Digest of Dissenting Opinions in:
Javellana et al., Petitioners, vs. The Executive Secretary (Alejandro Melchor), Respondents,
G.R. No. L-36142 , G.R. No. L-36164, G.R. No. L-36165 - filed by Senators, G.R. No. L-36236,
G.R. No. L-36283
All Filed on March 31, 1973
Facts:
1) These cases arose out of the dismissal of previous cases which were filed to prevent the
implementation of Presidential Decree No. 72 that calls for a plebiscite to ratify the proposed
new Constitution as Proclamation No. 1102 was certified and proclaimed by the President.
2) The current cases were filed on the allegations that the results of the recently held
plebiscite and thus, Proclamation No. 1102, are null and void because:
a. It is beyond the jurisdiction of the President to implement the proposed
Constitution,
b. As Commander in Chief of the Philippine Army, the President does not have
the authority to create Citizen Assemblies,
c. "That the same are without power to approve the proposed Constitution"
???Referring to the Citizen Assemblies???
d. That the President is without power to proclaim the proposed Constitution,
e. That the elections held to ratify the propose Constitution is not a free election
and are null and void.
Issues:
1. Is the issue of the validity of Proclamation No. 1102 a justiciable, or political and therefore
non-justiciable, question?
2. 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?
3. Has the aforementioned proposed Constitution acquiesced in (with or without valid
ratification) by the people?
4. Are petitioners entitled to relief? and
5. Is the aforementioned proposed Constitution in force?
FERNANDO, J., dissenting:
Vote:
1. Yes, it is a justiciable question
2. No, it was not validly ratified
3. No Vote, there are not enough facts presented to be justifiably certain
4. Do not dismiss the petitions
5. No Vote
Rationale:
1. It is Justiciable since the 1935 Constitution has an explicit article (Article XV) about the
subject of amendments and it is within the Court's jurisdiction to ask whether or not the law was
followed in the implementation of the plebiscite process.
2. It is not a valid ratification as it did not follow the law (Article XV of the 1935
Constitution) in its conduct of ratification.
3. A plebiscite through the Citizen Assembly did happen and the results of this plesbicite
are clear but the question remains if this really is the will of the people or are there
circumstances that forced their hand to ratify the proposed consititution due to the
circumstances surrounding the plebiscite.
4. Because of the ambiguity regarding whether or not the votes are really the will of the people
that voted freely and that the ratification process itself did not comply with the constitutional
requirements. Proceeding with the petitions clarifies especially the matter of the peoples' will.
5. There is no judicial certainty yet on whether or not the people have accepted the Constitution.
TEEHANKEE, J., dissenting:
Vote:
1) Yes, it is a justiciable question
2) No, it was not validly ratified
3) No Vote, there are not enough facts presented to be justifiably certain
4) Do not dismiss the petitions
5) No Vote
Rationale:
1) It is the duty of the Supreme Court to uphold the Constitution and is able to, by the same
Constitution, conduct judicial reviews on this case.
2) It did not strictly follow the requirements made by the 1935 Constitution under Article
XV as it allowed people who are not qualified voters as defined by Article V, Section 1 of
the same Constitution to vote in the plebiscite. It is held by the Judge that strict
obedience to the letter of the law with regards to Constitutional changes are allowed as
Constitutional changes are the greatest power in a Constitutional democracy and must
be treated with utmost care.
3) Concurs with Justices Makalintal and Castro that, under martial law, there could be no
judicial certainty that the people have accepted the new Constitution.
4) Because the petitioners have raised serious questions regarding methods of ratification
which, in it's face value, shows that the requirements in amending the Constitution were not
followed, the petitions must be heard.
5) "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;"
ZALDIVAR, J., concurring and dissenting:
Vote:
1) Yes, it is a justiciable question
2) No, it was not validly ratified
3) No, the people have not yet accepted the new constitution
4) Do not dismiss the petitions
5) No, it has not yet come into effect
Rationale:
1) The Judiciary has a restraining power over the other two departments and is able to review
the legality of the act committed by either of the two departments as such the question of
whether or not the constitution has been legally amended is a justiciable one.
2) It did not follow the provisions of Article XV of the 1935 Constitution, from which the
1971 Constitutional Convention derives its own existence and authority, and neither did
it show that there were elections held that are compliant with the Election Code as was
done in previous Constitutional Amendments and the very ratification of the 1935
Constitution. The people, by erecting a Constitution, have bound themselves and must
follow the Constitution, no matter their numbers and so the ratification is not valid
despite there appearing to be a majority.
3) There is doubt as to whether the people have freedom to vote as they wish and on the
veracity of the reports from the citizen assemblies. Claiming acquiescence of the people
by virtue of their living peacefully since the enactment of the New Constitution does not
equate to acceptance of the new constitution as there are extraordinary circumstances
such as martial law to consider that may affect the peoples' actions.
4) Petitions should be heard because the ratifications in question are not legally valid.
5) It is not invalid, but rather it has not come into effect because the plebiscite ratification
required for it to take effect has not been done as the previous 'plebiscite' are not compliant with
law.
