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ANAK MINDANAO PARTY- LIST GROUP, as represented by Rep. Mujiv S. Hataman,

and

MAMALO

DESCENDANTS ORGANIZATION, INC., as represented by its Chairman Romy Pardi,

Petitioners,

G.R. No.

166052

Present:

PUNO, C.J.,

- versus -

QUISUMBING,

YNARES-SANTIAGO,

SANDOVAL-GUTIERREZ,

CARPIO,

AUSTRIA-MARTINEZ,

CORONA,

THE EXECUTIVE

SECRETARY, THE HON. EDUARDO R. ERMITA, and THE SECRETARY OF AGRARIAN/LAND REFORM, THE HON. RENE C. VILLA,

CARPIO MORALES,

AZCUNA,

TINGA,

CHICO-NAZARIO,

GARCIA,

VELASCO, JR.,

NACHURA, and

Respondents.

REYES, JJ.

Promulgated:

August 29, 2007

x----------------------------------------------------------------------------------------x

D E C I S I O N

CARPIO MORALES, J.:

Petitioners Anak Mindanao Party-List Group (AMIN) and Mamalo Descendants Organization, Inc. (MDOI) assail the constitutionality of Executive Order (E.O.) Nos. 364 and 379, both issued in 2004, via the present Petition for Certiorari and Prohibition with prayer for injunctive relief.

E.O. No. 364, which President Gloria Macapagal-Arroyo issued on September 27, 2004, reads:

EXECUTIVE ORDER NO. 364

TRANSFORMING THE DEPARTMENT OF AGRARIAN REFORM INTO THE DEPARTMENT OF LAND REFORM

WHEREAS, one of the five reform packages of the Arroyo administration is Social Justice and Basic [N]eeds;

WHEREAS, one of the five anti-poverty measures for social justice is asset reform;

WHEREAS, asset reforms covers [sic] agrarian reform, urban land reform, and ancestral domain reform;

WHEREAS, urban land reform is a concern of the Presidential Commission [for] the Urban Poor (PCUP) and ancestral domain reform is a concern of the National Commission on Indigenous Peoples (NCIP);

WHEREAS, another of the five reform packages of the Arroyo administration is Anti- Corruption and Good Government;

WHEREAS, one of the Good Government reforms of the Arroyo administration is rationalizing the bureaucracy by consolidating related functions into one department;

WHEREAS, under law and jurisprudence, the President of the Philippines has broad powers to reorganize the offices under her supervision and control;

NOW[,] THEREFORE[,] I, Gloria Macapagal-Arroyo, by the powers vested in me as President of the Republic of the Philippines, do hereby order:

SECTION 1. The Department of Agrarian Reform is hereby transformed into the Department of Land Reform . It shall be responsible for all land reform in the country, including agrarian reform, urban land reform, and ancestral domain reform.

SECTION 2. The PCUP is hereby placed under the supervision and control of the Department of Land Reform . The Chairman of the PCUP shall be ex-officio Undersecretary of the Department of Land Reform for Urban Land Reform.

SECTION 3. The NCIP is hereby placed under the supervision and control of the Department of Land Reform. The Chairman of the NCIP shall be ex-officio Undersecretary of the Department of Land Reform for Ancestral Domain Reform.

SECTION 4. The PCUP and the NCIP shall have access to the services provided by the Department’s Finance, Management and Administrative Office; Policy, Planning and Legal Affairs Office, Field Operations and Support Services Office, and all other offices of the Department of Land Reform.

SECTION 5. All previous issuances that conflict with this Executive Order are hereby repealed or modified accordingly.

SECTION 6. This Executive Order takes effect immediately. (Emphasis and underscoring supplied)

E.O. No. 379, which amended E.O. No. 364 a month later reads:

or on October 26, 2004,

EXECUTIVE ORDER NO. 379

AMENDING EXECUTIVE ORDER NO. 364 ENTITLED TRANSFORMING THE DEPARTMENT OF AGRARIAN REFORM INTO THE DEPARTMENT OF LAND REFORM

WHEREAS, Republic Act No. 8371 created the National Commission on Indigenous Peoples;

WHEREAS, pursuant to the Administrative Code of 1987, the President has the continuing authority to reorganize the administrative structure of the National Government.

NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, President of the Republic of the Philippines, by virtue of the powers vested in me by the Constitution and existing laws, do hereby order:

Section 1. Amending Section 3 of Executive Order No. 364. Section 3 of Executive Order No. 364, dated September 27, 2004 shall now read as follows:

“Section 3. The National Commission on Indigenous Peoples (NCIP) shall be an attached agency of the Department of Land Reform .”

Section 2. Compensation. The Chairperson shall suffer no diminution in rank and salary.

Section 3. Repealing Clause. All executive issuances, rules and regulations or parts thereof which are inconsistent with this Executive Order are hereby revoked, amended or modified accordingly.

Section 4. Effectivity. This Executive Order shall take effect immediately. (Emphasis and underscoring in the original)

Petitioners contend that the two presidential issuances are unconstitutional for violating:

  • - THE CONSTITUTIONAL PRINCIPLES OF SEPARATION OF POWERS AND OF THE RULE OF LAW[;]

  • - THE CONSTITUTIONAL SCHEME AND POLICIES FOR AGRARIAN REFORM,

URBAN LAND REFORM, INDIGENOUS PEOPLES’ RIGHTS AND ANCESTRAL DOMAIN[; AND]

  • - THE CONSTITUTIONAL RIGHT OF THE PEOPLE AND THEIR ORGANIZATIONS TO EFFECTIVE AND REASONABLE PARTICIPATION IN DECISION-MAKING, INCLUDING THROUGH ADEQUATE CONSULTATION[.][1]

By Resolution of December 6, 2005, this Court gave due course to the Petition and required the submission of memoranda, with which petitioners and respondents complied on March 24, 2006 and April 11, 2006, respectively.

The issue on the transformation of the Department of Agrarian Reform (DAR) into the Department of Land Reform (DLR) became moot and academic, however, the department having reverted to its former name by virtue of E.O. No. 456[2] which was issued on August 23, 2005.

The Court is thus left with the sole issue of the legality of placing the Presidential Commission[3] for the Urban Poor (PCUP) under the supervision and control of the DAR, and the National Commission on Indigenous Peoples (NCIP) under the DAR as an attached agency.

Before inquiring into the validity of the reorganization, petitioners’ locus standi or legal standing, inter alia,[4] becomes a preliminary question.

The Office of the Solicitor General (OSG), on behalf of respondents, concedes that AMIN[5] has the requisite legal standing to file this suit as member[6] of Congress.

Petitioners find it impermissible for the Executive to intrude into the domain of the Legislature. They posit that an act of the Executive which injures the institution of Congress causes a derivative but nonetheless substantial injury, which can be questioned by a member of Congress.[7] They add that to the extent that the powers of Congress are impaired, so is the power of each member thereof, since his office confers a right to participate in the exercise of the powers of that institution.[8]

Indeed, a member of the House of Representatives has standing to maintain inviolate the prerogatives, powers and privileges vested by the Constitution in his office.[9]

The OSG questions, however, the standing of MDOI, a registered people’s organization of Teduray and Lambangian tribesfolk of (North) Upi and South Upi in the province of Maguindanao.

As co-petitioner, MDOI alleges that it is concerned with the negative impact of NCIP’s becoming an attached agency of the DAR on the processing of ancestral domain claims. It fears that transferring the NCIP to the DAR would affect the processing of ancestral domain claims filed by its members.

Locus standi or legal standing has been defined as a personal and substantial interest in a case such that the party has sustained or will sustain direct injury as a result of the governmental act that is being challenged. The gist of the question of standing is whether a party alleges such personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court depends for illumination of difficult constitutional questions.[10]

It has been held that a party who assails the constitutionality of a statute must have a direct and personal interest. It must show not only that the law or any governmental act is invalid, but also that it sustained or is in immediate danger of sustaining some direct injury as a result of its enforcement, and not merely that it suffers thereby in some indefinite way. It must show that it has been or is about to be denied some right or privilege to which it is lawfully entitled or that it is about to be subjected to some burdens or penalties by reason of the statute or act complained of.[11]

For a concerned party to be allowed to raise a constitutional question, it must show

that (1) it has personally suffered some actual or threatened injury as a result of the allegedly illegal conduct of the government, (2) the injury is fairly traceable to the challenged action, and (3) the injury is likely to be redressed by a favorable action.[12]

An examination of MDOI’s nebulous claims of “negative impact” and “probable setbacks[13] shows that they are too abstract to be considered judicially cognizable. And the line of causation it proffers between the challenged action and alleged injury is too attenuated.

Vague propositions that the implementation of the assailed orders will work injustice and violate the rights of its members cannot clothe MDOI with the requisite standing. Neither would its status as a “people’s organization” vest it with the legal standing to assail the validity of the executive orders.[14]

La Bugal-B’laan Tribal Association, Inc. v. Ramos,[15] which MDOI cites in support of its claim to legal standing, is inapplicable as it is not similarly situated with the therein petitioners who alleged personal and substantial injury resulting from the mining activities permitted by the assailed statute. And so is Cruz v. Secretary of Environment and Natural Resources,[16] for the indigenous peoples’ leaders and organizations were not the petitioners therein, who necessarily had to satisfy the locus standi requirement, but were intervenors who sought and were allowed to be impleaded, not to assail but to defend the constitutionality of the statute.

Moreover, MDOI raises no issue of transcendental importance to justify a

relaxation of the rule on legal standing.

To be accorded standing on the ground of

transcendental importance, Senate of the Philippines v. Ermita[17] requires that the following elements must be established: (1) the public character of the funds or other assets involved in the case, (2) the presence of a clear case of disregard of a

constitutional or statutory prohibition by the public respondent agency or instrumentality of government, and (3) the lack of any other party with a more direct and specific interest in raising the questions being raised. The presence of these elements MDOI failed to establish, much less allege.

Francisco, Jr. v. Fernando[18] more specifically declares that the transcendental importance of the issues raised must relate to the merits of the petition.

This Court, not being a venue for the ventilation of generalized grievances, must thus deny adjudication of the matters raised by MDOI.

Now, on AMIN’s position.

AMIN charges the Executive Department with

transgression of the principle of separation of powers.

Under the principle of separation of powers, Congress, the President, and the Judiciary may not encroach on fields allocated to each of them. The legislature is generally limited to the enactment of laws, the executive to the enforcement of laws, and the judiciary to their interpretation and application to cases and controversies. The principle presupposes mutual respect by and between the executive, legislative and judicial departments of the government and calls for them to be left alone to discharge their duties as they see fit.[19]

AMIN contends that since the DAR, PCUP and NCIP were created by statutes,[20] they can only be transformed, merged or attached by statutes, not by mere executive orders.

While AMIN concedes that the executive power is vested in the President[21] who,

as Chief Executive, holds the power of control of all the executive departments, bureaus, and offices,[22] it posits that this broad power of control including the power to reorganize is qualified and limited, for it cannot be exercised in a manner contrary to law, citing the constitutional duty[23] of the President to ensure that the laws, including those creating the agencies, be faithfully executed.

AMIN cites the naming of the PCUP as a presidential commission to be clearly an extension of the President, and the creation of the NCIP as an “independent agency under the Office of the President.”[24] It thus argues that since the legislature had seen fit to create these agencies at separate times and with distinct mandates, the President should respect that legislative disposition.

In fine, AMIN contends that any reorganization of these administrative agencies should be the subject of a statute.

AMIN’s position fails to impress.

The Constitution confers, by express provision, the power of control over executive departments, bureaus and offices in the President alone. And it lays down a limitation on the legislative power.

The line that delineates the Legislative and Executive power is not indistinct. Legislative power is “the authority, under the Constitution, to make laws, and to alter and repeal them.” The Constitution, as the will of the people in their original, sovereign and unlimited capacity, has vested this power in the Congress of the Philippines. The grant of legislative power to Congress is broad, general and comprehensive. The legislative body possesses plenary power for all purposes of civil government. Any power, deemed to be legislative by usage and tradition, is necessarily possessed by Congress, unless the Constitution has lodged it elsewhere. In fine, except as limited by the Constitution, either expressly or impliedly, legislative power embraces all subjects and extends to matters of general concern or common interest.

While Congress is vested with the power to enact laws, the President executes the laws. The executive power is vested in the President. It is generally defined as the power to enforce and administer the laws. It is the power of carrying the laws into practical operation and enforcing their due observance.

As head of the Executive Department, the President is the Chief Executive. He represents the government as a whole and sees to it that all laws are enforced by the officials and employees of his department. He has control over the executive department, bureaus and offices. This means that he has the authority to assume directly the functions of the executive department, bureau and office, or interfere with the discretion of its officials. Corollary to the power of control, the President also has the duty of supervising and enforcement of laws for the maintenance of general peace and public order. Thus, he is granted administrative power over bureaus and offices under his control to enable him to discharge his duties effectively.[25] (Italics omitted, underscoring supplied)

The Constitution’s express grant of the power of control in the President justifies

an executive action to carry out reorganization measures under a broad authority of law.

In enacting a statute, the legislature is presumed to have deliberated with full knowledge of all existing laws and jurisprudence on the subject.[27] It is thus reasonable to conclude that in passing a statute which places an agency under the Office of the President, it was in accordance with existing laws and jurisprudence on the President’s power to reorganize.

In establishing an executive department, bureau or office, the legislature necessarily ordains an executive agency’s position in the scheme of administrative structure. Such determination is primary,[28] but subject to the President’s continuing authority to reorganize the administrative structure. As far as bureaus, agencies or offices in the executive department are concerned, the power of control may justify the President to deactivate the functions of a particular office. Or a law may expressly grant the President the broad authority to carry out reorganization measures.[29] The

Administrative Code of 1987 is one such law:[30]

SEC. 30. Functions of Agencies under the Office of the President.– Agencies under the Office of the President shall continue to operate and function in accordance with their respective charters or laws creating them, except as otherwise provided in this Code or by law.

SEC. 31. Continuing Authority of the President to Reorganize his Office.– The President, subject to the policy in the Executive Office and in order to achieve simplicity, economy and efficiency, shall have continuing authority to reorganize the administrative structure of the Office of the President. For this purpose, he may take any of the following actions:

(1) Restructure the internal organization of the Office of the President Proper, including the immediate Offices, the Presidential Special Assistants/Advisers System and the Common Staff Support System, by abolishing, consolidating, or merging units thereof or transferring functions from one unit to another;

(2) Transfer any function under the Office of the President to any other Department or Agency as well as transfer functions to the Office of the President from other Departments and Agencies; and

(3) Transfer any agency under the Office of the President to any other department or agency as well as transfer agencies to the Office of the President from other departments or agencies.[31] (Italics in the original; emphasis and underscoring supplied)

In carrying out the laws into practical operation, the President is best equipped to assess whether an executive agency ought to continue operating in accordance with its charter or the law creating it. This is not to say that the legislature is incapable of making a similar assessment and appropriate action within its plenary power. The Administrative Code of 1987 merely underscores the need to provide the President with suitable solutions to situations on hand to meet the exigencies of the service that may call for the exercise of the power of control.

x x x The law grants the President this power in recognition of the recurring need of every President to reorganize his office “to achieve simplicity, economy and efficiency.” The Office of the President is the nerve center of the Executive Branch. To remain effective and efficient, the Office of the President must be capable of being shaped and reshaped by the President in the manner he deems fit to carry out his directives and policies. After all, the Office of the President is the command post of the President. This is the rationale behind the President’s continuing authority to reorganize the administrative structure of the Office of the President.[32]

The Office of the President consists of the Office of the President proper and the agencies under it.[33] It is not disputed that PCUP and NCIP were formed as agencies under the Office of the President.[34] The “Agencies under the Office of the President” refer to those offices placed under the chairmanship of the President, those under the supervision and control of the President, those under the administrative supervision of the Office of the President, those attached to the Office for policy and program coordination, and those that are not placed by law or order creating them under any special department.[35]

As thus provided by law, the President may transfer any agency under the Office of the President to any other department or agency, subject to the policy in the Executive Office and in order to achieve simplicity, economy and efficiency. Gauged against these guidelines,[36] the challenged executive orders may not be said to have been issued with grave abuse of discretion or in violation of the rule of law.

The references in E.O. 364 to asset reform as an anti-poverty measure for social justice and to rationalization of the bureaucracy in furtherance of good government[37] encapsulate a portion of the existing “policy in the Executive Office.” As averred by the OSG, the President saw it fit to streamline the agencies so as not to hinder the delivery of crucial social reforms.[38]

The consolidation of functions in E.O. 364 aims

to

attain the objectives of

“simplicity, economy and efficiency” as gathered from the provision granting PCUP and NCIP access to the range of services provided by the DAR’s technical offices and support systems.[39]

The characterization of the NCIP as an independent agency under the Office of the President does not remove said body from the President’s control and supervision with respect to its performance of administrative functions. So it has been opined:

That Congress did not intend to place the NCIP under the control of the President in all instances is evident in the IPRA itself, which provides that the decisions of the NCIP in the exercise of its quasi- judicial functions shall be appealable to the Court of Appeals, like those of the National Labor Relations Commission (NLRC) and the Securities and Exchange Commission (SEC). Nevertheless, the NCIP, although independent to a certain degree, was placed by Congress “under the office of the President” and, as such, is still subject to the President’s power of control and supervision granted under Section 17, Article VII of the Constitution with respect to its performance of administrative functions[.][40] (Underscoring supplied)

In transferring the NCIP to the DAR as an attached agency, the President effectively tempered the exercise of presidential authority and considerably recognized that degree of independence.

The Administrative Code of 1987 categorizes administrative relationships into (1) supervision and control, (2) administrative supervision, and (3) attachment.[41] With respect to the third category, it has been held that an attached agency has a larger measure of independence from the Department to which it is attached than one which is under departmental supervision and control or administrative supervision. This is borne out by the “lateral relationship” between the Department and the attached agency. The attachment is merely for “policy and program coordination.”[42] Indeed, the essential autonomous character of a board is not negated by its attachment to a commission.[43]

AMIN argues, however, that there is an anachronism of sorts because there can be no policy and program coordination between conceptually different areas of reform. It claims that the new framework subsuming agrarian reform, urban land reform and ancestral domain reform is fundamentally incoherent in view of the widely different

contexts.[44] And it posits that it is a substantive transformation or reorientation that runs contrary to the constitutional scheme and policies.

AMIN goes on to proffer the concept of “ordering the law”[45] which, so it alleges, can be said of the Constitution’s distinct treatment of these three areas, as reflected in separate provisions in different parts of the Constitution.[46] It argues that the Constitution did not intend an over-arching concept of agrarian reform to encompass the two other areas, and that how the law is ordered in a certain way should not be undermined by mere executive orders in the guise of administrative efficiency.

The Court is not persuaded.

The interplay of various areas of reform in the promotion of social justice is not something implausible or unlikely.[47] Their interlocking nature cuts across labels and works against a rigid pigeonholing of executive tasks among the members of the President’s official family. Notably, the Constitution inhibited from identifying and compartmentalizing the composition of the Cabinet. In vesting executive power in one person rather than in a plural executive, the evident intention was to invest the power holder with energy.[48]

AMIN takes premium on the severed treatment of these reform areas in marked provisions of the Constitution. It is a precept, however, that inferences drawn from title, chapter or section headings are entitled to very little weight.[49] And so must reliance on sub-headings,[50] or the lack thereof, to support a strained deduction be given the weight of helium.

Secondary aids may be consulted to remove, not to create doubt.[51] AMIN’s thesis unsettles, more than settles the order of things in construing the Constitution. Its interpretation fails to clearly establish that the so-called “ordering” or arrangement of provisions in the Constitution was consciously adopted to imply a signification in terms of government hierarchy from where a constitutional mandate can per se be derived or asserted. It fails to demonstrate that the “ordering” or layout was not simply a matter of style in constitutional drafting but one of intention in government structuring. With its inherent ambiguity, the proposed interpretation cannot be made a basis for declaring a law or governmental act unconstitutional.

A law has in its favor the presumption of constitutionality. For it to be nullified, it must be shown that there is a clear and unequivocal breach of the Constitution. The ground for nullity must be clear and beyond reasonable doubt.[52] Any reasonable doubt should, following the universal rule of legal hermeneutics, be resolved in favor of the constitutionality of a law.[53]

Ople

v.

Torres[54] on which AMIN

relies is unavailing.

In

that

case,

an

administrative order involved a system of identification that required a “delicate adjustment of various contending state policies” properly lodged in the legislative arena. It was declared unconstitutional for dealing with a subject that should be covered by law and for violating the right to privacy.

In the present case, AMIN glaringly failed to show how the reorganization by executive fiat would hamper the exercise of citizen’s rights and privileges. It rested on the ambiguous conclusion that the reorganization jeopardizes economic, social and cultural rights. It intimated, without expounding, that the agendum behind the issuances is to weaken the indigenous peoples’ rights in favor of the mining industry. And it raised

concerns about the possible retrogression in DAR’s performance as the added workload may impede the implementation of the comprehensive agrarian reform program.

AMIN has not shown, however, that by placing the NCIP as an attached agency of the DAR, the President altered the nature and dynamics of the jurisdiction and adjudicatory functions of the NCIP concerning all claims and disputes involving rights of indigenous cultural communities and

indigenous peoples. Nor has it been shown, nay alleged, that the reorganization was made in bad faith.[55]

As for the other arguments raised by AMIN which pertain to the wisdom or soundness of the executive decision, the Court finds it unnecessary to pass upon them. The raging debate on the most fitting framework in the delivery of social services is endless in the political arena. It is not the business of this Court to join in the fray. Courts have no judicial power to review cases involving political questions and, as a rule, will desist from taking cognizance of speculative or hypothetical cases, advisory opinions and cases that have become moot.[56]

Finally, a word on the last ground proffered for declaring the unconstitutionality of the assailed issuances ─ that they violate Section 16, Article XIII of the Constitution[57] on the people’s right to participate in decision-making through adequate consultation mechanisms.

The framers of the Constitution recognized that the consultation mechanisms were already operating without the State’s action by law, such that the role of the State would be mere facilitation, not necessarily creation of these consultation mechanisms. The State provides the support, but eventually it is the people, properly organized in their associations, who can assert the right and pursue the objective. Penalty for failure on the part of the government to consult could only be reflected in the ballot box and would not nullify government action.[58]

WHEREFORE, the petition is DISMISSED. Executive Order Nos. 364 and 379

issued on September 27, 2004 and October 26, 2004, respectively, are declared not unconstitutional.

SO ORDERED.

CONCHITA CARPIO MORALES

WE CONCUR:

Associate Justice

REYNATO S. PUNO

Chief Justice

LEONARDO A. QUISUMBING

CONSUELO

YNARES-

Associate Justice

SANTIAGO

Associate Justice

ANGELINA

GUTIERREZ

SANDOVAL-

Associate Justice

ANTONIO T. CARPIO

Associate Justice

MA. ALICIA AUSTRIA- MARTINEZ

Associate Justice

RENATO C. CORONA

Associate Justice

ADOLFO S. AZCUNA

Associate Justice

DANTE O. TINGA

Associate Justice

MINITA V. CHICO-NAZARIO

Associate Justice

CANCIO C. GARCIA

Associate Justice

PRESBITERO J. VELASCO, JR.

Associate Justice

ANTONIO EDUARDO B. NACHURA

Associate Justice

RUBEN T. REYES

Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Court.

REYNATO S. PUNO

Chief Justice

[1]

Rollo, p. 6.

[2]

Entitled “RENAMING THE DEPARTMENT OF LAND REFORM BACK TO

DEPARTMENT OF AGRARIAN REFORM” which declared that agrarian reform “goes beyond just land reform but includes the totality of all factors and support services designed to lift the economic status of the beneficiaries.”

[3]

Formerly “Committee” until modified by Memorandum Order No. 68 issued on January 22, 1987.

[4]

As there is no disagreement between the parties over the rest of the requisites for a valid

exercise of judicial review, discussion on the same shall be unnecessary, as deemed by the Court. Vide Pimentel, Jr. v. Aguirre, G.R. No. 132988, July 19, 2000, 336 SCRA 201, 213.

[5]

Anak Mindanao is a registered party-list group with one seat in the House of

Representatives occupied by Rep. Mujiv S. Hataman whose constituency includes indigenous peoples (Lumads), peasants and urban poor in Mindanao.

[6]

Vide discussion in Senate of the Philippines v. Ermita, G.R. No. 169777, July 14, 2006, 495

SCRA 170, for a discussion on the entitlement of a party-list organization to participate in the

legislative process vis-à-vis the intertwining rights of its representative/s.

[7]

Philconsa v. Enriquez, G.R. No. 113105, August 19, 1994, 235 SCRA 506.

[8]

Pimentel, Jr. v. Office of the Executive Secretary, G.R. No. 158088, July 6, 2005, 462 SCRA 622.

[9]

Del Mar v. Phil. Amusement and Gaming Corp., 400 Phil. 307 (2000).

Francisco, Jr. v. The House of Representatives, 460 Phil. 830, 893 (2003).

Vide Agan, Jr. v. Phil.International Air Terminals Co., Inc., 450 Phil 744 (2003).

Vide Telecom and Broadcast Attys. of the Phils., Inc. v. COMELEC, 352 Phil. 153, 168

(1998); vide also Lozada v. Comelec, 205 Phil. 283 (1983) on the need to establish concrete injury.

Rollo, pp. 5-6.

Vide Sanlakas v. Executive Secretary, 466 Phil. 482, 508 (2004) citing Kilosbayan v.

Morato, G.R. No. 118910, November 16, 1995, 250 SCRA 130.

465 Phil. 860 (2004).

400 Phil. 904 (2000).

G.R. No. 169777, April 20, 2006, 488 SCRA 1.

G.R. No. 166501, November 16, 2006, 507 SCRA 173.

Vide Atitiw v. Zamora, G.R. No. 143374, September 30, 2005, 471 SCRA 329, 345-346.

The DAR was created by Republic Act No. 6389 (1971); the PCUP by Executive Order No.

82 (1986) as modified by Memorandum Order No. 68 (1987) in Pres. Aquino’s exercise of legislative

powers under Proclamation No. 3, and Republic Act No. 7279 (1992); the NCIP by Republic Act No. 8371 (1997).

Constitution, Art. VII, Sec. 1.

Id., Art. VII, Sec. 17.

Ibid.

Republic Act No. 8371 (1997), vide Sec. 40.

Ople v. Torres, 354 Phil. 948, 966-968 (1998).

Bagaoisan v. National Tobacco Administration, 455 Phil. 761 (2003).

Didipio Earth-Savers’ Multi-Purpose Association, Inc. (DESAMA) v. Gozun, G.R. No.

157882, March 30, 2006, 485 SCRA 586.

Vide Eugenio v. Civil Service Commission, 312 Phil. 1145, 1152 (1995) which quotes Am

Jur 2d on Public Officers and Employees, viz: “Except for such offices as are created by the

Constitution, the creation of public offices is primarily a legislative function. In so far [sic] as the legislative power in this respect is not restricted by constitutional provisions, it is supreme, and the legislature may decide for itself what offices are suitable, necessary or convenient.”

Vide Buklod ng Kawaning EIIB v. Hon. Sec. Zamora, 413 Phil. 281, 291 (2001).

Id. at 294.

Executive Order No. 292 (1987), Book III, Chapter 10.

Domingo v. Hon. Zamora, 445 Phil. 7, 13 (2003).

Executive Order No. 292 (1987), Book III, Chapter 8, Sec. 21.

Vide Executive Order No. 82 (1986), Sec. 1; Republic Act No. 8371 (1997), Sec. 40.

Executive Order No. 292 (1987), Book III, Chapter 8, Sec. 23. The President shall, by

executive order, assign offices and agencies not otherwise assigned by law to any department, or

indicate to which department a government corporation or board may be attached. (Id., Book IV, Chapter 1. Sec. 5)

Bagaoisan v. National Tobacco Administration, supra at 776, adds that the numbered

paragraphs are not in the nature of provisos that unduly limit the aim and scope of the grant to the President of the power to reorganize but are to be viewed in consonance therewith.

Executive Order No. 364 (2004), perambulatory clauses.

Rollo, p. 130.

Executive Order No. 364 (2004), Sec. 4 & perambulatory clauses.

Separate Opinion of Justice Santiago M. Kapunan in Cruz v. Secretary of Environment and

Natural Resources, supra at 1087-1088.

Executive Order No. 292 (1987), Book IV, Chapter 7, Sec. 38.

Beja, Sr. v. Court of Appeals, G.R. No. 97149, March 31, 1992, 207 SCRA 689.

Eugenio v. Civil Service Commission, supra at 1155.

Rollo, Memorandum for Petitioners, pp. 85, 99. Particularly between agrarian reform and

ancestral domain, (rural-based) on the one hand, and urban land reform (urban-based), on the other

hand; and between agricultural land (DAR’s concern) and non-agricultural land (concern of PCUP and NCIP, the latter dealing mostly with timber & forest), citing Luz Farms v. Secretary of the Department of Agrarian Reform, G.R. No. 86889, December 4, 1990, 192 SCRA 51.

Id. at 99-100 citing Waller, AO, An Introduction to Law, 7th Ed. (1995), p. 57. Petitioners

attributed the elaboration of the concept to Louis Waller who stated that the modern system of ordering involves an understanding of certain “thought devices” with their appropriate names, which lawyers manufactured in the process of creating the law. The function of all legal concepts is to enable discussion about the regulation of human behavior to be carried on in a sensible fashion. And new thinking may produce new classifications of legal rules to replace wholly or in part those which today seem so firmly established. (Underscoring supplied).

On Agrarian Reform – Art. XIII, Secs. 4-8. On Urban Land Reform – Art. XIII, Secs. 9-10; On Indigenous

People’s Rights – Art. XIII, Sec. 6; Art. II, Sec. 22; Art. XII, Sec. 5; Art. XIV, Sec. 17; Art. XVI, Sec. 12. Also, Art. VI, Sec. 5 (2) on the erstwhile system of sectoral representation providing for separate representation of peasant, urban poor and indigenous cultural communities.

E.g., Constitution, Art. XIII, Sec. 6 which reads: “The State shall apply the principles of

agrarian reform or stewardship, whenever applicable in accordance with law, in the disposition or utilization of other natural resources, including lands of the public domain under lease or concession suitable to agriculture, subject to prior rights, homestead rights of small settlers, and the rights of

indigenous communities to their ancestral lands.”

Bernas, The 1987 Constitution of the Republic of the Philippines: A Commentary 793

(2003).

Black, Handbook on the Construction and Interpretation of the Laws 258-259 (1911);

Crawford, The Construction of Statutes 359-360 (1940); vide the Concurring and Dissenting Opinion of Justice (now Chief Justice) Reynato S. Puno in Santiago v. Comelec, 336 Phil. 848, 911 (1997).

Found particularly in Article XIII of the Constitution.

People v. Yabut, 58 Phil. 499 (1933).

Beltran v. Secretary of Health, G.R. No. 133640, November 25, 2005, 476 SCRA 168, 199-

200.

Garcia v. Commission on Elections, G.R. No. 111511, October 5, 1993, 227 SCRA 100,

107-108.

Supra note 25.

Cf. Canonizado v. Hon. Aguirre, 380 Phil. 280, 296 (2000); Larin v. Executive Secretary,

345 Phil. 962, 980 (1997) wherein it was held that reorganization is regarded as valid provided it is pursued in good faith and, as a general rule, a reorganization is carried out in “good faith” if it is for the purpose of economy or to make bureaucracy more efficient.

Cutaran v. DENR, 403 Phil. 654, 662-663 (2001).

“The right of the people and their organizations to effective and reasonable participation at

all levels of social, political, and economic decision-making shall not be abridged. The State shall, by law, facilitate the establishment of adequate consultation mechanisms.”

Vide Bernas, The Intent of the 1986 Constitution Writers 999, 1003-1005 (1995).

Today is Monday, September 10, 2012 Republic of the Philippines SUPREME COURT Manila EN BANC G.R.

Today is Monday, September 10, 2012

Today is Monday, September 10, 2012 Republic of the Philippines SUPREME COURT Manila EN BANC G.R.

Republic of the Philippines

SUPREME COURT

Manila

EN BANC

G.R. No. 178552 October 5, 2010

SOUTHERN HEMISPHERE ENGAGEMENT NETWORK, INC., on behalf of the

South-South Network (SSN) for Non-State Armed Group Engagement, and ATTY.

SOLIMAN M. SANTOS,

vs.

JR.,

Petitioners ,

ANTI-TERRORISM COUNCIL, THE EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE, THE SECRETARY OF FOREIGN AFFAIRS, THE SECRETARY OF

NATIONAL DEFENSE, THE SECRETARY OF THE INTERIOR AND LOCAL GOVERNMENT, THE SECRETARY OF FINANCE, THE NATIONAL SECURITY

ADVISER, THE CHIEF OF STAFF OF THE ARMED FORCES OF THE PHILIPPINES, AND THE CHIEF OF THE PHILIPPINE NATIONAL POLICE,

Respondents.

 

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G.R. No. 178554

 

KILUSANG MAYO UNO (KMU), represented by its Chairperson Elmer Labog, NATIONAL FEDERATION OF LABOR UNIONS-KILUSANG MAYO UNO (NAFLU- KMU), represented by its National President Joselito V. Ustarez and Secretary General Antonio C. Pascual, and CENTER FOR TRADE UNION AND HUMAN RIGHTS, represented by its Executive Director Daisy Arago, Petitioners, vs. HON. EDUARDO ERMITA, in his capacity as Executive Secretary, NORBERTO GONZALES, in his capacity as Acting Secretary of National Defense, HON. RAUL GONZALES, in his capacity as Secretary of Justice, HON. RONALDO PUNO, in his capacity as Secretary of the Interior and Local Government, GEN. HERMOGENES ESPERON, in his capacity as AFP Chief of Staff, and DIRECTOR GENERAL OSCAR CALDERON, in his capacity as PNP Chief of Staff, Respondents.

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G.R. No. 178581

BAGONG ALYANSANG MAKABAYAN (BAYAN), GENERAL ALLIANCE BINDING WOMEN FOR REFORMS, INTEGRITY, EQUALITY, LEADERSHIP AND ACTION (GABRIELA), KILUSANG MAGBUBUKID NG PILIPINAS (KMP), MOVEMENT OF CONCERNED CITIZENS FOR CIVIL LIBERTIES (MCCCL), CONFEDERATION FOR UNITY, RECOGNITION AND ADVANCEMENT OF GOVERNMENT EMPLOYEES (COURAGE), KALIPUNAN NG DAMAYANG MAHIHIRAP (KADAMAY), SOLIDARITY OF CAVITE WORKERS, LEAGUE OF FILIPINO STUDENTS (LFS), ANAKBAYAN, PAMBANSANG LAKAS NG KILUSANG MAMAMALAKAYA (PAMALAKAYA), ALLIANCE OF CONCERNED TEACHERS (ACT), MIGRANTE, HEALTH ALLIANCE FOR DEMOCRACY (HEAD), AGHAM,

TEOFISTO GUINGONA, JR., DR. BIENVENIDO LUMBERA, RENATO CONSTANTINO, JR., SISTER MARY JOHN MANANSAN OSB, DEAN CONSUELO PAZ, ATTY. JOSEFINA LICHAUCO, COL. GERRY CUNANAN (ret.), CARLITOS SIGUION-REYNA, DR. CAROLINA PAGADUAN-ARAULLO, RENATO REYES, DANILO RAMOS, EMERENCIANA DE LESUS, RITA BAUA, REY CLARO

CASAMBRE,

Petitioners ,

vs. GLORIA MACAPAGAL-ARROYO, in her capacity as President and Commander-in- Chief, EXECUTIVE SECRETARY EDUARDO ERMITA, DEPARTMENT OF JUSTICE SECRETARY RAUL GONZALES, DEPARTMENT OF FOREIGN AFFAIRS SECRETARY ALBERTO ROMULO, DEPARTMENT OF NATIONAL DEFENSE ACTING SECRETARY NORBERTO GONZALES, DEPARTMENT OF INTERIOR AND LOCAL GOVERNMENT SECRETARY RONALDO PUNO. DEPARTMENT OF FINANCE SECRETARY MARGARITO TEVES, NATIONAL SECURITY ADVISER NORBERTO GONZALES, THE NATIONAL INTELLIGENCE COORDINATING AGENCY (NICA), THE NATIONAL BUREAU OF INVESTIGATION (NBI), THE BUREAU OF IMMIGRATION, THE OFFICE OF CIVIL DEFENSE, THE INTELLIGENCE SERVICE OF THE ARMED FORCES OF THE PHILIPPINES (ISAFP), THE ANTI-MONEY LAUNDERING COUNCIL (AMLC), THE PHILIPPINE CENTER ON TRANSNATIONAL CRIME, THE CHIEF OF THE PHILIPPINE NATIONAL POLICE GEN. OSCAR CALDERON, THE PNP, including its intelligence and investigative elements, AFP CHIEF GEN. HERMOGENES ESPERON, Respondents.

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G.R. No. 178890

KARAPATAN, ALLIANCE FOR THE ADVANCEMENT OF PEOPLE'S RIGHTS, represented herein by Dr. Edelina de la Paz, and representing the following organizations: HUSTISYA, represented by Evangeline Hernandez and also on her own behalf; DESAPARECIDOS, represented by Mary Guy Portajada and also on her own behalf, SAMAHAN NG MGA EX-DETAINEES LABAN SA DETENSYON AT PARA SA

AMNESTIYA (SELDA), represented by Donato Continente and also on his own behalf, ECUMENICAL MOVEMENT FOR JUSTICE AND PEACE (EMJP), represented by Bishop Elmer M. Bolocon, UCCP, and PROMOTION OF CHURCH PEOPLE'S RESPONSE, represented by Fr. Gilbert Sabado, OCARM, Petitioners, vs.

GLORIA MACAPAGAL-ARROYO, in her capacity as President and Commander-in- Chief, EXECUTIVE SECRETARTY EDUARDO ERMITA, DEPARTMENT OF JUSTICE SECRETARY RAUL GONZALEZ, DEPARTMENT OF FOREIGN AFFAIRS SECRETARY ALBERTO ROMULO, DEPARTMENT OF NATIONAL DEFENSE ACTING SECRETARY NORBERTO GONZALES, DEPARTMENT OF INTERIOR AND LOCAL GOVERNMENT SECRETARY RONALDO PUNO, DEPARTMENT OF FINANCE SECRETARY MARGARITO TEVES, NATIONAL SECURITY ADVISER NORBERTO GONZALES, THE NATIONAL INTELLIGENCE COORDINATING AGENCY (NICA), THE NATIONAL BUREAU OF INVESTIGATION (NBI), THE BUREAU OF IMMIGRATION, THE OFFICE OF CIVIL DEFENSE, THE INTELLIGENCE SERVICE OF THE ARMED FORCES OF THE PHILIPPINES (ISAFP), THE ANTI-MONEY LAUNDERING COUNCIL (AMLC), THE PHILIPPINE CENTER ON TRANSNATIONAL CRIME, THE CHIEF OF THE PHILIPPINE NATIONAL POLICE GEN. OSCAR CALDERON, THE PNP, including its intelligence and investigative elements, AFP CHIEF GEN. HERMOGENES ESPERON, Respondents.

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G.R. No. 179157

THE INTEGRATED BAR OF THE PHILIPPINES (IBP), represented by Atty. Feliciano M. Bautista, COUNSELS FOR THE DEFENSE OF LIBERTY (CODAL), SEN. MA. ANA CONSUELO A.S. MADRIGAL and FORMER SENATORS SERGIO OSMEÑA III

and WIGBERTO

vs.

E.

TAÑADA,

Petitioners ,

EXECUTIVE SECRETARY EDUARDO ERMITA AND THE MEMBERS OF THE

ANTI-TERRORISM COUNCIL (ATC), Respondents.

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G.R. No. 179461

BAGONG ALYANSANG MAKABAYAN-SOUTHERN TAGALOG (BAYAN-ST), GABRIELA-ST, KATIPUNAN NG MGA SAMAHYANG MAGSASAKA-TIMOG KATAGALUGAN (KASAMA-TK), MOVEMENT OF CONCERNED CITIZENS FOR CIVIL LIBERTIES (MCCCL), PEOPLES MARTYRS, ANAKBAYAN-ST, PAMALAKAYA-ST, CONFEDERATION FOR UNITY, RECOGNITION AND

ADVANCEMENT OF GOVERNMENT EMPLOYEES (COURAGE-ST), PAGKAKAISA'T UGNAYAN NG MGA MAGBUBUKID SA LAGUNA (PUMALAG), SAMAHAN NG MGA MAMAMAYAN SA TABING RILES (SMTR-ST), LEAGUE OF FILIPINO STUDENTS (LFS), BAYAN MUNA-ST, KONGRESO NG MGA MAGBUBUKID PARA SA REPORMANG AGRARYO KOMPRA, BIGKIS AT LAKAS NG MGA KATUTUBO SA TIMOG KATAGALUGAN (BALATIK), SAMAHAN AT UGNAYAN NG MGA MAGSASAKANG KABABAIHAN SA TIMOG KATAGALUGAN (SUMAMAKA-TK), STARTER, LOSÑOS RURAL POOR ORGANIZATION FOR PROGRESS & EQUALITY, CHRISTIAN NIÑO LAJARA, TEODORO REYES, FRANCESCA B. TOLENTINO, JANNETTE E. BARRIENTOS, OSCAR T. LAPIDA, JR., DELFIN DE CLARO, SALLY P. ASTRERA, ARNEL SEGUNE BELTRAN,

Petitioners,

vs. GLORIA MACAPAGAL-ARROYO, in her capacity as President and Commander-in- Chief, EXECUTIVE SECRETARY EDUARDO ERMITA, DEPARTMENT OF JUSTICE SECRETARY RAUL GONZALEZ, DEPARTMENT OF FOREIGN AFFAIRS SECRETARY ALBERTO ROMULO, DEPARTMENT OF NATIONAL DEFENSE ACTING SECRETARY NORBERTO GONZALES, DEPARTMENT OF INTERIOR AND LOCAL GOVERNMEN T SECRETARY RONALDO PUNO, DEPARTMENT OF FINCANCE SECRETARY MARGARITO TEVES, NATIONAL SECURITY ADVISER NORBERTO GONZALES, THE NATIONAL INTELLIGENCE COORDINATING AGENCY (NICA), THE NATIONAL BUREAU OF INVESTIGATION (NBI), THE BUREAU OF IMMIGRATION, THE OFFICE OF CIVIL DEFENSE, THE INTELLIGENCE SERVICE OF THE ARMED FORCES OF THE PHILIPPINES (ISAFP), THE ANTI-MONEY LAUNDERING COUNCIL (AMLC), THE PHILIPPINE CENTER ON TRANSNATIONAL CRIME, THE CHIEF OF THE PHILIPPINE NATIONAL POLICE GEN. OSCAR CALDERON, THE PNP, including its intelligence and investigative elements, AFP CHIEF GEN. HERMOGENES ESPERON, Respondents.

D E C I S I O N

CARPIO MORALES, J.:

Before the Court are six petitions challenging the constitutionality of Republic Act No. 9372 (RA 9372), "An Act to Secure the State and Protect our People from Terrorism," otherwise known as the Human Security Act of 2007, 1 signed into law on March 6, 2007.

Following the effectivity of RA 9372 on July 15, 2007, 2 petitioner Southern Hemisphere Engagement Network, Inc., a non-government organization, and Atty. Soliman Santos, Jr., a concerned citizen, taxpayer and lawyer, filed a petition for certiorari and prohibition on July 16, 2007 docketed as G.R. No. 178552. On even date, petitioners Kilusang Mayo Uno (KMU), National Federation of Labor Unions-Kilusang Mayo Uno (NAFLU-KMU), and Center for

Trade Union and Human Rights (CTUHR), represented by their respective officers 3 who are also bringing the action in their capacity as citizens, filed a petition for certiorari and prohibition docketed as G.R. No. 178554.

The following day, July 17, 2007, organizations Bagong Alyansang Makabayan (BAYAN), General Alliance Binding Women for Reforms, Integrity, Equality, Leadership and Action (GABRIELA), Kilusang Magbubukid ng Pilipinas (KMP), Movement of Concerned Citizens for Civil Liberties (MCCCL), Confederation for Unity, Recognition and Advancement of Government Employees (COURAGE), Kalipunan ng Damayang Mahihirap (KADAMAY), Solidarity of Cavite Workers (SCW), League of Filipino Students (LFS), Anakbayan, Pambansang Lakas ng Kilusang Mamamalakaya (PAMALAKAYA), Alliance of Concerned Teachers (ACT), Migrante, Health Alliance for Democracy (HEAD), and Agham, represented

by their respective officers, 4 and joined by concerned citizens and taxpayers Teofisto Guingona, Jr., Dr. Bienvenido Lumbera, Renato Constantino, Jr., Sister Mary John Manansan, OSB, Dean Consuelo Paz, Atty. Josefina Lichauco, Retired Col. Gerry Cunanan, Carlitos Siguion-Reyna, Dr. Carolina Pagaduan-Araullo, Renato Reyes, Danilo Ramos, Emerenciana de Jesus, Rita Baua and Rey Claro Casambre filed a petition for certiorari and prohibition docketed as G.R. No. 178581.

On August 6, 2007, Karapatan and its alliance member organizations Hustisya, Desaparecidos, Samahan ng mga Ex-Detainees Laban sa Detensyon at para sa Amnestiya (SELDA), Ecumenical Movement for Justice and Peace (EMJP), and Promotion of Church People’s Response (PCPR), which were represented by their respective officers 5 who are also bringing

action on their own behalf, filed a petition for certiorari and prohibition docketed as G.R. No.

178890.

On August 29, 2007, the Integrated Bar of the Philippines (IBP), Counsels for the Defense of Liberty (CODAL), 6 Senator Ma. Ana Consuelo A.S. Madrigal, Sergio Osmeña III, and Wigberto E. Tañada filed a petition for certiorari and prohibition docketed as G.R. No. 179157.

Bagong Alyansang Makabayan-Southern Tagalog (BAYAN-ST), other regional chapters and

organizations mostly based in the Southern Tagalog Region, 7 and individuals 8 followed suit by filing on September 19, 2007 a petition for certiorari and prohibition docketed as G.R. No. 179461 that replicates the allegations raised in the BAYAN petition in G.R. No. 178581.

Impleaded as respondents in the various petitions are the Anti-Terrorism Council 9 composed of, at the time of the filing of the petitions, Executive Secretary Eduardo Ermita as Chairperson, Justice Secretary Raul Gonzales as Vice Chairperson, and Foreign Affairs Secretary Alberto Romulo, Acting Defense Secretary and National Security Adviser Norberto Gonzales, Interior and Local Government Secretary Ronaldo Puno, and Finance Secretary Margarito Teves as members. All the petitions, except that of the IBP, also impleaded Armed Forces of the Philippines (AFP) Chief of Staff Gen. Hermogenes Esperon and Philippine National Police (PNP) Chief Gen. Oscar Calderon.

The Karapatan, BAYAN and BAYAN-ST petitions likewise impleaded President Gloria Macapagal-Arroyo and the support agencies for the Anti-Terrorism Council like the National Intelligence Coordinating Agency, National Bureau of Investigation, Bureau of Immigration, Office of Civil Defense, Intelligence Service of the AFP, Anti-Money Laundering Center, Philippine Center on Transnational Crime, and the PNP intelligence and investigative elements.

The petitions fail.

Petitioners’ resort to certiorari is improper

Preliminarily, certiorari does not lie against respondents who do not exercise judicial or quasi- judicial functions. Section 1, Rule 65 of the Rules of Court is clear:

Section 1. Petition for certiorari.—When any tribunal, board or officer exercising judicial or quasi-judicial functions has acted without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, and there is no appeal, nor any plain, speedy, and adequate remedy in the ordinary course of law, a person aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty and praying that judgment be rendered annulling or modifying the proceedings of such tribunal, board or officer, and granting such incidental reliefs as law and justice may require. (Emphasis and underscoring supplied)

Parenthetically, petitioners do not even allege with any modicum of particularity how respondents acted without or in excess of their respective jurisdictions, or with grave abuse of discretion amounting to lack or excess of jurisdiction.

The impropriety of certiorari as a remedy aside, the petitions fail just the same.

In constitutional litigations, the power of judicial review is limited by four exacting requisites, viz: (a) there must be an actual case or controversy; (b) petitioners must possess locus standi; (c) the question of constitutionality must be raised at the earliest opportunity; and (d) the issue

of constitutionality must be the lis mota of the case. 10

In the present case, the dismal absence of the first two requisites, which are the most essential, renders the discussion of the last two superfluous.

Petitioners lack locus standi

Locus standi or legal standing requires a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the

court so largely depends for illumination of difficult constitutional questions. 11

Anak Mindanao Party-List Group v. The Executive Secretary 12 summarized the rule on locus standi, thus:

Locus standi or legal standing has been defined as a personal and substantial interest in a case such that the party has sustained or will sustain direct injury as a result of the governmental act that is being challenged. The gist of the question on standing is whether a party alleges such personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court depends for illumination of difficult constitutional questions.

[A] party who assails the constitutionality of a statute must have a direct and personal interest. It must show not only that the law or any governmental act is invalid, but also that it sustained or is in immediate danger of sustaining some direct injury as a result of its enforcement, and not merely that it suffers thereby in some indefinite way. It must show that it has been or is about to be denied some right or privilege to which it is lawfully entitled or that it is about to be subjected to some burdens or penalties by reason of the statute or act complained of.

For a concerned party to be allowed to raise a constitutional question, it must show that (1) it has personally suffered some actual or threatened injury as a result of the allegedly illegal conduct of the government, (2) the injury is fairly traceable to the challenged action, and (3) the injury is likely to be redressed by a favorable action. (emphasis and underscoring supplied.)

Petitioner-organizations assert locus standi on the basis of being suspected "communist fronts" by the government, especially the military; whereas individual petitioners invariably invoke the "transcendental importance" doctrine and their status as citizens and taxpayers.

While Chavez v. PCGG 13 holds that transcendental public importance dispenses with the

requirement that petitioner has experienced or is in actual danger of suffering direct and personal injury, cases involving the constitutionality of penal legislation belong to an altogether different genus of constitutional litigation. Compelling State and societal interests in the proscription of harmful conduct, as will later be elucidated, necessitate a closer judicial scrutiny of locus standi.

Petitioners have not presented any personal stake in the outcome of the controversy. None of them faces any charge under RA 9372.

KARAPATAN, Hustisya, Desaparecidos, SELDA, EMJP and PCR, petitioners in G.R. No. 178890, allege that they have been subjected to "close security surveillance by state security forces," their members followed by "suspicious persons" and "vehicles with dark windshields," and their offices monitored by "men with military build." They likewise claim that they have

been branded as "enemies of the [S]tate." 14

Even conceding such gratuitous allegations, the Office of the Solicitor General (OSG) correctly points out that petitioners have yet to show any connection between the purported "surveillance" and the implementation of RA 9372.

BAYAN, GABRIELA, KMP, MCCCL, COURAGE, KADAMAY, SCW, LFS, Anakbayan, PAMALAKAYA, ACT, Migrante, HEAD and Agham, petitioner-organizations in G.R. No. 178581, would like the Court to take judicial notice of respondents’ alleged action of tagging them as militant organizations fronting for the Communist Party of the Philippines (CPP) and its armed wing, the National People’s Army (NPA). The tagging, according to petitioners, is

tantamount to the effects of proscription without following the procedure under the law. 15 The petition of BAYAN-ST, et al. in G.R. No. 179461 pleads the same allegations.

The Court cannot take judicial notice of the alleged "tagging" of petitioners.

Generally speaking, matters of judicial notice have three material requisites: (1) the matter must be one of common and general knowledge; (2) it must be well and authoritatively settled and not doubtful or uncertain; and (3) it must be known to be within the limits of the jurisdiction of the court. The principal guide in determining what facts may be assumed to be judicially known is that of notoriety. Hence, it can be said that judicial notice is limited to facts evidenced by public records and facts of general notoriety. Moreover, a judicially noticed fact must be one not subject to a reasonable dispute in that it is either: (1) generally known within the territorial jurisdiction of the trial court; or (2) capable of accurate and ready determination by resorting to sources whose accuracy cannot reasonably be questionable.

Things of "common knowledge," of which courts take judicial matters coming to the knowledge of men generally in the course of the ordinary experiences of life, or they may be matters which are generally accepted by mankind as true and are capable of ready and unquestioned demonstration. Thus, facts which are universally known, and which may be found in encyclopedias, dictionaries or other publications, are judicially noticed, provided, they are of such universal notoriety and so generally understood that they may be regarded as forming part of the common knowledge of every person. As the common knowledge of man ranges far and wide, a wide variety of particular facts have been judicially noticed as being matters of common knowledge. But a court cannot take judicial notice of any fact which, in

part, is dependent on the existence or non-existence of a fact of which the court has no constructive knowledge. 16 (emphasis and underscoring supplied.)

No ground was properly established by petitioners for the taking of judicial notice. Petitioners’ apprehension is insufficient to substantiate their plea. That no specific charge or proscription under RA 9372 has been filed against them, three years after its effectivity, belies any claim of imminence of their perceived threat emanating from the so-called tagging.

The same is true with petitioners KMU, NAFLU and CTUHR in G.R. No. 178554, who merely harp as well on their supposed "link" to the CPP and NPA. They fail to particularize how the implementation of specific provisions of RA 9372 would result in direct injury to their organization and members.

While in our jurisdiction there is still no judicially declared terrorist organization, the United

States of America 17 (US) and the European Union 18 (EU) have both classified the CPP, NPA and Abu Sayyaf Group as foreign terrorist organizations. The Court takes note of the joint statement of Executive Secretary Eduardo Ermita and Justice Secretary Raul Gonzales that the Arroyo Administration would adopt the US and EU classification of the CPP and NPA as

terrorist organizations. 19 Such statement notwithstanding, there is yet to be filed before the courts an application to declare the CPP and NPA organizations as domestic terrorist or

outlawed organizations under RA 9372. Again, RA 9372 has been in effect for three years now. From July 2007 up to the present, petitioner-organizations have conducted their activities fully and freely without any threat of, much less an actual, prosecution or proscription under RA

9372.

Parenthetically, the Fourteenth Congress, in a resolution initiated by Party-list Representatives

Saturnino Ocampo, Teodoro Casiño, Rafael Mariano and Luzviminda Ilagan, 20 urged the government to resume peace negotiations with the NDF by removing the impediments thereto, one of which is the adoption of designation of the CPP and NPA by the US and EU as foreign

terrorist organizations. Considering the policy statement of the Aquino Administration 21 of resuming peace talks with the NDF, the government is not imminently disposed to ask for the judicial proscription of the CPP-NPA consortium and its allied organizations.

More important, there are other parties not before the Court with direct and specific interests in the questions being raised. 22 Of recent development is the filing of the first case for proscription under Section 17 23 of RA 9372 by the Department of Justice before the Basilan Regional Trial Court against the Abu Sayyaf Group. 24 Petitioner-organizations do not in the least allege any link to the Abu Sayyaf Group.

Some petitioners attempt, in vain though, to show the imminence of a prosecution under RA 9372 by alluding to past rebellion charges against them.

In Ladlad v. Velasco, 25 the Court ordered the dismissal of rebellion charges filed in 2006 against then Party-List Representatives Crispin Beltran and Rafael Mariano of Anakpawis, Liza Maza of GABRIELA, and Joel Virador, Teodoro Casiño and Saturnino Ocampo of Bayan Muna. Also named in the dismissed rebellion charges were petitioners Rey Claro Casambre, Carolina Pagaduan-Araullo, Renato Reyes, Rita Baua, Emerencia de Jesus and Danilo Ramos;

and accused of being front organizations for the Communist movement were petitioner- organizations KMU, BAYAN, GABRIELA, PAMALAKAYA, KMP, KADAMAY, LFS and

COURAGE. 26

The dismissed rebellion charges, however, do not save the day for petitioners. For one, those charges were filed in 2006, prior to the enactment of RA 9372, and dismissed by this Court. For another, rebellion is defined and punished under the Revised Penal Code. Prosecution for rebellion is not made more imminent by the enactment of RA 9372, nor does the enactment thereof make it easier to charge a person with rebellion, its elements not having been altered.

Conversely, previously filed but dismissed rebellion charges bear no relation to prospective charges under RA 9372. It cannot be overemphasized that three years after the enactment of RA 9372, none of petitioners has been charged.

Petitioners IBP and CODAL in G.R. No. 179157 base their claim of locus standi on their sworn duty to uphold the Constitution. The IBP zeroes in on Section 21 of RA 9372 directing it to render assistance to those arrested or detained under the law.

The mere invocation of the duty to preserve the rule of law does not, however, suffice to clothe the IBP or any of its members with standing. 27 The IBP failed to sufficiently demonstrate how its mandate under the assailed statute revolts against its constitutional rights and duties. Moreover, both the IBP and CODAL have not pointed to even a single arrest or detention effected under RA 9372.

Former Senator Ma. Ana Consuelo Madrigal, who claims to have been the subject of "political surveillance," also lacks locus standi. Prescinding from the veracity, let alone legal basis, of the claim of "political surveillance," the Court finds that she has not shown even the slightest threat of being charged under RA 9372. Similarly lacking in locus standi are former Senator Wigberto Tañada and Senator Sergio Osmeña III, who cite their being respectively a human rights advocate and an oppositor to the passage of RA 9372. Outside these gratuitous statements, no concrete injury to them has been pinpointed.

Petitioners Southern Hemisphere Engagement Network and Atty. Soliman Santos Jr. in G.R. No. 178552 also conveniently state that the issues they raise are of transcendental importance, "which must be settled early" and are of "far-reaching implications," without mention of any specific provision of RA 9372 under which they have been charged, or may be charged. Mere invocation of human rights advocacy has nowhere been held sufficient to clothe litigants with locus standi. Petitioners must show an actual, or immediate danger of sustaining, direct injury as a result of the law’s enforcement. To rule otherwise would be to corrupt the settled doctrine of locus standi, as every worthy cause is an interest shared by the general public.

Neither can locus standi be conferred upon individual petitioners as taxpayers and citizens. A taxpayer suit is proper only when there is an exercise of the spending or taxing power of

Congress, 28 whereas citizen standing must rest on direct and personal interest in the proceeding. 29

RA 9372 is a penal statute and does not even provide for any appropriation from Congress for its implementation, while none of the individual petitioner-citizens has alleged any direct and

personal interest in the implementation of the law.

It bears to stress that generalized interests, albeit accompanied by the assertion of a public right, do not establish locus standi. Evidence of a direct and personal interest is key.

Petitioners fail to present an actual case or controversy

By constitutional fiat, judicial power operates only when there is an actual case or controversy.

Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law.

Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of

any branch or instrumentality of the Government. 30 (emphasis and underscoring supplied.)

As early as Angara v. Electoral Commission, 31 the Court ruled that the power of judicial review is limited to actual cases or controversies to be exercised after full opportunity of argument by the parties. Any attempt at abstraction could only lead to dialectics and barren legal questions and to sterile conclusions unrelated to actualities.

An actual case or controversy means an existing case or controversy that is appropriate or ripe for determination, not conjectural or anticipatory, lest the decision of the court would amount

to an advisory opinion. 32

Information Technology Foundation of the Philippines v. COMELEC 33 cannot be more emphatic:

[C]ourts do not sit to adjudicate mere academic questions to satisfy scholarly interest, however intellectually challenging. The controversy must be justiciable—definite and concrete, touching on the legal relations of parties having adverse legal interests. In other words, the pleadings must show an active antagonistic assertion of a legal right, on the one hand, and a denial thereof on the other hand; that is, it must concern a real and not merely a theoretical question or issue. There ought to be an actual and substantial controversy admitting of specific relief through a decree conclusive in nature, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts. (Emphasis and underscoring supplied)

Thus, a petition to declare unconstitutional a law converting the Municipality of Makati into a Highly Urbanized City was held to be premature as it was tacked on uncertain, contingent

events. 34 Similarly, a petition that fails to allege that an application for a license to operate a radio or television station has been denied or granted by the authorities does not present a

justiciable controversy, and merely wheedles the Court to rule on a hypothetical problem. 35

The Court dismissed the petition in Philippine Press Institute v. Commission on Elections 36 for failure to cite any specific affirmative action of the Commission on Elections to implement the assailed resolution. It refused, in Abbas v. Commission on Elections, 37 to rule on the religious

freedom claim of the therein petitioners based merely on a perceived potential conflict between the provisions of the Muslim Code and those of the national law, there being no actual controversy between real litigants.

The list of cases denying claims resting on purely hypothetical or anticipatory grounds goes on ad infinitum.

The Court is not unaware that a reasonable certainty of the occurrence of a perceived threat to any constitutional interest suffices to provide a basis for mounting a constitutional challenge. This, however, is qualified by the requirement that there must be sufficient facts to enable the

Court to intelligently adjudicate the issues. 38

Very recently, the US Supreme Court, in Holder v. Humanitarian Law Project, 39 allowed the pre-enforcement review of a criminal statute, challenged on vagueness grounds, since plaintiffs faced a "credible threat of prosecution" and "should not be required to await and undergo a

criminal prosecution as the sole means of seeking relief." 40 The plaintiffs therein filed an action before a federal court to assail the constitutionality of the material support statute, 18

U.S.C. §2339B (a) (1), 41 proscribing the provision of material support to organizations declared by the Secretary of State as foreign terrorist organizations. They claimed that they intended to provide support for the humanitarian and political activities of two such organizations.

Prevailing American jurisprudence allows an adjudication on the merits when an anticipatory petition clearly shows that the challenged prohibition forbids the conduct or activity that a

petitioner seeks to do, as there would then be a justiciable controversy. 42

Unlike the plaintiffs in Holder, however, herein petitioners have failed to show that the challenged provisions of RA 9372 forbid constitutionally protected conduct or activity that they seek to do. No demonstrable threat has been established, much less a real and existing one.

Petitioners’ obscure allegations of sporadic "surveillance" and supposedly being tagged as "communist fronts" in no way approximate a credible threat of prosecution. From these allegations, the Court is being lured to render an advisory opinion, which is not its function. 43

Without any justiciable controversy, the petitions have become pleas for declaratory relief, over which the Court has no original jurisdiction. Then again, declaratory actions characterized by "double contingency," where both the activity the petitioners intend to undertake and the anticipated reaction to it of a public official are merely theorized, lie beyond judicial review for

lack of ripeness. 44

The possibility of abuse in the implementation of RA 9372 does not avail to take the present petitions out of the realm of the surreal and merely imagined. Such possibility is not peculiar to

RA 9372 since the exercise of any power granted by law may be abused. 45 Allegations of abuse must be anchored on real events before courts may step in to settle actual controversies involving rights which are legally demandable and enforceable.

A facial invalidation of a statute is allowed only in free speech cases, wherein certain rules of constitutional litigation are rightly excepted

Petitioners assail for being intrinsically vague and impermissibly broad the definition of the

crime of terrorism 46 under RA 9372 in that terms like "widespread and extraordinary fear and panic among the populace" and "coerce the government to give in to an unlawful demand" are nebulous, leaving law enforcement agencies with no standard to measure the prohibited acts.

Respondents, through the OSG, counter that the doctrines of void-for-vagueness and overbreadth find no application in the present case since these doctrines apply only to free speech cases; and that RA 9372 regulates conduct, not speech.

For a jurisprudentially guided understanding of these doctrines, it is imperative to outline the schools of thought on whether the void-for-vagueness and overbreadth doctrines are equally applicable grounds to assail a penal statute.

Respondents interpret recent jurisprudence as slanting toward the idea of limiting the application of the two doctrines to free speech cases. They particularly cite Romualdez v. Hon.

Sandiganbayan 47 and Estrada v. Sandiganbayan. 48

The Court clarifies.

At issue in Romualdez v. Sandiganbayan was whether the word "intervene" in Section 5 49 of the Anti-Graft and Corrupt Practices Act was intrinsically vague and impermissibly broad. The Court stated that "the overbreadth and the vagueness doctrines have special application only to

free-speech cases," and are "not appropriate for testing the validity of penal statutes." 50 It added that, at any rate, the challenged provision, under which the therein petitioner was

charged, is not vague. 51

While in the subsequent case of Romualdez v. Commission on Elections, 52 the Court stated that a facial invalidation of criminal statutes is not appropriate, it nonetheless proceeded to conduct

a vagueness analysis, and concluded that the therein subject election offense 53 under the Voter’s Registration Act of 1996, with which the therein petitioners were charged, is couched

in precise language. 54

The two Romualdez cases rely heavily on the Separate Opinion 55 of Justice Vicente V. Mendoza in the Estrada case, where the Court found the Anti-Plunder Law (Republic Act No. 7080) clear and free from ambiguity respecting the definition of the crime of plunder.

The position taken by Justice Mendoza in Estrada relates these two doctrines to the concept of a "facial" invalidation as opposed to an "as-applied" challenge. He basically postulated that allegations that a penal statute is vague and overbroad do not justify a facial review of its validity. The pertinent portion of the Concurring Opinion of Justice Mendoza, which was quoted at length in the main Estrada decision, reads:

A facial challenge is allowed to be made to a vague statute and to one which is overbroad because of possible "chilling effect" upon protected speech. The theory is that "[w]hen statutes

regulate or proscribe speech and no readily apparent construction suggests itself as a vehicle for rehabilitating the statutes in a single prosecution, the transcendent value to all society of constitutionally protected expression is deemed to justify allowing attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with narrow specificity." The possible harm to society in permitting some unprotected speech to go unpunished is outweighed by the possibility that the protected speech of others may be deterred and perceived grievances left to fester because of possible inhibitory effects of overly broad statutes.

This rationale does not apply to penal statutes. Criminal statutes have general in terrorem effect resulting from their very existence, and, if facial challenge is allowed for this reason alone, the State may well be prevented from enacting laws against socially harmful conduct. In the area of criminal law, the law cannot take chances as in the area of free speech.

The overbreadth and vagueness doctrines then have special application only to free speech cases. They are inapt for testing the validity of penal statutes. As the U.S. Supreme Court put it, in an opinion by Chief Justice Rehnquist, "we have not recognized an 'overbreadth' doctrine outside the limited context of the First Amendment." In Broadrick v. Oklahoma, the Court ruled that "claims of facial overbreadth have been entertained in cases involving statutes which, by their terms, seek to regulate only spoken words" and, again, that "overbreadth claims, if entertained at all, have been curtailed when invoked against ordinary criminal laws that are sought to be applied to protected conduct." For this reason, it has been held that "a facial challenge to a legislative act is the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid." As for the vagueness doctrine, it is said that a litigant may challenge a statute on its face only if it is vague in all its possible applications. "A plaintiff who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others."

In sum, the doctrines of strict scrutiny, overbreadth, and vagueness are analytical tools developed for testing "on their faces" statutes in free speech cases or, as they are called in American law, First Amendment cases. They cannot be made to do service when what is involved is a criminal statute. With respect to such statute, the established rule is that "one to whom application of a statute is constitutional will not be heard to attack the statute on the ground that impliedly it might also be taken as applying to other persons or other situations in which its application might be unconstitutional." As has been pointed out, "vagueness challenges in the First Amendment context, like overbreadth challenges typically produce facial invalidation, while statutes found vague as a matter of due process typically are invalidated [only] 'as applied' to a particular defendant." Consequently, there is no basis for petitioner's claim that this Court review the Anti-Plunder Law on its face and in its entirety.

Indeed, "on its face" invalidation of statutes results in striking them down entirely on the ground that they might be applied to parties not before the Court whose activities are constitutionally protected. It constitutes a departure from the case and controversy requirement of the Constitution and permits decisions to be made without concrete factual settings and in sterile abstract contexts. But, as the U.S. Supreme Court pointed out in Younger v. Harris

[T]he task of analyzing a proposed statute, pinpointing its deficiencies, and requiring

correction of these deficiencies

before the

statute

is

put into

effect, is

rarely

if ever

an

appropriate task for the judiciary. The combination of the relative remoteness of the

controversy, the impact on the legislative process of the relief sought, and above all the

speculative and amorphous nature of the required line-by-line analysis of detailed statutes,

. ordinarily results in a kind of case that is wholly unsatisfactory for deciding constitutional

. .

questions, whichever way they might be decided.

For these reasons, "on its face" invalidation of statutes has been described as "manifestly strong medicine," to be employed "sparingly and only as a last resort," and is generally disfavored. In determining the constitutionality of a statute, therefore, its provisions which are alleged to have been violated in a case must be examined in the light of the conduct with

which the defendant is charged. 56 (Underscoring supplied.)

The confusion apparently stems from the interlocking relation of the overbreadth and vagueness doctrines as grounds for a facial or as-applied challenge against a penal statute (under a claim of violation of due process of law) or a speech regulation (under a claim of abridgement of the freedom of speech and cognate rights).

To be sure, the doctrine of vagueness and the doctrine of overbreadth do not operate on the same plane.

A statute or act suffers from the defect of vagueness when it lacks comprehensible standards that men of common intelligence must necessarily guess at its meaning and differ as to its application. It is repugnant to the Constitution in two respects: (1) it violates due process for failure to accord persons, especially the parties targeted by it, fair notice of the conduct to avoid; and (2) it leaves law enforcers unbridled discretion in carrying out its provisions and

becomes an arbitrary flexing of the Government muscle. 57 The overbreadth doctrine, meanwhile, decrees that a governmental purpose to control or prevent activities constitutionally subject to state regulations may not be achieved by means which sweep

unnecessarily broadly and thereby invade the area of protected freedoms. 58

As distinguished from the vagueness doctrine, the overbreadth doctrine assumes that individuals will understand what a statute prohibits and will accordingly refrain from that

behavior, even though some of it is protected. 59

A "facial" challenge is likewise different from an "as-applied" challenge.

Distinguished from an as-applied challenge which considers only extant facts affecting real litigants, a facial invalidation is an examination of the entire law, pinpointing its flaws and defects, not only on the basis of its actual operation to the parties, but also on the assumption or prediction that its very existence may cause others not before the court to refrain from

constitutionally protected speech or activities. 60

Justice Mendoza accurately phrased the subtitle 61 in his concurring opinion that the vagueness and overbreadth doctrines, as grounds for a facial challenge, are not applicable to penal laws. A litigant cannot thus successfully mount a facial challenge against a criminal statute on either vagueness or overbreadth grounds.

The allowance of a facial challenge in free speech cases is justified by the aim to avert the

"chilling

effect"

on protected speech, the exercise of

which

should

not

at

all times

be

abridged. 62 As reflected earlier, this rationale is inapplicable to plain penal statutes that generally bear an "in terrorem effect" in deterring socially harmful conduct. In fact, the legislature may even forbid and penalize acts formerly considered innocent and lawful, so long as it refrains from diminishing or dissuading the exercise of constitutionally protected rights. 63

The Court reiterated that there are "critical limitations by which a criminal statute may be challenged" and "underscored that an ‘on-its-face’ invalidation of penal statutes x x x may not

be allowed." 64

[T]he rule established in our jurisdiction is, only statutes on free speech, religious freedom, and other fundamental rights may be facially challenged. Under no case may ordinary penal statutes be subjected to a facial challenge. The rationale is obvious. If a facial challenge to a penal statute is permitted, the prosecution of crimes may be hampered. No prosecution would be possible. A strong criticism against employing a facial challenge in the case of penal statutes, if the same is allowed, would effectively go against the grain of the doctrinal requirement of an existing and concrete controversy before judicial power may be appropriately exercised. A facial challenge against a penal statute is, at best, amorphous and speculative. It would, essentially, force the court to consider third parties who are not before it. As I have said in my opposition to the allowance of a facial challenge to attack penal statutes, such a test will impair the State’s ability to deal with crime. If warranted, there would be nothing that can hinder an accused from defeating the State’s power to prosecute on a mere showing that, as applied to third parties, the penal statute is vague or overbroad,

notwithstanding that the law is clear as applied to him. 65 (Emphasis and underscoring supplied)

It is settled, on the other hand, that the application of the overbreadth doctrine is limited to a facial kind of challenge and, owing to the given rationale of a facial challenge, applicable only to free speech cases.

By its nature, the overbreadth doctrine has to necessarily apply a facial type of invalidation in order to plot areas of protected speech, inevitably almost always under situations not before the court, that are impermissibly swept by the substantially overbroad regulation. Otherwise stated, a statute cannot be properly analyzed for being substantially overbroad if the court confines itself only to facts as applied to the litigants.

The most distinctive feature of the overbreadth technique is that it marks an exception to some of the usual rules of constitutional litigation. Ordinarily, a particular litigant claims that a statute is unconstitutional as applied to him or her; if the litigant prevails, the courts carve away the unconstitutional aspects of the law by invalidating its improper applications on a case to case basis. Moreover, challengers to a law are not permitted to raise the rights of third parties and can only assert their own interests. In overbreadth analysis, those rules give way; challenges are permitted to raise the rights of third parties; and the court invalidates the entire statute "on its face," not merely "as applied for" so that the overbroad law becomes unenforceable until a properly authorized court construes it more narrowly. The factor that motivates courts to depart from the normal adjudicatory rules is the concern with the "chilling;" deterrent effect of the overbroad statute on third parties not courageous enough to

bring suit. The Court assumes that an overbroad law’s "very existence may cause others not before the court to refrain from constitutionally protected speech or expression." An overbreadth ruling is designed to remove that deterrent effect on the speech of those third

parties. 66 (Emphasis in the original omitted; underscoring supplied.)

In restricting the overbreadth doctrine to free speech claims, the Court, in at least two cases, 67 observed that the US Supreme Court has not recognized an overbreadth doctrine outside the

limited context of the First Amendment, 68 and that claims of facial overbreadth have been entertained in cases involving statutes which, by their terms, seek to regulate only spoken

words. 69 In Virginia v. Hicks, 70 it was held that rarely, if ever, will an overbreadth challenge succeed against a law or regulation that is not specifically addressed to speech or speech- related conduct. Attacks on overly broad statutes are justified by the "transcendent value to all

society of constitutionally protected expression." 71

Since a penal statute may only be assailed for being vague as applied to petitioners, a limited vagueness analysis of the definition of "terrorism" in RA 9372 is legally impermissible absent an actual or imminent charge against them

While Estrada did not apply the overbreadth doctrine, it did not preclude the operation of the vagueness test on the Anti-Plunder Law as applied to the therein petitioner, finding, however,

that there was no basis to review the law "on its face and in its entirety." 72 It stressed that " statutes found vague as a matter of due process typically are invalidated only 'as applied' to a

particular defendant." 73

American jurisprudence 74 instructs that "vagueness challenges that do not involve the First Amendment must be examined in light of the specific facts of the case at hand and not with regard to the statute's facial validity."

For more than 125 years, the US Supreme Court has evaluated defendants’ claims that criminal statutes are unconstitutionally vague, developing a doctrine hailed as "among the most

important guarantees of liberty under law." 75

In this jurisdiction, the void-for-vagueness doctrine asserted under the due process clause has

been utilized in examining the constitutionality of criminal statutes. In at least three cases, 76 the Court brought the doctrine into play in analyzing an ordinance penalizing the non-payment of municipal tax on fishponds, the crime of illegal recruitment punishable under Article 132(b) of the Labor Code, and the vagrancy provision under Article 202 (2) of the Revised Penal Code. Notably, the petitioners in these three cases, similar to those in the two Romualdez and Estrada cases, were actually charged with the therein assailed penal statute, unlike in the present case.

There is no merit in the claim that RA 9372 regulates speech so as to permit a facial analysis of its validity

From the definition of the crime of terrorism in the earlier cited Section 3 of RA 9372, the following elements may be culled: (1) the offender commits an act punishable under any of the cited provisions of the Revised Penal Code, or under any of the enumerated special penal laws;

(2) the commission of the predicate crime sows and creates a condition of widespread and extraordinary fear and panic among the populace; and (3) the offender is actuated by the desire to coerce the government to give in to an unlawful demand.

In insisting on a facial challenge on the invocation that the law penalizes speech, petitioners contend that the element of "unlawful demand" in the definition of terrorism 77 must necessarily be transmitted through some form of expression protected by the free speech clause.

The argument does not persuade. What the law seeks to penalize is conduct, not speech.

Before a charge for terrorism may be filed under RA 9372, there must first be a predicate crime actually committed to trigger the operation of the key qualifying phrases in the other elements of the crime, including the coercion of the government to accede to an "unlawful demand." Given the presence of the first element, any attempt at singling out or highlighting the communicative component of the prohibition cannot recategorize the unprotected conduct into a protected speech.

Petitioners’ notion on the transmission of message is entirely inaccurate, as it unduly focuses on just one particle of an element of the crime. Almost every commission of a crime entails some mincing of words on the part of the offender like in declaring to launch overt criminal acts against a victim, in haggling on the amount of ransom or conditions, or in negotiating a

deceitful transaction. An analogy in one U.S. case 78 illustrated that the fact that the prohibition on discrimination in hiring on the basis of race will require an employer to take down a sign reading "White Applicants Only" hardly means that the law should be analyzed as one regulating speech rather than conduct.

Utterances not elemental but inevitably incidental to the doing of the criminal conduct alter neither the intent of the law to punish socially harmful conduct nor the essence of the whole act as conduct and not speech. This holds true a fortiori in the present case where the expression figures only as an inevitable incident of making the element of coercion perceptible.

[I]t is true that the agreements and course of conduct here were as in most instances brought about through speaking or writing. But it has never been deemed an abridgement of freedom of speech or press to make a course of conduct illegal merely because the conduc t was, in part , initiated, evidenced , or carried out by means of language , either spoken, written, or printed . Such an expansive interpretation of the constitutional guaranties of speech and press would make it practically impossible ever to enforce laws against agreements in restraint of trade as

well as many other agreements and conspiracies deemed injurious to society. 79 (italics and underscoring supplied)

Certain kinds of speech have been treated as unprotected conduct, because they merely

evidence a prohibited conduct. 80 Since speech is not involved here, the Court cannot heed the call for a facial analysis.1avvphi1

IN FINE, Estrada and the other cited authorities engaged in a vagueness analysis of the therein subject penal statute as applied to the therein petitioners inasmuch as they were actually

charged with the pertinent crimes challenged on vagueness grounds. The Court in said cases, however, found no basis to review the assailed penal statute on its face and in its entirety.

In Holder, on the other hand, the US Supreme Court allowed the pre-enforcement review of a criminal statute, challenged on vagueness grounds, since the therein plaintiffs faced a "credible threat of prosecution" and "should not be required to await and undergo a criminal prosecution as the sole means of seeking relief."

As earlier reflected, petitioners have established neither an actual charge nor a credible threat of prosecution under RA 9372. Even a limited vagueness analysis of the assailed definition of "terrorism" is thus legally impermissible. The Court reminds litigants that judicial power neither contemplates speculative counseling on a statute’s future effect on hypothetical scenarios nor allows the courts to be used as an extension of a failed legislative lobbying in Congress.

WHEREFORE, the petitions are DISMISSED.

SO ORDERED.

CONCHITA CARPIO MORALES

Associate Justice

WE CONCUR:

RENATO C. CORONA

Chief Justice

ANTONIO T. CARPIO

Associate Justice

ANTONIO EDUARDO B. NACHURA

Associate Justice

TERESITA J. LEONARDO-DE CASTRO

Associate Justice

LUCAS P. BERSAMIN

Associate Justice

MARIANO C. DEL CASTILLO

Associate Justice

JOSE PORTUGAL PEREZ

Associate Justice

PRESBITERO J. VELASCO, JR.

Associate Justice

ARTURO D. BRION

Associate Justice

DIOSDADO M. PERALTA

Associate Justice

ROBERTO A. ABAD

Associate Justice

MARTIN S. VILLARAMA, JR.

Associate Justice

JOSE CATRAL MENDOZA

Associate Justice

MARIA LOURDES P. A. SERENO

Associate Justice

C E R T I F I C A T I O N

Pursuant to Section 13, Article VIII of the Constitution, I hereby certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court.

RENATO C. CORONA

Chief Justice

Footnotes

  • 1 A consolidation of House Bill No. 4839 and Senate Bill No. 2137.

  • 2 REPUBLIC ACT No. 9372, Sec. 62.

  • 3 KMU Chairperson Elmer Labog, NAFLU-KMU National President Joselito V. Ustarez and NAFLU-KMU Secretary General Antonio C. Pascual, and CTUHR Executive Director Daisy Arago.

  • 4 BAYAN Chairperson Dr. Carolina Pagaduan-Araullo, GABRIELA Secretary General Emerenciana de Jesus, KMP Secretary General Danilo Ramos, MCCCL Convenor Amado G. Inciong, COURAGE National President Ferdinand Gaite, KADAMAY Vice Chairperson Gloria G. Arellano, SCW Chairperson Merly Grafe, LFS National Chairperson Vencer Crisostomo, Anakbayan Secretary General Eleanor de Guzman, PAMALAKAYA Chairperson Fernando Hicap, ACT Chairperson Antonio Tinio, Migrante Chairperson Concepcion Bragas-Regalado, HEAD Deputy Secretary General Dr. Geneve Rivera, and Agham Chairperson Dr. Giovanni Tapang. Grafe and Tapang, however, failed to verify the petition.

  • 5 Dr. Edelina P. De La Paz for Karapatan, Evangeline Hernandez for Hustisya, Mary Guy Portajada for Desaparecidos, Donato Continente for SELDA, Bishop Elmer M. Bolocon for EMJP and Fr. Gilbert Sabado for PCPR.

  • 6 IBP is represented by Atty. Feliciano M. Bautista, national president, while CODAL is represented by Atty. Noel Neri, convenor/member.

  • 7 BAYAN-ST is represented by Secretary General Arman Albarillo; Katipunan ng mga Magsasaka sa Timog Katagulagan (KASAMA-TK) by Secretary General Orly Marcellana; Pagkakaisa ng mga Manggagawa sa Timog Katagalugan (PAMANTIK- KMU) by Regional Secretary General Luz Baculo; GABRIELA-Southern Tagalog by Secretary General Helen Asdolo; Organized Labor Association in Line Industries and Agriculture (OLALIA) by Chairperson Romeo Legaspi; Southern Tagalog Region Transport Organization (STARTER) by Regional Chairperson Rolando Mingo; Bayan Muna Partylist-ST by Regional Coordinator Bayani Cambronero; Anakbayan-ST by Regional Chairperson Pedro Santos, Jr.; LFS-ST by Spokesperson Mark Velasco; PAMALAKAYA-ST by Vice Chairperson Peter Gonzales, Bigkis at Lakas ng mga Katutubo sa Timog Katagalugan (BALATIK) by Regional Auditor Aynong Abnay;

Kongreso ng mga Magbubukid para sa Repormang Agraryo (Kompra) represented by member Leng Jucutan; Martir ng Bayan with no representation; Pagkakaisa at Ugnayan ng nmga Magbubukid sa Laguna (PUMALAG) represented by Provincial Secretary General Darwin Liwag; and Los Baños Rural Poor Organization for Progress and Equality represented by Teodoro Reyes.

19

Philippine

Daily

Inquirer,

July

11,

2007,

Page

A-1.

Visit

also

75951/Reds_target_of_terror_law> (last visited August 16, 2010).

  • 20 House Resolution No. 641.

  • 21 In his State of the Nation Address, President Benigno Aquino III said: "x x x x. Tungkol naman po sa CPP-NPA-NDF: handa na ba kayong maglaan ng kongkretong

mungkahi, sa halip na pawang batikos lamang?

Kung kapayapaan din ang hangad ninyo, handa po kami sa malawakang tigil-putukan. Mag-usap tayo.

Mahirap magsimula ang usapan habang mayroon pang amoy ng pulbura sa hangin. Nananawagan ako: huwag po natin hayaang masayang ang napakagandang pagkakataong ito upang magtipon sa ilalim ng iisang adhikain.

Kapayapaan at katahimikan po ang pundasyon ng kaunlaran. Habang nagpapatuloy ang barilan, patuloy din ang pagkakagapos natin sa kahirapan. x x x x." See: <http://www.gov.ph/2010/07/26/state-of-the- nation-address-2010> (last visited August 25, 2010).

  • 22 In Francisco v. House of Representatives, 460 Phil. 830, 899 (2003), the Court followed the determinants cited by Mr, Justice Florentino Feliciano in Kilosbayan v. Guingona for using the transcendental importance doctrine, to wit: (a) the character of the funds or other assets involved in the case; (b) the presence of a clear case of disregard of a constitutional or statutory prohibition by the public respondent agency or instrumentality of the government; and (c) the lack of any other party with a more direct and specific interest in the questions being raised.

  • 23 SEC. 17. Proscription of Terrorist Organization, Association, or Group of Persons. – Any organization, association, or group of persons organized for the purpose of engaging in terrorism, or which, although not organized for that purpose, actually uses acts to terrorize mentioned in this Act or to sow and create a condition of widespread fear and panic among the populace in order to coerce the government to give in to an unlawful demand shall, upon application of the Department of Justice before a competent Regional Trial Court, with due notice and opportunity to be heard given to the organization, association, or group of persons concerned, be declared as a terrorist and outlawed organization, association, or group of persons by the said Regional Trial Court.

  • 25 G.R. Nos. 172070-72, June 1, 2007, 523 SCRA 318.

  • 26 Rollo (G.R. No. 178581), pp. 111-125.

  • 27 Supra note 22 at 896.

  • 28 Gonzales v. Hon. Narvasa, 392 Phil. 518, 525 (2000), citing Flast v. Cohen, 392 US 83, 20 L Ed 2d 947, 88 S Ct 1942.

  • 29 Telecommunications and Broadcast Attorneys of the Philippines, Inc. v. Comelec, G.R. No. 132922, April 21, 1998, 289 SCRA 337.

  • 30 Constitution, Article VIII, Section 1.

  • 31 63 Phil. 139, 158 (1936).

  • 32 Republic Telecommunications Holding, Inc. v. Santiago, G.R. No. 140338, August 7, 2007, 529 SCRA 232, 243.

  • 33 499 Phil. 281, 304-305 (2005).

  • 34 Mariano, Jr. v. Commission on Elections, 312 Phil. 259 (1995).

  • 35 Allied Broadcasting Center v. Republic, G.R. No. 91500, October 18, 1990, 190 SCRA 782.

  • 36 314 Phil. 131 (1995).

  • 37 G.R. No. 89651, November 10, 1989, 179 SCRA 287.

  • 38 De Castro v. Judicial and Bar Council, G.R. No. 191002, March 17, 2010, citing Buckley v. Valeo, 424 U.S. 1, 113-118 (1976) and Regional Rail Reoganization Act Cases, 419 U.S. 102, 138-148 (1974).

  • 39 561 U.S. [unpaginated] (2010). Volume 561 is still pending completion.

  • 40 Id. citing Babbitt v. Farm Workers, supra.

  • 41 § 2339B. Providing material support or resources to designated foreign terrorist organizations. (a) Prohibited Activities.

(1) Unlawful conduct.— Whoever knowingly provides material support or resources to a foreign terrorist organization, or attempts or conspires to do so, shall be fined under this title or imprisoned not more than 15 years, or both, and, if the death of any person results, shall be imprisoned for any term of years or for life. To violate this paragraph, a person must have knowledge that the organization is a designated terrorist organization (as defined in subsection (g) (6)), that the organization has engaged or engages in terrorist activity (as defined in section 212(a)(3)(B) of the Immigration and Nationality Act), or that the organization has engaged or engages in terrorism (as defined in section 140(d)(2) of the Foreign Relations Authorization Act, Fiscal Years 1988 and

1989).

  • 42 Doe v. Bolton, 410 U.S. 179, 188-189 (1973).

  • 43 Automotive Industry Workers Alliance v. Romulo, G.R. No. 157509, January 18, 2005, 449 SCRA 1, 10, citing Allied Broadcasting Center, Inc. v. Republic, G.R. No. 91500, October 18, 1990, 190 SCRA 782.

  • 44 Lawrence H. Tribe, American Constitutional Law Vol. I, p.332 (3rd ed. 2000), citing Steffel v. Thompson, 415 U.S. 452 (1974) and Ellis v. Dyson, 421 U.S. 426 (1975).

  • 45 Vide Garcia v. Commission on Elections, G.R. No. 111511, October 5, 1993, 227 SCRA 100, 117, stating that "all powers are susceptible of abuse. The mere possibility of abuse cannot, however, infirm per se the grant of power[.]"

  • 46 RA 9372 defines the crime of terrorism as follows:

SEC. 3. Terrorism. – Any person who commits an act punishable under any of the following provisions of the Revised Penal Code:

  • a. Article 222 (Piracy in General and Mutiny in the High Seas or in the Philippine Waters);

  • b. Article 134 (Rebellion or Insurrection);

  • c. Article 134-a (Coup d’etat), including acts committed by private persons;

  • d. Article 248 (Murder);

  • e. Article 267 (Kidnapping and Serious Illegal Detention);

  • f. Article 324 (Crimes Involving Destruction); or under

  • 1. Presidential Decree No. 1613 (The Law on Arson);

  • 2. Republic Act No. 6969 (Toxic Substances and Hazardous and Nuclear

Waste Control Act of 1990);

  • 3. Republic Act No. 5207 (Atomic Energy Regulatory and Liability Act

of 1968);

  • 4. Republic Act No. 6235 (Anti-Hijacking Law);

  • 5. Presidential Decree No. 532 (Anti-Piracy and Anti-Highway Robbery

Law of 1974); and,

  • 6. Presidential Decree No. 1866, as amended (Decree Codifying the

Laws on Illegal and Unlawful Possession, Manufacture, Dealing in, Acquisition or Disposition of Firearms, Ammunitions or Explosives)

thereby sowing and creating a condition of widespread and extraordinary fear

and panic among the populace, in order to coerce the government to give in to an unlawful demand shall be guilty of the crime of terrorism and shall suffer the penalty of forty (40) years of imprisonment, without the benefit of parole as provided for under Act No. 4103, otherwise known as the Indeterminate Sentence Law, as amended.

  • 47 479 Phil. 265 (2004).

  • 48 421 Phil. 290 (2001).

  • 49 Republic Act No. 3019, Sec. 5. Prohibition on certain relatives. It shall be unlawful for the spouse or for any relative, by consanguinity or affinity, within the third civil degree, of the President of the Philippines, the Vice-President of the Philippines, the President of the Senate, or the Speaker of the House of Representatives, to intervene, directly or indirectly, in any business, transaction, contract or application with the Government x x x. (Underscoring supplied)

  • 50 Romualdez v. Hon. Sandiganbayan, supra at 281.

  • 51 Id. at 288.

  • 52 G.R. No. 167011, April 30, 2008, 553 SCRA 370.

  • 53 Punishable under Section 45(j) in relation to Section 10(g) or (j) of Republic Act No.

8189.

  • 54 Romualdez v. Commission on Elections, supra at 284.

  • 55 Estrada v. Sandiganbayan, supra at 421-450.

  • 56 Id. at 353-356.

  • 57 People v. Nazario, No. L-44143, August 31, 1988, 165 SCRA 186, 195.

  • 58 Blo Umpar Adiong v. Commission on Elections, G.R. No. 103956, March 31, 1992, 207 SCRA 712, 719-720.

  • 59 Andrew E. Goldsmith, The Void-for-Vagueness Doctrine in the Supreme Court,

Revisited, 30 Am. J. Crim. L. 279 (2003), note 39, citing Michael C. Dorf,

Facial

Challenges to State and Federal Statutes, 46 Stan. L. Rev. 235, 261-262 (1994).

  • 60 Vide David v. Macapagal-Arroyo, G.R. No. 171396, May 3, 2006, 489 SCRA 160, 239; Romualdez v. Commission on Elections, supra at 418, note 35.

  • 61 Estrada v. Sandiganbayan, supra at 429.

  • 62 Constitution, Art. III, Sec. 4.

  • 63 The power to define crimes and prescribe their corresponding penalties is legislative in nature and inherent in the sovereign power of the state to maintain social order as an aspect of police power. The legislature may even forbid and penalize acts formerly considered innocent and lawful provided that no constitutional rights have been abridged. (People v. Siton, G.R. No. 169364, September 18, 2009, 600 SCRA 476,

485).

  • 64 Romualdez v. Commission on Elections, supra at 643.

  • 65 Id. at 645-646.

  • 66 David v. Macapagal-Arroyo, supra at 238.

  • 67 Estrada v. Sandiganbayan, supra; David v. Macapagal-Arroyo, supra.

  • 68 Estrada v. Sandiganbayan, supra at 354.

  • 69 Id.

  • 70 539 U.S. 113, 156 L. Ed. 2d 148 (2003).

  • 71 Gooding v. Wilson, 405 U.S. 518, 31 L. Ed 2d 408 (1972).

  • 72 Estrada v. Sandiganbayan, supra at 355.

  • 73 Id.

  • 74 United States v. Waymer, 55 F.3d 564 (11th Circ. 1995) cert. denied, 517 U.S. 1119, 134 L. Ed. 2d 519 (1996); Chapman v. United States, 500 U.S. 453, 114 L. Ed 2d 524 (1991); United States v. Powell, 423 U.S. 87, 46 L. Ed. 2d 228 (1975); United States v. Mazurie, 419 U.S. 544, 42 L. Ed 2d 706 (1975).

  • 75 Andrew E. Goldsmith, The Void-for-Vagueness Doctrine in the Supreme Court, Revisited, 30 Am. J. Crim. L. 279 (2003).

  • 76 People v. Nazario, No. L-44143, August 31, 1988, 165 SCRA 186; People v. Dela Piedra, G.R. No. 121777, January 24, 2001, 350 SCRA 163; People v. Siton, G.R. No. 169364, September 18, 2009, 600 SCRA 476.

  • 77 Republic Act No. 9372, Sec. 3, supra.

  • 78 Rumsfield v. Forum for Academic and Institutional Rights, Inc., 547 U.S. 47, 164 L.Ed 2d 156 (2006).

79 Giboney v. Empire Storage and Ice Co., 336 U.S.

490, 93

L. Ed. 834, 843-844

(1949); Cf Brown v. Hartlage, 456 U.S. 45,

71

L.

Ed

2d 732, 742 (1982) that

acknowledges: x x x The fact that such an agreement [to engage in illegal conduct] necessarily takes the form of words does not confer upon it, or upon the underlying conduct, the constitutional immunities that the First Amendment extends to speech. Finally, while a solicitation to enter into an agreement arguably crosses the sometimes hazy line distinguishing conduct from pure speech, such a solicitation, even though it may have an impact in the political arena, remains in essence an invitation to engage in an illegal exchange for private profit, and may properly be prohibited.

The Lawphil Project - Arellano Law Foundation

<a href= Giboney v. Empire Storage and Ice Co ., 336 U.S. 490, 93 L. Ed. 834, 843-844 (1949); Cf Brown v. Hartlage , 456 U.S. 45, 71 L. Ed 2d 732, 742 (1982) that acknowledges: x x x The fact that such an agreement [ to engage in illegal conduct] necessarily takes the form of words does not confer upon it, or upon the underlying conduct, the constitutional immunities that the First Amendment extends to speech. Finally, while a solicitation to enter into an agreement arguably crosses the sometimes hazy line distinguishing conduct from pure speech, such a solicitation, even though it may have an impact in the political arena, remains in essence an invitation to engage in an illegal exchange for private profit, and may properly be prohibited. Vide Eugene Volokh, Speech as Conduct: Generally Applicable Laws, Illegal Courses of Conduct, "Situation-Altering Utterances," and the Uncharted Zones , 90 Cornell L. Rev. 1277, 1315 (2005). The Lawphil Project - Arellano Law Foundation CONCURRING OPINION ABAD, J.: I concur with the majority opinion in dismissing the various petitions filed before this Court challenging the validity of Republic Act (R.A.) 9372. I feel a need to emphasize, however, that as the grounds for dismissal are more procedural than substantive, our decision in these consolidated cases does not definitively uphold the validity of the questioned law. The specific questions raised by the petitioners against R.A. 9372 may be raised in the proper forum if and when an actual controversy arises and becomes ripe for adjudication. ROBERTO A. ABAD Associate Justice The Lawphil Project - Arellano Law Foundation BAKER v. CARR, 369 U.S. 186 (1962) 369 U.S. 186 BAKER ET AL. v. CARR ET AL. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE. No. 6. " id="pdf-obj-48-47" src="pdf-obj-48-47.jpg">

CONCURRING OPINION

ABAD, J.:

I concur with the majority opinion in dismissing the various petitions filed before this Court challenging the validity of Republic Act (R.A.) 9372. I feel a need to emphasize, however, that as the grounds for dismissal are more procedural than substantive, our decision in these consolidated cases does not definitively uphold the validity of the questioned law. The specific questions raised by the petitioners against R.A. 9372 may be raised in the proper forum if and when an actual controversy arises and becomes ripe for adjudication.

ROBERTO A. ABAD

Associate Justice

The Lawphil Project - Arellano Law Foundation

<a href= Giboney v. Empire Storage and Ice Co ., 336 U.S. 490, 93 L. Ed. 834, 843-844 (1949); Cf Brown v. Hartlage , 456 U.S. 45, 71 L. Ed 2d 732, 742 (1982) that acknowledges: x x x The fact that such an agreement [ to engage in illegal conduct] necessarily takes the form of words does not confer upon it, or upon the underlying conduct, the constitutional immunities that the First Amendment extends to speech. Finally, while a solicitation to enter into an agreement arguably crosses the sometimes hazy line distinguishing conduct from pure speech, such a solicitation, even though it may have an impact in the political arena, remains in essence an invitation to engage in an illegal exchange for private profit, and may properly be prohibited. Vide Eugene Volokh, Speech as Conduct: Generally Applicable Laws, Illegal Courses of Conduct, "Situation-Altering Utterances," and the Uncharted Zones , 90 Cornell L. Rev. 1277, 1315 (2005). The Lawphil Project - Arellano Law Foundation CONCURRING OPINION ABAD, J.: I concur with the majority opinion in dismissing the various petitions filed before this Court challenging the validity of Republic Act (R.A.) 9372. I feel a need to emphasize, however, that as the grounds for dismissal are more procedural than substantive, our decision in these consolidated cases does not definitively uphold the validity of the questioned law. The specific questions raised by the petitioners against R.A. 9372 may be raised in the proper forum if and when an actual controversy arises and becomes ripe for adjudication. ROBERTO A. ABAD Associate Justice The Lawphil Project - Arellano Law Foundation BAKER v. CARR, 369 U.S. 186 (1962) 369 U.S. 186 BAKER ET AL. v. CARR ET AL. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE. No. 6. " id="pdf-obj-48-63" src="pdf-obj-48-63.jpg">

BAKER v. CARR, 369 U.S. 186 (1962)

369 U.S. 186

BAKER ET AL. v. CARR ET AL. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE. No. 6.

Argued April 19-20, 1961. Set for reargument May 1, 1961. Reargued October 9, 1961. Decided March 26, 1962.

Appellants are persons allegedly qualified to vote for members of the General Assembly of Tennessee representing the counties in which they reside. They brought suit in a Federal District Court in Tennessee under 42 U.S.C. 1983, on behalf of themselves and others similarly situated, to redress the alleged deprivation of their federal constitutional rights by legislation classifying voters with respect to representation in the General Assembly. They alleged that, by means of a 1901 statute of Tennessee arbitrarily and capriciously apportioning the seats in the General Assembly among the State's 95 counties, and a failure to reapportion them subsequently notwithstanding substantial growth and redistribution of the State's population, they suffer a "debasement of their votes" and were thereby denied the equal protection of the laws guaranteed them by the Fourteenth Amendment. They sought, inter alia, a declaratory judgment that the 1901 statute is unconstitutional and an injunction restraining certain state officers from conducting any further elections under it. The District Court dismissed the complaint on the grounds that it lacked jurisdiction of the subject matter and that no claim was stated upon which relief could be granted. Held:

  • 1. The District Court had jurisdiction of the subject matter of the federal constitutional claim

asserted in the complaint. Pp. 198-204.

  • 2. Appellants had standing to maintain this suit. Pp. 204-208.

  • 3. The complaint's allegations of a denial of equal protection presented a justiciable

constitutional cause of action upon which appellants are entitled to a trial and a decision. Pp.

208-237.

179 F. Supp. 824, reversed and cause remanded.

Charles S. Rhyne and Z. T. Osborn, Jr. reargued the cause for appellants. With them on the briefs were Hobart F. Atkins, Robert H. Jennings, Jr., J. W. Anderson, C. R. McClain, Walter Chandler, Harris A. Gilbert, E. K. Meacham and Herzel H. E. Plaine. [369 U.S. 186, 187]

Jack Wilson, Assistant Attorney General of Tennessee, reargued the cause for appellees. With him on the briefs were George F. McCanless, Attorney General, and Milton P. Rice and James M. Glasgow, Assistant Attorneys General.

Solicitor General Cox, by special leave of Court, 365 U.S. 864 , reargued the cause for the United States, as amicus curiae, urging reversal. With him on the briefs were Assistant Attorney General Marshall, Acting Assistant Attorney General Doar, Bruce J. Terris, Harold H. Greene, David Rubin and Howard A. Glickstein.

Briefs of amici curiae, in support of appellants, were filed by J. Howard Edmondson, Governor of Oklahoma, and Norman E. Reynolds, Jr. for the Governor; W. Scott Miller, Jr. and George J. Long for the City of St. Matthews, Kentucky; Roger Arnebergh, Henry P. Kucera, J. Elliott Drinard, Barnett I. Shur, Alexander G. Brown, Nathaniel H. Goldstick and Charles S. Rhyne for the National Institute of Municipal Law Officers; Eugene H. Nickerson and David M. Levitan for John F. English et al.; Upton Sisson, Clare S. Hornsby, Walter L. Nixon, Jr. and John Sekul for Marvin Fortner et al.; and Theodore Sachs for August Scholle.

MR. JUSTICE BRENNAN delivered the opinion of the Court.

This civil action was brought under 42 U.S.C. 1983 and 1988 to redress the alleged deprivation of federal constitutional rights. The complaint, alleging that by means of a 1901 statute of Tennessee apportioning the members of the General Assembly among the State's 95 counties, 1 "these plaintiffs and others similarly situated, [369 U.S. 186, 188] are denied the equal protection of the laws accorded

them by the Fourteenth Amendment to the Constitution of the United States by virtue of the debasement of their votes," was dismissed by a three-judge court convened under 28 U.S.C. 2281 in the Middle District of Tennessee. 2 The court held that it lacked jurisdiction of the subject matter and also that no claim was stated upon which relief could be granted. 179 F. Supp. 824. We noted probable jurisdiction of the appeal. 364 U.S. 898 . 3 We hold that the dismissal was error, and remand the cause to the District Court for trial and further proceedings consistent with this opinion.

The General Assembly of Tennessee consists of the Senate with 33 members and the House of Representatives with 99 members. The Tennessee Constitution provides in Art. II as follows:

"Sec. 3. Legislative authority - Term of office. - The Legislative authority of this State shall be vested in a General Assembly, which shall consist of a Senate and House of Representatives, both dependent on the people; who shall hold their offices for two years from the day of the general election.

"Sec. 4. Census. - An enumeration of the qualified voters, and an apportionment of the Representatives in the General Assembly, shall be made in the year one thousand eight hundred and seventy-one, and within every subsequent term of ten years.

"Sec. 5. Apportionment of representatives. - The number of Representatives shall, at the several [369 U.S. 186, 189] periods of making the enumeration, be apportioned among the several counties or districts, according to the number of qualified voters in each; and shall not exceed seventy-five, until the population of the State shall be one million and a half, and shall never exceed ninety-nine; Provided, that any county having two-thirds of the ratio shall be entitled to one member.

"Sec. 6. Apportionment of senators. - The number of Senators shall, at the several periods of making the enumeration, be apportioned among the several counties or districts according to the number of qualified electors in each, and shall not exceed one-third the number of representatives. In apportioning the Senators among the different counties, the fraction that may be lost by any county or counties, in the apportionment of members to the House of Representatives, shall be made up to such county or counties in the Senate, as near as may be practicable. When a district is composed of two or more counties, they shall be adjoining; and no county shall be divided in forming a district."

Thus, Tennessee's standard for allocating legislative representation among her counties is the total number of qualified voters resident in the respective counties, subject only to minor qualifications. 4 Decennial reapportionment [369 U.S. 186, 190] in compliance with the constitutional scheme was effected by the General Assembly each decade from 1871 to 1901. The 1871 apportionment 5 was preceded by an 1870 statute requiring an enumeration. 6 The 1881 apportionment involved three statutes, the first authorizing an enumeration, the second enlarging the Senate from 25 to [369 U.S. 186, 191] 33 members and the House from 75 to 99 members, and the third apportioning the membership of both Houses. 7 In 1891 there were both an enumeration and an apportionment. 8 In 1901 the General Assembly abandoned separate enumeration in favor of reliance upon the Federal Census and passed the

Apportionment Act here in controversy. 9 In the more than 60 years since that action, all proposals in

both Houses of the General Assembly for reapportionment have failed to pass. 10

[369 U.S. 186, 192]

Between 1901 and 1961, Tennessee has experienced substantial growth and redistribution of her population. In 1901 the population was 2,020,616, of whom 487,380 were eligible to vote. 11 The 1960 Federal Census reports the State's population at 3,567,089, of whom 2,092,891 are eligible to vote. 12 The relative standings of the counties in terms of qualified voters have changed significantly. It is primarily the continued application of the 1901 Apportionment Act to this shifted and enlarged voting population which gives rise to the present controversy.

Indeed, the complaint alleges that the 1901 statute, even as of the time of its passage, "made no

apportionment of Representatives and Senators in accordance with the constitutional formula

. .

., but

instead arbitrarily and capriciously apportioned representatives in the Senate and House without

reference

. . .

to any logical or reasonable formula whatever." 13 It is further alleged [369 U.S. 186, 193]

that "because of the population changes since 1900, and the failure of the Legislature to reapportion itself since 1901," the 1901 statute became "unconstitutional and obsolete." Appellants also argue that, because of the composition of the legislature effected by the 1901 Apportionment Act, redress in the form of a state constitutional amendment to change the entire mechanism for reapportioning, or any other change short of that, is difficult or impossible. 14 The complaint concludes that "these plaintiffs [369 U.S. 186, 194] and others similarly situated, are denied the equal protection of the laws accorded them by the Fourteenth Amendment to the Constitution of the United States by virtue of the debasement of their votes." 15 They seek a [369 U.S. 186, 195] declaration that the 1901 statute is unconstitutional and an injunction restraining the appellees from acting to conduct any further elections under it. They also pray that unless and until the General Assembly enacts a valid reapportionment, the District Court should either decree a reapportionment by mathematical application of the Tennessee constitutional formulae to the most recent Federal Census figures, or direct the appellees to conduct legislative elections, primary and general, at large. They also pray for such other and further relief as may be appropriate.

I.

THE DISTRICT COURT'S OPINION AND ORDER OF DISMISSAL.

Because we deal with this case on appeal from an order of dismissal granted on appellees' motions, precise identification [369 U.S. 186, 196] of the issues presently confronting us demands clear exposition of the grounds upon which the District Court rested in dismissing the case. The dismissal order recited that the court sustained the appellees' grounds "(1) that the Court lacks jurisdiction of the subject

matter, and (2) that the complaint fails to state a claim upon which relief can be granted

. . .

."

In the setting of a case such as this, the recited grounds embrace two possible reasons for dismissal:

First: That the facts and injury alleged, the legal bases invoked as creating the rights and duties relied upon, and the relief sought, fail to come within that language of Article III of the Constitution and of the jurisdictional statutes which define those matters concerning which United States District Courts are empowered to act;

Second: That, although the matter is cognizable and facts are alleged which establish infringement of appellants' rights as a result of state legislative action departing from a federal constitutional standard, the court will not proceed because the matter is considered unsuited to judicial inquiry or adjustment.

We treat the first ground of dismissal as "lack of jurisdiction of the subject matter." The second we consider to result in a failure to state a justiciable cause of action.

The District Court's dismissal order recited that it was issued in conformity with the court's per curiam opinion. The opinion reveals that the court rested its dismissal upon lack of subject-matter jurisdiction and lack of a justiciable cause of action without attempting to distinguish between these grounds. After noting that the plaintiffs challenged the existing legislative apportionment in Tennessee under the Due Process and Equal Protection Clauses, and summarizing the supporting allegations and the relief requested, the court stated that

"The action is presently before the Court upon the defendants' motion to dismiss predicated upon three [369 U.S. 186, 197] grounds: first, that the Court lacks jurisdiction of the subject matter; second, that the complaints fail to state a claim upon which relief can be granted; and

third, that indispensable party defendants are not before the Court." 179 F. Supp., at 826.

The court proceeded to explain its action as turning on the case's presenting a "question of the distribution of political strength for legislative purposes." For,

"From a review of [numerous Supreme Court]

decisions there can be no doubt that the

. . . federal rule, as enunciated and applied by the Supreme Court, is that the federal courts, whether

from a lack of jurisdiction or from the inappropriateness of the subject matter for judicial consideration, will not intervene in cases of this type to compel legislative reapportionment." 179 F. Supp., at 826.

The court went on to express doubts as to the feasibility of the various possible remedies sought by the plaintiffs. 179 F. Supp., at 827-828. Then it made clear that its dismissal reflected a view not of doubt that violation of constitutional rights was alleged, but of a court's impotence to correct that violation:

"With the plaintiffs' argument that the legislature of Tennessee is guilty of a clear violation of the state constitution and of the rights of the plaintiffs the Court entirely agrees. It also agrees that the evil is a serious one which should be corrected without further delay. But even so the remedy in this situation clearly does not lie with the courts. It has long been recognized and is accepted doctrine that there are indeed some rights guaranteed by the Constitution for the violation of which the courts cannot give redress." 179 F. Supp., at 828.

In light of the District Court's treatment of the case, we hold today only (a) that the court possessed jurisdiction of the subject matter; (b) that a justiciable cause of [369 U.S. 186, 198] action is stated upon which appellants would be entitled to appropriate relief; and (c) because appellees raise the issue before this Court, that the appellants have standing to challenge the Tennessee apportionment statutes. 16 Beyond noting that we have no cause at this stage to doubt the District Court will be able to fashion relief if violations of constitutional rights are found, it is improper now to consider what remedy would be most appropriate if appellants prevail at the trial.

II.

JURISDICTION OF THE SUBJECT MATTER.

The District Court was uncertain whether our cases withholding federal judicial relief rested upon a lack of federal jurisdiction or upon the inappropriateness of the subject matter for judicial consideration - what we have designated "nonjusticiability." The distinction between the two grounds is significant. In the instance of nonjusticiability, consideration of the cause is not wholly and immediately foreclosed; rather, the Court's inquiry necessarily proceeds to the point of deciding whether the duty asserted can be judicially identified and its breach judicially determined, and whether protection for the right asserted can be judicially molded. In the instance of lack of jurisdiction the cause either does not "arise under" the Federal Constitution, laws or treaties (or fall within one of the other enumerated categories of Art. III, 2), or is not a "case or controversy" within the meaning of that section; or the cause is not one described by any jurisdictional statute. Our conclusion, see pp. 208-237. infra, that this cause presents no nonjusticiable "political question" settles the only possible doubt that it is a case or controversy. Under the present heading of "Jurisdiction [369 U.S. 186, 199] of the Subject Matter" we hold only that the matter set forth in the complaint does arise under the Constitution and is within 28 U.S.C. 1343.

Article III, 2, of the Federal Constitution provides that "The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or

which shall be made, under their Authority

." It is clear that the cause of action is one which "arises

. . . under" the Federal Constitution. The complaint alleges that the 1901 statute effects an apportionment

that deprives the appellants of the equal protection of the laws in violation of the Fourteenth Amendment. Dismissal of the complaint upon the ground of lack of jurisdiction of the subject matter would, therefore, be justified only if that claim were "so attenuated and unsubstantial as to be absolutely devoid of merit," Newburyport Water Co. v. Newburyport, 193 U.S. 561, 579 , or "frivolous," Bell v. Hood, 327 U.S. 678, 683 . 17 That the claim is unsubstantial must be "very plain." Hart v. Keith Vaudeville Exchange, 262 U.S. 271, 274 . Since the District Court obviously and correctly did not deem the asserted federal constitutional claim unsubstantial and frivolous, it should not have dismissed the complaint for want of jurisdiction of the subject matter. And of course no further consideration of the merits of the claim is relevant to a determination of the court's jurisdiction of the

subject matter. We said in an earlier voting case from Tennessee: "It is obvious

that the court, in

. . . dismissing for want of jurisdiction, was controlled by what it deemed to be the want of merit in the averments which were made in the complaint as to the violation of the Federal right. But as the very nature of the controversy was Federal, and, therefore, [369 U.S. 186, 200] jurisdiction existed, whilst the opinion of the court as to the want of merit in the cause of action might have furnished ground for dismissing for that reason, it afforded no sufficient ground for deciding that the action was not one arising under the Constitution and laws of the United States." Swafford v. Templeton, 185 U.S. 487, 493 . "For it is well settled that the failure to state a proper cause of action calls for a judgment on the merits and not for a dismissal for want of jurisdiction." Bell v. Hood, 327 U.S. 678, 682 . See also Binderup v. Pathe Exchange, 263 U.S. 291, 305 -308.

Since the complaint plainly sets forth a case arising under the Constitution, the subject matter is within the federal judicial power defined in Art. III, 2, and so within the power of Congress to assign to the jurisdiction of the District Courts. Congress has exercised that power in 28 U.S.C. 1343 (3):

"The district courts shall have original jurisdiction of any civil action authorized by law 18 to be

commenced by any person

. . .

[t]o redress the deprivation, under color of any State law, statute,

ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the

Constitution of the United States

. . .

." 19

[369 U.S. 186, 201]

An unbroken line of our precedents sustains the federal courts' jurisdiction of the subject matter of federal constitutional claims of this nature. The first cases involved the redistricting of States for the purpose of electing Representatives to the Federal Congress. When the Ohio Supreme Court sustained

Ohio legislation against an attack for repugnancy to Art. I, 4, of the Federal Constitution, we affirmed

on the merits and expressly refused to dismiss for want of jurisdiction "In view

matter of the controversy and the Federal characteristics which inhere in it

of the subject- ." Ohio ex rel. Davis v.

. . .

. . . Hildebrant, 241 U.S. 565, 570 . When the Minnesota Supreme Court affirmed the dismissal of a suit to enjoin the Secretary of State of Minnesota from acting under Minnesota redistricting legislation, we reviewed the constitutional merits of the legislation and reversed the State Supreme Court. Smiley v. Holm, 285 U.S. 355 . And see companion cases from the New York Court of Appeals and the Missouri Supreme Court, Koenig v. Flynn, 285 U.S. 375 ; Carroll v. Becker, 285 U.S. 380 . When a three-judge District Court, exercising jurisdiction under the predecessor of 28 U.S.C. 1343 (3), permanently enjoined officers of the State of Mississippi from conducting an election of Representatives under a Mississippi redistricting act, we reviewed the federal questions on the merits and reversed the District Court. Wood v. Broom, 287 U.S. 1 , reversing 1 F. Supp. 134. A similar decree of a District Court, exercising jurisdiction under the same statute, concerning a Kentucky redistricting act, was [369 U.S. 186, 202] reviewed and the decree reversed. Mahan v. Hume, 287 U.S. 575 , reversing 1 F. Supp. 142. 20

The appellees refer to Colegrove v. Green, 328 U.S. 549 , as authority that the District Court lacked jurisdiction of the subject matter. Appellees misconceive the holding of that case. The holding was precisely contrary to their reading of it. Seven members of the Court participated in the decision. Unlike many other cases in this field which have assumed without discussion that there was

jurisdiction, all three opinions filed in Colegrove discussed the question. Two of the opinions expressing the views of four of the Justices, a majority, flatly held that there was jurisdiction of the subject matter. MR. JUSTICE BLACK joined by MR. JUSTICE DOUGLAS and Mr. Justice Murphy

stated: "It is my judgment that the District Court had jurisdiction

.," citing the predecessor of 28

. . U.S.C. 1343 (3), and Bell v. Hood, supra. 328 U.S., at 568 . Mr. Justice Rutledge, writing separately, expressed agreement with this conclusion. 328 U.S., at 564 , 565, n. 2. Indeed, it is even questionable that the opinion of MR. JUSTICE FRANKFURTER, joined by Justices Reed and Burton, doubted jurisdiction of the subject matter. Such doubt would have been inconsistent with the professed willingness to turn the decision on either the majority or concurring views in Wood v. Broom, supra. 328 U.S., at 551 .

Several subsequent cases similar to Colegrove have been decided by the Court in summary per curiam statements. None was dismissed for want of jurisdiction of the subject matter. Cook v. Fortson, 329 U.S. 675 ; Turman v. [369 U.S. 186, 203] Duckworth, ibid.; Colegrove v. Barrett, 330 U.S. 804 ; 21 Tedesco v. Board of Supervisors, 339 U.S. 940 ; Remmey v. Smith, 342 U.S. 916 ; Cox v. Peters, 342 U.S. 936 ; Anderson v. Jordan, 343 U.S. 912 ; Kidd v. McCanless, 352 U.S. 920 ; Radford v. Gary, 352 U.S. 991 ; Hartsfield v. Sloan, 357 U.S. 916 ; Matthews v. Handley, 361 U.S. 127 . 22

Two cases decided with opinions after Colegrove likewise plainly imply that the subject matter of this suit is within District Court jurisdiction. In MacDougall v. Green, 335 U.S. 281 , the District Court dismissed for want of jurisdiction, which had been invoked under 28 U.S.C. 1343 (3), a suit to enjoin enforcement of the requirement that nominees for state-wide elections be supported by a petition signed by a minimum number of persons from at least 50 of the State's 102 counties. This Court's disagreement with that action is clear since the Court affirmed the judgment after a review of the merits and concluded that the particular claim there was without merit. In South v. Peters, 339 U.S. 276 , we affirmed the dismissal of an attack on the Georgia "county unit" system but founded our action on a ground that plainly would not have been reached if the lower court lacked jurisdiction of the subject matter, which allegedly existed under 28 U.S.C. 1343 (3). The express words of our holding were that "Federal courts consistently refuse to exercise their equity powers in cases posing [369 U.S. 186, 204] political issues arising from a state's geographical distribution of electoral strength among its political subdivisions." 339 U.S., at 277 .

We hold that the District Court has jurisdiction of the subject matter of the federal constitutional claim asserted in the complaint.

III.

STANDING.

A federal court cannot "pronounce any statute, either of a State or of the United States, void, because irreconcilable with the Constitution, except as it is called upon to adjudge the legal rights of litigants in actual controversies." Liverpool Steamship Co. v. Commissioners of Emigration, 113 U.S. 33, 39 . Have the appellants alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions? This is the gist of the question of standing. It is, of course, a question of federal law.

The complaint was filed by residents of Davidson, Hamilton, Knox, Montgomery, and Shelby Counties. Each is a person allegedly qualified to vote for members of the General Assembly representing his county. 23 These appellants sued "on their own behalf and on behalf of all qualified voters of their respective counties, and further, on behalf of all voters of the State of Tennessee who

[369 U.S. 186, 205] are similarly situated

." 24 The appellees are the Tennessee Secretary of State,

. . . Attorney General, Coordinator of Elections, and members of the State Board of Elections; the members

of the State Board are sued in their own right and also as representatives of the County Election

Commissioners whom they appoint. 25

[369 U.S. 186, 206]

We hold that the appellants do have standing to maintain this suit. Our decisions plainly support this conclusion. Many of the cases have assumed rather than articulated the premise in deciding the merits of similar claims. 26 And Colegrove v. Green, supra, squarely held that voters who allege facts showing disadvantage to themselves as individuals have standing to sue. 27 A number [369 U.S. 186, 207] of cases decided after Colegrove recognized the standing of the voters there involved to bring those actions. 28

These appellants seek relief in order to protect or vindicate an interest of their own, and of those similarly situated. Their constitutional claim is, in substance, that the 1901 statute constitutes arbitrary and capricious state action, offensive to the Fourteenth Amendment in its irrational disregard of the standard of apportionment prescribed by the State's Constitution or of any standard, effecting a gross disproportion of representation to voting population. The injury which appellants assert is that this classification disfavors the voters in the counties in which they reside, placing them in a position of constitutionally unjustifiable inequality vis-a-vis voters [369 U.S. 186, 208] in irrationally favored counties. A citizen's right to a vote free of arbitrary impairment by state action has been judicially recognized as a right secured by the Constitution, when such impairment resulted from dilution by a false tally, cf. United States v. Classic, 313 U.S. 299 ; or by a refusal to count votes from arbitrarily selected precincts, cf. United States v. Mosley, 238 U.S. 383 , or by a stuffing of the ballot box, cf. Ex parte Siebold, 100 U.S. 371 ; United States v. Saylor, 322 U.S. 385 .

It would not be necessary to decide whether appellants' allegations of impairment of their votes by the 1901 apportionment will, ultimately, entitle them to any relief, in order to hold that they have standing to seek it. If such impairment does produce a legally cognizable injury, they are among those who have sustained it. They are asserting "a plain, direct and adequate interest in maintaining the effectiveness of

their votes," Coleman v. Miller, 307 U.S., at 438 , not merely a claim of "the right, possessed by every

citizen, to require that the Government be administered according to law

." Fairchild v. Hughes, 258

. . . U.S. 126, 129 ; compare Leser v. Garnett, 258 U.S. 130 . They are entitled to a hearing and to the

District Court's decision on their claims. "The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury." Marbury v. Madison, 1 Cranch 137, 163.

JUSTICIABILITY.

IV.

In holding that the subject matter of this suit was not justiciable, the District Court relied on Colegrove v. Green, supra, and subsequent per curiam cases. 29 The [369 U.S. 186, 209] court stated: "From a

review of these decisions there can be no doubt that the federal rule

is that the federal courts

. will not intervene in cases of this type to compel legislative reapportionment." 179 F. Supp., at 826. We

. . .

. .

understand the District Court to have read the cited cases as compelling the conclusion that since the appellants sought to have a legislative apportionment held unconstitutional, their suit presented a "political question" and was therefore nonjusticiable. We hold that this challenge to an apportionment presents no nonjusticiable "political question." The cited cases do not hold the contrary.

Of course the mere fact that the suit seeks protection of a political right does not mean it presents a political question. Such an objection "is little more than a play upon words." Nixon v. Herndon, 273 U.S. 536, 540 . Rather, it is argued that apportionment cases, whatever the actual wording of the

complaint, can involve no federal constitutional right except one resting on the guaranty of a republican form of government, 30 and that complaints based on that clause have been held to present political questions which are nonjusticiable.

We hold that the claim pleaded here neither rests upon nor implicates the Guaranty Clause and that its justiciability is therefore not foreclosed by our decisions of cases involving that clause. The District Court misinterpreted Colegrove v. Green and other decisions of this Court on which it relied. Appellants' claim that they are being denied equal protection is justiciable, and if [369 U.S. 186, 210] "discrimination is sufficiently shown, the right to relief under the equal protection clause is not diminished by the fact that the discrimination relates to political rights." Snowden v. Hughes, 321 U.S. 1, 11 . To show why we reject the argument based on the Guaranty Clause, we must examine the authorities under it. But because there appears to be some uncertainty as to why those cases did present political questions, and specifically as to whether this apportionment case is like those cases, we deem it necessary first to consider the contours of the "political question" doctrine.

Our discussion, even at the price of extending this opinion, requires review of a number of political question cases, in order to expose the attributes of the doctrine - attributes which, in various settings, diverge, combine, appear, and disappear in seeming disorderliness. Since that review is undertaken solely to demonstrate that neither singly nor collectively do these cases support a conclusion that this apportionment case is nonjusticiable, we of course do not explore their implications in other contexts. That review reveals that in the Guaranty Clause cases and in the other "political question" cases, it is the relationship between the judiciary and the coordinate branches of the Federal Government, and not the federal judiciary's relationship to the States, which gives rise to the "political question."

We have said that "In determining whether a question falls within [the political question] category, the approriateness under our system of government of attributing finality to the action of the political departments and also the lack of satisfactory criteria for a judicial determination are dominant considerations." Coleman v. Miller, 307 U.S. 433, 454 -455. The nonjusticiability of a political question is primarily a function of the separation of powers. Much confusion results from the capacity of the "political question" label to obscure the need for [369 U.S. 186, 211] case-by-case inquiry. Deciding whether a matter has in any measure been committed by the Constitution to another branch of government, or whether the action of that branch exceeds whatever authority has been committed, is itself a delicate exercise in constitutional interpretation, and is a responsibility of this Court as ultimate interpreter of the Constitution. To demonstrate this requires no less than to analyze representative cases and to infer from them the analytical threads that make up the political question doctrine. We shall then show that none of those threads catches this case.

Foreign relations: There are sweeping statements to the effect that all questions touching foreign relations are political questions. 31 Not only does resolution of such issues frequently turn on standards that defy judicial application, or involve the exercise of a discretion demonstrably committed to the executive or legislature; 32 but many such questions uniquely demand single-voiced statement of the Government's views. 33 Yet it is error to suppose that every case or controversy which touches foreign relations lies beyond judicial cognizance. Our cases in this field seem invariably to show a

discriminating analysis of the particular question posed, in terms of the history of its management by the political branches, of its susceptibility to judicial handling in the light of its nature and posture in the specific case, and of the possible consequences [369 U.S. 186, 212] of judicial action. For example, though a court will not ordinarily inquire whether a treaty has been terminated, since on that question

"governmental action

. . .

must be regarded as of controlling importance," if there has been no

conclusive "governmental action" then a court can construe a treaty and may find it provides the answer. Compare Terlinden v. Ames, 184 U.S. 270, 285 , with Society for the Propagation of the Gospel in Foreign Parts v. New Haven, 8 Wheat. 464, 492-495. 34 Though a court will not undertake to

construe a treaty in a manner inconsistent with a subsequent federal statute, no similar hesitancy obtains if the asserted clash is with state law. Compare Whitney v. Robertson; 124 U.S. 190 , with Kolovrat v. Oregon, 366 U.S. 187 .

While recognition of foreign governments so strongly defies judicial treatment that without executive recognition a foreign state has been called "a republic of whose existence we know nothing," 35 and the judiciary ordinarily follows the executive as to which nation has sovereignty over disputed territory, 36 once sovereignty over an area is politically determined and declared, courts may examine the resulting status and decide independently whether a statute applies to that area. 37 Similarly, recognition of belligerency abroad is an executive responsibility, but if the executive proclamations fall short of an explicit answer, a court may construe them seeking, for example, to determine whether the situation is such that statutes designed to assure American neutrality have [369 U.S. 186, 213] become operative. The Three Friends, 166 U.S. 1, 63 , 66. Still again, though it is the executive that determines a person's status as representative of a foreign government, Ex parte Hitz, 111 U.S. 766 , the executive's statements will be construed where necessary to determine the court's jurisdiction, In re Baiz, 135 U.S. 403 . Similar judicial action in the absence of a recognizedly authoritative executive declaration occurs in cases involving the immunity from seizure of vessels owned by friendly foreign governments. Compare Ex parte Peru, 318 U.S. 578 , with Mexico v. Hoffman, 324 U.S. 30, 34 -35.

Dates of duration of hostilities: Though it has been stated broadly that "the power which declared the necessity is the power to declare its cessation, and what the cessation requires," Commercial Trust Co. v. Miller, 262 U.S. 51, 57 , here too analysis reveals isolable reasons for the presence of political questions, underlying this Court's refusal to review the political departments' determination of when or whether a war has ended. Dominant is the need for finality in the political determination, for emergency's nature demands "A prompt and unhesitating obedience," Martin v. Mott, 12 Wheat. 19, 30 (calling up of militia). Moreover, "the cessation of hostilities does not necessarily end the war power. It was stated in Hamilton v. Kentucky Distilleries & W. Co., 251 U.S. 146, 161 , that the war power includes the power `to remedy the evils which have arisen from its rise and progress' and continues during that emergency. Stewart v. Kahn, 11 Wall. 493, 507." Fleming v. Mohawk Wrecking Co., 331 U.S. 111, 116 . But deference rests on reason, not habit. 38 The question in a particular case may not seriously implicate considerations of finality - e. g., a public program of importance [369 U.S. 186, 214] (rent control) yet not central to the emergency effort. 39 Further, clearly definable criteria for decision may be available. In such case the political question barrier falls away: "[A] Court is not at liberty to

shut its eyes to an obvious mistake, when the validity of the law depends upon the truth of what is

declared. . . .

[It can] inquire whether the exigency still existed upon which the continued operation of

the law depended." Chastleton Corp. v. Sinclair, 264 U.S. 543, 547 -548. 40 Compare Woods v. Miller Co., 333 U.S. 138 . On the other hand, even in private litigation which directly implicates no feature of separation of powers, lack of judicially discoverable standards and the drive for even-handed application may impel reference to the political departments' determination of dates of hostilities' beginning and ending. The Protector, 12 Wall. 700.

Validity of enactments: In Coleman v. Miller, supra, this Court held that the questions of how long a proposed amendment to the Federal Constitution remained open to ratification, and what effect a prior rejection had on a subsequent ratification, were committed to congressional resolution and involved criteria of decision that necessarily escaped the judicial grasp. 41 Similar considerations apply to the enacting process: "The respect due to coequal and independent departments," and the need for finality and certainty about the status of a statute contribute to judicial reluctance to inquire whether, as passed, it complied with all requisite formalities. Field v. Clark, 143 U.S. 649, 672 , 676-677; see Leser v. Garnett, 258 U.S. 130, 137 . But it is not true that courts will never delve [369 U.S. 186, 215] into a legislature's records upon such a quest: If the enrolled statute lacks an effective date, a court will not

hesitate to seek it in the legislative journals in order to preserve the enactment. Gardner v. The Collector, 6 Wall. 499. The political question doctrine, a tool for maintenance of governmental order, will not be so applied as to promote only disorder.

The status of Indian tribes: This Court's deference to the political departments in determining whether Indians are recognized as a tribe, while it reflects familiar attributes of political questions, 42 United

States v. Holliday, 3 Wall. 407, 419, also has a unique element in that "the relation of the Indians to the

United States is marked by peculiar and cardinal distinctions which exist no where

[The

Indians are] domestic dependent nations

in a state of pupilage. Their relation to the United States

resembles that of a ward to his guardian." The Cherokee Nation v. Georgia, 5 Pet. 1, 16, 17. 43 Yet,

here too, there is no blanket rule. While [369 U.S. 186, 216] "`It is for [Congress]

., and not for the

courts, to determine when the true interests of the Indian require his release from [the] condition of

tutelage'

. .

., it is not meant by this that Congress may bring a community or body of people within the

range of this power by arbitrarily calling them an Indian tribe

." United States v. Sandoval, 231 U.S.

. . . 28, 46 . Able to discern what is "distinctly Indian," ibid., the courts will strike down [369 U.S. 186, 217]

any heedless extension of that label. They will not stand impotent before an obvious instance of a manifestly unauthorized exercise of power.

It is apparent that several formulations which vary slightly according to the settings in which the questions arise may describe a political question, although each has one or more elements which identify it as essentially a function of the separation of powers. Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.

Unless one of these formulations is inextricable from the case at bar, there should be no dismissal for nonjusticiability on the ground of a political question's presence. The doctrine of which we treat is one of "political questions," not one of "political cases." The courts cannot reject as "no law suit" a bona fide controversy as to whether some action denominated "political" exceeds constitutional authority. The cases we have reviewed show the necessity for discriminating inquiry into the precise facts and posture of the particular case, and the impossibility of resolution by any semantic cataloguing.

But it is argued that this case shares the characteristics of decisions that constitute a category not yet considered, cases concerning the Constitution's guaranty, in Art. IV, [369 U.S. 186, 218] 4, of a republican form of government. A conclusion as to whether the case at bar does present a political question cannot be confidently reached until we have considered those cases with special care. We shall discover that Guaranty Clause claims involve those elements which define a "political question," and for that reason and no other, they are nonjusticiable. In particular, we shall discover that the nonjusticiability of such claims has nothing to do with their touching upon matters of state governmental organization.

Republican form of government: Luther v. Borden, 7 How. 1, though in form simply an action for damages for trespass was, as Daniel Webster said in opening the argument for the defense, "an unusual case." 44 The defendants, admitting an otherwise tortious breaking and entering, sought to justify their action on the ground that they were agents of the established lawful government of Rhode Island, which State was then under martial law to defend itself from active insurrection; that the plaintiff was engaged in that insurrection; and that they entered under orders to arrest the plaintiff. The case arose "out of the unfortunate political differences which agitated the people of Rhode Island in 1841 and 1842," 7 How., at 34, and which had resulted in a situation wherein two groups laid competing claims

to recognition as the lawful government. 45 The plaintiff's right to [369 U.S. 186, 219] recover depended upon which of the two groups was entitled to such recognition; but the lower court's refusal to receive evidence or hear argument on that issue, its charge to the jury that the earlier established or "charter" government was lawful, and the verdict for the defendants, were affirmed upon appeal to this Court.

Chief Justice Taney's opinion for the Court reasoned as follows: (1) If a court were to hold the defendants' acts unjustified because the charter government had no legal existence during the period in question, it would follow that all of that government's actions - laws enacted, taxes collected, salaries paid, accounts settled, sentences passed - were of no effect; and that "the officers who carried their decisions into operation [were] answerable as trespassers, if not in some cases as criminals." 46 There was, of course, no room for application of any doctrine of de facto status to uphold prior acts of an officer not authorized de jure, for such would have defeated the plaintiff's very action. A decision for the plaintiff would inevitably have produced some significant measure of chaos, a consequence to be avoided if it could be done without abnegation of the judicial duty to uphold the Constitution.

(2) No state court had recognized as a judicial responsibility settlement of the issue of the locus of state governmental authority. Indeed, the courts of Rhode Island had in several cases held that "it rested with the political power to decide whether the charter government had been displaced or not," and that that department had acknowledged no change. [369 U.S. 186, 220]

(3) Since "[t]he question relates, altogether, to the constitution and laws of [the]

State," the courts of

. . . the United States had to follow the state courts' decisions unless there was a federal constitutional

ground for overturning them. 47

(4) No provision of the Constitution could be or had been invoked for this purpose except Art. IV, 4, the Guaranty Clause. Having already noted the absence of standards whereby the choice between governments could be made by a court acting independently, Chief Justice Taney now found further textual and practical reasons for concluding that, if any department of the United States was empowered by the Guaranty Clause to resolve the issue, it was not the judiciary:

"Under this article of the Constitution it rests with Congress to decide what government is the established one in a State. For as the United States guarantee to each State a republican government, Congress must necessarily decide what government is established in the State before it can determine whether it is republican or not. And when the senators and representatives of a State are admitted into the councils of the Union, the authority of the government under which they are appointed, as well as its republican character, is recognized

by the proper constitutional authority. And its decision is binding on every other department of the government, and could not be questioned in a judicial tribunal. It is true that the contest in

this case did not last long enough to bring the matter to this issue; and

. . .

Congress was not

called upon to decide the controversy. Yet the right to decide is placed there, and not in the

courts. [369 U.S. 186, 221]

"So, too, as relates to the clause in the above-mentioned article of the Constitution, providing

for cases of domestic violence. It rested with Congress, too, to determine upon the means proper

to be adopted to fulfill this

guarantee. . . .

[B]y the act of February 28, 1795, [Congress]

provided, that, `in case of an insurrection in any State against the government thereof, it shall be lawful for the President of the United States, on application of the legislature of such State or of the executive (when the legislature cannot be convened), to call forth such number of the militia of any other State or States, as may be applied for, as he may judge sufficient to suppress such insurrection.'

"By this act, the power of deciding whether the exigency had arisen upon which the government

of the United States is bound to interfere, is given to the

President. . .

.

"After the President has acted and called out the militia, is a Circuit Court of the United States

authorized to inquire whether his decision was right?

. . .

If the judicial power extends so far, the

guarantee contained in the Constitution of the United States is a guarantee of anarchy, and not

of

order. . .

.

"It is true that in this case the militia were not called out by the President. But upon the application of the governor under the charter government, the President recognized him as the executive power of the State, and took measures to call out the militia to support his authority if

it should be found necessary for the general government to interfere

. . . .

[C]ertainly no court of

the United States, with a knowledge of this decision, would have been justified in recognizing

the opposing party as the lawful government [369 U.S. 186, 222]

. . . .

In the case of foreign

nations, the government acknowledged by the President is always recognized in the courts of

justice. . .

." 7 How., at 42-44.

Clearly, several factors were thought by the Court in Luther to make the question there "political": the commitment to the other branches of the decision as to which is the lawful state government; the unambiguous action by the President, in recognizing the charter government as the lawful authority; the

need for finality in the executive's decision; and the lack of criteria by which a court could determine

which form of government was republican. 48

[369 U.S. 186, 223]

But the only significance that Luther could have for our immediate purposes is in its holding that the Guaranty Clause is not a repository of judicially manageable standards which a court could utilize independently in order to identify a State's lawful government. The Court has since refused to resort to the Guaranty Clause - which alone had been invoked for the purpose - as the source of a constitutional standard for invalidating state action. See Taylor & Marshall v. Beckham (No. 1), 178 U.S. 548 (claim that Kentucky's resolution of contested gubernatorial election deprived voters of republican government held nonjusticiable); Pacific States Tel. Co. v. Oregon, 223 U.S. 118 (claim that initiative and referendum negated republican government held nonjusticiable); Kiernan v. Portland, 223 U.S. 151 (claim that municipal charter amendment per municipal initiative and referendum negated republican government held nonjusticiable); [369 U.S. 186, 224] Marshall v. Dye, 231 U.S. 250 (claim that Indiana's constitutional amendment procedure negated republican government held nonjusticiable); O'Neill v. Leamer, 239 U.S. 244 (claim that delegation to court of power to form drainage districts negated republican government held "futile"); Ohio ex rel. Davis v. Hildebrant, 241 U.S. 565 (claim that invalidation of state reapportionment statute per referendum negates republican government held nonjusticiable); 49 Mountain Timber Co. v. Washington, 243 U.S. 219 (claim that workmen's compensation violates republican government held nonjusticiable); Ohio ex rel. Bryant v. Akron Metropolitan Park District, 281 U.S. 74 (claim that rule requiring invalidation of statute by all but one justice of state court negated republican government held nonjusticiable); Highland Farms Dairy v. Agnew, 300 U.S. 608 (claim that delegation to agency of power to control milk prices violated republican government, rejected).

Just as the Court has consistently held that a challenge to state action based on the Guaranty Clause presents no justiciable question so has it held, and for the same reasons, that challenges to congressional action on the ground of inconsistency with that clause present no justiciable question. In Georgia v. Stanton, 6 Wall. 50, the State sought by an original bill to enjoin execution of the Reconstruction Acts, claiming that it already possessed "A republican State, in every political, legal, constitutional, and juridical sense," and that enforcement of the new Acts "Instead of keeping the guaranty against a forcible overthrow of its government by foreign invaders or domestic insurgents, is destroying that very government by force." 50 Congress had clearly refused to [369 U.S. 186, 225] recognize the republican character of the government of the suing State. 51 It seemed to the Court that the only constitutional claim that could be presented was under the Guaranty Clause, and Congress

. .

.

having determined that the effects of the recent hostilities required extraordinary measures to restore governments of a republican form, this Court refused to interfere with Congress' action at the behest of a claimant relying on that very guaranty. 52

In only a few other cases has the Court considered Art. IV, 4, in relation to congressional action. It has refused to pass on a claim relying on the Guaranty Clause to establish that Congress lacked power to allow the States to employ the referendum in passing on legislation redistricting for congressional seats. Ohio ex rel. Davis v. Hildebrant, supra. And it has pointed out that Congress is not required to establish republican government in the territories before they become States, and before they have attained a sufficient population to warrant a [369 U.S. 186, 226] popularly elected legislature. Downes v. Bidwell, 182 U.S. 244, 278 -279 (dictum). 53

We come, finally, to the ultimate inquiry whether our precedents as to what constitutes a nonjusticiable "political question" bring the case before us under the umbrella of that doctrine. A natural beginning is to note whether any of the common characteristics which we have been able to identify and label descriptively are present. We find none: The question here is the consistency of state action with the Federal Constitution. We have no question decided, or to be decided, by a political branch of government coequal with this Court. Nor do we risk embarrassment of our government abroad, or grave disturbance at home 54 if we take issue with Tennessee as to the constitutionality of her action here challenged. Nor need the appellants, in order to succeed in this action, ask the Court to enter upon policy determinations for which judicially manageable standards are lacking. Judicial standards under the Equal Protection Clause are well developed and familiar, and it has been open to courts since the enactment of the Fourteenth Amendment to determine, if on the particular facts they must, that a discrimination reflects no policy, but simply arbitrary and capricious action.

This case does, in one sense, involve the allocation of political power within a State, and the appellants [369 U.S. 186, 227] might conceivably have added a claim under the Guaranty Clause. Of course, as we have seen, any reliance on that clause would be futile. But because any reliance on the Guaranty Clause could not have succeeded it does not follow that appellants may not be heard on the equal protection claim which in fact they tender. True, it must be clear that the Fourteenth Amendment claim is not so enmeshed with those political question elements which render Guaranty Clause claims nonjusticiable as actually to present a political question itself. But we have found that not to be the case here.

In this connection special attention is due Pacific States Tel. Co. v. Oregon, 223 U.S. 118 . In that case a corporation tax statute enacted by the initiative was attacked ostensibly on three grounds: (1) due process; (2) equal protection; and (3) the Guaranty Clause. But it was clear that the first two grounds were invoked solely in aid of the contention that the tax was invalid by reason of its passage:

"The defendant company does not contend here that it could not have been required to pay a license tax. It does not assert that it was denied an opportunity to be heard as to the amount for which it was taxed, or that there was anything inhering in the tax or involved intrinsically in the law which violated any of its constitutional rights. If such questions had been raised they would have been justiciable, and therefore would have required the calling into operation of judicial power. Instead, however, of doing any of these things, the attack on the statute here made is of a wholly different character. Its essentially political nature is at once made manifest by understanding that the assault which the contention here advanced makes it [sic] not on the tax as a tax, but on the State as a State. It is addressed to the [369 U.S. 186, 228] framework and political character of the government by which the statute levying the tax was passed. It is the government, the political entity, which (reducing the case to its essence) is called to the bar of this court, not for the purpose of testing judicially some exercise of power assailed, on the ground that its exertion has injuriously affected the rights of an individual because of repugnancy to some constitutional limitation, but to demand of the State that it establish its right

to exist as a State, republican in form." 223 U.S., at 150 -151.

The due process and equal protection claims were held nonjusticiable in Pacific States not because they happened to be joined with a Guaranty Clause claim, or because they sought to place before the Court a subject matter which might conceivably have been dealt with through the Guaranty Clause, but because the Court believed that they were invoked merely in verbal aid of the resolution of issues which, in its view, entailed political questions. Pacific States may be compared with cases such as Mountain Timber Co. v. Washington, 243 U.S. 219 , wherein the Court refused to consider whether a workmen's compensation act violated the Guaranty Clause but considered at length, and rejected, due process and equal protection arguments advanced against it; and O'Neill v. Leamer, 239 U.S. 244 , wherein the Court refused to consider whether Nebraska's delegation of power to form drainage districts violated the Guaranty Clause, but went on to consider and reject the contention that the action against which an injunction was sought was not a taking for a public purpose.

We conclude then that the nonjusticiability of claims resting on the Guaranty Clause which arises from their embodiment of questions that were thought "political," can have no bearing upon the justiciability of the equal protection claim presented in this case. Finally, we [369 U.S. 186, 229] emphasize that it is the involvement in Guaranty Clause claims of the elements thought to define "political questions," and no other feature, which could render them nonjusticiable. Specifically, we have said that such claims are not held nonjusticiable because they touch matters of state governmental organization. Brief examination of a few cases demonstrates this.

When challenges to state action respecting matters of "the administration of the affairs of the State and the officers through whom they are conducted" 55 have rested on claims of constitutional deprivation which are amenable to judicial correction, this Court has acted upon its view of the merits of the claim. For example, in Boyd v. Nebraska ex rel. Thayer, 143 U.S. 135 , we reversed the Nebraska Supreme Court's decision that Nebraska's Governor was not a citizen of the United States or of the State and therefore could not continue in office. In Kennard v. Louisiana ex rel. Morgan, 92 U.S. 480 , and Foster v. Kansas ex rel. Johnston, 112 U.S. 201 , we considered whether persons had been removed from public office by procedures consistent with the Fourteenth Amendment's due process guaranty, and held on the merits that they had. And only last Term, in Gomillion v. Lightfoot, 364 U.S. 339 , we applied the Fifteenth Amendment to strike down a redrafting of municipal boundaries which effected a discriminatory impairment of voting rights, in the face of what a majority of the Court of Appeals thought to be a sweeping commitment to state legislatures of the power to draw and redraw such boundaries. 56

Gomillion was brought by a Negro who had been a resident of the City of Tuskegee, Alabama, until the municipal boundaries were so recast by the State Legislature [369 U.S. 186, 230] as to exclude practically all Negroes. The plaintiff claimed deprivation of the right to vote in municipal elections. The District Court's dismissal for want of jurisdiction and failure to state a claim upon which relief could be granted was affirmed by the Court of Appeals. This Court unanimously reversed. This Court's answer to the argument that States enjoyed unrestricted control over municipal boundaries was:

"Legislative control of municipalities, no less than other state power, lies within the scope of

relevant limitations imposed by the United States Constitution

. . . .

The opposite conclusion,

urged upon us by respondents, would sanction the achievement by a State of any impairment of voting rights whatever so long as it was cloaked in the garb of the realignment of political subdivisions. `It is inconceivable that guaranties embedded in the Constitution of the United States may thus be manipulated out of existence.'" 364 U.S., at 344 -345.

To a second argument, that Colegrove v. Green, supra, was a barrier to hearing the merits of the case, the Court responded that Gomillion was lifted "out of the so-called `political' arena and into the

conventional sphere of constitutional litigation" because here was discriminatory treatment of a racial minority violating the Fifteenth Amendment.

"A statute which is alleged to have worked unconstitutional deprivations of petitioners' rights is not immune to attack simply because the mechanism employed by the legislature is a

redefinition of municipal

boundaries. . . .

While in form this is merely an act redefining metes

and bounds, if the allegations are established, the inescapable human effect of this essay in geometry and geography is to despoil colored citizens, and only colored citizens, of [369 U.S. 186, 231] their theretofore enjoyed voting rights. That was not Colegrove v. Green.

"When a State exercises power wholly within the domain of state interest, it is insulated from federal judicial review. But such insulation is not carried over when state power is used as an instrument for circumventing a federally protected right." 364 U.S., at 347 . 57

We have not overlooked such cases as In re Sawyer, 124 U.S. 200 , and Walton v. House of Representatives, 265 U.S. 487 , which held that federal equity power could not be exercised to enjoin a state proceeding to remove a public officer. But these decisions explicitly reflect only a traditional limit upon equity jurisdiction, and not upon federal courts' power to inquire into matters of state governmental organization. This is clear not only from the opinions in those cases, but also from White v. Berry, 171 U.S. 366 , which, relying on Sawyer, withheld federal equity from staying removal of a federal officer. Wilson v. North Carolina, 169 U.S. 586 , simply dismissed an appeal from an unsuccessful suit to upset a State's removal procedure, on the ground that the constitutional claim presented - that a jury trial was necessary if the removal procedure was to comport with due process requirements - was frivolous. Finally, in Taylor and Marshall v. Beckham (No. 1), 178 U.S. 548 , where losing candidates attacked the constitutionality of Kentucky's resolution of a contested gubernatorial election, the Court refused to consider the merits of a claim posited upon [369 U.S. 186, 232] the Guaranty Clause, holding it presented a political question, but also held on the merits that the ousted candidates had suffered no deprivation of property without due process of law. 58

Since, as has been established, the equal protection claim tendered in this case does not require decision of any political question, and since the presence of a matter affecting state government does not render the case nonjusticiable, it seems appropriate to examine again the reasoning by which the District Court reached its conclusion that the case was nonjusticiable.

We have already noted that the District Court's holding that the subject matter of this complaint was nonjusticiable relied upon Colegrove v. Green, supra, and later cases. Some of those concerned the choice of members of a state legislature, as in this case; others, like Colegrove itself and earlier precedents, Smiley v. Holm, 285 U.S. 355 , Koenig v. Flynn, 285 U.S. 375 , and Carroll v. Becker, 285 U.S. 380 , concerned the choice of Representatives in the Federal Congress. Smiley, Koenig and Carroll settled the issue in favor of justiciability of questions of congressional redistricting. The Court followed these precedents in Colegrove although over the dissent of three of the seven Justices who participated in that decision. On the issue of justiciability, all four Justices comprising a majority relied upon Smiley v. Holm, but in two opinions, one for three Justices, 328 U.S., at 566 , 568, and a separate one by Mr. Justice Rutledge, 328 U.S., at 564 . The argument that congressional redistricting problems

presented a "political question" the resolution of which was confided to Congress might have been rested upon Art. I, 4, Art. I, 5, Art. I, 2, and Amendment [369 U.S. 186, 233] XIV, 2. Mr. Justice Rutledge said: "But for the ruling in Smiley v. Holm, 285 U.S. 355 , I should have supposed that the provisions

of the Constitution, Art. I, 4, that "The Times, Places and Manner of holding Elections for

. .

.

Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at

any time by Law make or alter such Regulations

.'; Art. I, 2 [but see Amendment XIV, 2], vesting in

. . Congress the duty of apportionment of representatives among the several states `according to their respective Numbers'; and Art. I, 5, making each House the sole judge of the qualifications of its own

members, would remove the issues in this case from justiciable cognizance. But, in my judgment, the

Smiley case rules squarely to the contrary, save only in the matter of

degree. . . .

Assuming that that

decision is to stand, I think

that its effect is to rule that this Court has power to afford relief in a case

. . . of this type as against the objection that the issues are not justiciable." 328 U.S., at 564 -565.

Accordingly, Mr. Justice Rutledge joined in the conclusion that the case was justiciable, although he

held that the dismissal of the complaint should be affirmed. His view was that "The shortness of the time remaining [before forthcoming elections] makes it doubtful whether action could, or would, be

taken in time to secure for petitioners the effective relief they

seek. . . .

I think, therefore, the case is one

in which the Court may properly, and should, decline to exercise its jurisdiction. Accordingly, the judgment should be affirmed and I join in that disposition of the cause." 328 U.S., at 565 -566. 59

U.S. 186, 234]

[369

Article I, 2, 4, and 5, and Amendment XIV, 2, relate only to congression