AVELLANA VS.

EXECUTIVE SECRETARY
G.R. No. L-36142, March 31 1973, 50 SCRA 33
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, respondents including.
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 Citizens
assemblies void. Proceedings held in such Citizens 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 Citizens 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 Citizens 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 citizens 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 citizens assemblies did not adopt the
proposed constitution. It is to my mind a matter of judicial knowledge that there have been
no such citizens 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.