Planas vs.

Commission on Elections
[GR L-35925, 22 January 1973]; also Sanidad vs.
Comelec [GR L-35929], Roxas vs. Comelec [GR L-
35940], Monteclaro vs. Comelec [GR L-35941],
Ordonez vs. National Treasurer of the Philippines
[GR L-35942], Tan vs. Comelec [GR L-35948],
Diokno vs. Comelec [GR L-35953], Jimenez vs.
Comelec [GR L-35961], Gonzales vs. Comelec
[GR L-35965], and Hidalgo vs. Comelec [GR L-
35979]
Second Division, Concepcion (J): 3 concur, 3
concur in separate opinions, 1 concurs as
recapitulated, 1 dissents in separate opinion, 2
filed separate opinions

Facts: On 16 March 1967, Congress of the

Philippines passed Resolution 2, which was
amended by Resolution 4 of said body, adopted
on 17 June 1969, calling a Convention to propose
amendments to the Constitution of the
Philippines. Said Resolution 2, as amended, was
implemented by RA 6132, approved on 24
August 1970, pursuant to the provisions of which
the election of delegates to said Convention was
held on 10 November 1970, and the 1971
Constitutional Convention began to perform its
functions on 1 June 1971. While the Convention
was in session on 21 September 1972, the
President issued Proclamation 1081 placing the
entire Philippines under Martial Law. On 29
November 1972, the Convention approved its
Proposed Constitution of the Republic of the
Philippines. The next day, 30 November 1972,
the President of the Philippines issued
Presidential Decree 73, "submitting to the
Filipino people for ratification or rejection the
Constitution of the Republic of the Philippines
proposed by the 1971 Constitutional Convention,
and appropriating funds therefor," as well as
setting the plebiscite for said ratification or
rejection of the Proposed Constitution on 15
January 1973. Soon after, or on 7 December
1972, Charito Planas filed, with the Supreme
Court, Case GR L-35925, against the Commission
on Elections, the Treasurer of the Philippines and
the Auditor General, to enjoin said "respondents
or their agents from implementing Presidential
Decree 73, in any manner, until further orders of
the Court," upon the grounds, inter alia, that said
Presidential Decree "has no force and effect as
law because the calling of such plebiscite, the
setting of guidelines for the conduct of the same,
the prescription of the ballots to be used and the
question to be answered by the voters, and the
appropriation of public funds for the purpose,
are, by the Constitution, lodged exclusively in
Congress," and "there is no proper submission to
the people of said Proposed Constitution set for
15 January 1973, there being no freedom of
speech, press and assembly, and there being no
sufficient time to inform the people of the
contents thereof." Substantially identical actions
were filed. Meanwhile, or on 17 December 1972,
the President had issued an order temporarily
suspending the effects of Proclamation 1081, for
the purpose of free and open debate on the
Proposed Constitution. On December 23, the
President announced the postponement of the
plebiscite for the ratification or rejection of the
Proposed Constitution. No formal action to this
effect was taken until 7 January 1973, when
General Order 20 was issued, directing "that the
plebiscite scheduled to be held on 15 January
1973, be postponed until further notice." Said
General Order 20, moreover, "suspended in the
meantime" the "order of 17 December 1972,
temporarily suspending the effects of
Proclamation 1081 for purposes of free and open
debate on the proposed Constitution." In view of
the events relative to the postponement of the
plebiscite, the Court deemed it fit to refrain, for
the time being, from deciding the cases, for
neither the date nor the conditions under which
said plebiscite would be held were known or
announced officially. Then, again, Congress was,
pursuant to the 1935 Constitution, scheduled to
meet in regular session on 22 January 1973, and
since the main objection to Presidential Decree
73 was that the President does not have the
legislative authority to call a plebiscite and
appropriate funds therefor, which Congress
unquestionably could do, particularly in view of
the formal postponement of the plebiscite by the
President — reportedly after consultation with,
among others, the leaders of Congress and the
Commission on Elections — the Court deemed it
more imperative to defer its final action on these
cases. In the afternoon of 12 January 1973, Vidal
Tan, et. al. [GR L-35948] filed an "urgent
motion," praying that said case be decided "as
soon as possible, preferably not later than 15
January 1973." It was alleged in said motion,
"that the President subsequently announced the
issuance of Presidential Decree 86 organizing the
so-called Citizens Assemblies, to be consulted on
certain public questions; and that thereafter it
was later announced that 'the Assemblies will be
asked if they favor or oppose — [1] The New
Society; [2] Reforms instituted under Martial
Law; [3] The holding of a plebiscite on the
proposed new Constitution and when (the
tentative new date given following the
postponement of the plebiscite from the original
date of January 15 are February 19 and March 5);
[4] The opening of the regular session slated on
January 22 in accordance with the existing
Constitution despite Martial Law."

Issue [1]: Whether the Court has authority to

pass upon the validity of Presidential Decree 73.

Held [1]: Presidential Decree 73 purports to have

the force and effect of a legislation, so that the
issue on the validity thereof is manifestly a
justiciable one, on the authority, not only of a
long list of cases in which the Court has passed
upon the constitutionality of statutes and/or acts
of the Executive, 1 but, also, of no less than that
of Subdivision (1) of Section 2, Article VIII of the
1935 Constitution, which expressly provides for
the authority of the Supreme Court to review
cases involving said issue.

Issue [2]: Whether the President has the

authority to issue PD 73 to submit to the People
the Constitution proposed by the Convention.

Held [2]: As regards the authority of the

President to issue Presidential Decree 73,
"submitting to the Filipino people (on January 15,
1973) for ratification or rejection the Constitution
of the Republic of the Philippines proposed by
the 1971 Constitutional Convention and
appropriating funds therefor," it is unnecessary,
for the time being, to pass upon such question,
because the plebiscite ordained in said Decree
has been postponed. In any event, should the
plebiscite be scheduled to be held at any time
later, the proper parties may then file such
action as the circumstances may justify.

Issue [3]: Whether martial law per se affects the

validity of a submission to the people for
ratification of specific proposals for amendment
of the Constitution.

Held [3]: The matter is one intimately and

necessarily related to the validity of Proclamation
No. 1102 of the President of the Philippines. This
question has not been explicitly raised, however,
in any of the cases under consideration, said
cases having been filed before the issuance of
such Proclamation, although the petitioners in L-
35948 maintain that the issue on the referral of
the Proposed Constitution to the Citizens'
Assemblies may be deemed and was raised in
their Supplemental Motion of January 15, 1973.
At any rate, said question has not been
adequately argued by the parties in any of these
cases, and it would not be proper to resolve such
a transcendental question without the most
thorough discussion possible under the
circumstances. In fairness to the petitioners in L-
35948 and considering the surrounding
circumstances, that instead of dismissing the
case as moot and academic, said petitioners
should be given a reasonable period of time
within which to move in the premises.

Held (totality): Recapitulating the views

expressed by the Members of the Court, the
result is this: (1) There is unanimity on the
justiciable nature of the issue on the legality of
Presidential Decree 73. (2) On the validity of the
decree itself, Justices Makalintal, Castro,
Fernando, Teehankee, Esguerra and Concepcion,
or 6 Members of the Court, are of the opinion
that the issue has become moot and academic,
whereas Justices Barredo, Makasiar and Antonio
voted to uphold the validity of said Decree. (3)
On the authority of the 1971 Constitutional
Convention to pass the proposed Constitution or
to incorporate therein the provisions contested
by the petitioners in L-35948, Justice Makalintal,
Castro, Teehankee and Esguerra opine that the
issue has become moot and academic. Justice
Fernando, Barredo, Makasiar, Antonio and
Concepcion have voted to uphold the authority
of the Convention. (4) Justice Fernando, likewise,
expressed the view that the 1971 Constitutional
Convention had authority to continue in the
performance of its functions despite the
proclamation of Martial Law. In effect, Justices
Barredo, Makasiar and Antonio hold the same
view. (5) On the question whether the
proclamation of Martial Law affected the proper
submission of the proposed Constitution to a
plebiscite, insofar as the freedom essential
therefor is concerned, Justice Fernando is of the
opinion that there is a repugnancy between the
election contemplated under Art. XV of the 1935
Constitution and the existence of Martial Law,
and would, therefore, grant the petitions were
they not moot and academic. Justices Barredo,
Antonio and Esguerra are of the opinion that that
issue involves question of fact which cannot be
predetermined, and that Martial Law per se does
not necessarily preclude the factual possibility of
adequate freedom for the purposes
contemplated. (6) On Presidential Proclamation
No. 1102, the following views were expressed:
[a] Justices Makalintal, Castro, Fernando,
Teehankee, Makasiar, Esguerra and Concepcion
are of the opinion that question of validity of said
Proclamation has not been properly raised before
the Court, which, accordingly, should not pass
upon such question. [b] Justice Barredo holds
that the issue on the constitutionality of
Proclamation No. 1102 has been submitted to
and should be determined by the Court, and that
the "purported ratification of the Proposed
Constitution based on the referendum among
Citizens' Assemblies falls short of being in strict
conformity with the requirements of Article XV of
the 1935 Constitution," but that such unfortunate
drawback notwithstanding, "considering all other
related relevant circumstances, the new
Constitution is legally recognizable and should he
recognized as legitimately in force." [c] Justice
Zaldivar maintains unqualifiedly that the
Proposed Constitution has not been ratified in
accordance with Article XV of the 1935
Constitution, and that, accordingly, it has no
force and effect whatsoever. [d] Justice Antonio
feels "that the Court is not competent to act" on
the issue whether the Proposed Constitution has
been ratified by the people or not, "in the
absence of any judicially discoverable and
manageable standards," since the issue "poses a
question of fact." (7) On the question whether or
not these cases should be dismissed, Justices
Makalintal, Castro Barredo, Makasiar, Antonio
and Esguerra voted in the affirmative, for the
reasons set forth in their respective opinions.
Justices Fernando, Teehankee and the writer
similarly voted, except as regards Case No. L-
35948 as to which they voted to grant to the
petitioners therein a reasonable period of time
within which to file appropriate pleadings should
they wish to contest the legality of Presidential
Proclamation 1102. Justice Zaldivar favors the
granting of said period to the petitioners in said
Case No. L-35948 for the purpose, but he
believes, in effect, that the Court should go
farther and decide on the merits everyone of the
cases under consideration. Wherefore, all of the
cases are dismissed, without special
pronouncement as to costs.