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Case Digest: Javellana v. Executive Secretary, G.R. No. 36142, 31 March 1973

Javellana v. Executive Secretary, G.R. No. 36142, 31 March 1973

TOPIC: Political Question or Justiciable Controversy


On March 16, 1967, Congress of the Philippines passed Resolution No. 2, which was amended by Resolution No. 4 of said body, adopted on June 17, 1969, calling a Convention to propose amendments to the Constitution of the Philippines. Said Resolution No. 2, as amended, was implemented by Republic Act No. 6132, approved on August 24, 1970, pursuant to the provisions of which the election of delegates to said Convention was held on November 10, 1970, and the 1971 Constitutional Convention began to perform its functions on June 1, 1971. While the Convention was in session on September 21, 1972, the President issued Proclamation No. 1081 placing the entire Philippines under Martial Law. On November 29, 1972, the Convention approved its Proposed Constitution of the Republic of the Philippines. The next day, November 30, 1972, the President of the Philippines issued Presidential Decree No. 73, “submitting to the Filipino people for ratification or rejection the Constitution of the Republic of the Philippines proposed by the 1971 Constitutional Convention, and appropriating funds therefor,” as well as setting the plebiscite for said ratification or  rejection of the Proposed Constitution on January 15, 1973.

In view of these events relative to the postponement of the aforementioned plebiscite, the Court deemed it fit to refrain, for the time being, from deciding the aforementioned cases, for neither the date nor the conditions under which said plebiscite would be held were known or announced officially. Then, again, Congress was, pursuant to the 1935 Constitution, scheduled to meet in regular session on January 22, 1973, and since the main objection to Presidential Decree No. 73 was that the President does not have the legislative authority to call a plebiscite and appropriate funds therefor, which Congress unquestionably could do, particularly in view of the formal postponement of the plebiscite by the President — reportedly after consultation with, among others, the leaders of Congress and the Commission on Elections — the Court deemed it more imperative to defer its final action on these cases.

“In the afternoon of January 12, 1973, the petitioners in Case G.R. No. L-35948 filed an “urgent motion,” praying that said case be decided “as soon as possible, preferably not later than January 15, 1973.” It was alleged in said motion, inter alia:

“6. That the President subsequently announced the issuance of Presidential Decree No. 86 organizing the so-called Citizens Assemblies, to be consulted on certain public questions [Bulletin Today, January 1, 1973];

Josue Javellana filed Case G.R. No. L-36142 against the Executive Secretary and the Secretaries of National Defense, Justice and Finance, to restrain said respondents “and their subordinates or agents from implementing any of the provisions of the propose Constitution not found in the present Constitution” — referring to that of 1935. The petition therein, filed by Josue Javellana, 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,” was amended on or about January 24, 1973. After reciting in substance the facts set forth in the decision in the plebiscite cases, Javellana alleged that the President had announced “the immediate implementation of the New Constitution, thru his Cabinet, respondents including,” and that the latter “are acting without, or in excess of jurisdiction in implementing the said proposed Constitution” upon the ground: “that the President, as Commander-in-Chief of the Armed Forces of the Philippines, is without authority to create the Citizens Assemblies”; that the same “are without power to approve the proposed Constitution …”; “that the President is without power to proclaim the ratification by the Filipino people of the proposed Constitution”; and “that the election held to ratify the proposed Constitution was not a free election, hence null and void.”

Premised upon the foregoing allegations, said petitioners prayed that, “pending hearing on the merits, a writ of preliminary mandatory injunction be issued ordering respondents Executive Secretary, the Secretary of National Defense, the Chief of Staff of the Armed Forces of the Philippines, and the … Secretary of General Service, as well as all their agents, representatives and subordinates to vacate the premises of the Senate of the Philippines and to deliver physical possession of the same to the President of the Senate or his authorized representative”; and that hearing, judgment be rendered declaring null and Proclamation No. 1102 … and any order, decree, proclamation having the same import and objective, issuing writs of prohibition and mandamus, as prayed for against abovementioned respondents, and making the writ injunction permanent; and that a writ of mandamus be issued against the respondents Gil J. Puyat and Jose Roy directing them to comply with their duties and functions as President and President Pro Tempore, respectively, of the Senate of Philippines, as provided by law and the Rules of the Senate.”

Required to comment on the above-mentioned petitions and/or amended petitions, respondents filed, with the leave Court first had and obtained, a consolidated comment on said petitions and/or amended petitions, alleging that the same ought to have been dismissed outright; controverting petitioners’ allegations concerning the alleged lack impairment of the freedom of the 1971 Constitution Convention to approve the proposed Constitution, its alleged lack of authority to incorporate certain contested provisions thereof, the alleged lack of authority of the President to create and establish Citizens’ Assemblies “for the purpose submitting to them the matter of ratification of the new Constitution,” the alleged “improper or inadequate submiss of the proposed constitution,” the “procedure for ratification adopted … through the Citizens Assemblies”; a maintaining that: 1) “(t)he Court is without jurisdiction to act on these petitions”; 2) the questions raised therein are “political in character and therefore nonjusticiable”; 3)”there substantial compliance with Article XV of the 1 Constitution”; 4) “(t)he Constitution was properly submitted the people in a free, orderly and honest election; 5) “Proclamation No. 1102, certifying the results of the election, is conclusive upon the courts”; and 6) “(t)he amending process outlined in Article XV of the 1935 Constitution is not exclusive of other modes of amendment.”


  1. Does the issue on the validity of Proclamation No. 1102 partake of the nature of a political, and, hence, nonjusticiable question?
  2. Has the proposed new or revised Constitution been ratified conformably to said Art. XV of the 1935 Constitution?
  3. Has the proposed Constitution aforementioned been approved by a majority of the people in Citizens’ Assemblies allegedly held throughout the Philippines?
  4. Have the people acquiesced in the proposed Constitution?


  1. Referring now more specifically to the issue on whether the new Constitution proposed by the 1971 Constitutional Convention has been ratified in accordance with the provisions of Article XV of the 1935 Constitution is a political question or not, I do not hesitate to state that the answer must be in the negative. Indeed, such is the position taken by this Court,  in an endless line of decisions, too long to leave any room for possible doubt that said issue is inherently and essentially justiciable. Such, also, has been the consistent position of the courts of the United States of America, whose decisions have a persuasive effect in this jurisdiction, our constitutional system in the 1935 Constitution being patterned after that of the United States. Besides, no plausible reason has, to my mind, been advanced to warrant a departure from said position, consistently with the form of government established under said Constitution..

Thus, in the aforementioned plebiscite cases,   We rejected the theory of the respondents therein that the question whether Presidential Decree No. 73 calling a plebiscite to be held on January 15, 1973, for the ratification or rejection of the proposed new Constitution, was valid or not, was not a proper subject of judicial inquiry because, they claimed, it partook of a political nature, and We unanimously declared that the issue was a justiciable one. With identical unanimity, We overruled the respondents’ contention in the 1971 habeas corpus cases,  questioning Our authority to determine the constitutional sufficiency of the factual bases of the Presidential proclamation suspending the privilege of the writ of habeas corpus on August 21, 1971, despite the opposite view taken by this Court in Barcelona v. Baker  and Montenegro v. Castañeda,   insofar as it adhered to the former case, which view We, accordingly, abandoned and refused to apply. For the same reason, We did not apply and expressly modified, in Gonzales v. Commission on Elections,  the political-question theory adopted in Mabanag v. Lopez Vito.  Hence, respondents herein urge Us to reconsider the action thus taken by the Court and to revert to and follow the views expressed in Barcelon v. Baker and Mabanag v. Lopez Vito.

The reasons adduced in support thereof are, however, substantially the same as those given in support of the political-question theory advanced in said habeas corpus and plebiscite cases, which were carefully considered by this Court and found by it to be legally unsound and constitutionally untenable. As a consequence, Our decision in the aforementioned habeas corpus cases partakes of the nature and effect of a stare decisis, which gained added weight by its virtual reiteration in the plebiscite cases.

The reason why the issue under consideration and other issues of similar character are justiciable, not political, is plain and simple. One of the principal bases of the non-justiciability of so-called political questions is the principle of separation of powers — characteristic of the Presidential system of government — the functions of which are classified or divided, by reason of their nature, into three (3) categories, namely: 1) those involving the making of laws, which are allocated to the legislative department; 2) those concerned mainly with the enforcement of such laws and of judicial decisions applying and/or interpreting the same, which belong to the executive department; and 3) those dealing with the settlement of disputes, controversies or conflicts involving rights, duties or prerogatives that are legally demandable and enforceable, which are apportioned to courts of justice. Within its own sphere — but only within such sphere — each department is supreme and independent of the others, and each is devoid of authority, not only to encroach upon the powers or field of action assigned to any of the other departments, but, also, to inquire into or pass upon the advisability or wisdom of the acts performed, measures taken or decisions made by the other departments — provided that such acts, measures or decisions are within the area allocated thereto by the Constitution.

After an, exhaustive analysis of the cases on this subject, the Court concluded:

The authorities are thus practically uniform in holding that whether a constitutional amendment has been properly adopted according to the requirements of an existing Constitution is a judicial question. There can be little doubt that the consensus of judicial opinion is to the effect that it is the absolute duty of the judiciary to determine whether the Constitution has been amended in the manner required by the Constitution, unless a special tribunal has been created to determine the question; and even then many of the courts hold that the tribunal cannot be permitted to illegally amend the organic law. … .

In the light of the foregoing, and considering that Art. XV of our 1935 Constitution prescribes the method or procedure for its amendment, it is clear to my mind that the question whether or not the revised Constitution drafted by the 1971 Constitutional Convention has been ratified in accordance with said Art. XV is a justiciable one and nonpolitical in nature, and that it is not only subject to judicial inquiry, but, also, that it is the Court’s bounden duty to decide such question.

The Supreme Court of the United States has meaningfully postulated that “the courts cannot reject as ‘no law suit’ ” — because it allegedly involves a political question — “a bona fide controversy as to whether some action denominated “political” exceeds constitutional authority.”

  1. Under section 1 of Art. XV of said Constitution, three (3) steps are essential, namely:
    1. That the amendments to the Constitution be proposed either by Congress or by a convention called for that purpose, “by a vote of three-fourths of all the Members of the Senate and the House of Representatives voting separately,” but “in joint session assembled”;
    2. That such amendments be “submitted to the people for their ratification” at an “election”; and
    3. That such amendments be “approved by a majority of the votes cast” in said election.

Compliance with the first requirement is virtually conceded, although the petitioners in L-36164 question the authority of the 1971 Constitutional Convention to incorporate certain provisions into the draft of the new or revised Constitution. The main issue in these five (5) cases hinges, therefore, on whether or not the last two (2) requirements have been complied with.

In this connection, other provisions of the 1935 Constitution concerning “elections” must, also, be taken into account, namely, section I of Art. V and Art. X of said Constitution. The former reads:

Section 1. Suffrage may be exercised by male citizens of the Philippines not otherwise disqualified by law, who are twenty-one years of age or over and are able to read and write, and who shall have resided in the Philippines for one year and in the municipality wherein they propose to vote for at least six months preceding the election. The National Assembly shall extend the right of suffrage to women, if in a plebiscite which shall be held for that purpose within two years after the adoption of this Constitution, not less than three hundred thousand women possessing the necessary qualifications shall vote affirmatively on the question.

Sections 1 and 2 of Art. X of the Constitution ordain in part:

Section 1. There shall be an independent Commission on Elections composed of a Chairman and two other Members to be appointed by the President with the consent of the Commission on Appointments, who shall hold office for a term of nine years and may not be reappointed. …

xxx xxx xxx

Sec. 2. The Commission on Elections shall have exclusive charge of the enforcement and administration of all laws relative to the conduct of elections and shall exercise all other functions which may be conferred upon it by law. It shall decide, save those involving the right to vote, all administrative questions, affecting elections, including the determination of the number and location of polling places, and the appointment of election inspectors and of other election officials. All law enforcement agencies and instrumentalities of the Government, when so required by the Commission, shall act as its deputies for the purpose of insuring fee, orderly, and honest elections. The decisions, orders, and rulings of the Commission shall be subject to review by the Supreme Court.

It is similarly inconceivable that those who drafted the 1935 Constitution intended section 1 of Art. V thereof to apply only to elections of public officers, not to plebiscites for the ratification of amendments to the Fundamental Law or revision thereof, or of an entirely new Constitution, and permit the legislature to require lesser qualifications for such ratification, notwithstanding the fact that the object thereof much more important — if not fundamental, such as the basic changes introduced in the draft of the revised Constitution adopted by the 1971 Constitutional Convention, which a intended to be in force permanently, or, at least, for many decades, and to affect the way of life of the nation — and, accordingly, demands greater experience and maturity on the part of the electorate than that required for the election of public officers, 49 whose average term ranges from 2 to 6 years.

It is thus clear that the proceedings held in such Citizens’ Assemblies — and We have more to say on this point in subsequent pages — were fundamentally irregular, in that persons lacking the qualifications prescribed in section 1 of Art. V of the 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.

In short, said Art. XV envisages — with the term “votes cast” — choices made on ballots — not orally or by raising — 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. And the 1935 Constitution has been consistently interpreted in all plebiscites for the ratification rejection of proposed amendments thereto, from 1935 to 1967. Hence, the viva voce voting in the Citizens’ Assemblies was and is null and void ab initio.

  1. —-
  2. It is urged that the present Government of the Philippines is now and has been run, since January 17, 1971, under the Constitution drafted by the 1971 Constitutional Convention; that the political department of the Government has recognized said revised Constitution; that our foreign relations are being conducted under such new or revised Constitution; that the Legislative Department has recognized the same; and that the people, in general, have, by their acts or omissions, indicated their conformity thereto.

As regards the so-called political organs of the Government, gather that respondents refer mainly to the offices under the Executive Department. In a sense, the latter performs some functions which, from a constitutional viewpoint, are politics in nature, such as in recognizing a new state or government, in accepting diplomatic representatives accredited to our Government, and even in devising administrative means and ways to better carry into effect. Acts of Congress which define the goals or objectives thereof, but are either imprecise or silent on the particular measures to be resorted to in order to achieve the said goals or delegate the power to do so, expressly or impliedly, to the Executive. This, notwithstanding, the political organ of a government that purports to be republican is essentially the Congress or Legislative Department. Whatever may be the functions allocated to the Executive Department — specially under a written, rigid Constitution with a republican system of Government like ours — the role of that Department is inherently, basically and fundamentally executive in nature — to “take care that the laws be faithfully executed,” in the language of our 1935 Constitution.

Consequently, I am not prepared to concede that the acts the officers and offices of the Executive Department, in line with Proclamation No. 1102, connote a recognition thereof o an acquiescence thereto. Whether they recognized the proposed Constitution or acquiesce thereto or not is something that cannot legally, much less necessarily or even normally, be deduced from their acts in accordance therewith, because the are bound to obey and act in conformity with the orders of the President, under whose “control” they are, pursuant to the 1935 Constitution. They have absolutely no other choice, specially in view of Proclamation No. 1081 placing the Philippines under Martial Law. Besides, by virtue of the very decrees, orders and instructions issued by the President thereafter, he had assumed all powers of Government — although some question his authority to do so — and, consequently, there is hardly anything he has done since the issuance of Proclamation No. 1102, on January 17, 1973 — declaring that the Constitution proposed by the 1971 Constitutional Convention has been ratified by the overwhelming majority of the people — that he could not do under the authority he claimed to have under Martial Law, since September 21, 1972, except the power of supervision over inferior courts and its personnel, which said proposed Constitution would place under the Supreme Court, and which the President has not ostensibly exercised, except as to some minor routine matters, which the Department of Justice has continued to handle, this Court having preferred to maintain the status quo in connection therewith pending final determination of these cases, in which the effectivity of the aforementioned Constitution is disputed.

Then, again, a given department of the Government cannot generally be said to have “recognized” its own acts. Recognition normally connotes the acknowledgment by a party of the acts of another. Accordingly, when a subordinate officer or office of the Government complies with the commands of a superior officer or office, under whose supervision and control he or it is, the former merely obeys the latter. Strictly speaking, and from a legal and constitutional viewpoint, there is no act of recognition involved therein. Indeed, the lower officer or office, if he or it acted otherwise, would just be guilty of insubordination.

The five questions thus agreed upon as reflecting the basic issues herein involved are the following:

  1. Is the issue of the validity of Proclamation No. 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 acquiesced in (with or without valid ratification) by the people?
  4. Are petitioners entitled to relief? and
  5. Is the aforementioned proposed Constitution in force?

The results of the voting, premised on the individual views expressed by the members of the Court in their respect opinions and/or concurrences, are as follows:

  1. On the first issue involving the political-question doctrine Justices Makalintal, Zaldivar, Castro, Fernando, Teehankee and myself, or six (6) members of the Court, hold that the issue of the validity of Proclamation No. 1102 presents a justiciable and non-political question. Justices Makalintal and Castro did not vote squarely on this question, but, only inferentially, in their discussion of the second question. Justice Barredo qualified his vote, stating that “inasmuch as it is claimed there has been approval by the people, the Court may inquire into the question of whether or not there has actually been such an approval, and, in the affirmative, the Court should keep hands-off out of respect to the people’s will, but, in negative, the Court may determine from both factual and legal angles whether or not Article XV of the 1935 Constitution been complied with.” Justices Makasiar, Antonio, Esguerra, or three (3) members of the Court hold that the issue is political and “beyond the ambit of judicial inquiry.”
  2. On the second question of validity of the ratification, Justices Makalintal, Zaldivar, Castro, Fernando, Teehankee and myself, or six (6) 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 one way for ratification, i.e., “in an election or plebiscite held in accordance with law and participated in only by qualified and duly registered voters.  Justice Barredo qualified his vote, stating that “(A)s to whether or not the 1973 Constitution has 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 and canvassed, 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 people may 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 Article has been substantially complied with, and, in effect, the 1973 Constitution has been constitutionally ratified.”

Justices Makasiar, Antonio and Esguerra, or three (3) members of the Court hold that under their view there has been in effect substantial compliance with the constitutional requirements for valid ratification.

  1. On the third question of acquiescence by the Filipino people in the aforementioned proposed Constitution, no majority vote has been reached by the Court.

Four (4) of its members, namely, Justices Barredo, Makasiar, Antonio and Esguerra hold that “the people have already accepted the 1973 Constitution.”

Two (2) members of the Court, namely, Justice Zaldivar and myself 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. Justice Fernando states that “(I)f it is conceded that the doctrine stated in some American decisions to the effect that independently of the validity of 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 of ascertaining what is the mind of the people in the absence of the freedom of debate that is a concomitant feature of martial law.”

Three (3) members of the Court express their lack of knowledge and/or competence to rule on the question. Justices Makalintal and Castro are joined by Justice Teehankee in their statement 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.”

  1. On the fourth question of relief, six (6) members of the Court, namely, Justices Makalintal, Castro, Barredo, Makasiar, Antonio and Esguerra voted to DISMISS the petition. Justice Makalintal and Castro so voted on the strength of their view that “(T)he 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, an therefore beyond the competence of this Court, are relevant and unavoidable.”

Four (4) members of the Court, namely, Justices Zaldivar, Fernando, Teehankee and myself voted to deny respondents’ motion to dismiss and to give due course to the petitions.

  1. On the fifth question of whether the new Constitution of 1973 is in force:

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; Four (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

Two (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 that there are not enough votes to declare that the new Constitution is not in force.


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