JAVELLANA VS- EXECUTIVE SECRETARY, 50 SCRA 30 (1973)Constitutional Law. Political Law. Ratification Cases. Date of effectivity of the 1973 Constitution.JAVELLANA VS THE EXECUTIVE SECRETARY50 SCRA 30; March 31, 1973Ponente: Concepcion, C.J

FACTS:On January 20, 1973, Josue Javellana 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 in excess of 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 objective.

ISSUES:1. Is the validity of Proclamation No. 1102 justiciable?2. Was the constitution proposed by the 1971 Constitutional Convention ratified validly in compliance to applicable laws?3. Was the proposed Constitution acquiesced by the people?4. Are the petitioners entitled relief?5. Is the proposed Constitution in force?

HELD: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. The Constitution proposed by the 1971 Convention was not validly ratified in accordance with Article XV section 1 of the 1935 Constitution which provides only one way for ratification (election or plebiscite held in accordance with law and only with qualified voters). Due to the environmental and social conditions in the Philippines (i.e. martial law) the Court cannot honestly say that the people acquiesced to the proposed Constitution. The majority ruled to dismiss the cases as the effectivity of the proposed Constitution is the basic issue posed by the cases which considerations other than judicial are relevant and unavoidable. The new constitution is in force as there are not enough votes to say otherwise.

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Javellana vs. The Executive Secretary 50 SCRA 30

Ponente: Chief Justice Roberto Concepcion

The Facts:

The Plebiscite Case

A Convention to propose amendments to the Constitution of the Philippines was approved on August 24, 1970 and began to perform its functions on June 1, 1971. On September 21, 1972, the President issued Proclamation No. 1081 placing the entire Philippines under Martial Law.

On November 29, 1972, the 1971 Constitutional Convention approved its Proposed Constitution of the Republic of the Philippines. The next day,President Marcos 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.

On December 7, 1972, Charito Planas filed a case against the Commission on Elections, the Treasurer of the Philippines and the Auditor General, to enjoin said respondents or their agents from implementing Presidential Decree No. 73, in any manner, until further orders of the Court, upon the grounds, inter alia, that said Presidential Decree has no force and effect as law because the calling of such plebiscite, the setting of guidelines for the conduct of the same, the prescription of the ballots to be used and the question to be answered by the voters, and the appropriation of public funds for the purpose, are, by the Constitution, lodged exclusively in Congress and there is no proper submission to the people of said Proposed Constitution set for January 15, 1973, there being no freedom of speech, press and assembly, and there being no sufficient time to inform the people of the contents thereof.

On December 23, the President announced the postponement of the plebiscite for the ratification or rejection of the Proposed Constitution and temporarily suspending the effects of Proclamation No. 1081 for purposes of free and open debate on the proposed Constitution.

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.

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 Court issued a resolution requiring the respondents in said three (3) cases to comment on said urgent motion and manifestation, not later than Tuesday noon, January 16, 1973 and set the motion for hearing on January 17, 1973, at 9:30 a.m.

While the case was being heard, the President issued Proclamation No. 1102.

ANNOUNCING THE RATIFICATION BY THE FILIPINO PEOPLE OF THE CONSTITUTION PROPOSED BY THE 1971 CONSTITUTIONAL CONVENTION

Citizens Assemblies were created in barrios, in municipalities and in districts/wards in chartered cities. The said Citizens Assemblies were established to broaden the base of citizen participation in the democratic process and to afford ample opportunity for the citizenry to express their views on important national issues.

The Ratification Case

On January 20, 1973, Josue Javellana filed Case G.R. No. L-36142, 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 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. Javellana alleged that the President ordered the immediate implementation of the New Constitution, thru his Cabinet, and that the latter are acting without or in excess of jurisdiction in implementing the said proposed Constitution. He construed that the President is without authority to create the Citizens Assemblies; to approve the proposed Constitution; proclaim the ratification; and that the election held to ratify the proposed Constitution was not a free election, hence null and void.

The Issue:

Is the issue of the validity of Proclamation No. 1102 a justiciable, or political and therefore non-justiciable, question?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?Has the aforementioned proposed Constitution acquiesced in (with or without valid ratification) by the people? (acquiesced permission given by silence or passiveness. Acceptance or agreement by keeping quiet or by not making objections.)Are petitioners entitled to relief?Is the aforementioned proposed Constitution in force?

Decision and Ratio:

The court was severely divided on the 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.

The Court held that the issue is political and beyond the ambit of judicial inquiry.Court held 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. However, 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.

On the fourth question, 6 justices voted to DISMISS the petition. Justice Makalintal and Castro so voted on the strength of their view that The 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.

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

ACCORDINGLY, 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.

Dissenting Opinion:

Justice Barredo qualified his vote, stating that As 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, especially in the manner the votes therein were cast, reported and canvassed, falls short of the requirements thereof.

However, the fact that 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, 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.

-----------------50 SCRA 30 Political law Constitutional Law Political Question Validity of the 1973 Constitution Restriction to Judicial Power

In 1973, Marcos ordered the immediate implementation of the new 1973 Constitution. Javellana, a Filipino and a registered voter sought to enjoin the Exec Sec and other cabinet secretaries from implementing the said constitution. Javellana averred that the said constitution is void because the same was initiated by the president. He argued that the President is w/o power to proclaim the ratification by the Filipino people of the proposed constitution. Further, the election held to ratify such constitution is not a free election there being intimidation and fraud.

ISSUE: Whether or not the SC must give due course to the petition.

HELD: The SC ruled that they cannot rule upon the case at bar. Majority of the SC justices expressed the view that they were concluded by the ascertainment made by the president of the Philippines, in the exercise of his political prerogatives. Further, there being no competent evidence to show such fraud and intimidation during the election, it is to be assumed that the people had acquiesced in or accepted the 1973 Constitution. The question of the validity of the 1973 Constitution is a political question which was left to the people in their sovereign capacity to answer. Their ratification of the same had shown such acquiescence.-------------------