Petitioner Javellana v.

Executive Secretary defendant

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

TOPIC: 1973 Constitution, Ratification

FACTS:
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.

a) Petitioner’s Arguments (Javellana et. al – Lost)

On January 20, 1973, Josue Javellana et. al filed a prohibition case to restrain respondents from
implementing any of the provisions of the proposed constitution not found in the present constitution.
Javellana maintained that the respondents are acting without or more than jurisdiction in implementing
proposed constitution and that the president is without power to proclaim the ratification of the constitution.
Similar actions were filed by Vidal Tan, Gerardo Roxas, among others. Petitioners pray for the nullification
of Proclamation 1102 (Citizens Assemblies) and any order, decree, and proclamation which are similar in
their objectives.

b) Respondent’s Argument’s (Executive Secretary – Won)

On December 23, 1972, the President announced the postponement of the plebiscite for the ratification or
rejection of the Proposed Constitution. The Court deemed it fit to refrain, for the time being, from deciding
the case. 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."
The next day, January 13, 1973, the Court issued a resolution requiring the respondents to comment and
file an answer to the said "urgent motion" not later than Tuesday noon, January 16, 1973." When the case
was being heard, the Secretary of Justice called on and said that, “upon instructions of the President, he is
delivering a copy of Proclamation No.1102, which had just been signed by the President earlier that
morning. ”Proclamation No. 1102, declares that Citizen Assemblies referendum was conducted, and that
the result shows that more than 95% of the members of the Citizens Assemblies are in favor of the new
Constitution and majority also answered that there was no need for a plebiscite and that the vote of the
Citizens Assemblies should be considered as a vote in a plebiscite. The then President of the Philippines,
Marcos, hereby certify and proclaim that the Constitution proposed by the 1971 Constitutional Convention
has been ratified by an overwhelming majority of all of the votes cast by the members of the Citizens
Assemblies throughout the Philippines, and hast hereby come into effect.

ISSUE:
1. Whether the validity of Proclamation No. 1102 justiciable.
2. Whether or not the constitution proposed by the 1971 Constitutional Convention ratified validly in
compliance with applicable laws

RULING:
The petition for prohibition is denied. The new constitution is in effect.

Rule:
The court was severely divided on the following issues raised in the petition: but when the crucial question
of whether the petitioners are entitled to relief, six members of the court(Justices Makalintal, Castro,
Barredo, Makasiar, Antonio and Esguerra) voted to dismiss the petition. Concepcion, together Justices
Zaldivar, Fernando and Teehankee, voted to grant the relief being sought, thus upholding the 1973
Constitution.

On the 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.

Judges was 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.

Application:
Whether a constitutional amendment has been properly adopted according to an existing constitution is a
judicial question as it is the absolute duty of the judiciary to determine whether the Constitution has been
amended in the manner required by the constitution.

In the 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, and 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.

Conclusion:
The new constitution is in force as there are not enough votes to say otherwise. By virtue of the majority of
six (6) votes of Justices Makalintal, Castro, Barredo, Makasiar, Antonio and Esguerra with the four (4)
dissenting votes of the Chief Justice and Justices Zaldivar, Fernando and Teehankee, all the aforementioned
cases are hereby dismissed. This being the vote of the majority, there is no further judicial obstacle to the
new Constitution being considered in force and effect.