U.S. Supreme Court "Sec. 2.

"Sec. 2. Languages, other than the English language, may be taught the police power of the state. Pohl v. State, 132 N.E. (Ohio) 20; State
Meyer v. Nebraska, 262 U.S. 390 (1923) as languages only after a pupil shall have attained and successfully v. Bartels, 181 N.W. (Ia.) 508."
passed the eighth grade as evidenced by a certificate of graduation "It is suggested that the law is an unwarranted restriction, in that it
Meyer v. State of Nebraska
issued by the county superintendent of the county in which the child applies to all citizens of the state and arbitrarily interferes with the
No. 325 resides." rights of citizens who are not of foreign ancestry, and prevents
Argued February 23, 1923 "Sec. 3. Any person who violates any of the provisions of this act them, without reason, from having their children taught foreign
Decided June 4, 1923 shall be deemed guilty of a misdemeanor and upon conviction, shall languages in school. That argument is not well taken, for it assumes
262 U.S. 390 be subject to a fine of not less than twenty-five dollars ($25), nor that every citizen finds himself restrained by the statute. The hours
ERROR TO THE SUPREME COURT OF THE STATE OF NEBRASKA more than one hundred dollars ($100) or be confined in the county which a child is able to devote to study in the confinement of school
jail for any period not exceeding thirty days for each offense." are limited. It must have ample time for exercise or play. Its daily
Syllabus
"Sec. 4. Whereas, an emergency exists, this act shall be in force from capacity for learning is comparatively small. A selection of subjects
A state law forbidding, under penalty, the teaching in any private, for its education, therefore, from among the many that might be
and after its passage and approval."
denominational, parochial or public school, of any modern taught, is obviously necessary. The legislature no doubt had in mind
language, other than English, to any child who has not attained and The Supreme Court of the State affirmed the judgment of
conviction. 107 Neb. 657. It declared the offense charged and the practical operation of the law. The law affects few citizens,
successfully except those of foreign lineage.
established was "the direct and intentional teaching of the German
Page 262 U. S. 391 Page 262 U. S. 399
language as a distinct subject to a child who had not passed the
passed the eighth grade, invades the liberty guaranteed by the eighth grade," in the parochial school maintained by Zion Other citizens, in their selection of studies, except perhaps in rare
Fourteenth Amendment and exceeds the power of the State. P. 262 Evangelical Lutheran Congregation, a collection of Biblical stories instances, have never deemed it of importance to teach their
U. S. 399. being used therefor. And it held that the statute forbidding this did children foreign languages before such children have reached the
So held where the statute was applied in punishment of an not conflict with the Fourteenth Amendment, but was a valid eighth grade. In the legislative mind, the salutary effect of the
instructor who taught reading in German, to a child of ten years, in a exercise of the police power. The following excerpts from the statute no doubt outweighed the restriction upon the citizens
parochial school. opinion sufficiently indicate the reasons advanced to support the generally, which, it appears, was a restriction of no real
107 Neb. 657, reversed. conclusion. consequence."
ERROR to a judgment of the Supreme Court of Nebraska affirming a "The salutary purpose of the statute is clear. The legislature had The problem for our determination is whether the statute, as
conviction for infraction of a statute against teaching of foreign seen the baneful effects of permitting foreigners, construed and applied, unreasonably infringes the liberty
languages to young children in schools. Page 262 U. S. 398 guaranteed to the plaintiff in error by the Fourteenth Amendment.
Page 262 U. S. 396 who had taken residence in this country, to rear and educate their "No State shall . . . deprive any person of life, liberty, or property,
children in the language of their native land. The result of that without due process of law."
MR. JUSTICE McREYNOLDS delivered the opinion of the Court.
condition was found to be inimical to our own safety. To allow the While this Court has not attempted to define with exactness the
Plaintiff in error was tried and convicted in the District Court for
children of foreigners, who had emigrated here, to be taught from liberty thus guaranteed, the term has received much consideration
Hamilton County, Nebraska, under an information which charged
early childhood the language of the country of their parents was to and some of the included things have been definitely stated.
that, on May 25, 1920, while an instructor in Zion Parochial School,
rear them with that language as their mother tongue. It was to Without doubt, it denotes not merely freedom from bodily restraint,
he unlawfully taught the subject of reading in the German language
educate them so that they must always think in that language, and, but also the right of the individual to contract, to engage in any of
to Raymond Parpart, a child of ten years, who had not attained
as a consequence, naturally inculcate in them the ideas and the common occupations of life, to acquire useful knowledge, to
Page 262 U. S. 397 marry, establish a home and bring up children, to worship God
sentiments foreign to the best interests of this country. The statute,
and successfully passed the eighth grade. The information is based therefore, was intended not only to require that the education of all according to the dictates of his own conscience, and generally to
upon "An act relating to the teaching of foreign languages in the children be conducted in the English language, but that, until they enjoy those privileges long recognized at common law as essential
State of Nebraska," approved April 9, 1919, which follows [Laws had grown into that language and until it had become a part of to the orderly pursuit of happiness by free men.Slaughter-House
1919, c. 249.]: them, they should not in the schools be taught any other language. Cases, 16 Wall. 36; Butchers' Union Co. v. Crescent City Co., 111 U. S.
"Section 1. No person, individually or as a teacher, shall, in any The obvious purpose of this statute was that the English language 746; Yick Wo v. Hopkins,118 U. S. 356; Minnesota v. Barber, 136 U.
private, denominational, parochial or public school, teach any should be and become the mother tongue of all children reared in S. 313; Allgeyer v. Louisiana, 165 U. S. 578; Lochner v. New York, 198
subject to any person in any language other than the English this state. The enactment of such a statute comes reasonably within U. S. 45; Twining v. New Jersey, 211 U. S. 78; Chicago, Burlington &
language." Quincy R.R. Co. v. McGuire, 219 U. S. 549; Truax v. Raich, 239 U. S.
33; Adams v. Tanner, 244 U. S. 590; New York Life Ins. Co. v. but German, French, Spanish, Italian and every other alien speech could impose such restrictions upon the people of a State without
Dodge, 246 U. S. 357; Truax v. Corrigan, 257 U. S. 312; Adkins v. are within the ban. Evidently the legislature has attempted doing violence to both letter and spirit of the Constitution.
Children's Hospital, 261 U. S. 525; Wyeth v. Cambridge Board of materially to interfere with the calling of modern language teachers, The desire of the legislature to foster a homogeneous people with
Health, 200 Mass. 474. The established doctrine is that this liberty with the opportunities of pupils to acquire knowledge, and with the American ideals prepared readily to understand current discussions
may not be interfered power of parents to control the education of their own. of civic matters is easy to appreciate. Unfortunate experiences
Page 262 U. S. 400 It is said the purpose of the legislation was to promote civic during the late war and aversion toward every characteristic of
with, under the guise of protecting the public interest, by legislative development by inhibiting training and education of the immature truculent adversaries were certainly enough to quicken that
action which is arbitrary or without reasonable relation to some in foreign tongues and ideals before they could learn English and aspiration. But the means adopted, we think, exceed the limitations
purpose within the competency of the State to effect. acquire American ideals, and "that the English language should be upon the power of the State and conflict with rights assured to
Determination by the legislature of what constitutes proper exercise and become the mother tongue of all children reared in this State." plaintiff in error. The interference is plain enough, and no adequate
of police power is not final or conclusive, but is subject to It is also affirmed that the foreign born population is very large, that reason therefor in time of peace and domestic tranquility has been
supervision by the courts. Lawton v. Steele, 152 U. S. 133, 152 U. S. certain communities commonly use foreign words, follow foreign shown.
137. leaders, move in a foreign atmosphere, and that the children are The power of the State to compel attendance at some school and to
The American people have always regarded education and thereby hindered from becoming citizens of the most useful type, make reasonable regulations for all schools, including a requirement
acquisition of knowledge as matters of supreme importance which and the public safety is imperiled. that they shall give instructions in English, is not questioned. Nor has
should be diligently promoted. The Ordinance of 1787 declares, That the State may do much, go very far, indeed, in order to challenge been made of the State's power to prescribe a curriculum
"Religion, morality, and knowledge being necessary to good improve the quality of its citizens, physically, mentally and morally, for institutions which it supports. Those matters are not within the
government and the happiness of mankind, schools and the means is clear; but the individual has certain fundamental rights which present controversy. Our concern is with the prohibition approved
of education shall forever be encouraged." must be respected. The protection of the Constitution extends to all, by the Supreme Court. Adams v.
to those who speak other languages as well as to those born with Page 262 U. S. 403
Corresponding to the right of control, it is the natural duty of the
English on the tongue. Perhaps it would be highly advantageous if all Tanner, supra, p. 244 U. S. 594, pointed out that mere abuse
parent to give his children education suitable to their station in life, had ready understanding of our ordinary speech, but this cannot be
and nearly all the States, including Nebraska, enforce this obligation incident to an occupation ordinarily useful is not enough to justify
coerced by methods which conflict with the Constitution -- a its abolition, although regulation may be entirely proper. No
by compulsory laws.
desirable end cannot be promoted by prohibited means. emergency has arisen which renders knowledge by a child of some
Practically, education of the young is only possible in schools For the welfare of his Ideal Commonwealth, Plato suggested a law
conducted by especially qualified persons who devote themselves language other than English so clearly harmful as to justify its
which should provide: inhibition with the consequent infringement of rights long freely
thereto. The calling always has been regarded as useful and
honorable, essential, indeed, to the public welfare. Mere knowledge "That the wives of our guardians are to be common, and their enjoyed. We are constrained to conclude that the statute as applied
of the German language cannot reasonably be regarded as harmful. children are to be common, and no parent is to know his own child, is arbitrary and without reasonable relation to any end within the
Heretofore it has been commonly looked upon as helpful and Page 262 U. S. 402 competency of the State.
desirable. Plaintiff in error taught this language in school as part of nor any child his parent. . . . The proper officers will take the As the statute undertakes to interfere only with teaching which
his occupation. His right thus to teach and the right of parents to offspring of the good parents to the pen or fold, and there they will involves a modern language, leaving complete freedom as to other
engage him so to instruct their children, we think, are within the deposit them with certain nurses who dwell in a separate quarter; matters, there seems no adequate foundation for the suggestion
liberty of the Amendment. but the offspring of the inferior, or of the better when they chance that the purpose was to protect the child's health by limiting his
The challenged statute forbids the teaching in school of any subject to be deformed, will be put away in some mysterious, unknown mental activities. It is well known that proficiency in a foreign
except in English; also the teaching of any other language until the place, as they should be." language seldom comes to one not instructed at an early age, and
pupil has attained and successfully passed the eighth grade, which is In order to submerge the individual. and develop ideal citizens, experience shows that this is not injurious to the health, morals or
not usually accomplished before the age of twelve. The Supreme Sparta assembled the males at seven into barracks and intrusted understanding of the ordinary child.
Court of the State has held that "the so-called ancient or dead their subsequent education and training to official guardians. The judgment of the court below must be reversed, and the cause
languages" are not "within the spirit or the purpose of Although such measures have been deliberately approved by men remanded for further proceedings not inconsistent with this
Page 262 U. S. 401 of great genius, their ideas touching the relation between individual opinion. Reversed. [See the separate opinion of MR. JUSTICE
and State were wholly different from those upon which our HOLMES, concurred in by MR. JUSTICE SUTHERLAND, in the next
the act." Nebraska District of Evangelical Lutheran Synod v.
institutions rest, and it hardly will be affirmed that any legislature case, at p. 262 U. S. 412, infra.]
McKelvie, 187 N.W. 927. Latin, Greek, Hebrew are not proscribed;
 U.S. Supreme Court Page 268 U. S. 511 Appellee, the Society of Sisters, is an Oregon corporation, organized
Pierce v. Society of Sisters, 268 U.S. 510 (1925) become irreparable if relief be postponed to that time, a suit to in 1880, with power to care for orphans, educate and instruct the
Pierce v. Society of Sisters restrain future enforcement of the statute is not premature. P. 268 youth, establish and maintain academies or schools, and acquire
U. S. 536. necessary real and personal
Nos. 583, 584
296 Fed. 928, affirmed. Page 268 U. S. 532
Argued March 16, 17, 1925
APPEALS from decrees of the District Court granting preliminary property. It has long devoted its property and effort to the secular
Decided June 1, 1925 and religious education and care of children, and has acquired the
injunctions restraining the Governor, and other officials, of the State
268 U.S. 510 valuable good will of many parents and guardians. It conducts
of Oregon from threatening or attempting to enforce an
APPEALS FROM THE DISTRICT COURT OF THE UNITED STATES amendment to the school law -- an initiative measure adopted by interdependent primary and high schools and junior colleges, and
FOR THE DISTRICT OF OREGON the people November 7, 1922, to become effective in 1926 -- maintains orphanages for the custody and control of children
Syllabus requiring parents and others having control of young children to between eight and sixteen. In its primary schools, many children
send them to the primary schools of the State. The plaintiffs were between those ages are taught the subjects usually pursued in
1. The fundamental theory of liberty upon which all governments of
two Oregon corporations owning and conducting schools. Oregon public schools during the first eight years. Systematic
this Union rest excludes any general power of the State to
Page 268 U. S. 529 religious instruction and moral training according to the tenets of
standardize its children by forcing them to accept instruction from
the Roman Catholic Church are also regularly provided. All courses
public teachers only. P. 268 U. S. 535. MR. JUSTICE McREYNOLDS delivered the opinion of the Court.
of study, both temporal and religious, contemplate continuity of
2. The Oregon Compulsory Education Act (Oreg. Ls., § 5259) which, These appeals are from decrees, based upon undenied allegations, training under appellee's charge; the primary schools are essential
with certain exemptions, requires every parent, guardian or other which granted preliminary orders restraining to the system and the most profitable. It owns valuable buildings,
person having control of a child between the ages of eight and Page 268 U. S. 530 especially constructed and equipped for school purposes. The
sixteen years to send him to the public school in the district where business is remunerative -- the annual income from primary schools
appellants from threatening or attempting to enforce the
he resides, for the period during which the school is held for the exceeds thirty thousand dollars -- and the successful conduct of this
Compulsory Education Act * adopted November 7, 1922, under the
current year, is an unreasonable interference with the liberty of the initiative provision of her Constitution by the voters of Oregon. requires long-time contracts with teachers and parents. The
parents and guardians to direct the upbringing of the children, and Compulsory Education Act of 1922 has already caused the
Jud.Code, § 266. They present the same points of law; there are no
in that respect violates the Fourteenth Amendment. P. 268 U. S. withdrawal from its schools of children who would otherwise
controverted questions of fact. Rights said to be guaranteed by the
534. continue, and their income has steadily declined. The appellants,
federal Constitution were specially set up, and appropriate prayers
3. In a proper sense, it is true that corporations cannot claim for asked for their protection. public officers, have proclaimed their purpose strictly to enforce the
themselves the liberty guaranteed by the Fourteenth Amendment, statute.
The challenged Act, effective September 1, 1926, requires every
and, in general, no person in any business has such an interest in After setting out the above facts, the Society's bill alleges that the
parent, guardian or other person having control or charge or
possible customers as to enable him to restrain exercise of proper enactment conflicts with the right of parents to choose schools
custody of a child between eight and sixteen years to send him "to a
power by the State upon the ground that he will be deprived of public school for the period of time a public school shall be held where their children will receive appropriate mental and religious
patronage; training, the right of the child to influence the parents' choice of a
during the current year" in the district where the child resides, and
4. But where corporations owning and conducting schools are failure so to do is declared a misdemeanor. There are school, the right of schools and teachers therein to engage in a
threatened with destruction of their business and property through Page 268 U. S. 531 useful business or profession, and is accordingly repugnant to the
the improper and unconstitutional compulsion exercised by this Constitution and void. And, further, that, unless enforcement of the
statute upon parents and guardians, their interest is direct and exemptions not specially important here -- for children who are not
measure is enjoined the corporation's business and property will
immediate, and entitles them to protection by injunction. Truax v. normal, or who have completed he eighth grade, or who reside at
suffer irreparable injury.
Raich, 239 U. S. 33. P. 268 U. S. 535. considerable distances from any public school, or whose parents or
guardians hold special permits from the County Superintendent. The Appellee, Hill Military Academy, is a private corporation organized in
5. The Act, being intended to have general application, cannot be 1908 under the laws of Oregon, engaged
manifest purpose is to compel general attendance at public schools
construed in its application to such corporations as an exercise of Page 268 U. S. 533
by normal children, between eight and sixteen, who have not
power to amend their charters. Berea College v. Kentucky, 211 U. S.
completed the eighth grade. And without doubt enforcement of the in owning, operating and conducting for profit an elementary,
45. P. 268 U. S. 535. statute would seriously impair, perhaps destroy, the profitable college preparatory and military training school for boys between
6. Where the injury threatened by an unconstitutional statute is features of appellees' business and greatly diminish the value of the ages of five and twenty-one years. The average attendance is
present and real before the statute is to be effective, and will their property. one hundred, and the annual fees received for each student amount
to some eight hundred dollars. The elementary department is and patriotic disposition, that certain studies plainly essential to intended to amend the charters of certain private corporations, as
divided into eight grades, as in the public schools; the college good citizenship must be taught, and that nothing be taught which in Berea College v. Kentucky, 211 U. S. 45. No argument in favor of
preparatory department has four grades, similar to those of the is manifestly inimical to the public welfare. such view has been advanced.
public high schools; the courses of study conform to the The inevitable practical result of enforcing the Act under Generally it is entirely true, as urged by counsel, that no person in
requirements of the State Board of Education. Military instruction consideration would be destruction of appellees' primary schools, any business has such an interest in possible customers as to enable
and training are also given, under the supervision of an Army officer. and perhaps all other private primary schools for normal children him to restrain exercise of proper power of the State upon the
It owns considerable real and personal property, some useful only within the State of Oregon. These parties are engaged in a kind of ground that he will be deprived
for school purposes. The business and incident good will are very undertaking not inherently harmful, but long regarded as useful and Page 268 U. S. 536
valuable. In order to conduct its affairs, long time contracts must be meritorious. Certainly there is nothing in the present records to of patronage. But the injunctions here sought are not against the
made for supplies, equipment, teachers and pupils. Appellants, law indicate that they have failed to discharge their obligations to
officers of the State and County, have publicly announced that the exercise of any proper power. Plaintiffs asked protection against
patrons, students or the State. And there are no peculiar arbitrary, unreasonable and unlawful interference with their patrons
Act of November 7, 1922, is valid, and have declared their intention circumstances or present emergencies which demand extraordinary and the consequent destruction of their business and property.
to enforce it. By reason of the statute and threat of enforcement, measures relative to primary education.
appellee's business is being destroyed and its property depreciated; Their interest is clear and immediate, within the rule approved
Under the doctrine of Meyer v. Nebraska, 262 U. S. 390, we think it in Truax v. Raich, Truax v. Corrigan and Terrace v. Thompson,
parents and guardians are refusing to make contracts for the future entirely plain that the Act of 1922 unreasonably interferes with the supra, and many other cases where injunctions have issued to
instruction of their sons, and some are being withdrawn. liberty of parents and guardians to direct the upbringing and protect business enterprises against interference with the freedom
The Academy's bill states the foregoing facts and then alleges that education of children of patrons or customers. Hitchman Coal & Coke Co. v. Mitchell, 245
the challenged Act contravenes the corporation's rights guaranteed Page 268 U. S. 535 U. S. 229; Duplex Printing Press Co. v. Deering, 254 U. S.
by the Fourteenth Amendment and that, unless appellants are 443; American Steel Foundries v. Tri-City Central Trades Council, 257
under their control: as often heretofore pointed out, rights
restrained from proclaiming its validity and threatening to enforce U. S. 184; Nebraska District v. McKelvie, 262 U. S. 404; Truax v.
guaranteed by the Constitution may not be abridged by legislation
it, irreparable injury will result. The prayer is for an appropriate Corrigan, supra, and cases there cited.
injunction. which has no reasonable relation to some purpose within the
competency of the State. The fundamental theory of liberty upon The suits were not premature. The injury to appellees was present
No answer was interposed in either cause, and, after proper notices, which all governments in this Union repose excludes any general and very real, not a mere possibility in the remote future. If no relief
they were heard by three judges (Jud.Code § 266) on motions for power of the State to standardize its children by forcing them to had been possible prior to the effective date of the Act, the injury
preliminary injunctions upon the specifically alleged facts. The court accept instruction from public teachers only. The child is not the would have become irreparable. Prevention of impending injury by
ruled that the Fourteenth Amendment guaranteed appellees against mere creature of the State; those who nurture him and direct his unlawful action is a well recognized function of courts of equity. The
the destiny have the right, coupled with the high duty, to recognize and decrees below are
Page 268 U. S. 534 prepare him for additional obligations. Affirmed.
deprivation of their property without due process of law Appellees are corporations, and therefore, it is said, they cannot *
consequent upon the unlawful interference by appellants with the claim for themselves the liberty which the Fourteenth Amendment "Be it Enacted by the People of the State of Oregon:"
free choice of patrons, present and prospective. It declared the right guarantees. Accepted in the proper sense, this is true. Northwestern
to conduct schools was property, and that parents and guardians, as Life Ins. Co. v. Riggs, 203 U. S. 243, 203 U. S. 255; Western Turf "Section 1. That Section 5259, Oregon Laws, be and the same is
a part of their liberty, might direct the education of children by hereby amended so as to read as follows:"
Association v. Greenberg, 204 U. S. 359, 204 U. S. 363. But they have
selecting reputable teachers and places. Also, that these schools business and property for which they claim protection. These are "Sec. 5259. Children Between the Ages of Eight and Sixteen Years --
were not unfit or harmful to the public, and that enforcement of the threatened with destruction through the unwarranted compulsion Any parent, guardian or other person in the State of Oregon, having
challenged statute would unlawfully deprive them of patronage, and which appellants are exercising over present and prospective control or charge or custody of a child under the age of sixteen
thereby destroy their owners' business and property. Finally, that patrons of their schools. And this court has gone very far to protect years and of the age of eight years or over at the commencement of
the threats to enforce the Act would continue to cause irreparable against loss threatened by such action. Truax v. Raich,239 U. S. a term of public school of the district in which said child resides,
injury, and the suits were not premature. 33; Truax v. Corrigan, 257 U. S. 312; Terrace v. Thompson, 263 U. S. who shall fail or neglect or refuse to send such child to a public
No question is raised concerning the power of the State reasonably 197. school for the period of time a public school shall be held during the
to regulate all schools, to inspect, supervise and examine them, current year in said district, shall be guilty of a misdemeanor and
The courts of the State have not construed the Act, and we must
their teachers and pupils; to require that all children of proper age each day's failure to send such child to a public school shall
determine its meaning for ourselves. Evidently it was expected to
attend some school, that teachers shall be of good moral character have general application, and cannot be construed as though merely
constitute a separate offense; provided, that, in the following cases,
children shall not be required to attend public schools:"
"(a) Children Physically Unable -- Any child who is abnormal,
subnormal or physically unable to attend school."
"(b) Children Who Have Completed the Eighth Grade -- Any child
who has completed the eighth grade, in accordance with the
provisions of the state course of study."
"(c) Distance from school -- Children between the ages of eight and
ten years, inclusive, whose place of residence is more than one and
one-half miles, and children over ten years of age whose place of
residence is more than three miles, by the nearest traveled road,
from public school; provided, however, that, if transportation to and
from school is furnished by the school district, this exemption shall
not apply."
"(d) Private Instruction -- Any child who is being taught for a like
period of time by the parent or private teacher such subjects as are
usually taught in the first eight years in the public school; but before
such child can be taught by a parent or a private teacher, such
parent or private teacher must receive written permission from the
county superintendent, and such permission shall not extend longer
than the end of the current school year. Such child must report to
the county school superintendent or some person designated by
him at least once every three months and take an examination in
the work covered. If, after such examination, the county
superintendent shall determine that such child is not being properly
taught, then the county superintendent shall order the parent,
guardian or other person, to send such child to the public school the
remainder of the school year."
"If any parent, guardian or other person having control or charge or
custody of any child between the ages of eight and sixteen years
shall fail to comply with any provision of this section, he shall be
guilty of a misdemeanor, and shall, on conviction thereof, be subject
to a fine of not less than $5, nor more than $100, or to
imprisonment in the county jail not less than two nor more than
thirty days, or by both such fine and imprisonment in the discretion
of the court."
"This Act shall take effect and be and remain in force from and after
the first day of September, 1926."
 EN BANC 2. ID.; PROVISIONAL CONSTITUTION; TENURE OF GOVERNMENT On February 9, 1987, petitioner Alfredo M. de Leon received a
[G.R. No. 78059. August 31, 1987.] FUNCTIONARIES; ONE YEAR PERIOD WITHIN WHICH TO DESIGNATE Memorandum antedated December 1, 1986 but signed by
ALFREDO M. DE LEON, ANGEL S. SALAMAT, SUCCESSOR SHORTENED BY THE RATIFICATION AND EFFECTIVITY ON respondent OIC Governor Benjamin Esguerra on February 8, 1987
MARIO C. STA. ANA, JOSE C. TOLENTINO, FEBRUARY 2, 1987 OF THE CONSTITUTION. — The Court next holds designating respondent Florentino G. Magno as Barangay Captain of
ROGELIO J. DE LA ROSA and JOSE M. as a consequence of its declaration at bar that the Constitution took Barangay Dolores, Taytay, Rizal. The designation made by the OIC
RESURRECCION, petitioners, vs.HON. BENJAMIN effect on the date of its ratification in the plebiscite held on Governor was "by authority of the Minister of Local Government."
B. ESGUERRA, in his capacity as OIC Governor February 2, 1987, that: (1) the Provisional Constitution promulgated Also on February 8, 1987, respondent OIC Governor signed a
of the Province of Rizal, HON. ROMEO C. DE on March 25, 1986 must be deemed to have been superseded Memorandum, antedated December 1, 1986 designating
LEON, in his capacity as OIC Mayor of the by the 1987 Constitution on the same date February 2, 1987 and (2) respondents Remigio M. Tigas, Ricardo Z. Lacanienta, Teodoro V.
Municipality of Taytay, Rizal, FLORENTINO G. by and after said date, February 2, 1987, absent any saying clause to Medina, Roberto S. Paz and Teresita L. Tolentino as members of the
MAGNO, REMIGIO M. TIGAS, RICARDO Z. the contrary in the Transitory Article of the Constitution, respondent Barangay Council of the same Barangay and Municipality. prLL
LACANIENTA, TEODORO V. MEDINA, ROSENDO OIC Governor could no longer exercise the power to replace That the Memoranda had been antedated is evidenced by the
S. PAZ, and TERESITA L. petitioners in their positions as Barangay Captain and Councilmen. Affidavit of respondent OIC Governor, the pertinent portions of
TOLENTINO, respondents. Hence, the attempted replacement of petitioners by respondent OIC which read:
Governor's designation on February 8, 1987 of their successors
SYLLABUS "xxx xxx xxx
could no longer produce any legal force and effect. While
TEEHANKEE, C.J., concurring: the Provisional Constitution provided for a one-year period expiring "That I am the OIC Governor of Rizal having
1. POLITICAL LAW; 1987 CONSTITUTION; DATE OF RATIFICATION; on March 25, 1987 within which the power of replacement could be been appointed as such on March 20, 1986;
RETROACTS ON THE DAY OF THE PLEBISCITE. — The main issue exercised, this period was shortened by the ratification and "That as being OIC Governor of the Province of
resolved in the judgment at bar is whetherthe 1987 effectivity on February 2, 1987 of the Constitution. Had the Rizal, and in the performance of my duties
Constitution took effect on February 2, 1987, the date that the intention of the framers of the Constitution been otherwise, they thereof, I among others, have signed as I did
plebiscite for its ratification was held or whether it took effect would have so provided for in the Transitory Article, as indeed they sign the unnumbered memorandum ordering
on February 11, 1987, the date its ratification was proclaimed provided for multifarious transitory provisions in twenty six sections the replacement of all the barangay officials of
per Proclamation No. 58 of the President of the Philippines, Corazon of Article XVIII, e.g. extension of the six-year term of the incumbent all the barangay(s) in the Municipality of Taytay,
C. Aquino. The thrust of the dissent is that the Constitution should President and Vice-President to noon of June 30, 1992 for purposes Rizal;
be deemed to "take effect on the date its ratification shall have of synchronization of elections, the continued exercise of legislative "That the above cited memorandum dated
been ascertained and not at the time the people cast their votes to powers by the incumbent President until the convening of the first December 1, 1986 was signed by me personally
approve or reject it." This view was actually proposed at the Congress, etc. on February 8, 1987;
Constitutional Commission deliberations, but was withdrawn by its DECISION "That said memorandum was further
proponent in the face of the "overwhelming" contrary view that deciminated (sic) to all concerned the following
MELENCIO-HERRERA, J p:
the Constitution "will be effective on the very day of the plebiscite." day, February 9, 1987.
The record of the proceedings and debates of the Constitutional An original action for Prohibition instituted by petitioners seeking to
Commission fully supports the Court's judgment. It shows that the enjoin respondents from replacing them from their respective FURTHER AFFIANT SAYETH NONE.
clear, unequivocal and express intent of the Constitutional positions as Barangay Captain and Barangay Councilmen of "Pasig, Metro Manila, March 23, 1987."
Commission in unanimously approving (by thirty-five votes in favor Barangay Dolores, Municipality of Taytay, Province of Rizal. LLphil Before us now, petitioners pray that the subject Memoranda of
and none against) the aforequoted Section 27 of Transitory Article As required by the Court, respondents submitted their Comment on February 8, 1987 be declared null and void and that respondents be
XVIII ofthe 1987 Constitution was that "the act of ratification is the the Petition, and petitioner's their Reply to respondents' Comment. prohibited from taking over their positions of Barangay Captain and
act of voting by the people. So that is the date of the ratification" In the Barangay elections held on May 17, 1982, petitioner Alfredo Barangay Councilmen, respectively. Petitioners maintain that
and that "the canvass thereafter [of the votes] is merely the M. De Leon was elected Barangay Captain and the other petitioners pursuant to Section 3 of the Barangay Election Act of 1982 (8P Blg.
mathematical confirmation of what was done during the date of the Angel S. Salamat, Mario C. Sta. Ana, Jose C. Tolentino, Rogelio J. de 222), their terms of office "shall be six (6) years which shall
plebiscite and the proclamation of the President is merely the la Rosa and Jose M. Resurreccion, as Barangay Councilmen of commence on June 7, 1982 and shall continue until their successors
official confirmatory declaration of an act which was actually done Barangay Dolores, Taytay, Rizal under Batas Pambansa Blg. 222, shall have elected and shall have qualified," or up to June 7, 1988. It
by the Filipino people in adopting the Constitution when they cast otherwise known as theBarangay Election Act of 1982. is also their position that with the ratification of the 1987
their votes on the date of the plebiscite."
Constitution, respondent OIC Governor no longer has the authority purpose and shall supersede all SO ORDERED.
to replace them and to designate their successors. previousConstitutions." Yap, Fernan, Narvasa, Gutierrez, Jr., Paras, Feliciano, Gancayco,
On the other hand, respondents rely on Section 2, Article III of The 1987 Constitution was ratified in a plebiscite on February 2, Padilla, Bidin and Cortes, JJ ., concur.
the Provisional Constitution, promulgated on March 25, 1986, which 1987. By that date, therefore, the Provisional Constitution must be Separate Opinions
provided: deemed to have been superseded. Having become inoperative, TEEHANKEE, C .J ., concurring:
"SECTION 2. All elective and appointive officials respondent OIC Governor could no longer rely on Section 2, Article
III, thereof to designate respondents to the elective positions The main issue resolved in the judgment at bar is whether the 1987
and employees under the 1973 Constitution took effect on February 2, 1987, the date that the
Constitution shall continue in office until occupied by petitioners. dctai
plebiscite for its ratification was held or whether it took effect
otherwise provided by proclamation or Petitioners must now be held to have acquired security of tenure on February 11, 1987, the date its ratification was proclaimed
executive order or upon the designation or specially considering that the Barangay Election Act of 1982 declares per Proclamation No. 58 of the President of the Philippines, Corazon
appointment and qualification of their it "a policy of the State to guarantee and promote the autonomy of C. Aquino. cdll
successors, if such appointment is made within the barangays to ensure their fullest development as self-reliant
The Court's decision, with the lone dissent of Mr. Justice Sarmiento,
a period of one year from February 25, 1986." communities." 2 Similarly, the 1987 Constitution ensures the
autonomy of local governments and of political subdivisions of holds that by virtue of the provision of Article XVIII, Section 27 of the
By reason of the foregoing provision, respondents contend that the 1987 Constitution that it "shall take effect immediately upon its
terms of office of elective and appointive officials were abolished which the barangays form a part, 3 and limits the President's power
ratification by a majority of the votes cast in a plebiscite held for the
and that petitioners continued in office by virtue of the aforequoted to "general supervision" over local governments. 4 Relevantly,
purpose," the 1987 Constitution took effect on February 2, 1987,
provision and not because their term of six years had not yet Section 8, Article X of the same 1987 Constutution further provides
in part: the date of its ratification in the plebiscite held on that same date.
expired; and that the provision in the Barangay Election Act fixing
The thrust of the dissent is that the Constitution should be deemed
the term of office of Barangay officials to six (6) years must be
to "take effect on the date its ratification shall have been
deemed to have been repealed for being inconsistent with the "Sec. 8. The term of office of elective local ascertained and not at the time the people cast their votes to
aforequoted provision of the Provisional Constitution. LLphil officials, except barangay officials, which shall approve or reject it." This view was actually proposed at the
Examining the said provision, there should be no question that be determined by law, shall be three years . . . " Constitutional Commission deliberations, but was withdrawn by its
petitioners, as elective officials under the 1973 Constitution, may Until the term of office of barangay officials has been determined by proponent in the face of the "overwhelming" contrary view that
continue in office but should vacate their positions upon the law, therefore, the term of office of six (6) years provided for in the Constitution "will be effective on the very day of the plebiscite."
occurrence of any of the events mentioned. 1 the Barangay Election Act of 1982 5 should still govern. The record of the proceedings and debates of the Constitutional
Since the promulgation of the Provisional Constitution, there has Contrary to the stand of respondents, we find nothing inconsistent Commission fully supports the Court's judgment. It shows that the
been no proclamation or executive order terminating the term of between the term of six (6) years for elective Barangay officials clear, unequivocal and express intent of the Constitutional
elective Barangay officials. Thus, the issue for resolution is whether and the 1987 Constitution, and the same should, therefore, be Commission in unanimously approving (by thirty-five votes in favor
or not the designation of respondents to replace petitioners was considered as still operative, pursuant to Section 3, Article XVIII and none against) the aforequoted Section 27 of Transitory Article
validly made during the one-year period which ended on February of the 1987 Constitution, reading: XVIII of the 1987 Constitution was that "the act of ratification is the
25, 1987. "Sec. 3. All existing laws, decrees, executive act of voting by the people. So that is the date of the ratification"
Considering the candid Affidavit of respondent OIC Governor, we orders, proclamations, letters of instructions, and that "the canvass thereafter [of the votes] is merely the
hold that February 8, 1977, should be considered as the effective and other executive issuances not inconsistent, mathematical confirmation of what was done during the date of the
date of replacement and not December 1, 1986 to which it was with this Constitution shall remain operative plebiscite and the proclamation of the President is merely the
antedated, in keeping with the dictates of justice. until amended, repealed or revoked." official confirmatory declaration of an act which was actually done
But while February 8, 1987 is ostensibly still within the one year WHEREFORE, (1) The Memoranda issued by respondent OIC by the Filipino people in adopting the Constitution when they cast
deadline, the aforequoted provision in the Provisional Governor on February 8, 1987 designating respondents as the their votes on the date of the plebiscite."
Constitution must be deemed to have been overtaken by Section Barangay Captain and Barangay Councilmen, respectively, of The record of the deliberations and the voting is reproduced
27, Article XVIII of the 1987 Constitution reading: Barangay Dolores, Taytay, Rizal, are both declared to be of no legal hereinbelow: 1
"Sec 27. This Constitution shall take effect force and effect; and (2) the Writ of Prohibition is granted enjoining "MR. MAAMBONG. Madam President, may we
immediately upon its ratification by a majority respondents perpetually from proceeding with the ouster/take-over now put to a vote the original formulation of the
of the votes cast in a plebiscite held for the of petitioners' positions subject of this Petition. Without costs. committee as indicated in Section 12, unless
there are other commissioners who would like "MR. DAVIDE. The second sentence will read: "THE PRESIDENT. Commissioner Bernas is
to present amendments. 'THE PROCLAMATION SHALL BE MADE WITHIN recognized.
"MR. DAVIDE. Madam President. FIVE DAYS FOLLOWING THE COMPLETION OF "FR. BERNAS. I would ask the committee to
"THE PRESIDENT. Commissioner Davide is THE CANVASS BY THE COMMISSION ON reconsider its acceptance of the amendment
recognized. ELECTIONS OF THE RESULTS OF SUCH which makes the effectivity of the new
PLEBISCITE.' Constitution dependent upon the proclamation
"MR. DAVIDE. May I propose the following
amendments. "MR. MAAMBONG. Madam President, after of the President. The effectivity of
conferring with our chairman, the committee the Constitution should commence on the date
On line 2, delete the words 'its ratification' and
feels that the second proposed amendment in of the ratification, not on the date of the
in lieu thereof insert the following: 'THE
the form of a new sentence would not be proclamation of the President. What is
PROCLAMATION BY THE PRESIDENT THAT IT HAS exactly necessary and the committee feels that confusing, I think,is what happened in
BEEN RATIFIED.' And on the last time, after
it would be too much for us to impose a time 1976 when the amendments of 1976 were
'constitutions,' add the following: 'AND THEIR
frame on the President to make the ratified. In that particular case, the reason the
AMENDMENTS.' proclamation. As we would recall, Madam amendments of 1976 were effective upon the
"MR. MAAMBONG. Just a moment, Madam President, in the approved Article on the proclamation of the President was that the draft
President. If Commissioner Davide is going to Executive, there is a provision which says that presented to the people said that the
propose an additional sentence, the committee the President shall make certain that all laws amendment will be effective upon the
would suggest that we take up first his shall be faithfully complied. When we approve proclamation made by the President. I have a
amendment to the first sentence as originally this first sentence, and it says that there will be suspicion that was put in there precisely to give
formulated. We are now ready to comment on a proclamation by the President that the President some kind of leeway on whether
that proposed amendment. the Constitution has been ratified, the President to announce the ratification or not.
The proposed amendment would be to delete will naturally comply with the law in accordance Therefore, we should not make this dependent
the words 'its ratification' and in lieu thereof with the provisions in the Article on the on the action of the President since this will be a
insert the words 'THE PROCLAMATION BY THE Executive which we have cited. It would be too manifestation of the act of the people to be
PRESIDENT THAT IT HAS BEEN RATIFIED.' And much to impose on the President a time frame done under the supervision of the COMELEC and
the second amendment would be: After the within which she will make that declaration. It it should be the COMELEC who should make the
word 'constitutions,' add the words 'AND THEIR would be assumed that the President would announcement that, in fact, the votes show that
AMENDMENTS. llcd immediately do that after the results shall have the Constitution was ratified and there should
The committee accepts the first proposed been canvassed by the COMELEC. be no need to wait for any proclamation on the
amendment. However, we regret that we Therefore, the committee regrets that it cannot part of the President.
cannot accept the second proposed amendment accept the second sentence which the "MR. MAAMBONG. Would the Gentleman
after the word 'constitutions' because the Gentleman is proposing, Madam President. answer a few clarificatory questions?
committee feels that when we talk of all "MR. DAVIDE. I am prepared to withdraw the "FR. BERNAS. Willingly, Madam President.
previous Constitutions, necessarily it includes same on the assumption that there will be an "MR. MAAMBONG. The Gentleman will agree
'AND THEIR AMENDMENTS.' immediate proclamation of the results by the that a date has to be fixed as to exactly when
"MR. DAVIDE. With that explanation, I will not President. the Constitution is supposed to be ratified.
insist on the second. But, Madam President, "MR. MAAMBONG. With that understanding, "FR. BERNAS. I would say that the ratification of
may I request that I be allowed to read the Madam President. the Constitution is on the date the votes were
second amendment so the Commission would
"MR. DAVIDE. I will not insist on the second supposed to have been cast.
be able to appreciate the change in the first. sentence. "MR. MAAMBONG. Let us go to the mechanics
"MR. MAAMBONG. Yes, Madam President, we
"FR. BERNAS. Madam President. of the whole thing, Madam President. We
can now do that.
present the Constitution to a plebiscite, the
people exercise their right to vote, then the
votes are canvassed by the Commission on announcement of the results of the plebiscite. "THE PRESIDENT. Commissioner Lerum is
Elections. If we delete the suggested So it is either the President or the COMELEC recognized.
amendment which says: 'THE PROCLAMATION itself upon the completion of the canvass of the "MR. LERUM. I am in favor of the Davide
BY THE PRESIDENT THAT IT HAS BEEN RATIFIED,' results of the plebiscite, and I opted for the amendment because we have to fix a date for
what would be, in clear terms, the date when President. the effectivity of the Constitution. Suppose the
the Constitution is supposed to be ratified or announcement is delayed by, say, 10 days or a
not ratified, as the case may be? xxx xxx xxx month, what happens to the obligations and
"FR. BERNAS. The date would be the casting of "MR. NOLLEDO. Madam President. rights that accrue upon the approval of
the ballots. If the President were to say that the the Constitution? So I think we must have a
"THE PRESIDENT. Commissioner Nolledo is
plebiscite would be held, for instance, on definite date. I am, therefore, in favor of the
January 19, 1987, then the date for the recognized. Davide amendment.
effectivity of the new Constitution would be "MR. NOLLEDO. Thank you, Madam President.
"MR. MAAMBONG. Madam President.
January 19, 1987. I beg to disagree with Commissioner Davide. I
"THE PRESIDENT. Commissioner Maambong is
"MR. MAAMBONG. In other words, it would not support the stand of Commissioner Bernas recognized.
depend on the actual issuance of the results by because it is really the date of the casting of the
'yes' votes that is the date of the ratification of "MR. MAAMBONG. With the theory of the
the Commission on Elections which will be doing Commissioner, would there be a necessity for
the canvass? That is immaterial, Madam the Constitution. The announcement merely
confirms the ratification even if the results are the Commission on Elections to declare the
President. results of the canvass?.
released two or three days after. I think it is a
"FR. BERNAS. It would not, Madam President, "FR. BERNAS. There would be because it is the
fundamental principle in political law, even in
because 'ratification' is the act of saying 'yes' is Commission on Elections which makes the
civil law, because an announcement is a mere
done when one casts his ballot. official announcement of the results.
confirmation. The act of ratification is the act of
"MR. MAAMBONG. So it is the date of the voting by the people. So that is the date of the "MR. MAAMBONG. My next question which is
plebiscite itself, Madam President? ratification. If there should be any need for the final one is: After the Commission on
"FR. BERNAS. Yes, Madam President. presidential proclamation; that proclamation Elections has declared the results of the
"MR. MAAMBONG. With that statement of will merely confirm the act of ratification. canvass, will there be a necessity for the
Commissioner Bernas, we would like to know Thank you, Madam President. President to make a proclamation of the results
from the proponent, Commissioner Davide, if he "THE PRESIDENT. Does Commissioner Regalado of the canvass as submitted by the Commission
is insisting on his amendment. cdasia want to contribute?. on Elections?
"MR. DAVIDE. Madam President, I am insisting "MR. REGALADO. Madam President, I was "FR. BERNAS. I would say there would be no
on the amendment because I cannot subscribe precisely going to state the same support for necessity, Madam President.
to the view of Commissioner Bernas that the Commissioner Bernas, because the canvass "MR. MAAMBONG. In other words, the
date of the ratification is reckoned from the thereafter is merely the mathematical President may or may not make the
date of the casting of the ballots. That cannot be confirmation of what was done during the date proclamation whether the Constitution has
the date of reckoning because it is a plebiscite of the plebiscite and the proclamation of the been ratified or not.
all over the country. We do not split the President is merely the official confirmatory "FR. BERNAS. I would say that the proclamation
moment of casting by each of the voters. declaration of an act which was actually done by made by the President would be immaterial
Actually and technically speaking, it would be all the Pilipino people in adopting because under the law, the administration of all
right if it would be upon the announcement of the Constitution when they cast their votes on election laws is under an independent
the results of the canvass conducted by the the date of the plebiscite. Commission on Elections. It is the Commission
COMELEC or the results of the plebiscite held all on Elections which announces the results.
"MR. LERUM. Madam President, may I be
over the country. But it is necessary that there
recognized. "MR. MAAMBONG. But nevertheless, the
be a body which will make the formal
President may make the proclamation.
"FR. BERNAS. Yes, the President may. And if of the votes cast on a given date was in favor of be effective on the very day of the plebiscite, I
what he says contradicts what the Commission the Constitution. And that is the date when am withdrawing my amendment on the
on Elections says, it would have no effect. I the Constitution takes effect, apart from the fact assumption that any of the following bodies —
would only add that when we say that the date that the provision on the drafting or the Office of the President or the COMELEC —
of effectivity is on the day of the casting of the amendment of the Constitutionprovides that a will make the formal announcement of the
votes, what we mean is that constitution becomes effective upon ratification results. llcd
the Constitution takes effect on every single by a majority of the votes cast, although I would "MR. RAMA. Madam President, we are now
minute and every single second of that day, not say from the very beginning of the date of ready to vote on the original provision as stated
because the Civil Code says a day has 24 election because as of that time it is impossible by the committee.
hours. So that even if the votes are cast in the to determine whether there is a majority. At the "MR. MAAMBONG. The committee will read
morning, the Constitution is really effective from end of the day of election or plebiscite, the again the formulation indicated in the original
the previous midnight. determination is made as of that time — the committee report as Section 12.
So that when we adopted the new rule on majority of the votes cast in a plebiscite held on
such and such a date. So that is the time when This Constitution shall
citizenship, the children of Filipino mothers or take effect immediately upon its
anybody born on the date of effectivity of the new Constitution will be considered ratified
ratification by a majority of the
the 1973 Constitution, which is January 17, and therefore, effective.
votes cast in a plebiscite called for
1973, are natural-born citizens, no matter what "THE PRESIDENT. May we now hear Vice- the purpose and shall supersede all
time of day or night. President Padilla. previous Constitutions.
"MR. MAAMBONG. Could we, therefore, safely "MR. PADILLA. Madam President, I am against We ask for a vote, Madam President.
say that whatever date is the publication of the the proposed amendment of Commissioner
VOTING
results of the canvass by the COMELEC retroacts Davide and I support the view of Commissioner
to the date of the plebiscite? Bernas and the others because the ratification "THE PRESIDENT. As many as are in favor, please
of the Constitution is on the date the people, by raise their hand. (Several Members raised their
"FR. BERNAS. Yes, Madam President.
a majority vote, have cast their votes in favor of hand.)
"MR. MAAMBONG. I thank the Commissioner.
the Constitution. Even in civil law, if there is a As many as are against, please raise their hand.
"MR. GUINGONA. Madam President. (No Member raised his hand.)
contract, say, between an agent and a third
"THE PRESIDENT. Commissioner Guingona is person and that contract is confirmed or ratified The results show 35 votes in favor and none
recognized. by the principal, the validity does not begin on against; Section 12 is approved." 2
"MR. GUINGONA. Mention was made about the the date of ratification but it retroacts from the The Court next holds as a consequence of its declaration at bar that
need for having a definite date. I think it is date the contract was executed. the Constitution took effect on the date of its ratification in the
precisely the proposal of Commissioner Bernas Therefore, the date of the Constitution as plebiscite held on February 2, 1987, that: (1) the Provisional
which speaks of the date of ratification that ratified should retroact to the date that the Constitution promulgated on March 25, 1986 must be deemed to
would have a definite date, because there would people have cast their affirmative votes in favor have been superseded by the 1987 Constitution on the same date
be no definite date if we depend upon the of the Constitution. February 2, 1987 and (2) by and after said date, February 2, 1987,
canvassing by the COMELEC. absent any saying clause to the contrary in the Transitory Article of
"MR. MAAMBONG. Madam President.
Thank you. "THE PRESIDENT. Commissioner Maambong is the Constitution, respondent OIC Governor could no longer exercise
"THE PRESIDENT. Commissioner Concepcion is recognized. the power to replace petitioners in their positions as Barangay
recognized. Captain and Councilmen. Hence, the attempted replacement of
"MR. MAAMBONG. We will now ask once more
"MR. CONCEPCION. Thank you, Madam petitioners by respondent OIC Governor's designation on February
Commissioner Davide if he is insisting on his
President. amendment. 8, 1987 of their successors could no longer produce any legal force
"Whoever makes the announcement as to the and effect. While the Provisional Constitution provided for a one-
"MR. DAVIDE. In view of the explanation and year period expiring on March 25, 1987 within which the power of
result of the plebiscite, be it the COMELEC or overwhelming tyranny of the opinion that it will
the President, would announce that a majority replacement could be exercised, this period was shortened by the
ratification and effectivity on February 2, 1987 of the Constitution. February 2, 1987, when the new Constitution was ratified. I yield to under the 1987 Charter. I recall, in particular, the appointments of
Had the intention of the framers of the Constitution been that better view and agree with her ponencia completely. some seven Court of Appeals Justices, 71 provincial fiscals, and 55
otherwise, they would have so provided for in the Transitory Article, SARMIENTO, J ., dissenting: city fiscals the President reportedly extended on February 2,
as indeed they provided for multifarious transitory provisions in With due respect to the majority, I register this dissent. 1987. 1 Under Sections 8 (1) and 9, Article VIII, of the 1987
twenty six sections of Article XVIII, e.g. extension of the six-year Constitution, as follows: LLphil
While I agree that the one-year deadline prescribed by Section 2,
term of the incumbent President and Vice-President to noon of June xxx xxx xxx
30, 1992 for purposes of synchronization of elections, the continued Article III of the Provisional Constitution with respect to the tenure
of government functionaries, as follows: Sec. 8. (1) A Judicial and Bar Council is hereby
exercise of legislative powers by the incumbent President until the created under the supervision of the Supreme
convening of the first Congress, etc. Cdpr SECTION 2. All elective and appointive officials
and employees under the 1973 Court composed of the Chief Justice as ex
A final note of clarification, as to the statement in the dissent that officio Chairman, the Secretary of Justice, and a
"the appointments of some seven Court of Appeals Justices, 71 Constitution shall continue in office until
otherwise provided by proclamation or representative of the Congress as ex
provincial fiscals and 65 city fiscals reported extended (by) the officio Members, a representative of the
executive order or upon the designation or
President on February 2, 1987 . . . could be open to serious Integrated Bar, a professor of law, a retired
questions," in view of the provisions of Sections 8 (1) and 9, Article appointment and qualification of their
successors, if such appointment is made within Member of the Supreme Court, and a
VIII of the Constitution which require prior endorsement thereof by representative of the private sector.
a period of one year from February 25,
the Judicial and Bar Council created under the Constitution. It xxx xxx xxx
1986. LLpr
should be stated for the record that the reported date of the
appointments, February 2, 1987, is incorrect. The official records of was cut short by the ratification of the 1987 Constitution, I Sec. 9. The Members of the Supreme Court and
entertain serious doubts whether or not that cut-off period judges of lower courts shall be appointed by the
the Court show that the appointments of the seven Court of Appeals
began on February 2, 1987, the date of the plebiscite held to President from a list of at least three nominees
Justices were transmitted to this Court on February 1, 1987 and they
approve the new Charter. To my mind, the 1987 prepared by the Judicial and Bar Council for
were all appointed on or before January 31, 1987. 3 (Similarly, the
records of the Department of Justice likewise show that the Constitution took effect on February 11, 1987, the date the every vacancy. Such appointments need no
same was proclaimed ratified pursuant to Proclamation No. confirmation.
appointment papers of the last batch of provincial and city fiscals
signed by the President in completion of the reorganization of the 68 of the President of the Philippines, and not February 2, 1987, xxx xxx xxx
prosecution service were made on January 31, 1987 and transmitted plebiscite day. such appointments could be open to serious questions.
to the Department on February 1, 1987.) It is also a matter of record I rely, first and foremost, on the language of the 1987 Charter itself, Since 1973, moreover, we have invariably reckoned the effectivity of
that since February 2, 1987, no appointments to the Judiciary have thus: the Constitution as well as the amendments thereto from the date it
been extended by the President, pending theconstitution of the Sec. 27. This Constitution shall take effect is proclaimed ratified.
Judicial and Bar Council, indicating that the Chief Executive has immediately upon its ratification by a majority In Magtoto v. Manguera, 2 we held that the 1973
likewise considered February 2, 1987 as the effective date of of the votes cast in a plebiscite held for the Constitution became in force and effect on January 17, 1973, the
the Constitution, as now expressly declared by the Court. purpose and shall supersede all date Proclamation No. 1102, "Announcing the Ratification by the
previousConstitutions. Filipino People of the Constitution Proposed by the 1971
CRUZ, J ., concurring: It is my reading of this provision that the Constitution takes effect Constitutional Convention," was issued, although Mr. Justice, now
In her quiet and restrained manner, Justice Herrera is able to prove on the date its ratification shall have been ascertained, and not at Chief Justice, Teehankee would push its effectivity date further to
her point with more telling effect than the tones of thunder. She has the time the people cast their votes to approve or reject it. For it April 17, 1973, the date our decision in Javellana v. Executive
written another persuasive opinion, and I am delighted to concur. I cannot be logically said that Constitution was ratified during such a Secretary. 3 became final. And this was so notwithstanding Section
note that it in effect affirms my dissents in the De la Serna, Zamora, plebiscite, when the will of the people as of that time, had not, and 16, Article XVII, of the 1973 Constitution, thus:
Duquing and Bayas cases, where I submitted that the local OICs may could not have been, yet determined. SEC. 16. This Constitution shall take effect
no longer be summarily replaced, having acquired security of tenure Other than that, pragmatic considerations compel me to take this immediately upon its ratification by a majority
under the new Constitution. Our difference is that whereas I would view. of the votes cast in a plebiscite called for the
make that right commence on February 25, 1987, after the deadline I have no doubt that between February 2, and February 11, 1987, purpose and, except as herein provided, shall
set by the Freedom Constitution, Justice Herrera would opt for the government performed acts that would have been valid under supersede the Constitution of nineteen-hundred
the Provisional Constitution but would otherwise have been void and thirty-five and an amendments thereto.
On October 27, 1976, then President Marcos . . . shall become valid as part of September 18, 1946, was adopted on April 9, 1947. The April 9,
promulgated Proclamation no. 1595, proclaiming the ratification of the Constitution when approved by a 1947 Resolution makes no mention of a retroactive application. llcd
the 1976 amendments submitted in the plebiscite of October 16-17, majority of the votes cast in a plebiscite Accordingly, when the incumbent President (Mrs. Corazon C.
1976. The Proclamation states, inter alia, that. to be held pursuant to Section 2, Article Aquino) proclaimed on February 11, 1987, at Malacañang Palace:
By virtue of the powers vested in me by law, I XVI of theConstitution. . . . that the Constitution of the Republic
hereby proclaim all the amendments embodied On the other hand, Batas Pambansa Blg. 122, "An Act to Submit to of the Philippines adopted by the
in this certificate as duly ratified by the Filipino the Filipino People, for Ratification or Rejection, the Amendment to Constitutional Commission of 1986,
people in the referendum-plebiscite held Oct. the Constitution of the Philippines, Proposed by the Batasang including the Ordinance appended
16-17, 1976 and are therefore effective and in Pambansa, Sitting as a Constituent Assembly, in its Resolutions thereto, has been duly ratified by the
full force and effect as of this date. Numbered Three, Two, and One, and to Appropriate Funds Filipino people and is therefore effective
It shall be noted that under Amendment No. 9 of the said 1976 Therefor," provides, as follows: and in full force and effect. 4
amendments: SEC. 7. The Commission on Elections, sitting en the 1987 Constitution, in point of fact, came into force and
These amendments shall take effect after the banc, shall canvass and proclaim the result of effect, I hold that it took effect at no other time.
incumbent President shall have proclaimed that the plebiscite using the certificates submitted to I submit that our ruling in Ponsica v. Ignalaga 5 in which we
they have been ratified by a majority of the it, duly authenticated and certified by the Board declared, in passing, that the new Charter was ratified on February
votes cast in the referendum-plebiscite. of Canvassers of each province or city. 2, 1987, does not in any way weaken this dissent. As I stated, the
On April 1, 1980, the then Chief Executive issued Proclamation no. We have, finally, Proclamation No. 2332, "Proclaiming the remark was said in passing - we did not resolve the case on account
1959, "Proclaiming the Ratification by the Filipino People of the Ratification in the Plebiscite of January 27, 1984, of the of a categorical holding that the 1987 Constitution came to life on-
Amendments of Section 7, Article X of theConstitution" (lengthening Amendments to the Constitution Embodied in Batasang Pambansa February 2, 1987. In any event, if we did, I now call for its
the terms of office of judges and justices). The Proclamation Resolutions Nos. 104, 105, 110, 111, 112 and 113." It states that the reexamination.
provides: prLL amendments:
[t]he above-quoted amendment has . . . are therefore effective and in full I am therefore of the opinion, consistent with the views expressed
been duly ratified by a majority of the force and effect as of the date of this above, that the challenged dismissals done on February 8, 1987
votes cast in the plebiscite held, together Proclamation. were valid, the 1987 Constitution not being then as yet in force.
with the election for local officials, on It carries out Resolution no. 104 itself (as well as Resolutions Nos. ||| (De Leon v. Esguerra, G.R. No. 78059, [August 31, 1987], 237
January 30, 1980, and that said 110 and 112 and Section 9, Batas Blg. 643). which states, that:
PHIL 582-605)
amendment is hereby declared to take The proposed amendments shall take effect on the date the
effect immediately. President of the Philippines shall proclaim that they have been
It shall be noted that under Resolution No. 21, dated December 18, ratified by a majority of the votes cast in the plebiscite held for the
1979, the proposed amendment shall take effect on the date the purpose, but not later than three months from the approval of the
incumbent President/Prime Minister shall proclaim its ratification. amendments.
On April 7, 1981, Proclamation No. 2077 was issued, "Proclaiming albeit Resolutions Nos. 106, 111, and 113 provide, that:
the Ratification in the Plebiscite of April 7, 1981 of the Amendments These amendments shall be valid as a part of the Constitution when
to the Constitution Embodied in Batas Pambansa Blg. 122 and approved by a majority of the votes cast in an election/plebiscite at
Declaring Them Therefore Effective and in Full Force and Effect." which it is submitted to the people for their ratification pursuant to
The Proclamation, in declaring the said amendments duly approved, Section 2 of Article XVI of the Constitution, as amended.
further declared them "[e]ffective and in full force and in effect as of That a Constitution or amendments thereto take effect upon
the date of this Proclamation." It shall be noted, in this connection, proclamation of their ratification and not at the time of the
that under Resolutions Nos. 1 and 2 of the Batasang Pambansa, plebiscite is a view that is not peculiar to the Marcos era.
Third Regular Session, Sitting as a Constituent Assembly, which
The Resolution of Both Houses (of Congress) in Joint Session on the
parented these amendments, the same:
March 11, 1947 plebiscite called pursuant to Republic Act No.
73 and the Resolution of Both Houses (of Congress) adopted on