Mitra vs. COMELEC

The 1973 Constitution is in force and effect, and the Javellana ruling that there is "no further judicial obstacle" to its operative character is controlling, notwithstanding arguments that it was not validly ratified or that the 1935 Constitution was merely suspended by martial law and could be revived.

Petitioners were political figures and opposition members who challenged the validity of the 1973 Constitution before the Commission on Elections. The dispute arose against the backdrop of martial law declared on September 21, 1972 and lifted on January 17, 1981, a series of referenda held from 1973 to 1977, and elections for the interim Batasang Pambansa in 1978 and local officials in 1980 — all conducted under the 1973 Constitution. The 1935 Constitution's commander-in-chief clause, broader than its U.S. counterpart, had authorized the President to declare martial law and suspend the privilege of the writ of habeas corpus.

Petitioners Ramon Mitra, Jr., Napoleon Rama, Emmanuel T. Santos, Ernie Rondon, Antonio Martinez, Jejomar Binay, Rodrigo H. Melchor, Joaquin (Titong) Roces, Rafael Yap, and Mel Lopez filed a petition for mandamus and prohibition against the Commission on Elections. The petition proceeded on the assumption that the present Constitution was not in force and effect. In its final paragraphs, the petition prayed for the holding of a plebiscite so that the people might vote on the ratification of the 1973 Constitution, which petitioners regarded as still in the proposal stage. In the event of rejection, petitioners contended, the 1935 Constitution — which they viewed as having been suspended by the establishment of an authoritarian regime by the Commander-in-Chief after the proclamation of martial law — could once more become operative with the lifting of martial law on January 17, 1981.

The Court noted that this petition was not dissimilar from the prohibition proceedings filed by former delegates Samuel C. Occena and Ramon A. Gonzales, which had been dismissed two days earlier. As in those petitions, there was what the Court characterized as a "rather unorthodox aspect" in the assertion that the 1973 Constitution is not the fundamental law, the Javellana ruling to the contrary notwithstanding. The Court found this approach self-defeating, for if the 1973 Constitution were not in force, petitioners had come to the wrong forum, the Court being duty-bound to uphold and apply that Constitution. The Court further observed that multiple referenda had been held — on July 27 and 28, 1973; February 27 and 28, 1975; October 16 and 17, 1976; and December 17, 1977 — and that two elections had been conducted under the 1973 Constitution, one for members of the interim Batasang Pambansa on April 7, 1978 and another for local government officials on January 30, 1980. These events, in the Court's view, demonstrated popular acquiescence in the 1973 Constitution.

• Invalidity of the 1973 Constitution: Petitioners maintained that the 1973 Constitution was not validly ratified and remained in the proposal stage, the Javellana ruling notwithstanding.
• Demand for a Plebiscite: Petitioners argued that a plebiscite should be held so the people could vote on the ratification of the 1973 Constitution, and that if rejected, the 1935 Constitution should once more become operative.
• Suspension Theory: Petitioners contended that the 1935 Constitution was merely suspended by the establishment of an authoritarian regime by the Commander-in-Chief after the proclamation of martial law, and could be revived upon the lifting of martial law on January 17, 1981.

• Validity of the 1973 Constitution: Whether the 1973 Constitution is in force and effect notwithstanding petitioners' contention that it was not validly ratified and remains in the proposal stage.
• Effect of Martial Law on Constitutionalism: Whether the proclamation and operation of martial law suspended constitutionalism, judicial review, and respect for individual rights in the Philippines.
• Scope of Commander-in-Chief Powers: Whether the President's martial law powers under the 1935 Constitution were co-extensive with or broader than those of the U.S. President.

• Validity of the 1973 Constitution: No judicial obstacle exists. The 1973 Constitution is in force and effect, Javellana vs. Executive Secretary being controlling; the presumption of validity and the people's acquiescence through multiple referenda and elections confirm its operative character.
• Effect of Martial Law on Constitutionalism: No. Martial law did not extinguish constitutionalism; the judiciary continued to exercise judicial review and uphold fundamental liberties throughout the martial law period.
• Scope of Commander-in-Chief Powers: The 1935 Constitution's commander-in-chief clause was broader than its U.S. counterpart, expressly empowering the President to declare martial law and suspend the privilege of the writ of habeas corpus.

• Validity of the 1973 Constitution: The Court applied the ruling in Javellana vs. Executive Secretary, where six justices dismissed the petitions challenging the 1973 Constitution and eight of ten members held there was "no further judicial obstacle to the new Constitution being considered in force and effect." The Court explained that under the American concept of judicial review, adopted in the Philippines, the presumption of validity attaches to acts of coordinate departments; the burden rests on the challenger, and it suffices that the act has not been shown to be unconstitutional — no affirmative finding of constitutionality is required. Justice Malcolm's dictum, "To doubt is to sustain," was invoked as encapsulating this principle. The Court further noted that even Chief Justice Concepcion, while in dissent in Javellana, acknowledged that a new constitution could come into force by the acquiescence of the people, citing Taylor vs. Commonwealth. The series of referenda from 1973 to 1977 and two elections held under the 1973 Constitution manifested popular acceptance, rendering contrary arguments untenable.

• Effect of Martial Law on Constitutionalism: The Court rejected the assertion that constitutionalism ceased during martial law. It catalogued decisions demonstrating continued exercise of judicial review: Aquino, Jr. vs. Commission on Elections upheld the validity of the martial law proclamation; Javellana resolved the transcendental question of the 1973 Constitution's force; Aquino, Jr. vs. Military Commission sustained the power to create military commissions; Sanidad vs. Commission on Elections sanctioned the President's authority to propose amendments; and Dumlao vs. Commission on Elections nullified a portion of Batas Pambansa Blg. 52. The Court cited Justice Murphy of the High Court of Australia, who observed that the Philippine judiciary maintained concern for fundamental liberties even under the most difficult conditions, and that the Supreme Court enforced mandatory provisions in the Bill of Rights daily, openly, and in reasoned decisions.

• Scope of Commander-in-Chief Powers: The Court traced the commander-in-chief clause of the 1935 Constitution to the U.S. Constitution but noted that the American instrument does not empower the President to declare martial law. The framers of the 1935 Constitution expanded the clause to empower the President, as the highest civilian authority, to deal with dangers posed by external aggression or internal subversion. This power owed its origin to the Philippine Autonomy Act of 1916 (Jones Law), which was in turn based on the Organic Act of Hawaii of 1899. The Court cited American jurisprudence — Moyer vs. Peabody, Sterling vs. Constantine, and Duncan vs. Kahanamoku — to show that martial law is subject to judicial scrutiny and is not all-encompassing, while acknowledging that the Philippine formulation adopted a broader concept influenced by Rossiter's framework, as articulated in Aquino, Jr. vs. Commission on Elections.

• Presumption of Validity in Judicial Review — In constitutional challenges, the presumption of validity attaches to acts of coordinate departments; the burden of proof is on the person assailing the action. There is no need for an affirmative finding of constitutionality — it suffices that the act has not been shown to be unconstitutional. Justice Malcolm's formulation, "To doubt is to sustain," captures this principle. The Court relied on this doctrine to uphold the operative character of the 1973 Constitution, noting that only two of ten members in Javellana voted that it was not in force.

• Acquiescence Doctrine — Even without valid ratification, a new constitution may come into force and effect by the acquiescence of the people, in whom sovereignty resides. Once the fact of acceptance by the people is made evident, the judiciary is left with no choice but to accord it recognition. The Court applied this doctrine by pointing to multiple referenda (1973, 1975, 1976, 1977) and two elections (1978, 1980) held under the 1973 Constitution as evidence of popular acquiescence.

• Continuity of Judicial Review During Martial Law — Martial law does not extinguish constitutionalism or the power of judicial review. The judiciary, as a separate branch of government, continues to perform its functions and discharge its responsibility even during martial law. The Court demonstrated this by cataloguing decisions throughout the martial law period in which it assumed jurisdiction and ruled on the validity of presidential acts, including the nullification of a portion of Batas Pambansa Blg. 52 in Dumlao vs. Commission on Elections.

• "There is no further judicial obstacle to the new Constitution being considered in force and effect." — This is the dispositive ruling from Javellana vs. Executive Secretary, reaffirmed in this case as controlling and frequently cited as the canonical formulation of the 1973 Constitution's operative status.

• "To doubt is to sustain." — Attributed to Justice Malcolm, this encapsulates the presumption of validity in judicial review and is a foundational principle for understanding why the burden rests on the challenger of governmental action.

• "There can be no justification then for the reckless assertion that upon the proclamation of martial law and while it was in force, constitutionalism, in terms of the exercise of the power of judicial review and respect for individual rights, no longer held sway in the Philippines." — This passage defines the Court's position that martial law did not extinguish constitutionalism, supported by the Court's own record of exercising judicial review throughout the period.

• Javellana vs. Executive Secretary, 50 SCRA 30 (1973) — Controlling precedent. The Court dismissed petitions challenging the 1973 Constitution by a vote of six to four and ruled by eight to two that there was "no further judicial obstacle" to the 1973 Constitution being considered in force and effect. This case was reaffirmed as the authoritative ruling on the 1973 Constitution's validity.

• Angara vs. Electoral Commission, 63 Phil. 139 (1936) — Foundational precedent on judicial review. Cited for the proposition that the function of judicial review reflects the adoption of the American type of constitutional government where the written constitution is interpreted and given effect by the judicial department.

• Aquino, Jr. vs. Commission on Elections, 62 SCRA 275 (1975) — Followed. Upheld the validity of the martial law proclamation and the President's competence to issue proclamations, orders, and decrees with the force and effect of law during martial law. The plurality opinion of Justice Makasiar was quoted for the expansive formulation of martial law powers.

• Dumlao vs. Commission on Elections, 95 SCRA 392 (1980) — Followed. The Court nullified a portion of Section 4 of Batas Pambansa Blg. 52 during martial law, demonstrating that judicial review remained operative and that the Court was willing to invalidate legislative acts even under martial law.

• Sanidad vs. Commission on Elections, 73 SCRA 333 (1976) — Followed. Sanctioned the authority of the President to propose amendments to the Constitution when the interim National Assembly had not been convened.

• Article VII, Section 10(2), 1935 Constitution — The commander-in-chief clause empowering the President to suspend the privilege of the writ of habeas corpus or place the Philippines under martial law in case of invasion, insurrection, rebellion, or imminent danger thereof. The Court traced this provision to the Jones Law and the Organic Act of Hawaii, and distinguished it from the U.S. Constitution's more limited commander-in-chief clause.

• 1976 Amendments to the Constitution, Section 1 — Created the interim Batasang Pambansa in lieu of the interim National Assembly, which had never been convened under the 1973 Constitution.

• Article XVII, Transitory Provisions, 1973 Constitution — Made all proclamations, orders, decrees, instructions, and acts promulgated by the incumbent President part of the law of the land, providing the constitutional basis for presidential law-making during the transition.

Barredo, Makasiar, Aquino, Concepcion Jr., Fernandez, Guerrero, De Castro, and Melencio-Herrera, JJ., concurred. Abad Santos, J., was on leave.

• Teehankee, J. — Dissented, voting to give due course to the petition. He argued that the controlling doctrine of fair and proper submission, as laid down in Tolentino vs. COMELEC, requires that the people be given adequate time and information regarding proposed amendments for conscientious deliberation and intelligent consent or rejection. While acknowledging that the Javellana dismissal by a six-to-four vote bound the entire Court under the Rule of Law, and that the 1973 Constitution stands as the supreme law of the land unless overturned by the Court itself, Justice Teehankee maintained his dissent in Aquino, Jr. vs. COMELEC that martial law powers are limited to measures necessary to safeguard the Republic and suppress rebellion, and cannot be expanded to cover worldwide recession, inflation, or economic crisis — warning that such expansion, given the world's perpetual crises, would mean no end to martial law.