Javellana v. Executive Secretary (50 SCRA 30 [March 31, 1973]) I. FACTS

1. This is a sequel of the plebiscite cases decided by the Supreme Court on June 22, 1973

2. On Jan. 20, 1973, Petitioner prayed before the Court to restrain respondents from implementing any of the provisions of the 1973 Constitution not found in the 1935 Constitution.

II. ISSUES Chief Justice Concepcion’s Personal Opinion

A. Alleged academic futility of further proceedings of this case. 1. Respondents Puyat and Roy and Solicitor General contended that in

view of the Court’s decision in the plebiscite cases, this case is academic and contending further that considering under these circumstances, it seems probable that the Court can muster the 8 votes needed to grant the petition.

2. Justice Barredo announced publicly that he was willing to be convinced that his previous opinion in the plebiscite cases should be reconsidered and changed. In effect, he declared that he had an open mind for the cases at bar and not necessarily adhere to the same opinion in said plebiscite cases.

3. As to the assumption of the respondents that the Court needs 8 votes to grant petition, this is misplaced as Art. 8 Sec. 10 of the 1935 Constitution applies only to treaties and laws and not to presidential issuances such as the Proclamation 1102 in question. Thus, a mere majority of the Court (6 votes) is enough to grant petition.

B. Does the issue on the validity of Proclamation 1102 partake of the nature of a political, and hence, non-justiciable? HELD: NO. 1. In a long line of cases the Court held that the said issue is inherently

and justiciably liable. 2. Under the principle of separation of powers along with the system of

checks and balances, it is provided that within its own sphere but within such sphere each governmental department is supreme and independent of the others, and each is devoid of authority to encroach upon and pass upon the wisdom of the acts of the other departments PROVIDED that such acts are within the area by the Constitution.

3. The system of checks and balances each department is vested with some powers to forestall, restrain, or arrest a possible or actual misuse or abuse of powers by the other departments.

4. The Judicial Power vested in the Supreme Court covers not only to decide judiciable controversies between private entities but also between a private entity and an officer/branch of government or between two officers/branch of government when the latter officer/branch of government is charged with acting without jurisdiction or in excess thereof or violation of law.

5. Therefore, when the grant of power is qualified, conditional, or subject to limitations, the issue is legality or validity NOT wisdom; hence, it is the duty and power of the Court to determine whether another branch of government has kept within its Constitutional limit.

C. Has the proposed new or revised Constitution been ratified conformably to said Art. 15 of the 1935 Constitution? 1. What is the procedure prescribed by the 1935 Constitution for its

amendment? a. Amendments be proposed either by Congress or by a convention

called for that matter by ¾ votes of all Members of Congress voting separately but in joint session.

b. Such amendments be submitted to the people for their ratification at an election

c. Such amendments be approved by a majority of the votes cast in said election

*Compliance with the first requirement is virtually conceded

2. Has the contested draft of the new revised Constitution been submitted to the people for their ratification conformably to Art. 25 of the Constitution? HELD: NO. a. Art. 5 of the 1935 Constitution declares who can exercise the right

of suffrage so that those lacking the qualifications therein prescribed cannot exercise such right. a.1. Voting requirements for plebiscite and electing public officers are the same as lessening the requirements for the former would be inconceivable as its concerns a more important issue, the

revision of a Constitution and it demands a certain level of maturity as the Constitution affect the whole nation. a.2. Conceded that the no. of people who allegedly voted at the Citizen’s Assembly that deemed ratified the 1973 Constitution far exceeded the no. of registered voters under the Election Code in Jan. 1973. a.3. Thus, it is clear that the proceedings in the said Citizen’s Assembly were fundamentally irregular in that persons lacking the qualifications prescribed in Art. 5 Sec 1 of the Constitution were allowed to vote in said Assemblies. a.4. The said proceedings must be declared null and void as there is no means to segregate the valid votes from the invalid one. a.5. Moreover, viva voce voting in the said Assemblies was and is null and void ab initio as it failed to meet the requirement of “votes cast” by which The Court defined must be in writing in the ballot and protected by secrecy.

b. The plebiscite held through Barrio Assemblies was without

intervention and supervision of the COMELEC; held under the supervision of the Exec. Dept. sought to be excluded by therefrom by Art. 10, of the 1935 Constitution; the procedure mostly followed did not have a means of checking the accuracy of the returns filed by the officers who conducted the plebiscites è all these acts constitute a patent violation of the Constitution to ensure a “free, orderly, and honest elections”. These renders null and void the proceedings of the Citizens Assemblies.

D. Has the proposed Constitution aforementioned been approved by a

majority of the people in the Citizens’ Assemblies allegedly held throughout the Philippines HELD: NO. 1. No evidence to support the basis of Proclamation 1102, hence not

even prima facie evidence, such as: a. The argument that President of barangay associations reported to the President the actual voting results b. No certification from COMELEC of the alleged voting results.

2. Contention that Proclamation 1102 is conclusive upon the Courts is clearly untenable since acts of the Executive and Legislature could be possibly annulled or invalidated by Courts of Justice. 3. Time is insufficient to comply with pre-electoral requirements such as giving the people ample time to study the Constitution they are going to approve or reject.

4.Questions 7 and 8 of the proposed questions to the Citizens Assemblies strongly indicates that the proceedings therein did not partake of the nature of a plebiscite for the ratification of the proposed Constitution

5.There were reports that the Citizens Assemblies were consultation in shaping government policies not an election for ratification.

E. Have the people acquiesced the proposed Constitution?

HELD: NO. 1. With respect to the acts of the officers/offices under the Executive

Branch, their acquiescence cannot legally or normally be deduced because they are bound to obey and act in conformably with the orders of the President, under whose control they are. They simply have no choice

2. As to the support from the majority of the members of Congress, this is invalid since this was not done under a session duly assembled, a well-established principle of Admin. Law.

3. As for the people, they were assumed under duress because of the imposition of Martial Law. It is but natural for them to be silent on the matter that is without opposition without inviting/risking the application of Martial Law to them.

4. Finally, going back to the argument that the 1973 Constitution was not constitutionally and statutorily ratified, there can be no acquiescence to speak of.

F. Are the Parties entitled to relief? 1. For mandamus prayed against against Puyat and Roy, based on the

separation of powers, the Judiciary will not issue such writ to the head of a co-equal branch department.

2. In all others, YES, there being more than prima facie evidence showing that the 1973 Constitution has not been ratified in

accordance with the 1935 Constitution; has not been acquiesced by the People; and said proposed Constitution is not in force and the 1935 Constitution is still the Fundamental Law of the Land.

Consolidated Court Opinion Consolidated Issues:

1. Is the issue of the validity of Proclamation 1102 a justiciable, or political and therefore non-justiciable question?

2. Has the Constitution proposed by the 1971 Constitutional Convention been ratified validly (with substantial, if not strict, compliance) conformably to the applicable constitutional and statutory provisions?

3. Has the aforementioned proposed Constitution been acquiescedin (with or without valid ratification) by the people?

4. Are petitioners entitled to relief? 5. Is the aforementioned proposed Constitution in force?

Makalintal and Castro, JJ. 1. HELD: YES

a. Finding the ivalidity of the ratification and Proclamation 1102 requires no more than interpreting and applying the Constitution and related statutory laws. No question of wisdom or policy is involved, thus justiciable.

2. HELD: NO

a. Voting in Citizen Assemblies not in accord with the 1935 Constitution (Article 25, Sec. 20) and Election Code of 1971.

b. Citizen Assemblies violated the Constitutional rule on who are qualified to vote by including persons disqualified to vote.

c. Essential features of the election process are not followed: writing on official ballot; secrecy; rules for counting votes, tabulation, and reporting the same; COMELEC which is the constitutional body tasked with elections took no part thereof.

d. Circumstances surrounding the event/ratification by Assemblies could NOT have understood the referendum to be for the ratification of the

Constitution but only for the expression of their views on consultative basis.

3. HELD:

a. We have no means of knowing to the point of judicial certainty to answer the question

4. HELD: NO

a. Reasoning based on reasoning on #3 and #5 5. HELD: ABSTAIN

a. Reasoning based on the third issue. Barredo, J. 1. HELD: QUALIFIED YES

a. Inasmuch as it is claimed that there has been approval by the people, the Court may inquire if there has actually been such approval. If there was, the Court must respect the people’s will and back-off. If not, the Court may determine factually and legally whether or not Art. 25, of the 1935 Constitution has been complied with.

2. HELD: QUALIFIED

a. Technically, the Citizens Assembly proceedings fall short of the requirements

b. Politically, which counts after all, YES 3. HELD: YES

a. This is a political and hence beyond the Court and having no means of acquiring information to the contrary, I have no alternative but to rely on Proclamation 1102

4. HELD: NO (no reason given)

5. HELD: Yes

a. Due to people’s acceptance Makasiar, J. 1. HELD: No

a. Once it has been acquiesced in by the people and by functionaries of the government, it is beyond judicial review regardless of the modality of submission or ratification or adoption.

b. The people’s acceptance cures any defects in the procedure used. c. 1971 Constitutional Convention is a co-equal branch of government;

thus its acts are protected by the separation of powers. 2. HELD: Yes

a. Art. 25, 1935 Constitution does not prescribe any procedure for the ratification of the 1973 Constitution; hence, there is no violation to speak of.

b. Alleging the irregularities of ratification imposes limitation on the sovereign people who have the sole power of ratification.

c. Marcos has legislative powers under martial law hence 1102 is valid. 3. HELD: Yes

a. Overwhelming proof from the people, instrumentalities of government, foreign dignitaries; no adverse reaction from UN

4. HELD: No 5. HELD: Yes

a. Due to people’s acceptance Zaldivar, J. 1. HELD: Yes.

a. Same reasons as the CJ 2. HELD: No.

a. The original framers of the 1935 Constitution intended for the elections necessary to ratify amendments to the Constitution to be elections where public officials are elected, not a referendum in citizens’ assemblies.

3. HELD: No.

a. Only a few Congressmen took oaths in office under the supposedly ratified new Constitution; a manifestation that only a small part of Congress accepted the new Constitution. There is also doubt that people were free in expressing their votes during the Citizen’s Assemblies under Martial Law.

4. HELD: No.

a. There is still a question on the validity of Proclamation 1101 as having the new Constitution ratified.

5. HELD: Yes

a. Give due course to the petition. Fernando, J. 1. HELD: Yes.

a. The validity of Proclamation 1102 pertains to the Constitution of which the Supreme Court has jurisdiction over.

2. HELD: No.

a. The plebiscite was not done in conformity with the election code.

3. HELD: Cannot be confirmed.

a. It is difficult to ascertain what was on people’s minds due to the absence of the freedom to debate which would give people more information regarding to their choices.

4. HELD: Yes

a. Give due course to the petition. Teehankee, J. 1. HELD: Yes.

a. The Constitution has bestowed upon the SC the duty to exercise jurisdiction on matters which pertain to the Constitution.

2. HELD: No.

a. The requirements for the ratification of the plebiscite have not complied with both the 1935 and the proposed Constitutions.

3. HELD: Cannot be confirmed.

a. As the people were not given ample opportunity to mull over the original provisions and compare them with the proposed amendments.

4. HELD: Yes.

a. Give due course to the petition. 5. HELD: Abstain

a. Based on the answer in #3 Antonio, J. 1. HELD: No.

a. Pres. Marcos has unlimited discretionary power granted by the emergency powers granted to him when he declared Martial Law. When he made Proclamation 1102, he thus acted within the scope of his power and did not violate the Constitution. The petition seeks to nullify a Constitution that is already in effect.

2. HELD: Yes

a. The qualifications of the ratification of a plebiscite according to the 1935 Constitution only refers to amending it. Replacing the whole constitution does not constitute an amendment but a revision, which the 1935 Constitution has no rules regarding such action.

3. HELD: Yes

a. The martial law regime did not contain oppressive features as the government still functioned through its civilian officials, therefore the people have ratified it out of their own accord.

4. HELD: Yes.

a. The people have already ratified the Constitution.

5. HELD: No, petition dismissed. Accordingly, by vote of 6-4, ALL PETITONS DISMISSED. This being the vote of the majority, there is no further judicial obstacle to the new Constitution being considered in force and effect.