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JOSUE JAVELLANA,vs.THE EXECUTIVE

SECRETARY50 SCRA 30

G.R. No. L-36142 March31, 1973


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G.R. No. L-35149 June 23,

1988

EDUARDO QUINTERO, petitioner,

vs.

THE NATIONAL BUREAU OF

INVESTIGATION, HON. ELIAS

ASUNCION, Judge of the Court of

First Instance of Manila, and HON.

JOSE FLAMINIANO, City Fiscal ofPasay City, respondents.

Quintero delivered to the Con-Con the aggregate amount of

the "payola" he himself had received, the amount of eleven

thousand one hundred fifty pesos (P11,150.00) in cash,preserved intact for delivery to the proper officials of the

Con-Con


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Our plebiscites

With this in mind, I put together this chart, which lists the plebiscites on

constitutional amendments that took place from 1935 to 1987. As a kind of frame

of reference, Ive also included similar data concerning presidential elections that

took place soon before or after these plebiscites. And then, the figures, whenavailable, for total registered voters and the figures for our national population as

a whole.


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1973-1984: The New Society Plebiscites

As for the Marcos plebiscites from 1973 to 1984, they were conducted in a

manner entirely different from the 1935-1967 plebiscites and that held in 1987. So

they are not part of a piece. What Marcos was trying to capitalize on was the

familiarity of the public with referenda as a democratic process.

Marcoss political problem was that his 1969 term expired on December 30, 1973;

and that, ideally, the extinction of the 1935 Constitution should be accomplished

by means of the process set out in it. An additional problem arose, when some

senators tried to organize a ruckus in Congress, in time for the 1973 Regular

Session scheduled to begin on January 22, 1973.


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The Constitutional Convention had approved a draft acceptable to President

Marcos in late 1972 and presented it to him, formally, on December 1, 1972; hed

accordingly issued a proclamation calling for a plebiscite to ratify or reject the

new Constitution.

It seems that Marcos got wind of the possibility public opinion had swung against

ratification. So if he held a plebiscite, he might lose; and win or lose, Congress or

at least the Senate if not the House, seemed hell-bent on challenging martial law

when it resumed session on January 22; that challenge, among other things,

might stiffen the spine of the Supreme Court. So something had to be done beforeJanuary 22.


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This concern is reflected in his December 23, 1972 announcement postponing the

plebiscite; statements in December 29 in the state-controlled media warning of a

constitutional crisis if senators insisted on convening in January, 1973; then, his decree

creating Barangay Assemblies on January 5; then, having created a new mechanism,

his January 7 order stating that the plebiscite originally scheduled for January 15 might

be held on February 19 or March 15 as alternate dates; in other words, he postponedthe only option, a plebiscite, to create two tracks, the barangay or citizens assembly and

plebiscite paths.

Prior to martial law, Marcos had been admiringly described by his critics as engaging in

Ju-Jitsu, and he handled the possibility that Congress would convene, under the

provisions of the 1935 Constitution, and the difficulty represented by a plebiscite in theold manner leading to the rejection of the new constitution, by scrapping the rules.


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He lowered the voting age from 18 to15

and illiterates were allowed to vote. From

January 10 to 15, a series of citizens

assemblies were held, in lieu of aplebiscite in the manner specified by the

1935 Constitution. The results of the

January 10-15, 1973 were:

Question One: Whether to adopt the

proposed (1973) Constitution:

14,976,561 (90.67%) Yes

743,869 (9.33%) No

Question Two: Whether the public still

wanted a plebiscite to be called to ratify the

Constitution:

14,298,814 No


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With total valid votes at 15,720,430 (compare this figure with the 1967 plebiscite and

1969 presidential election figures; the Supreme Court itself, in its decision on the

ratification of the 1973 Constitution, mentioned the total number of registered voters

21 years of age or over in the entire Philippines, available in January 1973, was less

than 12 million: this suggests the boost in voting numbers provided by relaxing voting

requirements such as age or literacy; except that Marcos, as a shrewd and self-

confident strategist, didnt rely on subordinates to scrounge around for a will I win by 1

million margin, but rather, created an infintely safer margin for himself of nearly 3 million

votes!).

Two days later (January 17), President Marcos certified that the new constitution had

been ratified. And then, he padlocked Congress, which he argued, was now defunct. All

that was left was for the Supreme Court to declare the process valid. This, the Supreme

Court did in Javellana v. Executive Secretary on March 31, 1973. Chief Justice

Concepcion wrote the decision, stated his objections, and retired ahead of schedule inmuted protest.


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SUPREME COURT JUSTICES

FELIX MAKASIAR -law sch oo l

classmate President Ferdinand

E. Marco s

Claudio Teehankee

ROBERTO R. CONCEPCION

QUERUBI MAKALINTAL

CALIXTO ZALDIVAR

FRED RUIZ CASTRO

ENRIQUE FERNANDOANTONIO BARREDO

SALVADOR ESGUERRA

FELIX ANTONIO


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1. Is the issue ofthe validity of

Proclamation No. 1102a justiciable or political

and therefore non-

justiciable question?


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Six members of the court held that the issue of the validity of

Proclamation No. 1102 presents a justiciable and non-political question.

Two of whom did not vote squarely on this question, but only, inferentially, in

their discussion of the second question.

One justice qualified his vote stating that, inasmuch as it is claimed that therehas been approval by the people, the court may inquire into the question of

whether or not there has actually been approval and in the affirmative, the

court should keep its hands off out of respect to the peoples will, but in the

negative, the court may determine from both factual and legal angles whether

or not Article XV of the 1935 Constitution has been complied with.

Three members held that the issue is political and beyond the ambit ofjudicial inquiry.


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2. Has the Constitution proposed bythe 1971 Constitutional Convention been

ratified validly(with substantial, if not

strict, compliance) conformably to the

applicable constitutional and statutory

provisions?


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Six members of the Court also

hold that the Constitution proposed by

the 1971 Constitutional Convention was

not validly ratified in accordance with

Article XV, section 1 of the 1935

Constitution, which provides only oneway for ratification, i.e., "in an election

or plebiscite held in accordance with

law and participated in only by qualified

and duly registered voters." One justice

qualified his vote, stating that "(A)s to

whether or not the 1973 Constitutionhas been validly ratified pursuant to

Article XV, I still maintain that in the

light of traditional concepts regarding

the meaning and intent of said Article,

the referendum in the Citizens'

Assemblies, specially in the manner the

votes therein were cast, reported andcanvassed, falls short of the

requirements thereof. In view, however,

of the fact that I have no means of

refusing to recognize as a judge that

factually there was voting and that the

majority of the votes were for

considering as approved the 1973

Constitution without the necessity of

the usual form of plebiscite followed in

past ratifications, I am constrained to

hold that, in the political sense, if not in

the orthodox legal sense, the peoplemay be deemed to have cast their

favorable votes in the belief that in

doing so they did the part required of

them by Article XV, hence, it may be

said that in its political aspect, which is

what counts most, after all, said Articlehas been substantially complied with,

and, in effect, the 1973Constitution has beenconstitutionally ratified." Threemembers of the Court hold thatunder their view there has beenin effect substantialcompliance with theconstitutional requirements forvalid ratification.


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3. Has the

aforementioned proposedConstitution acquiesced in

(with or without valid

ratification) by the people?


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No, majority vote has beenreached by the Court. Fourmembers of the court hold that"the people have already acceptedthe 1973 Constitution."Twomembers of the Court hold thatthere can be no free expression,and there has even been noexpression, by the people qualifiedto vote all over the Philippines, of

their acceptance or repudiation ofthe proposed Constitution under

Martial Law. Justice Fernando

states that "(I)f it is conceded that

the doctrine stated in some

American decisions to the effect

that independently of the validityof the ratification, a new

Constitution once accepted

acquiesced in by the people must

be accorded recognition by the

Court, I am not at this stage

prepared to state that such

doctrine calls for application in

view of the shortness of time that

has elapsed and the difficulty ofascertaining what is the mind of

the people in the absence of the

freedom of debate that is a

concomitant feature of martial

law." Three members of the Court

express their lack of knowledgeand/or competence to rule on the

question. They stated that "Under a

regime of martial law, with the free

expression of opinions through the

usual media vehicle restricted,

(they) have no means of knowing,to the point of judicial certainty,

whether the people have accepted

the Constitution."


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Are

PetitionersEntitled to

Relief?


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On the fourthquestion of relief, six(6) members of theCourt, namely,Justices Makalintal,Castro, Barredo,Makasiar, Antonio andEsguerra voted toDISMISS the petition.


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Justice Makalintal andCastro so voted on thestrength of their view thatThe 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 thereforebeyond the competence of

this Court, are relevant and

unavoidable.


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Four (4) members ofthe Court, namely,Justices Zaldivar,Fernando,Teehankee andmyself voted todeny respondentsmotion to dismissand to give duecourse to thepetitions.

ARE PETIONERS ENTITLEDTO RELIEF?


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5. Is theaforementioned

proposed

Constitution in

force?


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Four members of the Court hold

that it is in force by virtue of the

people's acceptance thereof;

Four members of the Court cast

no vote thereon on the premisestated in their votes on the third

question that they could not state

with judicial certainty whether the

people have accepted or not

accepted the Constitution; and

Two members of the Court votedthat the Constitution proposed by

the 1971 Constitutional

Convention is not in force;

with the result that there are not

enough votes to declare that thenew Constitution is not in force.

ACCORDINGLY, by virtue of themajority of six (6) votes ofJustices Makalintal, Castro,Barredo, Makasiar, Antonio andEsguerra with the four (4)dissenting votes of the ChiefJustice and Justices Zaldivar,Fernando and Teehankee, all theaforementioned cases are herebydismissed. This being the vote ofthe majority, there is no furtherjudicial obstacle to the newConstitution being considered inforce and effect.

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