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G.R. No. L-36142, March 31 1973

Concepcion, CJ.


On January 20, 1973, just two days before the Supreme Court decided the sequel of plebiscite cases,
Javellana filed this suit against the respondents to restrain them from implementing any of the provisions
of the proposed Constitution not found in the present 1935 Constitution. This is a petition filed by him
as a Filipino citizen and a qualified and registered voter and as a class suit, for himself and in behalf of
all citizens and voters similarly situated. Javellana also alleged that the President had announced the
immediate implementation of the new constitution, thru his Cabinet, respondents including.

Respondents are acting without or in excess of jurisdiction in implementing the said proposed
constitution upon ground the that the President as Commander-in-Chief of the AFP is without authority
to create the Citizens Assemblies; without power to approve proposed constitution; without power to
proclaim the ratification by the Filipino people of the proposed constitution; and the election held to ratify
the proposed constitution was not a free election, hence null and void.

Following that, petitioners prayed for the nullification of Proclamation No. 1102 and any order, decree,
and proclamation which have the same import and objective.


1. Whether or not the issue of the validity of Proclamation No. 1102 is a justiciable or political question,
and therefore non-justiciable.

2. Whether or not the constitution proposed by the 1971 Constitutional Convention has been ratified
validly conforming to the applicable constitutional and statutory provisions.

3. Whether or not the proposed Constitution has been acquiesced in (with or without valid ratification)
by the people.

4. Whether or not the petitioners are entitled for relief.

5. Whether or not the proposed Constitution by the 1971 Constitutional Convention in force.


First. To determine whether or not the new constitution is in force depends upon whether or not the
said new constitution has been ratified in accordance with the requirements of the 1935 Constitution. It
is well settled that the matter of ratification of an amendment to the constitution should be settled
applying the provisions of the constitution in force at the time of the alleged ratification of the old
constitution. The issue whether the new constitution proposed has been ratified in accordance with the
provisions of Article XV of the 1935 Constitution is justiciable as jurisprudence here and in the US (from
whom we patterned our 1935 Constitution) shall show.

Second. The Constitution does not allow Congress or anybody else to vest in those lacking the
qualifications and having the disqualifications mentioned in the Constitution the right of suffrage.

The votes of persons less than 21 years of age render the proceedings in the Citizens assemblies void.
Proceedings held in such Citizens Assemblies were fundamentally irregular, in that persons lacking the
qualifications prescribed in Article V Section 1 of the 1935 Constitution were allowed to vote in said
Assemblies. And, since there is no means by which the invalid votes of those less than 21 years of age
can be separated or segregated from those of the qualified voters, the proceedings in the Citizens
Assemblies must be considered null and void.

Viva voce voting for the ratification of the constitution is void. Article XV of the 1935 Constitution
envisages with the term "votes cast" choices made on ballots not orally or by raising hands by the
persons taking part in plebiscites. This is but natural and logical, for, since the early years of the
American regime, we had adopted the Australian Ballot System, with its major characteristics, namely,
uniform official ballots prepared and furnished by the Government and secrecy in the voting, with the
advantage of keeping records that permit judicial inquiry, when necessary, into the accuracy of the
election returns.

The plebiscite on the constitution not having been conducted under the supervision of COMELEC is
void. The point is that, such of the Barrio Assemblies as were held took place without the intervention
of the COMELEC and without complying with the provisions of the Election Code of 1971 or even of
those of Presidential Decree No. 73. The procedure therein mostly followed is such that there is no
reasonable means of checking the accuracy of the returns filed by the officers who conducted said
plebiscites. This is another patent violation of Article X of the 1935 Constitution which form part of the
fundamental scheme set forth in the 1935 Constitution, as amended, to insure the "free, orderly, and
honest" expression of the people's will. For this, the alleged plebiscite in the Citizens Assemblies is null
and void, insofar as the same are claimed to have ratified the revised Constitution.

Third. Proclamation No. 1102 is not an evidence of ratification. Article X of the 1935 Constitution places
COMELEC the "exclusive" charge to the "the enforcement and administration of all laws relative to the
conduct of elections," independently of the Executive. But there is not even a certification by the
COMELEC in support of the alleged results of the citizens assemblies relied upon in Proclamation No.
1102. Also, on January 17, 1973 neither the alleged president of the Federation of Provincial or City
Barangays nor the Department of Local Governments had certified to the President the alleged result
of the citizens' assemblies all over the Philippines. The citizens assemblies did not adopt the proposed
constitution. It is to my mind a matter of judicial knowledge that there have been no such citizens
assemblies in many parts of Manila and suburbs, not to say, also, in other parts of the Philippines.

Fourth. The Court is not prepared to concede that the acts the officers and offices of the Executive
Department, in line with Proclamation No. 1102, connote recognition of or acquiescence to the proposed

A department of the Government cannot recognize its own acts. Recognition normally connotes the
acknowledgment by a party of the acts of another. Individual acts of recognition by members of
Congress do not constitute congressional recognition, unless the members have performed said acts
in session duly assembled. This is a well-established principle of Administrative Law and of the Law of
Public Officers. The compliance by the people with the orders of martial law government does not
constitute acquiescence to the proposed Constitution. Neither does the Court prepared to declare that
the people's inaction as regards Proclamation No. 1102, and their compliance with a number of
Presidential orders, decrees and/or instructions, some or many of which have admittedly had salutary
effects, issued subsequently thereto, amounts to a ratification, adoption or approval of said
Proclamation No. 1102. The intimidation is there, and inaction or obedience of the people, under these
conditions, is not necessarily an act of conformity or acquiescence.

As regards the applicability to these cases of the "enrolled bill" rule, it is well to remember that the same
refers to a document certified to the President for his action under the Constitution by the Senate
President and the Speaker of the House of Reps, and attested to by the respective Secretaries of both
Houses, concerning legislative measures approved by said Houses. Whereas, Proclamation No. 1102
is an act of the President declaring the results of a plebiscite on the proposed Constitution, an act which
Article X of the 1935 Constitution denies the executive department of the Government.

In all other respects and with regard to the other respondent in said case, petitions therein should be
given due course, there being more than prima facie showing that the proposed Constitution has not
been ratified in accordance with Article XV of the 1935 Constitution, either strictly, substantially, or has
been acquiesced in by the people or majority thereof; that said proposed Constitution is not in force and
effect; and that the 1935 Constitution is still the Fundamental Law of the Land, without prejudice to the
submission of said proposed Constitution to the people at a plebiscite for its ratification or rejection in
accordance with Articles V, X and XV of the 1935 Constitution and the provisions of the Revised Election
Code in force at the time of such plebiscite.

Fifth. Four (4) members of the Court, namely, Justices Barredo, Makasiar, Antonio and Esguerra hold
that it is in force by virtue of the people's acceptance thereof; 4 members of the Court, namely, Justices
Makalintal, Castro, Fernando and Teehankee cast no vote thereon on the premise stated 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 2 members of the Court, namely, Justice Zaldivar and myself
voted that the Constitution proposed by the 1971 Constitutional Convention is not in force; with the
result, there are not enough votes to declare that the new Constitution is not in force.