Javellana vs. Executive Secretary G.R. No. L-36142, March 31 1973 - 50 SCRA 33
Javellana vs.
Executive Secretary
G.R. No. L-36142, March 31 1973 - 50 SCRA 33
September 21, 1972 Marcos declared Martial Law vesting unto him both the
executive and the legislative power.
Still, the 1971
Constitutional Convention continued.
November 29,1972 Constitutional
Convention approved the new Constitution.
November 30, 1972, Marcos
through PD 73 called for a plebiscite to be scheduled on January 15,1973
Plebiscite Cases –
Planas vs COMELEC (1973)
January 15, 1972
Marcos signed Proclamation 1102 – ratified the 1973 Constitution
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, including respondents.
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.
ISSUES:
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.
HELD:
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
Citizen’s assemblies void.
Proceedings held in such Citizen’s 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 Citizen’s 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
Citizen’s 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 citizen’s 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 citizen’s assemblies did not adopt the proposed
constitution. It is to my mind a matter of judicial knowledge that there have
been no such citizen’s 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
Constitution.
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.
Makalintal appointed as
Interim Speaker of the Batasang Pambansa Concepcion become a member of
the Philippine Constitutional Commission of 1986 that drafted
the 1987 Philippine Constitution. |
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