MAKASIAR concurring opinion

Assuming, without conceding, that Article XV of the 1935 Constitution prescribes a procedure
for the ratification of constitutional amendments or of a new Constitution and that such
procedure was not complied with, the validity of Presidential Proclamation No. 1102 is a
political, not a justiciable, issue. And being political, it is beyond the ambit of judicial
inquiry

Under Article XV of the 1935 Constitution, the power to propose constitutional amendments is
vested in Congress or in a constitutional convention; while the power to ratify or reject such
proposed amendments or new Constitution is reserved by the sovereign people. Once the new
Constitution is ratified, adopted and/or acquiesced in by the people, this Court is precluded
from inquiring into the validity of such ratification, adoption or acquiescence and of the
consequent effectivity of the new Constitution. This is as it should be in a democracy, for the
people are the repository of all sovereign powers as well as the source of all governmental

The legality of the submission is no longer relevant; because the ratification, adoption and/or
acquiescence by the people cures any infirmity in its submission or any other irregularities
therein which are deemed mandatory before submission as they are considered merely directory
after such ratification or adoption or acquiescence by the people.

The inevitable consequence therefore is that the validity of the ratification or adoption of or
acquiescence by the people in the 1973 Constitution, remains a political issue removed from
the jurisdiction of this Court to review.

The classic example of an illegal submission that did not impair the validity of the
ratification or adoption of a new Constitution is the case of the Federal Constitution of the
United States.

Article XIII of the Articles of Confederation and Perpetual Union stated specifically:

The articles of this confederation shall be inviolably observed in every state, and
the union shall be perpetual; nor shall any alterations at any time hereafter be
made in any of them; unless such alteration be agreed to in a congress of the
united states, and be afterwards confirmed by the legislatures of every state.

But the foregoing requirements prescribed by the Articles of Confederation and Perpetual
Union for the alteration for the ratification of the Federal Constitution as drafted by the
Philadelphia Convention were not followed. Fearful the said Federal Constitution would not be
ratified by the legislatures as prescribed, the Philadelphia Convention adopted a resolution
requesting the Congress of the Confederation to pass a resolution providing that the Constitution
should be submitted to elected state conventions and if ratified by the conventions in nine (9)
states, not necessarily in all thirteen (13) states, the said Constitution shall take effect.

And so the American Constitution was ratified by nine (9) states on June 21, 1788 and by
the last four states on May 29, 1790 — by the state conventions and not by all thirteen (13)
state legislatures as required by Article XIII of the Articles of Confederation and Perpetual
Union aforequoted — and in spite of the fact that the Federal Constitution as originally adopted
suffers from two basic infirmities, namely, the absence of a bill of Rights and of a provision
affirming the power of judicial review.

Until this date, no challenge has been launched against the validity of the ratification of the
American Constitution, nor against the legitimacy of the government organized and
functioning thereunder.

In the 1946 case of Wheeler vs. Board of Trustees (37 SE 2nd 322, 326-330), which enunciated
the principle that the validity of a new or revised Constitution does not depend on the method of
its submission or ratification by the people, but on the fact or fiat or approval or adoption or
acquiescence by the people which fact of ratification or adoption or acquiescence is all that is
essential

It has likewise been held that it is not necessary that voters ratifying the new Constitution are
registered in the book of voters; it is enough that they are electors voting on the new
Constitution.

In the 1956 case of Thomson vs. Peoples State Bank (75 NW 2nd 370, 375), the Supreme Court
of Wisconsin ruled that "irregularity in the procedure for the submission of the proposed
constitutional amendment will not defeat the ratification by the people."

If this Court inquires into the validity of Proclamation No. 1102 and consequently of the
adoption of the 1973 Constitution it would be exercising a veto power on the act of the
sovereign people, of whom this Court is merely an agent, which to say the least, would be
anomalous. This Court cannot dictate to our principal, the sovereign people, as to how the
approval of the new Constitution should be manifested or expressed. The sovereign people
have spoken and we must abide by their decision, regardless of our notion as to what is the
proper method of giving assent to the new Charter

Even if conclusiveness is to be denied to the truth of the declaration by the President in

Proclamation No. 1102 - that the people through their Citizens' Assemblies had overwhelmingly
approved the new Constitution - due regard to a separate, coordinate and co-equal branch of the
government demands adherence to the presumption of correctness of the President's declaration..
WE cannot reverse the rule on presumptions, without being presumptuous, in the face of the
certifications by the Office the Secretary of the Department of Local Government and
Community Development. There is nothing in the records that contradicts, much less overthrow
the results of the referendum as certified. Much less are We justified in reversing the burden of
proof — by shifting it from the petitioners to the respondents. Under the rules on pleadings, the
petitioners have the duty to demonstrate by clear and convincing evidence their claim that the
people did not ratify through the Citizens' Assemblies nor adopt by acquiescence the 1973
Constitution. And have failed to do so.

Petitioners decry that even 15-year olds, ex convicts and illiterates were allowed to vote in the
Citizens' Assemblies, despite their admission that the term "Filipino people" in the preamble as
well as "people" in Sections 1 and 5 of Article II of the 1935 Constitution and in Section 1(3) of
Article III of the Bill of Rights includes all Filipino citizens of all ages, of both sexes, whether
literate or illiterate, whether peaceful citizens, rebels, secessionists, convicts or ex-convicts.
These sectors of our citizenry are entitled as much as the educated, the law abiding, and
those who are 21 years of age or above to express their conformity or non conformity to the
proposed Constitution. In the ultimate analysis, the inclusion of those from 15 years up to
below 21 years old, the ex-convicts and the ignorant, is more democratic as it broadens the
base of democracy and therefore more faithful to the express affirmation in Section 1 of Article
II of the Declaration of Principles that "sovereignty resides in the people and all government
authority emanates from them."

Included likewise in the delegated authority of the President, is the prerogative to proclaim the
results of the plebiscite or the voting the Citizens' Assemblies. Petitioners deny the accuracy or
correctness of Proclamation No. 1102 that the 1973 Constitution was ratified by the
overwhelming vote of close to 15 million citizens because there was no official certification to
the results of the same from the Department of Local Governments. But there was such
certification. Even in the absence of such certification, in much the same way that in passing
law, Congress or the legislative body is presumed to be in possession of the facts upon
which such laws are predicated. It should likewise be presumed that the President was in
possession of the fact upon which Proclamation No. 1102 was based. To deny the truth or the
proclamation of the President as to the overwhelming majority vote in the Citizens' Assemblies
in favor of the new Constitution, is to charge the President with falsification, which is a most
grievous accusation.

Until the contrary is established or demonstrated, herein petitioners should grant that the
Chief Executive is motivated by what is good for the security and stability of the country,
for the progress and happiness of the people. Now the hopes for the long-awaited reforms
to be within a year or two are brighter. It would seem therefore to the duty of everyone
including herein petitioners to give the present leadership the opportunity to institute and
carry out the needed reforms as provided for in the new or 1973 Constitution and thru the
means prescribed in that same Constitution.

WE cannot presume that we alone can speak with wisdom as against the judgment of the people
on the basic instrument which affects their very lives. WE cannot determine what is good for the
people or ought to be their fundamental law. WE can only exercise the power delegated to Us by
the sovereign people, to apply and interpret the Constitution and the laws for the benefit of the
people, not against them nor to prejudice them. WE cannot perform an act inimical to the interest
of Our principal, who at any time may directly exercise their sovereign power ratifying a new
Constitution in the manner convenient to them.

IN VIEW OF THE FOREGOING, ALL THE PETITIONS IN THESE FIVE

CASES SHOULD BE DISMISSED.
Additional MAKASIAR concurring opinion (some of the points were already mentioned above;
additional reading na lang siguro ‘to)

(there are more issues addressed by Makasiar, but this section focuses on the validity of the
ratification of the 1973 consti)

ARTICLE XV OF 1935 CONSTITUTION DOES NOT

PRESCRIBE ANY PROCEDURE FOR RATIFICATION OF
1973 CONSTITUTION.

(1) Article XV of the 1935 Constitution simply provides that "such amendments shall be valid as
part of this Constitution when approved by a majority of the votes cast at an election at which the
amendments are submitted to the people for ratification."

But petitioners construe the aforesaid provision to read: "Such amendments shall be valid as part
of this Constitution when approved by a majority of the votes cast at an election called by
Congress at which the amendments are submitted for ratification by the qualified electors
defined in Article V hereof, supervised by the Commission on Elections in accordance with the
existing election law and after such amendments shall have been published in all the newspapers
of general circulation for at least four months prior to such election."

Article XV of the 1935 Constitution does not require a specific procedure, much less a detailed
procedure for submission or ratification. As heretofore stated, it does not specify what kind of
election at which the new Constitution shall be submitted; nor does it designate the Commission
on Elections to supervise the plebiscite. Neither does it limit the ratification to the qualified
electors as defined in Article V of the 1935 Constitution. Much less does it require the
publication of the proposed Constitution for any specific period before the plebiscite nor does it
even insinuate that the plebiscite should be supervised in accordance with the existing election
law.

(2) As aforequoted, Article XV does not indicate the procedure for submission of the proposed
Constitution to the people for ratification. It does not make any reference to the Commission on
Elections as the body that shall supervise the plebiscite.. So it cannot be said that the original
framers of the 1935 Constitution as ratified May 14, 1935 intended that a body known as the
Commission on Elections should be the one to supervise the plebiscite, because the Commission
on Elections was not in existence then as was created only by Commonwealth Act No. 607
approved on August 22, 1940 and amended by Commonwealth Act No. 657 approved on June
21, 1941

3) If the framers of the 1935 Constitution and the people in ratifying the same on May 14, 1935
wanted that only the qualified voters under Article V of the 1935 Constitution should participate
in the referendum on any amendment or revision thereof, they could have provided the same in
1935 or in the 1940 amendment by just adding a few words to Article XV by changing the last
phrase to "submitted for ratification to the qualified electors as defined in Article V hereof," or
some such similar phrases.
 (4) It is not exactly correct to opine that Article XV of 1935 Constitution on constitutional
amendment contemplates the automatic applicability of election laws to plebiscites on proposed
constitutional amendments or revision.

The very phraseology of the specific laws enacted by the National Assembly and later by
Congress, indicates that there is need of a statute expressly authorizing the application of the
election laws to plebiscites of this nature. Article XV of the 1935 Constitution does not
contemplate nor envision the automatic application of the election law; and even at that, not all
the provisions of the election law were made applicable because the various laws aforecited
contain several provisions which are inconsistent with the provisions of the Revised Election
Code.

(5) Article XV of the 1935 Constitution does not specify who can vote and how they shall vote.
Article XV does not state that only qualified electors can vote in the plebiscite.

Congress itself, in enacting Republic Act No. 3590, otherwise known as the Barrio Charter,
which was approved on June 17, 1967 and superseded Republic Act No. 2370, expanded the
membership of the barrio assembly to include citizens who are at least 18 years of age, whether
literate or not, provided they are also residents of the barrio for at least 6 months

All these barrio assembly members, who are at least 18 years of age, although illiterate, may vote
at the plebiscite on the recall of any member of the barrio council or on a budgetary,
supplemental appropriation, or special ordinances, a valid action on which requires "a majority
vote of all of the barrio assembly members registered in the list of the barrio secretary". Such
plebiscite may be authorized by a majority vote of the members present in the barrio assembly,
there being a quorum.

However, in the case of election of barrio officials, only Filipino citizens, who are at least 21
years of age, able to read and write, residents of the barrio during the 6 months immediately
preceding the election and duly registered in the list of voters kept by the barrio secretary, not
otherwise disqualified, may vote

Paragraph 2 of Section 6 likewise authorizes open voting as it provides that "voting procedures
may be made ... either in writing as in regular elections, and/or declaration by the voters to the
board of election tellers."

That said paragraph 2 of Section 6 provides that "all duly registered barrio assembly members
qualified to vote may vote in the plebiscite," cannot sustain the position of petitioners in G.R.
No. L-36165 that only those who are 21 years of age and above and who possess all other
qualifications of a voter under Section 10 of R.A. No. 3590, can vote on the plebiscites referred
to in Section 6; because paragraph 3 of Section 6 does not expressly limit the voting to those
with the qualifications under Section 10 as said Section 6 does not distinguish between
those who are 21 or above on the one hand and those 18 or above but below 21 on the
other, and whether literate or not, to constitute a quorum of the barrio assembly.
Consequently, on questions submitted for plebiscite, all the registered members of the barrio
assembly can vote as long as they are 18 years of age or above; and that only those who are 21
years of age or over and can read and write, can vote in the elections of barrio officials.

It is not necessary that voters ratifying the new Constitution are registered in the book of voters;
it is enough that they are electors voting on the new Constitution. The fact that the number of
actual voters in the referendum in certain localities may exceed the number of voters actually
registered for the 1971 elections, can only mean that the excess represents the qualified voters
who are not yet registered including those who are at least 15 years of age and the illiterates.
Although ex-convicts may have voted also in the referendum, some of them might have been
granted absolute pardon or were sentenced to less than one year imprisonment to qualify them to
vote. At any rate, the ex-convicts constitute a negligible number, discounting which would
not tilt the scale in favor of the negative votes.

(6) It is also urged that martial law being the rule of force, is necessarily inconsistent with
freedom of choice, because the people fear to disagree with the President and Commander-
in-Chief of the Armed Forces of the Philippines and therefore cannot voice views opposite
to or critical of the position of the President on the 1973 Constitution and on the mode of its
ratification.

Even without martial law, the penal, civil or administrative sanction provided for the violation of
ordinarily engenders fear in the individual which persuades the individual to comply with or
obey the law. The fear that is generated by martial law is merely the fear of immediate
execution and swift enforcement of the law and therefore immediate infliction of the
punishment or sanction prescribed by the law whenever it is transgressed during the
period of martial law. This is not the fear that affects the voters' freedom of choice or
freedom to vote for or against the 1973 Constitution. Those who cringe in fear are the
criminals or the law violators. Surely, petitioners do not come under such category.

(7) Petitioners likewise claim that open voting by viva voce or raising of hands violates the
secrecy of the ballot as by the election laws. But the 1935 Constitution does not require
secret voting. We search in vain for such guarantee or prescription in said organic law. The
Commission on Elections under the 1940 Amendment, embodied as Article X is merely
mandated to insure "free, orderly and honest election." Congress, under its plenary law-making
authority, could have validly prescribed in the election law open voting in the election of public
officers, without trenching upon the Constitution. Any objection to such a statute concerns its
wisdom or propriety, not its legality or constitutionality. We have seen even before and during
martial law that voting in meetings of government agencies or private organizations is usually
done openly. This is specially true in sessions of Congress, provincial boards, city councils,
municipal boards and barrio councils when voting on national or local issues, not on
personalities.

Then again, open voting was not a universal phenomenon in the Citizens' Assemblies. It might
have been true in certain areas, but that does not necessarily mean that it was done throughout
the country.
(8) Petitioners likewise claim that there was no sufficient publicity given to the new
Constitution. This is quite inaccurate; because even before the election in November, 1970 of
delegates to the Constitutional Convention, the proposed reforms were already discussed in
various forums and through the press as well as other media of information.

Petitioners cannot safely assume that all the peaceful citizens of the country, who constitute the
majority of the population, do not like the reforms stipulated in the new Constitution, as well as
the decrees, orders and circulars issued to implement the same. It should be recalled, as
hereinbefore stated, that all these reforms were the subject of discussion both in the committee
hearings and on the floor of the Constitutional Convention, as well as in public forums sponsored
by concerned citizens or civic organizations at which Con-Con delegates as well as other
knowledgeable personages expounded their views thereon and in all the media of information
before the proclamation of martial law on September 21, 1972. This is the reason why the
Constitutional Convention, after spending close to P30 million during the period from June 1,
1971 to November 29, 1972, found it expedient to accelerate their proceedings in November,
1972 because all views that could possibly be said on the proposed provisions of the 1973
Constitution were already expressed and circulated. The 1973 Constitution may contain some
unwise provisions. But this objection to such unwise or vague provisions, as heretofore stated,
refers to the wisdom of the aforesaid provisions, which issue is not for this Court to decide;
otherwise We will be substituting Our judgment for the judgment of the Constitutional
Convention and in effect acting as a constituent assembly.