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
ZALDIVAR, J., concurring and dissenting:
In these five cases, the main issue to be resolved by Court is whether or not the Constitution proposed by the Constitutional Convention of 1971 had been ratified in accordance with the provisions of Article XV of the 1935 Constitution. In the plebiscite cases, which were decided by this Court on January 22, 19731, I held the view that this issue could be properly resolved by this Court, and that it was in the public interest that this Court should declare then whether or not the proposed Constitution had been validly ratified. The majority of this Court, however, was of the view that the issue was not squarely raised in those cases, and so the Court, as a body, did make any categorical pronouncement on the question of whether or not the Constitution proposed by the 1971 Convention was validly ratified. I was the only one who expressed the opinion that the proposed Constitution was not validly ratified and therefore "it should not be given force and effect."
The Court is now called upon to declare, and to inform the people of this country, whether or not that proposed Constitution had been validly ratified and had come into effect.
The Solicitor General, however, contends that this Court has no jurisdiction to resolve the issue that we have mentioned because that issue is a political question that cannot be decided by this Court. This contention by the Solicitor General is untenable. A political question relates to "those questions which under the Constitution are to be decided by the people in their sovereign capacity or in regard to which full discretionary authority has been delegated to the legislative, or to the executive, branch of the government.2The courts have the power to determine whether the acts of the executive are authorized by the Constitution and the laws whenever they are brought before the court in a judicial proceeding. The judicial department of the government exercises a sort of controlling, or rather restraining, power over the two other departments of the government. Each of the three departments, within its proper constitutional sphere, acts independently of the other, and restraint is only placed on one department when that sphere is actually transcended. While a court may not restrain the executive from committing an unlawful act, it may, when the legality of such an act is brought before it in a judicial proceeding, declare it to be void, the same as it may declare a law enacted by the legislature to be unconstitutional.3 It is a settled doctrine that every officer under a constitutional government must act according to law and subject to its restrictions, and every departure therefrom, or disregard thereof, must subject him to the restraining and controlling power of the people, acting through the agency of the judiciary. It must be remembered that the people act through the courts, as well as through the executive or the legislature. One department is just as representative as the other, and judiciary is the department which is charged with the special duty of determining the limitations which the law places upon all official actions4 . In the case of Gonzales v. Commission on Elections5, this Court ruled that the issue as to whether or not a resolution of Congress acting as a constituent assembly violates the Constitution is not a political question and is therefore subject to judicial review. In the case of Avelino v. Cuenco6, this Court held that the exception to the rule that courts will not interfere with a political question affecting another department is when such political question involves an issue as to the construction and interpretation of the provision of the constitution. And so, it has been held that the question of whether a constitution shall be amended or not is a political question which is not in the power of the court to decide, but whether or not the constitution has been legally amended is a justiciable question.7
My study on the subject of whether a question before the court is political or judicial, based on decisions of the courts in the United States — where, after all, our constitutional system has been patterned to a large extent — made me arrive at the considered view that it is in the power of this Court, as the ultimate interpreter of the Constitution, to determine the validity of the proposal, the submission, and the ratification of any change in the Constitution. Ratification or non-ratification of a constitutional amendment is a vital element in the procedure to amend the constitution, and I believe that the Court can inquire into, and decide on, the question of whether or not an amendment to the constitution, as in the present cases, has been ratified in accordance with the requirements prescribed in the Constitution that was amended. And so, in the cases now before Us, I believe that the question of whether or not the Constitution proposed by the 1971 Constitutional Convention had been validly ratified or not is a justiciable question.
The Chief Justice, in his opinion, has discussed lengthily the subject on whether or not, the cases, before Us involve a political, or a judicial, question. I fully concur with his conclusion that the question involved in these cases is justiciable.
On the question now of whether or not the Constitution proposed by the 1971 Constitutional Convention has been validly ratified, I am reproducing herein pertinent portions of my dissenting opinion in the plebiscite cases:
The ratification of the Constitution proposed by the 1971 Constitutional Convention must be done in accordance with the provisions of Section 1, Article XV of the 1935 Constitution of the Philippines, which reads:
"Section 1. The Congress in joint session assembled by a vote of three fourths of all the Members of the Senate and of the House of Representatives voting separately, may propose amendments to the Constitution or call a convention for that purpose. Such amendments shall be valid as part of this Constitution when approved by a majority of the votes cast at an election at which the amendments are submitted to the people for their ratification."
It is in consonance with the abovequoted provision of the 1935 Constitution that on March 16, 1967, the Congress of the Philippines Resolution No. 2 calling a convention to propose amendments to the Constitution of the Philippines. Sec. 7 of said Resolution No. 2 reads as follows:
"Section 7. The amendments proposed by the Convention shall be valid and considered part of the Constitution when approved by a majority of the votes cast in an election at which they are submitted to the people for their ratification pursuant to Article XV of the Constitution.
It follows that from the very resolution of the Congress of the Philippines which called for the 1971 Constitutional Convention, there was a clear mandate that the amendments proposed by the 1971 Convention, in order to be valid and considered part of the Constitution, must be approved by majority of the votes cast in an election at which they are submitted to the people for the ratification as provided in the Constitution.
This Court, in the case of Tolentino vs. Commission Elections, L-35140, October 16, 1971 (41 SCRA 715), speaking through Mr. Justice Barredo, said:
"The Constitutional Convention of 1971, as any other convention of the same nature, owes its existence and all its authority and power from the existing Constitution of the Philippines. This Convention has not been called by the people directly as in the case of a revolutionary convention which drafts the first Constitution of an entirely new government born of either a war of liberation from a mother country or of revolution against an existing government or of a bloodless seizure of power a la coup d'etat. As to such kind of conventions, it is absolutely true that the convention is completely without restraint and omnipotent all wise, and it as to such conventions that the remarks of Delegate Manuel Roxas of the Constitutional Convention of 1934 quoted by Senator Pelaez refer. No amount of rationalization can belie the fact that the current convention came into being only because it was called by a resolution of a joint session of Congress acting as a constituent assembly by authority of Section 1, Article XV of the present Constitution ... ."
x x x x x x x x x
"As to matters not related to its internal operation and the performance of its assigned mission to propose amendments to the Constitution, the Convention and its officers and members are all subject to all the provisions of the existing Constitution. Now we hold that even as to its latter task of proposing amendments to the Constitution, it is subject to the provisions of Section 1 of Article XV."
In Proclamation No. 1102, issued on January 17, 1973, the President of the Philippines certified that as a result of the voting before the barangays (Citizens Assemblies) 14,976,561 members of the barangays voted for the adoption of the proposed Constitution, as against 743,869 who voted for its rejection, and on the basis of the overwhelming majority of the votes cast by the members of all the barangays throughout the Philippines, the President proclaimed that the Constitution proposed by the 1971 Convention has been ratified and has thereby come into effect.
It is very plain from the very wordings of Proclamation No. 1102 that the provisions of Section 1 of Article XV of the Constitution of 1935 were not complied with. It is not necessary that evidence be produced before this Court to show that no elections were held in accordance with the provisions of the Election Code. Proclamation No. 1102 unequivocally states that the proposed Constitution of 1972 was voted upon by the barangays. It is very clear, therefore, that the voting held in these barangays is not the election contemplated in the provisions of Section 1, Article XV, of the 1935 Constitution. The election contemplated in said constitutional provision is an election held in accordance with the provisions of the election law, where only the qualified and registered voters of the country would cast their votes, where official ballots prepared for the purpose are used, where the voters would prepare their ballots in secret inside the voting booths in the polling places established in the different election precincts throughout the country, where the election is conducted by election inspectors duly appointed in accordance with the election law, where the votes are canvassed and reported in a manner provided for in the election law. It was this kind of election that was held on May 14, 1935, when the Constitution of 1935 was ratified; on April 30, 1937, when the amendment to the Constitution providing for Women's Suffrage was ratified; on June 18, 1940, when the 1940 Amendments to the Constitution were ratified; on March 11, 1947 when the Parity Amendment to the Constitution was ratified; and on November 14, 1967 when the amendments to the Constitution to increase the number of Members of the House of Representatives and to allow the Members of Congress to run in the elections for Delegates to the Constitutional Convention of 1971 were rejected.
I cannot see any valid reason why the practice or procedure in the past, in implementing the constitutional provision requiring the holding, of an election to ratify or reject an amendment to the Constitution, has not been followed in the case of the Constitution proposed by the 1971 Constitutional Convention.
It is my view that the President of the Philippines cannot by decree order the ratification of the proposed 1972 Constitution thru a voting in the barangays and make said result the basis for proclaiming the ratification of the proposed constitution. It is very clear, to me, that Proclamation No. 1102 was issued in complete disregard or in violation, of the provisions of Section 1 of Article X of the 1935 Constitution.
Proclamation No. 1102 mentions, furthermore, that on the question as to whether or not the people would still like a plebiscite to be called to ratify the new Constitution, 14,298,814 members of the barangays answered that there was no need for a plebiscite but that the vote of the barangays should be considered a vote in a plebiscite. It would thus appear that the barangays assumed the power to determine whether a plebiscite as ordained in the Constitution be held or not. Indeed, the provision of Section 1, Article XV of the Constitution was completely disregarded.
The affirmative votes cast in the barangays are not the votes contemplated in Section 1 of Article XV of the 1935 Constitution. The votes contemplated in said constitutional provision are votes obtained through the election processes as provided by law.
"An election is the embodiment of the popular will, the expression of the sovereign power of the people. In common parlance, an election is the act of casting and receiving the ballots, counting them, and making the return." (Hontiveros vs. Altavas, 24 Phil. 632, 637).
"Election" implies a choice by an electoral body at the time and substantially in the manner and with the safeguards provided by law with respect to some question or issue. (Leffel v. Brown, Com. P1., 159 N.E. 2d 807, 808 cited in 29 C.J.S. 13 at footnote 6.5).
"... the statutory method whereby qualified voters or electors pass on various public matters submitted to them — the election of officers, national, state, county, township — the passing on various other questions submitted for their determination." (29 C.J.S. 13, citing Iowa-Illinois Gas & Elec. Co. v. City of Bettendorf, 41 N.W. 2d 1, 5, 241 Iowa 358).
"Election" is expression of choice by voters of body politic. (Ginsburg v. Giles, 72 S.W. 2d 438, 254 Ky. 720, in Words and Phrases, Permanent Edition, p. 234).
"The right to vote may be exercised only on compliance with such statutory requirements as have been set by the legislature." (People ex rel. Rago v. Lipsky, 63 N.E. 2d 642, 327 III. App. 63; Rothfels v. Southworth, 356 P. 2d 612, 11 Utah 2d 169 in 29 C.J.S. 38). (Emphasis supplied).
In this connection I herein quote the pertinent provisions of the Election Code of 1971:
"Sec. 2. Applicability of this Act. — All elections of public officers except barrio officials and plebiscites shall be conducted in the manner provided by this Code."
"Sec 99. Necessity of registration to be entitled to vote. — In order that a qualified voter may vote in any regular or special election or in any plebiscite, he must be registered in the permanent list of voters for the city, municipality or municipal district in which he resides: Provided, that no person shall register more than once without first applying for cancellation of his previous registration." (Emphasis supplied). (Please see also Sections 100-102, Election Code of 1971, R.A. No. 6388)
It is stated in Proclamation No. 1102 that the voting was done by the members of citizens assemblies who are 15 years of age or over. Under the provision of Section I of Article V of the 1935 Constitution, the age requirement to be a qualified voter is 21 years or over.
But what is more noteworthy is the fact that the voting in the barangays, except in very few instances, was done by the raising of hands by the persons indiscriminately gathered to participate in the voting, where even children below 15 years of age were included. This is a matter of common observation, or of common knowledge, which the Court may take judicial notice of. To consider the votes in the barangays as expressive of the popular will and use them as the basis in declaring whether a Constitution is ratified or rejected is to resort to a voting by demonstrations, which is would mean the rule of the crowd, which is only one degree higher than the rule by the mob. Certainly, so important a question as to whether the Constitution, which is the supreme law of the land, should be ratified or not, must not be decided by simply gathering people and asking them to raise their hands in answer to the question of whether the vote for or against a proposed Constitution. The election as provided by law should be strictly observed in determining the will of the sovereign people in a democracy. In our Republic, the will of the people must be expressed through the ballot in a manner that is provided by law.
It is said that in a democracy, the will of the people is the supreme law. Indeed, the people are sovereign, but the will of the people must be expressed in a manner as the law and the demands a well-ordered society require. The rule of law must prevail even over the apparent will of the majority of the people, if that will had not been expressed, or obtained, in accordance with the law. Under the rule of law, public questions must be decided in accordance with the Constitution and the law. This is specially true in the case of adoption of a constitution or in the ratification of an amendment to the Constitution.
The following citations are, to me, very relevant in the effort to determine whether the proposed Constitution of 1972 had been validly ratified, or not:
"When it is said that "the people" have the right to alter or amend the constitution, it must not be understood that term necessarily includes all the inhabitants of the state. Since the question of the adoption or rejection of a proposed new constitution or constitutional amendment must be answered a vote, the determination of it rests with those who, by existing constitution, are accorded the right of suffrage. But the qualified electors must be understood in this, as in many other cases, as representing those who have not the right to participate in the ballot. If a constitution should be abrogated and a new one adopted, by the whole mass of people in a state acting through representatives not chosen by the "people" in political sense of the term, but by the general body of the populace, the movement would be extra-legal." (BIack's Constitutional Law, Second Edition, pp. 47-48).
"The theory of our political system is that the ultimate sovereignty is in the people, from whom springs all legitimate authority. The people of the Union created a national constitution, and conferred upon it powers of sovereignty on certain subjects, and the people of each State created a State government, to exercise the remaining powers of sovereignty so far as they were disposed to allow them to be exercised at all. By the constitution which they establish, they not only tie up the hands of their official agencies, but their own hands as well; and neither the officers of the State, nor the whole people as an aggregate body, are at liberty to take action in opposition to this fundamental law." (Cooley's Constitutional Limitations, 8th Edition, Vol. I, p. 81 cited in Graham v. Jones, 3 So. 2d. 761, 782).
"The theory that a favorable vote by the electorate, however unanimous, on a proposal to amend a constitution, may cure, render innocuous, all or any antecedent failures to observe commands of that Constitution in respect of the formulation or submission of proposed amendments thereto, does not prevail in Alabama, where the doctrine of the stated theory was denied, in obvious effect, by the pronouncement 60 years ago of broad, wholesome constitutional principles in Collier v. Frierson, supra, as quoted in the original opinion, ante. The people themselves are bound by the Constitution; and, being so bound, are powerless, whatever their numbers, to change or thwart its mandates, except through the peaceful means of a constitutional convention, or of an amendment according to the mode therein prescribed, or through the exertion of the original right of revolution. "The Constitution may be set aside by revolution, but it can only be amended in the way it provides," said Hobson, C.J., in McCreary v. Speer, 156 Ky. 783, 791, 162 S.W. 99, 103. (Johnson vs. Craft, et al., 87 So. 375, 385, 387, On Rehearing).
"The fact that a majority voted for the amendment, unless the vote was taken as provided by the Constitution, is not sufficient to make a change in that instrument. Whether a proposed amendment has been legally adopted is a judicial question, for the court must uphold and enforce the Constitution as written until it is amended in the way which it provides for." Wood v. Tooker, 15 Mont. 8, 37 Pac 840, 25 L.R.A. 560; McConaughty v. State, 106 Minn. 409, 119 N.W. 408; Oakland Paving Company v. Hilton, 69 Cal. 499, 11 Pac. 3; Utter v. Mosely, 16 Idaho 274, 100 Pac. 1958, 133 Am. St. Rep. 94, 18 Ann. Cas. 723. (McCreary v. Speer, 162 S.W. 99, 104).
"Provisions of a constitution regulating its own amendment, ... are not merely directory, but are mandatory; and a strict observance of every substantial mandatory; and a strict observance of every substantial requirement is essential to the validity of the proposed amendment. These provisions are as binding on the people as on the legislature, and the former are powerless by vote of acceptance to give legal sanction to an amendment the submission of which was made in disregard of the limitations contained in the constitution." (16 C.J.S. 35-36. cited in Graham v. Jones, 3 So. 2d 761, 782).
"It is said that chaos and confusion in the government affairs of the State will result from the Court's action in declaring the proposed constitutional amendment void. This statement is grossly and manifestly inaccurate. If confusion and chaos should ensue, it will not be due to the action of the Court but will be the result of the failure of the drafters joint resolution to observe, follow and obey the plain essential provisions of the Constitution. Furthermore, to say that, the Court disregards its sworn duty to enforce the Constitution, chaos and confusion will result, is an inherently weak argument in favor of the alleged constitutionality of the proposed amendment. It is obvious that, if the Court were to countenance the violations of the sacramental provisions Constitution, those who would thereafter desire to violate it disregard its clear mandatory provisions would resort to the scheme of involving and confusing the affairs of the State then simply tell the Court that it was powerless to exercise one of its primary functions by rendering the proper decree to make the Constitution effective." (Graham v. Jones, 3 So. 2d. 761, 793-794).
In our jurisprudence I find an instance where this Court did not allow the will of the majority to prevail, because the requirements of the law were not complied with. In the case of Monsale v. Nico, 83 Phil. 758, Monsale and Nico were both candidates for the office of Municipal Mayor of Miagao, Iloilo, in the elections of November 11, 1947. Monsale had duly filed his certificate of candidacy before the expiration of the period for the filing of the same. However, on October 10, 1947, after the period for the filing of the certificate of candidacy, Monsale withdrew his certificate of candidacy. But on November 7, 1947 Monsale attempted to revive his certificate of candidacy by withdrawing the withdrawal of certificate of candidacy. The Commission on Elections, November 8, 1947, ruled that Monsale could no longer be a candidate. Monsale nevertheless proceeded with his candidacy. The boards of inspectors in Miagao, however, did not count the votes cast for Monsale upon the ground that the votes cast for him were stray votes, because he was considered as having no certificate of candidacy. On the other hand, the boards of inspectors credited Nico with 2,291 votes, and Nico was proclaimed elected. Monsale filed a protest against the election of Nico in the Court of First Instance of Iloilo. In the count of the ballots during the proceedings in the trial court, it appeared that Monsale had obtained 2,877 votes while Nico obtained 2,276 votes, or a margin of 601 votes in favor of Monsale. The Court of First Instance of Iloilo decided the election protest in favor of Monsale. Upon appeal by Nico, this Court reversed the decision of the lower court. This Court declared that because Monsale withdrew his certificate of candidacy, his attempt to revive it by withdrawing his withdrawal of his certificate of candidacy did not restore the effectiveness of his certificate of candidacy, and this Court declared Nico the winner in spite of the fact that Monsale had obtained more votes than he.
We have cited this Monsale case to show that the will of the majority of the voters would not be given effect, as declared by this Court, if certain legal requirements have not been complied with in order to render the votes valid and effective to decide the result of an election.
And so, in the cases now before this Court, the fact that the voting in the citizens assemblies (barangays) is not the election that is provided for in the 1935 Constitution for the ratification of the amendment to the Constitution, the affirmative votes cast in those assemblies can not be made the basis for declaring the ratification of the proposed 1972 Constitution, in spite of the fact that it was reported that 14,976,561 members of the citizens assemblies voted for the adoption as against 743,869 for the rejection, because the votes thus obtained were not in accordance with the provisions of Section 1 of Article XV of the 1935 Constitution of the Philippines. The rule of law mast be upheld.
My last observation: One of the valid grounds against the holding of the plebiscite on January 15, 1973, as provided in Presidential Decree No. 73, is that there is no freedom on the part of the people to exercise their right of choice because of the existence of martial law in our country. The same ground holds true as regards to the voting of the barangays on January 10 to 15, 1973. More so, because by General Order No. 20, issued on January 7, 1973, the President of the Philippines ordered "that the provisions of Section 3 of Presidential Decree No. 73 in so far as they allow free public discussion of the proposed constitution, as well as my order of December 17, 1972 temporarily suspending the effects of Proclamation No. 1081 for the purpose of free and open debate on the proposed constitution, be suspended in the meantime." It is, therefore, my view that voting in the barangays on January 10, 1973 was not free, and so this is one added reason why the results of the voting in the barangays should not be made the basis for proclamation of the ratification of the proposed Constitution.
It is my view, therefore, that Proclamation No. 1102 repugnant to the 1935 Constitution, and so it is invalid, and should not be given effect. The Constitution of 1972 proposed by the 1971 Constitutional Convention should be considered as not yet ratified by the people of this Republic, and so it should not be given force and effect.
It is urged by the Solicitor General, however, that the voting in the citizens assemblies was a substantial compliance with the provisions of Article XV of the 1935 Constitution. The Solicitor General maintains that the primary thrust of the provision of Article XV of the 1935 Constitution is that "to be valid, amendments must gain the approval of the majority recognition of the democratic postulate that sovereign resides in the people." It is not disputed that in a democratic sovereignty resides in the people. But the term "people" must be understood in its constitutional meaning, and they are "those persons who are permitted by the Constitution to exercise the elective franchise."8Thus, in Section 2 of Article VII of the 1935 Constitution, it is provided that "the President shall hold his office during a term of four years and, together with the Vice-President chosen for the same term, shall be elected by direct vote of the people..." Certainly under that constitutional provision, the "people" who elect directly the President and the Vice-President are no other than the persons who, under the provisions of the same Constitution, are granted the right to vote. In like manner the provision in Section 1 of Article II of the 1935 Constitution which says "Sovereignty resides in the people and all government authority emanates from them", the "people" who exercise the sovereign power are no other than the persons who have the right to vote under the Constitution. In the case of Garchitorena vs. Crescini9, this Court, speaking through Mr. Justice Johnson, said, "In democracies, the people, combined, represent the sovereign power of the State. Their sovereign authority is expressed through the ballot, of the qualified voters, in duly appointed elections held from time to time, by means of which they choose their officials for definite fixed periods, and to whom they entrust, for the time being, as their representatives, the exercise of the powers of government." In the case of Moya v. Del Fierro,10this Court, speaking through Mr. Justice Laurel, said, "As long as popular government is an end to be achieved and safeguarded, suffrage, whatever may be the modality and form devised, must continue to be the means by which the great reservoir of power must be emptied into the receptacular agencies wrought by the people through their Constitution in the interest of good government and the common weal. Republicanism, in so far as it implies the adoption of a representative type of government, necessarily points to the enfranchised citizen as a particle of popular sovereignty and as the ultimate source of the established authority." And in the case of Abanil v. Justice of the Peace of Bacolod,11this Court said: "In the scheme of our present republican government, the people are allowed to have a voice therein through the instrumentality of suffrage to be availed of by those possessing certain prescribed qualifications. The people, in clothing a citizen with the elective franchise for the purpose of securing a consistent and perpetual administration of the government they ordain, charge him with the performance of a duty in the nature of a public trust, and in that respect constitute him a representative of the whole people. This duty requires that the privilege thus bestowed exclusively for the benefit of the citizen or class of citizens professing it, but in good faith and with an intelligent zeal for the general benefit and welfare of the state. (U.S. v. Cruikshauk, 92 U.S. 588)..." There is no question, therefore, that when we talk of sovereign people, what is meant are the people who act through the duly qualified and registered voters who vote during an election that is held as provided in the Constitution or in the law.
The term "election" as used in Section 1 of Article XV of the 1935 Constitution should be construed along with the term "election" as used in the Provisions of Section 4 of the Philippine Independence Act of the Congress of the United States, popularly known as the Tydings-McDuffie Law (Public Act No. 127). Said Section 4 of the Tydings-McDuffie Law provides as follows:
Section 4. After the President of the United States certified that the constitution conforms with the provisions of this act, it shall be submitted to the people of the Philippine Islands for their ratification or rejection at an election to he held within months after the date of such certification, on a date to be fixed by the Philippine Legislature at which election, the qualified voters of the Philippine Islands shall have an opportunity to vote directly or against the proposed constitution and ordinances append thereto. Such election shall be held in such manner as may prescribed by the Philippine Legislature to which the return of the election shall be made. The Philippine Legislature shall certify the result to the Governor-General of the Philippine Islands, together with a statement of the votes cast, and a copy of said constitution ordinances. If a majority of the votes cast shall be for the constitution, such vote shall be deemed an expression of the will of the people of the Philippine Independence, and the Governor-General shall, within thirty days after receipt of the certification from the Philippine Legislature, issue a proclamation for the election of officers of the government of the Commonwealth of the Philippine Islands provided for in the Constitution...
It can safely be said, therefore, that when the framers of the 1935 Constitution used, the word "election" in Section I Article XV of the 1935 Constitution they had no other idea in mind except the elections that were periodically held in the Philippines for the choice of public officials prior to the drafting of the 1935 Constitution, and also the "election" mentioned in the Independence Act at which "the qualified voters of the Philippine Islands shall have an opportunity to vote directly for or against the proposed constitution..." It is but logical to expect that the framers of the 1935 Constitution would provide a mode of ratifying an amendment to that Constitution similar to the mode of ratifying the original Constitution itself.
It is clear therefore, that the ratification or any amendment to the 1935 Constitution could only be done by holding an election, as the term "election" was understood, and practiced, when the 1935 Constitution as drafted. The alleged referendum in the citizens assemblies — participated in by persons aged 15 years or more, regardless of whether they were qualified voters or not, voting by raising their hands, and the results of the voting reported by the barrio or ward captain, to the municipal mayor, who in turn submitted the report to the provincial Governor, and the latter forwarding the reports to the Department of Local Governments, all without the intervention of the Commission on Elections which is the constitutional body which has exclusive charge of the enforcement and administration of all laws, relative to the conduct of elections — was not only a non-substantial compliance with the provisions of Section 1 of Article XV of the 1935 Constitution but a downright violation of said constitutional provision. It would be indulging in sophistry to maintain that the voting in the citizens assemblies amounted to a substantial compliance with the requirements prescribed in Section 1 of Article XV of the 1935 Constitution.
It is further contended by the Solicitor General, that even if the Constitution proposed by the 1971 Constitutional Convention was not ratified in accordance with the provisions of Section 1 of Article XV of the 1935 Constitution, the fact is that after the President of the Philippines had issued Proclamation No. 1102 declaring that the said proposed Constitution "has been ratified by overwhelming majority of all the votes cast by the members of all the barangays (citizens assemblies) throughout the Philippines and had thereby come into effect" the people have accepted the new Constitution. What appears to me, however, is that practically it is only the officials and employees under the executive department of the Government who have been performing their duties apparently in observance of the provisions of the new Constitution. It could not be otherwise, because the President of the Philippines, who is the head of the executive department, had proclaimed that the new Constitution had come into effect, and his office had taken the steps to implement the provisions of the new Constitution. True it is, that some 92 members of the House of Representatives and 15 members of the Senate, of the Congress of the Philippines had expressed their option to serve in the interim National Assembly that is provided for in Section 2 of Article XVII of the proposed Constitution. It must be noted, however, that of the 15 senators who expressed their option to serve in the interim National Assembly only one them took his oath of office; and of the 92 members of the House of Representatives who opted to serve in the interim National Assembly, only 22 took their oath of office. The fact that only one Senator out of 24, and only 22 Representative out of 110, took their oath of office, is an indication that only a small portion of the members of Congress had manifested the acceptance of the new Constitution. It is in the taking of the oath of office where the affiant says that he swears to "support and defend the Constitution" that the acceptance of the Constitution is made manifest. I agree with counsel petitioners in L-36165 (Gerardo Roxas, et al. v. Alejandro Melchor, et al.) when he said that the members of Congress who opted to serve in the interim National Assembly did only ex abundante cautela, or by way of a precaution, making sure, that in the event the new Constitution becomes definitely effective and the interim National Assembly convened, they can participate in legislative work in the capacity as duly elected representatives of the people, which otherwise they could not do if they did not manifest their option to serve, and that option had to be made within 30 day from January 17, 1973, the date when Proclamation No. 110 was issued. Of course, if the proposed Constitution does not become effective, they continue to be members of Congress under the 1935 Constitution. Let it be considered that the members of the House of Representatives were elected in 1969 to serve a term which will yet expire on December 31, 1973. Whereas, of the Senators who opted to serve in the interim National Assembly, the term of some of them will yet expire on December 31, 1973, some on December 31, 1975, and the rest on December 31, 1977. Let if be noted that 9 Senators did not opt to serve in the interim National Assembly, and 18 members of the House of Representatives also did not opt to serve in the interim National Assembly.
Neither can it be said that the people have accepted the new Constitution. I cannot, in conscience, accept the reported affirmative votes in the citizens assemblies as a true and correct expression by the people of their approval, or acceptance, of the proposed Constitution. I have my serious doubts regarding the freedom of the people to express their views regarding the proposed Constitution during the voting in the citizens assemblies, and I have also my serious doubts regarding the truthfulness and accuracy of the reports of the voting in the citizens assemblies. This doubt has been engendered in my mind after a careful examination and study of the records of these cases, particularly with respect to the reports of the voting in the citizens assemblies. Perhaps, it may be said that the people, or the inhabitants of this country, have acquiesced to the new Constitution, in the sense that they have continued to live peacefully and orderly under the government that has been existing since January 17, 1973 when it was proclaimed that the new Constitution came into effect. But what could the people do? In the same way that the people have lived under martial law since September 23, 1972, they also have to live under the government as it now exists, and as it has existed since the declaration of martial law on September 21, 1972, regardless of what Constitution is operative — whether it is the 1935 Constitution or the new Constitution. Indeed, there is nothing that the people can do under the circumstances actually prevailing in our country today — circumstances, known to all, and which I do not consider necessary to state in this opinion. I cannot agree, therefore, with my worthy colleagues in the Court who hold the view that the people have accepted the new Constitution, and that because the people have accepted it, the new Constitution should be considered as in force, regardless of the fact that it was not ratified in accordance with the provisions of Section 1 of Article XV of the 1935 Constitution.
It is my honest view that the Constitution proposed by the 1971 Constitutional Convention has not come into effect. I do not say, however, that the proposed Constitution is invalid. To me, the validity of the proposed Constitution is not in issue in the cases before Us. What the petitioners assail is not the validity of the proposed Constitution but the validity of Presidential Proclamation No. 1102 which declares the proposed Constitution as having been ratified and has come into effect. It being my considered view that the ratification of the proposed Constitution, as proclaimed in Proclamation No. 1102, is not in accordance with the provisions of Section 1 of Article XV, of the 1935 Constitution, I hold that Proclamation No. 1102 is invalid and should not be given force and effect. Their proposed Constitution, therefore, should be considered as not yet validly ratified, and so it is not in force. The proposed Constitution may still be submitted to a plebiscite in conformity with Section 1 of Article XV of the 1935 Constitution. Incidentally, I must state that the Constitution is still in force, and this Court is still functioning under the 1935 Constitution.
I sincerely believe that the proposed Constitution may still be submitted to the people in an election or plebiscite held in accordance with the provisions of Section 1 of Article XV of the 1935 Constitution. In fact, as we have adverted to in this opinion, this was the mandate of Congress when, on March 16, 1967, it passed Resolution No. 2 calling a convention to propose amendments to the 1935 Constitution. The Court may take judicial notice of the fact that the President of the Philippines has reassured the nation that the government of our Republic since the declaration of martial law is not a revolutionary government, and that he has been acting all the way in consonance with his powers under the Constitution. The people of this Republic has reason to be happy because, according to the President, we still have a constitutional government. It being my view that the 1935 Constitution is still in force, I believe Congress may still convene and pass a law calling for an election at which the Constitution proposed by the 1971 Constitutional Convention will be submitted to the people their ratification or rejection. A plebiscite called pursuant to Section 1 of Article XV of the 1935 Constitution is an assurance to our people that we still have in our country the Rule of Law and that the democratic system of government that has been implanted in our country by the Americans, and which has become part of our social and political fabric, is still a reality.
The views that I have expressed in this opinion are inspired by a desire on my part to bring about stability in democratic and constitutional system in our country.ℒαwρhi৷ I feel that if this Court would give its imprimatur to the ratification of the proposed Constitution, as announced in Proclamation No. 1102, it being very clear that the provisions of Section 1 of Article XV of the 1935 Constitution had not been complied with, We will be opening the gates for a similar disregard of the Constitution in the future. What I mean is that if this Court now declares that a new Constitution is now in force because the members of the citizens assemblies had approved the said new Constitution, although that approval was not in accordance with the procedure and the requirements prescribed in the 1935 Constitution, it can happen again in some future time that some amendments to the Constitution may be adopted, even in a manner contrary to the existing Constitution and the law, and then said proposed amendment is submitted to the people in any manner and what will matter is that a basis is claimed that there was approval by the people. There will not be stability in our constitutional system, and necessarily no stability in our government. As a member of this Court I only wish to contribute my humble efforts to prevent the happening of such a situation in the future.
It appearing to me that the announced ratification of the proposed Constitution through the voting in the citizens assemblies is a clear violation of the 1935 Constitution, what I say in this opinion is simply an endeavor on my part to be true to my oath of office to defend and support the 1935 Constitution. I am inspired by what the great jurist and statesman, Jose P. Laurel, said:
Let our judges be as it were the vestal keepers of the purity and sanctity of our Constitution, and the protection and vindication of popular rights will be safe and secure in their reverential guardianship.1aшphi1
I only wish to help prevent, if I can, democracy and the liberties of our people from vanishing in our land, because, as Justice George Sutherland of the U. S. Supreme Court said:
(t)he saddest epitaph which can be carved in memory of a vanished liberty is that it was lost because its possessors failed to stretch forth a saving hand while yet there was time.
I concur fully with the personal views expressed by the Chief Justice in the opinion that he has written in these cases. Along with him, I vote to deny the motion to dismiss and give due course to the petitions in these cases.
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., L-35941; Sedfrey A. Ordoñez, et. al. v. The National Treasurer of the 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 on Elections, et al., L-35979.
2 See Tañada, et. al. v. Cuenco, L-10520, Feb. 28, 1951; 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.
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