all the Congresses since then to the 1971 Constitutional Convention — amendments to the Constitution should be ratified in only one way, that is, in an election or plebiscite held in accordance with law and participated in only by qualified and duly registered voters. Indeed, so concerned was this Court with the importance and indispensability of complying with the mandate of the (1935) Constitution in this respect that in the recent case of Tolentino vs. Commission on Elections, No. L-34150, October 16, 1971 (41 SCRA 702), a resolution of the (1971) Constitutional Convention submitting a proposed amendment for ratification to a plebiscite to be held in November 1971 was declared null and void. The amendment sought to reduce the voting age from twenty-one to eighteen years and was approved by the Convention for submission to a plebiscite ahead of and separately from other amendments still being or to be considered by it, so as to enable the youth to be thus enfranchised to participate in the plebiscite for the ratification of such other amendments later. This Court held that such separate submission was violative of Article XV, Section 1, of the Constitution, which contemplated that "all the amendments to be proposed by the same Convention must be submitted to the people in a single "election" or plebiscite."*Thus a grammatical construction based on a singular, instead of plural, rendition of the word "election" was considered a sufficient ground to rule out the plebiscite which had been called to ratify a proposed amendment in accordance with the procedure and under all the safeguards provided in the Election Law.
In the cases now before Us what is at issue is not merely the ratification of just one amendment, as in Tolentino vs. COMELEC, but the ratification of an entire charter setting up a new form of government; and the issue has arisen not because of a disputed construction of one word or one provision in the 1935 Constitution but because no election or plebiscite in accordance with that Constitution and with the Election Code of 1971 was held for the purpose of such ratification.
The Citizens Assemblies which purportedly ratified the draft Constitution were created by Presidential Decree No. 86 dated December 31, 1972, "to broaden the base of citizen participation in the democratic process and to afford ample opportunities for the citizenry to express their views on important national issues." The Assemblies "shall consist of all persons who are residents of the barrio, district or ward for at least six months, fifteen years of age or over, citizens of the Philippines and who are registered in the lists of Citizen Assembly members kept by the barrio, district or ward secretary." By Presidential Decree No. 86-A, dated January 5, 1973, the Assemblies were convened for a referendum between January 10 and 15, to "consider vital national issues now confronting the country, like the holding of the plebiscite on the new Constitution, the continuation of martial rule, the convening of Congress on January 22, 1973, and the holding of elections in November 1973."
On January 5, 1973 the newspapers came out with a list of four questions to be submitted to the Citizens Assemblies, the fourth one being as follows: "How soon would you like plebiscite on the new Constitution to be held?" It should be noted in this connection that the President had previously announced that he had ordered the postponement of plebiscite which he had called for January 15, 1973 (Presidential Decree No. 73) for the ratification of the Constitution, and that he was considering two new dates for the purpose — February 19 or March 5; that he had ordered that the registration of voters (pursuant to Decree No. 73) be extended to accommodate new voters; and that copies of the new Constitution would be distributed in eight dialects the people. (Bulletin Today, December 24, 1972.)
On January 10, 1973 it was reported that one more question would be added to the original four which were to be submitted to the Citizens Assemblies. The question concerning plebiscite was reworded as follows: "Do you like the plebiscite to be held later?" The implication, it may likewise be noted, was that the Assemblies should express their views as to the plebiscite should be held, not as to whether or not it should be held at all.
The next day, January 11, it was reported that six additional questions would be submitted, namely:
(1) Do you approve of the citizens assemblies as the base of popular government to decide issues of national interest?
(2) Do you approve of the new Constitution?
(3) Do you want a plebiscite to be called to ratify the new Constitution?
(4) Do you want the elections to be held in November, 1973 accordance with the provisions of the 1935 Constitution?
(5) If the elections would not be held, when do you want the next elections to be called?
(6) Do you want martial law to continue? [Bulletin Today, January 11, 1973; emphasis supplied].
Appended to the six additional questions above quoted were the suggested answers, thus:
COMMENTS ON
QUESTION No. 1
In order to broaden the base of citizens' participation in government.
QUESTION No. 2
But we do not want the Ad Interim Assembly to be convoked. Or if it is to be convened at all, it should not be done so until after at least seven (7) years from the approval of the New Constitution by the Citizens Assemblies.
QUESTION No. 3
If the Citizens Assemblies approve of the New Constitution, then the new Constitution should be deemed ratified.
The vote of the Citizens Assemblies should already be considered the plebiscite on the New Constitution.
QUESTION No. 4
We are sick and tired of too frequent elections. We are fed up with politics, of so many debates and so much expenses.
QUESTION No. 5
Probably a period of at least seven (7) years moratorium on elections will be enough for stability to be established in the country, for reforms to take root and normalcy to return.
QUESTION No. 6
We want President Marcos to continue with Martial Law. We want him to exercise his powers with more authority. We want him to be strong and firm so that he can accomplish all his reform program and establish normalcy in the country. If all other measures fail, we want President Marcos to declare a revolutionary government along the lines of the new Constitution without the ad interim Assembly.
So it was that on January 11, 1973, the second day of the purported referendum, the suggestion was broached, for the first time, that the plebiscite should be done away with and a favorable vote by the Assemblies deemed equivalent ratification. This was done, not in the questionnaire itself, but in the suggested answer to question No. 3. Strangely, however, it was not similarly suggested that an unfavorable vote be considered as rejection.
There should be no serious dispute as to the fact that the manner in which the voting was conducted in the Citizen Assemblies, assuming that such voting was held, was not within the intendment of Article XV, Section 1, of the 1935 Constitution nor in accordance with the Election Code of 1971. The referendum can by no means be considered as the plebiscite contemplated in Section 2 of said Code and in Article XVII, Section 16, of the draft Constitution itself, or as the election intended by Congress when it passed Resolution No. 2 on March 16, 1967 calling a Convention for the revision of the 1935 Constitution. The Citizens Assemblies were not limited to qualified, let alone registered voters, but included all citizens from the age of fifteen, and regardless of whether or not they were illiterates, feeble-minded, or ex convicts* — these being the classes of persons expressly disqualified from voting by Section 102 of the Election Code. In short, the constitutional and statutory qualifications were not considered in the determination of who should participate. No official ballots were used in the voting; it was done mostly by acclamation or open show of hands. Secrecy, which is one of the essential features of the election process, was not therefore observed. No set of rules for counting the votes or of tabulating them and reporting the figures was prescribed or followed. The Commission on Elections, which is the constitutional body charged with the enforcement and administration of all laws relative to the conduct of elections, took no part at all, either by way of supervision or in the assessment of the results.
It has been suggested that since according to Proclamation No. 1102 the overwhelming majority of all the members of the Citizens Assemblies had voted for the adoption of the proposed Constitution there was a substantial compliance with Article XV, Section 1, of the 1935 Constitution and with the Election Code of 1971. The suggestion misses the point entirely. It is of the essence of a valid exercise of the right of suffrage that not only must a majority or plurality of the voters carry the day but that the same must be duly ascertained in accordance with the procedure prescribed by law. In other words the very existence of such majority or plurality depends upon the manner of its ascertainment, and to conclude that it exists even if it has not been ascertained according to law is simply to beg the issue, or to assume the very fact to be established. Otherwise no election or plebiscite could be questioned for non-compliance with the provisions of the Election Law as long as it is certified that a majority of the citizens had voted favorably or adversely on whatever it was that was submitted to them to vote upon.
However, a finding that the ratification of the draft Constitution by the Citizens Assemblies, as certified by the President in Proclamation No. 1102, was not in accordance with the constitutional and statutory procedure laid down for the purpose does not quite resolve the questions raised in these cases. Such a finding, in our opinion, is on a matter which is essentially justiciable, that is, within the power of this Court to inquire into. It imports nothing more than a simple reading and application of the pertinent provisions of the 1935 Constitution, of the Election Code and of other related laws and official acts. No question of wisdom or of policy is involved. But from this finding it does not necessarily follow that this Court may justifiably declare that the Constitution has not become effective, and for that reason give due course to these petitions or grant the writs herein prayed for. The effectivity of the said Constitution, in the final analysis, is the basic and ultimate question posed by these cases, to resolve which considerations other than judicial, and therefore beyond the competence of this Court, are relevant and unavoidable.
Several theories have been advanced respectively by the parties. The petitioners lay stress on the invalidity of the ratification process adopted by the Citizens Assemblies and on that premise would have this Court grant the reliefs they seek. The respondents represented by the Solicitor General, whose theory may be taken as the official position of the Government, challenge the jurisdiction of this Court on the ground that the questions raised in the petitions are political and therefore non-justiciable, and that in any case popular acquiescence in the new Constitution and the prospect of unsettling acts done in reliance thereon should caution against interposition of the power of judicial review. Respondents Gil J. Puyat and Jose Roy (in L-36165), in their respective capacities as President and President Pro Tempore of the Senate of the Philippines, and through their counsel, Senator Arturo Tolentino, likewise invoke the political question doctrine, but on a ground not concurred in by the Solicitor General, namely, that approval of the 1973 Constitution by the people was made under a revolutionary government, in the course of a successful political revolution, which was converted by act of the people to the present de jure government under the 1973 Constitution."
Heretofore, constitutional disputes which have come before this Court for adjudication proceeded on the assumption, conceded by all, that the Constitution was in full force and effect, with the power and authority of the entire Government behind it; and the task of this Court was simply to determine whether or not the particular act or statute that was being challenged contravened some rule or mandate of that Constitution. The process employed was one of interpretation and synthesis. In the cases at bar there is no such assumption: the Constitution (1935) has been derogated and its continued existence as well as the validity of the act of derogation is issue. The legal problem posed by the situation is aggravated by the fact that the political arms of the Government — the Executive Departments and the two Houses of Congress — have accepted the new Constitution as effective: the former by organizing themselves and discharging their functions under it, and the latter by not convening on January 22, 1973 or at any time thereafter, as ordained by the 1935 Constitution, and in the case of a majority of the members by expressing their option to serve in the Interim National Assembly in accordance with Article XVIII, Section 2, of the 1973 Constitution.*
The theory advanced by Senator Tolentino, as counsel for respondents Puyat and Roy, may be taken up and restated at same length if only because it would constitute, if sustained, the most convenient ground for the invocation of the political-question doctrine. In support of his theory, Senator Tolentino contends that after President Marcos declared martial law on September 21, 1972 (Proclamation No. 1081) he established a revolutionary government when he issued General Order No. 1 the next day, wherein he proclaimed "that I shall govern the nation and direct the operation of the entire government, including all its agencies and instrumentalities, in my capacity, and shall exercise all the powers and prerogatives appurtenant and incident to my position as such Commander-in-Chief of all the Armed Forces of the Philippines." By this order, it is pointed out, the Commander-in-Chief of the Armed Forces assumed all the powers of government — executive, legislative, and judicial; and thereafter proceeded to exercise such powers by a series of Orders and Decrees which amounted to legislative enactments not justified under martial law and, in some instances, trenched upon the domain of the judiciary, by removing from its jurisdiction certain classes of cases, such as "those involving the validity, legality, or constitutionality of Proclamation No. 1081, or of any decree, order or act issued, promulgated or performed by me or by my duly designated representative pursuant thereto." (General Order No. 3 as amended by General Order No. 3-A, dated September 24, 1972.) The ratification by the Citizens Assemblies, it is averred, was the culminating act of the revolution, which thereupon converted the government into a de jure one under the 1973 Constitution.
If indeed it be accepted that the Citizens Assemblies had ratified the 1973 Constitution and that such ratification as well as the establishment of the government thereunder formed part of a revolution, albeit peaceful, then the issue of whether or not that Constitution has become effective and, as necessary corollary, whether or not the government legitimately functions under it instead of under the 1935 Constitution, is political and therefore non-judicial in nature. Under such a postulate what the people did in the Citizen Assemblies should be taken as an exercise of the ultimate sovereign power. If they had risen up in arms and by force deposed the then existing government and set up a new government in its place, there could not be the least doubt that their act would be political and not subject to judicial review but only to the judgment of the same body politic act, in the context just set forth, is based on realities. If a new government gains authority and dominance through force, it can be effectively challenged only by a stronger force; judicial dictum can prevail against it. We do not see that situation would be any different, as far as the doctrine of judicial review is concerned, if no force had been resorted to and the people, in defiance of the existing Constitution but peacefully because of the absence of any appreciable opposition, ordained a new Constitution and succeeded in having the government operate under it. Against such a reality there can be no adequate judicial relief; and so courts forbear to take cognizance of the question but leave it to be decided through political means.
The logic of the political-question doctrine is illustrated in statement of the U.S. Supreme Court in a case*relied upon, curiously enough, by the Solicitor General, who disagrees with the revolutionary government theory of Senator Tolentino. The case involved the issue of which of two opposing governments struggling for supremacy in the State of Rhode Island was the lawful one. The issue had previously come up in several other cases before the courts of the State, which uniformly held that the inquiry belonged to the political power and not to the judicial. Commenting on the ruling thus arrived at, the U.S. Supreme Court said: "And if a State court should enter upon the inquiry proposed in this case, and should come to the conclusion that the government under which it acted had been put aside and displaced by an opposing government, it would cease to be a court, and incapable of pronouncing a judicial decision upon the question it undertook to try. If it decides at all as a court, it necessarily affirms the existence and authority of the government under which it is exercising judicial power." In other words, since the court would have no choice but to decide in one way alone in order to be able to decide at all, the question could not be considered proper for judicial determination.
It should be noted that the above statement from Luther vs. Borden would be applicable in the cases at bar only on the premise that the ratification of the Constitution was a revolutionary act and that the government now functioning it is the product of such revolution. However, we are not prepared to agree that the premise is justified.
In the first, place, with specific reference to the questioned ratification, several significant circumstances may be noted. (1) The Citizens Assemblies were created, according to Presidential Decree No. 86, "to broaden the base of citizen participation in the democratic process and to afford ample opportunities for the citizenry to express their views on important national issues." (2) The President announced, according to the Daily Express of January 2, 1973, that "the referendum will be in the nature of a loose consultation with the people." (3) The question, as submitted to them on the particular point at issue here, was "Do you a approve of the Constitution?" (4) President Marcos, in proclaiming that the Constitution had been ratified, stated as follows: "(S)ince the referendum results show that more than ninety-five (95) per cent of the members of the Barangays (Citizens Assemblies) are in favor of the new Constitution, the Katipunan ng mga Barangay has strongly recommended that the new Constitution should already be deemed ratified by the Filipino people." (5) There was not enough time for the Citizens Assemblies to really familiarize themselves with the Constitution, much less with the many other subjects that were submitted to them. In fact the plebiscite planned for January 15, 1973 under Presidential Decree No. 73 had been postponed to an indefinite date, the reasons for the postponement being, as attributed to the President in the newspapers, that "there was little time to campaign for or against ratification" (Daily Express, Dec. 22, 1972); that he would base his decision (as to the date, of the plebiscite) on the compliance by the Commission (on Elections) on the publication requirement of the new Charter and on the position taken by national leaders" (Daily Express, Dec. 23, 1972); and that "the postponement would give us more time to debate on the merits of the Charter." (Bulletin Today, Dec. 24, 1972.)
The circumstances above enumerated lead us to the conclusion that the Citizens Assemblies could not have understood the referendum to be for the ratification of the Constitution, but only for the expression of their views on a consultative basis. Indeed, if the expression of those views had been intended as an act of ratification (or of rejection as a logical corollary) — there would have been no need for the Katipunan ng mga Barangay to recommend that the Constitution should already be deemed ratified, for recommendation imports recognition of some higher authority in whom the final decision rests.
But then the President, pursuant to such recommendation, did proclaim that the Constitution had been ratified and had come into effect. The more relevant consideration, therefore, as far as we can see, should be as to what the President had in mind in convening the Citizens Assemblies, submitting the Constitution to them and proclaiming that the favorable expression of their views was an act of ratification. In this respect subjective factors, which defy judicial analysis and adjudication, are necessarily involved.
In positing the problem within an identifiable frame of reference we find no need to consider whether or not the regime established by President Marcos since he declared martial law and under which the new Constitution was submitted to the Citizens Assemblies was a revolutionary one. The pivotal question is rather whether or not the effectivity of the said Constitution by virtue of Presidential Proclamation No. 1102, upon the recommendation of the Katipunan ng mga Barangay, was intended to be definite and irrevocable, regardless of non-compliance with the pertinent constitutional and statutory provisions prescribing the procedure for ratification. We must confess that after considering all the available evidence and all the relevant circumstances we have found no reasonably reliable answer to the question. On one hand we read, for instance, the following public statements of the President:
Speaking about the proclamation of martial law, he said:
I reiterate what I have said in the past: there is no turning back for our people.
We have committed ourselves to this revolution. We have pledged to it our future, our fortunes, our lives, our destiny. We have burned our bridges behind us. Let no man misunderstand the strength of our resolution. (A Report to the Nation, Jan. 7, 1973.)
On the occasion of the signing of Proclamation No. 1102 on January 17, 1973, the President said the following, among other things:
... We can, perhaps delimit the power of the people to speak on legal matters, on justiciable matters, on matters that may come before the experts and interpreters of the law. But we cannot disqualify the people from speaking on what we and the people consider purely political matters especially those that affect the fundamental law of the land.
... The political questions that were presented to the people are exactly those that refer to the form of government which the people want ... The implications of disregarding the people's will are too awesome to be even considered. For if any power in government should even dare to disregard the people's will there would be valid ground for revolt.
... Let it be known to everybody that the people have spoken and they will no longer tolerate any attempt to undermine the stability of their Republic; they will rise up in arms not in revolt against the Republic but in protection of the Republic which they have installed. It is quite clear when the people say, we ratify the Constitution, that they mean they will not discard, the Constitution.
On January 19, 1973 the Daily Express published statement of the President made the day before, from which the following portion is quoted:
... the times are too grave and the stakes too high for us permit the customary concessions to traditional democratic process to hold back our people's clear and unequivocal resolve and mandate to meet and overcome the extraordinary challenges presented by these extraordinary times.
On the same occasion of the signing of Proclamation No. 1102 the President made pointed reference to "the demand of some of our citizens ... that when all other measures should fail, that the President be directed to organize and establish a Revolutionary Government," but in the next breath added: "... if we do ratify the Constitution, how can we speak of Revolutionary Government? They cannot be compatible ..." "(I)t is my feeling," he said, "that the Citizens' Assemblies which submitted this recommendation merely sought articulate their impatience with the status quo that has brought about anarchy, confusion and misery to the masses ..." The only alternatives which the President clearly implied by the foregoing statements were the ratification of the new Constitution and the establishment of a revolutionary government, the latter being unnecessary, in his opinion, because precisely the Constitution had been ratified. The third obvious alternative was entirely ruled out, namely, a return to the 1935 Constitution, for it was the status quo under that Constitution that had caused "anarchy, confusion and misery." The message seems clear: rather than return to such status quo, he would heed the recommendation of the Citizens' Assemblies to establish a revolutionary government, because that would be the only other way to carry out the reforms he had envisioned and initiated — reforms which, in all fairness and honesty, must be given credit for the improved quality of life in its many aspects, except only in the field of civil liberties.
If there is any significance, both explicit and implicit, and certainly unmistakable, in the foregoing pronouncements, it is that the step taken in connection with the ratification of the Constitution was meant to be irreversible, and that nothing anyone could say would make the least difference. And if this is a correct and accurate assessment of the situation, then we would say that since it has been brought about by political action and is now maintained by the government that is in undisputed authority and dominance, the matter lies beyond the power of judicial review.
On the other hand, by avowals no less significant if not so emphatic in terms, President Marcos has professed fealty to the Constitution. In "Today's Revolution: Democracy" he says:
I believe, therefore, in the necessity of Revolution as an instrument of individual and social change ... but that in a democratic society, revolution is of necessity, constitutional, peaceful, and legal.
In his TV address of September 23, 1972, President Marcos told the nation:
I have proclaimed martial law in accordance with the powers vested in the President by the Constitution of the Philippines.
x x x x x x x x x
I repeat, this is not a military takeover of civil government functions. The Government of the Republic of the Philippines which was established by our people in 1946 continues.
x x x x x x x x x
I assure you that I am utilizing this power vested in me by the Constitution to save the Republic and reform our society...
I have had to use this constitutional power in order that we may not completely lose the civil rights and freedom which we cherish...
... We are against the wall. We must now defend the Republic with the stronger powers of the Constitution.
(Vital Documents, pp. 1-12; emphasis supplied).
In the report of an interview granted by the President to the Newsweek Magazine (published in the issue of January 29, 1973), the following appears:
x x x x x x x x x
Q. Now that you have gotten off the constitutional track, won't you be in serious trouble if you run into critical problems with your programs?
R. I have never gotten off the constitutional track. Everything I am doing is in accordance with the 1935 Constitution. The only thing is that instead of 18-year-olds voting, we have allowed 15-year-olds the right to vote. But the 15-year-olds of today are high-school students, if not graduates, and they are better informed than my contemporaries at that age. On the matter of whether it is constitutional to proclaim martial law, it is constitutional because the Constitution provides for it in the event of invasion, insurrection, rebellion or immediate danger thereof. We may quarrel about whether what we have gone through is sufficient cause to proclaim martial law but at the very least there is a danger of rebellion because so many of our soldiers have been killed. You must remember this (martial law provision) was lifted from the American legislation that was the fundamental law of our country.
x x x x x x x x x
In the light of this seeming ambivalence, the choice of what course of action to pursue belongs to the President. We have earlier made reference to subjective factors on which this Court, to our mind, is in no position to pass judgment. Among them is the President's own assessment of the will of the people as expressed through the Citizens Assemblies and of the importance of the 1973 Constitution to the successful implementation of the social and economic reforms he has started or envisioned. If he should decide that there is no turning back, that what the people recommended through the Citizens Assemblies, as they were reported to him, demand that the action he took pursuant thereto be final and irrevocable, then judicial review is out of the question.
In articulating our view that the procedure of ratification that was followed was not in accordance with the 1935 Constitution and related statutes, we have discharged our sworn duty as we conceive it to be. The President should now perhaps decide, if he has not already decided, whether adherence to such procedure is weighty enough a consideration, if only to dispel any cloud of doubt that may now and in the future shroud the nation's Charter.
In the deliberations of this Court one of the issues formulated for resolution is whether or not the new Constitution, since its submission to the Citizens Assemblies, has found acceptance among the people, such issue being related to the political question theory propounded by the respondents. We have not tarried on the point at all since we find no reliable basis on which to form a judgment. Under a regime of martial law, with the free expression of opinions through the usual media vehicles restricted, we have no means of knowing, to the point of judicial certainty, whether the people have accepted the Constitution. In any event, we do not find the issue decisive insofar as our vote in these cases is concerned. To interpret the Constitution — that is judicial. That the Constitution should be deemed in effect because of popular acquiescence — that is political, and therefore beyond the domain of judicial review.
We therefore vote not to give due course to the instant petitions.
Footnotes
* The undersigned (Justice Querube C. Makalintal) who had reserved his right to do so, filed a separate dissenting opinion when the Court denied a motion for reconsideration, and voted in favor of the validity of the questioned Resolution. Mr. Justice Enrique M. Fernando joined in the dissent.
* Thus by Presidential Decree No. 86 what the Constitutional Convention itself had proposed unsuccessfully as an amendment to the 1935 Constitution, reducing the voting age from 21 to 18, but the submission of which to a plebiscite was declared invalid by this Court in Tolentino vs. COMELEC, became a reality of an even more far-reaching import — since fifteen-year olds were included in the Citizens Assemblies.
* According to the Solicitor General 92 Congressmen and 15 Senators (both numbers constituting majorities) have expressed their option.
* Luther v. Borden, 48 U.S. (7 Haw.) 1, 12 L. Ed. 581 (1849).
Separate Opinions
BARREDO, J., concurring:
As far as I am concerned, I regard the present petitions as no more than mere reiterations of the Supplemental Petitions filed by Counsel Lorenzo M. Tañada on January 15, 1973 in the so called Plebiscite Cases decided by this Court on January 22, 1978. Of course, there are amplifications of some of the grounds previously alleged and in the course of the unprecedented five-day hearing that was held from February 12 to 16 last, more extensive and illuminating arguments were heard by Us, but, in my estimation, and with due recognition of the sincerety, brilliance and eloquence of counsels, nothing more cogent and compelling than what had already been previously presented by Counsel Tañada is before Us now. Accordingly, I cannot see any reason why I should change the position I took in regard to the earlier cases. I reiterate, therefore, the vote I cast when these petitions were initially considered by the Court; namely, to dismiss them.
In view, however, of the transcendental importance of the issues before the Court and the significance to our people and in history of the individual stands of the members of the Court in relation to said issues and to the final outcome of these cases, and considering that I reserved before the filing of a more extended opinion, I will take this opportunity to explain further why I hold that the 1973 Constitution is already in force, if only to clarify that apart from the people's right of revolution to which I made pointed reference in my previous opinion, I can see now, after further reflection, that the vote of the people in the referendum in the Citizens Assemblies held on January 10 to 15, 1973, upon the result of which Proclamation 1102 is based, may be viewed more importantly as a political act than as a purely legal one with the result that such vote to consider the 1973 Constitution as ratified without the necessity of holding a plebiscite in the form followed in the previous ratification plebiscites in 1935 of the Constitution itself, 1937 of women's suffrage, 1939 of the amendments to the Ordinance Appended to the Constitution, 1940 of the re-election of the President, the bicameral legislature and the Commission on Elections, 1947 of the parity amendment and 1967, rejecting the proposed increase in the members of the House of Representatives and eligibility of members of Congress to the Constitutional Convention, may be deemed as a valid ratification substantially in compliance with the basic intent of Article XV of the 1935 Constitution. If indeed this explanation may be considered as a modification of my rationalization then, I wish to emphasize that my position as to the fundamental issue regarding the enforceability of the new Constitution is even firmer now than ever before. As I shall elucidate anon, paramount considerations of national import have led me to the conviction that the best interests of all concerned would be best served by the Supreme Court holding that the 1973 Constitution is now in force, not necessarily as a consequence of the revolutionary concept previously suggested by me, but upon the ground that as a political, more than as a legal, act of the people, the result of the referendum may be construed as a compliance with the substantiality of Article XV of the 1935 Constitution.
I
The facts that gave rise to these proceedings are historical and well known. Generally, they may be taken judicial notice of. They revolve around the purported ratification of the Constitution of 1973 declared in Proclamation 1102 issued by the President on January 17, 1973.
Pursuant to a joint resolution of the Congress sitting as a constituent assembly approved on March 16, 1967, delegates to a constitutional convention to propose amendments to the Constitution of 1935 were elected in accordance with the implementing law, Republic Act 6132, on November 10, 1970. Known as the Constitutional Convention of 1971, the assembly began its sessions on June 1, 1971. After encountering a lot of difficulties, due to bitter rivalries over important positions and committees and an incomprehensible fear of overconcentrating powers in their officers, the delegates went about their work in comparatively slow pace, and by the third quarter of 1972 had finished deliberations and second-reading voting only on an insignificant number of proposals — until September 21, 1972, when the President, not altogether unexpectedly, yet abruptly, issued Proclamation 1081 declaring martial law throughout the country. An attempt was made to have the Convention recessed until after the lifting of martial law, and not long after the motion of Delegate Kalaw to such effect was turned down, the activities within the assembly shifted to high gear. As if unmindful of the arrest and continued detention of several of its members, the convention gathered swift momentum in its work, and on November 30, 1972, it approved by overwhelming vote the draft of a complete constitution, instead of mere specific amendments of particular portions of the Constitution of 1935. Needless to say, before martial law was declared, there was full and unlimited coverage of the workings in the convention by the mass media. At the same time, public debates and discussions on various aspects of proposed amendments were not uncommon.
Earlier, on November 22, 1972, the Convention had Resolution No. 5843 proposing "to President Ferdinand Marcos that a decree be issued calling a plebiscite for ratification of the proposed new Constitution on appropriate date as he shall determine and providing for necessary funds therefor." Acting under this authority, December 1, 1972, the President issued Presidential Decree No. 73 submitting the draft constitution for ratification by the people at a plebiscite set for January 15, 1973. This order contained provisions more or less similar to the plebiscite laws passed by Congress relative to the past plebiscites held in connection with previous proposed amendments.
In connection with the plebiscite thus contemplated, General Order No. 17 was issued ordering and enjoining the authorities to allow and encourage public and free discussions on proposed constitution. Not only this, subsequently, under date of December 17, 1972, the President ordered the suspension the effects of martial law and lifted the suspension of privilege of the writ of habeas corpus insofar as activities connected with the ratification of the draft constitution were concerned. These two orders were not, however, to last very long. On January 7, 1973, the President, invoking information related to him that the area of public debate and discussion had opened by his previous orders was being taken advantage of by subversive elements to defeat the purposes for which they were issued and to foment public confusion, withdrew said orders and enjoined full and stricter implementation of martial law.
In the meantime, the President had issued on December 3, 1972 Presidential Decree No. 86 creating Citizens Assemblies "so as to afford ample opportunities for the citizenry to express their views on important national issues" and one of the questions presented to said assemblies was: "Do you like the plebiscite on the proposed Constitution to be held later" So, the same order of January 7, 1973, General Order No. 20, the President ordered, "that the plebiscite scheduled to be held January 15, 1973, be postponed until further notice".
In the meanwhile also, on January 5, 1973, the President issued Presidential Decree, No. 86-A providing as follows:
PRESIDENTIAL DECREE NO. 86-A
STRENGTHENING AND DEFINING THE ROLE OF
BARANGAYS (CITIZENS ASSEMBLIES)
WHEREAS, on the basis of preliminary and initial reports from the field as gathered from barangays (citizens assemblies) that have so far been established, the people would like to decide for themselves questions or issues, both local and national, affecting their day-to-day lives and their future;
WHEREAS, the barangays (citizens assemblies) would like themselves to be the vehicle for expressing the views of the people on important national issues;
WHEREAS, such barangays (citizens assemblies) desire that they be given legal status and due recognition as constituting the genuine, legitimate and valid expression of the popular will; and
WHEREAS, the people would like the citizens assemblies to conduct immediately a referendum on certain specified questions such as the ratification of the new Constitution, continuance of martial law, the convening of Congress on January 22, 1973, and the elections in November 1973 pursuant to the 1935 Constitution.
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the powers vested in me by the Constitution as Commander-in-Chief of all Armed Forces of the Philippines, do hereby declare as part of the law of the land the following:
1. The present barangays (citizens assemblies) are created under Presidential Decree No. 86 dated December 31, 1972, shall constitute the base for citizen participation in governmental affairs and their collective views shall be considered in the formulation of national policies or programs and, wherever practicable, shall be translated into concrete and specific decision;
2. Such barangays (citizens assemblies) shall consider vital national issues now confronting the country, like the holding of the plebiscite on the new Constitution, the continuation of martial rule, the convening of Congress on January 22, 1973, and the holding of elections in November 1973, and others in the future, which shall serve as guide or basis for action or decision by the national government;
3. The barangays (citizens assemblies) shall conduct between January 10 and 15, 1973, a referendum on important national issues, including those specified in paragraph 2 hereof, and submit results thereof to the Department of Local Governments Community Development immediately thereafter, pursuant to express will of the people as reflected in the reports gathered from the many thousands of barangays (citizens assemblies) throughout the country.
4. This Decree shall take effect immediately.
Done in the City of Manila, this 5th day of January, in the year of Our Lord, nineteen hundred and seventy three.
And on January 7, 1973, this was followed by Presidential Decree No. 86-B reading thus:
PRESIDENTIAL DECREE NO. 86-B
DEFINING FURTHER THE ROLE OF BARANGAYS (CITIZENS
ASSEMBLIES)
WHEREAS, since their creation pursuant to Presidential Decree No. 86 dated December 31, 1972, the Barangays (Citizens Assemblies) have petitioned the Office of the President to submit them for resolution important national issues;
WHEREAS, one of the questions persistently mentioned refers to the ratification of the Constitution proposed by the 1971 Constitutional Convention;
WHEREAS, on the basis of the said petitions, it is evident that the people believe that the submission of the proposed Constitution to the Citizens Assemblies or Barangays should be taken as a plebiscite in itself in view of the fact that freedom of debate has always been limited to the leadership in political, economic and social fields, and that it is now necessary to bring this down to the level of the people themselves through the Barangays or Citizens Assemblies;
NOW THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the powers in me vested by the Constitution, do hereby order that important national issues shall from time to time be referred to the Barangays (Citizens Assemblies) for resolution in accordance with Presidential Decree No. 86-A dated January 5, 1973 and that the initial referendum shall include the matter of ratification of the Constitution proposed by the 1971 Constitutional Convention.
The Secretary of the Department of Local Governments and Community Development shall insure the implementation of this Order.
Done in the City of Manila, this 7th day of January in the year of Our Lord, nineteen hundred and seventy-three.ᇈWᑭHIL
And so it was that by January 10, 1973, when the Citizens Assemblies thus created started the referendum which was held from said date to January 15, 1973, the following questions were submitted to them:
(1) Do you like the New Society?
(2) Do you like the reforms under martial law?
(3) Do you like Congress again to hold sessions?
(4) Do you like the plebiscite to be held later?
(5) Do you like the way President Marcos is running the affairs of the government?.
but on January 11, 1973, six questions were added as follows:
(1) Do you approve of the citizens assemblies as the base of popular government to decide issues of national interests?
(2) Do you approve of the New Constitution?
(3) Do you want a plebiscite to be called to ratify the new Constitution?
(4) Do you want the elections to be held in November, 1973 in accordance with the provisions of the 1935 Constitution?
(5) If the elections would not be held, when do you want it to be called?
(6) Do you want martial law to continue?
It is not seriously denied that together with the question the voters were furnished "comments" on the said questions more or less suggestive of the answer desired. It may assumed that the said "comments" came from official sources, albeit specifically unidentified. As petitioners point out, the most relevant of these "comments" were the following:
COMMENTS ON
"x x x x x x
QUESTION No. 2
But we do not want the Ad Interim Assembly to be convoke. Or if it is to be convened at all, it should not be done so until after at least seven (7) years from the approval of the New Constitution by the Citizens Assemblies.
QUESTION No. 3
The vote of the Citizens Assemblies should already be considered the plebiscite on the New Constitution.
If the Citizens Assemblies approve of the new Constitution then the new Constitution should be deemed ratified.
The Solicitor General claims, and there seems to be showing otherwise, that the results of the referendum were determined in the following manner:
Thereafter, the results of the voting were collated and sent to the Department of Local Governments. The transmission of the results was made by telegram, telephone, the provincial government SSB System in each province connecting all towns; the SSB communication of the PACD connecting most provinces; the Department of Public Information Network System; the Weather Bureau Communication System connecting all provincial capitals and the National Civil Defense Network connecting all provincial capitals. The certificates of results were then flown to Manila to confirm the previous figures received by the aforementioned means of transmission. The certificates of results tallied with the previous figures taken with the exception of few cases of clerical errors.
The Department adopted a system of regionalizing the receiving section of the Citizens Assemblies operation at the Department wherein the identity of the barrio and the province was immediately given to a staff in charge of each region. Every afternoon at 2:00 o'clock, the 11 regions submitted the figures they received from the field to the central committee to tabulate the returns. The last figures were tabulated at 12 midnight of January 16, 1973 and early morning of January 17, 1973 and were then communicated to the President by the Department of Local Governments.
The development culminated in the issuance by the President of Proclamation 1102 on January 17, 1973. Said proclamation reads:
PROCLAMATION NO. 1102 ANNOUNCING THE RATIFICATION BY THE FILIPINO PEOPLE OF THE CONSTITUTION PROPOSED BY THE 1971 CONSTITUTIONAL CONVENTION.
WHEREAS, the Constitution proposed by the nineteen hundred seventy-one Constitutional Convention is subject to ratification by the Filipino people;
WHEREAS, Citizens Assemblies were created in barrios in municipalities and in districts/wards in chartered cities pursuant to Presidential Decree No. 6, dated December 31, 1972, composed of all persons who are residents of the barrio, district or ward for at least six months, fifteen years of age or over, citizens of the Philippines and who are registered in the list of Citizen Assembly members kept by the barrio, district or ward secretary;
WHEREAS, the said Citizens Assemblies were establish precisely to broaden the base of citizen participation in the democratic process and to afford ample opportunity for the citizen to express their views on important national issues;
WHEREAS, responding to the clamor of the people an pursuant to Presidential Decree No. 86-A, dated January 5, 1973, the following questions were posed before Citizens' Assemblies or Barangays: Do you approve of the New Constitution? Do you still want a plebiscite to be called to ratify the new Constitution?
WHEREAS, fourteen million nine hundred seventy-six thousand five hundred sixty one (14,976,561) members of all the Barangays (Citizens Assemblies) voted for the adoption of the proposed Constitution, as against seven hundred forty-three thousand eight hundred sixty nine (743,869) who voted for its rejection; while on the question as to whether or not the people would still like a plebiscite to be called to ratify the new Constitution fourteen million two hundred ninety-eight thousand eight hundred fourteen (14,298,814) answered that there was no need for plebiscite and that the vote of the Barangays (Citizens Assemblies) should be considered as a vote in a plebiscite;
WHEREAS, since the referendum results show that more than ninety-five (95) percent of the members of the Barangays (Citizen Assemblies) are in favor of the New Constitution, the Katipunan ng Mga Barangay has strongly recommended that the new Constitution should already be deemed ratified by the Filipino people;
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the powers in me vested by the Constitution, do hereby certify and proclaim that the Constitution proposed by the nineteen hundred and seventy-one (1971) Constitutional Convention has been ratified by an overwhelmingly majority of all of the votes cast by the members of all the Barangays (Citizens Assemblies) throughout the Philippines, and has thereby come into effect.
IN WITNESS WHEREOF, I have hereunto set my hand and caused the seal of the Republic of the Philippines to be affixed.
Done in the City of Manila, this 17th day of January, in the year of Our Lord, nineteen hundred and seventy-three.
The first attempt to question the steps just enumerated taken by the President was in the so-called Plebiscite Cases, ten in number, which were filed by different petitioners during the first half of December 1972.1Their common target then was Presidential Decree No. 73, but before the said cases could be decided, the series of moves tending in effect to make them moot and academic insofar as they referred exclusively to the said Presidential Decree began to take shape upon the issuance of Presidential Decree No. 86-A, quoted above. And when Presidential Decree No. 86-B, also above quoted, was issued and the six additional questions which were first publicized on January 11, 1973 were known, together with the "comments", petitioners sensed that a new and unorthodox procedure was being adopted to secure approval by the people of the new Constitution, hence Counsel Tañada, not being satisfied with the fate of his urgent motion for early decision of the above ten cases dated January 12, 1973, filed on January 15, 1973, his supplemental motion seeking the prohibition against and injunction of the proceedings going on. Principal objective was to prevent that the President be furnished the report of the results of the referendum and thereby disable him from carrying out what petitioners were apprehensively foreseeing would be done — the issuance of some kind of proclamation, order or decree, declaring that the new Constitution had been ratified. Reacting swiftly, the Court resolved on the same day, January 15, which was Monday, to consider the supplemental motion as a supplemental petition and to require the respondents to answer the same the next Wednesday, January 17th, before the hour of the hearing of the petition which set for 9:30 o'clock in the morning of that day. The details what happened that morning form part of the recital of facts the decision rendered by this Court in the ten cases on January 22, 1973 and need not be repeated here. Suffice it to state no that before the hearing could be closed and while Counsel Tañada was still insisting on his prayer for preliminary injunction or restraining order, the Secretary of Justice arrived and personally handed to the Chief Justice a copy Proclamation 1102 which had been issued at about 11:00 o'clock that same morning. In other words, the valiant and persistent efforts of petitioners and their counsels were overtaken by adverse developments, and in the mind of the majority of the members of the Court, the cases had become academic. For my part, I took the view that even on the basis of the supplemental petition and the answer thereto filed by respondents, the Court could already decide on the fundamental issue of the validity Proclamation 1102, as Justices Zaldivar, Antonio and Esguerra also believed, inasmuch as Counsel Tañada's pleading and argument had anticipated its issuance, but the majority felt it was not ready to resolve the matter, for lack, according them, of full ventilation, and so, the decision reserved petitioners the filing of the "appropriate" cases, evidently, the present ones.
II
At the threshold, I find myself confronted by a matter which, although believed to be inconsequential by my learned brethren, I strongly feel needs special attention. I refer to the point raised by Counsel Arturo M. Tolentino for respondent Gil J. Puyat and Jose Roy, who have been sued as President and President Pro Tempore of the Senate, to the effect that change in the composition of the Supreme Court provided for the 1973 Constitution, from the 11-man tribunal under the 1935 Constitution to a 15-man Court, makes of these cases which were filed after January 17, 1973 the date when Proclamation 1102 declared the new Constitution as ratified, political nature and beyond our jurisdiction. The main consideration submitted in this connection is that inasmuch as the number votes needed for a decision of this Court has been increased from six to eight in ordinary cases and from eight to ten for the declaration of unconstitutionality of a treaty, executive agreement2or law, the Court would have to resolve first as a prejudicial question whether the Court is acting in these cases as the 15-man or the 11-man Court, in which event, it would be faced with the dilemma that if it acts either as the former or as the latter, it would be prejudging the very matter in issue one way or the other, and, in effect, it would be choosing between two constitutions, which is a political determination not within the Court's competence.
While I agree that the problem is at first blush rather involved, I do not share the view that the premises laid down by counsel necessarily preclude this Court from taking a definite stand on whether the Court is acting in these cases as the 15-Man or the 11-man Court. I feel very strongly that the issue should not be ignored or dodged, if only to make the world know that the Supreme Court of the Philippines is never incognizant of the capacity in which it is acting, much less lacking in courage or wisdom to resolve an issue that relates directly to its own composition. What a disgrace it would be to admit that this Supreme Court does not know, to use a common apt expression, whether it is fish or fowl. Withal, scholars and researchers who might go over our records in the future will inevitably examine minutely how each of us voted and upon what considerations we have individually acted, and, indeed, doubts may arise as to whether or not, despite the general result we might announce, there had been the requisite number of votes for a valid collegiate action.
For instance, it may be argued that the present cases do not involve an issue of unconstitutionality, hence, if we are acting as the 11-man Court, only six votes would suffice to declare Proclamation 1102 ineffective, and if upon analysis of our respective opinions it should be inferable therefrom that six of us have considered the matter before the Court as justiciable and at the same time have found the procedure of ratification adopted in Presidential Decrees 86-A and 86-B and related orders of the President as not being in conformity with Article XV of the old Constitution, a cloud would exist as to efficacy of the dispositive portion of Our decision dismiss these cases, even if we have it understood that by the vote of justices in favor of such dismissal, We intended to mean the implementation or enforcement of the new Constitution now being done could continue.
Be that as it may, I am against leaving such an important point open to speculation. By nature I am averse to ambiguity and equivocation and as a member of the Supreme Court, last thing I should knowingly countenance is uncertainty as to the juridical significance of any decision of the Court which is precisely being looked upon as the haven in which doubts are supposed to be authoritatively dispelled. Besides, from very nature of things, one thing is indubitably beyond dispute — we cannot act in both capacities of a 15-man and an 11-man Court at the same time, in like manner that it is inconceivable that the 1935 and 1973 Constitution can be considered by Us both in force. Our inescapable duty is to make a choice between them, according to what law and other considerations inherent to our function dictate. I cannot bear the thought that someone may someday say that the Supreme Court of the Philippines once decided a case without knowing the basis of its author to act or that it was ever wanting in judicial courage to define the same.
Accordingly, with full consciousness of my limitations but compelled by my sense of duty and propriety to straighten out this grave of issue touching on the capacity in which the Court acting in these cases, I hold that we have no alternative but adopt in the present situation the orthodox rule that when validity of an act or law is challenged as being repugnant constitutional mandate, the same is allowed to have effect until the Supreme Court rules that it is unconstitutional. Stated differently, We have to proceed on the assumption that the new Constitution is in force and that We are acting in these cases as the 15-man Supreme Court provided for there Contrary to counsel's contention, there is here no prejudgment for or against any of the two constitutions. The truth of matter is simply that in the normal and logical conduct governmental activities, it is neither practical nor wise to defer the course of any action until after the courts have ascertained their legality, not only because if that were to be the rule, the functioning of government would correspondingly be undesirably hesitative and cumbersome, but more importantly, because the courts must at the first instance accord due respect to the acts of the other departments, as otherwise, the smooth running of the government would have to depend entirely on the unanimity of opinions among all its departments, which is hardly possible, unless it is assumed that only the judges have the exclusive prerogative of making and enforcing the law, aside from being its sole interpreter, which is contrary to all norms of juridical and political thinking. To my knowledge, there is yet no country in the world that has recognized judicial supremacy as its basic governmental principle, no matter how desirable we might believe the idea to be.
Indeed, it is not hard to visualize the difficulty if not absurdity of Our acting on the assumption that this Court is still functioning under the 1935 Constitution. It is undeniable that the whole government, including the provincial, municipal and barrio units and not excluding the lower courts up to the Court of Appeals, is operating under the 1973 Constitution. Almost daily, presidential orders and decrees of the most legislative character affecting practically every aspect of governmental and private activity as well as the relations between the government and the citizenry are pouring out from Malacañang under the authority of said Constitution. On the other hand, taxes are being exacted and penalties in connection therewith are being imposed under said orders and decrees. Obligations have been contracted and business and industrial plans have been and are being projected pursuant to them. Displacements of public officials and employees in big numbers are going on in obedience to them. For the ten justices of the Supreme Court to constitute an island of resistance in the midst of these developments, which even unreasoning obstinacy cannot ignore, much less impede, is unimaginable, let alone the absurd and complicated consequences such a position entails in the internal workings within the judiciary amount its different components, what with the lower courts considering such orders and decrees as forming part of the law of the land in making their orders and decisions, whereas the Supreme Court is holding, as it were, their effectivity at bay if it is not being indifferent to or ignoring them.
It is suggested that the President, being a man of law, committed to abide by the decision of the Supreme Court, and if the Court feels that it cannot in the meantime consider the enforcement of the new Constitution, he can wait for its decision. Accepting the truth of this assertion, it does necessarily follow that by this attitude of the President, considers the Supreme Court as still operating under the Constitution. Quite on the contrary, it is a fact that he has given instructions for the payment of the justices in accordance with the rate fixed in the New Constitution. Not only that, official alter ego, the Secretary of Justice, has been shoving this Court, since January 18, 1973, all matters related to the administrative supervision of the lower courts which by the new charter has been transferred from the Department of Justice to the Supreme Court, and as far as I know, President has not countermanded the Secretary's steps in that direction. That, on the other hand, the President has not augmented the justices of the Court to complete the prescribed number of fifteen is, in my appraisal, of no consequence considering that with the presence of ten justices who are the Court now, there is a working quorum, and the addition of new justices cannot in anyway affect the voting on the constitutional questions now before Us because, while there sufficient justices to declare by their unanimous vote illegality of Proclamation 1102, the votes of the justices to added would only be committed to upholding the same, since they cannot by any standard be expected to vote against legality of the very Constitution under which they would be appointed.
Moreover, what makes the premise of presumptive valid preferable and, even imperative, is that We are dealing here with a whole constitution that radically modifies or alters only the form of our government from presidential parliamentary but also other constitutionally institutions vitally affecting all levels of society. It is, to mind, unrealistic to insist on that, fundamentally, the 1973 Constitution is the same 1935 Constitution, with a few improvements. A cursory perusal of the former should convince anyone that it is in essence a new one. While it does retain republicanism as the basic governmental tenet, the institutional changes introduced thereby are rather radical and its social orientation is decidedly more socialistic, just as its nationalistic features are somewhat different in certain respects. One cannot but note that the change embraces practically every part of the old charter, from its preamble down to its amending and effectivity clauses, involving as they do the statement of general principles, the citizenship and suffrage qualifications, the articles on the form of government, the judiciary provisions, the spelling out of the duties and responsibilities not only of citizens but also of officers of the government and the provisions on the national economy as well as the patrimony of the nation, not to mention the distinctive features of the general provisions. What is more, the transitory provisions notably depart from traditional and orthodox views in that, in general, the powers of government during the interim period are more or less concentrated in the President, to the extent that the continuation or discontinuance of what is now practically a one-man-rule, is even left to his discretion. Notably, the express ratification of all proclamations, orders, decrees and acts previously issued or done by the President, obviously meant to encompass those issued during martial law, is a commitment to the concept of martial law powers being implemented by President Marcos, in defiance of traditional views and prevailing jurisprudence, to the effect that the Executive's power of legislation during a regime of martial law is all inclusive and is not limited to the matters demanded by military necessity. In other words, the new constitution unlike any other constitution countenances the institution by the executive of reforms which normally is the exclusive attribute of the legislature.
Withal, the best proofs that by its expressed and implied intent, the Constitution of 1973 is a new one, are that (1) Section 16 of its Article XVII which provides that this constitution shall "supersede the Constitution of nineteen hundred and thirty-five and all amendments thereto" and (2) its transitory provisions expressly continue the effectivity of existing laws, offices and courts as well as the tenure of all incumbent officials, not adversely affected by it, which would have been unnecessary if the old constitution were being merely amended.
The new Constitution, in its Section 10, Article XVII, provides that "(T)he incumbent members of the Judiciary (which include the Chief Justice and Associate Justices of Supreme Court) may continue in office (under the constitution) until they reach the age of seventy years, etc." By virtue of the presumptive validity of the new charter, all of form part of the 15-man-Court provided for therein correspondingly, We have in legal contemplation, ceased in the meanwhile to be members of the 11-man-Court in the 1935 Constitution. Should the Court finally decide that the Constitution is invalid, then We would automatically revert to our positions in the 11-man- Court, otherwise, We would just continue to be in our membership in the 15-man-Court, unless We feel We cannot in conscience accept the legality of existence. On the other hand, if it is assumed that We are the 11-man-Court and it happens that Our collective decision is in favor of the new constitution, it would be problematical for any dissenting justice to consider himself as included automatically in the 15-man-Court, since that would tantamount to accepting a position he does not honestly believe exists.
III
In brief, the main contention of the petitioners is that Proclamation 1102 is invalid because the ratification of the 1973 Constitution it purports to declare as having taken place as a result of the referendum above-referred to is ineffective since it cannot be said on the basis of the said referendum that said Constitution has been "approved by a majority of the votes cast at an election" in the manner prescribed by Article XV the Constitution of 1935. More specifically, they maintain that the word "election" in the said Article has already acquired a definite accepted meaning out of the consistent holding in the past of ratification plebiscites, and accordingly, no other form of ratification can be considered contemplated by the framers of the Old Constitution than that which had been followed 1935, 1937, 1939, 1940, 1946 and 1967, the last three or four which were held under the supervision of the Commission on Elections. Furthermore, they emphatically deny the veracity of the proclaimed results of the referendum because, according to them the referendum was a farce and its results were manufactured or prefabricated, considering that Mr. Francisco Cruz, who is supposed to have submitted the final report to the President, which served as basis for Proclamation 1102, had no official authority to render the same, and it is inconceivable and humanly impossible for anyone to have been able to gather, tabulate and canvass the 15 million votes allegedly reported within the short period of time employed. Of course, they also contend that in any event, there was no proper submission because martial law per se creates constructive duress which deprives the voters of the complete freedom needed for the exercise of their right of choice and actually, there was neither time nor opportunity for real debate before they voted.
On the other hand, the position of the Solicitor General as counsel for the respondents is that the matter raised in the petitions is a political one which the courts are not supposed to inquire into, and, anyway, there has been a substantial compliance with Article XV of the 1935 Constitution, inasmuch as, disregarding unessential matters of form, the undeniable fact is that the voting in the referendum resulted in the approval by the people of the New Constitution.
I need not dwell at length on these variant positions of the parties. In my separate opinion in the Plebiscite Cases, I already made the observation that in view of the lack of solemnity and regularity in the voting as well as in the manner of reporting and canvassing conducted in connection with the referendum, I cannot say that Article XV of the Old Constitution has been complied with, albeit I held that nonetheless, the Constitution of 1973 is already in force. In order, however, to make myself clearer on some relevant points, I would like to add a few considerations to what I have already said in the former cases.
In my opinion in those cases, the most important point I took into account was that in the face of the Presidential certification through Proclamation 1102 itself that the New Constitution has been approved by a majority of the people and having in mind facts of general knowledge which I have judicial notice of, I am in no position to deny that the result of the referendum was as the President had stated. I can believe that the figures referred to in the proclamation may not accurate, but I cannot say in conscience that all of them are manufactured or prefabricated, simply because I saw with own eyes that people did actually gather and listen discussions, if brief and inadequate for those who are abreast of current events and general occurrences, and that they did vote. I believe I can safely say that what I have seen have also been seen by many others throughout the country and unless it can be assumed, which honestly, I do not believe to be possible, that in fact there were actually no meetings held and no voting done in more places than those wherein there were such meetings and votings, I am not prepared to discredit entirely the declaration that there was voting and that the majority of the votes were in favor of the New Constitution. If in fact there were substantially less than 14 million votes of approval, the real figure, in my estimate, could still be significant enough and legally sufficient to serve as basis for a valid ratification.
It is contended, however, that the understanding was that the referendum among the Citizens Assemblies was to be in the nature merely of a loose consultation and not an outright submission for purposes of ratification. I can see that at the outset, when the first set of questions was released, such may have been the idea. It must not be lost sight of, however, that if the newspaper reports are to be believed, and I say this only because petitioners would consider the newspapers as the official gazettes of the administration, the last set of six questions were included precisely because the reaction to the idea of mere consultation was that the people wanted greater direct participation, thru the Citizens Assemblies, in decision-making regarding matters of vital national interest. Thus, looking at things more understandingly and realistically the two questions emphasized by counsel, namely, (1) Do yo approve of the New Constitution? and (2) Do you want plebiscite to be called to ratify the new Constitution? should be considered no longer as loose consultations but as direct inquiries about the desire of the voters regarding the matters mentioned. Accordingly, I take it that if the majority had expressed disapproval of the new Constitution, the logical consequence would have been the complete abandonment of the idea of holding any plebiscite at all. On the other hand, it is very plain to see that since the majority has already approved the new Constitution, a plebiscite would be superfluous. Clear as these rationalizations may be, it must have been thought that if the holding of a plebiscite was to be abandoned, there should be a direct and expressed desire of the people to such effect in order to forestall as much as possible any serious controversy regarding the non-holding of the plebiscite required by the letter of Section 16 of Article XVII, the effectivity clause, of the new Constitution. Oddly enough, the "comments" accompanying the questions do strongly suggest this view. And as it turned out, the majority found no necessity in holding a plebiscite.
In connection with the question, Do you approve of the New Constitution? capital is being made of the point that as so framed, the thrust of the said question does not seek an answer of fact but of opinion. It is argued that it would have been factual were it worded categorically thus — Do you approve the New Constitution? The contention would have been weighty were it not unrealistic. I remember distinctly that the observation regarding the construction of the subject question was not originally made by any of the talented counsels for petitioners. It came from Mr. Justice Fred Ruiz Castro whose mastery of the English language can rightly be the cause of envy of even professors of English. None of the other members of the Court, as far as I can recall, ever noticed how the said question is phrased, or if anyone of Us did, I am not aware that he gave it more than passing attention. What I mean is that if neither any of the distinguished and learned counsels nor any member of the Court understood the said question otherwise than calling for a factual answer instead of a mere opinion, how could anyone expect the millions of unlettered members of the Citizens Assemblies to have noticed the point brought out by Justice Castro? Truth to tell, I myself did not realize the difference until Justice Castro gave it emphasis. Besides, reading the question in the light of the accompanying "comment" corresponding to it in particular, I am certain that any one who answered the same understood it in no other sense than a direct inquiry as to whether or not, as a matter of fact, he approves the New Constitution, and naturally, affirmative answer must be taken as a categorical vote of approval thereof, considering, particularly, that according to the reported result of the referendum said answer was even coupled with the request that the President defer the convening of the Interim National Assembly.
It is also contended that because of this reference in answer to that question to the deferment of the convening of the interim assembly, the said answer is at best a conditional approval not proper nor acceptable for purposes of ratification plebiscite. The contention has no basis. In interest of accuracy, the additional answer proposed in pertinent "comment" reads as follows: "But we do not want Ad Interim Assembly to be convoked etc." On the assumption that the actual answer, as reported, was of similar tenor, it is not fair to ascribe to it the imposition of a condition. At most, the intention is no more than a suggestion or a wish.
As regards said "comments", it must be considered that a martial law was declared, the circumstances surrounding making of the Constitution acquired a different and more meaningful aspect, namely, the formation of a new society. From the point of view of the President and on the basis of intelligence reports available to him, the only way to meet situation created by the subversive elements was to introduce immediately effective reforms calculated to redeem the people from the depth of retrogression and stagnation caused by rampant graft and corruption in high places, influence peddling, oligarchic political practices, private armies, anarchy, deteriorating conditions of peace and order, the so inequalities widening the gap between the rich and the poor, and many other deplorable long standing maladies crying for early relief and solution. Definitely, as in the case of rebellious movement that threatened the Quirino Administration, the remedy was far from using bullets alone. If a constitution was to be approved as an effective instrument towards the eradication of such grave problems, it had to be approved without loss of time and sans the cumbersome processes that, from the realistic viewpoint, have in the past obstructed rather than hastened the progress of the people. Stated otherwise, in the context of actualities, the evident objective in having a new constitution is to establish new directions in the pursuit of the national aspirations and the carrying out of national policies. Only by bearing these considerations in mind can the "comments" already referred to be properly appreciated. To others said "comments" may appear as evidence of corruption of the will of those who attended the assemblies, but actually, they may also be viewed in the same light as the sample ballots commonly resorted to in the elections of officials, which no one can contend are per se means of coercion. Let us not forget that the times are abnormal, and prolonged dialogue and exchange of ideas are not generally possible, nor practical, considering the need for faster decisions and more resolute action. After all voting on a whole new constitution is different from voting on one, two or three specific proposed amendments, the former calls for nothing more than a collective view of all the provisions of the whole charter, for necessarily, one has to take the good together with the bad in it. It is rare for anyone to reject a constitution only because of a few specific objectionable features, no matter how substantial, considering the ever present possibility that after all it may be cured by subsequent amendment. Accordingly, there was need to indicate to the people the paths open to them in their quest for the betterment of their conditions, and as long as it is not shown that those who did not agree to the suggestions in the "comments" were actually compelled to vote against their will, I am not convinced that the existence of said "comments" should make any appreciable difference in the court's appraisal of the result of the referendum.
I must confess that the fact that the referendum was held during martial law detracts somehow from the value that the referendum would otherwise have had. As I intimated, however, in my former opinion, it is not fair to condemn and disregard the result of the referendum barely because of martial law per se. For one thing, many of the objectionable features of martial law have not actually materialized, if only because the implementation of martial law since its inception has been generally characterized by restraint and consideration, thanks to the expressed wishes of the President that the same be made "Philippine style", which means without the rigor that has attended it in other lands and other times. Moreover, although the restrictions on the freedom of speech, the press and movement during martial law do have their corresponding adverse effects on the area of information which should be open to a voter, in its real sense what "chills" his freedom of choice and mars his exercise of discretion is suspension of the privilege of the writ of habeas corpus. The reason is simply that a man may freely and correctly vote even if the needed information he possesses as to the candidates or issues being voted upon is more or less incomplete, but when he is subject to arrest and detention without investigation and without being informed of the cause thereof, that is something else which may actually cause him to cast a captive vote. Thus it is the suspension of the writ of habeas corpus accompanying martial law that can cause possible restraint on the freedom choice in an election held during martial law. It is a fact, however, borne by history and actual experience, that in the Philippines, the suspension of the privilege of the writ habeas corpus has never produced any chilling effect upon the voters, since it is known by all that only those who run afoul the law, saving inconsequential instances, have any cause for apprehension in regard to the conduct by them of the normal activities of life. And so it is recorded that in the elections 1951 and 1971, held while the privilege of writ of habeas corpus was under suspension, the Filipino voters gave the then opposition parties overwhelming if not sweeping victories, in defiance of the respective administrations that ordered the suspensions.
At this juncture, I think it is fit to make it clear that I am not trying to show that the result of the referendum may considered as sufficient basis for declaring that the New Constitution has been ratified in accordance with the amending clause of the 1935 Constitution. I reiterate that in point of law, I find neither strict nor substantial compliance. The foregoing discussion is only to counter, if I may, certain impression regarding the general conditions obtaining during and in relation to the referendum which could have in one way or another affected the exercise of the freedom of choice and the use of discretion by the members of the Citizens Assemblies, to the end that as far as the same conditions may be relevant in my subsequent discussions of the acceptance by the people of the New Constitution they may also be considered.
IV
It is my sincere conviction that the Constitution of 1973 has been accepted or adopted by the people. And on this premise, my considered opinion is that the Court may no longer decide these cases on the basis of purely legal considerations. Factors which are non-legal but nevertheless ponderous and compelling cannot be ignored, for their relevancy is inherent in the issue itself to be resolved.
In my opinion in the Plebiscite Cases, I joined my colleagues in holding that the question of whether or not there was proper submission under Presidential Decree No. 73 is justiciable, and I still hold that the propriety of submission under any other law or in any other form is constitutionally a fit subject for inquiry by the courts. The ruling in the decided cases relied upon by petitioners are to this effect. In view, however, of the factual background of the cases at bar which include ratification itself, it is necessary for me to point out that when it comes to ratification, I am persuaded that there should be a boundary beyond which the competence of the courts no longer has any reason for being, because the other side is exclusively political territory reserved for their own dominion by the people.
The main basis of my opinion in the previous cases was acceptance by the people. Others may feel there is not enough indication of such acceptance in the record and in the circumstances the Court can take judicial notice of. For my part, I consider it unnecessary to be strictly judicial in inquiring into such fact. Being personally aware, as I have already stated, that the Citizens Assemblies did meet and vote, if irregularly and crudely, it is not for me to resort, for the purposes of these cases, to judicial tape and measure, to find out with absolute precision the veracity of the total number of votes actually cast. After all, the claims that upon a comparison of conflicting reports, cases of excess votes may be found, even if extrapolated will not, as far as I can figure out, suffice to overcome the outcome officially announced. Rather than try to form a conclusion out of the raw evidence before Us which the parties did not care to really complete, I feel safer by referring to the results announced in the proclamation itself. Giving substantial allowances for possible error and downright manipulation, it must not be overlooked that, after all, their having been accepted and adopted by the President, based on official reports submitted to him in due course of performance of duty of appropriate subordinate officials, elevated them to the category of an act of a coordinate department of the government which under the principle separation of powers is clothed with presumptive correctness or at least entitled to a high degree of acceptability, until overcome by better evidence, which in these cases does not exist. In any event, considering that due to the unorthodoxy of the procedure adopted and the difficulty of an accurate checking of all the figures, I am unable to conceive of any manageable means of acquiring information upon which to predicate a denial, I have no alternative but to rely on what has been officially declared. At this point, I would venture to express the feeling that if it were not generally conceded that there has been sufficient showing of the acceptance in question by this time, there would have been already demonstrative and significant indications of a rather widespread, if not organized resistance in one form or another. Much as they are to be given due recognition as magnificent manifestations of loyalty and devotion to principles, I cannot accord to the filing of these cases as indicative enough of the general attitude of the people.
It is true that in the opinion I had the privilege of penning the Court in Tolentino vs. Comelec, 41 SCRA 702, I made strong and unequivocal pronouncements to the effect that any amendment to the Constitution of 1935, to be valid, must appear to have been made in strict conformity with the requirements of Article XV thereof. What is more, that decision asserted judicial competence to inquire into the matter of compliance or non compliance as a justiciable matter. I still believe in the correctness of those views and I would even add that I sincerely feel it reflects the spirit of the said constitutional provision. Without trying to strain any point however, I, submit the following considerations in the context of the peculiar circumstances of the cases now at bar, which are entirely different from those in the backdrop of the Tolentino rulings I have referred to.
1. Consider that in the present case what is involved is not just an amendment of a particular provision of an existing Constitution; here, it is, as I have discussed earlier above, an entirely new Constitution that is being proposed. This important circumstance makes a great deal of difference.
No less than counsel Tolentino for herein respondents Puyat and Roy, who was himself the petitioner in the case I have just referred to is, now inviting Our attention to the exact language of Article XV and suggesting that the said Article may be strictly applied to proposed amendments but may hardly govern the ratification of a new Constitution. It is particularly stressed that the Article specifically refers to nothing else but "amendments to this Constitution" which if ratified "shall be valid as part of this Constitution." Indeed, how can a whole new constitution be by any manner of reasoning an amendment to any other constitution and how can it, if ratified, form part of such other constitution? In fact, in the Tolentino case I already somehow hinted this point when I made reference in the resolution denying the motion for reconsideration to the fact that Article XV must be followed "as long as any amendment is formulated and submitted under the aegis of the present Charter." Said resolution even added. "(T)his is not to say that the people may not, in the exercise of their inherent revolutionary powers, amend the Constitution or promulgate an entirely new one otherwise.".
It is not strange at all to think that the amending clause of a constitution should be confined in its application only to proposed changes in any part of the same constitution itself, for the very fact that a new constitution is being adopted implies a general intent to put aside the whole of the old one, and what would be really incongrous is the idea that in such an eventuality, the new Constitution would subject its going into effect to any provision of the constitution it is to supersede, to use the language precisely of Section 6, Article XVII, the effectivity clause, of the New Constitution. My understanding is that generally, constitutions are self-born, they very rarely, if at all, come into being, by virtue of any provision of another constitution. 3 This must be the reason why every constitution has its own effectivity clause, so that if, the Constitutional Convention had only anticipated the idea of the referendum and provided for such a method to be used in the ratification of the New Constitution, I would have had serious doubts as to whether Article XV could have had priority of application.
2. When an entirely new constitution is proposed to supersede the existing one, we cannot but take into consideration the forces and the circumstances dictating the replacement.ℒαwρhi৷ From the very nature of things, the proposal to ordain a new constitution must be viewed as the most eloquent expression of a people's resolute determination to bring about a massive change of the existing order, a meaningful transformation of the old society and a responsive reformation of the contemporary institutions and principles. Accordingly, should any question arise as to its effectivity and there is some reasonable indication that the new charter has already received in one way or another the sanction of the people, I would hold that the better rule is for the courts to defer to the people's judgment, so long as they are convinced of the fact of their approval, regardless of the form by which it is expressed provided it be reasonably feasible and reliable. Otherwise stated, in such instances, the courts should not bother about inquiring into compliance with technical requisites, and as a matter of policy should consider the matter non-justiciable.
3. There is still another circumstance which I consider to be of great relevancy. I refer to the ostensible reaction of the component elements, both collective and individual, of the Congress of the Philippines. Neither the Senate nor the House of Representatives has been reported to have even made any appreciable effort or attempt to convene as they were supposed to do under the Constitution of 1935 on January 22, 1973 for the regular session. It must be assumed that being composed of experienced, knowledgeable and courageous members, it would not have been difficult for said parliamentary bodies to have conceived some ingenious way of giving evidence of their determined adherence to the Constitution under which they were elected. Frankly, much as I admire the efforts of the handful of senators who had their picture taken in front of the padlocked portals of the Senate chamber, I do not feel warranted to accord such act as enough token of resistance. As counsel Tolentino has informed the court, there was noting to stop the senators and the congressmen to meet in any other convenient place and somehow officially organize themselves in a way that can logically be considered as a session, even if nothing were done than to merely call the roll and disperse. Counsel Tolentino even pointed out that if there were not enough members to form a quorum, any smaller group could have ordered the arrest of the absent members. And with particular relevance to the present cases, it was not constitutionally indispensable for the presiding officers to issue any call to the members to convene, hence the present prayers for mandamus have no legal and factual bases. And to top it all, quite to the contrary, the records of the Commission on Elections show that at least 15 of 24 senators and over 95 out of less than 120 members of the House of Representatives, have officially and in writing exercised the option given to them to join the Interim National Assembly under the New Constitution, thereby manifesting their acceptance of the new charter.
Now, having these facts in mind, and it being obvious that of the three great departments of the government under the 1935 Constitution, two, the Executive and the Legislative, have already accepted the New Constitution and recognized its enforceability and enforcement, I cannot see how this Supreme Court can by judicial fiat hold back the political developments taking place and for the sake of being the guardian of the Constitution and the defender of its integrity and supremacy make its judicial power prevail against the decision of those who were duly chosen by the people to be their authorized spokesmen and representatives. It is not alone the physical futility of such a gesture that concerns me. More than that, there is the stark reality that the Senators and the Congressmen, no less than the President, have taken the same oath of loyalty to the Constitution that we, the Justices, have taken and they are, therefore, equally bound with Us to preserve and protect the Constitution. If as the representatives of the people, they have already opted to accept the New Constitution as the more effective instrument for fulfillment of the national destiny, I really wonder if there is even any idealistic worth in our desperately clinging by Ourselves alone to Our sworn duty vis-a-vis the 1935 Constitution. Conscious of the declared objectives of the new dispensation and cognizant of the decisive steps being with the least loss of time, towards their accomplishment, cannot but feel apprehensive that instead of serving the best interests of our people, which to me is in reality the real meaning of our oath of office, the Court might be standing in the way of the very thing our beloved country needs to retrieve its past glory and greatness. In other words, it is my conviction that what these cases demand most of all is not a decision demonstrative of our legal erudition and Solomonic wisdom but an all rounded judgment resulting from the consideration of all relevant circumstances, principally the political, or, in brief, a decision more political than legal, which a court can render only by deferring to the apparent judgment of the people and the announcement thereof by the political departments of the government and declaring the matter non-justiciable.
4. Viewed from the strictly legal angle and in the light of judicial methods of ascertainment, I cannot agree with the Solicitor General that in the legal sense, there has been at least substantial compliance with Article XV of the 1935 Constitution, but what I can see is that in a political sense, the answers to the referendum questions were not given by the people as legal conclusions. I take it that when they answered that by their signified approval of the New Constitution, they do not consider it necessary to hold a plebiscite, they could not have had in mind any intent to do what was constitutionally improper. Basically accustomed to proceed along constitutional channels, they must have acted in the honest conviction that what was being done was in conformity with prevailing constitutional standards. We are not to assume that the sovereign people were indulging in a futile exercise of their supreme political right to choose the fundamental charter by which their lives, their liberties and their fortunes shall be safeguarded. In other words, we must perforce infer that they meant their decision to count, and it behooves this Court to render judgment herein in that context. It is my considered opinion that viewed understandingly and realistically, there is more than sufficient ground to hold that, judged by such intent and, particularly, from the political standpoint, the ratification of the 1973 Constitution declared in Proclamation 1102 complies substantially with Article XV of the 1935 Charter, specially when it is considered that the most important element of the ratification therein contemplated is not in the word "election", which conceivably can be in many feasible and manageable forms but in the word "approved" which may be said to constitute the substantiality of the whole article, so long as such approval is reasonably ascertained. In the last analysis, therefore, it can be rightly said, even if only in a broad sense, that the ratification here in question was constitutionally justified and justifiable.
5. Finally, if any doubt should still linger as to the legitimacy of the New Constitution on legal grounds, the same should be dispelled by viewing the situation in the manner suggested by Counsel Tolentino and by the writer of this opinion in his separate opinion, oft-referred to above, in the Plebiscite Cases — that is, as an extra constitutional exercise by the people, under the leadership of President Marcos, of their inalienable right to change their fundamental charter by any means they may deem appropriate, the moment they are convinced that the existing one is no longer responsive to their fundamental, political and social needs nor conducive to the timely attainment of their national destiny. This is not only the teaching of the American Declaration of Independence but is indeed, a truth that is self-evident. More, it should be regarded as implied in every constitution that regardless of the language of its amending clause, once the people have given their sanction to a new charter, the latter may be deemed as constitutionally permissible even from the point of view of the preceding constitution. Those who may feel restrained to consider this view out of respect to the import of Tolentino vs. Comelec, supra., would be well advised to bear in mind that the case was decided in the context of submission, not accomplished ratification.
V
The language of the disputed amending clause of the 1935 Constitution should not be deemed as the be all and end all the nation. More important than even the Constitution itself with all its excellent features, are the people living under it — their happiness, their posterity and their national destiny. There is nothing that cannot be sacrificed in the pursuit of these objectives, which constitute the totality of the reasons for national existence. The sacred liberties and freedom enshrined in it and the commitment and consecration thereof to the forms of democracy we have hitherto observed are mere integral parts of this totality; they are less important by themselves.
What seems to me to be bothering many of our countrymen now is that by denying the present petitions, the Court would be deemed as sanctioning, not only the deviations from traditional democratic concepts and principles but also the qualified curtailment of individual liberties now being practiced, and this would amount, it is feared, to a repudiation of our oath to support and defend the Constitution of 1935. This is certainly something one must gravely ponder upon. When I consider, however, that the President, the Vice President, the members of both Houses of Congress, not to speak of all executive departments and bureaus under them as well as all the lower courts, including the Court of Appeals have already accepted the New Constitution as an instrument of a meaningful nationwide-all-level change in our government and society purported to make more realistic and feasible, rather than idealistic and cumbersomely deliberative, the attainment of our national aspirations, I am led to wonder whether or not we, as members of the Supreme Court are being true to our duty to our people by refusing to follow suit and accept the realities of the moment, despite our being convinced of the sincerity and laudableness of their objectives, only because we feel that by the people's own act of ratifying the Constitution of 1935, they have so encased themselves within its provisions and may, therefore, no longer take measures to redeem themselves from the situation brought about by the deficiencies of the old order, unless they act in strict conformity therewith. I cannot believe that any people can be so stifled and enchained. In any event, I consider it a God-given attribute of the people to disengage themselves, if necessary, from any covenant that would obstruct their taking what subsequently appears to them to be the better road to the promotion and protection of their welfare. And once they have made their decision in that respect, whether sophisticatedly or crudely, whether in legal form or otherwise, certainly, there can be no court or power on earth that can reverse them.
I would not be human if I should be insensitive to the passionate and eloquent appeals of Counsels Tañada and Salonga that these cases be decided on the basis of conscience. That is exactly what I am doing. But if counsel mean that only by granting their petitions can this Court be worthily the bulwark of the people's faith in the government, I cannot agree, albeit my admiration and respect are all theirs for their zeal and tenacity, their industry and wisdom, their patriotism and devotion to principle. Verily, they have brought out everything in the Filipino that these cases demand.
In times of national emergencies and crises, not arising from foreign invasion, we need not fear playing opposite roles, as long as we are all animated by sincere love of country and aim exclusively at the attainment of the national destiny. Our heroes of the past, Rizal, Bonifacio, Aguinaldo, Antonio Luna, Mabini and so also with our patriots of the recent generations, Quezon, Osmeña, Roxas, Laurel and Recto, to mention only some of them, had their differences of views — and they did not hesitate to take diametrically opposing sides — that even reached tragic proportions, but all of them are admired and venerated.
It is my faith that to act with absolute loyalty to our country and people is more important than loyalty to any particular precept or provision of the Constitution or to the Constitution itself. My oath to abide by the Constitution binds me to whatever course of action I feel sincerely is demanded by the welfare and best interests of the people.
In this momentous juncture of our history, what is imperative is national unity. May God grant that the controversies the events leading to these cases have entail will heal after the decision herein is promulgated, so that all us Filipinos may forever join hands in the pursuit of our national destiny.
IN VIEW OF ALL THE FOREGOING, I vote to dismiss these petitions for mandamus and prohibition without costs.
Footnotes
1 Charito Planas vs. Comelec, et al., L-35925, January 22, 1973; Pablo C. Sanidad vs. Comelec, L-35929, January 22, 1973; Gerardo Roxas, etc., et al. vs. Comelec, et al., L-35940, January 22, 1973; Eddie B. Monteclaro vs. Comelec, et al., L-35941, January 22, 1973; Sedfrey A. Ordoñez, et al., vs. The National Treasurer of the Philippines, et al., L-35942, January 22, 1973; Vidal Tan, et al., vs. Comelec, et al., L-35948, January 22, 1973; Jose W. Diokno, et al., vs. Comelec, L-35953, January 22, 1973; Jacinto Jimenez vs. Comelec, et al., L-35961, January 22, 1973; Raul M. Gonzales vs. Comelec, et al., L-35965, January 22, 1973 and Ernesto Hidalgo vs. Comelec, et al., L-35979, January 22, 1973.
2 Executive Agreements are not included in the corresponding provision of the 1935 Constitution.
3 It Must be recalled that in the Tolentino case, the Constitutional Convention intended to submit one amendment which was to form part of the Constitution still being prepared by it separately from the rest of the other parts of such constitution still unfinished, and We held that a piece-meal submission was improper. We had no occasion to express any view as to how a whole new Constitution may be ratified.
* In 1880, he also wrote his "Constitutional Law." Judge Cooley, who was born in Attica, New York in 1824, died in 1898. Judge Cooley was also professor and later dean of the Law Department of the University of Michigan and Justice of the State Supreme Court of Michigan from 1864 to 1885, when he failed to win re-election to the court.
Separate Opinions
MAKASIAR, J., concurring:
Assuming, without conceding, that Article XV of the 1935 Constitution prescribes a procedure for the ratification of constitutional amendments or of a new Constitution and that such procedure was no complied with, the validity of Presidential Proclamation No. 1102 is a political, not a justiciable, issue; for it is inseparably or inextricably link with and strikes at, because it is decisive of, the validity of ratification and adoption of, as well as acquiescence of people in, the 1973 Constitution and the legitimacy of the government organized and operating thereunder. And being political, it is beyond the ambit of judicial inquiry, tested by the definition of a political question enunciated in Tañada, et. al. vs. Cuenco, et al. (103 Phil. 1051), aside from the fact the this view will not do violence to rights vested under the new Constitution, to international commitments forged pursuant thereto and to decisions rendered by the judicial as well as quasi-judicial tribunals organized and functioning or whose jurisdiction has been altered by the 1973 Constitution and the government established thereunder, and will dissipate any confusion in the minds of the citizenry, who have been obeying the mandates of the new Constitution, as well as exercising the rights and performing the obligations defined by the new Constitution, and decrees and orders issued in implementation of the same and cooperating with the administration in the renovation of our social, economic and political system as re-structured by the 1973 Constitution and by the implementing decrees and orders (see Miller vs. Johnson, 18 SW 522, 522-526, 1892).
In 1957, Mr. Chief Justice Roberto Concepcion, then Associate Justice, in behalf of the Court, defined a political question as one which, under the Constitution, is "to be decided by the people in their sovereign capacity, or in regard to which full discretionary authority had been delegated to the Legislature or Executive branch of the government." (Tañada, et al. vs. Cuenco, et al., supra).
Article XV of the 1935 Constitution provides: "Such amendments shall be valid as part of this Constitution when approved by a majority of the votes cast at an election at which the amendments are submitted to the people for ratification." Under Article XV of the 1935 Constitution, the power to propose constitutional amendments is vested in Congress or in a constitutional convention; while the power to ratify or reject such proposed amendments or new Constitution is reserved by the sovereign people. The nullification of Proclamation No. 1102 would inevitably render inoperative the 1973 Constitution, which is in fact the express prayer of the petitioners in G.R. No. L-36164. Regardless of the modality of submission or ratification or adoption — even if it deviates from or violates the procedure delineated therefore by the old Constitution — once the new Constitution is ratified, adopted and/or acquiesced in by the people or ratified even by a body or agency not duly authorized therefor but is subsequently adopted or recognized by the people and by the other official organs and functionaries of the government established under such a new Constitution, this Court is precluded from inquiring into the validity of such ratification, adoption or acquiescence and of the consequent effectivity of the new Constitution. This is as it should be in a democracy, for the people are the repository of all sovereign powers as well as the source of all governmental authority (Pole vs. Gray, 104 SO 2nd 841 [1958]). This basic democratic concept is expressly restated in Section 1 of Article II of the Declaration of Principles of the 1935 and 1973 Constitutions, thus: "Sovereignty resides in the people and all government authority emanates from them."
The legality of the submission is no longer relevant; because the ratification, adoption and/or acquiescence by the people cures any infirmity in its submission or any other irregularities therein which are deemed mandatory before submission as they are considered merely directory after such ratification or adoption or acquiescence by the people. As Mr. Justice Brewer, then of the Kansas State Supreme Court and later Associate Justice of the Federal Supreme Court, stated in re Prohibitory Amendment Cases (24 Kansas 700 & 710 Reprint 499, 506): "The two important, vital elements of the Legislature and a majority of the popular vote. Beyond these, other provisions are mere machineries and forms. They may not be disregarded, because by them certainty as to the essentials is secured. But they are not themselves the essentials." (Cited in Larken vs. Gronna, 285 NW 59, 61-64, 1939).
This was the ruling by the American Supreme Court in the 1939 case of Coleman vs. Miller (307 U.S. 433, 83 L.ed. 1385), where Chief Justice Hughes, speaking for the majority, stated that:
... Thus the political departments of the government dealt with the effect of both previous rejection and attempted withdrawal and determined that both were ineffectual in the presence of an actual ratification ... . This decision by the political departments of the Government as to the validity of the adoption of the Fourteenth amendment has been accepted.
We think that in accordance with this historic precedent the question of the efficacy of ratifications by state legislatures, in the light of previous rejection or attempted withdrawal, should be regarded as a political question pertaining to the political departments, with the ultimate authority in the Congress in the exercise of its control over the promulgation of the adoption of the amendment.
This view was likewise emphasized by Mr. Justice Black in his concurring opinion, in which Mr. Justices Roberts, Frankfurter, and Douglas join, thus:
The Constitution grants Congress exclusive power to control submission of constitutional amendments. Final determination by Congress that ratification by three-fourths of the States has taken place "is conclusive upon the courts." In the exercise of that power, Congress, of course, is governed by the Constitution. However, whether submission, intervening procedure or Congressional determination of ratification conforms to the commands of the Constitution, calls for decisions by a "political department" of questions of a type which this Court has frequently designated "political." And decision of a "political question" by the "political department" to which the Constitution has committed it "conclusively binds the judges, as well as all other officers, citizens and subjects of...government." Proclamation under authority of Congress that an amendment has been ratified will carry with it a solemn assurance by the Congress that ratification has taken place as the Constitution commands. Upon this assurance a proclaimed amendment must be accepted as a part of the Constitution, leaving to the judiciary its traditional authority of interpretation. To the extent that the Court's opinion in the present case even impliedly assumes a power to make judicial interpretation of the exclusive constitutional authority of Congress over submission and ratification of amendments, we are unable to agree... (American Constitutional Issues, by Pritchett, 1962 Ed., p. 44).
The doctrine in the aforesaid case of Coleman vs. Miller was adopted by Our Supreme Court in toto in Mabanag vs. Lopez Vito (78 Phil. 1).
The ruling in the cases of Gonzales vs. Comelec, et al. (L-28224, Nov. 29, 1967, 21 SCRA 774) and Tolentino vs. Comelec, et al. (L-34150, Oct. 16, 1971, 41 SCRA 702) on which petitioners place great reliance — that the courts may review the propriety of a submission of a proposed constitutional amendment before the ratification or adoption of such proposed amendment by the sovereign people, hardly applies to the cases at bar; because the issue involved in the aforesaid cases refers to only the propriety of the submission of a proposed constitutional amendment to the people for ratification, unlike the present petitions, which challenge inevitably the validity of the 1973 Constitution after its ratification or adoption thru acquiescence by the sovereign people. As heretofore stated, it is specious and pure sophistry to advance the reasoning that the present petitions pray only for the nullification of the 1973 Constitution and the government operating thereunder.
It should be stressed that even in the Gonzales case, supra, We held that:
Indeed, the power to amend the Constitution or to propose amendments thereto is not included in the general grant of legislative powers to Congress. It is part of the inherent powers of the people — as the repository of sovereignty in a republican state, such as ours — to make, and hence, to amend their own Fundamental Law. Congress may propose amendments to the same explicitly grants such power. Hence, when exercising the same, it is said that Senators and Members of the House of Representatives act, not as members, but as component elements of a constituent assembly. When acting as such, the members of Congress derive their authority from the Constitution, unlike the people, when performing the same function, for their authority does not emanate from the Constitution — they are the very source of all powers of government, including the Constitution itself. (21 SCRA 787)
We did not categorically and entirely overturn the doctrine in Mabanag vs. Lopez Vito (78 Phil. 1) that both the proposal to amend and the ratification of such a constitutional amendment are political in nature forming as they do the essential parts of one political scheme — the amending process. WE merely stated therein that the force of the ruling in the said case of Mabanag vs. Lopez Vito has been weakened by subsequent cases. Thus, We pronounced therein:
It is true that in Mabanag vs. Lopez Vito, this Court characterizing the issue submitted thereto as a political one, declined to pass upon the question whether or not a given number of votes cast in Congress in favor of a proposed amendment to the Constitution — which was being submitted to the people for ratification — satisfied the three fourths vote requirement of the fundamental law. The force of this precedent has been weakened, however, by Suanes vs. Chief Accountant of the Senate, Avelino vs. Cuenco, Tañada vs. Cuenco and Macias vs. Commission on Elections. In the first, we held the officers and employees of the Senate Electoral Tribunal are supervision and control, not of that of the Senate President, claimed by the latter; in the second, this Court proceeded to determine the number of Senators necessary for a quorum in the Senate; in the third we nullified the election, by Senators belonging to the party having the largest number of votes in said chamber purporting to act on behalf of the party having the second largest number of votes therein, of two (2) Senators belonging to the first party, as members, for the second party, of the Senate Electoral Tribunal; and in the fourth, we declared unconstitutional an act of Congress purporting to apportion the representative districts for the House of Representatives, upon the ground that the apportionment had not been made as may be possible according to the number of inhabitants of each province. Thus we rejected the theory advanced in these four (4) cases, that the issues therein raised were political questions the determination of which is beyond judicial review. (21 SCRA pp. 785-786);
for which reason We concluded
In short, the issue whether or not a resolution of Congress before acting as a constituent assembly — violates the Constitution is essentially justiciable, not political, and, hence, subject to judicial review, and to the extent that this view may be inconsistent with the stand taken in Mabanag vs. Lopez Vito, the latter should be deemed modified accordingly. (p. 787, emphasis supplied.)
In the Tolentino case, supra, We reiterated the foregoing statements (41 SCRA 703-714).
The inevitable consequence therefore is that the validity of the ratification or adoption of or acquiescence by the people in the 1973 Constitution, remains a political issue removed from the jurisdiction of this Court to review.
One more word about the Gonzales and Tolentino cases. Both primarily stressed on the impropriety of the submission of a proposed constitutional amendment. Courts do not deal with propriety or wisdom or absence of either of an official act or of a law. Judicial power concerns only with the legality or illegality, constitutionality or unconstitutionality of an act: it inquires into the existence of power or lack of it. Judicial wisdom is not to be pitted against the wisdom of the political department of the government.
The classic example of an illegal submission that did not impair the validity of the ratification or adoption of a new Constitution is the case of the Federal Constitution of the United States. It should be recalled that the thirteen (13) original states of the American Union — which succeeded in liberating themselves from England after the revolution which began on April 19, 1775 with the skirmish at Lexington, Massachusetts and ended with the surrender of General Cornwallis at Yorktown, Virginia, on October 19, 1781(Encyclopedia Brit., Vol. I, 1933 Ed., p. 776) — adopted their Articles of Confederation and Perpetual Union, that was written from 1776 to 1777 and ratified on March 1, 1781 (Encyclopedia Brit., Vol. II, 1966 Ed., p. 525). About six thereafter, the Congress of the Confederation passed a resolution on February 21, 1787 calling for a Federal Constitutional Convention "for the sole and express purpose of revising the articles of confederation ... ." (Appendix I, Federalist, Modern Library ed., p. 577, emphasis supplied).
The Convention convened at Philadelphia on May 14, 1787. Article XIII of the Articles of Confederation and Perpetual Union stated specifically:
The articles of this confederation shall be inviolably observed in every state, and the union shall be perpetual; nor shall any alterations at any time hereafter be made in any of them; unless such alteration be agreed to in a congress of the united states, and be afterwards confirmed by the legislatures of every state. (See the Federalist, Appendix II, Modern Library Ed., 1937, p. 584; emphasis supplied.)
But the foregoing requirements prescribed by the Articles of Confederation and Perpetual Union for the alteration for the ratification of the Federal Constitution as drafted by the Philadelphia Convention were not followed. Fearful the said Federal Constitution would not be ratified by the legislatures as prescribed, the Philadelphia Convention adopted a resolution requesting the Congress of the Confederation to pass a resolution providing that the Constitution should be submitted to elected state conventions and if ratified by the conventions in nine (9) states, not necessarily in all thirteen (13) states, the said Constitution shall take effect.
Thus, history Professor Edward Earle Mead of Princeton University recorded that:
It would have been a counsel of perfection to consign the new constitution to the tender mercies of the legislatures of each and all of the 13 states. Experience clearly indicated that ratification then would have had the same chance as the scriptural camel passing through the eye of a needle. It was therefore determined to recommend to Congress that the new Constitution be submitted to conventions in the several states especially elected to pass upon it and that, furthermore, the new government should go into effect if and when it should be ratified by nine of the thirteen states ... . (The Federalist, Modern Library Ed., 1937, Introduction by Edward Earle Mead, pp. viii-ix; emphasis supplied)
Historian Samuel Eliot Morison similarly recounted:
The Convention, anticipating that the influence of many state politicians would be Antifederalist, provided for ratification of the Constitution by popularly elected conventions in each state. Suspecting that Rhode Island, at least, would prove recalcitrant, it declared that the Constitution would go into effect as soon as nine states ratified. The convention method had the further advantage that judges, ministers, and others ineligible to state legislatures, could be elected to a convention. The nine-state provision was, of course, mildly revolutionary. But the Congress of the Confederation, still sitting in New York to carry on federal government until relieved, formally submitted the new constitution to the states and politely faded out before the first presidential inauguration. (The Oxford History of the Am. People, by Samuel Eliot Morison, 1965 ed., p. 312).
And so the American Constitution was ratified by nine (9) states on June 21, 1788 and by the last four states on May 29, 1790 (12 C.J. p. 679 footnote, 16 C.J.S., 27. — by the state conventions and not by all thirteen (13) state legislatures as required by Article XIII of the Articles of Confederation and Perpetual Union aforequoted — and in spite of the fact that the Federal Constitution as originally adopted suffers from two basic infirmities, namely, the absence of a bill of Rights and of a provision affirming the power of judicial review.
The liberties of the American people were guaranteed by subsequent amendments to the Federal Constitution. The doctrine of judicial review has become part of American constitutional law only by virtue of a judicial pronouncement by Chief Justice Marshall in the case of Marbury vs. Madison (1803, 1 Cranch 137).
Until this date, no challenge has been launched against the validity of the ratification of the American Constitution, nor against the legitimacy of the government organized and functioning thereunder.
In the 1946 case of Wheeler vs. Board of Trustees (37 SE 2nd 322, 326-330), which enunciated the principle that the validity of a new or revised Constitution does not depend on the method of its submission or ratification by the people, but on the fact or fiat or approval or adoption or acquiescence by the people which fact of ratification or adoption or acquiescence is all that is essential, the Court cited precisely the case of the irregular revision and ratification by state conventions of the Federal Constitution, thus:
No case identical in its facts with the case now under consideration has been called to our attention, and we have found none. We think that the principle which we apply in the instant case was very clearly applied in the creation of the constitution of the United States. The convention created by a resolution of Congress had authority to do one thing, and one only, to wit, amend the articles of confederation. This they did not do, but submitted to the sovereign power, the people, a new constitution. In this manner was the constitution of the United States submitted to the people and it became operative as the organic law of this nation when it had been properly adopted by the people.
Pomeroy's Constitutional Law, p. 55, discussing the convention that formulated the constitution of the United States, has this to say: "The convention proceeded to do, and did accomplish, what they were not authorized to do by a resolution of Congress that called them together. That resolution plainly contemplated amendments to the articles of confederation, to be submitted to and passed by the Congress, and afterwards ratified by all the State legislatures, in the manner pointed out by the existing organic law. But the convention soon became convinced that any amendments were powerless to effect a cure; that the disease was too deeply seated to be reached such tentative means. They saw that the system they were called to improve must be totally abandoned, and that the national idea must be re-established at the center of their political society. It was objected by some members, that they had no power, no authority, to construct a new government. They had no authority, if their decisions were to be final; and no authority whatsoever, under the articles of confederation, to adopt the course they did. But they knew that their labors were only to be suggestions; and that they as well as any private individuals, and any private individuals as well as they, had a right to propose a plan of government to the people for their adoption. They were, in fact, a mere assemblage of private citizens, and their work had no more binding sanction than a constitution drafted by Mr. Hamilton in his office would have had. The people, by their expressed will, transformed this suggestion, this proposal, into an organic law, and the people might have done the same with a constitution submitted to them by a single citizen."
x x x x x x x x x
... When the people adopt a completely revised or new constitution, the framing or submission of the instrument is not what gives it binding force and effect. The fiat of the people and only the fiat of the people, can breathe life into a constitution.
x x x x x x x x x
... We do not hesitate to say that a court is never justified in placing by implication a limitation upon the sovereign. This would be an authorized exercise of sovereign power by the court. In State v. Swift, 69 Ind. 505, 519, the Indiana Supreme Court said: "The people of a State may form an original constitution, or abrogate an old one and form a new one, at any time, without any political restriction except the constitution of the United States; ... ." (37 SE 327-328, 329, emphasis supplied.)
In the 1903 case of Weston vs. Ryan, the Court held:
It remains to be said that if we felt at liberty to pass upon this question, and were compelled to hold that the act of February 23, 1887, is unconstitutional and void, it would not, in our opinion, by any means follow that the amendment is not a part of our state Constitution. In the recent case of Taylor vs. Commonwealth (Va.) 44 S.E. 754, the Supreme Court of Virginia hold that their state Constitution of 1902, having been acknowledged and accepted by the officers administering the state government, and by the people, and being in force without opposition, must be regarded as an existing Constitution irrespective of the question as to whether or not the convention which promulgated it had authority so to do without submitting it to a vote of the people. In Brittle v. People, 2 Neb. 198, is a similar holding as to certain provisions of the Nebraska Constitution of 1886, which were added by the Legislature at the requirement of Congress, though never submitted to the people for their approval." (97 NW 349-350; emphasis supplied).
Against the decision in the Wheeler case, supra, confirming the validity of the ratification and adoption of the American Constitution, in spite of the fact that such ratification was in clear violation of the prescription on alteration and ratification of the Articles of Confederation and Perpetual Union, petitioners in G.R. No. L-36165 dismissed this most significant historical fact by calling the Federal Constitution of the United States as a revolutionary one, invoking the opinion expressed in Vol. 16, Corpus Juris Secundum, p. 27, that it was a revolutionary constitution because it did not obey the requirement that the Articles of Confederation and Perpetual Union can be amended only with the consent of all thirteen (13) state legislatures. This opinion does not cite any decided case, but merely refers to the footnotes on the brief historic account of the United States Constitution on p. 679 of Vol. 12, CJS. Petitioners, on p. 18 of their main Notes, refer US to pp. 270-316 of the Oxford History of the American People, 1965 Ed. by Samuel Eliot Morison, who discusses the Articles of Confederation and Perpetual Union in Chapter XVIII captioned "Revolutionary Constitution Making, 1775 1781" (pp. 270-281). In Chapter XX on "The Creative Period in Politics, 1785-1788," Professor Morison delineates the genesis of the Federal Constitution, but does not refer to it even implicitly as revolutionary constitution (pp. 297-316). However, the Federal Constitution may be considered revolutionary from the view point of McIver if the term revolution is understood in "its wider sense to embrace decisive changes in the character of government, even though they do not involve the violent overthrow of an established order, ... ." (R.M. MacIver, The Web of Government, 1965 ed., p. 203).
It is rather ridiculous to refer to the American Constitution as a revolutionary constitution. The Articles of Confederation and Perpetual Union that was in force from July 12, 1776 to 1788, forged as it was during the war of independence was a revolutionary constitution of the thirteen (13) states. In the existing Federal Constitution of the United States which was adopted seven (7) or nine (9) years after the thirteen (13) states won their independence and long after popular support for the government of the Confederation had stabilized was not a product of a revolution. The Federal Constitution was a "creation of the brain and purpose of man" in an era of peace. It can only be considered revolutionary in the sense that it is a radical departure from its predecessor, the Articles of Confederation and Perpetual Union.
It is equally absurd to affirm that the present Federal Constitution of the United States is not the successor to the Articles of Confederation and Perpetual Union. The fallacy of the statement is so obvious that no further refutation is needed.
As heretofore stated, the issue as to the validity of Proclamation No. 1102 strikes at the validity and enforceability of the 1973 Constitution and of the government established and operating thereunder. Petitioners pray for a declaration that the 1973 Constitution is inoperative (L-36164). If Proclamation No. 1102 is nullified, then there is no valid ratification of the 1973 Constitution and the inevitable conclusion is that the government organized and functioning thereunder is not a legitimate government.
That the issue of the legitimacy of a government is likewise political and not justiciable, had long been decided as early as the 1849 case of Luther vs. Borden (7 How. 1, 12 L.ed., 581), affirmed in the 1900 case of Taylor vs. Beckham (178 U.S. 548, 44 L.ed. 1187) and re-enunciated in 1912 in the case of Pacific States Telephone and Telegraph Company vs. Oregon (223 U.S. 118, 133-151, 56 L.ed. 377-386). Because it reaffirmed the pronouncements in both Borden and Beckham cases, it is sufficient for us to quote the decision in Pacific States Telephone and Telegraph Co., supra, penned by Mr. Chief Justice White, who re-stated:
In view of the importance of the subject, the apparent misapprehension on one side and seeming misconception on the other, suggested by the argument as to the full significance of the previous doctrine, we do not content ourselves with a mere citation of the cases, but state more at length than we otherwise would the issues and the doctrine expounded in the leading and absolutely controlling case — Luther v. Borden, 7 How. 1, 12 L.ed. 581.
x x x x x x x x x
... On this subject it was said (p. 38):
"For if this court is authorized to enter upon this inquiry, proposed by the plaintiff, and it should be decided that the character government had no legal existence during the period of time above mentioned, — if it had been annulled by the adoption of the opposing government, — then the laws passed by its legislature during that time were nullities; its taxes wrongfully collected, its salaries and compensations to its officers illegally paid ; its public accounts improperly settled and the judgments and sentences of its courts in civil and criminal cases null and void, and the officers who carried their decisions into operation answerable as trespassers, if not in some cases as criminals."
x x x x x x x x x
"The fourth section of the fourth article of the Constitution of the United States shall guarantee to every state in the Union a republican form of government, and shall protect each of them against invasion; and on the application of the Legislature or of the Executive (when the legislature cannot be convened) against domestic violence.
"Under this article of the Constitution it rests with Congress to decide what government is established one in a state. For, as the United State guarantee to each state a republican government, Congress must necessarily decide what government is established in the state before it can determine whether it is republican or not. And when the senators and representatives of a state are admitted into the Councils of the Union, the authority of the government under which they were appointed, as well as its republican character, is recognized by the proper constitutional authority. And its decision is binding on every other department of the government, and could not be questioned in a judicial tribunal. It is true that the contest in this case did not last long enough to bring the matter to this issue; and as no senators or representatives were elected under the authority of the government of which Mr. Dorr was the head, Congress was not called upon to decide the controversy. Yet the right to decide is placed there and not in the courts."
x x x x x x x x x
... We do not stop to cite other cases which indirectly or incidentally refer to the subject, but conclude by directing attention to the statement by the court, speaking through Mr. Chief Justice Fuller, in Taylor vs. Beckham, 178 U.S. 548, 44 L.ed. 1187, 20 Sup. Ct. Rep. 890, 1009, where, after disposing of a contention made concerning the 14th Amendment, and coming to consider a proposition which was necessary to be decided concerning the nature and effect of the guaranty of S 4 of article 4, it was said (p. 578):
"But it is said that the 14th Amendment must be read with S 4 of article 4, of the Constitution, providing that the United States shall guarantee to every state in this Union a republican form of government, and shall protect each of them against invasion; and on application of the legislature, or the Executive (when the legislature cannot be convened), against domestic violence."
x x x x x x x x x
"It was long ago settled that the enforcement of this guaranty belonged to the political department. Luther v. Borden, 7 How. 1, 12 L.ed. 581. In that case it was held that the question, which of the two opposing governments of Rhode Island, namely, the charter government or the government established by a voluntary convention, was the legitimate one, was a question for the determination of the political department; and when that department had decided, the courts were bound to take notice of the decision and follow it."
x x x x x x x x x
As the issues presented, in their very essence, are, and have long since by this Court been, definitely determined to be political and governmental, and embraced within the scope of the scope of the powers conferred upon Congress, and not, therefore within the reach of judicial power, it follows that the case presented is not within our jurisdiction, and the writ of error must therefore be, and it is, dismissed for want of jurisdiction. (223 U.S. pp. 142-151; emphasis supplied).
Even a constitutional amendment that is only promulgated by the Constitutional Convention without authority therefor and without submitting the same to the people for ratification, becomes valid, when recognized, accepted and acted upon the by Chief of State and other government functionaries, as well as by the people. In the 1903 case of Taylor vs. Commonwealth (44 SE 754-755), the Court ruled:
The sole ground urged in support of the contention that Constitution proclaimed in 1902 is invalid is that it was ordained and promulgated by the convention without being submitted for ratification or rejection by the people of the commonwealth.
The Constitution of 1902 was ordained and proclaimed by convention duly called by direct vote of the people of the state to revise and amend the Constitution of 1869. The result of the work that the convention has been recognized, accepted, and acted upon as the only valid Constitution of the state by the Governor in swearing fidelity to it and proclaiming it, as directed thereby; by the Legislature in its formal official act adopting a joint resolution, July 15, 1902, recognizing the Constitution ordained by the convention which assembled in the city of Richmond on the 12th day of June 1901, as the Constitution of Virginia; by the individual oaths of members to support it, and by its having been engaged for nearly a year in legislating under it and putting its provisions into operation but the judiciary in taking the oath prescribed thereby to support and by enforcing its provisions; and by the people in their primary capacity by peacefully accepting it and acquiescing in it, registering as voters under it to the extent of thousands through the state, and by voting, under its provisions, at a general election for their representatives in the Congress of the United States. (p. 755).
The Court in the Taylor case above-mentioned further said:
While constitutional procedure for adoption or proposal to amend the constitution must be duly followed, without omitting any requisite steps, courts should uphold amendment, unless satisfied that the Constitution was violated in submitting the proposal. ... Substance more than form must be regarded in considering whether the complete constitutional system for submitting the proposal to amend the constitution was observed.
In the 1925 case of Taylor vs. King (130 A 407, 408 410), the Court stated:
There may be technical error in the manner in which a proposed amendment is adopted, or in its advertisement, yet, if followed, unobjected to, by approval of the electors, it becomes part of the Constitution. Legal complaints to the submission may be made prior to taking the vote, but, if once sanctioned, the amendment is embodied therein, and cannot be attacked, either directly or collaterally, because of any mistake antecedent thereto. Even though it be submitted at an improper time, it is effective for all purposes when accepted by the majority. Armstrong v. King, 281 Pa. 207, 126 A. 263. (130 A 409).
Even if the act of the Constitutional Convention is beyond its authority, such act becomes valid upon ratification or adoption or acquiescence by the people. Thus, in the 1905 case of Ex parte Birmingham and A.R. Company (42 SO pp. 118 & 123), the Alabama Supreme Court upheld this principle and stated that: "The authorities are almost uniform that this ratification of an unauthorized act by the people (and the people are the principal in this instance) renders the act valid and binding."
It has likewise been held that it is not necessary that voters ratifying the new Constitution are registered in the book of voters; it is enough that they are electors voting on the new Constitution. (Bott vs. Wurts, 40 A 740 [1899]; 45 LRA 251, emphasis supplied).
In the 1956 case of Thomson vs. Peoples State Bank (75 NW 2nd 370, 375), the Supreme Court of Wisconsin ruled that "irregularity in the procedure for the submission of the proposed constitutional amendment will not defeat the ratification by the people."
Again, in the 1958 case of Swaim vs. Tuscaloosa County (103 SO 2nd 769), the Alabama Supreme Court pronounced that "the irregularity in failing to publish the proposed constitutional amendment once in each of the 4 calendar weeks next preceding the calendar week in which the election was held or once in each of the 7-day periods immediately preceding the day of the election as required by the Constitution, did not invalidate the amendment which was ratified by the people."
The same principle was reiterated in 1961 by the Mississippi Supreme Court in Barnes, et al. v. Ladner (131) SO 2nd 45 462), where they admitted irregularities or illegalities committed in the procedure for submission of the proposed constitutional amendment to the people for ratification consisted of: "(a) the alleged failure of the county election commissioners of the several counties to provide a sufficient number of ballot boxes 'secured by good and substantial locks,' as provided by Section 3249, Code of 1942, Rec., to be used in the holding of the special election on the constitutional amendment, and (b) the alleged failure of the State Election Commissioners to comply with the requirements of Code Sections 3204 and 3205 in the appointment of election commissioners in each of the 82 counties. The irregularities complained of, even if proved, were not such irregularities would have invalidated the election." (Emphasis supplied; see also Sylvester vs. Tindall, 8 SO 2nd 892; 154 Fla. 663).
Even prior to the election in November, 1970 of delegates of the Constitutional Convention and during the deliberations of the Constitutional Convention from June 1, 1971 until martial law was proclaimed on Sept. 21, 1972, the salient reforms contained in the 1973 Constitution which have long been desired by the people, had been thoroughly discussed in the various committees of the Constitutional Convention, on the floor of the Convention itself, in civic forums and in all the media of information. Many of the decrees promulgated by the Chief Executive from Sept. 22, 1972 to Jan. 17, 1973 implement some of the reforms and had been ratified in Sec. 3(2) of Article XVII of the 1973 Constitution.
Petitioners cannot safely state that during martial law the majority of the people cannot freely vote for these reforms and are not complying with the implementing decrees promulgated by the President.
Free election is not inevitably incompatible with martial law. We had free elections in 1951 and 1971 when the opposition won six out of eight senatorial seats despite the suspension of the privileges of the writ of habeas corpus (see Lansang vs. Garcia, et al., Dec. 14, 1971, 42 SCRA 448), which suspension implies constraint on individual freedom as the proclamation of martial law. In both situations, there is no total blackout of human rights and civil liberties.
All the local governments, dominated either by Nacionalistas or Liberals, as well as officials of the Legislative and Executive branches of the government elected and/or appointed under the 1935 Constitution have either recognized or are now functioning under the 1973 Constitution, aside from the fact of its ratification by the sovereign people through the Citizens Assemblies. Ninety-five (95) of a total of one hundred ten (110) members of the House of Representatives including the Speaker and the Speaker Pro Tempore as well as about eleven (11) Congressmen who belong to the Liberal Party and fifteen (15) of a total of twenty-four (24) senators including Liberal senators Edgar U. Ilarde and John Osmeña opted to serve in the Interim Assembly, according to the certification of the Commission on Elections dated February 19, 1973 (Annex Rejoinder-3 to Consolidated Rejoinder of petitioners in L-36165). Only the five (5) petitioners in L-36165 close their eyes to a fait accompli. All the other functionaries recognize the new government and are performing their duties and exercising their powers under the 1973 Constitution, including the lower courts. The civil courts, military tribunals and quasi-judicial bodies created by presidential decrees have decided some criminal, civil and administrative cases pursuant to such decrees. The foreign ambassadors who were accredited to the Republic of the Philippines before martial law continue to serve as such in our country; while two new ambassadors have been accepted by the Philippines after the ratification of the 1973 Constitution on January 17, 1973. Copies of the 1973 Constitution had been furnished the United Nations Organization and practically all the other countries with which the Philippines has diplomatic relations. No adverse reaction from the United Nations or from the foreign states has been manifested. On the contrary, our permanent delegate to the United Nations Organization and our diplomatic representatives abroad appointed before martial law continue to remain in their posts and are performing their functions as such under the 1973 Constitution.
Even the Commission on Elections is now implementing the provisions of the 1973 Constitution by requiring all election registrars to register 18-year olds and above whether literates or not, who are qualified electors under the 1973 Constitution (see pars. 1-A(c), (d), & (e) of Annex A to Notes of respondents Puyat and Roy in L-36165).
In brief, it cannot be said that the people are ignoring the 1973 Constitution and the government which is enforcing the same for over 10 weeks now With the petitioners herein, secessionists, rebels and subversives as the only possible exceptions, the rest of the citizenry are complying with decrees, orders and circulars issued by the incumbent President implementing the 1973 Constitution.
Of happy relevance on this point is the holding in Miller vs. Johnson 18 SW 522:
If a set of men, not selected by the people according to the forms of law, were to formulate an instrument and declare it the constitution, it would undoubtedly be the duty of the courts declare its work a nullity. This would be revolution, and this the courts of the existing government must resist until they are overturned by power, and a new government established. The convention, however, was the offspring of law. The instrument which we are asked to declare invalid as a constitution has been made and promulgated according to the forms of law. It is a matter of current history that both the executive and legislative branches of the government have recognized its validity as a constitution, and are now daily doing so. Is the question, therefore, one of a judicial character? It is our undoubted duty, if a statute be unconstitutional to so declare it; also, if a provision of the state constitution be in conflict with the federal constitution, to hold the former invalid. But this is a very different case. It may be said, however, that, for every violation of or non-compliance with the law, there should be a remedy in the courts. This is not, however, always the case. For instance, the power of a court as to the acts of the other departments of the government is not an absolute one, but merely to determine whether they have kept within constitutional limits, it is a duty rather than a power, The judiciary cannot compel a co-equal department to perform a duty. It is responsible to the people; but if it does act, then, when the question is properly presented, it is the duty of the court to say whether it has conformed to the organic law. While the judiciary should protect the rights of the people with great care and jealousy, because this is its duty, and also because, in times of great popular excitement, it is usually their last resort, yet it should at the same time be careful to overstep the proper bounds of its power, as being perhaps equally dangerous; and especially where such momentous results might follow as would be likely in this instance, if the power of the judiciary permitted, and its duty required, the overthrow of the work of the convention.
After the American Revolution the state of Rhode Island retained its colonial character as its constitution, and no law existed providing for the making of a new one. In 1841 public meetings were held, resulting in the election of a convention to form a new one, — to be submitted to a popular vote. The convention framed one, submitted it to a vote, and declared it adopted. Elections were held for state officers, who proceeded to organize a new government. The charter government did not acquiesce in these proceedings, and finally declared the state under martial law. It called another convention, which in 1843 formed a new constitution. Whether the charter government, or the one established by the voluntary convention, was the legitimate one, was uniformly held by the courts of the state not to be a judicial, but a political question; and the political department having recognized the one, it was held to be the duty of the judiciary to follow its decision. The supreme court of the United States, in Luther v. Borden, 7 How. 1, while not expressly deciding the principle, as it held the federal court, yet in the argument approves it, and in substance says that where the political department has decided such a matter the judiciary should abide by it.
Let us illustrate the difficulty of a court deciding the question: Suppose this court were to hold that the convention, when it reassembled, had no power to make any material amendment, and that such as were made are void by reason of the people having theretofore approved the instrument. Then, next, this court must determine what amendments were material; and we find the court, in effect, making a constitution. This would be arrogating sovereignty to itself. Perhaps the members of the court might differ as to what amendments are material, and the result would be confusion and anarchy. One judge might say that all the amendments, material and immaterial, were void; another, that the convention had then the implied power to correct palpable errors, and then the court might differ as to what amendments are material. If the instrument as ratified by the people could not be corrected or altered at all, or if the court must determine what changes were material, then the instrument, as passed upon by the people or as fixed by the court would be lacking a promulgation by the convention; and, if this be essential, then the question would arise, what constitution are we now living under, and what is the organic law of the state? A suggestion of these matters shows what endless confusion and harm to the state might and likely would arise. If, through error of opinion, the convention exceeded its power, and the people are dissatisfied, they have ample remedy, without the judiciary being asked to overstep the proper limits of its power. The instrument provides for amendment and change. If a wrong has been done, it can, in the proper way in which it should be remedied, is by the people acting as a body politic. It is not a question of whether merely an amendment to a constitution, made without calling a convention, has been adopted, as required by that constitution. If it provides how it is to be done, then, unless the manner be followed, the judiciary, as the interpreter of that constitution, will declare the amendment invalid. Koehler v. Hill, 60 Iowa, 543, 14 N.W. Rep. 738, and 15 N.W. Rep. 609; State v. Tuffy, 1 Nev. 391, 12 Pac. Rep. 835. But it is a case where a new constitution has been formed and promulgated according to the forms of law. Great interests have already arisen under it; important rights exist by virtue of it; persons have been convicted of the highest crime known to the law, according to its provisions; the political power of the government has in many ways recognized it; and, under such circumstances, it is our duty to treat and regard it as a valid constitution, and now the organic law of our commonwealth.
We need not consider the validity of the amendments made after the convention reassembled. If the making of them was in excess of its powers, yet, as the entire instrument has been recognized as valid in the manner suggested, it would be equally an abuse of power by the judiciary and violative of the rights of the people, — who can and properly should remedy the matter, if not to their liking, — if it were to declare the instrument of a portion invalid, and bring confusion and anarchy upon the state. (emphasis supplied).
If this Court inquires into the validity of Proclamation No. 1102 and consequently of the adoption of the 1973 Constitution it would be exercising a veto power on the act of the sovereign people, of whom this Court is merely an agent, which to say the least, would be anomalous. This Court cannot dictate to our principal, the sovereign people, as to how the approval of the new Constitution should be manifested or expressed. The sovereign people have spoken and we must abide by their decision, regardless of our notion as to what is the proper method of giving assent to the new Charter. In this respect, WE cannot presume to know better than the incumbent Chief Executive, who, unlike the members of this Court, only last January 8, 1973, We affirmed in Osmeña vs. Marcos (Pres. Election Contest No. 3, Jan. 8, 1973), was re-elected by the vote of over 5 million electors in 1969 for another term of four years until noon of December 30, 1973 under the 1935 Constitution. This Court, not having a similar mandate by direct fiat from the sovereign people, to execute the law and administer the affairs of government, must restrain its enthusiasm to sally forth into the domain of political action expressly and exclusively reserved by the sovereign people themselves.
The people in Article XV of the 1935 Constitution did not intend to tie their hands to a specific procedure for popular ratification of their organic law. That would be incompatible with their sovereign character of which We are reminded by Section 1, of Article II of both the 1935 and the 1973 Constitutions.
The opinion of Judge Thomas McIntire Cooley that the sovereign people cannot violate the procedure for ratification which they themselves define in their Constitution, cannot apply to a unitary state like the Republic of the Philippines. His opinion expressed in 1868 may apply to a Federal State like the United States, in order to secure and preserve the existence of the Federal Republic of the United States against any radical innovation initiated by the citizens of the fifty (50) different states of the American Union, which states may be jealous of the powers of the Federal government presently granted by the American Constitution. This dangerous possibility does not obtain in the case of our Republic.
Then again, Judge Cooley advanced the aforesaid opinion in 1868 when he wrote his opus "Constitutional Limitations." * (Vol. 6, Encyclopedia Brit., 1969 ed. pp. 445 446). It is possible that, were he live today, in a milieu vastly different from 1868 to 1898, he might have altered his views on the matter.
Even if conclusiveness is to be denied to the truth of the declaration by the President in Proclamation No. 1102 that the people through their Citizens' Assemblies had overwhelmingly approved the new Constitution due regard to a separate, coordinate and co-equal branch of the government demands adherence to the presumption of correctness of the President's declaration. Such presumption is accorded under the law and jurisprudence to officials in the lower levels of the Executive branch, there is no over-riding reason to deny the same to the Chief of State as head of the Executive Branch. WE cannot reverse the rule on presumptions, without being presumptuous, in the face of the certifications by the Office the Secretary of the Department of Local Government and Community Development. (Annexes 1, to 1-E, Annexes 2 to 2-O to the compliance with manifestation filed by the Solicitor General on behalf of the respondents public officers dated March 7, 1973). There is nothing in the records that contradicts, much less overthrow the results of the referendum as certified. Much less are We justified in reversing the burden of proof — by shifting it from the petitioners to the respondents. Under the rules on pleadings, the petitioners have the duty to demonstrate by clear and convincing evidence their claim that the people did not ratify through the Citizens' Assemblies nor adopt by acquiescence the 1973 Constitution. And have failed to do so.
No member of this Tribunal is justified in resolving the issues posed by the cases at bar on the basis of reports relayed to him from private sources which could be biased and hearsay, aside from the fact that such reports are not contained in the record. Proclamation No. 1102 is not just an ordinary act of the Chief Executive. It is a well-nigh solemn declaration which announces the highest act of the sovereign people — their imprimatur to the basic Charter that shall govern their lives hereafter — may be for decades, if not for generations.
Petitioners decry that even 15-year olds, ex convicts and illiterates were allowed to vote in the Citizens' Assemblies, despite their admission that the term "Filipino people" in the preamble as well as "people" in Sections 1 and 5 of Article II of the 1935 Constitution and in Section 1(3) of Article III of the Bill of Rights includes all Filipino citizens of all ages, of both sexes, whether literate or illiterate, whether peaceful citizens, rebels, secessionists, convicts or ex-convicts. Without admitting that ex-convicts voted in the referendum, about which no proof was even offered, these sectors of our citizenry, whom petitioners seem to regard with contempt or decision and whom petitioners would deny their sovereign right to pass upon the basic Charter that shall govern their lives and the lives of their progenies, are entitled as much as the educated, the law abiding, and those who are 21 years of age or above to express their conformity or non conformity to the proposed Constitution, because their stake under the new Charter is not any less than the stake of the more fortunate among us. As a matter of fact, these citizens, whose juridical personality or capacity to act is limited by age, civil interdiction or ignorance deserve more solicitude from the State than the rest of the citizenry. In the ultimate analysis, the inclusion of those from 15 years up to below 21 years old, the ex-convicts and the ignorant, is more democratic as it broadens the base of democracy and therefore more faithful to the express affirmation in Section 1 of Article II of the Declaration of Principles that "sovereignty resides in the people and all government authority emanates from them."
Moreover, ex-convicts granted absolute pardon are qualified to vote. Not all ex-convicts are banned from voting. Only those who had been sentenced to at least one year imprisonment are disenfranchised but they recover their right of suffrage upon expiration of ten years after service of sentence (Sec. 102, 1971 Rev. Elec. Code). Furthermore, ex-convicts and imbeciles constitute a very negligible number in any locality or barrio, including the localities of petitioners.
Included likewise in the delegated authority of the President, is the prerogative to proclaim the results of the plebiscite or the voting the Citizens' Assemblies. Petitioners deny the accuracy or correctness of Proclamation No. 1102 that the 1973 Constitution was ratified by the overwhelming vote of close to 15 million citizens because there was no official certification to the results of the same from the Department of Local Governments. But there was such certification as per Annex 1 to 1-A to the Notes submitted by the Solicitor General counsel for respondents public officers. This should suffice to dispose of this point. Even in the absence of such certification, in much the same way that in passing law, Congress or the legislative body is presumed to be in possession of the facts upon which such laws are predicated (Justice Fernando, The Power of Judicial Review, 1967 Ed., pp. 112-11 citing Lorenzo vs. Dir., etc., [1927] 50 Phil. 595 and O'Gonmore, et al: vs. Hartford, etc., [1931] 282 U.S. 251), it should likewise be presumed that the President was in possession of the fact upon which Proclamation No. 1102 was based. This presumption is further strengthened by the fact that the Department of Local Governments, the Department National Defense and the Philippine Constabulary as well the Bureau of Posts are all under the President, which offices as his alter ego, are presumptively acting for and in behalf of the President and their acts are valid until disapproved or reprobated by the President (Planas vs. Gil, 67 Phil. 62; Villen vs. Secretary of Interior, 67 Phil. 451). To deny the truth or the proclamation of the President as to the overwhelming majority vote in the Citizens' Assemblies in favor of the new Constitution, is to charge the President with falsification, which is a most grievous accusation. Under the, rules of pleadings and evidence, the petitioners have the burden of proof by preponderance of evidence in civil cases and by proof beyond reasonable doubt in criminal prosecutions, where the accused is always presumed to be innocent. Must this constitutional right be reversed simply because the petitioner all assert the contrary? Is the rule of law they pretend invoke only valid as long as it favors them?
The presumption of regularity in the performance of official functions is accorded by the law and jurisprudence to acts of public officers whose category in the official hierarchy is very much lower than that of the Chief of State. What reason is there to withhold such a presumption in favor of the President? Does the fact that the President belong to the party in power and that four (4) of the five (5) senators who are petitioners in L-36165 belong to the opposition party, justify a discrimination against the President in matters of this nature? Unsupported as their word is by any credible and competent evidence under the rules of evidence, must the word of the petitioners prevail over that of the Chief Executive, because they happen to be former senators and delegates to the Constitutional Convention? More than any of the petitioners herein in all these cases, the incumbent President realizes that he risks the wrath of his people being visited upon him and the adverse or hostile verdict of history; because of the restrictions on the civil liberties of his people, inevitable concomitants of martial law, which necessarily entail some degree of sacrifice on the part of the citizenry. Until the contrary is established or demonstrated, herein petitioners should grant that the Chief Executive is motivated by what is good for the security and stability of the country, for the progress and happiness of the people. All the petitioners herein cannot stand on the proposition that the rights under the 1935 Constitution are absolute and invulnerable to limitations that may be needed for the purpose of bringing about the reforms for which the petitioners pretend to be clamoring for and in behalf of the people. The five (5) petitioners in L-36165 and four (4) of the seven (7) petitioners in L-36164 were all participants in the political drama of this country since 1946. They are witness to the frustrations of well-meaning Presidents who wanted to effect the reforms, especially for the benefit of the landless and the laboring class — how politics and political bargaining had stymied the effectuation of such reforms thru legislation. The eight (8) petitioners in L-36164 and L-36165 may not have participated in the systematic blocking of the desired reforms in Congress or outside of it; but the question may be asked as to what exactly they did to support such reforms. For the last seven (7) decades since the turn of the century, for the last thirty-five (35) years since the establishment of the Commonwealth government in 1935 and for the last twenty seven (27) years since the inauguration of the Republic on July 4, 1946, no tangible substantial reform had been effected, funded and seriously implemented, despite the violent uprisings in the thirties, and from 1946 to 1952, and the violent demonstrations of recent memory. Congress and the oligarchs acted like ostriches, "burying their heads in timeless sand. "Now the hopes for the long-awaited reforms to be within a year or to are brighter. It would seem therefore to the duty of everyone including herein petitioners to give the present leadership the opportunity to institute and carry out the needed reforms as provided for in the new or 1973 Constitution and thru the means prescribed in that same Constitution.
As stated in Wheeler vs. Board of Trustees, "a court is never justified in placing by implication a limitation upon the sovereign."
This Court in the Gonzales and Tolentino cases transcended its proper sphere and encroached upon the province exclusively reserved to and by the sovereign people. This Court did not heed to the principle that the courts are not the fountain of all remedies for all wrongs. WE cannot presume that we alone can speak with wisdom as against the judgment of the people on the basic instrument which affects their very lives. WE cannot determine what is good for the people or ought to be their fundamental law. WE can only exercise the power delegated to Us by the sovereign people, to apply and interpret the Constitution and the laws for the benefit of the people, not against them nor to prejudice them. WE cannot perform an act inimical to the interest of Our principal, who at any time may directly exercise their sovereign power ratifying a new Constitution in the manner convenient to them.
It is pertinent to ask whether the present Supreme Court can function under the 1935 Constitution without being a part of the government established pursuant thereto. Unlike in the Borden case, supra, where there was at least another government claiming to be the legitimate organ of the state of Rhode Island (although only on paper as it had no established organ except Dorr who represented himself to be its head; in the cases at bar there is no other government distinct from and maintaining a position against the existing government headed by the incumbent Chief Executive. (See Taylor vs. Commonwealth, supra). There is not even a rebel government duly organized as such even only for domestic purposes, let alone a rebel government engaged in international negotiations. As heretofore stated, both the executive branch and the legislative branch established under the 1935 Constitution had been supplanted by the government functioning under the 1973 Constitution as of January 17, 1973. The vice president elected under the 1935 Constitution does not asset any claim to the leadership of the Republic of the Philippines. Can this Supreme Court legally exist without being part of any government?
Brilliant counsel for petitioners in L-36165 has been quite extravagant in his appraisal of Chief Justice Roger Brooke Taney whom he calls the "hero of the American Bar," because during the American civil war he apparently had the courage to nullify the proclamation of President Lincoln suspending the privileges of the writ of habeas corpus in Ex parte Merryman (Federal Case No. 9487 [1861]). But who exactly was Chief Justice Roger Brooke Taney? The Editorial Board of Vol. 21 of the Encyclopedia Brit., 1966 ed. (pp. 778-779, 1969 ed., pp. 654-657), briefly recounts that he was born in 1777 in Calvert County, Maryland, of parents who were landed aristocrats as well as slave owners. Inheriting the traditional conservatism of his parents who belonged to the landed aristocracy, Taney became a lawyer in 1799, practiced law and was later appointed Attorney General of Maryland. He also was a member of the Maryland state legislature for several terms. He was a leader of the Federalist Party, which disintegrated after the war of 1812, compelling him to join the Democratic Party of Andrew Jackson, also a slave owner and landed aristocrat, who later appointed him first as Attorney General of the United States, then Secretary of the Treasury and in 1836 Chief Justice of the United States Supreme Court to succeed Chief Justice John Marshall, in which position he continued for 28 years until he died on October 21, 1864. His death "went largely unnoticed and unregretted." Because he himself was a slave owner and a landed aristocrat, Chief Justice Taney sympathized with the Southern States and, even while Chief Justice, hoped that the Southern States would be allowed to secede peacefully from the Union. That he had no sympathy for the Negroes was revealed by his decision in Dred Scott vs. Sandford (19 How. 398 [1857]) where he pronounced that the American Negro is not entitled to the rights of an American citizen and that his status as a slave is determined by his returning to a slave state. One can therefore discern his hostility towards President Lincoln when he decided Ex parte Merryman, which animosity to say the least does no befit a judicial mind. Such a man could hardly be spoken of as a hero of the American Bar, least of all of the American nation. The choice of heroes should not be expressed indiscriminately just to embellish one's rhetoric.
Distinguished counsel in L-36165 appears to have committed another historical error, which may be due to his rhetorical in the Encyclopedia Britannica (Vol. 9, 1969 ed., pp. 508-509) to this effect. On the contrary, Encyclopedia Britannica (Vol. 17 Encyclopedia Brit., 1966 & 1969 eds., 732-733), refers to Marshal Henri Philippe Petain as the genuine hero or "Savior of Verdun"; because he held Verdun against the 1916 offensive of the German army at the cost of 350,000 of his French soldiers, who were then demoralized and plotting mutiny. Certainly, the surviving members of the family of Marshal Petain would not relish the error. And neither would the members of the clan of Marshal Foch acknowledge the undeserved accolade, although Marshal Foch has a distinct place in history on his own merits. The foregoing clarification is offered in the interest of true scholarship and historical accuracy, so that the historians, researchers and students may not be led astray or be confused by esteemed counsel's eloquence and mastery of the spoken and written word as well as by his eminence as law professor, author of law books, political leader, and member of the newly integrated Philippine Bar.
It is quite intriguing why the eminent counsel and co-petitioner in L-36164 did not address likewise his challenge to the five (5) senators who are petitioners in L-36165 to also act as "heroes and idealists," to defy the President by holding sessions by themselves alone in a hotel or in their houses if they can muster a quorum or by causing the arrest of other senators to secure a quorum and thereafter remove respondents Puyat and Roy (Avelino, et al. vs. Cuenco, et al. [1949] 83 Phil. 17), if they believe most vehemently in the justice and correctness of their position that the 1973 Constitution has not been validly ratified, adopted or acquiesced in by the people since January 18, 1973 until the present. The proclaimed conviction of petitioners in L-36165 on this issue would have a ring of credibility, if they proceeded first to hold a rump session outside the legislative building; because it is not unreasonable to demand or to exact that he who exhorts others to be brave must first demonstrate his own courage. Surely, they will not affirm that the mere filing of their petition in L-36165 already made them "heroes and idealists." The challenge likewise seems to insinuate that the members of this Court who disagree with petitioners' views are materialistic cowards or mercenary fence-sitters. The Court need not be reminded of its solemn duty and how to perform it. WE refuse to believe that petitioners and their learned as well as illustrious counsels, scholars and liberal thinkers that they are, do not recognize the sincerity of those who entertain opinions that clash with their own. Such an attitude does not sit well with the dictum that "We can differ without being difficult; we can disagree without being disagreeable," which distinguished counsel in L-36165 is wont to quote.
WE reserve the right to prepare an extensive discussion of the other points raised by petitioners, which We do not find now necessary to deal with in view of Our opinion on the main issue.
IN VIEW OF THE FOREGOING, ALL THE PETITIONS IN THESE FIVE CASES SHOULD BE DISMISSED.
MAKASIAR, J.:
Pursuant to Our reservation, We now discuss the other issues raised by the petitioners.
II
EVEN IF ISSUE IS JUSTICIABLE, PEOPLE'S RATIFICATION, ADOPTION OR ACQUIESCENCE CREATES STRONG PRESUMPTION OF VALIDITY OF 1973 CONSTITUTION.
As intimated in the aforecited cases, even the courts, which affirm the proposition that the question as to whether a constitutional amendment or the revised or new Constitution has been validly submitted to the people for ratification in accordance with the procedure prescribed by the existing Constitution, is a justiciable question, accord all presumption of validity to the constitutional amendment or the revised or new Constitution after the government officials or the people have adopted or ratified or acquiesced in the new Constitution or amendment, although there was an illegal or irregular or no submission at all to the people. (Collier vs. Gray, 4th Dec. Dig. 935 [1934], Hammond vs. Clark, 71 SE 482-483; People vs. Sours, 31 Colo. 369, 74 Pac. 167, 102 Am. St. Rep. 34; Thompson vs. Winneth, 78 Neb. 379, 110 NW 1113, 10 L.R.A. [N.S.] 149; State vs. Laylin, 69 Ohio St. Rep. 1, 68 NE 574; Weston vs. Ryan, 70 Neb. 211, 97 NW 347; Combs vs. State, 81 Ga. 780, 8 SE 318; Woodward vs. State, 103 Ga. 496, 30 SE 522; Corre vs. Cooney, 70 Mont. 355, 225 P 1007, 1009). As late as 1971, the courts stressed that the constitutional amendment or the new Constitution should not be condemned "unless our judgment its nullity is manifest beyond reasonable doubt" (1971 case of Moore vs. Shanahan, 486 Pac. 2d 506, 207 Kan. 1, 645; and the 1956 case of Tipton vs. Smith, et al., supra).
Mr. Justice Enrique M. Fernando, speaking for the Court, pronounced that the presumption of constitutionality must persist in the absence of factual foundation of record to overthrow such presumption (Ermita-Malate Hotel, etc. vs. City Mayor, L-24698, July 31, 1967, 20 SCRA 849).
III
CONSTITUTIONAL CONVENTION — CO-EQUAL WITH AND INDEPENDENT OF CONGRESS, EXECUTIVE AND JUDICIARY.
The Constitutional Convention is co-ordinate and co-equal with, as well as independent of, the three grand departments of the Government, namely, the legislative, the executive and the judicial. As a fourth separate and distinct branch, to emphasize its independence, the Convention cannot be dictated to by either of the other three departments as to the content as well as the form of the Charter that it proposes. It enjoys the same immunity from interference or supervision by any of the aforesaid branches of the Government in its proceedings, including the printing of its own journals (Tañada and Fernando, Constitution of the Philippines, 1952 ed., Vol. I, pp. 8 9; Malcolm and Laurel, Phil. Const. Law, p. 22; Frantz vs. Autry, 91 Pac. 193). Implicit in that independence, for the purpose of maintaining the same unimpaired and in order that its work will not be frustrated, the Convention has the power to fix the date for the plebiscite and to provide funds therefor. To deny the Convention such prerogative, would leave it at the tender mercy of both legislative and executive branches of the Government. An unsympathetic Congress would not be disposed to submit the proposed Constitution drafted by the Constitutional Convention to the people for ratification, much less appropriate the necessary funds therefor. That could have been the fate of the 1973 Constitution, because the same abolished the Senate by creating a unicameral National Assembly to be presided by a Prime Minister who wields both legislative and executive powers and is the actual Chief Executive, for the President contemplated in the new Constitution exercises primarily ceremonial prerogatives. The new Constitution likewise shortened abruptly the terms of the members of the present Congress (whose terms end on December 31, 1973, 1975 and 1977) which provides that the new Constitution shall take effect immediately upon its ratification (Sec. 16, Article XVII, 1973 Constitution). The fact that Section 2 of the same Article XVIII secures to the members of Congress membership in the interim National Assembly as long as they opt to serve therein within thirty (30) days after the ratification of the proposed Constitution, affords them little comfort; because the convening of the interim National Assembly depends upon the incumbent President (under Sec. 3[1], Art. XVII, 1973 Constitution). Under the foregoing circumstances, the members of Congress, who were elected under the 1935 Constitution, would not be disposed to call a plebiscite and appropriate funds therefor to enable the people to pass upon the 1973 Constitution, ratification of which means their elimination from the political scene. They will not provide the means for their own liquidation.
Because the Constitutional Convention, by necessary implication as it is indispensable to its independence and effectiveness, possesses the power to call a plebiscite and to appropriate funds for the purpose, it inescapably must have the power to delegate the same to the President, who, in estimation of the Convention can better determine appropriate time for such a referendum as well as the amount necessary to effect the same; for which reason the Convention thru Resolution No. 29 approved on November 22, 1972, which superseded Resolution No. 5843 adopted on November 16, 1972, proposed to the President "that a decree be issued calling a plebiscite for the ratification of the proposed new Constitution such appropriate date as he shall determine and providing for the necessary funds therefor, ...," after stating in "whereas" clauses that the 1971 Constitutional Convention expected to complete its work by the end of November, 1972 that the urgency of instituting reforms rendered imperative the early approval of the new Constitution, and that the national and local leaders desire that there be continuity in the immediate transition from the old to the new Constitution.
If Congress can legally delegate to the Chief Executive or his subaltern the power to promulgate subordinate rules and regulations to implement the law, this authority to delegate implementing rules should not be denied to the Constitutional Convention, a co-equal body.
Apart from the delegation to the Chief Executive of the power to call a plebiscite and to appropriate funds therefor by the Constitutional Convention thru its Resolution No. 29, the organization of the Citizens' Assemblies for consultation on national issues, is comprehended within the ordinance-making power of the President under Section 63 of the Revised Administrative Code, which expressly confers on the Chief Executive the power to promulgate administrative acts and commands touching on the organization or mode of operation of the government or re-arranging or re-adjusting any district, division or part of the Philippines "or disposing of issues of general concern ... ." (Emphasis supplied). Hence, as consultative bodies representing the localities including the barrios, their creation by the President thru Presidential Decree No. 86 of December 31, 1972, cannot be successfully challenged.
The employment by the President of these Citizens' Assemblies for consultation on the 1973 Constitution or on whether there was further need of a plebiscite thereon, — both issues of national concern — is still within the delegated authority reposed in him by the Constitutional Convention as aforesaid.
It should be noted that Resolution No. 29, which superseded Resolution No. 5843, does not prescribe that the plebiscite must be conducted by the Commission on Elections in accordance with the provisions of the 1971 Revised Election Code. If that were the intention of the Constitutional Convention in making the delegation, it could have easily included the necessary phrase for the purpose, some such phrase like "to call a plebiscite to be supervised by the Commission on Elections in accordance with the provisions of the 1971 Revised Election Code (or with existing laws)." That the Constitutional Convention omitted such phrase, can only mean that it left to the President the determination of the manner by which the plebiscite should be conducted, who shall supervise the plebiscite, and who can participate in the plebiscite. The fact that said Resolution No. 29 expressly states "that copies of this resolution as approved in plenary session be transmitted to the President of the Philippines and the Commission on Elections for implementation," did not in effect designate the Commission on Elections as supervisor of the plebiscite. The copies of said resolution that were transmitted to the Commission on Elections at best serve merely to notify the Commission on Elections about said resolution, but not to direct said body to supervise the plebiscite. The calling as well as conduct of the plebiscite was left to the discretion of the President, who, because he is in possession of all the facts funnelled to him by his intelligence services, was in the superior position to decide when the plebiscite shall be held, how it shall be conducted and who shall oversee it.
It should be noted that in approving said Resolution No. 29, the Constitutional Convention itself recognized the validity of, or validated Presidential Proclamation No. 1081 placing the entire country under martial law by resolving to "propose to President Ferdinand E. Marcos that a decree be issued calling a plebiscite ... ." The use of the term "decree" is significant for the basic orders regulating the conduct of all inhabitants are issued in that form and nomenclature by the President as the Commander in Chief and enforcer of martial law. Consequently, the issuance by the President of Presidential Decree No. 73 on December 1, 1972 setting the plebiscite on January 15, 1973 and appropriating funds therefor pursuant to said Resolution No. 29, is a valid exercise of such delegated authority.
Such delegation, unlike the delegation by Congress of the rule-making power to the Chief Executive or to any of his subalterns, does not need sufficient standards to circumscribe the exercise of the power delegated, and is beyond the competence of this Court to nullify. But even if adequate criteria should be required, the same are contained in the "Whereas" clauses of the Constitutional Convention Resolution No. 29, thus:
WHEREAS, the 1971 Constitutional Convention is expected to complete its work of drafting a proposed new Constitution for the Republic by the end of November, 1972;
WHEREAS, in view of the urgency of instituting reforms, the early approval of the New Constitution has become imperative;
WHEREAS, it is the desire of the national and local leaders that there be continuity in the immediate political transition from the old to the New Constitution;" (Annex "1" of Answer, Res. No. 29, Constitutional Convention).
As Mr. Justice Fernando, with whom Messrs. Justices Barredo, Antonio and the writer concurred in the Plebiscite Cases, stated:
... Once this work of drafting has been completed, it could itself direct the submission to the people for ratification as contemplated in Article XV of the Constitution. Here it did not do so. With Congress not being in session, could the President, by the decree under question, call for such a plebiscite? Under such circumstances, a negative answer certainly could result in the work of the Convention being rendered nugatory. The view has been repeatedly expressed in many American state court decisions that to avoid such undesirable consequence the task of submission becomes ministerial, with the political branches devoid of any discretion as to the holding of an election for that purpose. Nor is the appropriation by him of the amount necessary to be considered as offensive to the Constitution. If it were done by him in his capacity as President, such an objection would indeed have been formidable, not to say insurmountable. If the appropriation were made in his capacity as agent of the Convention to assure that there be submission to the people, then such an argument loses force. The Convention itself could have done so. It is understandable why it should be thus. If it were otherwise, then a legislative body, the appropriating arm of the government, could conceivably make use of such authority to compel the Convention to submit to its wishes, on pain of being rendered financially distraught. The President then, if performing his role as its agent, could be held as not devoid of such competence. (pp. 2-3, concurring opinion of J. Fernando in L-35925, etc., emphasis supplied).
IV
VAGUENESS OR AMBIGUITY DOES NOT INVALIDATE THE
1973 CONSTITUTION
(1) Petitions challenge the 1973 draft as vague and incomplete, and alluded to their arguments during the hearings on December 18 and 19, 1972 on the Plebiscite Cases. But the inclusion of questionable or ambiguous provisions does not affect the validity of the ratification or adoption of the 1973 Constitution itself (Pope vs. Gray, 104 SO, 2d 841; 7th Dec. pp. 212-219, 1956-1966).
Alexander Hamilton, one of the leading founders and defenders of the American Constitution, answering the critics of the Federal Constitution, stated that: "I never expect to see a perfect work from imperfect man. The result of the deliberations of all collective bodies must necessarily be a compound, as well of the errors and prejudices as of the good sense and wisdom, of the individuals of whom they are composed. The compacts which are to embrace thirteen distinct States in a common bond of amity and union, must necessarily be a compromise of as many dissimilar interests and inclinations. How can perfection spring from such materials?" (The Federalist, Modern Library Ed., pp. xx-xxi).
(2) The 1973 Constitution is likewise impugned on the ground that it contains provisions which are ultra vires or beyond the power of the Constitutional Convention to propose.
This objection relates to the wisdom of changing the form of government from Presidential to Parliamentary and including such provisions as Section 3 of Article IV, Section 15 of Article XIV and Sections 3(2) and 12 of Article XVII in the 1973 Constitution.
Article IV —
Sec. 3. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall not be violated, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined by the judge, or such other responsible officer as may be authorized by law, after examination under oath or affirmation of the complainant and the witnesses may produce, and particularly describing the place to be searched, and the persons or things to be seized.
Article XIV —
Sec. 15. Any provision of paragraph one, Section fourteen, Article Eight and of this Article notwithstanding, the Prime Minister may enter into international treaties or agreements as the national welfare and interest may require." (Without the consent of the National Assembly.)
Article XVII —
Sec. 3(2) All proclamations, orders, decrees, instructions, and acts promulgated, issued, or done by the incumbent President shall be part of the law of the land, and shall remain valid, legal, binding and effective even after lifting of martial law or the ratification of this Constitution, unless modified, revoked, or superseded by subsequent proclamations, orders, decrees, instructions, or other acts of the incumbent President, or unless expressly and explicitly modified or repealed by the regular National Assembly.
x x x x x x x x x
Sec. 12. All treaties, executive agreements, and contracts entered into by the Government, or any subdivision, agency, or instrumentality thereof, including government-owned or controlled corporations, are hereby recognized as legal, valid and binding. When the national interest so requires, the incumbent President of the Philippines or the interim Prime Minister may review all contracts, concessions, permits, or other forms of privileges for the exploration, development, exploitation, or utilization of natural resources entered into, granted, issued or acquired before the ratification of this Constitution.
In the Plebiscite Cases (L-35925, L-35929, L-35940, L-35942, L-35948, L-35953, L-35961, L-35965, & L-35979), Chief Justice Roberto Concepcion, concurred in by Justices Fernando, Barredo, Antonio and the writer, overruled this objection, thus:
... Regardless of the wisdom and moral aspects of the contested provisions of the proposed Constitution, it is my considered view that the Convention was legally deemed fit to propose — save perhaps what is or may be insistent with what is now known, particularly in international law, as Jus Cogens — not only because the Convention exercised sovereign powers delegated thereto by the people — although insofar only as the determination of the proposals to be made and formulated by said body is concerned — but also, because said proposals cannot be valid as part of our Fundamental Law unless and until "approved by the majority of the votes cast at an election which" said proposals "are submitted to the people for their ratification," as provided in Section 1 of Article XV of the 1935 Constitution. (Pp. 17-18, Decision in L-35925, etc.).
This Court likewise enunciated in Del Rosario vs. Comelec (L-32476, Oct. 20, 1970, 35 SCRA 367) that the Constitutional Convention has the authority to "entirely overhaul the present Constitution and propose an entirely new Constitution based on an ideology foreign to the democratic system ...; because the same will be submitted to the people for ratification. Once ratified by the sovereign people, there can be no debate about the validity of the new Constitution."
Mr. Justice Fernando, concurring in the same Plebiscite Cases, cited the foregoing pronouncement in the Del Rosario case, supra, and added: "... it seems to me a sufficient answer that once convened, the area open for deliberation to a constitutional convention ..., is practically limitless" (citing Cf. Koehler vs. Hill, 14 NW 738, 60 Iowa 543 [1883]; Hatch Stoneman, 6 P 734, 66 Cal. 632 [1885]; MacMillan v. Blattner, 25 NW 245, 67 Iowa 287 [1895]; State v. Powell, 27 SO 297, 77 Miss. 543 [1900]; Hammond v. Clark, 71 SE 479, 136 Ga. 313 [1911]; Hamilton v. Vaughan, 179 NW 533, 212 Mich. 31 [1920]; State v. Smith, 138 NE 881, 105 Ohio St. 570 [1922]; Looney vs. Leeper, 292 P 365, 145 Okl. 202 [1930]; School District vs. City of Pontiac, 247 NW 474, 262 Mich. 338 [1933]).
Mr. Justice Barredo, in his concurring opinion in said Plebiscite Cases, expressed the view "that when the people elected the delegates to the Convention and when the delegates themselves were campaigning, such limitation of the scope of their function and objective was not in their minds."
V
1973 CONSTITUTION DULY ADOPTED AND
PROMULGATED.
Petitioners next claim that the 1971 Constitutional Convention adjourned on November 30, 1972 without officially promulgating the said Constitution in Filipino as required by Sections 3(1) of Article XV on General Provisions of the 1973 Constitution. This claim is without merit because their Annex "M" is the Filipino version of the 1973 Constitution, like the English version, contains the certification by President Diosdado Macapagal of the Constitutional Convention, duly attested by its Secretary, that the proposed Constitution, approved on second reading on the 27th day of November, 1972 and on third reading in the Convention's 291st plenary session on November 29, 1972 and accordingly signed on November 1972 by the delegates whose signatures are thereunder affixed. It should be recalled that Constitutional Convention President Diosdado Macapagal was, as President of the Republic 1962 to 1965, then the titular head of the Liberal Party to which four (4) of the petitioners in L-36165 including their counsel, former Senator Jovito Salonga, belong. Are they repudiating and disowning their former party leader and benefactor?
VI
ARTICLE XV OF 1935 CONSTITUTION DOES NOT
PRESCRIBE ANY PROCEDURE FOR RATIFICATION OF
1973 CONSTITUTION.
(1) Article XV of the 1935 Constitution simply provides that "such amendments shall be valid as part of this Constitution when approved by a majority of the votes cast at an election at which the amendments are submitted to the people for ratification."
But petitioners construe the aforesaid provision to read: "Such amendments shall be valid as part of this Constitution when approved by a majority of the votes cast at an election called by Congress at which the amendments are submitted for ratification by the qualified electors defined in Article V hereof, supervised by the Commission on Elections in accordance with the existing election law and after such amendments shall have been published in all the newspapers of general circulation for at least four months prior to such election."
This position certainly imposes limitation on the sovereign people, who have the sole power of ratification, which imposition by the Court is never justified (Wheeler vs. Board of Trustees, supra).
In effect, petitioners and their counsels are amending by a strained and tortured construction Article XV of the 1935 Constitution. This is a clear case of usurpation of sovereign power they do not possess — through some kind of escamotage. This Court should not commit such a grave error in the guise of judicial interpretation.
In all the cases where the court held that illegal or irregular submission, due to absence of substantial compliance with the procedure prescribed by the Constitution and/or the law, nullifies the proposed amendment or the new Constitution, the procedure prescribed by the state Constitution is so detailed that it specifies that the submission should be at a general or special election, or at the election for members of the State legislature only or of all state officials only or of local officials only, or of both state and local officials; fixes the date of the election or plebiscite limits the submission to only electors or qualified electors; prescribes the publication of the proposed amendment or a new Constitution for a specific period prior to the election or plebiscite; and designates the officer to conduct the plebiscite, to canvass and to certify the results, including the form of the ballot which should so state the substance of the proposed amendments to enable the voter to vote on each amendment separately or authorizes expressly the Constitutional Convention or the legislature to determine the procedure or certain details thereof. See the State Constitutions of Alabama [1901]; Arizona [1912]; Arkansas [1874]; Colorado [1976]; Connecticut [1818]; Florida [1887]; Georgia [1945]; Illinois [1970]; Indiana [1851]; Iowa [1857]; Kansas [1861]; Kentucky [1891]; Louisiana [1921]; Maryland [1867]; Massachusetts [1790]; Michigan [1909]; Minnesota [1857]; Mississippi [1890]; and Missouri [1945]).
As typical examples:
Constitution of Alabama (1901):
Article XVIII. Mode of Amending the Constitution
Sec. 284. Legislative Proposals. Amendments may be proposed to this Constitution by the legislature in the manner following: The proposed amendments shall be read in the house in which they originate on three several days, and, if upon the third reading, three-fifths of all the members elected to that house shall vote in favor thereof, the proposed amendments shall be sent to the other house, in which they shall likewise be read on three several days, and if upon the third reading, three-fifths of all the members elected that house shall vote in favor of the proposed amendments, the legislature shall order an election by the qualified electors of the state upon such proposed amendments, to be held either at the general election next succeeding the session of the legislature at which the amendments are proposed or upon another day appointed by the legislature, not less than three months after the final adjournment of the session of the legislature at which the amendments were proposed. Notice of such election, together with the proposed amendments, shall be given by proclamation of the governor, which shall be published in every county in such manner as the legislature shall direct, for at least eight successive weeks next preceding the day appointed for such election. On the day so appointed an election shall be held for the vote of the qualified electors of the state upon the proposed amendments. If such election be held on the day of the general election, the officers of such general election shall open a poll for the vote of the qualified electors upon the proposed amendments; if it be held on a day other than that of a general election, officers for such election shall be appointed; and the election shall be held in all things in accordance with the law governing general elections. In all elections upon such proposed amendments, the votes cast thereat shall be canvassed, tabulated, and returns thereof be made to the secretary of state, and counted, in the same manner as in elections for representatives to the legislature; and if it shall thereupon appear that a majority of the qualified electors who voted at such election upon the proposed amendments voted in favor of the same, such amendments shall be valid to all intents and purposes as parts of this Constitution. The result of such election shall be made known by proclamation of the governor. Representation in the legislature shall be based upon population, and such basis of representation shall not be changed by constitutional amendments.
Sec. 285. Form of ballot for amendment. Upon the ballots used at all elections provided for in section 284 of this Constitution, the substance or subject matter of each proposed amendment shall be so printed that the nature thereof shall be clearly indicated. Following each proposed amendment on the ballot shall be printed the word "Yes" and immediately under that shall be printed the word "No". The choice of the elector shall be indicated by a cross mark made by him or under his direction, opposite the word expressing his desire, and no amendment shall be adopted unless it receives the affirmative vote of a majority of all the qualified electors who vote at such election.
Constitution of Arkansas (1874):
Article XIX. Miscellaneous Provisions.
Sec. 22. Constitutional amendments. Either branch of the General Assembly at a regular session thereof may propose amendments to this Constitution, and, if the same be agreed to by a majority of all the members, elected to each house, such proposed amendments shall be entered on the journal with the yeas and nays, and published in at least one newspaper in each county, where a newspaper is published, for six months immediately preceding the next general election for Senators and Representatives, at which time the same shall be submitted to the electors of the State for approval or rejection, and if a majority of the electors voting at such election adopt such amendments, the same shall become a part of this Constitution; but no more than three amendments shall be proposed or submitted at the same time. They shall be so submitted as to enable the electors to vote on each amendment separately.
Constitution of Kansas (1861):
Article XIV. Amendments.
Sec. 1. Proposal of amendments; publications; elections. Propositions for the amendment of this constitution may be made by either branch of the legislature; and if two thirds of all the members elected to each house shall concur therein, such proposed amendments, together with the yeas and nays, shall be entered on the journal; and the secretary of state shall cause the same to be published in at least one newspaper in each county of the state where a newspaper is published, for three months preceding the next election for representatives, at which time, the same shall be submitted to the electors, for their approval or rejection; and if a majority of the electors voting on said amendments, at said election, shall adopt the amendments, the same shall become a part of the constitution. When more than one amendment shall be submitted at the same time, they shall be so submitted as to enable the electors to vote on each amendments separately; and not more than three propositions to amend shall be submitted at the same election.
Constitution of Maryland (1867):
Article XIV. Amendments to the Constitution.
Sec. 1. Proposal in general assembly; publication; submission to voters; governor's proclamation. The General Assembly may propose Amendments to this Constitution; provided that each Amendment shall be embraced in a separate bill, embodying the Article or Section, as the same will stand when amended and passed by three fifths of all the members elected to each of the two Houses, by yeas and nays, to be entered on the Journals with the proposed Amendment. The bill or bills proposing amendment or amendments shall be published by order of the Governor, in at least two newspapers, in each County, where so many may be published, and where not more than one may be published, then in the newspaper, and in three newspapers published in the City of Baltimore, once a week for four weeks immediately preceding the next ensuing general election, at which the proposed amendment or amendments shall be submitted, in a form to be prescribed by the General Assembly, to the qualified voters of the State for adoption or rejection. The votes cast for and against said proposed amendment or amendments, severally, shall be returned to the Governor, in the manner prescribed in other cases, and if it shall appear to the Governor that a majority of the votes cast at said election on said amendment or amendments, severally, were cast in favor thereof, the Governor shall, by his proclamation, declare the said amendment or amendments having received said majority of votes, to have been adopted by the people of Maryland as part of the Constitution thereof, and henceforth said amendment or amendments shall be part of the said Constitution. When two or more amendments shall be submitted in the manner aforesaid, to the voters of this State at the same election, they shall be so submitted as that each amendment shall be voted on separately.
Constitution of Missouri (1945):
Article XII. Amending the Constitution.
Sec. 2(b). Submission of amendments proposed by general assembly or by the initiative. All amendments proposed by the general assembly or by the initiative shall be submitted to the electors for their approval or rejection by official ballot title as may be provided by law, on a separate ballot without party designation, at the next general election, or at a special election called by the governor prior thereto, at which he may submit any of the amendments. No such proposed amendment shall contain more than one amended and revised article of this constitution, or one new article which shall not contain more than one subject and matters properly connected therewith. If possible, each proposed amendment shall be published once a week for two consecutive weeks in two newspapers of different political faith in each county, the last publication to be not more than thirty nor less than fifteen days next preceding the election. If there be but one newspaper in any county, publication of four consecutive weeks shall be made. If a majority of the votes cast thereon is in favor of any amendment, the same shall take effect at the end of thirty days after the election. More than one amendment at the same election shall be so submitted as to enable the electors to vote on each amendment separately.
Article XV of the 1935 Constitution does not require a specific procedure, much less a detailed procedure for submission or ratification. As heretofore stated, it does not specify what kind of election at which the new Constitution shall be submitted; nor does it designate the Commission on Elections to supervise the plebiscite. Neither does it limit the ratification to the qualified electors as defined in Article V of the 1935 Constitution. Much less does it require the publication of the proposed Constitution for any specific period before the plebiscite nor does it even insinuate that the plebiscite should be supervised in accordance with the existing election law.
(2) As aforequoted, Article XV does not indicate the procedure for submission of the proposed Constitution to the people for ratification. It does not make any reference to the Commission on Elections as the body that shall supervise the plebiscite. And Article XV could not make any reference to the Commission on Elections because the original 1935 Constitution as ratified on May 14, 1935 by the people did not contain Article X on the Commission on Elections, which article was included therein pursuant to an amendment by that National Assembly proposed only about five (5) years later — on April 11, 1940, ratified by the people on June 18, 1940 as approved by the President of the United States on December 1940 (see Sumulong vs. Commission, 70 Phil. 703, 713, 715; Gonzales, Phil. Const. Law, 1966 ed., p. 13). So it cannot be said that the original framers of the 1935 Constitution as ratified May 14, 1935 intended that a body known as the Commission on Elections should be the one to supervise the plebiscite, because the Commission on Elections was not in existence then as was created only by Commonwealth Act No. 607 approved on August 22, 1940 and amended by Commonwealth Act No. 657 approved on June 21, 1941 (see Tañada & Carreon, Political Law of the Philippines, Vol. I, 1961 ed., pp. 475-476; Sumulong vs. Commission, 170 Phil. 703, 708-715; 73 Phil. 288, 290-300; Tañada & Fernando, Constitution of the Philippines, 1953 ed., Vol. I, p. 5, Vol. II, pp. 11-19).
Because before August, 1940 the Commission on Election was not yet in existence, the former Department of Interior (now Department of Local Governments and Community Development) supervised the plebiscites on the 1937 amendment on woman's suffrage, the 1939 amendment to the Ordinance appended to the 1935 Constitution (Tydings-Kocialkowski Act of the U.S. Congress) and the three 1940 amendments on the establishment of a bicameral Congress, the re-election of the President and the Vice-President, and the creation of the Commission on Elections (ratified on June 18, 1940). The supervision of said plebiscites by the then Department of Interior was not automatic, but by virtue of an express authorization in Commonwealth Act Nos. 34, 49 and 517.
If the National Assembly then intended that the Commission on Elections should also supervise the plebiscite for ratification of constitutional amendments or revision, it should have likewise proposed the corresponding amendment to Article XV by providing therein that the plebiscite on amendments shall be supervised by the Commission on Elections.
3) If the framers of the 1935 Constitution and the people in ratifying the same on May 14, 1935 wanted that only the qualified voters under Article V of the 1935 Constitution should participate in the referendum on any amendment or revision thereof, they could have provided the same in 1935 or in the 1940 amendment by just adding a few words to Article XV by changing the last phrase to "submitted for ratification to the qualified electors as defined in Article V hereof," or some such similar phrases.
Then again, the term "people" in Article XV cannot be understood to exclusively refer to the qualified electors under Article V of the 1935 Constitution because the said term "people" as used in several provisions of the 1935 Constitution, does not have a uniform meaning. Thus in the preamble, the term "Filipino people" refer, to all Filipino citizens of all ages of both sexes. In Section 1 of Article II on the Declaration of Principles, the term "people" in whom sovereignty resides and from whom all government authority emanates, can only refer also to Filipino citizens of all ages and of both sexes. But in Section 5 of the same Article II on social justice, the term "people" comprehends not only Filipino citizens but also all aliens residing in the country of all ages and of both sexes. Likewise, that is the same connotation of the term "people" employed in Section 1(3) of Article III on the Bill of Rights concerning searches and seizures.
When the 1935 Constitution wants to limit action or the exercise of a right to the electorate, it does so expressly as the case of the election of senators and congressmen. Section 2 Article VI expressly provides that the senators "shall be chosen at large by the qualified electors of the Philippines as may provided by law." Section 5 of the same Article VI specifically provides that congressmen shall "be elected by the qualified electors." The only provision that seems to sustain the theory of petitioners that the term "people" in Article XV should refer to the qualified electors as defined in Article V of the 1935 Constitution is the provision that the President and Vice-President shall be elected "by direct vote of the people." (Sec. 2 of Art. VII of the 1935 Constitution). But this alone cannot be conclusive as to such construction, because of explicit provisions of Sections 2 and 5 of Article VI, which specifically prescribes that the senators and congressmen shall be elected by the qualified electors.
As aforesaid, most of the constitutions of the various states of the United States, specifically delineate in detail procedure of ratification of amendments to or revision of said Constitutions and expressly require ratification by qualified electors, not by the generic term "people".
The proposal submitted to the Ozamis Committee on the Amending Process of the 1934-35 Constitutional Convention satisfied that the amendment shall be submitted to qualified election for ratification. This proposal was not accepted indicating that the 1934-35 Constitutional Convention did intend to limit the term "people" in Article XV of the 1935 Constitution to qualified electors only. As above demonstrated, the 1934-35 Constitutional Convention limits the use of the term "qualified electors" to elections of public officials. It did not want to tie the hands of succeeding future constitutional conventions as to who should ratify the proposed amendment or revision.
(4) It is not exactly correct to opine that Article XV of 1935 Constitution on constitutional amendment contemplates the automatic applicability of election laws to plebiscites on proposed constitutional amendments or revision.
The very phraseology of the specific laws enacted by the National Assembly and later by Congress, indicates that there is need of a statute expressly authorizing the application of the election laws to plebiscites of this nature. Thus, Com. Act No. 34 on the woman's suffrage amendment enacted on September 30, 1936, consists of 12 sections and, aside from providing that "there shall be held a plebiscite on Friday, April 30, 1937, on the question of woman's suffrage ... and that said amendment shall be published in the Official Gazette in English and Spanish for three consecutive issues at least fifteen (15) days prior to said election, ... and shall be posted in a conspicuous place in its municipal and provincial office building and in its polling place not later than April 22, 1937" (Sec. 12, Com. Act No. 34), specifies that the provisions of the Election Law regarding, the holding of a special election, insofar as said provisions are not in conflict with it, should apply to the said plebiscite (Sec. 3, Com. Act No. 34)1; and, that the votes cast according to the returns of the board of inspectors shall be counted by the National Assembly (Sec. 10, Com. Act No. 34).
The election laws then in force before 1938 were found in Sections 392-483 of the Revised Administrative Code.
Sec. 1 of Com. Act No. 357, the previous Election Code enacted on August 22, 1938, makes it expressly applicable to plebiscites. Yet the subsequent laws, namely, Com. Act Nos. 492 and 517 and Rep. Act No. 73 calling for the plebiscite on the constitutional amendments in 1939, 1940 and 1946, including the amendment creating the Commission on Elections, specifically provided that the provisions of the existing election law shall apply to such plebiscites insofar as they are not inconsistent with the aforesaid Com. Act Nos. 492 and 517, as well as Rep. Act No. 73. Thus —
Commonwealth Act No. 492, enacted on September 19, 1939, calling for a plebiscite on the proposed amendments to the Constitution adopted by the National Assembly on September 15, 1939, consists of 8 sections and provides that the proposed amendments to the Constitution adopted in Resolution No. 39 on September 15, 1939 "shall be submitted to the Filipino people for approval or disapproval at a general election to be held throughout the Philippines on Tuesday, October 24, 1939"; that the amendments to said Constitution proposed in "Res. No. 38, adopted on the same date, shall be submitted at following election of local officials," (Sec. 1, Com. Act No. 492) that the said amendments shall be published in English and Spanish in three consecutive issues of the Official Gazette at least ten (10) days prior to the elections; that copies thereof shall be posted not later than October 20, 1939 (Sec. 2, Com. Act 492); that the election shall be conducted according to provisions of the Election Code insofar as the same may be applicable; that within thirty (30) days after the election, Speaker of the National Assembly shall request the President to call a special session of the Assembly for the purpose of canvassing the returns and certify the results thereof (Sec. 6, Com. Act No. 492).
Commonwealth Act No. 517, consisting of 11 sections, was approved on April 25, 1940 and provided, among others: that the plebiscite on the constitutional amendments providing bicameral Congress, re-election of the President and Vice-President, and the creation of a Commission on Elections shall be held at a general election on June 18, 1940 (Sec. 1); that said amendments shall be published in three consecutive issues of the Official Gazette in English and Spanish at least 20 days prior to the election and posted in every local government office building and polling place not later than May 18, 1940 (Sec. 2); that the election shall be conducted in conformity with the Election Code insofar as the same may be applicable (Sec. 3) that copies of the returns shall be forwarded to the Secretary of National Assembly and the Secretary of Interior (Sec. 7); that the National Assembly shall canvass the returns to certify the results at a special session to be called by President (Sec. 8).
Republic Act No. 73 approved on October 21, 1946 calling for a plebiscite on the parity amendment consists of 8 sections provides that the Amendment "shall be submitted to the people, for approval or disapproval, at a general election which shall be held on March 11, 1947, in accordance with the provisions of this Act" (Sec. 1, R.A. No. 73); that the said amendment shall be published in English and Spanish in three consecutive issues of the Official Gazette at least 20 days prior to the election; that copies of the same shall be posted in a conspicuous place and in every polling place not later than February 11, 1947 (Section 2, R.A. No. 73); that the provisions of Com. Act No. 357 (Election Code) and Com. Act No. 657 creating the Commission on Elections, shall apply to the election insofar as they are not inconsistent with this Act (Sec. 3, R.A. No. 73); and that within 30 days after the election, the Senate and House of Representatives shall hold a joint session to canvass the returns and certify the results thereof (Section 6, R.A. No. 73).
From the foregoing provisions, it is patent that Article XV of the 1935 Constitution does not contemplate nor envision the automatic application of the election law; and even at that, not all the provisions of the election law were made applicable because the various laws aforecited contain several provisions which are inconsistent with the provisions of the Revised Election Code (Com. Act No. 357). Moreover, it should be noted that the period for the publication of the copies of the proposed amendments was about 10 days, 15 days or 20 days, and for posting at least 4 days, 8 days or 30 days.
Republic Acts Nos. 180 and 6388 likewise expressly provide that the Election Code shall apply to plebiscites (See. 2, R.A. No. 180, as amended, and Section 2, Rep. Act No. 6388).
If the Election Code ipso facto applies to plebiscites under Article XV of the 1935 Constitution, there would be no need for Congress to expressly provide therefor in the election laws enacted after the inauguration of the Commonwealth government under the 1935 Constitution.
(5) Article XV of the 1935 Constitution does not specify who can vote and how they shall vote. Unlike the various State Constitutions of the American Union (with few exceptions), Article XV does not state that only qualified electors can vote in the plebiscite. As above-intimated, most of the Constitutions of the various states of the United States provide for very detailed amending process and specify that only qualified electors can vote at such plebiscite or election.
Congress itself, in enacting Republic Act No. 3590, otherwise known as the Barrio Charter, which was approved on June 17, 1967 and superseded Republic Act No. 2370, expanded the membership of the barrio assembly to include citizens who are at least 18 years of age, whether literate or not, provided they are also residents of the barrio for at least 6 months (Sec. 4, R.A. No. 3590).
Sec. 4. The barrio assembly. — The barrio assembly shall consist of all persons who are residents of the barrio for at least six months, eighteen years of age or over, citizens of the Republic of the Philippines and who are duly registered in the list of barrio assembly members kept by the Barrio Secretary.
The barrio assembly shall meet at least once a year to hear the annual report of the barrio council concerning the activities and finances of the barrio.
It shall meet also at the case of the barrio council or upon written petition of at least One-Tenth of the members of the barrio assembly.
No meeting of the barrio assembly shall take place unless notice is given one week prior to the meeting except in matters involving public safety or security in which case notice within a reasonable time shall be sufficient. The barrio captain, or in his absence, the councilman acting as barrio captain, or any assembly member selected during the meeting, shall act as presiding officer at all meetings of the barrio assembly. The barrio secretary or in his absence, any member designated by the presiding officer to act as secretary shall discharge the duties of secretary of the barrio assembly.
For the purpose of conducting business and taking any official action in the barrio assembly, it is necessary that at least one-fifth of the members of the barrio assembly be present to constitute a quorum. All actions shall require a majority vote of these present at the meeting there being a quorum.
Sec. 5. Powers of the barrio assembly. — The powers of the barrio assembly shall be as follows:
a. To recommend to the barrio council the adoption of measures for the welfare of the barrio;
b. To decide on the holding of a plebiscite as provided for in Section 6 of this Act;
c. To act on budgetary and supplemental appropriations and special tax ordinances submitted for its approval by the barrio council; and
d. To hear the annual report council concerning the activities and finances of the assembly.
Sec. 6. Plebiscite. — A plebiscite may be held in the barrio when authorized by a majority vote of the members present in the barrio assembly, there being a quorum, or when called by at least four members of the barrio council; Provided, however, That no plebiscite shall be held until after thirty days from its approval by either body, and such plebiscite has been given the widest publicity in the barrio, stating the date, time, and place thereof, the questions or issues to be decided, action to be taken by the voters, and such other information relevant to the holding of the plebiscite.
All duly registered barrio assembly members qualified to vote may vote in the plebiscite. Voting procedures may be made either in writing as in regular election, and/or declaration by the voters to the board of election tellers. The board of election tellers shall be the same board envisioned by section 8, paragraph 2 of this Act, in case of vacancies in this body, the barrio council may fill the same.
A plebiscite may be called to decide on the recall of any member of the barrio council. A plebiscite shall be called to approve any budgetary, supplemental appropriations or special tax ordinances.
For taking action on any of the above enumerated measures, majority vote of all the barrio assembly members registered in the list of barrio secretary is necessary.
x x x x x x x x x
Sec 10. Qualifications of voters and candidates. — Every citizen of the Philippines, twenty-one years of age or over, able to read and write, who has been a resident of the barrio during the six months immediately preceding the election, duly registered in the list of voters kept by the barrio secretary, who is not otherwise disqualified, may vote or be a candidate in the barrio elections.
The following persons shall not be qualified to vote:
a. Any person who has been sentenced by final judgment to suffer one year or more of imprisonment, within two years after service of his sentence;
b. Any person who has violated his allegiance to the Republic of the Philippines; and
c. Insane or feeble-minded persons.
All these barrio assembly members, who are at least 18 years of age, although illiterate, may vote at the plebiscite on the recall of any member of the barrio council or on a budgetary, supplemental appropriation, or special ordinances, a valid action on which requires "a majority vote of all of the barrio assembly members registered in the list of the barrio secretary" (par. 5, Sec. 6, R.A. No. 3590). Such plebiscite may be authorized by a majority vote of the members present in the barrio assembly, there being a quorum (par. 1, Sec. 6).
However, in the case of election of barrio officials, only Filipino citizens, who are at least 21 years of age, able to read and write, residents of the barrio during the 6 months immediately preceding the election and duly registered in the list of voters kept by the barrio secretary, not otherwise disqualified, may vote (Sec. 10, R.A. No. 3590).
Paragraph 2 of Section 6 likewise authorizes open voting as it provides that "voting procedures may be made ... either in writing as in regular elections, and/or declaration by the voters to the board of election tellers."
That said paragraph 2 of Section 6 provides that "all duly registered barrio assembly members qualified to vote may vote in the plebiscite," cannot sustain the position of petitioners in G.R. No. L-36165 that only those who are 21 years of age and above and who possess all other qualifications of a voter under Section 10 of R.A. No. 3590, can vote on the plebiscites referred to in Section 6; because paragraph 3 of Section 6 does not expressly limit the voting to those with the qualifications under Section 10 as said Section 6 does not distinguish between those who are 21 or above on the one hand and those 18 or above but below 21 on the other, and whether literate or not, to constitute a quorum of the barrio assembly.
Consequently, on questions submitted for plebiscite, all the registered members of the barrio assembly can vote as long as they are 18 years of age or above; and that only those who are 21 years of age or over and can read and write, can vote in the elections of barrio officials.
Otherwise there was no sense in extending membership in the barrio assembly to those who are at least 18 years of age, whether literate or not. Republic Act No. 3590 could simply have restated Section 4 of Republic Act No. 2370, the old Barrio Charter, which provided that only those who are 21 and above can be members of the barrio assembly.
Counsels Salonga and Tañada as well as all the petitioners in L-36165 and two of the petitioners in L-36164 participated in the enactment of Republic Act No. 3590 and should have known the intendment of Congress in expanding the membership of the barrio assembly to include all those 18 years of age and above, whether literate or not.
If Congress in the exercise of its ordinary legislative power, not as a constituent assembly, can include 18-year olds as qualified electors for barrio plebiscites, this prerogative can also be exercised by the Chief Executive as delegate of the Constitutional Convention in regard to the plebiscite on the 1973 Constitution.
As heretofore stated, the statement by the President in Presidential Proclamation No. 1102 that the 1973 Constitution was overwhelmingly ratified by the people through the Citizens' Assemblies in a referendum conducted from January 10 to 15, 1973, should be accorded the presumption of correctness; because the same was based on the certification by the Secretary of the Department of Local Government and Community Development who tabulated the results of the referendum all over the country. The accuracy of such tabulation and certification by the said Department Secretary should likewise be presumed; because it was done in the regular performance of his official functions aside from the fact that the act of the Department Secretary, as an alter ego of the President, is presumptively the act of the President himself unless the latter disapproves or reprobates the same (Villena vs. Secretary of Interior, 67 Phil. 451 ). The truth of the certification by the Department Secretary and the Chief Executive on the results of the referendum, is further strengthened by the affidavits and certifications of Governor Isidro Rodriguez of Rizal, Mayor Norberto S. Amoranto of Quezon City and Councilor Eduardo T. Parades of Quezon City.
The procedure for the ratification of the 1937 amendment on woman suffrage, the 1939 amendment to the ordinance appended to the 1935 Constitution, the 1940 amendments establishing the bicameral Congress, creating the Commission on Elections and providing for two consecutive terms for the President, and the 1947 parity amendment, cannot be invoked; because those amendments were proposed by the National Assembly as expressly authorized by Article V of the 1935 Constitution respecting woman suffrage and as a constituent assembly in all the other amendments aforementioned and therefore as such, Congress had also the authority to prescribe the procedure for the submission of the proposed amendments to the 1935 Constitution.
In the cases at bar, the 1973 Constitution was proposed by an independent Constitutional Convention, which as heretofore discussed, has the equal power to prescribe the modality for the submission of the 1973 Constitution to the people for ratification or delegate the same to the President of the Republic.
The certification of Governor Isidro Rodriguez of Rizal and Mayor Norberto Amoranto could be utilized as the basis for the extrapolation of the Citizens' Assemblies in all the other provinces, cities and municipalities in all the other provinces, cities and municipalities, and the affirmative votes in the Citizens' Assemblies resulting from such extrapolation would still constitute a majority of the total votes cast in favor of the 1973 Constitution.
As claimed by petitioners in L-36165, against the certification of the Department of Local Government and Community Development that in Rizal there were 1,126,000 Yes votes and 100,310 No votes, the certification of Governor Isidro Rodriguez of Rizal, shows only 614,157 Yes votes against 292,530 No votes. In Cavite province, there were 249,882 Yes votes against 12,269 No votes as disclosed in Annex 1-A of respondents' Compliance (the certification by the Department of Local Government and Community Development), while the alleged certification of Governor Lino Bocalan of Cavite shows only 126,163 Yes votes and 5,577 No votes. If such a ratio is extended by way of extrapolation to the other provinces, cities and towns of the country, the result would still be an overwhelming vote in favor of the 1973 Constitution.
The alleged certification by Governor Lino Bocalan of Cavite, is not true; because in his duly acknowledged certification dated March 16, 1973, he states that since the declaration of martial law and up to the present time, he has been under house arrest in his residence in Urdaneta Village, Makati, Rizal; that he never participated in the conduct of the Citizens' Assemblies on January 10 15, 1973 in the province of Cavite; that the acting chairman and coordinator of the Citizens' Assemblies at that time was Vice-Governor Dominador Camerino; and that he was shown a letter for his signature during the conduct of the Citizens' Assemblies, which he did not sign but which he referred to Vice-Governor Camerino (Annex 1-Rejoinder of the Sol. Gen. dated March 20, 1973).
Mayor Pablo Cuneta likewise executed an affidavit dated March 16, 1973 stating that on January 15, 1973, he caused the preparation of a letter addressed to Secretary Jose Roño of the Department of Local Government and Community Development showing the results of the referendum in Pasay City; that on the same day, there were still in any Citizens' Assemblies holding referendum in Pasay City, for which reason he did not send the aforesaid letter pending submittal of the other results from the said Citizens' Assemblies; and that in the afternoon of January 15, 1973, he indorsed the complete certificate of results on the referendum in Pasay City to the Office of the President (Annex 5-Rejoinder of Sol. Gen. dated March 20, 1973).
Pablo F. Samonte, Assistant City Treasurer and Officer in Charge of Pasay City also issued an affidavit dated March 15, 1973 stating that a certain Atty. Delia Sutton of the Salonga Law Office asked him for the results of the referendum; that he informed her that he had in his possession unsigned copies of such results which may not be considered official as they had then no knowledge whether the original thereof had been signed by the mayor; and that in spite of his advice that said unsigned copies were not official, she requested him if she could give her the unofficial copies thereof, which he gave in good faith (Annex C-Rejoinder to the Sol. Gen.).
There were 118,010 Yes votes as against 5,588 No votes in the Citizens' Assemblies of Quezon city (Annex V to Petitioners' Notes in L-36165). The fact that a certain Mrs. Remedio Gutierrez, wife of alleged barrio treasurer Faustino Gutierrez, of barrio South Triangle, Quezon City, states that "as far as we know, there has been no Citizens' Assembly meeting in our Area, particularly in January of this year," does not necessarily mean that there was no such meeting in said barrio; for she may not have been notified thereof and as a result she was not able to attend said meeting. Much less can it be a basis for the claim that there was no meeting at all in the other barrios of Quezon City. The barrio captain or the secretary of the barrio assembly could have been a credible witness.
Councilor Eduardo T. Paredes, chairman of the Secretariat of Quezon City Ratification and Coordinating Council, certified on March 12, 1973 that as such chairman he was in charge of the compilation and tabulation of the results of the referendum among the Citizens' Assemblies in Quezon City based on the results submitted to the Secretariat by the different Citizens' Assemblies; but many results of the referendum were submitted direct to the national agencies having to do with such activity and all of which he has no knowledge, participation and control (Annex 4 Rejoinder of the Sol. Gen.).
Governor Isidro Rodriguez of Rizal issued a certification dated March 16, 1973 that he prepared a letter to the President dated January 15, 1973 informing him of the results of the referendum in Rizal, in compliance with the instruction of the National Secretariat to submit such letter 2 or 3 days from January 10 to show the trend of voting in the Citizens' Assemblies; that the figures 614,157 and 292,530 mentioned in said letter were based on the certificates of results in his possession as of January 14, 1973, which results were made the basis of the computation of the percentage of voting trend in the province; that his letter was never intended to show the final or complete result in the referendum in the province as said referendum was then still going on from January 14-17, 1973, for which reason the said letter merely stated that it was only a "summary result"; and that after January 15, 1973, he sent to the National Secretariat all the certificates of results in 26 municipalities of Rizal for final tabulation (Annex 3-Rejoinder of the Sol. Gen.; emphasis supplied).
Lydia M. Encarnacion, acting chief of the Records Section, Department of Local Government and Community Development, issued a certificate dated March 16, 1973 that she was shown xerox copies of unsigned letters allegedly coming from Governor Lino Bocalan dated January 15, 1973 and marked "Rejoinder Annex Cavite" addressed to the President of the Philippines through the Secretary of the Department of Local Government and Community Development and another unsigned letter reportedly from Mayor Pablo Cuneta dated January 15, 1973 and marked "Rejoinder Annex Pasay City" addressed to the Secretary of the Department of Local Government and Community Development; that both xerox copies of the unsigned letters contain figures showing the results of the referendum of the Citizens' Assemblies in those areas; and that the said letters were not received by her office and that her records do not show any such documents received by her office (Annex 2-Rejoinder of the Sol. Gen.).
Thus it would seem that petitioners in L-36165 have attempted to deceive this Court by representing said unsigned letters and/or certificates as duly signed and/or containing the complete returns of the voting in the Citizens' Assemblies.
The observation We made with respect to the discrepancy between the number of Yes votes and No votes contained in the summary report of Governor Rodriguez of Rizal as well as those contained in the alleged report of Governor Lino Bocalan of Cavite who repudiated the same as not having been signed by him for he was then under house arrest, on the one hand, and the number of votes certified by the Department of Local Government and Community Development, on the other, to the effect that even assuming the correctness of the figures insisted on by counsel for petitioners in L-36165, if they were extrapolated and applied to the other provinces and cities of the country, the Yes votes would still be overwhelmingly greater than the No votes, applies equally to the alleged discrepancy between the figures contained in the certification of the Secretary of the Department of Local Government and Community Development and the figures furnished to counsel for petitioners in L-36165 concerning the referendum in Camarines Sur, Bataan and Negros Occidental.
The fact that the referendum in the municipality of Pasacao, Camarines Sur, shows that there were more votes in favor of the plebiscite to be held later than those against, only serve to emphasize that there was freedom of voting among the members of the Citizens' Assemblies all over the country during the referendum from January 10 to 15, 1973 (Annex-6 Camarines Sur to Rejoinder of Petitioners in L-36165). If there was no such freedom of choice, those who wanted a plebiscite would not outnumber those against holding such plebiscite.
The letter of Governor Felix O. Alfelor, Sr. dated January 1973 confirms the "strong manifestation of approval of the new Constitution by almost 97% by the members of the Citizens' Assemblies in Camarines Sur" (Annex-Camarines Sur to Rejoinder of Petitioners in L-36165).
The report of Governor Efren B. Pascual of Bataan shows that the members of the Citizens' Assemblies voted overwhelmingly in favor of the new Constitution despite the fact that the second set of questions including the question "Do you approve of the new Constitution?" was received only on January 10. Provincial Governor Pascual stated that "orderly conduct and favorable results of the referendum" were due not only to the coordinated efforts and cooperation of all teachers and government employees in the area but also to the enthusiastic participation by the people, showing "their preference and readiness to accept this new method of government to people consultation in shaping up government policies." (Annex-Bataan to Rejoinder of Petitioners in L-36165).
As heretofore stated, it is not necessary that voters ratifying the new Constitution are registered in the book of voters; it is enough that they are electors voting on the new Constitution (Bott vs. Wurts, 40 A 740 [1898]; 43 A 744, 881 [1899]; 45 LRA 251). The fact that the number of actual voters in the referendum in certain localities may exceed the number of voters actually registered for the 1971 elections, can only mean that the excess represents the qualified voters who are not yet registered including those who are at least 15 years of age and the illiterates. Although ex-convicts may have voted also in the referendum, some of them might have been granted absolute pardon or were sentenced to less than one year imprisonment to qualify them to vote (Sec. 201, 1971 Rev. Election Code). At any rate, the ex-convicts constitute a negligible number, discounting which would not tilt the scale in favor of the negative votes.
Similarly, the fact that Mayor Marcial F. Samson of Caloocan City, who belongs to the Liberal Party, stated in his letter dated March 13, 1973 that he does not "feel authorized by the proper authorities to confirm or deny the data" concerning the number of participants, the Yes votes and No votes in the referendum on the new Constitution among the members of the Citizens' Assemblies in Caloocan City, does not necessarily give rise to the inference that Mayor Samson of Caloocan City is being intimidated, having been recently released from detention; because in the same letter of Mayor Samson, he suggested to counsel for petitioners in L-36165 that he can secure "the true and legitimate results of the referendum" from the Office of the President (Annex Caloocan-B to Rejoinder of Petitioners in L-36165). Why did not learned and eminent counsel heed such suggestion?
Counsel for petitioners in L-36165, to sustain their position, relies heavily on the computation of the estimated turnover in the Citizens' Assemblies referendum on January 10 to 15, 1973 by a certain Professor Benjamin R. Salonga, of the Mapua Institute of Technology, ostensibly a close relative of former Senator Jovito R. Salonga, eminent counsel for petitioners in L-36165 (Annex M-as amended, to Consolidated Rejoinder of petitioners in L-36165 to the Notes of Arguments and Memorandum of respondents). Professor Salonga is not a qualified statistician, which all the more impairs his credibility. Director Tito A. Mijares of the Bureau of Census and Statistics, in his letter dated March 16, 1973 address to the Secretary of the Department of Local Government and Community Development, refutes the said computation of Professor Benjamin R. Salonga, thus:
1) I do not quite understand why (Problem 1) all qualified registered voters and the 15-20-year-old youths (1972) will have to be estimated in order to give a 101.9% estimate of the percentage participation of the "15-20 year old plus total number of qualified voters" which does not deem to answer the problem. This computation apparently fails to account for some 5.6 million persons "21 years old and over" who were not registered voters (COMELEC), but who might be qualified to participate at the Citizen's Assembly.
2) The official population projection of this office (medium assumption) for "15 year olds and over" as of January 1, 1973 is 22.506 million. If total number of participants at the Citizens' Assembly Referendum held on January 10-15, 1973 was 16.702 million, participation rate will therefore be the ratio of the latter figure to the former which gives 74.2%.
3) 1 cannot also understand c-2 "Solution to Problem 11." The "difference or implied number of 15-20 year olds" of 5,039,906 would represent really not only all 15-year olds and over who participated at the Citizens' Assembly but might not have been registered voters at the time, assuming that all the 11,661,909 registered voted at Citizens' Assembly. Hence, the "estimate percentage participation of 15-20 years olds" of 105.6% does not seem to provide any meaningful information.
To obtain the participation rate of "15-20 years old" one must divide the number in this age group, which was estimated to be 4.721 million as of January 1, 1973 by the population of "15 years old and over" for the same period which was estimated to be 22.506 million, giving 21.0%.
In Problem III, it should be observed that registered voters also include names of voters who are already dead. It cannot therefore be assumed that all of them participated at the Citizens' Assembly. It can therefore be inferred that "a total number of persons 15 and over unqualified/disqualified to vote" will be more than 10,548,197 and hence the "difference or implied number of registered voters that participated" will be less than 6,153,618.
I have reservations on whether an "appropriate number of qualified voters that supposedly voted" could be meaningfully estimated.
5) The last remark will therefore make the ratio (a) [Solution to Problem] more than 1.71 and that for (b), accordingly, will also be less than 36.8%." (Annex F Rejoinder).
From the foregoing analysis of the Director of Census and Statistics as of January 21, 1973, the official population projection for 15-year olds and over is 22,506,000. If 16,702,000 voted in the referendum, the participation ratio would be 74.2% of 22,506,000.
If the registered electors as of the election of November 8, 1971 numbered 11,661,909, the difference between 16,702,000 who participated in the referendum and the registered electors of 11,661,909 for the November 8, 1971 elections, is 5,040,091, which may include not only the 15-year olds and above but below 21 but also the qualified electors who were not registered before the November 8, 1971 elections as well as illiterates who are 15 years old and above but below 21.
Moreover, in the last Presidential election in November, 1969, We found that the incumbent President obtained over 5,000,000 votes as against about 3,000,000 votes for his rival LP Senator Sergio Osmeña, Jr., garnering a majority of from about 896,498 to 1,436,118 (Osmeña, Jr. vs. Marcos, Presidential Election Contest No. 3, Jan. 8, 1973).
The petitioners in all the cases at bar cannot state with justification that those who voted for the incumbent President in 1969 did not vote in favor of the 1973 Constitution during the referendum from January 10 to 15, 1973. It should also be stressed that many of the partisans of the President in the 1969 Presidential elections, have several members in their families and relatives who are qualified to participate in the referendum because they are 15 years or above including illiterates, which fact should necessarily augment the number of votes who voted for the 1973 Constitution.
(6) It is also urged that martial law being the rule of force, is necessarily inconsistent with freedom of choice, because the people fear to disagree with the President and Commander-in-Chief of the Armed Forces of the Philippines and therefore cannot voice views opposite to or critical of the position of the President on the 1973 Constitution and on the mode of its ratification.
It is also claimed or urged that there can be no free choice during martial law which inevitably generates fear in the individual. Even without martial law, the penal, civil or administrative sanction provided for the violation of ordinarily engenders fear in the individual which persuades the individual to comply with or obey the law. But before martial law was proclaimed, many individuals fear such sanctions of the law because of lack of effective equal enforcement or implementation thereof — in brief, compartmentalized justice and extraneous pressures and influences frustrated the firm and just enforcement of the laws. The fear that is generated by martial law is merely the fear of immediate execution and swift enforcement of the law and therefore immediate infliction of the punishment or sanction prescribed by the law whenever it is transgressed during the period of martial law. This is not the fear that affects the voters' freedom of choice or freedom to vote for or against the 1973 Constitution. Those who cringe in fear are the criminals or the law violators. Surely, petitioners do not come under such category.
(7) Petitioners likewise claim that open voting by viva voce or raising of hands violates the secrecy of the ballot as by the election laws. But the 1935 Constitution does not require secret voting. We search in vain for such guarantee or prescription in said organic law. The Commission on Elections under the 1940 Amendment, embodied as Article X is merely mandated to insure "free, orderly and honest election." Congress, under its plenary law-making authority, could have validly prescribed in the election law open voting in the election of public officers, without trenching upon the Constitution. Any objection to such a statute concerns its wisdom or propriety, not its legality or constitutionality. Secret balloting was demanded by partisan strife in elections for elective officials. Partisanship based on party or personal loyalties does not generally obtain in a plebiscite on proposed constitutional amendments or on a new Constitution. We have seen even before and during martial law that voting in meetings of government agencies or private organizations is usually done openly. This is specially true in sessions of Congress, provincial boards, city councils, municipal boards and barrio councils when voting on national or local issues, not on personalities.
Then again, open voting was not a universal phenomenon in the Citizens' Assemblies. It might have been true in certain areas, but that does not necessarily mean that it was done throughout the country.
The recent example of an open voting is the last election on March 3, 1973 of the National Press Club officers who were elected by acclamation presided over by its former president, petitioner Eduardo Monteclaro in L-36236 (see Bulletin Today, p. 8, March 3, 1973 issue). There can be no more hardboiled group of persons than newspapermen, who cannot say that voting among them by acclamation was characterized by fear among the members of the National Press Club.
Moreover, petitioners would not be willing to affirm that all the members of the citizenry of this country are against the new Constitution. They will not deny that there are those who favor the same, even among the 400,000 teachers among whom officers of the Department of Education campaigned for the ratification of the new Constitution.
Not one of the petitioners can say that the common man — farmer, laborer, fisherman, lowly employee, jeepney driver, taxi driver, bus driver, pedestrian, salesman, or salesgirl — does not want the new Constitution, or the reforms provided for therein.
(8) Petitioners likewise claim that there was no sufficient publicity given to the new Constitution. This is quite inaccurate; because even before the election in November, 1970 of delegates to the Constitutional Convention, the proposed reforms were already discussed in various forums and through the press as well as other media of information. Then after the Constitutional Convention convened in June, 1971, specific reforms advanced by the delegates were discussed both in committee hearings as well as in the tri-media — the press, radio and television. Printed materials on the proposed reforms were circulated by their proponents. From June, 1971 to November 29, 1972, reforms were openly discussed and debated except for a few days after the proclamation of martial law on September 21, 1972. From the time the Constitutional Convention reconvened in October, 1972 until January 7, 1973, the provisions of the new Constitution were debated and discussed in forums sponsored by private organizations universities and debated over the radio and on television. The Philippines is a literate country, second only to Japan in the Far East, and more literate perhaps than many of mid-western and southern states of the American Union and Spain. Many residents in about 1,500 towns and 33,000 barrios of the country have radios. Even the illiterates listened to radio broadcasts on and discussed the provisions of the 1973 Constitution.
As reported by the eminent and widely read columnist, Teodoro Valencia in his column in Bulletin Today, March 4, 1973 issue, "Otto Lang, Hollywood producer director (Tora, Tora, Tora) went around the country doing a 30-minute documentary on the Philippines for American television stated that what impressed him most in his travel throughout the country was the general acceptance of the New Society by the people which he saw in his 6-week travel from Aparri to Jolo."
The report of Frank Valeo (Bulletin Today, March 3 and 4, 1973 and Daily Express, March 3, and Sunday Express, March 4), Secretary of the United States Senate, who conducted a personal survey of the country as delegate of Senator Mike Mansfield, Chairman, Committee on US-Philippine relations, states:
Martial law has paved the way for a re-ordering of the basic social structure of the Philippines. President Marcos has been prompt and sure-footed in using the power of presidential decree under martial law for this purpose. He has zeroed in on areas which have been widely recognized as prime sources of the nation's difficulties — land tenancy, official corruption, tax evasion and abuse of oligarchic economic power. Clearly, he knows the targets. What is not yet certain is how accurate have been his shots. Nevertheless, there is marked public support for his leadership and tangible alternatives have not been forthcoming. That would suggest that he may not be striking too far from the mark.
The United States business community in Manila seems to have been re-assured by recent developments ... . (Emphasis supplied.)
Petitioners cannot safely assume that all the peaceful citizens of the country, who constitute the majority of the population, do not like the reforms stipulated in the new Constitution, as well as the decrees, orders and circulars issued to implement the same. It should be recalled, as hereinbefore stated, that all these reforms were the subject of discussion both in the committee hearings and on the floor of the Constitutional Convention, as well as in public forums sponsored by concerned citizens or civic organizations at which Con-Con delegates as well as other knowledgeable personages expounded their views thereon and in all the media of information before the proclamation of martial law on September 21, 1972. This is the reason why the Constitutional Convention, after spending close to P30 million during the period from June 1, 1971 to November 29, 1972, found it expedient to accelerate their proceedings in November, 1972 because all views that could possibly be said on the proposed provisions of the 1973 Constitution were already expressed and circulated. The 1973 Constitution may contain some unwise provisions. But this objection to such unwise or vague provisions, as heretofore stated, refers to the wisdom of the aforesaid provisions, which issue is not for this Court to decide; otherwise We will be substituting Our judgment for the judgment of the Constitutional Convention and in effect acting as a constituent assembly.
VI
PRESIDENT AS COMMANDER IN CHIEF EXERCISES LEGISLATIVE POWERS DURING MARTIAL LAW.
The position of the respondent public officers that undermartial law, the President as Commander-in-Chief is vested with legislative powers, is sustained by the ruling in the 1949 case of Kuroda vs. Jalandoni, et al. (83 Phil. 171, 177-178) which reiterates the 1945 case of Yamashita vs. Styer (75 Phil. 563, 571-72). The trial of General Kuroda was after the surrender of Japan on October 2, 1945 (23 Encyc. Brit. 1969 ed., p. 799) and hence no more martial law in the Philippines.
... Consequently, in the promulgation and enforcement of Executive Order No. 68, the President of the Philippines has acted in conformity with the generally accepted principles and policies of international law which are part of our Constitution.
The promulgation of said executive order is an exercise by the President of his powers as Commander in Chief of all our armed forces, as upheld by this Court in the case of Yamashita vs. Styver (L-129, 42 Off. Gaz., 664) when we said —
"War is not ended simply because hostilities have ceased. After cessation of armed hostilities, incidents of war may remain pending which should be disposed of as in time of war. "An important incident to a conduct of war is the adoption measures by the military command not only to repel and defeat the enemies but to seize and subject to disciplinary measures those enemies who in their attempt to thwart or impede our military effort have violated the law of war." (Ex parte Quirin, 317 U.S., 1; 63 Sup. Ct., 2.) Indeed, the power to create a military commission for the trial and punishment of war criminals is an aspect of waging war. And, in the language of a writer, a military commission "has jurisdiction so long as the technical state of war continues. This includes the period of an armistice, or military occupation, up to the effective date of treaty of peace, and may extend beyond, by treaty agreement." (Cowles, Trial of War Criminals by Military Tribunals, American Bar Association Journal, June, 1944).
Consequently, the President as Commander-in-Chief is fully empowered to consummate this unfinished aspect of war, namely the trial and punishment of war criminals, through the issuance and enforcement of Executive Order No. 68. (83 Phil. 177-178; emphasis supplied).
Chief Justice Stone of the United States Supreme Court likewise appears to subscribe to this view, when, in his concurring opinion in Duncan vs. Kahanamoku (327 U.S. 304 [1946]), he defined martial law as "the exercise of the power which resides in the executive branch of the government to preserve order and insure the public safety in times of emergency, when other branches of the government are unable to function, or their functioning would itself threaten the public safety." (Emphasis supplied). There is an implied recognition in the aforesaid definition of martial law that even in places where the courts can function, such operation of the courts may be affected by martial law should their "functioning ... threaten the public safety." It is possible that the courts, in asserting their authority to pass upon questions which may adversely affect the conduct of the punitive campaign against rebels, secessionists, dissidents as well as subversives, martial law may restrict such judicial function until the danger to the security of the state and of the people shall have been decimated.
The foregoing view appears to be shared by Rossiter when he stated:
Finally, this strong government, which in some instances might become an outright dictatorship, can have no other purposes than the preservation of the independence of the state, the maintenance of the existing constitutional order, and the defense of the political and social liberties of the people. It is important to recognize the true and limited ends of any practical application of the principle of constitutional dictatorship. Perhaps the matter may be most clearly stated in this way: the government of a free state is proceeding on its way and meeting the usual problems of peace and normal times within the limiting framework of its established constitutional order. The functions of government are parceled out among a number of mutually independent offices and institutions; the power to exercise those functions is circumscribed by well-established laws, customs, and constitutional prescriptions; and the people for whom this government was instituted are in possession of a lengthy catalogue of economic, political, and social rights which their leaders recognize as inherent and inalienable. A severe crisis arises — the country is invaded by a hostile power, or a dissident segment of the citizenry revolts, or the impact of a world-wide depression threatens to bring the nation's economy in ruins. The government meets the crisis by assuming more powers and respecting fewer rights. The result is a regime which can act arbitrarily and even dictatorially in the swift adaption of measures designed to save the state and its people from the destructive effects of the particular crisis. And the narrow duty to be pursued by this strong government, this constitutional dictatorship? Simply this and nothing more: to end the crisis and restore normal times. The government assumes no power and abridges no right unless plainly indispensable to that end; it extends no further in time than the attainment of that end; and it makes no alteration in the political, social and economic structure of the nation which cannot be eradicated with the restoration of normal times. In short, the aim of constitutional dictatorship is the complete restoration of the status quo ante bellum. This historical fact does not comport with philosophical theory, that there never has been a perfect constitutional dictatorship, is an assertion that can be made without fear of contradiction. But this is true of all institutions of government, and the principle of constitutional dictatorship remains eternally valid no matter how often and seriously it may have been violated in practice. (Constitutional Dictatorship, 1948 ed., by Clinton L. Rossiter, p. 7; emphasis supplied.)
Finally, Rossiter expressly recognizes that during martial law, the Chief Executive exercises legislative power, whether of temporary or permanent character, thus:
The measures adopted in the prosecution of a constitutional dictatorship should never be permanent in character or effect. Emergency powers are strictly conditioned by their purpose and this purpose is the restoration of normal conditions. The actions directed to this end should therefore be provisional. For example, measures of a legislative nature which work a lasting change in the structure of the state or constitute permanent derogations from existing law should not be adopted under an emergency enabling act, at least not without the positively registered approval of the legislature. Permanent laws, whether adopted in regular or irregular times, are for parliaments to enact. By this same token, the decisions and sentences of extraordinary courts should be reviewed by the regular courts after the termination of the crisis.
But what if a radical act of permanent character, one working lasting changes in the political and social fabric, is indispensable to the successful prosecution of the particular constitutional dictatorship? The only answer can be: it must be resolutely taken and openly acknowledged. President Lincoln found it necessary to proceed to the revolutionary step of emancipation in aid of his conservative purpose of preserving the Union; as a constitutional dictator he had a moral right to take this radical action. Nevertheless, it is imperative that any action with such lasting effects should eventually receive the positive approval of the people or of their representatives in the legislature. (P. 303, emphasis supplied).
From the foregoing citations, under martial law occasioned by severe crisis generated by revolution, insurrection or economic depression or dislocation, the government exercises more powers and respects fewer rights in order "to end the crisis and restore normal times." The government can assume additional powers indispensable to the attainment of that end — the complete restoration of peace. In our particular case, eradication of the causes that incited rebellion and subversion as secession, is the sine qua non to the complete restoration of normalcy. Exercise of legislative power by the President as Commander in Chief, upon his proclamation of martial law, is justified because, as he professes, it is directed towards the institution of radical reforms essential to the elimination of the causes of rebellious, insurgent or subversive conspiracies and the consequent dismantling of the rebellious, insurgent or subversive apparatus.
Hence, the issuance of Presidential Decree Nos. 86 and 86-A as well as Proclamation No. 1102 is indispensable to the effectuation of the reforms within the shortest possible time to hasten the restoration of normalcy.
"Must the government be too strong for the liberties of the people; or must it be too weak to maintain its existence?" That was the dilemma that vexed President Lincoln during the American Civil War, when without express authority in the Constitution and the laws of the United States, he suspended one basic human freedom — the privilege of the writ of habeas corpus — in order to preserve with permanence the American Union, the Federal Constitution of the United States and all the civil liberties of the American people. This is the same dilemma that presently confronts the Chief Executive of the Republic of the Philippines, who, more than the Courts and Congress, must, by express constitutional mandate, secure the safety of our Republic and the rights as well as lives of the people against open rebellion, insidious subversion secession. The Chief Executive announced repeatedly that in choosing to proclaim martial law, the power expressly vested in him by the 1935 Constitution (Sec. 10[2], Art. VII, 1935 Constitution) to insure our national and individual survival in peace and freedom, he is in effect waging a peaceful, democratic revolution from the center against the violent revolution and subversion being mounted by the economic oligarchs of the extreme right, who resist reforms to maintain their economic hegemony, and the communist rebels a Maoist oriented secessionists of the extreme left who demand swift institution of reforms. In the exercise of his constitutional and statutory powers, to save the state and to protect the citizenry against actual and threatened assaults from insurgents, secessionists and subversives, doctrinaire concepts and principles, no matter how revered they may be by jurisprudence and time, should not be regarded as peremptory commands; otherwise the dead hand of the past will regulate and control the security and happiness of the living present. A contrary view would be to deny the self-evident proposition that constitutions and laws are mere instruments for the well-being, peace, security and prosperity of the country and its citizenry. The law as a means of social control is not static but dynamic. Paraphrasing Mr. Justice Frankfurter, the Constitution is neither a printed finality nor the imprisonment of the past, but the enfolding of the future. In the vein of Mr. Justice Holmes, the meaning of the words of the Constitution is not to be determined by merely opening a dictionary. Its terms must be construed in the context of the realities in the life of a nation it is intended to serve. Because experience may teach one generation to doubt the validity and efficacy of the concepts embodied in the existing Constitution and persuade another generation to abandon them entirely, heed should be paid to the wise counsel of some learned jurists that in the resolution of constitutional questions — like those posed before Us — the blending of idealism and practical wisdom or progressive legal realism should be applied (see Alexander M. Bickel, the Supreme Court and the Idea of Progress, 1970 ed., pp. 19-21). To Justice Frankfurter, law is "a vital agency for human betterment" and constitutional law "is applied politics using the word in its noble sense." (Frankfurter, Law and Politics, 1939 ed., pp. 3 & 6; emphasis supplied). Justice Brandeis gave utterance to the truth that "Our Constitution is not a straight jacket. It is a living organism. As such, it is capable of growth — or expansion and adaptation to new conditions. Growth implies changes, political, economic and social." (Brandeis Papers, Harvard Law School; emphasis supplied). Harvard Professor Thomas Reed Powell emphasizes "practical wisdom," for "the logic of constitutional law is the common sense of the Supreme Court." (Powell, the Validity of State Legislation, under the Webb-Kenyon Law, 2 Southern Law Quarterly, pp. 112, 138-139, cited in Bickel's Opus, supra; emphasis supplied).
The eternal paradox in this finite world of mortal and fallible men is that nothing is permanent except change. Living organisms as well as man-made institutions are not immutable. Civilized men organize themselves into a State only for the purpose of serving their supreme interest — their welfare. To achieve such end, they created an agency known as the government. From the savage era thru ancient times, the Middle Ages, the Dark Ages and the Renaissance to this era of sophisticated electronics and nuclear weaponry, states and governments have mutated in their search for the magic instrument for their well-being. It was trial and error then as it is still now. Political philosophies and constitutional concepts, forms and kinds of government, had been adopted, overturned, discarded, re-adopted or modified to suit the needs of a given society at a particular given epoch. This is true of constitutions and laws because they are not "the infallible instruments of a manifest destiny." No matter how we want the law to be stable, it cannot stand still. As Mr. Justice Holmes aptly observed, every "constitution is an experiment as all life is an experiment," (Abrahms vs. U.S., 250 US 616, 631) for "the life of the law is not logic, but experience." In the pontifical tones of Mr. Justice Benjamin Nathan Cardozo, "so long as society is inconstant, there can be no constancy in law," and "there will be change whether we will it or not." As Justice Jose P. Laurel was wont to say, "We cannot, Canute-like, command the waves of progress to halt."
Thus, political scientists and jurists no longer exalt with vehemence a "government that governs least." Adherents there are to the poetic dictum of Alexander Pope: "For forms of government let fools contest; whatever is best administered is best." (Poems of Pope, 1931 Cambridge ed., p. 750). In between, the shades vary from direct democracy, representative democracy, welfare states, socialist democracy, mitigated socialism, to outright communism which degenerated in some countries into totalitarianism or authoritarianism.
Hence, even the scholar, who advances academic opinions unrelated to factual situations in the seclusion of his ivory tower, must perforce submit to the inexorable law of change in his views, concepts, methods and techniques when brought into the actual arena of conflict as a public functionary — face to face with the practical problems of state, government and public administration. And so it is that some learned jurists, in the resolution of constitutional issues that immediately affect the lives, liberties and fortunes of the citizens and the nation, recommend the blending of idealism with practical wisdom which legal thinkers prefer to identify as progressive legal realism. The national leader, who wields the powers of government, must and has to innovate if he must govern effectively to serve the supreme interests of the people. This is especially true in times of great crises where the need for a leader with vision, imagination, capacity for decision and courageous action is greater, to preserve the unity of people, to promote their well-being, and to insure the safety and stability of the Republic. When the methods of rebellion and subversion have become covert, subtle and insidious, there should be a recognition of the corresponding authority on the part of the Commander-in-Chief of the Armed Forces to utilize all the available techniques to suppress the peril to the security of the government and the State.
Over a century and a half ago, Thomas Jefferson, one of the founding fathers of the American Constitution and former President of the United States, who personifies the progressive liberal, spoke the truth when he said that some men "ascribe men of the preceding age a wisdom more than human, and suppose what they did to be beyond amendment. ... But I know also, that laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed and manners and opinions change, with the change of circumstances, institutions must also advance, and keep pace with the times." (Vol. 12, Encyclopedia Britanica, 1969 ed., p. 989).
The wisdom of the decision of the Chief Executive can only be judged in the perspective of history. It cannot be adequately and fairly appraised within the present ambience, charged as it is with so much tension and emotion, if not partisan passion. The analytical, objective historians will write the final verdict in the same way that they pronounced judgment on President Abraham Lincoln who suspended the privilege of the writ of habeas corpus without any constitutional or statutory authority therefor and of President Franklin Delano Roosevelt who approved the proclamation of martial law in 1941 by the governor of Hawaii throughout the Hawaiian territory. President Lincoln not only emancipated the Negro slaves in America, but also saved the Federal Republic of the United States from disintegration by his suspension of the privilege of the writ of habeas corpus, which power the American Constitution and Congress did not then expressly vest in him. No one can deny that the successful defense and preservation of the territorial integrity of the United States was due in part, if not to a great extent, to the proclamation of martial law over the territory of Hawaii — main bastion of the outer periphery or the outpost of the American defense perimeter in the Pacific — which protected the United States mainland not only from actual invasion but also from aerial or naval bombardment by the enemy. Parenthetically, the impartial observer cannot accurately conclude that the American Supreme Court acted with courage in its decision in the cases of Ex parte Milligan and Duncan vs. Kahanamoku (filed on May 10, 1865 argued on March 5 to 13, 1866, decided on April 3, 1866, and opinion delivered on December 17, 1866) after the lifting of the proclamation suspending the privilege of the writ of habeas corpus, long after the Civil War and the Second World ended respectively on April 9 or 26, 18-65 (Vol. 1, Encyclopedia Britannica, 1969 ed., pp. 730, 742) and on September 2, 1945 (Vol. 23, Encyclopedia Britannica, 1969 ed., p. 799). Was the delay on the part of the American Supreme Court in deciding these cases against the position of the United States President — in suspending the privilege of the writ of habeas corpus in one case and approving the proclamation of martial law in the other — deliberate as an act of judicial statesmanship and recognition on their part that an adverse court ruling during the period of such a grave crisis might jeopardize the survival of the Federal Republic of the United States in its life-and-death struggle against an organized and well armed rebellion within its own borders and against a formidable enemy from without its territorial confines during the last global armageddon?
VIII
DOCTRINE OF SEPARATION OF POWERS PRECLUDES
MANDAMUS AGAINST SENATORS.
In G.R. No. L-36165, mandamus will not lie to compel respondents Gil Puyat and Jose Roy to convene the Senate of the Philippines even on the assumption that the 1935 Constitution still subsists; because pursuant to the doctrine of separation of powers under the 1935 Constitution, the processes of this Court cannot legally reach a coordinate branch of the government or its head. This is a problem that is addressed to the Senate itself for resolution; for it is purely an internal problem of the Senate. If a majority of the senators can convene, they can elect a new Senate President and a new Senate President Pro Tempore. But if they have no quorum, those present can order the arrest of the absent members (Sec. 10[2], Art. VI, 1935 Constitution). If this fails, then there is no remedy except an appeal to the people. The dictum ubi jus, ubi remedium, is not absolute and certainly does not justify the invocation of the power of this Court to compel action on the part of a co-equal body or its leadership. This was emphasized with sufficient clarity by this Court in the 1949 case of Avelino vs. Cuenco (83 Phil. 17, 22,24), with which the distinguished counsels for the petitioners in L-36164 and L-36165 are familiar. We stress that the doctrine of separation of powers and the political nature of the controversy such as this, preclude the interposition of the Judiciary to nullify an act of a coordinate body or to command performance by the head of such a co-ordinate body of his functions..
Mystifying is the posture taken by counsels for petitioners in referring to the political question doctrine — almost in mockery — as a magic formula which should be disregarded by this Court, forgetting that this magic formula constitutes an essential skein in the constitutional fabric of our government, which, together with other basic constitutional precepts, conserves the unity of our people, strengthens the structure of the government and assures the continued stability of the country against the forces of division, if not of anarchy.
Moreover, if they have a quorum, the senators can meet anywhere. Validity of the acts of the Senate does not depend on the place of session; for the Constitution does not designate the place of such a meeting. Section 9 of Article VI imposes upon Congress to convene in regular session every year on the 4th Monday of January, unless a different date is fixed by law, or on special session called by the President. As former Senator Arturo Tolentino, counsel for respondents Puyat and Roy in L-36165, stated, the duty to convene is addressed to all members of Congress, not merely to its presiding officers. The fact that the doors of Congress are padlocked, will not prevent the senators — especially the petitioners in L-36165 — if they are minded to do so, from meeting elsewhere — at the Sunken Gardens, at the Luneta Independence Grandstand, in any of the big hotels or theaters, in their own houses, or at the Araneta Coliseum, which is owned by the father-in-law of petitioner Gerardo Roxas in L-36165.
However, a session by the Senate alone would be purely an exercise in futility, for it cannot validly meet without the lower House (Sec. 10[5], Art. VI, 1935 Constitution). Hence, this petition by five former senators for mandamus in L-36165 is useless.
And as pointed out by former Senator Arturo Tolentino, counsel for respondents Puyat and Roy, mandamus will lie only if there is a law imposing on the respondents the duty to convene the body. The rule imposing such a duty invoked by petitioners in L-36165 is purely an internal rule of the Senate; it is not a law because it is not enacted by both Houses and approved by the President.
The Constitutional provision on the convening of Congress, is addressed to the individual members of the legislative body (Sec. 9, Art. VI of 1935 Constitution).
IX
TO NULLIFY PROCLAMATION NO. 1102 AND 1973
CONSTITUTION REQUIRES EIGHT OR TEN VOTES OF
SUPREME COURT.
The petitioners in L-36164 and L-36236 specifically pray for a declaration that the alleged ratification of the 1973 Constitution is null and void and that the said 1973 Constitution be declared unenforceable and inoperative.
As heretofore stated, Proclamation No. 1102 is an enactment of the President as Commander-in-Chief during martial law as directly delegated to him by Section 10(2) of Article VII of the 1935 Constitution.
A declaration that the 1973 Constitution is unenforceable and inoperative is practically deciding that the same is unconstitutional. The proposed Constitution is an act of the Constitutional Convention, which is co-equal and coordinate with as well as independent of either Congress or the Chief Executive. Hence, its final act, the 1973 Constitution, must have the same category at the very least as the act of Congress itself.
Consequently, the required vote to nullify Proclamation No. 1102 and the 1973 Constitution should be eight (8) under Section 10 of Article VIII of the 1935 Constitution in relation to Section 9 of the Judiciary Act or Republic Act No. 296, as amended, or should be ten (10) under Section 2(2) of Article X of the 1973 Constitution. Should the required vote of eight (8) or ten (10), as the case may be, for the declaration of invalidity or unconstitutionality be not achieved, the 1973 Constitution must be deemed to be valid, in force and operative.
X
ARTICLE OF FAITH
WE yield to no man as devotees of human rights and civil liberties. Like Thomas Jefferson, We swear "eternal hostility towards any form of tyranny over the mind of man" as well as towards bigotry and intolerance, which are anathema to a free spirit. But human rights and civil liberties under a democratic or republican state are never absolute and never immune to restrictions essential to the common weal. A civilized society cannot long endure without peace and order, the maintenance of which is the primary function of the government. Neither can civilized society survive without the natural right to defend itself against all dangers that may destroy its life, whether in the form of invasion from without or rebellion and subversion from within. This is the first law of nature and ranks second to none in the hierarchy of all values, whether human or governmental. Every citizen, who prides himself in being a member or a civilized society under an established government, impliedly submits to certain constraints on his freedom for the general welfare and the preservation of the State itself, even as he reserves to himself certain rights which constitute limitations on the powers of government. But when there is an inevitable clash between an exertion of governmental authority and the assertion of individual freedom, the exercise of which freedom imperils the State and the civilized society to which the individual belongs, there can be no alternative but to submit to the superior right of the government to defend and preserve the State. In the language of Mr. Justice Holmes — often invoked by herein petitioners — "when it comes to a decision involving its (state life, the ordinary rights of individuals must yield to what he (the President) deems the necessities of the moment. Public danger warrants the substitution of executive process for judicial process. (See Keely vs. Sanders, 99 U.S. 441, 446, 25 L ed. 327, 328). This was admitted with regard to killing men in the actual clash of arms. And we think it is obvious, although it was disputed, that the same is true of temporary detention to prevent apprehended harm." (Moyer vs. Peabody, 212 U.S. 77, 85, 53 L ed., 411, 417).
The rhetoric of freedom alone is not enough. It must be the rhetoric of freedom with order and security for all, that should be the shibboleth; for freedom cannot be enjoyed in an environment of disorder and anarchy.
The incumbent Chief Executive who was trying to gain the support for his reform program long before September 21, 1972, realized almost too late that he was being deceived by his partymates as well as by the opposition, who promised him cooperation, which promises were either offered as a bargaining leverage to secure concessions from him or to delay the institution of the needed reforms. The people have been victimized by such bargaining and dilly-dallying. To vert a terrifying blood bath and the breakdown of the Republic, the incumbent President proclaimed martial law to save the Republic from being overrun by communists, secessionists and rebels by effecting the desired reforms in order to eradicate the evils that plague our society, which evils have been employed by the communists, the rebels and secessionists to exhort the citizenry to rise against the government. By eliminating the evils, the enemies of the Republic will be decimated. How many of the petitioners and their counsels have been utilizing the rebels, secessionists and communists for their own personal or political purposes and how many of them are being used in turn by the aforesaid enemies of the State for their own purposes?
If the petitioners are sincere in their expression of concern for the greater mass of the populace, more than for their own selves, they should be willing to give the incumbent Chief Executive a chance to implement the desired reforms. The incumbent President assured the nation that he will govern within the framework of the Constitution and if at any time, before normalcy is restored, the people thru their Citizens' Assemblies, cease to believe in his leadership, he will step down voluntarily from the Presidency. But if, as apprehended by the petitioners, he abuses and brutalizes the people, then to the battlements we must go to man the ramparts against tyranny. This, it is believed, he knows only too well; because he is aware that he who rides the tiger will eventually end inside the tiger's stomach. He who toys with revolution will be swallowed by that same revolution. History is replete with examples of libertarians who turned tyrants and were burned at stake or beheaded or hanged or guillotined by the very people whom they at first championed and later deceived. The most bloody of such mass executions by the wrath of a wronged people, was the decapitation by guillotine of about 15,000 Frenchmen including the leaders of the French revolution, like Robespierre, Danton, Desmoulins and Marat. He is fully cognizant of the lessons of history.
HENCE, THE DISMISSAL OF THESE FIVE CASES IS JUSTIFIED.
Separate Opinions
ESGUERRA, J., concurring:
These petitions seek to stop and prohibit the respondents Executive Officers from implementing the Constitution signed on November 30, 1972; in L-36165, to compel respondents Gil Puyat and Jose J. Roy, President and President Pro-Tempore, respectively, of the Senate under the 1935 Constitution, to convene the Senate in regular session which should have started on January 22, 1973; to nullify Proclamation No. 1102 of the President, issued on January 17, 1973, which declared the ratification of the Constitution on November 30, 1972, by the Filipino people, through the barangays or Citizens Assemblies established under Presidential Decree No. 86 issued on December 31, 1972, which were empowered under Presidential Decree No. 86-A, issued on January 5, 1973, to act in connection with the ratification of said Constitution.
Grounds for the petitions are as follows:
1. That the Constitutional Convention was not a free forum for the making of a Constitution after the declaration of Martial Law on September 21, 1972.
2. The Convention was not empowered to incorporate certain provisions in the 1972 Constitution because they are highly unwise and objectionable and the people were not sufficiently informed about them.
3. The President had no authority to create and empower the Citizens' Assemblies to ratify the new Constitution at the referendum conducted in connection therewith, as said assemblies were merely for consultative purposes, and
4. The provisions of Article XV of the 1935 Constitution prescribing the manner of amending the same were not duly observed.
The petitions were not given due course immediately but were referred to the Solicitor General as counsel for the respondents for comment, with three members of the Court, including the undersigned, voting to dismiss them outright. The comments were considered motions to dismiss which were set for hearing and extensively argued. Thereafter both parties submitted their notes and memoranda on their oral arguments.
I.
The issues raised for determination, on which the resolution of the Motion to Dismiss hinges, are as follows:
1. Is the question presented political and, hence, beyond the competence of this Court to decide, or is it justiciable and fit for judicial determination?
2. Was the new Constitution of November 30, 1972, ratified in accordance with the amending process prescribed by Article XV of the 1935 Constitution?
3. Has the new Constitution been accepted and acquiesced in by the Filipino people?
4. Is the new Constitution actually in force and effect?
5. If the answers to questions Nos. 3 and 4 be in the affirmative, are petitioners entitled to the reliefs prayed for?
II.
The pivotal question in these cases is whether the issue raised is highly political and, therefore, not justiciable. I maintain that this Court should abstain from assuming jurisdiction, but, instead, as an act of judicial statesmanship, should dismiss the petitions. In resolving whether or not the question presented is political, joint discussion of issues Nos. 1, 3 and 4 is necessary so as to arrive at a logical conclusion. For after the acceptance of a new Constitution and acquiescence therein by the people by putting it into practical operation, any question regarding its validity should be foreclosed and all debates on whether it was duly or lawfully ushered into existence as the organic law of the state become political and not judicial in character.
The undisputed facts that led to the issuance of Proclamation No. 1102 and Presidential Decrees Nos. 86 and 86-A are fully set forth in the majority and dissenting opinions in the Plebiscite cases decided on January 22, 1973, and need not be repeated here.
Petitioners seek to set at naught Proclamation No. 1102 and Presidential Decrees Nos. 86 and 86-A, claiming that the ratification of the new Constitution pursuant to the said decrees is invalid and of no effect. Presidential Decree No. 86 organized the barangays or Citizens Assemblies composed of all citizens at least fifteen years of age, and through these assemblies the proposed 1972 Constitution was submitted to the people for ratification. Proclamation No. 1102 of the President announced or declared the result of the referendum or plebiscite conducted through the Citizens Assemblies, and that 14,976,561 members thereof voted for the ratification of the new Constitution and 743,869 voted against it. Petitioners assail these two acts of the President as unauthorized and devoid of legal effect.
But looking through the veneer of judicial conformity with which the petitions have been adroitly contrived, what is sought to be invalidated is the new Constitution itself — the very framework of the present Government since January 17, 1973. The reason is obvious. The Presidential decrees set up the means for the ratification and acceptance of the new Constitution and Proclamation No. 1102 simply announced the result of the referendum or plebiscite by the people through the Citizens Assemblies. The Government under the new Constitution has been running on its tracks normally and apparently without obstruction in the form of organized resistance capable of jeopardizing its existence and disrupting its operation. Ultimately the issue is whether the new Constitution may be set aside by this Court. But has it the power and authority to assume such a stupendous task when the result of such invalidation would be to subject this nation to divisive controversies that may totally destroy the social order which the Government under the new Constitution has been admirably protecting and promoting under Martial Law? That the new Constitution has taken deep root and the people are happy and contended with it is a living reality which the most articulate critics of the new order cannot deny. 95 out of 108 members of the House of Representatives have opted to serve in the interim National Assembly provided for under the new Constitution. 15 out of 24 Senators have done likewise. The members of the Congress did not meet anymore last January 22, 1973, not because they were really prevented from so doing but because of no serious effort on their parts to assert their offices under the 1935 Constitution. In brief, the Legislative Department under the 1935 Constitution is a thing of the past. The Executive Department has been fully reorganized; the appointments of key executive officers including those of the Armed Forces were extended and they took an oath to support and defend the new Constitution. The courts, except the Supreme Court by reason of these cases, have administered justice under the new constitution. All government offices have dealt with the public and performed their functions according to the new Constitution and laws promulgated thereunder.
If the real purpose of the petitions is to set aside the new Constitution, how can this Court justify its assumption of jurisdiction when no power has ... conferred upon it the jurisdiction to declare the Constitution or any part thereof null and void? It is the height of absurdity and impudence for a court to wage open war against the organic act to which it owes its existence. The situation in which this Court finds itself does not permit it to pass upon the question whether or not the new Constitution has entered into force and has superseded the 1935 Constitution. If it declares that the present Constitution has not been validly ratified, it has to uphold the 1935 Constitution as still the prevailing organic law. The result would be too anomalous to describe, for then this Court would have to declare that it is governed by one Constitution or the 1935 Constitution, and the legislative and executive branches by another or the 1972 Constitution.
If it declares that the 1972 Constitution is now operative, how can it exercise judicial discretion in these cases when it would have no other choice but to uphold the new Constitution as against any other one? In the circumstances it would be bereft of judicial attributes as the matter would then be not meet for judicial determination, but one addressed to the sovereign power of the people who have already spoken and delivered their mandate by accepting the fundamental law on which the government of this Republic is now functioning. To deny that the new Constitution has been accepted and actually is in operation would be flying in the face of reason and pounding one's bare head against a veritable stone wall or a heavily reinforced concrete, or simply "kicking the deadly pricks" with one's bare foot in an effort to eliminate the lethal points.
When a Constitution has been in operation for sometime, even without popular ratification at that, submission of the people thereto by the organization of the government provided therein and observance of its prescriptions by public officers chosen thereunder, is indicative of approval. Courts should be slow in nullifying a Constitution claimed to have been adopted not in accordance with constitutional or statutory directives [Miller vs. Johnson, 92 Ky. 589; 189 S.W. 522; Taylor vs Commonwealth, 101; Va. 829; 44 S.E. 754; Smith vs. Good, 34 F 204, 207; Wiston vs. Ryan, 70 Neb. 211; 97 N.W. 347].
In Miller vs. Johnson, supra, the Court said:
... But it is a case where a new constitution has been formed and promulgated according to the forms of law. Great interests have already arisen under it; important rights exist by virtue of it; persons have been convicted of the highest crimes known to the law, according to its provisions; the political power of the government has in many ways recognized it; and, under such circumstances, it is our duty to treat and regard it as a valid constitution, and now the organic law of our state. We need not consider the validity of the amendments made after the convention reassembled. If the making of them was in excess of its power, yet as the entire instrument has been recognized as valid in the manner suggested, it would be equally an abuse of power by the judiciary, and violative of the rights of the people, — who can and properly should remedy the matter, if not to their liking, — if it were to declare the instrument or a portion invalid, and bring confusion and anarchy upon the state. (Emphasis supplied)
In Smith vs. Good, supra, the Court said:
It is said that a state court is forbidden from entering upon such an inquiry when applied to a new constitution, and not an amendment, because the judicial power presupposes an established government, and if the authority of that government is annulled and overthrown, the power of its courts is annulled with it; therefore, if a state court should enter upon such an inquiry, come to the conclusion that the government under which it acted had been displaced by an opposing government, it would cease to be a court, and it would be incapable of pronouncing a judicial decision upon the question before it; but, if it decides at all, it must necessarily affirm the existence of the government under which it exercises its judicial powers. (Emphasis supplied)
These rules are all traceable to Luther vs. Borden, 48 U.S (7 How.), 12 L. Ed. 581, 598 (1849) where it was held:
Judicial power presupposes an established government capable of enacting laws and enforcing their execution, and appointing judges to expound and administer them. The acceptance of the judicial office is a recognition of the authority of government from which it is derived. And if the authority of the government is annulled and overthrown, the power of its courts and other officers is annulled with it. And if a State court should enter upon the inquiry proposed in this case, and should come to conclusion that the government under which it acted had been put aside and displaced by an opposing government it would cease to be a court, and be incapable of pronouncing a judicial decision upon the question it undertook to try. If it decides at all as a court, it necessarily affirms the existence and authority of the government under which it is exercising judicial power.
The foreign relations of the Republic of the Philippines have been normally conducted on the basis of the new Constitution and no state with which we maintain diplomatic relations has withdrawn its recognition of our government. (For particulars about executive acts done under the new Constitution, see pages 22-25 of the Comments of the Solicitor General, dated February 3, 1973.)
Certainly the invalidation of Proclamation No. 1102 and Presidential Decrees Nos. 86 and 86-A by this Court would smack of plain political meddling which is described by the United States Supreme Court as "entering a political thicket" in Colegrove vs. Green, 328 U.S. p. 549. At this juncture it would be the part of wisdom for this Court to adopt the proper attitude towards political upheavals and realize that the question before Us is political and not fit for judicial determination. For a political question is one entrusted to the people for judgment in their sovereign capacity (Tañada vs. Cuenco, G.R. No. L-10520, Feb. 28,1967; 100 Phil. 1101), or to a co-equal and coordinate branch of the Government (Vera vs. Arellano, 77 Phil. 192; Mabanag vs. Lopez Vito, 78 Phil. 1; Alejandrino vs. Quezon, 46 Phil. 35; Cabili vs. Francisco, G.R. No. 4638, May 8, 1931). A case involves a political question when there would be "the impossibility of undertaking independent resolutions without expressing a lack of respect due to coordinate branches of government", or when there is "the potentiality of embarrassment from multifarious pronouncements by various departments on one question."
To preserve the prestige and eminence that this Court has long enjoyed as the "ultimate organ of the "Supreme Law of the Land" in that vast range of legal problems often strongly entangled in popular feeling on which this Court must pronounce", let us harken to the following admonition of Justice Frankfurter in his dissent in Baker vs. Carr, 369 U.S. 186; 82 S. Ct. 691; 7 L. Ed. 2d. 663:
The Court's authority — possessed neither of the purse nor the sword — ultimately rests on sustained public confidence in its moral sanction. Such feeling must be nourished by the Court's complete detachment, in fact and appearance, from political entanglements and abstention from injecting itself into the clash of political forces in political settlement. ..." (Emphasis supplied)
The people have accepted and submitted to a Constitution to replace the 1935 Constitution. The new organic law is now in the plenitude of its efficacy and vigor. We are now living under its aegis and protection and only the cynics will deny this. This Court should not in the least attempt to act as a super-legislature or a super-board of canvassers and sow confusion and discord among our people by pontificating there was no valid ratification of the new Constitution. The sober realization of its proper role and delicate function and its consciousness of the limitations on its competence, especially situations like this, are more in keeping with the preservation of our democratic tradition than the blatant declamations of those who wish the Court to engage in their brand of activism and would not mind plunging it into the whirlpool of passion and emotion in an effort to capture the intoxicating applause of the multitude.
For all the foregoing, I vote to dismiss all petitions.
Footnotes
1 Charito Planas v. Commission on Elections, et al., L-35925; Pablo C. Sanidad v. Commission on Elections, L-35929; Gerardo Roxas, etc., et al. v. Commission on Elections, et al., L-35940; Eddie B. Monteclaro v. The Commission on Elections, et al., Sedfrey A. Ordoñez, et al. v. The National Treasurer of Philippines, et al., L-35942; Vidal Tan, et al. v. Commission on Elections, et al., L-35948; Jose W. Diokno, et al. v. The Commission on Elections, L-35953; Jacinto Jimenez v. Commission on Elections, et al., L-35961; Raul M. Gonzales v. The Honorable Commission on Elections, et al., L-35965; Ernesto Hidalgo v. Commission Elections, et al., L-35979.
2 See Tañada, et al. v. Cuenco, L-10520, Feb. 28, 1957; Baker v. Carr, 369 U.S. 186 (1962).
3 See 16 Am. Jur. 2d. p. 468, Note 14, and cases cited therein.
4 Cooke v. Iverson, 108 Minn. 388, 122 NW 251.
5 L-38196, November 9, 1967, 21 SCRA 774.
6 83 Phil. 1957.
7 McConaughy v. Secretary of State, 119 N.W. 408, 413; 32A Words and Phrases p. 516. See also the plebiscite cases, mentioned in footnote 1, ante.
8 Cooley, Constitutional Limitation, 8th Ed., Vol. I, p. 82.
9 39 Phil. 258, 268.
10 69 Phil. 199, 204.
11 70 Phil. 28, 31.
Separate Opinions
ANTONIO, J., concurring:
In conformity with my reservation, I shall discuss the grounds for my concurrence.
I
It is my view that to preserve the independence of the State, the maintenance of the existing constitutional order and the defense of the political and social liberties of the people, in times of a grave emergency, when the legislative branch of the government is unable to function or its functioning would itself threaten the public safety, the Chief Executive may promulgate measures legislative in character, for the successful prosecution of such objectives. For the "President's power as Commander- in-chief has been transformed from a simple power of military command to a vast reservoir of indeterminate powers in time of emergency. ... In other words, the principal canons of constitutional interpretation are ... set aside so far as concerns both the scope of the national power and the capacity of the President to gather unto himself all constitutionally available powers in order the more effectively to focus them upon the task of the hour." (Corwin, The President: Office & Powers, pp. 317, 318, [1948]).
1. The proclamation of martial rule, ushered the commencement of a crisis government in this country. In terms of power, crisis government in a constitutional democracy entails the concentration of governmental power. "The more complete the separation of powers in a constitutional system, the more difficult, and yet the more necessary" according to Rossiter, "will be their fusion in time of crisis... The power of the state in crisis must not only be concentrated and expanded, it must be freed from the normal system of constitutional and legal limitations. One of the basic features of emergency powers is the release of the government from the paralysis of constitutional restraints" (Rossiter, Constitutional Dictatorship, p. 290).
It is clearly recognized that in moments of peril the effective action of the government is channeled through the person of the Chief Executive. "Energy in the executive," according to Hamilton, "is essential to the protection of the community against foreign attacks ... to the protection of property against those irregular and high-handed combinations which sometimes interrupt the ordinary course of justice; to the security of liberty against the enterprises and assaults of ambition, of faction, and of anarchy." (The Federalist, Number 70). "The entire strength of the nation", said Justice Brewer in the Debs case (158 U.S. 564; 39 L. ed. 1092), "may be used to enforce in any part of the land the full and free exercise of all national powers and the security of all rights entrusted by the constitution to its care." The marshalling and employment of the "strength of the nation" are matters for the discretion of the Chief Executive. The President's powers in time of emergency defy precise definition since their extent and limitations are largely dependent upon conditions and circumstances.
2. The power of the President to act decisively in a crisis has been grounded on the broad conferment upon the Presidency of the Executive power, with the added specific grant of power under the "Commander-in-Chief" clause of the constitution. The contours of such powers have been shaped more by a long line of historical precedents of Presidential action in times of crisis, rather than judicial interpretation. Lincoln wedded his powers under the "commander-in-chief" clause with his duty "to take care that the laws be faithfully executed," to justify the series of extraordinary measures which he took — the calling of volunteers for military service, the augmentation of the regular army and navy, the payment of two million dollars from unappropriated funds in the Treasury to persons unauthorized to receive it, the closing of the Post Office to "treasonable correspondence", the blockade of southern ports, the suspension of the writ of habeas corpus, the arrest and detention of persons "who were represented to him" as being engaged in or contemplating "treasonable practices" — all this for the most part without the least statutory authorization. Those actions were justified by the imperatives of his logic, that the President may, in an emergency thought by him to require it, partially suspend the constitution. Thus his famous question: "Are all laws but one to be unexecuted, and the Government itself go to pieces lest that one be violated?" The actions of Lincoln "assert for the President", according to Corwin, "an initiative of indefinite scope and legislative in effect in meeting the domestic aspects of a war emergency." (Corwin, The President: Office & Powers, p. 280 [1948]). The facts of the civil war have shown conclusively that in meeting the domestic problems as a consequence of a great war, an indefinite power must be attributed to the President to take emergency measures. The concept of "emergency" under which the Chief Executive exercised extraordinary powers underwent correlative enlargement during the first and second World Wars. From its narrow concept as an "emergency" in time of war during the Civil War and World War I, the concept has been expanded in World War II to include the "emergency" preceding the war and even after it. "The Second World War" observed Corwin and Koenig, was the First World War writ large, and the quasi-legislative powers of Franklin Roosevelt as "Commander-in-Chief in wartime"... burgeoned correspondingly. The precedents were there to be sure, most of them from the First World War, but they proliferated amazingly. What is more, Roosevelt took his first step toward war some fifteen months before our entrance into shooting war. This step occurred in September, 1940, when he handed over fifty so-called overage destroyers to Great Britain. The truth is, they were not overage, but had been recently reconditioned and recommissioned. ... Actually, what President Roosevelt did was to take over for the nonce Congress's power to dispose of property of the United States (Article IV, Section 3) and to repeal at least two statutes." (Corwin & Koenig, The Presidency Today, New York University Press, 1956; sf Corwin, The President: Office and Powers, 1948.)
The creation of public offices is a power confided by the constitution to Congress. And yet President Wilson, during World War I on the basis of his powers under the "Commander-in-Chief" clause created "offices" which were copied in lavish scale by President Roosevelt in World War II. In April 1942, thirty-five "executive agencies" were purely of Presidential creation. On June 7, 1941 on the basis of his powers as "Commander-in-Chief", he issued an executive order seizing the North American Aviation plant of Inglewood, California, where production stopped as a consequence of a strike. This was justified by the government as the exercise of presidential power growing out of the "duty constitutionally and inherently resting upon the President to exert his civil and military as well as his moral authority to keep the defense efforts of the United States a going concern" as well as "to obtain supplies for which Congress has appropriated money, and which it has directed the President to obtain." On a similar justification, other plants and industries were taken over by the government. It is true that in Youngstown Sheet & Tube vs. Sawyer (343 U.S. 579; 72 S. Ct. 863; 96 L. Ed. 1153, [1952]), the Supreme Court of the United States did not sustain the claims that the President could, as the Nation's Chief Executive and Commander-in-Chief of the armed forces, validly order the seizure of most of the country's steel mills. The Court however did not face the naked question of the President's power to seize steel plants in the absence of any congressional enactment or expressions of policy. The majority of the Court found that this legislative occupation of the field made untenable the President's claim of authority to seize the plants as an exercise of inherent executive power or as Commander-in-Chief. Justice Clark, in his concurrence to the main opinion of the Court, explicitly asserted that the President does possess, in the absence of restrictive legislation, a residual or resultant power above or in consequence of his granted powers, to deal with emergencies that he regards as threatening the national security. The same view was shared with vague qualification by Justices Frankfurter and Jackson, two of the concurring Justices. The three dissenting Justices, speaking through Chief Justice Vinson, apparently went further by quoting with approval a passage extracted from the brief of the government in the case of United States vs. Midwest Oil Co., (236 U.S. 459 59 L. Ed. 673, 35 S. Ct. 309) where the court sustained the power of the President to order withdrawals from the public domain not only without Congressional sanction but even contrary to Congressional statutes.
It is evident therefore that the Steel Seizure Case, cannot be invoked as an authority to support the view that the President in times of a grave crisis does not possess a residual power above or in consequence of his granted powers, to deal with emergencies that he regards as threatening the national security. The lesson of the Steel Seizure case, according to Corwin and Koenig, "Unquestionably ... tends to supplement presidential emergency power to adopt temporary remedial legislation when Congress has been, in the judgment of the President, unduly remiss in taking cognizance of and acting on a given situation." (Corwin and Koenig, The Presidency Today, New York University Press, 1956).
The accumulation of precedents has thus built up the presidential power under emergency conditions to "dimensions of executive prerogative as described by John Locke, of a power to wit, to fill needed gaps in the law, or even to supersede it so far as may be requisite to realize the fundamental law of nature and government, namely, that as much as may be all the members of society are to be preserved." (Corwin and Koenig, The Presidency Today).
In the light of the accumulated precedents, how could it be reasonably argued therefore, that the President had no power to issue Presidential Decree Nos. 86 and 86-A as well as Proclamation No. 1102, since these measures were considered indispensable to effect the desired reforms at the shortest time possible and hasten the restoration of normalcy? It is unavailing for petitioners to contend that we are not faced by an actual "shooting war" for today's concept of the emergency which justified the exercise of those powers has of necessity been expanded to meet the exigencies of new dangers and crisis that directly threaten the nation's continued and constitutional existence. For as Corwin observed: "... today the concept of 'war' as a special type of emergency warranting the realization of constitutional limitations tends to spread, as it were, in both directions, so that there is not only "the war before the war," but the 'war after the war.' Indeed, in the economic crisis from which the New Deal may be said to have issued, the nation was confronted in the opinion of the late President with an 'emergency greater than war'; and in sustaining certain of the New Deal measures the Court invoked the justification of 'emergency.' In the final result constitutional practices of wartime have moulded the Constitution to greater or less extent for peacetime as well, seem likely to do so still more pronouncedly under fresh conditions of crisis." (Corwin, Ibid. p. 318.)
The same view was expressed by Rossiter thus:
The second crisis is rebellion, when the authority of a constitutional government is resisted openly by large numbers of citizens who are engaged in violent insurrection against enforcement of its laws or are bent on capturing it illegally or destroying it altogether. The third crisis, one recognized particularly in modern times as sanctioning emergency action by constitutional governments, is economic depression. The economic troubles which plagued all the countries of the world in the early thirties involved governmental methods of an unquestionably dictatorial character in many democracies. It was thereby acknowledged that an economic existence as a war or a rebellion. And these are not the only cases which have justified extraordinary governmental action in nations like the United States. Fire, flood, drought, earthquake, riots, great strikes have all been dealt with by unusual and of dictatorial methods. Wars are not won by debating societies, rebellions are not suppressed by judicial injunctions, reemployment of twelve million jobless citizens will not be effected through a scrupulous regard for the tenets of free enterprise, hardships caused by the eruptions of nature cannot be mitigated letting nature take its course. The Civil War, the depression of 1933 and the recent global conflict were not and could not have been successfully resolved by governments similar to those of James Buchanan, William Howard Taft, or Calvin Coolidge. (Rossiter, Constitutional Dictatorship — Crisis of Government in the Modern Democracies, p. 6 [1948).
II
We are next confronted with the insistence of Petitioners that the referendum in question not having been done inaccordance with the provisions of existing election laws, which only qualified voters who are allowed to participate, under the supervision of the Commission on Elections, the new Constitution, should therefore be a nullity. Such an argument is predicated upon an assumption, that Article XV of the 1935 Constitution provides the method for the revision of the constitution, and automatically apply in the final approval of such proposed new Constitution the provisions of the election law and those of Article V and X of the old Constitution. We search in vain for any provision in the old charter specifically providing for such procedure in the case of a total revision or a rewriting of the whole constitution.
1. There is clearly a distinction between revision and amendment of an existing constitution. Revision may involve a rewriting of the whole constitution. The act of amending a constitution, on the other hand, envisages a change of only specific provisions. The intention of an act to amend is not the change of the entire constitution but only the improvement of specific parts of the existing constitution of the addition of provisions deemed essential as a consequence of new constitutions or the elimination of parts already considered obsolete or unresponsive to the needs of the times.1The 1973 Constitution is not a mere amendment to the 1935 Constitution. It is a completely new fundamental charter embodying new political, social and economic concepts.
According to an eminent authority on Political Law, "The Constitution of the Philippines and that of the United States expressly provide merely for methods of amendment. They are silent on the subject of revision. But this is not a fatal omission. There is nothing that can legally prevent a convention from actually revising the Constitution of the Philippines or of the United States even were such conventions called merely for the purpose of proposing and submitting amendments to the people. For in the final analysis, it is the approval of the people that gives validity to any proposal of amendment or revision." (Sinco, Philippine Political Law, p. 49).
Since the 1935 Constitution does not specifically provide for the method or procedure for the revision or for the approval of a new constitution, should it now be held, that the people have placed such restrictions on themselves that they are not disabled from exercising their right as the ultimate source of political power from changing the old constitution which, in their view, was not responsive to their needs and in adopting a new charter of government to enable them to rid themselves from the shackles of traditional norms and to pursue with new dynamism the realization of their true longings and aspirations, except in the manner and form provided by Congress for previous plebiscites? Was not the expansion of the base of political participation, by the inclusion of the youth in the process of ratification who after all constitute the preponderant majority more in accord with the spirit and philosophy of the constitution that political power is inherent in the people collectively? As clearly expounded by Justice Makasiar, in his opinion, in all the cases cited where the Courts held that the submission of the proposed amendment was illegal due to the absence of substantial compliance with the procedure prescribed by the constitution, the procedure prescribed by the state Constitution, is so detailed, that specified the manner in which such submission shall be made, the persons qualified to vote for the same, the date of election and other definite standards, from which the court could safely ascertain whether or not the submission was in accordance with the Constitution. Thus the case of In re McConaughy (119 N.E. 408) relied upon in one of the dissenting opinions involved in the application of the provisions of the state Constitution of Minnesota which clearly prescribed in detail the procedure under which the Constitution may be amended or revised.2This is not true with our Constitution. In the case of revision there are no "standards meet for judicial judgment."3
The framers of our Constitution were free to provide in the Constitution the method or procedure for the revision or rewriting of the entire constitution, and if such was their intention, they could and should have so provided. Precedents were not wanting. The constitutions of the various states of the American Union did provide for procedures for their amendment and methods for their revision.4
Certainly We cannot, under the guise of interpretation, modify, revise, amend, remodel or rewrite the 1935 Charter. To declare what the law is, or has been, is a judicial power, but to declare what the law shall be is not within Our judicial competence and authority.
Upon the other hand, since our fundamental charter has not provided the method or procedure for the revision or complete change of the Constitution, it is evident that the people have reserved such power in themselves. They decided to exercise it not through their legislature, but through a Convention expressly chosen for that purpose. The Convention as an independent and sovereign body has drafted not an amendment but a completely new Constitution, which decided to submit to the people for approval, not through an act of Congress, but by means of decrees to be promulgated by the President. In view of the inability of Congress to act, it was within the constitutional powers of the President, either as agent of the Constitutional Convention, or under his authority under martial law, to promulgate the necessary measures for the ratification of the proposed new Constitution. The adoption the new Charter was considered as a necessary basis for all the reforms set in motion under the new society, to root out the causes of unrest. The imperatives of the emergency underscored the urgency of its adoption. The people in accepting such procedure and in voting overwhelmingly for the approval of the new Constitution have, in effect, ratified the method and procedure taken. "When the people adopt completely revised or new constitution," said the Court in Wheeler v. Board of Trustees (37 SE 2nd 322, 326-330), "the framing or submission of the instrument is not what gives it binding force and effect. The fiat of the people, and only the fiat of the people, can breathe life into a constitution."
This has to be so because, in our political system, all political power is inherent in the people and free governments are founded on their authority and instituted for their benefit. Thus Section 1 of Article II of the 1935 Constitution declares that: "Sovereignty resides in the people and all government authority emanate from them." Evidently the term people refers to the entire citizenry and not merely to the electorate, for the latter is only a fraction of the people and is only an organ of government for the election of government officials.
III
The more compelling question, however is: Has this Court the authority to nullify an entire Constitution that is already effective as it has been accepted and acquiesced in by the people as shown by their compliance with the decree promulgated thereunder, their cooperation in its implementation, and is now maintained by the Government that is in undisputed authority and dominance?
Of course it is argued that acquiescence by the people can be deduced from their acts of conformity, because under a regime of martial law the people are bound to obey and act in conformity with the orders of the President, and has absolutely no other choice. The flaw of this argument lies in its application of a mere theoretical assumption based on the experiences of other nations on an entirely different factual setting. Such an assumption flounders on the rock of reality. It is true that as a general rule martial law is the use of military forces to perform the functions of civil government. Some courts have viewed it as a military regime which can be imposed in emergency situations. In other words, martial rule exists when the military rises superior to the civil power in the exercise of some or all the functions of government. Such is not the case in this country. The government functions thru its civilian officials. The supremacy of the civil over the military authority is manifest. Except for the imposition of curfew hours and other restrictions required for the security of the State, the people are free to pursue their ordinary concerns.
In short, the existing regime in this Country, does not contain the oppressive features, generally associated with a regime of Martial law in other countries. "Upon the other hand the masses of our people have accepted it, because of its manifold blessings. The once downtrodden rice tenant has at long last been emancipated — a consummation devoutly wished by every Philippine President since the 1930's. The laborer now holds his head high because his rights are amply protected and respected." * A new sense of discipline has swiftly spread beyond the corridors of government into the social order. Responding to the challenges of the New Society, the people have turned in half a million loose firearms, paid their taxes on undeclared goods and income in unprecedented numbers and amount, lent their labors in massive cooperation — in land reform, in the repair of dikes, irrigation ditches, roads and bridges, in reforestation, in the physical transformation of the environment to make ours a cleaner and greener land. "The entire country is turning into one vast garden growing food for the body, for thought and for the soul." * More important the common man has at long last been freed from the incubus of fear.
"Martial law has paved the way for a re-ordering of the basic social structure of the Philippines" reported Frank Valeo to the United States Senate. "President Marcos has been prompt and sure-footed in using the power of presidential decree under martial law for this purpose. He has zeroed in on areas which have been widely recognized as prime sources of the nation's difficulties — land tenancy, official corruption, tax evasion and abuse of oligarchic economic power. Clearly he knows his targets ... there is marked public support for his leadership..." (Bulletin Today, March 3 and 4, 1973)..
In a similar vein, C.L. Sulzberger, a foreign affairs columnist wrote, in the April 11 issue of The New York Times:
During his first Presidential term (1965-1969), Mr. Marcos was discouraged by the failure of legislators to approve urgently needed reforms. He found his second term further frustrated by spread riots, a Maoist uprising in Luzon and a much more serious Moslem insurrection in the southern islands from Mindanao across the Sulu archipelago to the frontier regions of Malaysia and Indonesia. Manila claims this war is Maoist-coordinated.
Mr. Marcos has now in effect taken all the reins of power and makes no promise as to when he will relinquish them. But, while fettering a free press, terminating Congress and locking up some opponents (many of whom were later amnestied), he has hauled the Philippines out of stagnation.
Sharecropping is being ended as more than three million acres of arable land are redistributed with state funds. New roads have been started. The educational system is undergoing revision, a corruption is diminished. In non-communist Asia it is virtually impossible to wholly end it and this disagreeable phenomenon still reaches very high.
Mr. Marcos, an imaginative, gifted man, hopes to reshape society by creating an agrarian middle-class to replace the archaic sharecropper-absentee landlord relationship. He is even pushing for a birth control program with the tacit acceptance of the Catholic Church. He has started labor reforms and increased wages. (Daily Express, April 15, 1973)
As explained in this writer's opinion of April 24, 1973 on the "Constancia" and "Manifestation" of counsel for petitioners:
The new Constitution is considered effective "if the norms created in conformity with it are by and large applied and obeyed. As soon as the old Constitution loses its effectiveness and the new Constitution has become effective, the acts that appear with the subjective meaning of creating or applying legal norms are no longer interpreted by presupposing the old basic norm, but by presupposing the new one. The statutes issued under the old Constitution and not taken over are no longer regarded as valid, and the organs authorized by the old Constitution no longer competent." (Kelsen, Pure Theory of Law, [1967].)
The essentially political nature of the question is at once made manifest by understanding that in the final analysis, what is assailed is not merely the validity of Proclamation No. 1102 of the President, which is merely declaratory of the fact of approval or ratification, but the legitimacy of the government. It is addressed more to the framework and political character of this Government which now functions under the new Charter. It seeks to nullify a Constitution that is already effective.
In such a situation, We do not see how the question posed by petitioners could be judicially decided. "Judicial power presupposes an established government capable of enacting laws and enforcing their execution, and of appointing judges to expound and administer them. If it decides at all as a court, it necessarily affirms the existence and authority of the government under which it is exercising judicial power." (Luther v. Borden, 48 U.S. [7 How.] 1, 12 L. Ed. 598.)
In other words, where a complete change in the fundamental law has been effected through political action, the Court whose existence is affected by such change is, in the words of Mr. Melville Fuller Weston, "precluded from passing upon the fact of change by a logical difficulty which is not to be surmounted."5Such change in the organic law relates to the existence of a prior point in the Court's "chain of title" to its authority and "does not relate merely to a question of the horizontal distribution of powers."6It involves in essence a matter which "the sovereign has entrusted to the so-called political departments of government or has reserved to be settled by its own extra governmental action."7
The non-judicial character of such a question has been recognized in American law. "From its earliest opinions this Court has consistently recognized," said Justice Frankfurter, in his illuminating dissent in Baker v. Carr, 369 U.S. 186, 7 L. Ed. 2d. 633, 722, 726, 727), "a class of controversies which do not lend themselves to judicial standards and judicial remedies. To classify the various instances as "political questions" is rather a form of stating this conclusion than revealing of analysis ... The crux of the matter is that courts are not fit instruments of decision where what is essentially at stake is the composition of those large contests of policy traditionally fought out in non-judicial forums, by which governments and the actions of governments are made and unmade."
The diversity of views contained in the opinions of the members of this Court, in the cases at bar, cannot be a case on "right" or "wrong" views of the Constitution. It is one of attitudes and values. For there is scarcely any principle, authority or interpretation which has not been countered by the opposite. At bottom, it is the degree of one's faith — in the nation's leadership and in the maturity of judgment of our people.
IN VIEW OF THE FOREGOING, the dismissal of these five cases, and the conclusion of this Court in its judgment of March question becomes wholly moot except for this consideration, that, when the judges as individuals or as a body of individuals come to decide which king or which constitution they will support and assert to represent, it may often be good judgment for them to follow the lead of the men who as a practical matter are likely to be looked to by the people as more representative of themselves and conversely are likely to be more directly in touch with popular sentiment. If, however, the judges hold too strong views of their own to be able to take this course, they may follow their own leads at their own hazard. No question of law is involved. (Political Questions, 38 Harvard Law Review [1924-25], pp. 305-309.)
31, 1973 are fully justified.
Barredo, Makasiar and Esguerra, JJ., concur.
APPENDIX TO OPINION
(G.R. Nos. L-36142, 36164, 36165, 36236 & 36283)
PROVISIONS OF STATE CONSTITUTIONS SPECIFICALLY
PROVIDING FOR AMENDMENT AND REVISION @
1. Alaska (1959) — Art. XIII. Amendment and Revision.
Sec. 1. Amendments. Amendments to this constitution may be proposed by a two-thirds vote of each house of the legislature. The secretary of state shall prepare a ballot title and proposition summarizing each proposed amendment, and shall place them on the ballot for the next statewide election. If a majority of the votes cast on the proposition favor the amendment, it becomes effective thirty days after the certification of the election returns by the secretary of state.
Sec. 2. Convention. The legislature may call constitutional conventions at any time.
Sec. 3. Call by referendum. If during any ten-year period a constitutional convention has not been held, the secretary of state shall place on the ballot for the next general election the question: "Shall there be a Constitutional Convention?" If a majority of the votes cast on the question are in the negative, the question need not be placed on the ballot until the end of the next ten-year period. If a majority of the votes cast on the question are in the affirmative, delegates to the convention shall be chosen at the next regular statewide election, unless the legislature provides for the election of the election delegates at a special election. The secretary of state shall issue the call for the convention. Unless other provisions have been made by law, the call shall conform as nearly as possible to the act calling the Alaska Constitutional Convention of 1955, including, but not limited to, number of members, districts, election and certification of delegates, and submission and ratification of revisions and ordinances. ... .
Sec. 4. Powers. Constitutional conventions shall have plenary power to amend or revise the constitution, subject only to ratification by the people. No call for a constitutional convention shall limit these powers of the convention.
2. California (1879) — Art. XVIII. Amending and Revising the Constitution.
Sec. 1. Constitutional amendments. Any amendment or amendments to this Constitution may be proposed in the Senate or Assembly, and if two-thirds of all the members elected to each of the houses shall vote in favor thereof, such proposed amendment or amendments shall be entered in their Journals, with the yeas and nays taken thereon; and it shall be the duty of the Legislature to submit such proposed amendment or amendments to the people in such manner, and at such time, and after such publication as may be deemed expedient. Should more amendments than one be submitted at the same election they shall be so prepared and distinguished, by numbers or otherwise, that each can be voted on separately. If the people shall approve and ratify such amendment or amendments, or any of them, by a majority of the qualified electors voting thereon such amendment or amendments shall become a part of this constitution.
Sec. 2. Constitutional convention. Whenever two-thirds of the members elected to each branch of the Legislature shall deem it necessary to revise this Constitution, they shall recommend to the electors to vote at the next general for or against a Convention for that purpose, and if a majority of the electors voting at such election on the proposition for a Convention shall vote in favor thereof, the Legislature shall, at its next session, provide by law for calling the same. The Convention shall consist of a number of delegates not to exceed that of both branches of the Legislature, who shall be chosen in the same manner, and have the same qualifications, as Members of the Legislature. The delegates so elected shall meet within three months after their election at such place as the Legislature may direct. At a special election to be provided for by law, the Constitution that may be agreed upon by such Convention shall be submitted to the people for their ratification or rejection, in such manner as the Convention may determine. The returns of such election shall, in such manner as the Convention shall direct, be certified to the Executive of the State, who shall call to his assistance the Controller, Treasurer, and Secretary of State, and compare the returns so certified to him; and it shall be the duty of the Executive to declare, by his proclamation, such Constitution, as may have been ratified by a majority of all the votes cast at such special election, to be the Constitution of the State of California.
3. Colorado (1876) — Art. XIX. Amendments.
Sec. 1. Constitutional convention; how called. The general assembly may at any time be a vote of two-thirds of the members elected to each house, recommend to the electors of the state, to vote at the next general election for or against a convention to revise, alter and amend this constitution; and if a majority of those voting on the question shall declare in favor of such convention, the general assembly shall, at the next session, provide for the calling thereof. The number of members of the convention shall be twice that of the senate and they shall be elected in the same manner, at the same places, and in the same districts. The general assembly shall, in the act calling the convention, designate the day, hour and place of its meeting; fix the pay of its members and officers, and provide for the payment of the same, together with the necessary expenses of the convention. Before proceeding, the members shall take an oath to support the constitution of the United States, and of the state of Colorado, and to faithfully discharge their duties as members of the convention. The qualifications of members shall be the same as of members of the senate; and vacancies occurring shall be filled in the manner provided for filling vacancies in the general assembly. Said convention shall meet within three months after such election and prepare such revisions, alterations or amendments to the constitution as may be deemed necessary; which shall be submitted to the electors for their ratification or rejection at an election appointed by the convention for that purpose, not less than two nor more than six months after adjournment thereof; and unless so submitted and approved by a majority of the electors voting at the election, no such revision, alteration or amendment shall take effect.
Sec. 2. Amendments to constitution; how adopted. Any amendment or amendments to this constitution may be proposed in either house of the general assembly, and if the same shall be voted for by two-thirds of all the members elected to each house, such proposed amendment or amendments, together with the ayes and noes of each house hereon, shall be entered in full on their respective journals; the proposed amendment or amendments shall be published with the laws of that session of the general assembly, and the secretary of state shall also cause the said amendment or amendments to be published in full in not more than one newspaper of general circulation in each county, for four successive weeks previous to the next general election for members of the general assembly; and at said election the said amendment or amendments shall be submitted to the qualified electors of the state for their approval or rejection, and such as are approved by a majority of those voting thereon shall become part of this constitution.
Provided, that if more than one amendment be submitted at any general election, each of said amendments shall be voted upon separately and votes thereon cast shall be separately counted the same as though but one amendment was submitted. But the general assembly shall have no power to propose amendments to more than six articles of this constitution at the same session.
4. Delaware (1897) — Art. XVI. Amendments and Conventions.
Sec. 1. Proposal of constitutional amendments in general assembly; procedure. Any amendment or amendments to this Constitution may be proposed in the Senate or House of Representatives; and if the same shall be agreed to by two-thirds of all the members elected to each House, such proposed amendment or amendments shall be entered on their journals, with the yeas and nays taken thereon, and the Secretary of State shall cause such proposed amendment or amendments to be published three months before the next general election in at least three newspapers in each County in which such newspaper shall be published; and if in the General Assembly next after the said election such proposed amendment or amendments shall upon yea and nay vote be agreed to by two-thirds of all the members elected to each House, the same shall thereupon become part of the Constitution.
Sec. 2. Constitutional conventions; procedure; compensation of delegates; quorum; powers and duties; vacancies. The General Assembly by a two-thirds vote of all the members elected to each House may from time to time provide for the submission to the qualified electors of the State at the general election next thereafter the question, "Shall there be a Convention to revise the Constitution and amend the same?;" and upon such submission, if a majority of those voting on said question shall decide in favor of a Convention for such purpose, the General Assembly at its next session shall provide for the election of delegates to such convention at the next general election. Such Convention shall be composed of forty-one delegates, one of whom shall be chosen from each Representative District by the qualified electors thereof, and two of whom shall be chosen from New Castle County, two from Kent County and two from Sussex County by the qualified electors thereof respectively. The delegates so chosen shall convene at the Capital of the State on the first Tuesday in September next after their election. Every delegate shall receive for his services such compensation as shall be provided by law. A majority of the Convention shall constitute a quorum for the transaction of business. The Convention shall have the power to appoint such officers, employees and assistants as it may be deem necessary, and fix their compensation, and provide for the printing of its documents, journals, debates and proceedings. The Convention shall determine the rules of its proceedings, and be the judge of the elections, returns and qualifications of its members. Whenever there shall be a vacancy in the office of delegate from any district or county by reason of failure to elect, ineligibility, death, resignation or otherwise, a writ of election to fill such vacancy shall be issued by the Governor, and such vacancy shall be filled by the qualified electors of such district or county.
5. Florida (1887) — Art. XVII. Amendments.
Sec. 1. Method of amending constitution. Either branch of the Legislature, at any regular session, or at any special or extra-ordinary session thereof called for such purpose either in the governor's original call or any amendment thereof, may propose the revision or amendment of any portion or portions of this Constitution. Any such revision or amendment may relate to one subject or any number of subjects, but no amendment shall consist of more than one revised article of the Constitution.
If the proposed revision or amendment is agreed to by three-fifths of the members elected to each house, it shall be entered upon their respective journals with the yeas and nays and published in one newspaper in each county where a newspaper is published for two times, one publication to be made not earlier than ten weeks and the other not later than six weeks, immediately preceding the election at which the same is to be voted upon, and thereupon submitted to the electors of the State for approval or rejection at the next general election, provided, however, that such revision or amendment may be submitted for approval or rejection in a special election under the conditions described in and in the manner provided by Section 3 of Article XVII of the Constitution. If a majority of the electors voting upon the amendment adopt such amendment the same shall become a part of this Constitution.
Sec. 2. Method of revising constitution. If at any time the Legislature, by a vote of two-thirds of all the members of both Houses, shall determine that a revision of this Constitution is necessary, such determination shall be entered upon their respective Journals, with yea's and nay's thereon. Notice of said action shall be published weekly in one newspaper in every county in which a newspaper is published, for three months preceding the next general election of Representatives, and in those countries where no newspaper is published, notice shall be given by posting at the several polling precincts in such counties for six weeks next preceding said election. The electors at said election may vote for or against the revision in question. If a majority of the electors so voting be in favor of revision, the Legislature chosen at such election shall provide by law for a Convention to revise the Constitution, said Convention to be held within six months after the passage of such law. The Convention shall consist of a number equal to the membership of the House of Representatives, and shall be apportioned among the several counties in the same manner as members of said House.
6. Idaho (1890) — Art. XIX. Amendments.
Sec. 1. How amendments may be proposed. Any amendment or amendments to this Constitution may be proposed in either branch of the legislature, and if the same shall be agreed to by two-thirds of all the members of each of the two houses, voting separately, such proposed amendment or amendments shall, with the yeas and nays thereon, be entered on their journals, and it shall be the duty of the legislature to submit such amendment or amendments to the electors of the state at the next general election, and cause the same to be published without delay for at least six consecutive weeks, prior to said election, in not less than one newspaper of the general circulation published in each county; and if a majority of the electors shall ratify the same, such amendment or amendments shall become a part of this Constitution.
Sec. 3. Revision or amendments by convention. Whenever two-thirds of the members elected to each branch of the legislature shall deem it necessary to call a convention to revise or amend this Constitution, they shall recommend to the electors to vote at the next general election, for or against a convention, and if a majority of all the electors voting at said election shall have voted for a convention, the legislature shall at the next session provide by law for calling the same; and such convention shall consist of a number of members, not less than double the number of the most numerous branch of the legislature.
7. Iowa (1857) — Art. X. Amendments to the Constitution.
Sec. 3. Convention. At the general election to be held in the year one thousand eight hundred and seventy, and in each tenth year thereafter, and also at such times as the General Assembly may, by law, provide, the question, "Shall there be a Convention to revise the Constitution, and amend the same?" shall be decided by the electors qualified to vote for members of the General Assembly; and in case a majority of the electors so qualified, voting at such election, for and against such proposition, shall decide in favor of a Convention for such purpose, the General Assembly, at its next session, shall provide by law for the election of delegates to such Convention.
8. Michigan (1909) — Art. XVII. Amendments and Revision.
Sec. 1. Amendments to constitution; proposal by legislature; submission to electors. Any amendment or amendments to this constitution may be proposed in the senate or house of representatives. If the same shall be agreed to by 2/3 of the members elected to each house, such amendment or amendments shall be entered on the journals, respectively, with the yeas and nays taken thereon; and the same shall be submitted to the electors at the next spring or autumn election thereafter, as the legislature shall direct; and, if a majority of the electors qualified to vote for members of the legislature voting thereon shall ratify and approve such amendment or amendments, the same shall become part of the constitution.
Sec. 4. General revision; convention; procedure. At the Biennial Spring Election to be held in the year 1961, in each sixteenth year thereafter and at such times as may be provided by law, the question of a General Revision of the Constitution shall be submitted to the Electors qualified to vote for members of the Legislature. In case a majority of the Electors voting on the question shall decide in favor of a Convention for such purpose, at an Election to be held not later than four months after the Proposal shall have been certified as approved, the Electors of each House of Representatives District as then organized shall Elect One Delegate for each Electors of each Senatorial District as then organized shall Elect One Delegate for each State Senator to which the District is entitled. The Delegates so elected shall convene at the Capital City on the First Tuesday in October next succeeding such election, and shall continue their sessions until the business of the convention shall be completed. A majority of the delegates elected shall constitute a quorum for the transaction of business. ... No proposed constitution or amendment adopted by such convention shall be submitted to the electors for approval as hereinafter provided unless by the assent of a majority of all the delegates elected to the convention, the yeas and nays being entered on the journal. Any proposed constitution or amendments adopted by such convention shall be submitted to the qualified electors in the manner provided by such convention on the first Monday in April following the final adjournment of the convention; but, in case an interval of at least 90 days shall not intervene between such final adjournment and the date of such election. Upon the approval of such constitution or amendments by a majority of the qualified electors voting thereon such constitution or amendments shall take effect on the first day of January following the approval thereof.
9. Minnesota (1857) — Art. XIV. Amendments to the Constitution.
Sec. 1. Amendments to constitution; majority vote of electors voting makes amendment valid. Whenever a majority of both houses of the legislature shall deem it necessary to alter or amend this Constitution, they may proposed such alterations or amendments, which proposed amendments shall be published with the laws which have been passed at the same session, and said amendments shall be submitted to the people for their approval or rejection at any general election, and if it shall appear, in a manner to be provided by law, that a majority of all the electors voting at said election shall have voted for and ratified such alterations or amendments, the same shall be valid to all intents and purposes as a part of this Constitution. If two or more alterations or amendments shall be submitted at the same time, it shall be so regulated that the voters shall vote for or against each separately.
Sec. 2. Revision of constitution. Whenever two-thirds of the members elected to each branch of the legislature shall think it necessary to call a convention to revise this Constitution, they shall recommend to the electors to vote at the next general election for members of the legislature, for or against a convention; and if a majority of all the electors voting at said election shall have voted for a convention, the legislature shall, at their next session, provide by law for calling the same. The convention shall consist of as many members as the House of Representatives, who shall be chosen in the same manner, and shall meet within three months after their election for the purpose aforesaid.
Sec. 3. Submission to people of revised constitution drafted at convention. Any convention called to revise this constitution shall submit any revision thereof by said convention to the people of the State of Minnesota for their approval or rejection at the next general election held not less than 90 days after the adoption of such revision, and, if it shall appear in the manner provided by law that three-fifths of all the electors voting on the question shall have voted for and ratified such revision, the same shall constitute a new constitution of the State of Minnesota. Without such submission and ratification, said revision shall be of no force or effect. Section 9 of Article IV of the Constitution shall not apply to election to the convention.
10. Nevada (1864) — Art. 16. Amendments.
Sec. 1. Constitutional amendments; procedure. Any amendment or amendments to this Constitution may be proposed in the Senate or Assembly; and if the same shall be agreed to by a Majority of all the members elected to each of the two houses, such proposed amendment or amendments shall be entered on their respective journals, with the Yeas and Nays taken thereon, and referred to the Legislature then next to be chosen, and shall be published for three months next preceding the time of making such choice. And if in the Legislature next chosen as aforesaid, such proposed amendment or amendments shall be agreed to by a majority of all the members elected to each house, then it shall be the duty of the Legislature to submit such proposed amendment or amendments to the people, in such manner and at such time as the Legislature shall prescribe; and if the people shall approve and ratify such amendment or amendments by a majority of the electors qualified to vote for members of the Legislature voting thereon, such amendment or amendments shall become a part of the Constitution.
Sec. 2. Convention for revision of constitution; procedure. If at any time the Legislature by a vote of two-thirds of the Members elected to each house, shall determine that it is necessary to cause a revision of this entire Constitution they shall recommend to the electors at the next election for Members of the Legislature, to vote for or against a convention, and if it shall appear that a majority of the electors voting at such election, shall have voted in favor of calling a Convention, the Legislature shall, at its next session provide by law for calling a Convention to be holden within six months after the passage of such law, and such Convention shall consist of a number of Members not less that of both branches of the legislature. In determining what is a majority of the electors voting such election, reference shall be had to the highest number of vote cast at such election for the candidates of any office or on any question.
11. New Hamspire (1784) —
Art. 99. Revision of constitution provided for. It shall be the duty of the selectmen, and assessors, of the several towns and places in this state, in warning the first annual meetings for the choice of senators, after the expiration of seven years from the adoption of this constitution, as amended, to insert expressly in the warrant this purpose, among the others for the meeting, to wit, to take the sense of the qualified voters on the subject of a revision of the constitution; and, the meeting being warned accordingly, and not otherwise, the moderator shall take the sense of the qualified voters present as to the necessity of a revision; and a return of the number of votes for and against such necessity, shall be made by the clerk sealed up, and directed to the general court at their then next session; and if, it shall appear to the general court by such return, that the sense of the people of the state has taken, and that, in the opinion of the majority of the qualified voters in the state, present and voting at said meetings, there is a necessity for a revision of the constitution, it shall be the duty of the general court to call a convention for that purpose, otherwise the general court shall direct the sense of the people to be taken, and then proceed in the manner before mentioned. The delegates to be chosen in the same manner, and proportioned, as the representatives to the general court; provided that no alterations shall be made in this constitution, before the same shall be laid before the towns and unincorporated places, and approved by two thirds of the qualified voters present and voting on the subject.
12. Oklahoma (1907) — Art. XXIV. Constitutional Amendments.
Sec. 1. Amendments proposed by legislature; a submission to vote. Any amendment or amendments to this Constitution may be proposed in either branch of the Legislature, and if the same shall be agreed to by a majority of all the members elected to each of the two houses, such proposed amendment or amendments shall, with yeas and nays thereon, be entered in their journals and referred by the Secretary of State to the people for their approval or rejection, at the next regular general election, except when the Legislature, by a two-thirds vote of each house, shall order a special election for that purpose. If a majority of all the electors voting at such election shall vote in favor of any amendment thereto, it shall thereby become a part of this Constitution.
If two or more amendments are proposed they shall be submitted in such manner that electors may vote for or against them separately.
No proposal for the amendment or alteration of this Constitution which is submitted to the voters shall embrace more than one general subject and the voters shall vote separately for or against each proposal submitted; provided, however, that in the submission of proposals for the amendment of this Constitution by articles, which embrace one general subject, each proposed article shall be deemed a single proposals or proposition
Sec. 2. Constitutional convention to propose amendments or new constitution. No convention shall be called by the Legislature to propose alterations, revisions, or amendments to this Constitution, or to propose a new Constitution, unless the law providing for such convention shall first be approved by the people on a referendum vote at a regular or special election, and any amendments, alterations, revisions, or new Constitution, proposed by such convention, shall be submitted to the electors of the State at a general or special election and be approved by a majority of the electors voting thereon, before the same shall become effective Provided, That the question of such proposed convention shall be submitted to the people at least once in every twenty years.
13. Oregon (1859) — Art. XVII. Amendments and Revisions.
Sec. 1. Method of amending constitution. Any amendment or amendments to this Constitution may be proposed in either branch of the legislative assembly, and if the same shall be agreed to by a majority of all the members elected to each of the two houses, such proposed amendment or amendments shall, with the yeas and nays thereon, be entered in their journals and referred by the secretary of state to the people for their approval or rejection, at the next regular election, except when the legislative assembly shall order a special election for that purpose. If a majority of the electors voting on any such amendment shall vote in favor thereof, it shall thereby become a part of this Constitution. The votes for and against such amendment, or amendments, severally, whether proposed by the legislative assembly or by initiative petition, shall be canvassed by the secretary of state in the presence of the governor, and if it shall appear to the governor that the majority of the votes cast at said election on said amendment, or amendments, severally, are cast in favor thereof, it shall be his duty forthwith after such canvass, by his proclamation, to declare the said amendment, or amendments, severally, having received said majority of votes to have been adopted by the people of Oregon as part of the Constitution thereof, and the same shall be in effect as a part of the Constitution from the date of such proclamation. When two or more amendments shall be submitted in the manner aforesaid to the voters of this state at the same election, they shall be so submitted that each amendment shall be voted on separately. No convention shall be called to amend or propose amendments to this Constitution, or to propose a new Constitution, unless the law providing for such convention shall first be approved by the people on a referendum vote at a regular general election. This article shall not be construed to impair the right of the people to amend this Constitution by vote upon an initiative petition therefor.
Sec. 2. Method of revising constitution. (1) In addition to the power to amend this Constitution granted by section 1, Article IV, and section 1 of this Article, a revision of all or part of this Constitution may be proposed in either house of the Legislative Assembly and, if the proposed revision is agreed to by at least two-thirds of all the members of each house, the proposed revision shall, with the yeas and nays thereon, be entered in their journals and referred by the Secretary of State to the people for their approval or rejection, notwithstanding section 1, Article IV of this Constitution, at the next regular state-wide primary election, except when the Legislative Assembly orders a special election for that purpose. A proposed revision may deal with more than one subject and shall be voted upon as one question. The votes for and against the proposed revision shall be canvassed by the Secretary of State in the presence of the Governor and, if it appears to the Governor that the majority of the votes cast in the election on the proposed revision are in favor of the proposed revision, he shall, promptly following the canvass, declare, by his proclamation, that the proposed revision has received a majority of votes and has been adopted by the people as the Constitution of the State of Oregon, as the case may be. The revision shall be in effect as the Constitution or as a part of this Constitution from the date of such proclamation.
14. Utah (1896) — Art. 23. Amendments.
Sec. 1. Amendments; method of proposal and approval. Any amendments to his Constitution may be proposed in either house of the Legislature, and if two-thirds of all the members elected of the two houses, shall vote in favor thereof, such proposed amendment or amendments shall be entered on their respective journals with the yeas and nays taken thereon; and the Legislature shall cause the same to be published in at least one newspaper in every county of the State, where a newspaper is published, for two months immediately preceding the next general election, at which time the said amendment or amendments shall be submitted to the electors of the State, for their approval or rejection, and if a majority of the electors voting thereon shall approve the same, such amendment or amendments shall become part of this Constitution. If two or more amendments are proposed, they shall be so submitted as to enable the electors to vote on each of them separately.
Sec. 2. Revision of the Constitution by convention. Whenever two-thirds of the members, elected to each branch of the Legislature, shall deem it necessary to call a convention to revise or amend this Constitution, they shall recommend to the electors to vote at the next general election, for or against a convention, and, if a majority of all the electors, voting at such election, shall vote for a convention. The Legislature, at its next session, shall provide by law for calling the same. The convention shall consist of not less than the number of members in both branches of the Legislature.
15. Wyoming (1890) — Art. XX. Amendments.
Sec. 1. Procedure for amendments. Any amendment or amendments to this Constitution may be proposed in either branch of the legislature, and, if the same shall be agreed to by two-thirds of all the members of the two houses, voting separately, such proposed amendment or amendments shall, with the yeas and nays thereon, be entered on their journals, and it shall be the duty of the legislature to submit such amendment or amendments to the electors of the state at the next general election, in at least one newspaper of general circulation, published in each county, and if a majority of the electors shall ratify the same, such amendment or amendments shall become a part of this constitution.
Sec. 2. How voted for. If two or more amendments are proposed, they shall be submitted in such manner that the electors shall vote for or against each of them separately.
Sec. 3. Constitutional convention; provision for. Whenever two-thirds of the members elected to each branch of the legislature shall deem it necessary to call a convention to revise or amend this constitution, they shall recommend to the electors to vote at the next general election for or against a convention, and if a majority of all the electors voting at such election shall have voted for a convention, the legislature shall at the next session provide by a law for calling the same; and such convention shall consist of a number of members, not less than double that of the most numerous branch of the legislature.
Sec. 4. New constitution. Any constitution adopted by such convention shall have no validity until it has been submitted to and adopted by the people.
Footnotes
1 "When a house is completely demolished and another is erected on the same location, do you have a changed, repaired and altered house, or do you have a new house? Some of the material contained in the old house may be used again, some of the rooms may be constructed the same, but this does not alter the fact that you have altogether another or a new house. We conclude that the instrument as contained in Ga. L. 1945, pp. 8 to 89, inclusive, is not an amendment to the constitution of 1877; but on the contrary it is a completely revised or new Constitution." (Wheeler v. Board of Trustees, 37 S.E. 2d 322, 327).
"Every proposal which affects a change in a Constitution or adds or takes away from it is an "amendment', while a "revision" implies a re-examination and statement of the Constitution, or some part of it, in a corrected or improved form." (Const. Secs. 196, 197, Staples v. Gilmer, 33 S.E. 2d 49, 53 183 Va. 613).
"Amendment" and "revision" of constitution are separate procedures each having a substantial field of application not mere alternative procedures in the same field." (McFadden v. Jordan, 196 P. 2d 787, 797 32 Cal. 2d 330).
2 Cf. Sections 1 and 2 of Article XIV, Constitution of Minnesota in Appendix.
3 Baker v. Carr, 369 U.S. 186; 7 L. ed. 663.
4 Cf. State Constitutions of Alaska, California, Delaware, Florida, Michigan, Minnesota, Nevada, New Hampshire, Oklahoma, Oregon, Utah and Wyoming in Appendix to this opinion.
* Leon O. Ty, Seven Months of Martial Law, Daily Express.
* Panorama, May 6, 1973.
5 "A written constitution is susceptible of change in two ways: by revolution, which implies action not pursuant to any provision of the constitution itself; and by revision, which implies action pursuant to some procedural provision in the constitution. This distinction is concerned with the quare and not with the quantum of change. It may be significant, however, that the alleged alteration does or does not purport to affect the existence of the court itself. In the nature of things, a revolutionary charge does not admit judicial power as such to determine the fact of its occurrence. If revolutionary constitution sets up a court differently constituted from the pre-revolutionary court, neither tribunal is confronted with a substantial problem, for neither can deny the act by which it was created without denying the fact of its creation. Thus the Supreme Court in Luther v. Borden (supra) uses language substantially parallel with what has been indicated above as logical explanation of the Duke of York's case. For the court to give serious judicial consideration to such a question would present "the singular spectacle of a court sitting as a court to declare that we are not a court." (Brittle v. People, 2 Neb. 198, 214 [1873].) And even the alleged new constitution purports to leave intact the former court and to permit its work to go on without hiatus, the decision which the judges must make is still an individual choice to be made by them as a matter of practical politics. Two commissions are being held out to them, and if they will act as a court they must assess under which commission they are acting. To put the matter another way, it must be true that in the first case above — of two constitutions purporting to establish two different courts, — the men who were judges under the old regime and the men who are called to be judges under the new have each to decide as individuals what they are to do; and it may be that they choose at grave peril with the factional outcome still uncertain. And, although it is equally obvious, the situation is logically identical where the same men are nominated to constitute the court under both the old and new constitution, at a time when the alleged change is occurring — if it is — peaceably and against a placid popular background. Men under such circumstances may write most praiseworthily principles of statesmanship, upon sovereignty and, its nature modes of action, and upon the bases of government, to justify the choice between the two commissions. They can assert their choice in the course of purported judicial action. But they cannot decide as a court, for the decision, once made, by a retroactive hypothesis excludes any assumption of controversiality in the premises..
"Where the alleged change occurs not through revolutionary measures but through what has been called revision, these logical difficulties disappear in one aspect, but become far more embarrassing in another. Where the alteration purports to be made along the lines of a procedural method laid down in the constitution, there is a standard which the court can apply and, by so doing, it can perceive judicially whether or not the change has followed the prescribed lines. If it has, there is no difficulty in pronouncing as a matter of law its accomplishment. Only one exception is possible, namely, the ease where the alteration purports at once to abolish the court or to depose its personnel. Then, although there would be a question of law to be decided, it may be wondered who there is to decide it. Suppose, however, the mode of change has failed in some way to conform to a directory provision of the amending clause of the constitution; is the court to declare the attempt at alteration unsuccessful? It would seem as a matter of law that it must do so; and yet what is the situation if the proponents of the change say, "It is true that this measure failed under the amending clause, but as a revolutionary measure it was a success and we insist upon its recognition." Clearly the members of the court are now more badly than ever entangled in the logical difficulties which attend a purported judicial pronouncement upon the achievement or non-achievement of revolutionary change. For the temptation will be great to treat the matter as a legal question. The times are peaceful. The changes probably do no affect the tenure of many offices of any branch of the government. The popular inertia is likely to allow the court successfully to assume the question to be one of law. The path of fallacy is not too strikingly fallacious to the uncritical observer. It may lead to just results. The judges' personal inclinations will be to show deference to the expression of popular sentiment which has been given. And yet, if they declare the change in force, they are truly making a personal declaration that they believe the change to be the directly expressed will of the sovereign, which will they assert to be law, but the fact of existence of which will — and this is the real decision — is not ascertainable in the given case by any legal means. It is submitted that this is true, and that the conclusions offered in the discussion of revolutionary change are true, also, whether the quantum of change involved be vast or almost negligible.
"The net result of the preceding discussion is this: that in almost the whole field of problems which the Duke of York's case and the American constitutional amendment cases present, the court as a court is precluded from passing upon the fact of change by a logical difficulty which is not to be surmounted. It follows that there is no room for considering whether the court ought graciously and deferentially to look to the executive or legislative for a decision that a change has or has not taken place.
6 & 7 Ibid. pp. 301, 305.
APPENDIX TO OPINION.
@ The inclusion in the Appendix of provisions for Amendment and Revision in State Constitutions, adopted after 1935, is only to stress the fact that the distinction between Amendment and Revision of Constitution, which existed at the time of the adoption of the 1935 Constitution, has continued up to the present.
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