Javellana vs. The Executive Secretary

The 1973 Constitution is in force and effect, not because of strict compliance with the procedural requirements of Article XV of the 1935 Constitution (which were violated), but because of the people's acceptance and acquiescence to it, making the question of its effectivity a political question beyond judicial review.

• The 1971 Constitutional Convention was convened under Resolution No. 2 of the Congress of the Philippines to propose amendments to the 1935 Constitution.
• On September 21, 1972, President Ferdinand Marcos placed the Philippines under Martial Law via Proclamation No. 1081.
• On November 30, 1972, the Constitutional Convention approved the proposed 1973 Constitution.
• On December 1, 1972, the President issued Presidential Decree No. 73, calling for a plebiscite on January 15, 1973, for the ratification of the proposed Constitution.
• On December 31, 1972, Presidential Decree No. 86 created "Citizens Assemblies" (barangays) composed of all residents 15 years of age and older to discuss national issues.
• On January 5, 1973, Presidential Decree No. 86-A directed the Citizens Assemblies to conduct a referendum from January 10-15, 1973, on various issues including the new Constitution.
• On January 7, 1973, General Order No. 20 postponed the plebiscite scheduled for January 15, 1973.
• From January 10-15, 1973, the Citizens Assemblies allegedly voted on the Constitution, mostly by show of hands.
• On January 17, 1973, the President issued Proclamation No. 1102, declaring that the Constitution was ratified by an overwhelming majority (14,976,561 for, 743,869 against) and had come into effect.

N/A. (Cases were filed directly with the SC as original petitions for prohibition and mandamus; prior related cases—the "plebiscite cases"—were dismissed as moot on January 22, 1973).

• Petitioners include Josue Javellana (citizen and voter), Senator Gerardo Roxas and other senators, members of the National Press Club, and other citizens.
• They filed petitions for prohibition and mandamus to restrain respondents (Executive Secretary, Secretaries of National Defense, Justice, Finance, etc.) from implementing the 1973 Constitution and to nullify Proclamation No. 1102.
• Petitioners alleged that the ratification process was invalid because:
  • The Citizens Assemblies allowed persons 15 years of age and over to vote, contrary to Article V of the 1935 Constitution which limited suffrage to those 21 years and older.
  • Voting was conducted by show of hands (viva voce) rather than by secret ballot as required by the Election Code.
  • The Commission on Elections (COMELEC) did not supervise the proceedings, violating Article X of the 1935 Constitution.
  • There was no proper submission due to lack of time for public information and debate, and the existence of Martial Law restricted freedoms necessary for a free plebiscite.
  • The plebiscite scheduled for January 15, 1973, had been formally postponed by General Order No. 20, yet the Citizens Assemblies proceeded to "ratify" the Constitution anyway.

• Invalid Ratification Procedure: The ratification via Citizens' Assemblies violated Article XV, Section 1 of the 1935 Constitution, which requires amendments to be approved by a majority of votes cast at an "election" (plebiscite) participated in by qualified voters (21+, literate, registered) under COMELEC supervision.
• Lack of Authority: The President had no authority to create Citizens' Assemblies for the purpose of ratification or to proclaim ratification based on their votes.
• No Free and Fair Submission: The proceedings were not free and fair due to Martial Law restrictions on speech, press, and assembly; the short period for information dissemination; and the "suggestive" questions/comments provided to voters.
• 1935 Constitution Still in Force: Since the 1973 Constitution was not validly ratified, the 1935 Constitution remains the supreme law.

• Political Question: The issue of whether the Constitution was ratified is a political question committed to the people and the political branches, not the judiciary.
• Substantial Compliance: There was substantial compliance with Article XV; the Citizens' Assemblies were a valid expression of the people's will.
• People's Acceptance/Acquiescence: The people have accepted the 1973 Constitution, as evidenced by the overwhelming vote, the recognition by the Executive and Legislative departments, and the absence of widespread resistance.
• Conclusiveness of Proclamation: Proclamation No. 1102 is conclusive upon the courts regarding the fact of ratification.
• Non-Exclusive Amending Process: The procedure in Article XV is not exclusive; the people may ratify a constitution through other means, including direct participation in Citizens' Assemblies.

• Procedural: Whether the validity of Proclamation No. 1102 and the ratification of the 1973 Constitution presents a justiciable question or a political question.
• Substantive:
  • Whether the 1973 Constitution was validly ratified in accordance with Article XV of the 1935 Constitution.
  • Whether the Filipino people have acquiesced in or accepted the 1973 Constitution.
  • Whether the 1973 Constitution is in force and effect.

• Procedural: The issue of whether the ratification procedure complied with Article XV is justiciable (6 justices held this view). However, the question of whether the Constitution is in force based on popular acceptance is political and non-justiciable.
• Substantive:
  • Ratification: The 1973 Constitution was not validly ratified in strict accordance with Article XV of the 1935 Constitution (6 justices held this view; 3 held there was substantial compliance).
  • Acceptance: The people have accepted the 1973 Constitution (4 justices held this definitively; 2 said there was no free expression under Martial Law; 3 said they could not determine this with judicial certainty).
  • Effectivity: The 1973 Constitution is in force and effect (6 justices held this based on acceptance; 2 held it was not in force; 4 did not vote on this premise).
  • Final Disposition: The petitions were DISMISSED by a vote of 6-4 (Justices Makalintal, Castro, Barredo, Makasiar, Antonio, and Esguerra voting to dismiss; Chief Justice Concepcion, Justices Zaldivar, Fernando, and Teehankee voting to give due course).

• Political Question Doctrine: While the procedural compliance with Article XV is justiciable, the ultimate question of whether a constitution has been accepted by the people and is in force may be a political question beyond judicial review, especially when the political branches have recognized it.
• Substantial Compliance vs. Strict Compliance: Although the SC previously held in Tolentino v. COMELEC that strict compliance with Article XV is required for amendments, the majority here effectively relaxed this standard for a new constitution based on "acceptance."
• People's Acceptance/Acquiescence: A constitution may be deemed in force if accepted by the people and the political organs of government (Executive and Legislative), even if the ratification process was irregular or defective.
• Judicial Statesmanship: The SC should avoid decisions that would cause chaos or confusion, especially when the government has been operating under the new constitution for an extended period (Justice Barredo).

• "This being the vote of the majority, there is no further judicial obstacle to the new Constitution being considered in force and effect." (Per Curiam)
• "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." (Justices Makalintal and Castro)
• "The sacred liberties and freedoms enshrined in it... are mere integral parts of this totality; they are less important by themselves." (Justice Barredo, concurring)
• "The rule of law must prevail even over the apparent will of the majority of the people, if that will had not been expressed, or obtained, in accordance with the law." (Justice Zaldivar, dissenting)
• "Under a regime of martial law, with the free expression of opinions through the usual media vehicles restricted, [we] have no means of knowing, to the point of judicial certainty, whether the people have accepted the Constitution." (Justices Makalintal and Castro)

• Tolentino v. Commission on Elections (41 SCRA 702) — Held that strict compliance with Article XV is required; distinguished by the majority as involving only a partial amendment rather than a whole new constitution.
• Gonzales v. Commission on Elections (21 SCRA 774) — Established the requirement of "proper submission" for amendments.
• Luther v. Borden (48 U.S. 1) — Cited for the proposition that courts cannot determine which of two competing governments is legitimate (political question).
• Baker v. Carr (369 U.S. 186) — Cited for the test regarding political questions.
• Miller v. Johnson (92 Ky. 589) — Cited for the duty of courts to determine if constitutional limits were exceeded.

• 1935 Constitution, Article XV, Section 1 — Procedure for amending the Constitution (proposal by 3/4 vote of Congress or Convention; ratification by majority of votes cast at an election).
• 1935 Constitution, Article V, Section 1 — Qualifications of voters (21 years old, literate, etc.).
• 1935 Constitution, Article X — Powers of the COMELEC (exclusive charge of enforcement of election laws).
• Presidential Decree No. 73 — Calling the plebiscite for January 15, 1973.
• Presidential Decree No. 86 — Creation of Citizens' Assemblies.
• Presidential Decree No. 86-A — Directing the referendum in Citizens' Assemblies.
• Proclamation No. 1102 — Declaring the ratification of the 1973 Constitution.

• Justice Barredo: Argued that the 1973 Constitution is in force due to the people's acceptance; the ratification was a political act; advocated for "judicial statesmanship" to avoid national chaos; controversially minimized the importance of civil liberties compared to national welfare.
• Justice Makasiar: Joined Barredo; emphasized that the political departments (Executive and Legislative) have accepted the new Constitution.
• Justice Antonio: Argued the issue is political because there are no judicially discoverable and manageable standards for determining if the people accepted the Constitution.
• Justice Esguerra: Argued for judicial abstention; the issue is political and the SC should defer to the political branches.

• Chief Justice Concepcion: Argued that the issue is justiciable; the ratification violated Article XV (wrong voters, no secret ballot, no COMELEC supervision); the 1935 Constitution is still in force; voted to give due course to the petitions.
• Justice Zaldivar: Joined the Chief Justice; emphasized that the rule of law requires strict adherence to constitutional procedures; the 1935 Constitution remains in force.
• Justice Fernando: Joined the Chief Justice; argued that the issue is justiciable; not prepared to find acceptance under Martial Law conditions.
• Justice Teehankee: Joined the Chief Justice; emphasized strict compliance with Article XV as held in Tolentino; argued that the 1935 Constitution is still in force.