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University of the Philippines College of Law

Constitutional Law I | Prof. Anthony Charlemagne Yu
Case Digest

CASE: G.R. No. L-36142

CASE TITLE: Javellana vs. The Executive Secretary
PONENTE: Chief Justice Roberto Concepcion
Written by: Brandon P. De Luna

Facts
March 16, 1967  Congress passed Resolution no. 2, which was amended by Resolution no. 4,
calling for a Constitutional Convention to propose amendments to the 1935 Constitution of the
Philippines. Resolution no. 2 was implemented by Republic Act No. 6132.
While Convention is in session, President Ferdinand E. Marcos declared the existence of the
state of martial law in the entire Philippines on September 21, 1972 through Proclamation No.
1081.
November 29, 1972  the Constitutional Convention approved the draft Constitution and
submitted it to the President. President Ferdinand Marcos issued Presidential Decree No. 73
which submits the draft Constitution to a ratification process from the Filipino people.
Charito Planas filed a writ of certiorari to the Supreme Court arguing that PD No. 73 has no full
force of law and such powers are exclusively given to Congress.
President Marcos issued General Order 20 postponing the said plebiscite from its original date
on January 15, 1973. This is to allegedly promote open debate about the draft Constitution. The
Court deemed to refrain on the issue due to the said postponement
President Marcos issued Presidential Decree No. 86 on December 23, 1972 creating the
Citizens’ Assemblies (Barangays) as an avenue for the government to consult on certain public
questions.
On January 13, 1973, the Court issued a resolution requiring the respondents in said three cases
to comment on said urgent motion and manifestation not later than Tuesday noon, January 16,
1973. However, while the case is being deliberated, the Secretary of Justice submitted to the
Court Proclamation No. 1012 announcing that more than 95% of the members of Citizens
Assemblies approved the 1973 Constitution of the Philippines.
Given the existence of Proclamation No. 1012, the Planas case was declared as moot and
academic.
Petitioner Josue Javellana filed a case against the Executive Secretary and the Secretary of
National Defense, Justice, and Finance, to restrain them from implementing the provisions of
the 1973 Constitution that are not found in the 1935 Constitution.
Javellana argued that President Marcos does not have the power to create citizens’ assemblies,
call for a plebiscite for such purpose, and the election conducted should be deemed as null and
void as it did not satisfy the constitutional requirements prescribed by the 1935 Constitution.
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Issues
Whether or not the issue of the validity of Proclamation No. 1102 involves a justiciable or
political question.
Whether or not the proposed new or revised 1973 Constitution been ratified in accordance with
the provisions of Article XV of the 1935 Constitution.
Whether or not the people acquiesced in the proposed Constitution.
Whether or not the parties are entitled to any relief.
Whether or not the 1973 Constitution is in force.

Ruling of the Court

1. On the first issue involving the political question doctrine, Justices Makalintal, Zaldivar, Castro,
Fernando, Tehankee, and Concepcion, or six members of the Court hold that Proclamation No.
1102 is a justiciable and non-political question.
2. On the second issue regarding the validity of the ratification, Justices Makalintal, Zaldivar,
Castro, Fernando, Tehankee, and Concepcion, or six members of the Court hold that the
Constitution of 1973 was not properly ratified in accordance with the provisions of Article XV of
the 1935 Constitution.
3. On the third issue of quiescence by the Filipino people, no majority vote has been reached by
the Court.
a. Four of its members, namely, Justice Barredo, Makasiar, Antonio, and Esguerra held that
the people have accepted the 1973 Constitution.
b. Two members of the Court, Justice Zaldivar and Concepcion hold that there can be no
free expression, and there has even been no expression, by the people qualified to vote
all over the Philippines, of their acceptance or repudiation of the proposed Constitution
under Martial Law.
c. Three of its members, express the lack of knowledge and/or competence to rule on the
question.
4. On the fourth question, six members of the Court, namely Justice Makalintal, Castro, Barredo,
Makasiar, Antonio, and Esguerra voted to DISMISS the petition; under the grounds that the
effectivity of the said Constitution is the basic and ultimate question involved. Four members of
the Court, namely, Zaldivar, Fernando, Tehankee, and Concepction voted to give due course to
the petition and deny the respondents’ petition to dismiss the Javellana petition.
5. On the fifth question whether the 1973 Constitution is in force:
a. Four members of the Court, namely Barredo, Makasiar, Antonio, and Esguerra hold that
it is in force by the virtue of the people’s acceptance to the said charter.
b. Four members of the Court, namely Makalintal, Castro, Fernando, and Tehankee cast no
vote thereon on the premise that they cannot state with judicial certainty whether or
not the people have accepted the Constitution.
c. Two members of the Court, namely Zaldviar and Concepcion voted that the Constitution
made by the 1971 Convention is not in force. Resulting that there are not enough votes
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to declare that the Constitution is not in force. Therefore, there is no further judicial
obstacle to the new Constitution being considered in force and effect.

Ratio
On the First Issue

The manner on the process of ratifying the Constitution is a justiciable one and cannot be
considered a political question. Barredo notes that the Court may inquire into the question of
whether or not the manner of ratification is in line with the Constitution.
By “people” the intent of the framers of the 1935 Constitution are those who are eligible to vote
in line with the requirements prescribed by the 1935 Constitution. The decree of President
Marcos including 15 year-olds in the plebiscite is an abrogation of the Constitutional
requirement.
Political questions are described as questions that are responded by the Filipino people in the
sovereign capacity or delegated to the other two branches of government. The primary essence
of this doctrine is the wisdom of the act – not its validity.

On the Second Issue

As stated in the previous explanation, the decision of the Citizens’ Assemblies is inconsistent
with the constitutional requirement on the right to suffrage. In the issue of citizens’ assemblies,
it did not follow the provision on the manner of voting (through secret ballot), COMELEC
supervision, and the age of legitimate voters.

On the Third Issue

The existence of the state of martial law prevented justices to objectively ascertain whether or
not the Constitution was acquiesced by the people. As a matter of fact, the Court is heavily
divided on the said issue.

On the Fourth Issue

Under the assumption that the people had adopted the Constitution, a majority of the Justices
believe that it is the intent of the sovereign Filipino people to adopt the Constitution thus
dismissing the petition of Josue Javellana under the grounds of political question doctrine.
Other justices believe that the Court has the right to review the manner of adoption of the 1973
Constitution.

On the Fifth Issue

The Court is unsure which required number of majority votes should be followed. Under the
1935 Constitution, 6 votes are necessary whereas the 1973 Constitution requires 8 votes. Due to
the failure to reach a quorum, the Court moved that there are no judicial obstacles in adopting
the 1973 Constitution.