TEEHANKEE; DISSENTING

ISSUE: Whether the purported ratification of the proposed Constitution as signed on November 30, 1972
by the 1971 Constitutional Convention may be said also to have substantially complied with its own
mandate that "This Constitution shall take immediately upon its ratification by a majority of the votes
cast in a plebiscite called for the purpose and except as herein provided, shall supersede the Constitution
of 1935 and all amendments thereto."

RESPONDENT’S ARGUMENTS: The fact of approval of the new Constitution by an overwhelming

majority of the votes cast as declared and certified in Proclamation No. 1102 is conclusive on the courts,
even though those who had participated in the elections were 18 years old, below the 21 years required
by the 1935 constitution. According to respondents, the procedure outlined in Article XV of the 1935
Constitution was not intended to be exclusive of other procedures, especially one which contemplates
popular and direct participation of the citizenry.

The respondents thus cite the Emergency Powers cases, wherein the Court in its Resolution of Sept 16,
1949, declared that the prewar emergency powers delegated by the Congress to the President under CA
671 in pursuance to Article VI of the Constitution of 1935 HAD CEASED.

TEHANKEE’S BAD-ASS (it’s so bad-ass that I almost cried because it’s bad-assness was kind of
confusing) DISSENTING OPINION:

FIRST ARGUMENT: Not all EO’s under CA 671 are void per se (he’s referring to the Emergency Powers
cases)

RATIONAL FOR FIRST ARGUMENT: Upon the other hand, while I believe that the emergency powers (in
the Emergency Powers case) had ceased in June 1945, I am not prepared to hold that all executive orders
issued thereafter under Commonwealth Act No. 671, are per se null and void. 1

1 Here are the EO’s he believes to not be null and void per se:
And I hold that before nullifying them, other important circumstances should be inquired into, as for
instance, whether or not they have been ratified by Congress expressly or impliedly, whether their
purposes have already been accomplished entirely or partially, and in the last instance, to what extent;
acquiescence of litigants; de facto officers; acts and contracts of parties acting in good faith; etc. It is my
opinion that each executive order must be viewed in the light of its peculiar circumstances, and, if
necessary and possible, nullifying it, precautionary measures should be taken to avoid harm to public
interest and innocent parties.

SECOND ARGUMENT: The Constitution is a "superior paramount law, unchangeable by ordinary

means" EXCEPT by a plebiscite of qualified and duly registered voters twentyone years of age or over
20 and duly supervised by the Commission on Elections, 21 in accordance with the cited mandatory
constitutional requirements

RATIONAL S FOR SECOND ARGUMENT:

i. Existing jurisprudence

To paraphrase U.S. Chief Justice John Marshall who first declared in the historic 1803 case of Marbury
vs. Madison the U.S. Supreme Court's power of judicial review and to declare void laws repugnant to
the Constitution, there is no middle ground between these two alternatives. As Marshall expounded it:
"(T)he Constitution is either a superior paramount law, unchangeable by ordinary means, or it is on a
level with ordinary legislative acts, and, like other acts, alterable when the legislature shall please to alter
it. If the former part of the alternative be true, then a legislative act, contrary to the Constitution, is not
law; if the latter part be true, then written constitutions are absurd attempts on the part of a people, to
limit a power, in its own nature, illimitable."

Jose Laurel, in the case of Angara, says, "(T)he Constitution sets forth in no uncertain language the
restrictions and limitations upon governmental powers and agencies. If these restrictions and limitations
are transcended it would be inconceivable if the Constitution had not provided for a mechanism by
which to direct the course of government along constitutional channels, for then the distribution of
powers would be mere verbiage, the bill of rights mere expressions of sentiment, and the principles of
good government mere political apothegms. Certainly, the limitations of good government and
restrictions embodied in our Constitution are real as they should be in any living Constitution”

i. Executive Order No. 73, issued on November 12, 1945, appropriating the sum of
P6,750,000 for public works;
ii. Executive Order No. 86, issued on January 7, 1946, amending a previous order regarding
the organization of the Supreme Court;
iii. Executive Order No. 89, issued on January 1, 1946, reorganizing Courts of First Instance;
iv. Executive Order No. 184, issued on November 19, 1948, controlling rice and palay to
combat hunger; and other executive orders appropriating funds for other purposes.
Justice Laurel pointed out that in contrast to the United States Constitution, the Philippine Constitution
as "a definition of the powers of government" placed upon the judiciary the great burden of
"determining the nature, scope and extent of such powers" and stressed that "when the judiciary
mediates to allocate constitutional boundaries, it does not assert any superiority over the other
departments ... but only asserts the solemn and sacred obligation entrusted to it by the Constitution to
determine conflicting claims of authority under the Constitution and to establish for the parties in an
actual controversy the rights which the instrument secures and guarantees to them." II Marshall was to
utter much later in the equally historic 1819 case of McCulloch vs. Maryland 27 the "climactic phrase,"
"we must never forget that it is a constitution we are expounding," — termed by Justice Frankfurter as
"the single most important utterance in the literature of constitutional law — most important because
most comprehensive and comprehending."

The Tolentino case states that the Convention and its officers and members are all subject to all the
provisions of the existing Constitution. Now We hold that even as to its latter task of proposing
amendments to the Constitution, it is subject to the provisions of Section 1 of Article XV. This must be so,
because it is plain to Us that the framers of the Constitution took care that the process of amending the
same should not be undertaken with the same ease and facility in changing an ordinary legislation.
Constitution making is the most valued power, second to none, of the people in a constitutional
democracy such as the one our founding fathers have chosen for this nation, and which we of the
succeeding generations generally cherish. And because the Constitution affects the lives, fortunes, future
and every other conceivable aspect of the lives of all the people within the country and those subject to
its sovereignty, every degree of care is taken in preparing and drafting it. A constitution worthy of the
people for deliberation and study. It is obvious that correspondingly , any amendment of the
Constitution is of no less importance than the whole Constitution itself

Thus, as a rule, the original constitutions carry with them limitations and conditions, more or less
stringent, made so by the people themselves, in regard to the process of their amendment. And when
such limitations or conditions are so incorporated in the original constitution, it does not lie in the
delegates of any subsequent convention to claim that they may ignore and disregard such conditions
because they are powerful and omnipotent as their original counterparts

ii. Bad-ass logic based on jurisprudence

We are certain no one can deny that in order that a plebiscite for the ratification of an amendment to
the Constitution may be validly held, it must provide the voter not only sufficient time but ample basis
for an intelligent appraisal of the nature of amendment per se as well as its relation to the other parts of
the Constitution with which it has to form a harmonious whole.

We are of the opinion that the present Constitution does not contemplate in Section 1 of Article XV a
plebiscite or "election" wherein the people are in the dark as to frame of reference they can base their
judgment on. We reject the rationalization that the present Constitution is a possible frame of reference,
for the simple reason that intervenors themselves are stating the sole purpose of the proposed
amendment is to enable the eighteen year olds to take part in the election for the ratification of the
Constitution to be drafted by the Convention. In brief, under the proposed plebiscite, there can be, in the
language of Justice Sanchez, speaking for the six members of the Court in Gonzales, supra, 'no proper
submission.

What the Constitution in effect directs is that the government, in submitting an amendment for
ratification, should put every instrumentality or agency within its structural framework to enlighten the
people, educate them with respect to their act of ratification or rejection. For as we have earlier stated,
one thing is submission and another is ratification. There must be fair submission, intelligent consent or
rejection.

For if we allow 18 years olds to be part, does it thereby mean that the 18year old should not also
shoulder the moral and legal responsibilities of the 21year old? Will he be required to compulsory
military service under the colors? Will the contractual consent be reduced to 18 years? If I vote against
the amendment, will I not be unfair to my own child who will be 18 years old, come 1973? The above are
just samplings from here, there and everywhere — from a domain (of searching questions) the bounds
of which are not immediately ascertainable. Surely, many more questions can be added to the already
long litany. And the answers cannot except as the questions are debated fully, pondered upon
purposefully, and accorded undivided attention. Scanning the contemporary scene, we say that the
people are not, and by election time will not be, sufficiently informed of the meaning, nature and effects
of the proposed constitutional amendment. They have not been afforded ample time to deliberate
thereon conscientiously. They have been and are effectively distracted from a full and dispassionate
consideration of the merits and demerits of the proposed amendment by their traditional pervasive

BAD-ASS
involvement in local elections and politics. They cannot thus weigh in tranquility the need for and the
wisdom proposed amendment.

THIRD ARGUMENT: The court does has jurisdiction over this case

In fact, respondents and the intervenors originally maintained that We have no jurisdiction to entertain
the petition herein, upon the ground that the issue therein raised is a political one. Aside from the
absence of authority to pass upon political question, it is obviously improper and unwise for the bench
to develop into such questions owing to the danger of getting involved in politics, more likely of a
partisan nature, and, hence, of impairing the image and the usefulness of courts of justice as objective
and impartial arbiters of justiciable controversies. Then, too, the suggested course of action, if adopted,
would constitute a grievous disservice to the people and the very Convention itself. Indeed, the latter
and the Constitution it is in the process of drafting stand essentially for the Rule of Law. However, as the
Supreme Law of the land, a Constitution would not be worthy of its name, and the Convention called
upon to draft it would be engaged in a futile undertaking, if we did not exact faithful adherence to the
fundamental tenets set forth in the Constitution and compliance with its provisions were not obligatory.
If we, in effect, approved, consented to or even overlooked a circumvention of said tenets and
provisions, because of the good intention with which Resolution No. 1 is animated, the Court would
thereby become the Judge of the good or bad intentions of the Convention and thus be involved in a
question essentially political in nature

FORTH ARGUMENT: By people, it is meant aged 21 years above

Where this Court held in Tolentino that "any amendment of the Constitution is of no less importance
than the whole Constitution itself and perforce must be conceived and prepared with as much care and
deliberation", it would appeal that the reverse would equally be true; which is to say, that the adoption
of a whole new Constitution would be of no less importance than any particular amendment and
therefore the necessary care and deliberation as well as the mandatory restrictions and safeguards in the
amending process ordained by the people themselves so that "they (may) be insulated against
precipitate and hasty actions motivated by more or less passing political moods or fancies" must
necessarily equally apply thereto. III 1. To restate the basic premises, the people provided in Article XV of
the Constitution for the amending process only "by approval by a majority of the votes cast at an
election at which the (duly proposed) amendments are submitted to the people for their ratification."
The people ordained in Article V, section 1 that only those thereby enfranchised and granted the right of
suffrage may speak the "will of the body politic", viz, qualified literate voters twenty one years of age or
over with one year's residence in the municipality where they have registered. The people, not as yet
satisfied, further provided by amendment duly approved in 1940 in accordance with Article XV, for the
creation of an independent Commission on Elections with "exclusive charge" for the purpose of "insuring
free, orderly and honest elections" and ascertaining the true will of the electorate — and more, as ruled
by this Court in Tolentino, in the case of proposed constitutional amendments, insuring proper
submission to the electorate of such proposals

*Note, he has other arguments, but these are the most important ones