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University of the Philippines College of Law

Constitutional Law I | Prof. Anthony Charlemagne Yu

Case Digest

CASE: G.R. No. L-36142

CASE TITLE: Javellana vs. The Executive Secretary

PONENTE: Chief Justice Roberto Concepcion

Written by: Brandon P. De Luna

Facts

March 16, 1967 Congress passed Resolution no. 2, which was amended by Resolution no. 4,

calling for a Constitutional Convention to propose amendments to the 1935 Constitution of the

Philippines. Resolution no. 2 was implemented by Republic Act No. 6132.

While Convention is in session, President Ferdinand E. Marcos declared the existence of the

state of martial law in the entire Philippines on September 21, 1972 through Proclamation No.

1081.

November 29, 1972 the Constitutional Convention approved the draft Constitution and

submitted it to the President. President Ferdinand Marcos issued Presidential Decree No. 73

which submits the draft Constitution to a ratification process from the Filipino people.

Charito Planas filed a writ of certiorari to the Supreme Court arguing that PD No. 73 has no full

force of law and such powers are exclusively given to Congress.

President Marcos issued General Order 20 postponing the said plebiscite from its original date

on January 15, 1973. This is to allegedly promote open debate about the draft Constitution. The

Court deemed to refrain on the issue due to the said postponement

President Marcos issued Presidential Decree No. 86 on December 23, 1972 creating the

Citizens Assemblies (Barangays) as an avenue for the government to consult on certain public

questions.

On January 13, 1973, the Court issued a resolution requiring the respondents in said three cases

to comment on said urgent motion and manifestation not later than Tuesday noon, January 16,

1973. However, while the case is being deliberated, the Secretary of Justice submitted to the

Court Proclamation No. 1012 announcing that more than 95% of the members of Citizens

Assemblies approved the 1973 Constitution of the Philippines.

Given the existence of Proclamation No. 1012, the Planas case was declared as moot and

academic.

Petitioner Josue Javellana filed a case against the Executive Secretary and the Secretary of

National Defense, Justice, and Finance, to restrain them from implementing the provisions of

the 1973 Constitution that are not found in the 1935 Constitution.

Javellana argued that President Marcos does not have the power to create citizens assemblies,

call for a plebiscite for such purpose, and the election conducted should be deemed as null and

void as it did not satisfy the constitutional requirements prescribed by the 1935 Constitution.

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Issues

Whether or not the issue of the validity of Proclamation No. 1102 involves a justiciable or

political question.

Whether or not the proposed new or revised 1973 Constitution been ratified in accordance with

the provisions of Article XV of the 1935 Constitution.

Whether or not the people acquiesced in the proposed Constitution.

Whether or not the parties are entitled to any relief.

Whether or not the 1973 Constitution is in force.

Ruling of the Court

1. On the first issue involving the political question doctrine, Justices Makalintal, Zaldivar, Castro,

Fernando, Tehankee, and Concepcion, or six members of the Court hold that Proclamation No.

1102 is a justiciable and non-political question.

2. On the second issue regarding the validity of the ratification, Justices Makalintal, Zaldivar,

Castro, Fernando, Tehankee, and Concepcion, or six members of the Court hold that the

Constitution of 1973 was not properly ratified in accordance with the provisions of Article XV of

the 1935 Constitution.

3. On the third issue of quiescence by the Filipino people, no majority vote has been reached by

the Court.

a. Four of its members, namely, Justice Barredo, Makasiar, Antonio, and Esguerra held that

the people have accepted the 1973 Constitution.

b. Two members of the Court, Justice Zaldivar and Concepcion hold that there can be no

free expression, and there has even been no expression, by the people qualified to vote

all over the Philippines, of their acceptance or repudiation of the proposed Constitution

under Martial Law.

c. Three of its members, express the lack of knowledge and/or competence to rule on the

question.

4. On the fourth question, six members of the Court, namely Justice Makalintal, Castro, Barredo,

Makasiar, Antonio, and Esguerra voted to DISMISS the petition; under the grounds that the

effectivity of the said Constitution is the basic and ultimate question involved. Four members of

the Court, namely, Zaldivar, Fernando, Tehankee, and Concepction voted to give due course to

the petition and deny the respondents petition to dismiss the Javellana petition.

5. On the fifth question whether the 1973 Constitution is in force:

a. Four members of the Court, namely Barredo, Makasiar, Antonio, and Esguerra hold that

it is in force by the virtue of the peoples acceptance to the said charter.

b. Four members of the Court, namely Makalintal, Castro, Fernando, and Tehankee cast no

vote thereon on the premise that they cannot state with judicial certainty whether or

not the people have accepted the Constitution.

c. Two members of the Court, namely Zaldviar and Concepcion voted that the Constitution

made by the 1971 Convention is not in force. Resulting that there are not enough votes

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to declare that the Constitution is not in force. Therefore, there is no further judicial

obstacle to the new Constitution being considered in force and effect.

Ratio

On the First Issue

The manner on the process of ratifying the Constitution is a justiciable one and cannot be

considered a political question. Barredo notes that the Court may inquire into the question of

whether or not the manner of ratification is in line with the Constitution.

By people the intent of the framers of the 1935 Constitution are those who are eligible to vote

in line with the requirements prescribed by the 1935 Constitution. The decree of President

Marcos including 15 year-olds in the plebiscite is an abrogation of the Constitutional

requirement.

Political questions are described as questions that are responded by the Filipino people in the

sovereign capacity or delegated to the other two branches of government. The primary essence

of this doctrine is the wisdom of the act not its validity.

On the Second Issue

As stated in the previous explanation, the decision of the Citizens Assemblies is inconsistent

with the constitutional requirement on the right to suffrage. In the issue of citizens assemblies,

it did not follow the provision on the manner of voting (through secret ballot), COMELEC

supervision, and the age of legitimate voters.

On the Third Issue

The existence of the state of martial law prevented justices to objectively ascertain whether or

not the Constitution was acquiesced by the people. As a matter of fact, the Court is heavily

divided on the said issue.

On the Fourth Issue

Under the assumption that the people had adopted the Constitution, a majority of the Justices

believe that it is the intent of the sovereign Filipino people to adopt the Constitution thus

dismissing the petition of Josue Javellana under the grounds of political question doctrine.

Other justices believe that the Court has the right to review the manner of adoption of the 1973

Constitution.

On the Fifth Issue

The Court is unsure which required number of majority votes should be followed. Under the

1935 Constitution, 6 votes are necessary whereas the 1973 Constitution requires 8 votes. Due to

the failure to reach a quorum, the Court moved that there are no judicial obstacles in adopting

the 1973 Constitution.