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EN BANC

[A.M. No. 88-7-1861-RTC. October 5, 1988.]


IN RE: DESIGNATION OF JUDGE RODOLFO U. MANZANO AS
MEMBER OF THE ILOCOS NORTE PROVINCIAL COMMITTEE ON
JUSTICE.
SYLLABUS
1. ADMINISTRATIVE LAW; EXECUTIVE ORDER NO. 856, AS AMENDED;
PROVINCIAL/CITY COMMITTEE ON JUSTICE; PERFORMS ADMINISTRATIVE
FUNCTIONS. It is evident that such Provincial/City Committees on Justice perform
administrative functions. Administrative functions are those which involve the regulation
and control over the conduct and affairs of individuals for their own welfare and the
promulgation of rules and regulations to better carry out the policy of the legislature or
such as are devolved upon the administrative agency by the organic law of its existence.
2. CONSTITUTIONAL LAW; SEC, ART VIII, NEW CONSTITUTION;
PROHIBITION TO MEMBERS OF THE JUDICIARY REGARDING THEIR
DISCHARGE OF ADMINISTRATIVE FUNCTIONS I QUASI-JUDICIAL OR
ADMINISTRATIVE AGENCIES. Under the Constitution, the members of the
Supreme Court and other courts established by law shall not be designated to any agency
performing quasi-judicial or administrative functions (Section 12, Art. VIII,
Constitution). Considering that membership of Judge Manzano in the Ilocos Norte
Provincial Committee on Justice, which discharges administrative functions, will be in
violation of the Constitution, the Court is constrained to deny his request. This
declaration does not mean that RTC Judges should adopt an attitude of monastic
insensibility or unbecoming indifference to Province/City Committee on Justice. As
incumbent RTC Judges, they form part of the structure of government. Their integrity
and performance in the adjudication of cases contribute to the solidity of such structure.
As public officials, they are trustees of an orderly society. Even as non-members of
Provincial/City Committees on Justice, RTC judges should render assistance to said
Committees to help promote the laudable purposes for which they exist, but only when
such assistance may be reasonably incidental to the fulfillment of their judicial duties.
Gutierrez, Jr., J., dissenting:
1. ADMINISTRATIVE LAW; EXECUTIVE ORDER NO. 856, AS AMENDED;
"ADMINISTRATIVE FUNCTIONS" HOW CONSTRUED. "Administrative

functions" as used in Section 12 refers to the executive machinery of government and the
performance by that machinery of governmental acts. It refers to the management actions,
determinations, and orders of executive officials as they administer the laws and try to
make government effective. There is an element of positive action, of supervision or
control.
2. ID.; ID.; ID.; PROVINCIAL/CITY COMMITTEE ON JUSTICE; DOES NOT
INVOLVE ANY REGULATION OR CONTROL OVER CONDUCT OF ANY
INDIVIDUAL. Membership in the Provincial or City Committee on Justice would not
involve any regulation or control over the conduct and affairs of individuals. Neither will
the Committee on Justice promulgate rules and regulations nor exercise any quasilegislative functions. Its work is purely advisory. I do not see anything wrong in a
member of the judiciary joining any study group which concentrates on the
administration of justice as long as the group merely deliberates on problems involving
the speedy disposition of cases particularly those involving the poor and needy litigants
or detainees, pools the expertise and experiences of the members, and limits itself to
recommendations which may be adopted or rejected by those who have the power to
legislate or administer the particular function involved in their implementation.
3. STATUTORY
CONSTRUCTION;
THE
BASIC
PRINCIPLES
OF
CONSTITUTIONAL INTERPRETATION APPLY AS WELL TO THE PROVISIONS
WHICH DEFINE OR CIRCUMSCRIBE OUR POWERS AND FUNCTIONS AS THEY
DO TO THE PROVISIONS GOVERNING THE OTHER DEPARTMENTS OF
GOVERNMENT. It is well for this Court to be generally cautious, conservative or
restrictive when it interprets provisions of the Constitution or statutes vesting us with
powers or delimiting the exercise of our jurisdiction and functions. However, we should
not overdo it. The basic principles of constitutional interpretation apply as well to the
provisions which define or circumscribe our powers and functions as they do to the
provisions governing the other departments of government. The Court should not adopt a
strained construction which impairs its own efficiency to meet the responsibilities
brought about by the changing times and conditions of society. The familiar quotation is
apt in this case constitutional provisions are interpreted by the spirit which vivifies and
not by the letter which killeth.
Melencio-Herrera, J., dissenting:
CONSTITUTIONAL LAW; SEC. 12, ART. VIII, 1987 CONSTITUTION; SHOULD
NOT BE GIVEN RESTRICTIVE INTERPRETATION; COMMITTEE ON JUSTICE,
NOT THE AGENCY CONTEMPLATED BY THE PROHIBITION. Justices
Melencio-Herrera hesitates to give such a restrictive and impractical interpretation to
Section 12, Article VIII of the 1987 Constitution, and thus join the dissent of Justice
Gutierrez, Jr. What Justice Melencio-Herrera believes as contemplated by the
Constitutional prohibition is designation, for example, to such quasi-judicial bodies as the

SEC, or administrative agencies like the BIR. Those are full-time positions involving
running the affairs of government, which will interfere with the discharge of judicial
functions or totally remove a Judge/Justice from the performance of his regular functions.
The Committee on Justice cannot be likened to such an administrative agency of
government. It is a study group with recommendatory functions. In fact, membership by
members of the Bench in said committee is called for by reason of the primary functions
of their position.

RESOLUTION

PADILLA, J :
p

On 4 July 1988, Judge Rodolfo U. Manzano, Executive Judge, RTC, Bangui, Ilocos
Norte, Branch 19, sent this Court a letter which reads:
"Hon. Marcelo Fernan
Chief Justice of the Supreme Court
of the Philippines
Manila
Thru channels: Hon. Leo Medialdea
Court Administrator
Supreme Court of the Philippines
Sir:
By Executive Order RF6-04 issued on June 21, 1988 by the Honorable
Provincial Governor of Ilocos Norte, Hon. Rodolfo C. Farias, I was designated
as a member of the Ilocos Norte Provincial Committee on Justice created
pursuant to Presidential Executive Order No. 856 of 12 December 1986, as
amended by Executive Order No. 326 of June 1, 1988. In consonance with
Executive Order RF6-04, the Honorable Provincial Governor of Ilocos Norte
issued my appointment as a member of the Committee. For your ready
reference, I am enclosing herewith machine copies of Executive Order RF6-04
and the appointment.
Before I may accept the appointment and enter in the discharge of the powers
and duties of the position as member of the Ilocos (Norte) Provincial Committee
on Justice, may I have the honor to request for the issuance by the Honorable
Supreme Court of a Resolution, as follows:
(1) Authorizing me to accept the appointment and to assume
and discharge the powers and duties attached to the said position;

(2) Considering my membership in the Committee as neither


violative of the Independence of the Judiciary nor a violation of
Section 12, Article VIII, or of the second paragraph of Section 7,
Article IX (B), both of the Constitution, and will not in any way
amount to an abandonment of my present position as Executive
Judge of Branch XIX, Regional Trial Court, First Judicial Region,
and as a member of the Judiciary; and
(3) Consider my membership in the said Committee as part
of the primary functions of an Executive Judge.
May I please be favored soon by your action on this request.
Very respectfully yours,
(Sgd)
Judge"

RODOLFO

U.

MANZANO

An examination of Executive Order No. 856, as amended, reveals that Provincial/City


Committees on Justice are created to insure the speedy disposition of cases of detainees,
particularly those involving the poor and indigent ones, thus alleviating jail congestion
and improving local jail conditions. Among the functions of the Committee are
3.3 Receive complaints against any apprehending officer, jail warden, fiscal or
judge who may be found to have committed abuses in the discharge of his
duties and refer the same to proper authority for appropriate action;
3.5 Recommend revision of any law or regulation which is believed prejudicial
to the proper administration of criminal justice.

It is evident that such Provincial/City Committees on Justice perform administrative


functions. Administrative functions are those which involve the regulation and control
over the conduct and affairs of individuals for their own welfare and the promulgation
of rules and regulations to better carry out the policy of the legislature or such as are
devolved upon the administrative agency by the organic law of its existence (Nasipit
Integrated Arrastre and Stevedoring Services Inc., vs. Tapucar, SP-07599-R, 29
September 1978, Black's Law Dictionary).
Furthermore, under Executive Order No. 326 amending Executive Order No. 856, it is
provided that
"SECTION 6. Supervision. The Provincial/City Committees on Justice shall
be under the supervision of the Secretary of Justice. Quarterly accomplishment
reports shall be submitted to the Office of the Secretary of Justice."

Under the Constitution,the members of the Supreme Court and other courts established
by law shall not be designated to any agency performing quasi-judicial or administrative
functions (Section 12, Art. VIII, Constitution).
Considering that membership of Judge Manzano in the Ilocos Norte Provincial
Committee on Justice, which discharges administrative functions, will be in violation of
the Constitution, the Court is constrained to deny his request.
Former Chief Justice Enrique M. Fernando in his concurring opinion in the case of
Garcia vs. Macaraig (39 SCRA 106) ably sets forth:
"2. While the doctrine of separation of powers is a relative theory not to be
enforced with pedantic rigor, the practical demands of government precluding
its doctrinaire application, it cannot justify a member of the judiciary being
required to assume a position or perform a duty non-judicial in character. That
is implicit in the principle. Otherwise there is a plain departure from its
command. The essence of the trust reposed in him is to decide. Only a higher
court, as was emphasized by Justice Barredo, can pass on his actuation. He is
not a subordinate of an executive or legislative official, however eminent. It is
indispensable that there be no exception to the rigidity of such a norm if he is, as
expected, to be confined to the task of adjudication. Fidelity to his sworn
responsibility no leas than the maintenance of respect for the judiciary can be
satisfied with nothing less."

This declaration does not mean that RTC Judges should adopt an attitude of monastic
insensibility or unbecoming indifference to Province/City Committee on Justice. As
incumbent RTC Judges, they form part of the structure of government. Their integrity
and performance in the adjudication of cases contribute to the solidity of such structure.
As public officials, they are trustees of an orderly society. Even as non-members of
Provincial/City Committees on Justice, RTC judges should render assistance to said
Committees to help promote the laudable purposes for which they exist, but only when
such assistance may be reasonably incidental to the fulfillment of their judicial duties.
cdll

ACCORDINGLY, the aforesaid request of Judge Rodolfo U. Manzano is DENIED.


SO ORDERED.
Cruz, Paras, Feliciano, Gancayco, Bidin, Sarmiento, Cortes, Medialdea and Regalado,
JJ., concur.

Separate Opinions

GUTIERREZ, JR., J., dissenting:


The Constitution prohibits the designation of members of the judiciary to any agency
performing quasi-judicial or administrative functions. (Section 12, Article VIII,
Constitution.).
Insofar as the term "quasi-judicial" is concerned, it has a fairly clear meaning and Judges
can confidently refrain from participating in the work of any administrative agency which
adjudicates disputes and controversies involving the rights of parties within its
jurisdiction. The issue involved in this case is where to draw the line insofar as
administrative functions are concerned.
"Administrative functions" as used in Section 12 refers to the executive machinery of
government and the performance by that machinery of governmental acts. It refers to the
management actions, determinations, and orders of executive officials as they administer
the laws and try to make government effective. There is an element of positive action, of
supervision or control.
Applying the definition given in the opinion of the majority which reads:
"Administrative functions are those which involve the regulation and control
over the conduct and affairs of individuals for their own welfare and the
promulgation of rules and regulations to better carry out the policy of the
legislature or such as are devolved upon the administrative agency by the
organic law of its existence (Nasipit Integrated Arrastre and Stevedoring
Services Inc. v. Tapucar, SP-07599-R, 29 September 1978, Black's Law
Dictionary.)"

we can readily see that membership in the Provincial or City Committee on Justice
would not involve any regulation or control over the conduct and affairs of
individuals. Neither will the Committee on Justice promulgate rules and regulations
nor exercise any quasi-legislative functions. Its work is purely advisory. I do not see
anything wrong in a member of the judiciary joining any study group which
concentrates on the administration of justice as long as the group merely deliberates
on problems involving the speedy disposition of cases particularly those involving the
poor and needy litigants or detainees, pools the expertise and experiences of the
members, and limits itself to recommendations which may be adopted or rejected by
those who have the power to legislate or administer the particular function involved in
their implementation.
We who are Judges cannot operate in a vacuum or in a tight little world of our own. The
administration of justice cannot be pigeonholed into neat compartments with Judges,
Fiscals, Police, Wardens, and various other officials concerned erecting watertight
barriers against one another and limiting our interaction to timidly peeping over these

unnecessary and impractical barriers into one another's work, all the while blaming the
Constitution for such a quixotic and unreal interpretation. As intimated in the majority
opinion, we should not be monastically insensible or indifferent to projects or movements
cogitating on possible solutions to our common problems of justice and afterwards
forwarding their findings to the people, public or private, where their findings would do
the most good.
The majority opinion suggests the giving of assistance by Judges to the work of the
Committees on Justice. Assistance is a vague term. Can Judges be designated as
observers? Advisers? Consultants? Is it the act of being "designated" which is proscribed
by the Constitution or is it participation in the prohibited functions? If Judges cannot
become members, why should they be allowed or even encouraged to assist these
Committees? The line drawn by the majority is vague and unrealistic.
The constitutional provision is intended to shield Judges from participating in activities
which may compromise their independence or hamper their work. Studying problems
involving the administration of justice and arriving at purely recommendatory solutions
do not in any way involve the encroachment of the judiciary into executive or legislative
functions or into matters which are none of its concerns. Much less is it an encroachment
of the other departments into judicial affairs.
As the visible representation of the law and of justice in his community, the Judge should
not shy away from public activities which do not interfere with the prompt and proper
performance of his office, but which, in fact, enhance his effectiveness as a Judge. He
cannot stop mingling in civic intercourse or shut himself into solitary seclusion. The
Committees on Justice will also be immensely benefited by the presence of Judges in the
study groups. The work of the Committees is quite important. Let it not be said that the
Judges the officials most concerned with justice have hesitated to join in such a
worthy undertaking because of a strained interpretation of their functions.
It is well for this Court to be generally cautious, conservative or restrictive when it
interprets provisions of the Constitution or statutes vesting us with powers or delimiting
the exercise of our jurisdiction and functions. However, we should not overdo it. The
basic principles of constitutional interpretation apply as well to the provisions which
define or circumscribe our powers and functions as they do to the provisions governing
the other departments of government. The Court should not adopt a strained construction
which impairs its own efficiency to meet the responsibilities brought about by the
changing times and conditions of society. The familiar quotation is apt in this case
constitutional provisions are interpreted by the spirit which vivifies and not by the letter
which killeth.
Cdpr

I, therefore, dissent from the majority opinion and vote to allow Judge Rodolfo U.
Manzano to become a member of the Ilocos Norte Provincial Committee on Justice.

Fernan (C.J.), Narvasa and Grio-Aquino, JJ., concur.


MELENCIO-HERRERA, J., dissenting:
I hesitate to give such a restrictive and impractical interpretation to Section 12, Article
VIII of the 1987 Constitution, and thus join the dissent of Justice Gutierrez, Jr.
What I believe is contemplated by the Constitutional prohibition is designation, for
example, to such quasi-judicial bodies as the SEC, or administrative agencies like the
BIR. Those are full-time positions involving running the affairs of government, which
will interfere with the discharge of judicial functions or totally remove a Judge/Justice
from the performance of his regular functions.
The Committee on Justice cannot be likened to such an administrative agency of
government. It is a study group with recommendatory functions. In fact, membership by
members of the Bench in said committee is called for by reason of the primary functions
of their position.
The matter of supervision by the Secretary of Justice provided for under EO No. 326
amending EO No. 856, need not be a cause for concern. That supervision is confined to
Committee work and will by no means extend to the performance of judicial functions
per se.
(In re: Manzano, A.M. No. 88-7-1861-RTC (Resolution), [October 5, 1988], 248 PHIL
487-496)
|||

EN BANC
[G.R. No. 45081. July 15, 1936.]
JOSE A. ANGARA, petitioner, vs. THE ELECTORAL
COMMISSION, PEDRO YNSUA, MIGUEL CASTILLO, and
DIONISIO C. MAYOR, respondents.
Godofredo Reyes for petitioner.
Solicitor-General Hilado for respondent Electoral Commission.
Pedro Ynsua in his own behalf.
No appearance for other respondents.
SYLLABUS
1. CONSTITUTIONAL LAW; SEPARATION OF POWERS. The
separation of powers is a fundamental principle in our system of government. It
obtains not through express provision but by actual division in our Constitution. Each
department of the government has exclusive cognizance of matters within its
jurisdiction, and is supreme within its own sphere.
2. ID.; ID.; SYSTEM OF CHECKS AND BALANCES. But it does not
follow from the fact that the three powers are to be kept separate and distinct that the
Constitution intended them to be absolutely unrestrained and independent of each
other. The Constitution has provided for an elaborate system of checks and balances
to secure coordination in the workings of various departments of government. For
example, the Chief Executive under our Constitution is 80 far made a check on the
legislative power that his assent is required in the enactment of laws. This, however,
is subject to the further check that a bill may become a law notwithstanding the
refusal of the President to approve it, by a vote of two-thirds or three-fourths, as the
case may be, of the National Assembly. The President has also the right to convene
the Assembly in special session whenever he chooses. On the other hand, the National
Assembly operates as a check on the Executive in the sense that its consent through
its Commission on Appointments is necessary in the appointment of certain officers;
and the concurrence of a majority of all its members is essential to the conclusion of
treaties. Furthermore, in its power to determine what courts other than the Supreme
Court shall be established, to define their jurisdiction and to appropriate funds for
their support, the National Assembly exercises to a certain extent control over the
judicial department. The Assembly also exercises the judicial power of trying

impeachments. And the judiciary in turn, with the Supreme Court as the final arbiter,
effectively checks the other departments in the exercise of its power to determine the
law, and hence to declare executive and legislative acts void if violative of the
Constitution.
3. ID.; ID.; ID.; JUDICIARY THE ONLY CONSTITUTIONAL ARBITER
TO ALLOCATE CONSTITUTIONAL BOUNDARIES. But in the main, the
Constitution has blocked out with deft strokes and in bold lines, allotment of power to
the executive, the legislative and the judicial departments of the government. The
overlapping and interlacing of functions and duties between the several departments,
however, sometimes makes it hard to say just where the one leaves off and the other
begins. In times of social disquietude or political excitement, the great landmarks of
the Constitution are apt to be forgotten or marred, if not entirely obliterated. In cases
of conflict, the judicial department is the only constitutional organ which can be
called upon to determine the proper allocation of powers between the several
departments and among the integral or constituent units thereof.
4. ID.; ID.; ID.; ID.; MODERATING POWER OF THE JUDICIARY IS
GRANTED, IF NOT EXPRESSLY, BY CLEAR IMPLICATION. As any human
production, our Constitution is of course lacking perfection and perfectibility, but as
much as it was within the power of our people, acting through their delegates to so
provide, that instrument which is the expression of their sovereignty however limited,
has established a republican government intended to operate and function as a
harmonious whole, under a system of checks and balances, and subject to specific
limitations and restrictions provided in the said instrument. The Constitution sets forth
in no uncertain language the restrictions and limitations upon governmental powers
and agencies. If these restrictions and limitations are transcended, it would be
inconceivable if the Constitution had not provided for a mechanism by which to direct
the course of government along constitutional channels, for, then, the distribution of
powers would be mere verbiage, the bill of rights mere expressions of sentiment, and
the principles of good government mere political apothegms. Certainly, the limitations
and restrictions embodied in the Constitution are real as they should be in any living
constitution. In the United States where no express constitutional grant is found in
their constitution, the possession of this moderating power of the courts, not to speak
of its historical origin and development there, has been set at rest by popular
acquiescence for a period of more than one and a half centuries. In our case, this
moderating power is granted, if not expressly, by clear implication from section 2 of
article VIII of our Constitution.
5. ID.; ID.; ID.; WHAT IS MEANT BY "JUDICIAL SUPREMACY". The
Constitution is a definition of the powers of government. Who is to determine the
nature, scope and extent of such powers? The Constitution itself has provided for the
instrumentality of the judiciary as the rational way. And when the judiciary mediates
to allocate constitutional boundaries, it does not assert any superiority over the other
departments; it does not in reality nullify or invalidate an act of the Legislature, but

only asserts the solemn and sacred obligation assigned to it by the Constitution to
determine conflicting claims of authority under the Constitution and to establish for
the parties in an actual controversy the rights which that instrument secures and
guarantees to them. This is in truth all that is involved in what is termed "judicial
supremacy" which properly is the power of judicial review under the Constitution.
6. ID.; ID.; ID.; JUDICIAL REVIEW LIMITED TO ACTUAL LITIGATION;
WISDOM, JUSTICE OR EXPEDIENCY OF LEGISLATION. Even then, this
power of judicial review is limited to actual cases and controversies to be exercised
after full opportunity of argument by the parties, and limited further to the
constitutional question raised or the very lis mota presented. Any attempt at
abstraction could only lead to dialectics and barren legal questions and to sterile
conclusions unrelated to actualities. Narrowed as its function is in this manner, the
judiciary does not pass upon questions of wisdom, justice or expediency of
legislation. More than that, courts accord the presumption of constitutionality to
legislative enactments not only because the Legislature is presumed to abide by the
Constitution but also because the judiciary in the determination of actual cases and
controversies must reflect the wisdom and justice of the people as expressed through
their representatives in the executive and legislative departments of the government.
7. ID.; ID.; ID.; SYSTEM ITSELF NOT THE CHIEF PALLADIUM OF
CONSTITUTIONAL LIBERTY; SUCCESS MUST BE TESTED IN THE
CRUCIBLE OF FILIPINO MINDS AND HEARTS. But much as we might
postulate on the internal checks of power provided in our Constitution, it ought not
the less to be remembered that, in the language of James Madison, the system itself is
not "the chief palladium of constitutional liberty . . . the people who are authors of this
blessing must also be its guardians . . . their eyes must be ever ready to mark, their
voice to pronounce . . . aggression on the authority of their constitution." In the last
and ultimate analysis, then, must the success of our government in the unfolding years
to come be tested in the crucible of Filipino minds and hearts than in the consultation
rooms and court chambers.
8. ID.; OUR CONSTITUTION HAS ADOPTED THE AMERICAN TYPE OF
CONSTITUTIONAL GOVERNMENT. Discarding the English type and other
European types of constitutional government, the framers of our Constitution adopted
the American type where the written constitution is interpreted and given effect by the
judicial department. In some countries which have declined to follow the American
example, provisions have been inserted in their constitutions prohibiting the courts
from exercising the power to interpret the fundamental law. This is taken as a
recognition of what otherwise would be the rule that in the absence of direct
prohibition courts are bound to assume what is logically their function. For instance,
the Constitution of Poland of 1921, expressly provides that courts shall have no power
to examine the validity of statutes (article 81, chapter IV). The former Austrian
Constitution contained a similar declaration. In countries whose constitutions are
silent in this respect, courts have assumed this power. This is true in Norway, Greece,

Australia and South Africa. Whereas, in Czechoslovakia (arts. 2 and 3, Preliminary


Law to Constitutional Charter of the Czechoslovak Republic, February 29, 1920) and
Spain (arts 121-123, Title IX, Constitution of the Republic of 1931) especial
constitutional courts are established to pass upon the validity of ordinary laws.
9. ID.; JURISDICTION OVER THE ELECTORAL COMMISSION. The
nature of the present controversy shows the necessity of a final constitutional arbiter
to determine the conflict of authority between two agencies created by the
Constitution. If the conflict were left undecided and undetermined, a void would be
created in our constitutional system which may in the long run prove destructive of
the entire framework. Natura vacuum abhorret, so must we avoid exhaustion in our
constitutional system. Upon principle, reason and authority, the Supreme Court has
jurisdiction over the Electoral Commission and the subject matter of the present
controversy for the purpose of determining the character, scope and extent of the
constitutional grant to the Electoral Commission as "the sole judge of all contests
relating to the election, returns and qualifications of the members of the National
Assembly."
10. ID.; THE ELECTORAL COMMISSION; CONSTITUTIONAL GRANT
OF POWER TO THE ELECTORAL COMMISSION TO BE THE SOLE JUDGE OF
ALL CONTESTS RELATING TO THE ELECTION, RETURNS AND
QUALIFICATIONS OF MEMBERS OF THE NATIONAL ASSEMBLY. The
original provision regarding this subject in the Act of Congress of July 1, 1902 (sec. 7,
par. 5) laying down the rule that the assembly shall be the judge of the elections,
returns, and qualifications of its members", was taken from clause 1 of section 5,
Article I of the Constitution of the United States providing that "Each House shall be
the Judge of the Elections, Returns, and Qualifications of its own Members, . . . ." The
Act of Congress of August 29, 1916 (sec. 18, par. 1) modified this provision by the
insertion of the word "sole" as follows: "That the Senate and House of
Representatives, respectively, shall be the sole judges of the elections, returns, and
qualifications of their elective members, . . ." apparently in order to emphasize the
exclusive character of the jurisdiction conferred upon each House of the Legislature
over the particular cases therein specified. This court has had occasion to characterize
this grant of power to the Philippine Senate and House of Representatives,
respectively, as "full, clear and complete". (Veloso vs. Boards of Canvassers of Leyte
and Samar [1919], 39 Phil., 886, 888.)
11. ELECTORAL COMMISSION; HISTORICAL INSTANCES. The
transfer of the power of determining the election, returns and qualifications of the
members of the Legislature long lodged in the legislative body, to an independent,
impartial and non-partisan tribunal, is by no means a mere experiment in the science
of government. As early as 1868, the House of Commons in England solved the
problem of insuring the non-partisan settlement of the controverted elections of its
members by abdicating its prerogative to two judges of the King's Bench of the High

Court of Justice selected from a rota in accordance with rules of court made for the
purpose. Having proved successful, the practice has become imbedded in English
jurisprudence (Parliamentary Elections Act, 1868 [31 & 32 Vict. c. 125] as amended
by Parliamentary Elections and Corrupt Practices Act, 1879 [42 & 43 Vict. c. 75], s.
2; Corrupt and Illegal Practices Prevention Act 1883 [46 & 47 Vict. c. 51], s. 70;
Expiring Laws Continuance Act, 1911 [1 & 2 Geo. 5, c. 22]; Laws of England, vol.
XII, p. 408, vol. XXI, p. 787). In the Dominion of Canada, election contests which
were originally heard by the Committee of the House of Commons, are since 1922
tried in the courts. Likewise, in the Commonwealth of Australia, election contests
which were originally determined by each house, are since 1922 tried in the High
Court. In Hungary, the organic law provides that all protests against the election of
members of the Upper House of Diet are to be resolved by the Supreme
Administrative Court (Law 22 of 1916, chap. 2, art. 37, par. 6). The Constitution of
Poland of March 17, 1921 (art. 19) and the Constitution of the Free City of Danzig of
May 13, 1922 (art. 10) vest the authority to decide contested elections to the Diet or
National Assembly in the Supreme Court. For the purpose of deciding legislative
contests, the Constitution of the German Reich of July 1, 1919 (art. 31), the
Constitution of the Czechoslovak Republic of February 29, 1920 (art. 19) and the
Constitution of the Grecian Republic of June 2, 1927 (art. 43) all provide for an
Electoral Commission.
12. ID.; ELECTORAL COMMISSION IN THE UNITED STATES. The
creation of an Electoral Commission whose membership is recruited both from the
legislature and the judiciary is by no means unknown in the United States. In the
presidential elections of 1876 there was a dispute as to the number of electoral votes
received by each of the two opposing candidates. As the Constitution made no
adequate provision for such a contingency, Congress passed a law on January 29,
1877 (United States Statutes at Large, vol. 19, chap. 37, pp. 227-229), creating a
special Electoral Commission composed of five members elected by the Senate, five
members elected by the House of Representatives, and five justices of the Supreme
Court, the fifth justice to be selected by the four designated in the Act. The decision of
the commission was to be binding unless rejected by the two houses voting separately.
Although there is not much moral lesson to be derived from the experience of
America in this regard, the experiment has at least abiding historical interest.
13. ID.; ID.; FAMILIARITY OF THE MEMBERS OF THE
CONSTITUTIONAL CONVENTION WITH THE HISTORY AND POLITICAL
DEVELOPMENT OF OTHER COUNTRIES OF THE WORLD; ELECTORAL
COMMISSION IS THE EXPRESSION OF THE WISDOM AND ULTIMATE
JUSTICE OF THE PEOPLE. The members of the Constitutional Convention who
framed our fundamental law were in their majority men mature in years and
experience. To be sure, many of them were familiar with the history and political
development of other countries of the world. When, therefore, they deemed it wise to
create an Electoral Commission as a constitutional organ and invested it with the

exclusive function of passing upon and determining the election, returns and
qualifications of the members of the National Assembly, they must have done so not
only in the light of their own experience but also having in view the experience of
other enlightened peoples of the world. The creation of the Electoral Commission was
designed to remedy certain evils of which the framers of our Constitution were
cognizant. Notwithstanding the vigorous opposition of some members of the
Convention to its creation, the plan was approved by that body by a vote of 98 against
58. All that can be said now is that, upon the approval of the Constitution, the creation
of the Electoral Commission is the expression of the wisdom and "ultimate justice of
the people". (Abraham Lincoln, First Inaugural Address, March 4, 1861.)
14. ID.; ID.; ID.; PURPOSE WAS TO TRANSFER IN ITS TOTALITY
POWER EXERCISED PREVIOUSLY BY THE LEGISLATURE OVER THE
CONTESTED ELECTIONS OF THE MEMBERS TO AN INDEPENDENT AND
IMPARTIAL TRIBUNAL. From the deliberations of our Constitutional
Convention it is evident that the purpose was to transfer in its totality all the powers
previously exercised by the Legislature in matters pertaining to contested elections of
its members, to an independent and impartial tribunal. It was not so much the
knowledge and appreciation of contemporary constitutional precedents, however, as
the long-felt need of determining legislative contests devoid of partisan considerations
which prompted the people acting through their delegates to the Convention to
provide for this body known as the Electoral Commission. With this end in view, a
composite body in which both the majority and minority parties are equally
represented to off-set partisan influence in its deliberations was created, and further
endowed with judicial temper by including in its membership three justices of the
Supreme Court.
15. ID.; ID.; ID.; THE ELECTORAL COMMISSION IS AN INDEPENDENT
CONSTITUTIONAL CREATION ALTHOUGH FOR PURPOSES OF
CLASSIFICATION IT IS CLOSER TO THE LEGISLATIVE DEPARTMENT
THAN TO ANY OTHER. The Electoral Commission is a constitutional creation,
invested with the necessary authority in the performance and execution of the limited
and specific function assigned to it by the Constitution. Although it is not a power in
our tripartite scheme of government, it is, to all intents and purposes, when acting
within the limits of its authority, an independent organ. It is, to be sure, closer to the
legislative department than to any other. The location of the provision (sec. 4)
creating the Electoral Commission under Article VI entitled "Legislative Department"
of our Constitution is very indicative. Its composition is also significant in that it is
constituted by a majority of members of the Legislature. But it is a body separate from
and independent of the Legislature.
16. ID.; ID; ID.; GRANT OF POWER TO THE ELECTORAL
COMMISSION INTENDED TO BE AS COMPLETE AND UNIMPAIRED AS IF
IT HAD REMAINED ORIGINALLY IN THE LEGISLATURE. The grant of
power to the Electoral Commission to judge all contests relating to the election,

returns and qualifications of members of the National Assembly, is intended to be as


complete and unimpaired as if it had remained originally in the Legislature. The
express lodging of that power in the Electoral Commission is an implied denial of the
exercise of that power by the National Assembly. And this is as effective a restriction
upon the legislative power as an express prohibition in the constitution (Ex parte
Lewis, 46 Tex. Crim. Rep., 1; State vs. Whisman, 33 S. D., 260; L. R. A., 1917B, 1).
If the power claimed for the National Assembly to regulate the proceedings of the
Electoral Commission and cut off the power of the Electoral Commission to lay down
a period within which protest should be filed were conceded, the grant of power to the
commission would be ineffective. The Electoral Commission in such a case would be
invested with the power to determine contested cases involving the election, returns,
and qualifications of the members of the National Assembly but subject at all times to
the regulative power of the National Assembly. Not only would the purpose of the
framers of our Constitution of totally transferring this authority from the legislative
body be frustrated, but a dual authority would be created with the resultant inevitable
clash of powers from time to time. A sad spectacle would then be presented of the
Electoral Commission retaining the bare authority of taking cognizance of cases
referred to, but in reality without the necessary means to render that authority
effective whenever and wherever the National Assembly has chosen to act, a situation
worse than that intended to be remedied by the framers of our Constitution. The
power to regulate on the part of the National Assembly in procedural matters will
inevitably lead to the ultimate control by the Assembly of the entire proceedings of
the Electoral Commission, and, by indirection, to the entire abrogation of the
constitutional grant. It is obvious that this result should not be permitted.
17. ID.; ID.; ID; ID.; THE POWER TO PROMULGATE INCIDENTAL
RULES AND REGULATIONS LODGED ALSO IN THE ELECTORAL
COMMISSION BY NECESSARY IMPLICATION. The creation of the Electoral
Commission carried with it ex necesitate rei the power regulative in character to limit
the time within which protests intrusted to its cognizance should be filed. It is a settled
rule of construction that where a general power is conferred or duty enjoined, every
particular power necessary for the exercise of the one or the performance of the other
is also conferred (Cooley, Constitutional Limitations, eighth ed., vol. I, pp. 138, 139).
In the absence of any further constitutional provision relating to the procedure to be
followed in filing protests before the Electoral Commission, therefore, the incidental
power to promulgate such rules necessary for the proper exercise of its exclusive
powers to judge all contests relating to the election, returns and qualifications of
members of the National Assembly, must be deemed by necessary implication to have
been lodged also in the Electoral Commission.
18. ID; ID.; ID.; POSSIBILITY OF ABUSE NO ARGUMENT AGAINST
GRANT OF POWER. The possibility of abuse is not an argument against the
concession of the power as there is no power that is not susceptible of abuse. If any

mistake has been committed in the creation of an Electoral Commission and in


investing it with exclusive jurisdiction in all cases relating to the election, returns, and
qualifications of members of the National Assembly, the remedy is political, not
judicial, and must be sought through the ordinary processes of democracy. All the
possible abuses of the government are not intended to be corrected by the judiciary.
The people in creating the Electoral Commission reposed as much confidence in this
body in the exclusive determination of the specified cases assigned to it, as it has
given to the Supreme Court in the proper cases entrusted to it for decision. All the
agencies of the government were designed by the Constitution to achieve specific
purposes, and each constitutional organ working within its own particular sphere of
discretionary action must be deemed to be animated with same zeal and honesty in
accomplishing the great ends for which they were created by the sovereign will. That
the actuations of these constitutional agencies might leave much to be desired in given
instances, is inherent in the imperfections of human institutions. From the fact that the
Electoral Commission may not be interfered with in the exercise of its legitimate
power, it does not follow that its acts, however illegal or unconstitutional, may not be
challenged in appropriate cases over which the courts may exercise jurisdiction.
19. ID.; ID.; ID.; FACTS OF THE CASE; EQUITABLE
CONSIDERATIONS. The Commonwealth Government was inaugurated on
November 15, 1935, on which date the Constitution, except as to the provisions
mentioned in section 6 of Article XV thereof, went into effect. The new National
Assembly convened on November 25, of that year, and the resolution confirming the
election of the petitioner was approved by that body on December 3, 1935. The
protest by the herein respondent against the election of the petitioner was filed on
December 9 of the same year. The pleadings do not show when the Electoral
Commission was formally organized but it does appear that on December 9, 1935, the
Electoral Commission met for the first time and approved a resolution fixing said date
as the last day for the filing of election protests. When, therefore, the National
Assembly passed its resolution of December 3, 1935, confirming the election of the
petitioner to the National Assembly, the Electoral Commission had not yet met;
neither does it appear that said body had actually been organized. As a matter of fact,
according to certified copies of official records on file in the archives division of the
National Assembly attached to the record of this case upon the petition of the
petitioner, the three justices of the Supreme Court and the six members of the
National Assembly constituting the Electoral Commission were respectively
designated only on December 4 and 6, 1936. If Resolution No. 8 of the National
Assembly confirming non-protested elections of members of the National Assembly
had the effect of limiting or tolling the time for the presentation of protests, the result
would be that the National Assembly on the hypothesis that it still retained the
incidental power of regulation in such cases had already barred the presentation of
protests before the Electoral Commission had had time to organize itself and
deliberate on the mode and method to be followed in a matter entrusted to its

exclusive jurisdiction by the Constitution. This result was not and could not have been
contemplated, and should be avoided.
20. ID.; ID.; ID.; CONFIRMATION BY THE NATIONAL ASSEMBLY
CAN NOT DEPRIVE THE ELECTORAL COMMISSION OF ITS AUTHORITY
TO FIX THE TIME WITHIN WHICH PROTESTS AGAINST THE ELECTION,
RETURNS AND QUALIFICATIONS OF MEMBERS OF THE NATIONAL
ASSEMBLY SHOULD BE FILED. Resolution No. 8 of the National Assembly
confirming the election of members against whom no protests has been filed at the
time of its passage on December 3, 1936, can not be construed as a limitation upon
the time for the initiation of election contests. While there might have been good
reason for the legislative practice of confirmation of members of the Legislature at the
time the power to decide election contests was still lodged in the Legislature,
confirmation alone by the Legislature cannot be construed as depriving the Electoral
Commission of the authority incidental to its constitutional power to be "the sole
judge of all contests relating to the election, returns, and qualifications of the
members of the National Assembly", to fix the time for the filing of said election
protests. Confirmation by the National Assembly of the returns of its members against
whose election no protests have been filed is, to all legal purposes, unnecessary.
Confirmation of the election of any member is not required by the Constitution before
he can discharge his duties as such member. As a matter of fact, certification by the
proper provincial board of canvassers is sufficient to entitle a member-elect to a seat
in the National Assembly and to render him eligible to any office in said body (No. 1,
par. 1, Rules of the National Assembly, adopted December 6, 1935).
21. ID.; EFFECT OF CONFIRMATION UNDER THE JONES LAW.
Under the practice prevailing when the Jones Law was still in force, each House of
the Philippine Legislature fixed the time when protests against the election of any of
its members should be filed. This was expressly authorized by section 18 of the Jones
Law making each House the sole judge of the election, returns and qualifications of
its members, as well as by a law (sec. 478, Act No. 3387) empowering each House
respectively to prescribe by resolution the time and manner of filing contest the
election of members of said bodies. As a matter of formality, after the time fixed by
its rules for the filing of protests had already expired, each House passed a resolution
confirming or approving the returns of such members against whose election no
protest had been filed within the prescribed time. This was interpreted as cutting off
the filing of further protests against the election of those members not theretofore
contested (Amistad vs. Claravall [Isabela], Second Philippine Legislature, Record
First Period, p. 89; Urgello vs. Rama [Third District, Cebu], Sixth Philippine
Legislature; Fetalvero vs. Festin [Romblon], Sixth Philippine Legislature, Record
First Period, pp. 637-640; Kintanar vs. Aldanese [Fourth District, Cebu], Sixth
Philippine Legislature, Record First Period, pp. 1121, 1122; Aguilar vs. Corpus
[Masbate], Eighth Philippine Legislature, Record First Period, vol. III, No. 56, pp.
892, 893). The Constitution has expressly repealed section 18 of the Jones Law. Act

No. 3387, section 478, must be deemed to have been impliedly abrogated also, for the
reason that with the power to determine all contests relating to the election, returns
and qualifications of members of the National Assembly, is inseparably linked the
authority to prescribe regulations for the exercise of that power. There was thus no
law nor constitutional provision which authorized the National Assembly to fix, as it
is alleged to have fixed on December 3, 1935, the time for the filing of contests
against the election of its members. And what the National Assembly could not do
directly, it could not do by indirection through the medium of confirmation.

DECISION

LAUREL, J :
p

This is an original action instituted in this court by the petitioner, Jose A.


Angara, for the issuance of a writ of prohibition to restrain and prohibit the Electoral
Commission, one of the respondents, from taking further cognizance of the protest
filed by Pedro Ynsua, another respondent, against the election of said petitioner as
member of the National Assembly for the first assembly district of the Province of
Tayabas.
The facts of this case as they appear in the petition and as admitted by the
respondents are as follows:
(1) That in the elections of September 17, 1935, the petitioner, Jose A. Angara,
and the respondents, Pedro Ynsua, Miguel Castillo and Dionisio Mayor, were
candidates voted for the position of member of the National Assembly for the first
district of the Province of Tayabas;
(2) That on October 7, 1935, the provincial board of canvassers, proclaimed
the petitioner as member-elect of the National Assembly for the said district, for
having received the most number of votes;
(3) That on November 15, 1935, the petitioner took his oath of office;
(4) That on December 3, 1935, the National Assembly in session assembled,
passed the following resolution:
"[No. 8]
"RESOLUTION CONFIRMANDO LAS ACTAS DE AQUELLOS
DIPUTADOS CONTRAQUIENES NO SE HA PRESENTADO PROTESTA.
"Se resuelve: Que las actas de eleccion de los Diputados contra quienes
no se hubiere presentado debidamente una protesta antes de la adopcion de la
presente resolucion sean, como por la presente, son aprobadas y confirmadas.

"Adoptada, 3 de diciembre, 1935."

(5) That on December 8, 1935, the herein respondent Pedro Ynsua, filed before
the Electoral Commission a "Motion of Protest" against the election of the herein
petitioner, Jose A. Angara, being the only protest filed after the passage of Resolution
No. 8 aforequoted, and praying, among other-things, that said respondent be declared
elected member of the National Assembly for the first district of Tayabas, or that the
election of said position be nullified;
(6) That on December 9, 1935, the Electoral Commission adopted a resolution,
paragraph 6 of which provides:
"6. La Comision no considerara ninguna protesta que no se haya
presentado en o antes de este dia."

(7) That on December 20, 1935, the herein petitioner, Jose A. Angara, one of
the respondents in the aforesaid protest, filed before the Electoral Commission a
"Motion to Dismiss the Protest", alleging (a) that Resolution No. 8 of the National
Assembly was adopted in the legitimate exercise of its constitutional prerogative to
prescribe the period during which protests against the election of its members should
be presented; (b) that the aforesaid resolution has for its object, and is the accepted
formula for, the limitation of said period; and (c) that the protest in question was filed
out of the prescribed period;
(8) That on December 27, 1935, the herein respondent, Pedro Ynsua, filed an
"Answer to the Motion of Dismissal" alleging that there is no legal or constitutional
provision barring the presentation of a protest against the election of a member of the
National Assembly, after confirmation;
(9) That on December 31, 1935, the herein petitioner, Jose A. Angara, filed a
"Reply" to the aforesaid "Answer to the Motion of Dismissal";
(10) That the case being submitted for decision, the Electoral Commission
promulgated a resolution on January 23, 1936, denying herein petitioner's "Motion to
Dismiss the Protest."
The application of the petitioner sets forth the following grounds for the
issuance of the writ prayed for:
(a) That the Constitution confers exclusive jurisdiction upon the Electoral
Commission solely as regards the merits of contested elections to the National
Assembly;
(b) That the Constitution excludes from said jurisdiction the power to regulate
the proceedings of said election contests, which power has been reserved to the
Legislative Department of the Government or the National Assembly;
(c) That like the Supreme Court and other courts created in pursuance of the
Constitution, whose exclusive jurisdiction relates solely to deciding the merits of
controversies submitted to hem for decision and to matters involving their internal

organization, the Electoral Commission can regulate its proceedings only if the
National Assembly has not availed of its primary power to so regulate such
proceedings;
(d) That Resolution No. 8 of the National Assembly is, therefore, valid and
should be respected and obeyed;
(e) That under paragraph 13 of section 1 of the Ordinance appended to the
Constitution and paragraph 6 of article 7 of the Tydings-McDuffie Law (No. 127 of
the 73rd Congress of the United States) as well as under sections 1 and 3 (should be
sections 1 and 2) of article VIII of the Constitution, the Supreme Court has
jurisdiction to pass upon the fundamental question herein raised because it involves an
interpretation of the Constitution of the Philippines.
On February 25, 1936, the Solicitor-General appeared and filed an answer in
behalf of the respondent Electoral Commission interposing the following special
defenses:
(a) That the Electoral Commission has been created by the Constitution as an
instrumentality of the Legislative Department invested with the jurisdiction to decide
"all contests relating to the election, returns, and qualifications of the members of the
National Assembly"; that in adopting its resolution of December 9, 1935, fixing this
date as the last day for the presentation of protests against the election of any member
of the National Assembly, it acted within its jurisdiction and in the legitimate exercise
of the implied powers granted it by the Constitution to adopt the rules and regulations
essential to carry out the powers and functions conferred upon the same by the
fundamental law; that in adopting its resolution of January 23, 1936, overruling the
motion of the petitioner to dismiss the election protest in question, and declaring itself
with jurisdiction to take cognizance of said protest, it acted in the legitimate exercise
of its quasi-judicial functions as an instrumentality of the Legislative Department of
the Commonwealth Government, and hence said act is beyond the judicial cognizance
or control of the Supreme Court;
(b) That the resolution of the National Assembly of December 3, 1935,
confirming the election of the members of the National Assembly against whom no
protest had thus far been filed, could not and did not deprive the Electoral
Commission of its jurisdiction to take cognizance of election protests filed within the
time that might be set by its own rules;
(c) That the Electoral Commission is a body invested with quasi- judicial
functions, created by the Constitution as an instrumentality of the Legislative
Department, and is not an "inferior tribunal, or corporation, or board, or person"
within the purview of sections 226 and 516 of the Code of Civil Procedure, against
which prohibition would lie.
The respondent Pedro Ynsua, in his turn, appeared and filed an answer in his
own behalf on March 2, 1936, setting forth following as his special defense:

(a) That at the time of the approval of the rules of the Electoral Commission on
December 9, 1935, there was no existing Law fixing the period within which protests
against the election of members of the National Assembly, the Electoral Commission
was exercising a power impliedly conferred upon it by the Constitution, by reason of
its quasi-judicial attributes;
(b) That said respondent presented his motion of protest before the Electoral
Commission on December 9, 1935, the last day fixed by paragraph 6 of the rules of
the said Electoral Commission;
(c) That therefore the Electoral Commission acquired jurisdiction over the
protest filed by said respondent and over the parties thereto, and the resolution of the
Electoral Commission of January 23, 1936, denying petitioner's motion to dismiss
said protest was an act within the jurisdiction of the said commission, and is not
reviewable by means of a writ of prohibition;
(d) That neither the law nor the Constitution requires confirmation by the
National Assembly of the election of its members, and that such confirmation does
not operate to limit the period within which protests should be filed as to deprive the
Electoral Commission of jurisdiction over protests filed subsequent thereto;
(e) That the Electoral Commission is an independent entity created by the
Constitution, endowed with quasi-judicial functions, whose decisions are final and
unappeallable;
(f) That the Electoral Commission, as a constitutional creation, is not an
inferior tribunal, corporation, board or person, within the terms of sections 226 and
516 of the Code of Civil Procedure; and that neither under the provisions of sections 1
and 2 of Article II (should be article VIII) of the Constitution and paragraph 13 of
section 1 of the Ordinance appended thereto could it be subject in the exercise of its
quasi-judicial functions to a writ of prohibition from the Supreme Court;
(g) That paragraph 6 of article 7 of the Tydings-McDuffie Law (No. 127 of the
73rd Congress of the United States) has no application to the case at bar.
The case was argued before us on March 13, 1936. Before it was submitted for
decision, the petitioner prayed for the issuance of a preliminary writ of injunction
against the respondent Electoral Commission which petition was denied "without
passing upon the merits of the case" by resolution of this court of March 21, 1936.
There was no appearance for the other respondents. The issues to be decided in
the case at bar may be reduced to the following two principal propositions:
1. Has the Supreme Court jurisdiction over the Electoral Commission and the
subject matter of the controversy upon the foregoing related facts, and in the
affirmative,
2. Has the said Electoral Commission acted without or in excess of its
jurisdiction in assuming to take cognizance of the protest filed against the election of

the herein petitioner notwithstanding the previous confirmation of such election by


resolution of the National Assembly?
We could perhaps dispose of this case by passing directly upon the merits of
the controversy. However, the question of jurisdiction having been presented, we do
not feel justified in evading the issue. Being a case prim impressionis, it would
hardly be consistent with our sense of duty to overlook the broader aspect of the
question and leave it undecided. Neither would we be doing justice to the industry and
vehemence of counsel were we not to pass upon the question of jurisdiction squarely
presented to our consideration.
The separation of powers is a fundamental principle in our system of
government. It obtains not through express provision but by actual division in our
Constitution. Each department of the government has exclusive cognizance of matters
within its jurisdiction, and is supreme within its own sphere. But it does not follow
from the fact that the three powers are to be kept separate and distinct that the
Constitution intended them to be absolutely unrestrained and independent of each
other. The Constitution has provided for an elaborate system of checks and balances
to secure coordination in the workings of the various departments of the government.
For example, the Chief Executive under our Constitution is so far made a check on the
legislative power that this assent is required in the enactment of laws. This, however,
is subject to the further check that a bill may become a law notwithstanding the
refusal of the President to approve it, by a vote of two-thirds or three-fourths, as the
case may be, of the National Assembly. The President has also the right to convene
the Assembly in special session whenever he chooses. On the other hand, the National
Assembly operates as a check on the Executive in the sense that its consent through
its Commission on Appointments is necessary in the appointment of certain officers;
and the concurrence of a majority of all its members is essential to the conclusion of
treaties. Furthermore, in its power to determine what courts other than the Supreme
Court shall be established, to define their jurisdiction and to appropriate funds for
their support, the National Assembly controls the judicial department to a certain
extent. The Assembly also exercises the judicial power of trying impeachments. And
the judiciary in turn, with the Supreme Court as the final arbiter, effectively checks
the other departments in the exercise of its power to determine the law, and hence to
declare executive and legislative acts void if violative of the Constitution.
But in the main, the Constitution has blocked out with deft strokes and in bold
lines, allotment of power to the executive, the legislative and the judicial departments
of the government. The overlapping and interlacing of functions and duties between
the several departments, however, sometimes makes it hard to say just where the one
leaves off and the other begins. In times of social disquietude or political excitement,
the great landmarks of the Constitution are apt to be forgotten or marred, if not
entirely obliterated. In cases of conflict, the judicial department is the only
constitutional organ which can be called upon to determine the proper allocation of

powers between the several departments and among the integral or constituent units
thereof.
As any human production, our Constitution is of course lacking perfection and
perfectibility, but as much as it was within the power of our people, acting through
their delegates to so provide, that instrument which is the expression of their
sovereignty however limited, has established a republican government intended to
operate and function as a harmonious whole, under a system of checks and balances,
and subject to specific limitations and restrictions provided in the said instrument. The
Constitution sets forth in no uncertain language the restrictions and limitations upon
governmental powers and agencies. If these restrictions and limitations are
transcended it would be inconceivable if the Constitution had not provided for a
mechanism by which to direct the course of government along constitutional
channels, for then the distribution of powers would be mere verbiage, the bill of rights
mere expressions of sentiment, and the principles of good government mere political
apothegms. Certainly, the limitations and restrictions embodied in our Constitution
are real as they should be in any living constitution. In the United States where no
express constitutional grant is found in their constitution, the possession of this
moderating power of the courts, not to speak of its historical origin and development
there, has been set at rest by popular acquiescence for a period of more than one and a
half centuries. In our case, this moderating power is granted, if not expressly, by clear
implication from section 2 of article VIII of our Constitution.
The Constitution is a definition of the powers of government. Who is to
determine the nature, scope and extent of such powers? The Constitution itself has
provided for the instrumentality of the judiciary as the rational way. And when the
judiciary mediates to allocate constitutional boundaries, it does not assert any
superiority over the other departments; it does not in reality nullify or invalidate an act
of the legislature, but only asserts the solemn and sacred obligation assigned to it by
the Constitution to determine conflicting claims of authority under the Constitution
and to establish for the parties in an actual controversy the rights which that
instrument secures and guarantees to them. This is in truth all that is involved in what
is termed "judicial supremacy" which properly is the power of judicial review under
the Constitution. Even then, this power of judicial review is limited to actual cases
and controversies to be exercised after full opportunity of argument by the parties, and
limited further to the constitutional question raised or the very lis mota presented. Any
attempt at abstraction could only lead to dialectics and barren legal questions and to
sterile conclusions of wisdom, justice or expediency of legislation. More than that,
courts accord the presumption of constitutionality to legislative enactments, not only
because the legislature is presumed to abide by the Constitution but also because the
judiciary in the determination of actual cases and controversies must reflect the
wisdom and justice of the people as expressed through their representatives in the
executive and legislative departments of the government.

But much as we might postulate on the internal checks of power provided in


our Constitution, it ought not the less to be remembered that, in the language of James
Madison, the system itself is not "the chief palladium of constitutional liberty . . . the
people who are authors of this blessing must also be its guardians . . . their eyes must
be ever ready to mark, their voice to pronounce . . . aggression on the authority of
their constitution." In the last and ultimate analysis, then, must the success of our
government in the unfolding years to come be tested in the crucible of Filipino minds
and hearts than in consultation rooms and court chambers.
In the case at bar, the National Assembly has by resolution (No. 8) of
December 3, 1935, confirmed the election of the herein petitioner to the said body. On
the other hand, the Electoral Commission has by resolution adopted on December 9,
1935, fixed said date as the last day for the filing of protests against the election,
returns and qualifications of members of the National Assembly, notwithstanding the
previous confirmation made by the National Assembly as aforesaid. If, as contended
by the petitioner, the resolution of the National Assembly has the effect of cutting off
the power of the Electoral Commission to entertain protests against the election,
returns and qualifications of members of the National Assembly, submitted after
December 3, 1935, then the resolution of the Electoral Commission of December 9,
1935, is mere surplusage and had no effect. But, if as contended by the respondents,
the Electoral Commission has the sole power of regulating its proceedings to the
exclusion of the National Assembly, then the resolution of December 9, 1935, by
which the Electoral Commission fixed said date as the last day for filing protests
against the election, returns and qualifications of members of the National Assembly,
should be upheld.
Here is then presented an actual controversy involving as it does a conflict of a
grave constitutional nature between the National Assembly on the one hand, and the
Electoral Commission on the other. From the very nature of the republican
government established in our country in the light of American experience and of our
own, upon the judicial department is thrown the solemn and inescapable obligation of
interpreting the Constitution and defining constitutional boundaries. The Electoral
Commission, as we shall have occasion to refer hereafter, is a constitutional organ,
created for a specific purpose, namely to determine all contests relating to the
election, returns and qualifications of the members of the National Assembly.
Although the Electoral Commission may not be interfered with, when the while acting
within the limits of its authority, it does not follow that it is beyond the reach of the
constitutional mechanism adopted by the people and that it is not subject to
constitutional restrictions. The Electoral Commission is not a separate department of
the government, and even if it were, conflicting claims of authority under the
fundamental law between departmental powers and agencies of the government are
necessarily determined by the judiciary in justiciable and appropriate cases.
Discarding the English type and other European types of constitutional government,
the framers of our Constitution adopted the American type where the written

constitution is interpreted and given effect by the judicial department. In some


countries which have declined to follow the American example, provisions have been
inserted in their constitutions prohibiting the courts from exercising the power to
interpret the fundamental law. This is taken as a recognition of what otherwise would
be the rule that in the absence of direct prohibition courts are bound to assume what is
logically their function. For instance, the Constitution of Poland of 1921, expressly
provides that courts shall have no power to examine the validity of statutes (art. 81,
chap. IV). The former Austrian Constitution contained a similar declaration. In
countries whose constitutions are silent in this respect, courts have assumed this
power. This is true in Norway, Greece, Australia and South Africa. Whereas, in
Czechoslovakia (arts. 2 and 3, Preliminary Law to Constitutional Charter of the
Czechoslovak Republic, February 29, 1920) and Spain (arts. 121-123, Title IX,
Constitution of the Republic of 1931) especial constitutional courts are established to
pass upon the validity of ordinary laws. In our case, the nature of the present
controversy shows the necessity of a final constitutional arbiter to determine the
conflict of authority between two agencies created by the Constitution. Were we to
decline to take cognizance of the controversy, who will determine the conflict? And if
the conflict were left undecided and undetermined, would not a void be thus created
in our constitutional system which may in the long run prove destructive of the entire
framework? To ask these questions is to answer them. Natura vacuum abhorret, so
must we avoid exhaustion in our constitutional system. Upon principle, reason and
authority, we are clearly of the opinion that upon the admitted facts of the present
case, this court has jurisdiction over the Electoral Commission and the subject matter
of the present controversy for the purpose of determining the character, scope and
extent of the constitutional grant to the Electoral Commission as "the sole judge of all
contests relating to the election, returns and qualifications of the members of the
National Assembly."
Having disposed of the question of jurisdiction, we shall now proceed to pass
upon the second proposition and determine whether the Electoral Commission has
acted without or in excess of its jurisdiction in adopting its resolution of December 9,
1935, and in assuming to take cognizance of the protest filed against the election of
the herein petitioner notwithstanding the previous confirmation thereof by the
National Assembly on December 3, 1935. As able counsel for the petitioner has
pointed out, the issue hinges on the interpretation of section 4 of Article VI of the
Constitution which provides:
"SEC. 4. There shall be an Electoral Commission composed of three Justices of
the Supreme Court designated by the Chief Justice, and of six Members chosen by the
National Assembly, three of whom shall be nominated by the party having the largest
number of votes, and three by the party having the second largest number of votes
herein. The senior Justice in the Commission shall be its Chairman. The Electoral
Commission shall be the sole judge of all contests relating to the election, returns and

qualifications of the members of the National Assembly." It is imperative, therefore,


that we delve into the origin and history of this constitutional provision and inquire
into the intention of its framers and the people who adopted it so that we may properly
appreciate its full meaning, import and significance.
The original provision regarding this subject in the Act of Congress of July 1,
1902 (sec. 7, par. 5) laying down the rule that "the assembly shall be the judge of the
elections, returns, and qualifications of its members", was taken from clause 1 of
section 5, Article I of the Constitution of the United States providing that "Each
House shall be the Judge of the Elections, Returns, and Qualifications of its own
Members, . . .." The Act of Congress of August 29, 1916 (sec. 18, par. 1) modified
this provision by the insertion of the word "sole" as follows: "That the Senate and
House of Representatives, respectively, shall be the sole judges of the elections,
returns, and qualifications of their elective members, . . ." apparently in order to
emphasize the exclusive character of the jurisdiction conferred upon each House of
the Legislature over the particular cases therein specified. This court has had occasion
to characterize this grant of power to the Philippine Senate and House of
Representatives, respectively, as "full, clear and complete" (Veloso vs. Boards of
Canvassers of Leyte and Samar [1919], 39 Phil., 886, 888.).
The first step towards the creation of an independent tribunal for the purpose of
deciding contested elections to the legislature was taken by the sub-committee of five
appointed by the Committee on Constitutional Guarantees of the Constitutional
Convention, which sub- committee submitted a report on August 30, 1934,
recommending the creation of a Tribunal of Constitutional Security empowered to
hear protests not only against the election of members of the legislature but also
against the election of executive officers for whose election the vote of the whole
nation is required, as well as to initiate impeachment proceedings against specified
executive and judicial officers. For the purpose of hearing legislative protests, the
tribunal was to be composed of three justices designated by the Supreme Court and
six members of the house of the legislature to which the contest corresponds, three
members to be designated by the majority party and three by the minority, to be
presided over by the Senior Justice unless the Chief Justice is also a member in which
case the latter shall preside. The foregoing proposal was submitted by the Committee
on Constitutional Guarantees to the Convention on September 15, 1934, with slight
modifications consisting in the reduction of the legislative representation to four
members, that is, two senators to be designated one each from the two major parties in
the Senate and two representatives to be designated one each from the two major
parties in the House of Representatives, and in awarding representation to the
executive department in the persons of two representatives to be designated by the
President.
Meanwhile, the Committee on Legislative Power was also preparing its report.
As submitted to the Convention on September 24, 1934, subsection 5, section 5, of the
proposed Article on the Legislative Department, reads as follows:

"The elections, returns and qualifications of the members of either


House and all cases contesting the election of any of their members shall be
judged by an Electoral Commission, constituted, as to each House, by three
members elected by the members of the party having the largest number of
votes therein, three elected by the members of the party having the second
largest number of votes, and as to its Chairman, one Justice of the Supreme
Court designated by the Chief Justice."

The idea of creating a Tribunal of Constitutional Security with comprehensive


jurisdiction as proposed by the Committee on Constitutional Guarantees which was
probably inspired by the Spanish plan (art. 121, Constitution of the Spanish Republic
of 1931), was soon abandoned in favor of the proposition of the Committee on
Legislative Power to create a similar body with reduced powers and with specific and
limited jurisdiction, to be designated as an Electoral Commission. The Sponsorship
Committee modified the proposal of the Committee on Legislative Power with respect
to the composition of the Electoral Commission and made further changes in
phraseology to suit the project of adopting a unicameral instead of a bicameral
legislature. The draft as finally submitted to the Convention on October 26, 1934,
reads as follows:
"(6) The elections, returns and qualifications of the Members of the
National Assembly and all cases contesting the election of any of its Members
shall be judged by an Electoral Commission, composed of three members
elected by the party having the largest number of votes in the National
Assembly, three elected by the members of the party having the second largest
number of votes, and three justices of the Supreme Court designated by the
Chief Justice, the Commission to be presided over by one of said justices."

During the discussion of the amendment introduced by Delegates Labrador,


Abordo, and others, proposing to strike out the whole subsection of the foregoing
draft and inserting in lieu thereof the following: "The National Assembly shall be the
sole and exclusive judge of the elections, returns, and qualifications of the Members",
the following illuminating remarks were made on the floor of the Convention in its
session of December 4, 1934, as to the scope of the said draft:
xxx xxx xxx
"Mr. VENTURA. Mr. President, we have a doubt here as to the scope of the
meaning of the first four lines, paragraph 6, page 11 of the draft,
reading: 'The elections, returns and qualifications of the Members of the
National Assembly and all cases contesting the election of any of its
Members shall be judged by an Electoral Commission, . . ..' I should like
to ask from the gentleman from Capiz whether the election and
qualification of the member whose election is not contested shall also be
judged by the Electoral Commission.
"Mr. ROXAS. If there is no question about the election of the members, there is
nothing to be judged; that is why the word 'judge' is used to indicate a
controversy. If there is no question about the election of a member, there

is nothing to be submitted to the Electoral Commission and there is


nothing to be determined.
"Mr. VENTURA. But does that carry the idea also that the Electoral
Commission shall confirm also the election of those who election is not
contested?.
"Mr. ROXAS. There is no need of confirmation. As the gentleman knows, the
action of the House of Representatives confirming the election of its
members is just a matter of the rules of the assembly. It is not
constitutional. It is not necessary. After a man files his credentials that
be has been elected, that is sufficient, unless his election is contested.
"Mr. VENTURA. But I do not believe that that is sufficient, as we have
observed that for purposes of the auditor, in the matter of election of a
member to a legislative body, because he will not authorize his pay.
"Mr. ROXAS. Well, what is the case with regards to the municipal president
who is elected? What happens with regards to the councilors of a
municipality? Does anybody confirm their election? The municipal
council does this: it makes a canvass and proclaims-in this case the
municipal council proclaims who has been elected, and it ends there,
unless there is a contest. It is the same case; there is no need on the part
of the Electoral Commission unless there is a contest. The first clause
refers to the case referred to by the gentleman from Cavite where one
person tries to be elected in place of another who was declared elected.
For example, in a case when the residence of the man who has been
elected is in question, or in case the citizenship of the man who has been
elected is in question.
"However, if the assembly desires to annul the power of the
commission, it may do so by certain maneuvers upon its first meeting when the
returns are submitted to the assembly. The purpose is to give to the Electoral
Commission all the powers exercised by the assembly referring to the elections,
returns and qualifications of the members. When there is no contest, there is
nothing to be judged.
"Mr. VENTURA. Then it should be eliminated.
"Mr. ROXAS. But that is a different matter, I think Mr. Delegate.
"Mr. CINCO. Mr. President, I have a similar question as that propounded by the
gentleman from Ilocos Norte when I arose a while ago. However I want
to ask more questions from the delegate from Capiz. This paragraph 6 on
page 11 of the draft cites cases contesting the election as separate from
the first part of the section which refers to elections, returns and
qualifications.
"Mr. ROXAS. That is merely for the sake of clarity. In fact the cases of
contested elections are already included in the phrase 'the elections,
returns and qualifications.' This phrase 'and contested elections' was
inserted merely for the sake of clarity.

"Mr. CINCO. Under this paragraph, may not the Electoral Commission, at its
own instance, refuse to confirm the election of the members?.
"Mr. ROXAS. I do not think so, unless there is a protest.
"Mr. LABRADOR. Mr. President, will the gentleman yield? .
"THE PRESIDENT. The gentleman may yield, if he so desires.
"Mr. ROXAS. Willingly.
"Mr. LABRADOR. Does not the gentleman from Capiz believe that unless this
power is granted to the assembly, the assembly on its own motion does
not have the right to contest the election and qualification of its
members?
"Mr. ROXAS. I have no doubt but that the gentleman is right. If this draft is
retained as it is, even if two-thirds of the assembly believe that a
member has not the qualifications provided by law, they cannot remove
him for that reason.
Mr. LABRADOR. So that the right to remove shall only be retained by the
Electoral Commission.
"Mr. ROXAS. By the assembly for misconduct.
"Mr. LABRADOR. I mean with respect to the qualification of the members.
"Mr. ROXAS. Yes, by the Electoral Commission.
"Mr. LABRADOR. So that under this draft, no member of the assembly has the
right to question the eligibility of its members?.
"Mr. ROXAS. Before a member can question the eligibility, he must go to the
Electoral Commission and make the question before the Electoral
Commission.
"Mr. LABRADOR. So that the Electoral Commission shall decide whether the
election is contested or not contested.
"Mr. ROXAS. Yes, sir: that is the purpose.
"Mr. PELAYO. Mr. President, I would like to be informed if the Electoral
Commission has power and authority to pass upon the qualifications of
the members of the National Assembly even though that question has
not been raised.
"Mr. ROXAS. I have just said that they have no power, because they can only
judge."

In the same session, the first clause of the aforesaid draft reading "The election,
returns and qualifications of the members of the National Assembly and" was
eliminated by the Sponsorship Committee in response to an amendment introduced by
Delegates Francisco, Ventura, Vinzons, Rafols, Lim, Mumar and others. In explaining

the difference between the original draft and the draft as amended, Delegate Roxas
speaking for the Sponsorship Committee said:
xxx xxx xxx
"Sr. ROXAS. La diferencia, seor Presidente, consiste solamente en obviar la
objecion apuntada por varios Delegados al efecto to que la primera
clausula del draft que dice: 'The election, returns and qualifications of
the members of the National Assembly' parece que da a la Comision
Electoral la facultad de determinar tambin la eleccion de los miembros
que no han sido protestados y para obviar esa dificultad, creemos que la
enmienda tiene razon en ese sentido, si enmendamos el draft, de tal
modo que se lea como sigue: 'All cases contesting the election', de modo
que los jueces de la Comision Electoral se limitaran solamente a los
casos en que haya habido protesta contra las actas." Before the
amendment of Delegate Labrador was voted upon the following
interpellation also took place:
"El Sr. CONEJERO. Antes de votarse la enmienda, quisiera pedir informacion
del Subcomit de Siete.
"El Sr. PRESIDENTE. Qu dice el Comit?.
"El Sr. ROXAS. Con mucho gusto.
"El Sr. CONEJERO. Tal como esta el draft, dando tres miembros a la mayoria,
y otros tres a la minoria y tres a la Corte Suprema, no cre Su Seoria
que esto equivale practicamente a dejar el asunto a los miembros del
Tribunal Supremo?.
"El Sr. ROXAS. Si y no. Cremos que si el tribunal o la Comision esta
constituido en esa forma, tanto los miembros de la mayoria como los de
la minoria asi como los miembros de la Corte Suprema consideraran la
cuestion sobre la base de sus mritos, sabiendo que el partidismo no es
suficiente para dar el triunfo.
"El Sr. CONEJERO. Cree Su Seoria que en un caso como ese, podriamos
hacer que tanto los de la mayoria como los de la minoria prescindieran
del partidismo?.
"El Sr. ROXAS. Creo que si, porque el partidismo no les daria el triunfo."
xxx xxx xxx

The amendment introduced by Delegates Labrador, Abordo and others seeking


to restore the power to decide contests relating to the election, returns and
qualifications of members of the National Assembly to the National Assembly itself,
was defeated by a vote of ninety-eight (98) against fifty-six (56).
In the same session of December 4, 1934, Delegate Cruz (C.) sought to amend
the draft by reducing the representation of the minority party and the Supreme Court
in the Electoral Commission to two members each, so as to accord more
representation to the majority party. The Convention rejected this amendment by a

vote of seventy-six (76) against forty-six (46), thus maintaining the non-partisan
character of the commission.
As approved on January 31, 1935, the draft was made to read as follows:
"(6) All cases contesting the elections, returns and qualifications of the
Members of the National Assembly shall be judged by an Electoral
Commission, composed of three members elected by the party having the
largest number of votes in the National Assembly, three elected by the members
of the party having the second largest number of votes, and three justices of the
Supreme Court designated by the Chief Justice, the Commission to be presided
over by one of said justices."

The Style Committee to which the draft was submitted revised it as follows:
"SEC. 4. There shall be an Electoral Commission composed of three
Justices of the Supreme Court designated by the Chief Justice, and of six
Members chosen by the National Assembly, three of whom shall be nominated
by the party having the largest number of votes, and three by the party having
the second largest number of votes therein. The senior Justice in the
Commission shall be its chairman. The Electoral Commission shall be the sole
judge of the election, returns, and qualifications of the Members of the National
Assembly."

When the foregoing draft was submitted for approval on February 8, 1935, the
Style Committee, through President Recto, to effectuate the original intention of the
Convention, agreed to insert the phrase "All contests relating to" between the phrase
"judge of" and the words "the election", which was accordingly accepted by the
Convention.
The transfer of the power of determining the election, returns and
qualifications of the members of the legislature long lodged in the legislative body, to
an independent, impartial and non-partisan tribunal, is by no means a mere
experiment in the science of government.
Cushing, in his Law and Practice of Legislative Assemblies (ninth edition,
chapter VI, pages 57, 58), gives a vivid account of the "scandalously notorious"
canvassing of votes by political parties in the disposition of contests by the House of
Commons in the following passages which are partly quoted by the petitioner in his
printed memorandum of March 14, 1936:
"153. From the time when the commons established their right to be the
exclusive judges of the elections, returns, and qualifications of their members,
until the year 1770, two modes of proceeding prevailed, in the determination of
controverted elections, and rights of membership. One of the standing
committee appointed at the commencement of each session, was denominated
the committee of privileges and elections, whose function was to hear and
investigate all questions of this description which might be referred to them, and
to report their proceedings, with their opinion thereupon, to the house, from
time to time. When an election petition was referred to this committee, they

heard the parties and their witnesses and other evidence, and made a report of
all the evidence, together with their opinion thereupon, in the form of
resolutions, which were considered and agreed or disagreed to by the house.
The other mode of proceeding was by a hearing at the bar of the house itself.
When this court was adopted, the case was heard and decided by the house, in
substantially the same manner as by a committee. The committee of privileges
and elections although a select committee was usually what is called an open
one; that is to say, in order to constitute the committee, a quorum of the
members named was required to be present, but all the members of the house
were at liberty to attend the committee and vote if they pleased.
"154. With the growth of political parties in parliament questions
relating to the right of membership gradually assumed a political character; so
that for many years previous to the year 1770, controverted elections had been
tried and determined by the house of commons, as mere party questions, upon
which the strength of contending factions might be tested. Thus, for example, in
1741, Sir Robert Walpole, after repeated attacks upon his government, resigned
his office in consequence of an adverse vote upon the Chippenham election. Mr.
Hatsell remarks, of the trial of election, cases, as conducted under this system,
that 'Every principle of decency and justice were notoriously and openly
prostituted, from whence the younger part of the house were insensibly, but too
successfully, induced to adopt the same licentious conduct in more serious
matters, and in questions of higher importance to the public welfare.' Mr.
George Grenville, a distinguished member of the house of commons, undertook
to propose a remedy for the evil, and, on the 7th of March 1770, obtained the
unanimous leave of the house to bring in a bill, 'to regulate the trial of
controverted elections, or returns of members to serve in parliament.' In his
speech to explain his plan, on the motion for leave, Mr. Grenville alluded to the
existing practice in the following terms: 'Instead of trusting to the merits of their
respective causes, the principal dependence of both parties is their private
interest among us; and it is scandalously notorious that we are an earnestly
canvassed to attend in favor of the opposite sides, as if we were wholly selfelective, and not bound to act by the principles of justice, but by the
discretionary impulse of our own inclinations; nay, it is well known, that in
every contested election, many members of this house, who are ultimately to
judge in a kind of judicial capacity between the competitors, enlist themselves
as parties in the contention, and take upon themselves the partial management of
the very business, upon which they should determine with the strictest
impartiality.'
"155. It was to put an end to the practices thus described, that Mr.
Grenville brought in a bill which met with the approbation of both houses, and
received the royal assent on the 12th of April, 1770. This was the celebrated law
since known by the name of the Grenville Act; of which Mr. Hatsell declares,
that it 'was one of the noblest works, for the honor of the house of commons,
and the security of the constitution, that was ever devised by any minister or

statesman.' It is probable, that the magnitude of the evil, or the apparent success
of the remedy, may have led many of the contemporaries of the measure to the
information of a judgment, which was not acquiesced in by some of the leading
statesmen of the day, and has not been entirely confirmed by subsequent
experience. The bill was objected to by Lord North, Mr. De Grey, afterwards
chief justice of the common pleas, Mr. Ellis, Mr. Dyson, who had been clerk of
the house, and Mr. Charles James Fox, chiefly on the ground, that the
introduction of the new system was an essential alteration of the constitution of
parliament, and a total abrogation of one of the most important rights and
jurisdictions of the house of commons."

As early as 1868, the House of Commons in England solved the problem of


insuring the non-partisan settlement of the controverted elections of its members by
abdicating its prerogative to two judges of the King's Bench of the High Court of
Justice selected from a rota in accordance with rules of court made for the purpose.
Having proved successful, the practice has become imbedded in English
jurisprudence (Parliamentary Elections Act, 1868 [31 & 32 Vict. c. 125] as amended
by Parliamentary Elections and Corrupt Practices Act, 1879 [42 & 43 Vict. c. 75], s.
2; Corrupt and Illegal Practices Prevention Act, 1883 [46 & 47 Vict. c. 51], s. 70;
Expiring Laws Continuance Act, 1911 [1 & 2 Geo. 5, c. 22]; Laws of England, vol.
XII, p. 408, vol. XXI, p. 787). In the Dominion of Canada, election contests which
were originally heard by the Committee of the House of Commons, are since 1922
tried in the courts. Likewise, in the Commonwealth of Australia, election contests
which were originally determined by each house, are since 1922 tried in the High
Court. In Hungary, the organic law provides that all protests against the election of
members of the Upper House of the Diet are to be resolved by the Supreme
Administrative Court (Law 22 of 1916, chap. 2, art. 37, par. 6). The Constitution of
Poland of March 17, 1921 (art. 19) and the Constitution of the Free City of Danzig of
May 13, 1922 (art. 10) vest the authority to decide contested elections to the Diet or
National Assembly in the Supreme Court. For the purpose of deciding legislative
contests, the Constitution of the German Reich of July 1, 1919 (art. 31), the
Constitution of the Czechoslovak Republic of February 29, 1920 (art. 19) and the
Constitution of the Grecian Republic of June 2, 1927 (art. 43), all provide for an
Electoral Commission.
The creation of an Electoral Commission whose membership is recruited both
from the legislature and the judiciary is by no means unknown in the United States. In
the presidential elections of 1876 there was a dispute as to the number of electoral
votes received by each of the two opposing candidates. As the Constitution made no
adequate provision for such a contingency, Congress passed a law on January 29,
1877 (United States Statutes at Large, vol. 19, chap. 37, pp. 227-229), creating a
special Electoral Commission composed of five members elected by the Senate, five
members elected by the House of Representatives, and five justices of the Supreme
Court, the fifth justice to be selected by the four designated in the Act. The decision of
the commission was to be binding unless rejected by the two houses voting separately.

Although there is not much of a moral lesson to be derived from the experience of
America in this regard, judging from the observations of Justice Field, who was a
member of that body on the part of the Supreme Court (Countryman, the Supreme
Court of the United States and its Appellate Power under the Constitution [Albany,
1913]-Relentless Partisanship of Electoral Commission, p. 25 et seq.), the experiment
has at least abiding historical interest.
The members of the Constitutional Convention who framed our fundamental
law were in their majority men mature in years and experience. To be sure, many of
them were familiar with the history and political development of other countries of
the world. When, therefore, they deemed it wise to create an Electoral Commission as
a constitutional organ and invested it with the exclusive function of passing upon and
determining the election, returns and qualifications of the members of the National
Assembly, they must have done so not only in the light of their own experience but
also having in view the experience of other enlightened peoples of the world. The
creation of the Electoral Commission was designed to remedy certain evils of which
the framers of our Constitution were cognizant. Notwithstanding the vigorous
opposition of some members of the Convention to its creation, the plan, as
hereinabove stated, was approved by that body by a vote of 98 against 58. All that can
be said now is that, upon the approval of the Constitution, the creation of the Electoral
Commission is the expression of the wisdom and "ultimate justice of the people".
(Abraham Lincoln, First Inaugural Address, March 4, 1861.).
From the deliberations of our Constitutional Convention it is evident that the
purpose was to transfer in its totality all the powers previously exercised by the
legislature in matters pertaining to contested elections of its members, to an
independent and impartial tribunal. It was not so much the knowledge and
appreciation of contemporary constitutional precedents, however, as the long-felt
need of determining legislative contests devoid of partisan considerations which
prompted the people, acting through their delegates to the Convention, to provide for
this body known as the Electoral Commission. With this end in view, a composite
body in which both the majority and minority parties are equally represented to off-set
partisan influence in its deliberations was created, and further endowed with judicial
temper by including in its membership three justices of the Supreme Court.
The Electoral Commission is a constitutional creation, invested with the
necessary authority in the performance and execution of the limited and specific
function assigned to it by the Constitution. Although it is not a power in our tripartite
scheme of government, it is, to all intents and purposes, when acting within the limits
of its authority, an independent organ. It is, to be sure, closer to the legislative
department than to any other. The location of the provision (section 4) creating the
Electoral Commission under Article VI entitled "Legislative Department" of our
Constitution is very indicative. Its composition is also significant in that it is
constituted by a majority of members of the legislature. But it is a body separate from
and independent of the legislature.

The grant of power to the Electoral Commission to judge all contests relating
to the election, returns and qualifications of members of the National Assembly, is
intended to be as complete and unimpaired as if it had remained originally in the
legislature. The express lodging of that power in the Electoral Commission is an
implied denial of the exercise of that power by the National Assembly. And this is as
effective a restriction upon the legislative power as an express prohibition in the
Constitution (Ex parte Lewis, 45 Tex. Crim. Rep., 1; State vs. Whisman, 36 S. D.,
260; L. R. A., 1917B, 1). If we concede the power claimed in behalf of the National
Assembly that said body may regulate the proceedings of the Electoral Commission
and cut off the power of the commission to lay down the period within which protests
should be filed, the grant of power to the commission would be ineffective. The
Electoral Commission in such case would be invested with the power to determine
contested cases involving the election, returns and qualifications of the members of
the National Assembly but subject at all times to the regulative power of the National
Assembly. Not only would the purpose of the framers of our Constitution of totally
transferring this authority from the legislative body be frustrated, but a dual authority
would be created with the resultant inevitable clash of powers from time to time. A
sad spectacle would then be presented of the Electoral Commission retaining the bare
authority of taking cognizance of cases referred to, but in reality without the necessary
means to render that authority effective whenever and wherever the National
Assembly has chosen to act, a situation worse than that intended to be remedied by
the framers of our Constitution. The power to regulate on the part of the National
Assembly in procedural matters will inevitably lead to the ultimate control by the
Assembly of the entire proceedings of the Electoral Commission, and, by indirection,
to the entire abrogation of the constitutional grant. It is obvious that this result should
not be permitted.
We are not insensible to the impassioned argument of the learned counsel for
the petitioner regarding the importance and necessity of respecting the dignity and
independence of the National Assembly as a coordinate department of the government
and of according validity to its acts, to avoid what he characterized would be
practically an unlimited power of the commission in the admission of protests against
members of the National Assembly. But as we have pointed out hereinabove, the
creation of the Electoral Commission carried with it ex necesitate rei the power
regulative in character to limit the time within which protests intrusted to its
cognizance should be filed. It is a settled rule of construction that where a general
power is conferred or duty enjoined, every particular power necessary for the exercise
of the one or the performance of the other is also conferred (Cooley, Constitutional
Limitations, eighth ed., vol. I, pp. 138, 139). In the absence of any further
constitutional provision relating to the procedure to be followed in filing protests
before the Electoral Commission, therefore, the incidental power to promulgate such
rules necessary for the proper exercise of its exclusive power to judge all contests
relating to the election, returns and qualifications of members of the National

Assembly, must be deemed by necessary implication to have been lodged also in the
Electoral Commission.
It is, indeed, possible that, as suggested by counsel for the petitioner, the
Electoral Commission may abuse its regulative authority by admitting protests beyond
any reasonable time, to the disturbance of the tranquillity and peace of mind of the
members of the National Assembly. But the possibility of abuse is not an argument
against the concession of the power as there is no power that is not susceptible of
abuse. In the second place, if any mistake has been committed in the creation of an
Electoral Commission and in investing it with exclusive jurisdiction in all cases
relating to the election, returns, and qualifications of members of the National
Assembly, the remedy is political, not judicial, and must be sought through the
ordinary processes of democracy. All the possible abuses of the government are not
intended to be corrected by the judiciary. We believe, however, that the people in
creating the Electoral Commission reposed as much confidence in this body in the
exclusive determination of the specified cases assigned to it, as they have given to the
Supreme Court in the proper cases entrusted to it for decision. All the agencies of the
government were designed by the Constitution to achieve specific purposes, and each
constitutional organ working within its own particular sphere of discretionary action
must be deemed to be animated with the same zealand honesty in accomplishing the
great ends for which they were created by the sovereign will. That the actuations of
these constitutional agencies might leave much to be desired in given instances, is
inherent in the imperfections of human institutions. In the third place, from the fact
that the Electoral Commission may not be interfered with in the exercise of its
legitimate power, it does not follow that its acts, however illegal or unconstitutional,
may not be challenged in appropriate cases over which the courts may exercise
jurisdiction.
But independently of the legal and constitutional aspects of the present case,
there are considerations of equitable character that should not be overlooked in the
appreciation of the intrinsic merits of the controversy. The Commonwealth
Government was inaugurated on November 15, 1935, on which date the Constitution,
except as to the provisions mentioned in section 6 of Article XV thereof, went into
effect. The new National Assembly convened on November 25th of that year, and the
resolution confirming the election of the petitioner, Jose A. Angara, was approved by
that body on December 3, 11935. The protest by the herein respondent Pedro Ynsua
against the election of the petitioner was filed on December 9 of the same year. The
pleadings do not show when the Electoral Commission was formally organized but it
does appear that on December 9, 1935, the Electoral Commission met for the first
time and approved a resolution fixing said date as the last day for the filing of election
protests. When, therefore, the National Assembly passed its resolution of December 3,
1935, confirming the election of the petitioner to the National Assembly, the Electoral
Commission had not yet met; neither does it appear that said body has actually been

organized. As a matter of fact, according to certified copies of official records on file


in the archives division of the National Assembly attached to the record of this case
upon the petition of the petitioner, the three justices of the Supreme Court and the six
members of the National Assembly constituting the Electoral Commission were
respectively designated only on December 4 and 6, 1935. If Resolution No. 8 of the
National Assembly confirming non-protested elections of members of the National
Assembly had the effect of limiting or tolling the time for the presentation of protests,
the result would be that the National Assembly on the hypothesis that it still
retained the incidental power of regulation in such cases had already barred the
presentation of protests before the Electoral Commission had had time to organize
itself and deliberate on the mode and method to be followed in a matter entrusted to is
exclusive jurisdiction by the Constitution. This result was not and could not have been
contemplated,and should be avoided.
From another angle, Resolution No. 8 of the National Assembly confirming the
election of members against whom no protests had been filed at the time of its
passage on December 3, 1935, can not be construed as a limitation upon the time for
the initiation of election contests. While there might have been good reason for the
legislative practice of confirmation of the election of members of the legislature at the
time when the power to decide election contests was still lodged in the legislature,
confirmation alone by the legislature cannot be construed as depriving the Electoral
Commission of the authority incidental to its constitutional power to be "the sole
judge of all contests relating to the election, returns, and qualifications of the
members of the National Assembly", to fix the time for the filing of said election
protests. Confirmation by the National Assembly of the returns of its members against
whose election no protests have been filed is, to all legal purposes, unnecessary. As
contended by the Electoral Commission in its resolution of January 23, 1936,
overruling the motion of the herein petitioner to dismiss the protest filed by the
respondent Pedro Ynsua, confirmation of the election of any member is not required
by the Constitution before he can discharge his duties as such member. As a matter of
fact, certification by the proper provincial board of canvassers is sufficient to entitle a
member-elect to a seat in the National Assembly and to render him eligible to any
office in said body (No. 1, par. 1, Rules of the National Assembly, adopted December
6, 1935).
Under the practice prevailing both in the English House of Commons and in
the Congress of the United States, confirmation is neither necessary in order to entitle
a member-elect to take his seat. The return of the proper election officers in sufficient,
and the member-elect presenting such return begins to enjoy the privileges of a
member from the time that he takes his oath of office (Laws of England, vol. 12, pp.
331, 332; vol. 21, pp. 694, 695; U. S. C. A., Title 2, secs. 21, 25, 26). Confirmation is
in order only in cases of contested elections where the decision is adverse to the
claims of the protestant. In England, the judges' decision or report in controverted
elections is certified to the Speaker of the House of Commons, and the House, upon

being informed of such certificate or report by the Speaker, is required to enter the
same upon the Journals, and to give such directions for confirming or altering the
return, or for the issue of a writ for a new election, or for carrying into execution the
determination as circumstances may require (31 & 32 Vict., c. 125, sec. 13). In the
United States, it is believed, the order or decision of the particular house itself is
generally regarded as sufficient, without any actual alteration or amendment of the
return (Cushing, Law and Practice of Legislative Assemblies, 9th ed., sec. 166).
Under the practice prevailing when the Jones Law was still force, each house
of the Philippine Legislature fixed the time when protests against the election of any
of its members should be filed. This was expressly authorized by section 18 of the
Jones Law making each house the sole judge of the election, returns and qualifications
of its members, as well as by a law (sec. 478, Act No. 3387) empowering each house
to respectively prescribe by resolution the time and manner of filing contest in the
election of members of said bodies. As a matter of formality, after the time fixed by
its rules for the filing of protests had already expired, each house passed a resolution
confirming or approving the returns of such members against whose election no
protests had been filed within the prescribed time. This was interpreted as cutting off
the filing of further protests against the election of those members not theretofore
contested (Amistad vs. Claravall [Isabela], Second Philippine Legislature, RecordFirst Period, p. 89; Urgello vs. Rama [Third District, Cebu], Sixth Philippine
Legislature; Fetalvero vs. Festin [Romblon], Sixth Philippine Legislature, Record
First Period, pp. 637-640; Kintanar vs. Aldanese [Fourth District, Cebu], Sixth
Philippine Legislature, Record-First Period, pp. 1121, 1122; Aguilar vs. Corpus
[Masbate], Eighth Philippine Legislature, Record-First Period, vol. III, No. 56, pp.
892, 893). The Constitution has repealed section 18 of the Jones Law. Act No. 3387,
section 478, must be deemed to have been impliedly abrogated also, for the reason
that with the power to determine all contests relating to the election, returns and
qualifications of members of the National Assembly, is inseparably linked the
authority to prescribe regulations for the exercise of that power. There was thus no
law nor constitutional provision which authorized the National Assembly to fix, as it
is alleged to have fixed on December 3, 1935, the time for the filing of contests
against the election of its members. And what the National Assembly could not do
directly, it could not do by indirection through the medium of confirmation.
Summarizing, we conclude:
(a) That the government established by the Constitution follows fundamentally
the theory of separation of powers into the legislative, the executive and the judicial.
(b) That the system of checks and balances and the overlapping of functions
and duties often makes difficult the delimitation of the powers granted.
(c) That in cases of conflict between the several departments and among the
agencies thereof, the judiciary, with the Supreme Court as the final arbiter, is the only

constitutional mechanism devised finally to resolve the conflict and allocate


constitutional boundaries.
(d) That judicial supremacy is but the power of judicial review in actual and
appropriate cases and controversies, and is the power and duty to see that no one
branch or agency of the government transcends the Constitution, which is the source
of all authority.
(e) That the Electoral Commission is an independent constitutional creation
with specific powers and functions to execute and perform, closer for purposes of
classification to the legislative than to any of the other two departments of the
government.
(f) That the Electoral Commission is the sole judge of all contests relating to
the election, returns and qualifications of members of the National Assembly.
(g) That under the organic law prevailing before the present Constitution went
into effect, each house of the legislature was respectively the sole judge of the
elections, returns, and qualifications of their elective members.
(h) That the present Constitution has transferred all the powers previously
exercised by the legislature with respect to contests relating to the election, returns
and qualifications of its members, to the Electoral Commission.
(i) That such transfer of power from the legislature to the Electoral
Commission was full, clear and complete, and carried with it ex necesitate rei the
implied power inter alia to prescribe the rules and regulations as to the time and
manner of filing protests.
(j) That the avowed purpose in creating the Electoral Commission was to have
an independent constitutional organ pass upon all contests relating to the election,
returns and qualifications of members of the National Assembly, devoid of partisan
influence or consideration, which object would be frustrated if the National Assembly
were to retain the power to prescribe rules and regulations regarding the manner of
conducting said contests.
(k) That section 4 of article VI of the Constitution repealed not only section 18
of the Jones Law making each house of the Philippine Legislature respectively the
sole judge of the elections, returns and qualifications of its elective members, but also
section 478 of Act No. 3387 empowering each house to prescribe by resolution the
time and manner of filing contests against the election of its members, the time and
manner of notifying the adverse party,and bond or bonds, to be required, if any, and to
fix the costs and expenses of contest.
(l) That confirmation by the National Assembly of the election of any member,
irrespective of whether his election is contested or not, is not essential before such
member-elect may discharge the duties and enjoy the privileges of a member of the
National Assembly.

(m) That confirmation by the National Assembly of the election of any


member against whom no protest had been filed prior to said confirmation, does not
and cannot deprive the Electoral Commission of its incidental power to prescribe the
time within which protest against the election of any member of the National
Assembly should be filed.
We hold, therefore, that the Electoral Commission was acting within the
legitimate exercise of its constitutional prerogative in assuming to take cognizance of
the protest filed by the respondent Pedro Ynsua against the election of the herein
petitioner Jose A. Angara, and that the resolution of the National Assembly of
December 3, 1935 can not in any manner toll the time for filing protests against the
election, returns and qualifications of members of the National Assembly, nor prevent
the filing of a protest within such time as the rules of the Electoral Commission might
prescribe.
In view of the conclusion reached by us relative to the character of the
Electoral Commission as a constitutional creation and as to the scope and extent of its
authority under the facts of the present controversy, we deem it unnecessary to
determine whether the Electoral Commission is an inferior tribunal, corporation,
board or person within the purview of sections 226 and 516 of the Code of Civil
Procedure.
The petition for a writ of prohibition against the Electoral Commission is
hereby denied, with costs against the petitioner. So ordered.
Avancea, C.J., Diaz, Concepcion and Horrilleno, JJ., concur.

Separate Opinions
ABAD SANTOS, J., concurring:
I concur in the result and in most of the views so ably expressed in the
preceding opinion. I am, however, constrained to withhold my assent to certain
conclusions therein advanced.
The power vested in the Electoral Commission by the Constitution of judging
of all contests relating to the election, returns, and qualifications of the members of
the National Assembly, is judicial in nature. (Thomas vs. Loney, 134 U.S., 372; 33
Law. ed., 949, 951.) On the other hand, the power to regulate the time in which notice
of a contested election may be given, is legislative in character. (M'Elmoyle vs.
Cohen, 13 Pet., 312; 10 Law. ed., 177; Missouri vs. Illinois, 200 U. S., 496; 50 Law.
ed., 572.).
It has been correctly stated that the government established by the Constitution
follows fundamentally the theory of the separation of powers into legislative,
executive, and judicial. Legislative power is vested in the National Assembly. (Article

VI, sec. 1.) In the absence of any clear constitutional provision to the contrary, the
power to regulate the time in which notice of a contested election may be given, must
be deemed to be included in the grant of legislative power to the National Assembly.
The Constitution of the United States contains a provision similar to that found
in Article VI, section 4, of the Constitution of the Philippines. Article I, section 5, of
the Constitution of the United States provides that each house of the Congress shall be
the judge of the elections, returns, and qualifications of its own members.
Notwithstanding this provision, the Congress has assumed the power to regulate the
time in which notice of a contested election may be given. Thus section 201, Title 2,
of the United States Code Annotated prescribes:
"Whenever any person intends to contest an election of any Member of
the House of Representatives of the united States, he shall, within thirty days
after the result of such election shall have been determined by the office or
board of canvassers authorized by law to determine the same, give notice, in
writing, to the Member whose seat he designs to contest, of his intention to
contest the same, and, in such notice, shall specify particularly the grounds upon
which he relies in the contest." (R.S., par. 105.)

The Philippine Autonomy Act, otherwise known as the Jones Law, also
contained a provision to the effect that the Senate and House of Representatives,
respectively, shall be the sole judges of the elections, returns, and qualifications of
their elective members. Notwithstanding this provision, the Philippine Legislature
passed the Election Law, section 478 of which reads as follows:
"The Senate and the House of Representatives shall by resolution
respectively prescribe the time and manner of filing contest in the election of
members of said bodies, the time and manner of notifying the adverse party, and
bond or bonds, to be required, if any, and shall fix the costs and expenses of
contest which may be paid from their respective funds."

The purpose sought to be attained by the creation of the Electoral Commission


was not to erect a body that would be above the law, but to raise legislative election
contests from the category of political to that of justiciable questions. The purpose
was not to place the commission beyond the reach of the law, but to insure the
determination of such contests with due process of law.
Section 478 of the Election Law was in force at the time of the adoption of the
Constitution, Article XV, section 2, of which provides that
"All laws of the Philippine Islands shall continue in force until the
inauguration of the Commonwealth of the Philippines; thereafter, such laws
shall remain operative, unless inconsistent with this Constitution, until
amended, altered, modified, or repealed by the National Assembly, and all
references in such laws to the Government or officials of the Philippine Islands
shall be construed, in so far as applicable, to refer to the Government and
corresponding officials under this Constitution."

The manifest purpose of this constitutional provision was to insure the orderly
processes of government, and to prevent any hiatus in its operation after the
inauguration of the Commonwealth of the Philippines. It was thus provided that all
laws of the Philippine Islands shall remain operative even after the inauguration of the
Commonwealth of the Philippines, unless inconsistent with the Constitution, and that
all references in such laws to the government or officials of the Philippine Islands
shall be construed, in so far as applicable, to refer to the government and
corresponding officials under the Constitution. It would seem to be consistent not
only with the spirit but with the letter of the Constitution to hold that section 478 of
the Election Law remains operative and should now be construed to refer to the
Electoral Commission, which, in so far as the power to judge election contests is
concerned, corresponds to either the Senate or the House of Representatives under the
former regime. It is important to observe in this connection that said section 478 of
the Election Law vested the power to regulate the time and manner in which notice of
a contested election may be given, not in the Philippine Legislature but in the Senate
and House of Representatives singly. In other words, the authority to prescribe the
time and manner of filing contests in the election of members of the Philippine
Legislature was by statute lodged separately in the bodies clothed with power to
decide such contests. Construing section 478 of the Election Law to refer to the
National Assembly, as required by Article XV, section 2, of the Constitution, it seems
reasonable to conclude that the authority to prescribe the time and manner of filing
contests in the election of members of the National Assembly is vested in the
Electoral Commission, which is now the body clothed with power to decide such
contests.
In the light of what has been said, the resolution of the National Assembly of
December 3, 1935, could not have the effect of barring the right of the respondent
Pedro Ynsua to contest the election of the petitioner. By the same token, the Electoral
Commission was authorized by law to adopt its resolution of December 9, 1935,
which fixed the time within which written written contests must be filed with the
commission.
Having been filed within the time fixed by its resolution, the Electoral
Commission has jurisdiction to hear and determine the contest filed by the respondent
Pedro Ynsua against the petitioner Jose A. Angara. Writ denied.
|||

(Angara v. Electoral Commission, G.R. No. 45081, [July 15, 1936], 63 PHIL 139-187)

FIRST DIVISION
[G.R. No. L-38025. August 20, 1979.]
DANTE O. CASIBANG, petitioner, vs. HONORABLE NARCISO A.
AQUINO, Judge of the Court of First Instance of Pangasinan, Branch
XIV, and REMEGIO P. YU, respondents.
Nicanor S. Bautista and Agaton D. Yaranon for petitioner.
Bince, Sevilleja, Agsalud & Associates for respondents.

DECISION

MAKASIAR, J :
p

Respondent Remigio P. Yu was proclaimed on November 9, 1971 as the elected Mayor


of Rosales, Pangasinan in the 1971 local elections, by a plurality of 501 votes over his
only rival, herein petitioner, who seasonably filed on November 24, 1971 a protest
against the election of the former with the Court of First Instance of Pangasinan, on the
grounds of (1) anomalies and irregularities in the appreciation, counting and
consideration of votes in specified electoral precincts; (2) terrorism; (3) rampant vote
buying; (4) open voting or balloting; and (5) excessive campaign expenditures and other
violations of the 1971 Election Code.
Cdpr

Respondent Yu filed on November 29, 1971 his answer and counter-protest which
petitioner answered on December 10, 1971. However, respondent Yu withdrew his
counter-protest after waiving the opening and revision of the ballot boxes specified
therein.
Proceedings therein continued with respect to the election protest of petitioner before the
Court of First Instance of Pangasinan, Branch XIV, presided by respondent Judge, who
initially took cognizance of the same as it is unquestionably a justiciable controversy.
In the meantime or on September 21, 1972, the incumbent President of the Republic of
the Philippines issued Proclamation No. 1081, placing the entire country under Martial
Law; and two months thereafter, more or less, or specifically on November 29, 1972, the
1971 Constitutional Convention passed and approved a Constitution to supplant the 1935
Constitution; and the same was thereafter overwhelmingly ratified by the sovereign
people of the Republic of the Philippines on January 17, 1973; and on March 31, 1973,

this Court declared that "there is no further judicial obstacle to the new Constitution
being considered in force and effect" (Javellana vs. Executive Secretary, 50 SCRA 30
[1973]).
LLpr

Thereafter or on October 10, 1973, at which time petitioner had already completed
presenting his evidence and in fact had rested his case, respondent Yu moved to dismiss
the election protest of petitioner on the ground that the trial court had lost jurisdiction
over the same in view of the effectivity of the 1973 Constitution by reason of which
(principally) Section 9 of Article XVII [Transitory Provisions] and Section 2 of Article
XI a political question has intervened in the case. Respondent Yu contended that ". .
the provisions in the 1935 Constitution relative to all local governments have been
superseded by the 1973 Constitution. Therefore, all local government should adhere to
our Parliamentary form of government. This is clear in the New Constitution under its
Article XI." He further submitted that local elective officials (including mayors) have no
more four-year term of office. They are only in office at the pleasure of the appointing
power embodied in the New Constitution, and under Section 9 of Article XVII.
prcd

Petitioner vigorously opposed the motion to dismiss, and, relying mainly on Sections 7
and 8 of Article XVII (Transitory Provisions) of the New Constitution and G.O. No. 3,
contended that the New Constitution did not divest the Court of First Instance of its
jurisdiction to hear and decide election protests pending before them at the time of its
ratification and effectivity; that the ratification of the New Constitution and its effectivity
did not automatically abolish the office and position of municipal mayor nor has it
automatically cut short the tenure of the office, so as to render the issue as to who is the
lawfully elected candidate to said office or position moot and academic; that election
protests involve public interest such that the same must be heard until terminated and
may not be dismissed on mere speculation that the office involved may have been
abolished, modified or reorganized; and that the motion to dismiss was filed manifestly
for delay.
Respondent Yu replied pointing out, among others, that petitioner failed to refute the
issue of political question; and reiterated his stand, expanding his arguments on the
political question, thus:
"It is an undeniable fact that this case has its source from the 1971 elections for
municipal mayoralty. Unsatisfied with the counting of votes held by the Board
of Canvassers, the herein protestant filed this present case. And before the
termination of the same and pending trial, the Filipino people in the exercise of
their free will and sovereign capacity approved a NEW CONSTITUTION, thus
a NEW FORM OF GOVERNMENT-PARLIAMENTARY IN FORM was
enforced. We find this provision under Article XI of the New Constitution,
which provides:

'SEC. 2. The National Assembly shall enact a local government


code which may not thereafter be amended except by a majority vote of
all its members, defining a more responsive and accountable local
government structure with an effective system of recall, allocating
among the different local government units their powers,
responsibilities, and resources, and providing for the qualifications,
election and removal, term, salaries, powers, functions, and duties of
local officials, and all other matters relating to the organization and
operation of the local units. However, any change in the existing form of
local government shall not take effect until ratified by a majority of the
votes cast in a plebiscite called for the purpose.'
It is respectfully submitted that the contention of the protestant to the
effect that the New Constitution 'shows that the office of the Municipal
Mayor has not been abolished . . .,' is not ACCURATE. Otherwise, the
provisions of Section 9 of Article XVII, is meaningless.
'All officials and employees in the existing Government of the
Republic shall continue in office until otherwise provided by law or
decreed by the incumbent President of the Philippines, . . ..'
In the above-quoted provision is the protection of the officials and
employees working in our government, otherwise, by the force of the New
Constitution they are all out of the government offices. In fact, in the case
abovecited (Javellana) we are all performing our duties in accordance with
the New Constitution.
"Therefore, election cases of the 1935 Constitution being interwoven in the
political complexion of our new Constitution should be dismissed because only
those incumbent official and employees existing in the new government are
protected by the transitorial provisions of the New Fundamental Law of the
Land. The protestant, we respectfully submit, is not covered by the provisions of
Section 9 Article XVII of the Constitution. And in case he will win in this
present case he has no right to hold the position of mayor of the town of
Rosales, Pangasinan, because he was not then an official of the government at
the time the New Constitution was approved by the Filipino People. His right if
proclaimed a winner is derived from the 1935 Constitution which is changed by
the Filipino people."

On December 18, 1973, the trial court, presided by respondent Judge, sustained the
political question theory of respondent Yu and ordered the dismissal of the electoral
protest. Thus:
"There is no dispute that the Filipino people have accepted and submitted to a
new Constitution to replace the 1935 Constitution, and that we are now living
under its aegis and protection. . . .

xxx xxx xxx


"Under Section 9, Article XVII, of the new Constitution, above-quoted, only
those officials and employees of the existing Government of the Republic of the
Philippines like the protestee herein, are given protection and are authorized to
continue in office at the pleasure of the incumbent President of the Philippines,
while under Section 2 of Article XI of the new Constitution, also above-quoted,
the intention to completely revamp the whole local government structure,
providing for different qualifications, election and removal, term, salaries,
powers, functions, and duties, is very clear. These present questions of policy,
the necessity and expediency of which are outside the range of judicial review.
With respect to the fate of incumbent officials and employees in the existing
Government of the Republic of the Philippines, as well as to the qualifications,
election and removal, term of office, salaries, and powers of all local officials
under the parliamentary form of government these have been entrusted or
delegated by the sovereign people or has reserved it to be settled by the
incumbent Chief Executive or by the National Assembly with full discretionary
authority therefor. As if to supplement these delegated powers, the people have
also decreed in a referendum the suspension of all elections. Thus, in the United
States, questions relating to what persons or organizations constitute the lawful
government of a state of the Union (Luther vs. Borden, 7 How. 1, 12, L. Ed.
58), and those relating to the political status of a state (Highland Farms Dairy
vs. Agnew, 57 S. et. 549, 300 U.S. 608, 81 L.ed. 835), have been held to be
political and not for the judiciary to determine.
"To the mind of the Court, therefore, the ratification and effectivity of the new
Constitution has tainted this case with a political complexion above and beyond
the power of judicial review. As fittingly commented by Mr. Justice Antonio in
a separate opinion in the Javellana, et al. cases, 69 O.G. No. 36, September 3,
1973, p. 8008:
'The essentially political nature of the question is at once
manifest by understanding that in the final analysis, what is assailed is
not merely the validity of Proclamation No. 1102 of the President, which
is merely declaratory of the fact of the approval or ratification, but the
legitimacy of the government. It is addressed more to the frame-work
and political character of this government which now functions under
the new Charter. It seeks to nullify a Constitution that is already
effective. In other words, where a complete change in the fundamental
law has been effected through political action, the Court whose existence
is affected by such a change is, in the words of Mr. Meville Fuller
Weston, 'precluded from passing upon the fact of change by a logical
difficulty which is not to be surmounted,' as the change relates to the
existence of a prior point in the Court's 'chain of title' to its authority and
'does not relate merely to a question of the horizontal distribution of
powers.' It involves a matter which 'the sovereign has entrusted to the

so-called political departments or has reserved to be settled by its own


extra-governmental action.' The present Government functions under the
new Constitution which has become effective through political action.
Judicial power presupposes an established government and an effective
constitution. If it decides at all as a court, it necessarily affirms the
existence and authority of the Government under which it is exercising
judicial power.'

"The Court is not unaware of provisions of the new Constitution, particularly


Sections 7 and 8, Article XVII (Transitory Provisions) decreeing that all
existing laws not inconsistent with the new Constitution shall remain operative
until amended, modified, or repealed by the National Assembly, and that all
courts existing at the time of the ratification of the said new Constitution shall
continue and exercise their jurisdiction until otherwise provided by law in
accordance with the new Constitution, and all cases pending in said courts shall
be heard, tried and determined under the laws then in force. Again, to the mind
of the Court, these refer to matters raised in the enforcement of existing laws or
in the invocation of a court's jurisdiction which have not been 'entrusted to the
so-called political department or has reserved to be settled by its own extragovernmental action."'

Hence, this petition.


WE reverse.
The thrust of the aforesaid political question theory of respondent Yu is that the 1973
Constitution, through Section 9 of Article XVII thereof, protected only those incumbents,
like him, at the time of its ratification and effectivity and are the only ones authorized to
continue in office and their term of office as extended now depends on the pleasure of, as
the same has been entrusted or committed to, the incumbent President of the Philippines
or the Legislative Department; and that Section 2 of Article XI thereof entrusted to the
National Assembly the revamp of the entire local government structure by the enactment
of a local government code, thus presenting a question of policy, the necessity and
expediency of which are outside the range of judicial review. In short, for the respondent
Judge to still continue assuming jurisdiction over the pending election protest of
petitioner is for him to take cognizance of a question or policy "in regard to which full
discretionary authority has been delegated to the Legislative or Executive branch of the
government."
LLpr

There is an imperative need to re-state pronouncements of this Court on the new


Constitution which are decisive in the resolution of the political question theory of
respondent Yu.
WE ruled:
1. That Section 9 of Article XVII of the 1973 Constitution did not render moot and
academic pending election protest cases (Santos vs. Castaeda, 65 SCRA 114 [1975];
Equipilag vs. Araula, 60 SCRA 211 [1974]; Nuez vs. Averia, 57 SCRA 726 [1974];
Paredes vs. Abad, L-36927, Sunga vs. Mosqueda, L-37715, Valley vs. Caro, L-38331, 56
SCRA 522, [1974]).
2. That "the constitutional grant of privilege to continue in office, made by the new
Constitution for the benefit of persons who were incumbent officials or employees of the
Government when the new Constitution took effect, cannot be fairly construed as
indiscriminately encompassing every person who at the time happened to be performing
the duties of an elective office, albeit under protest or contest" and that "subject to the
constraints specifically mentioned in Section 9, Article XVII of the Transitory
Provisions, it neither was, nor could have been the intention of the framers of our new
fundamental law to disregard and shunt aside the statutory right of a candidate for
elective position who, within the time-frame prescribed in the Election Code of 1971,
commenced proceedings beamed mainly at the proper determination in a judicial forum
of a proclaimed candidate-elect's right to the contested office."' (Santos vs. Castaeda,
supra); and We rationalized that "the Constitutional Convention could not have intended,
as in fact it did not intend, to shielf or protect those who had been unduly elected. To hold
that the right of the herein private respondents to the respective offices which they are
now holding, may no longer be subject to question, would be tantamount to giving a
stamp of approval to what could have been an election victory characterized by fraud,
threats, intimidation, vote buying, or other forms of irregularities prohibited by the
Election Code to preserve inviolate the sanctity of the ballot." (Paredes, Sunga and Valley
cases, supra).
3. That "the right of the private respondents (protestees) to continue in office indefinitely
arose not only by virtue of Section 9 of Article XVII of the New Constitution but
principally from their having been proclaimed elected to their respective positions as a
result of the November 8, 1971 elections. Therefore, if in fact and in law, they were not
duly elected to their respective positions and consequently, have no right to hold the
same, perform their functions, enjoy their privileges and emoluments, then certainly, they
should not be allowed to enjoy the indefinite term of office given to them by said
constitutional provision" (Paredes, Sunga and Valley cases, supra).
4. That "until a subsequent law or presidential decree provides otherwise, the right of
respondent (protestee) to continue as mayor rests on the legality of his election which has

been protested by herein petitioner. Should the court decide adversely against him the
electoral protest, respondent (protestee) would cease to be mayor even before a law or
presidential decree terminates his tenure of office pursuant to said Section 9 of Article
XVII of the 1973 Constitution" (Equipilag, supra).
5. That "there is a difference between the 'term' of office and the 'right' to hold an office.
A 'term' of office is the period during which an elected officer or appointee is entitled to
hold office, perform its functions and enjoy its privileges and emoluments. A 'right' to
hold a public office is the just and legal claim to hold and enjoy the powers and
responsibilities of the office. In other words, the 'term' refers to the period, duration of
length of time during which the occupant of an office is entitled to stay therein whether
such period be definite or indefinite. Hence, although Section 9, Article XVII of the New
Constitution made the term of the petitioners indefinite, it did not foreclose any challenge
by the herein petitioners, in an election protest, of the 'right' of the private respondents to
continue holding their respective office. What has been directly affected by said
constitutional provision is the 'term' to the office, although the 'right' of the incumbent to
an office which he is legally holding is co-extensive with the 'term' thereof," and that "it
is erroneous to conclude that under Section 9, Article XVII of the New Constitution, the
term of office of the private respondents expired, and that they are now holding their
respective offices under a new term. We are of the opinion that they hold their respective
offices still under the term to which they have been elected, although the same is now
indefinite" (Paredes, Sunga and Valley cases, supra).
6. That the New Constitution recognized the continuing jurisdiction of courts of first
instance to hear, try and decide election protests: "Section 7 of Article XVII of the New
Constitution provides that 'all existing laws not inconsistent with this Constitution shall
remain operative until amended, modified or repealed by the National Assembly.' And
there has been no amendment, modification or repeal of Section 220 of the Election Code
of 1971 which gave the herein petitioners the right to file an election contest against those
proclaimed elected," and "according to Section 8, Article XVII of the New Constitution
'all courts existing at the time of the ratification of this Constitution shall continue and
exercise their jurisdiction until otherwise provided by law in accordance with this
Constitution, and all cases pending in said courts shall be heard, tried and determined
under the laws then in force.' Consequently, the Courts of First Instance presided over by
the respondent-Judges should continue and exercise their jurisdiction to hear, try and
decide the election protests filed by herein petitioners" (Santos, Equipilag, Nuez,
Paredes, Sunga and Valley cases, supra).
While under the New Constitution the Commission on Elections is now the sole judge of
all contests relating to the elections, returns, and qualifications of members of the
National Assembly as well as elective provincial and city officials (par. 2 of Sec. 2,
Article XII-C of the 1973 Constitution), such power does not extend to electoral contests
concerning municipal elective positions.

7. That General Order No. 3, issued by the President of the Philippines merely reiterated
his powers under Section 9 of Article XVII of the New Constitution. The President did
not intend thereby to modify the aforesaid constitutional provision (Equipilag, supra).
General Order No. 3, as amended by General Order No. 3-A, does not expressly include
electoral contests of municipal elective positions as among those removed from the
jurisdiction of the courts; for said General Order, after affirming the jurisdiction of the
Judiciary to decide in accordance with the existing laws on criminal and civil cases,
simply removes from the jurisdiction of the Civil Court certain crimes specified therein
as well as the validity, legality or constitutionality of any decree, order or acts issued by
the President or his duly designated representative or by public servants pursuant to his
decrees and orders issued under Proclamation No. 1081.
8. That General Order No. 3 may not be invoked by the courts to avoid exercise of their
jurisdiction because to do so "is nothing short of unwarranted abdication of judicial
authority, which no judge duly imbued with the implications of the paramount principle
of independence of the judiciary should ever think of doing. It is unfortunate indeed that
respondent Judge is apparently unaware that it is a matter of highly significant historical
fact that this Court has always deemed General Order No. 3 including its amendment by
General Order No. 3-A as practically inoperative even in the light of Proclamation No.
1081 of September 21, 1972 and Proclamation No. 1104 of January 17, 1973, placing the
whole Philippines under martial law. While the members of the Court are not agreed on
whether or not particular instances of attack against the validity of certain Presidential
decrees raise political questions which the Judiciary would not interfere with, there is
unanimity among Us in the view that it is for the Court rather than the Executive to
determine whether or not We may take cognizance of any given case involving the
validity of acts of the Executive Department purportedly under the authority of the
martial law proclamations" (Lina vs. Purisima, 3 PHILAJUR 605, 610-611, 82 SCRA
344 [1978]).

II
1. In the light of the foregoing pronouncements, We hold that the electoral protest case
herein involved has remained a justiciable controversy. No political question has ever
been interwoven into this case. Nor is there any act of the incumbent President or the
Legislative Department to be indirectly reviewed or interfered with if the respondent
Judge decides the election protest. The term "political question" connotes what it means
in ordinary parlance, namely, a question of policy. It refers to those questions which
under the Constitution, are to be decided by the people in their sovereign capacity; or in
regard to which full discretionary authority has been delegated to the legislative or
executive branch of the government. It is concerned with issues dependent upon the

wisdom, not legality, of a particular measure" (Taada vs. Cuenco, L-1052, Feb. 28,
1957). A broader definition was advanced by U.S. Supreme Court Justice Brennan in
Baker vs. Carr (369 U.S. 186 [1962): "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 non-judicial discretion; or the impossibility of a
court's undertaking independent resolution without expressing lack of respect due
coordinate branches of the 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" (p. 217). And
Chief Justice Enrique M. Fernando, then an Associate Justice, of this Court fixed the
limits of the term, thus: "The term has been made applicable to controversies clearly nonjudicial and therefore beyond its jurisdiction or to an issue involved in a case
appropriately subject to its cognizance, as to which there has been a prior legislative or
executive determination to which deference must be paid (Cf. Vera vs. Avelino, 77 Phil.
192 [1946]; Lopez vs. Roxas, L-25716, July 28, 1966, 17 SCRA 756; Gonzales vs.
Commission on Elections, L-28196, Nov. 9, 1967, 21 SCRA 774). It has likewise been
employed loosely to characterize a suit where the party proceeded against is the President
or Congress, or any branch thereof (Cf. Planas vs. Gil, 67 Phil. 62 [1937]; Vera vs.
Avelino, 77 Phil. 192 [1946]). If to be delimited with accuracy; 'political questions
should refer to such as would under the Constitution be decided by the people in their
sovereign capacity or in regard to which full discretionary authority is vested either in the
President or Congress. It is thus beyond the competence of the judiciary to pass upon. . .
." (Lansang vs. Garcia, 42 SCRA 448, 504-505 [1971]).
2. The only issue in the electoral protest case dismissed by respondent Judge on the
ground of political question is who between protestant herein petitioner and
protestee herein respondent Yu was the duly elected mayor of Rosales, Pangasinan,
and legally entitled to enjoy the rights, privileges and emoluments appurtenant thereto
and to discharge the functions, duties and obligations of the position. If the protestee's
election is upheld by the respondent Judge, then he continues in office; otherwise, it is the
protestant, herein petitioner. That is the only consequence of a resolution of the issue
therein involved a purely justiciable question or controversy as it implies a given right,
legally demandable and enforceable, an act or omission violative of said right, and a
remedy, granted or sanctioned by law, for said breach of right (Tan vs. Republic, 107
Phil. 632-633 [1960]). Before and after the ratification and effectivity of the New
Constitution, the nature of the aforesaid issue as well as the consequences of its
resolution by the Court, remains the same as above-stated.
3. Any judgment to be made on that issue will not in any way collide or interfere with the
mandate of Section 9 of Article XVII of the New Constitution, as it will merely resolve
who as between protestant and protestee is the duly elected mayor of Rosales,

Pangasinan; hence, entitled to enjoy the extended term as mandated by said provision of
the New Constitution. As construed by this Court, the elective officials referred to in
Section 9 of Article XVII are limited to those duly elected as the right to said extended
term was not personal to whosoever was incumbent at the time of the ratification and
effectivity of the New Constitution. Nor would such judgment preempt, collide or
interfere with the power or discretion entrusted by the New Constitution to the incumbent
President or the Legislative Department, with respect to the extended term of the duly
elected incumbents; because whoever between protestant and protestee is declared the
duly elected mayor will be subject always to whatever action the President or the
Legislative Department will take pursuant thereto.
LLjur

4. Neither does Section 2 of Article XI stigmatize the issue in that electoral protest case
with a political color. For simply, that section allocated unto the National Assembly the
power to enact a local government code "which may not thereafter be amended except by
a majority of all its Members, defining a more responsive and accountable local
government allocating among the different local government units their powers,
responsibilities, and resources, and providing for their qualifications, election and
removal, term, salaries, powers, functions and duties of local officials, and all other
matters relating to the organization and operation of the local units" but ". . . any change
in the existing form of local government shall not take effect until ratified by a majority
of the votes cast in a plebiscite called for the purpose." It is apparent at once that such
power committed by the New Constitution to the National Assembly will not be usurped
or preempted by whatever ruling or judgment the respondent Judge will render in the
electoral protest case. Whoever will prevail in that contest will enjoy the indefinite term
of the disputed office of mayor of Rosales, Pangasinan in the existing set-up of local
government in this country; subject always to whatever change or modification the
National Assembly will introduce when it will enact the local government code.
LLpr

III
The construction made by respondent Judge of Sections 7 and 8 of Article XVII of the
New Constitution ". . . that these refer to matters raised in the enforcement of existing
laws or in the invocation of a court's jurisdiction which have not been 'entrusted to the socalled political department or reserved to be settled by its own extra-governmental
action,"' strained as it is, cannot be sustained in view of the result herein reached on the
issue of political question as well as Our previous pronouncements as above restated on
the same Sections 7 and 8 of the New Constitution.
WHEREFORE, RESPONDENT COURT'S ORDER OF DISMISSAL IS HEREBY SET
ASIDE AND THE RESPONDENT COURT IS DIRECTED TO IMMEDIATELY
PROCEED WITH THE TRIAL AND DETERMINATION OF THE ELECTION
PROTEST BEFORE IT ON THE MERITS. THIS DECISION SHALL BE
IMMEDIATELY EXECUTORY UPON PROMULGATION HEREOF. NO COSTS.

Teehankee (Chairman), Fernandez, Guerrero, De Castro and Melencio-Herrera, JJ.,


concur.
|||

(Casibang v. Aquino, G.R. No. L-38025, [August 20, 1979], 181 PHIL 181-195)

EN BANC
[G.R. No. L-10520. February 28, 1957.]
LORENZO M. TAADA and DIOSDADO MACAPAGAL,
petitioners, vs. MARIANO JESUS CUENCO, FRANCISCO A.
DELGADO, ALFREDO CRUZ, CATALINA CAYETANO,
MANUEL SERAPIO, PLACIDO REYES, and FERNANDO
HIPOLITO, in his capacity as cashier and disbursing officer,
respondents.
Taada, Teehankee & Macapagal for petitioners.
Solicitor General Ambrosio Padilla and Solicitor Troadio T. Quiazon, Jr. for
respondents.
SYLLABUS
1. CONSTITUTIONAL LAW; SELECTION OF MEMBERS OF THE
SENATE ELECTORAL TRIBUNAL; NATURE OF TRIBUNAL. Although the
Constitution provides that the Senate shall choose six (6) Senators to be members of
the Senate Electoral Tribunal, the letter is part neither of Congress nor of the Senate.
(Angara vs. Electoral Commission, 63 Phil., 139; Suanes vs. Chief Accountant, 81
Phil., 818; 46 Off. Gaz., 462.)
2. ID.; ID.; MEANING OF "POLITICAL QUESTION"; CASE AT BAR.
The term "political question" connotes, in legal parlance, what it means in ordinary
parlance, namely, a question of policy. It refers to those questions which, under the
Constitution, are to be decided by the people in their sovereign capacity, or in regard
to which full discretionary authority has been delegated to the Legislature or
executive branch of the Government (16 C. J. S., 413). It is concerned with issues
dependent upon the wisdom, not legality, of a particular measure. In the case at bar,
the question for determination is whether the election of two senators, by the Senate,
as members of the Senate Electoral Tribunal, upon nomination by another senator,
who is a member and spokesman of the party having the largest number of votes in
the Senate, on behalf of its Committee on Rules, contravenes the constitutional
mandate that said members of the tribunal shall be chosen "upon nomination *** of
the party having the second largest number of votes" in the Senate, and hence, is null
and void. This is not a political question. The Senate is not clothed with "full
discretionary authority" in the choice of members of the Senate Electoral Tribunal.
The exercise of its power thereon is subject to constitutional limitations. It is clearly
within the legitimate province of the judicial department to pass upon the validity of

the proceedings in connection therewith. Hence, this Court has, not only jurisdiction,
but, also the duty, to consider and determine the principal issue raised by the parties
herein.
3. ID.; ID.; MAIN OBJECTION IN PROVIDING THE ESTABLISHMENT
OR ELECTORAL TRIBUNALS. The main objective of the framers of the
Constitution in providing for the establishment, first, of an Electoral Commission, and
then of one Electoral Tribunal for each House of Congress was to insure the exercise
of judicial impartiality in the disposition of election contests affecting members of the
lawmaking body. To achieve this purpose, two devices were resorted to, namely: (a)
the party having the largest number of votes, and the party having the second largest
number of votes, in the National Assembly or in each House of Congress, were given
the same number of representatives in the Electoral Commission or Tribunal so that
they may realize that partisan considerations could not control the adjudication of said
cases, and thus be induced to act with greater impartiality; and (b) the Supreme Court
was given in said body the same number of representatives as each one of said
political parties, so that the influence of the former may be decisive and endow said
Commission or Tribunal with judicial temper.
4. ID.; ID.; MOST VITAL FEATURE OF ELECTORAL TRIBUNALS.
The most vital feature of the Electoral Tribunals is the equal representation of the
parties having the largest and the second largest number of votes in each House
therein, and the resulting equilibrium to be maintained by the Justices of the Supreme
Court as members of said Tribunals.
5. ID.; ID.; PROCEDURE PRESCRIBED FOR SELECTION OF MEMBERS;
COMPLIANCE WITH PROCEDURE MANDATORY. The framers of the
Constitution intended to prevent the majority party from controlling the Electoral
Tribunals, and the structure thereof is founded upon the equilibrium between the
majority and the minority parties therein, with the Justice of the Supreme Court, who
are members of said Tribunals, holding the resulting balance of power. The procedure
prescribed in section 11 of Article VI of the Constitution for the selection of members
of the Electoral Tribunals is vital to the role they are called upon to play. It constitutes
the essence of said Tribunals. Hence, compliance with said procedure is mandatory,
and acts performed in violation thereof are null and void.
6. ID.; ID.; PRESENT SITUATION NOT FORESEEN BY FRAMERS OF
THE CONSTITUTION; SPIRIT OF THE LAW PREVAILS OVER ITS LETTER.
While it is true that the membership of the Senate Electoral Tribunal, in the case at
bar, would in effect be limited to seven (7), instead of nine (9), members it must be
conceded that the present composition of the Senate, wherein twenty-three (23) of its
members belong to one party and one (1) member belongs to another, was not
foreseen by the framers of the Constitution. Furthermore, the spirit of the law prevails
over its letter, and the solution herein adopted maintains the spirit of the Constitution,
for partisan considerations cannot be decisive in a tribunal consisting of three (3)
Justices of the Supreme Court, three (3) members nominated by the majority party

and either one (1) or two (2) members nominated by the party having the second
largest number of votes in the House concerned.
7. ID,; ID.; ID.; MODERATING ROLE OF JUSTICES OF THE SUPREME
COURT. If the Nacionalista Party would be allowed to nominate five (5) members
to the Senate Electoral Tribunal instead of three (3), it would have the absolute
majority, since there would be one (1) member of the Citizens Party and three (3)
members of the Supreme Court, and hence, the philosophy underlying the
Constitution would be entirely upset. The equilibrium between the political parties
therein would be destroyed, and, what is worse, the decisive moderating role of the
Justice of the Supreme Court would be wiped out, and, in lieu thereof, the door would
be thrown wide open for the predominance of political considerations in the
determination of election protests pending before said Tribunal, which is precisely
what the fathers of our Constitution earnestly strove to forestall.
8. ID.; ID.; RELIANCE BY THE CONSTITUTION UPON THE METHOD
OF SELECTION ESTABLISHED THEREIN. When the election of members of
Congress to the Electoral Tribunal is made dependent upon the nomination of the
political parties referred to in the Constitution, the latter thereby indicates its reliance
upon the method of selection thus established, regardless of the individual qualities of
those chosen therefor. The delegates to the Convention did not ignore the fact that the
Constitution must limit itself to giving general patterns or norms of action. In
connection, particularly with the composition of the Electorals, they believed that,
even the most well meaning individuals often find it difficult to shake of the bias and
prejudice created by political antagonisms and to resist the demands of political
exigencies, the pressure of which is bound to increase in proportion to the degree of
predominance of the party from which it comes.
9. ID.; ID,; ID.; WAIVER OF CONSTITUTIONAL PROVISIONS
INTENDED FOR ONE'S BENEFIT Although "an individual may waive
constitutional provisions intended for his benefit," particularly those meant for the
protection of his property, and, sometimes, even those tending "to secure his personal
liberty" the power to waive does not exist when "public policy or public morals" are
involved. (11 Am. Jur. 765; I Cooley's Constitutional Limitations, pp. 368-371) The
procedure outlined in the Constitution for the organization of the Electoral Tribunals
was adopted in response to the demands of the commonweal, and it has been held that
"where a statute is founded on public policy, those to whom it applies should not be
permitted to waive its provisions" (82 C. J. S., 874).
10. ID.; ACTS OF CONGRESS; AUTHORITY OF COURTS TO PASS
UPON THE CONSTITUTIONALITY. The provision in the Constitution vesting
the legislative power in the Congress of the Philippines does not detract from the
power of the courts to pass upon the constitutionality of act of Congress. Since
judicial power includes the authority to inquire into the legality of statutes enacted by
the two Houses of Congress, and approved by the Executive there can be no reason
why the validity of an act of one of said Houses like that of any other branch of the

Government, may not be determined in the proper actions. In fact, whenever the
conducting claims of the parties to a litigation cannot properly be settled without
inquiring into the validity of an act of Congress or of either House thereof, the courts
have, not only jurisdiction to pass upon said issue, but, also, the duty to do so, which
cannot be evaded without violating the fundamental law and paving the way to its
eventual destruction.
11. STATUTORY
CONSTRUCTION;
DOCTRINE
OF
CONTEMPORANEOUS
OR
PRACTICAL
CONSTRUCTION;
WHEN
APPLICABLE. As a general rule, it is only in cases of substantial doubt and
ambiguity that the doctrine of contemporaneous or practical construction has any
application. Where the meaning of a constitutional provision is clear, a
contemporaneous or practical executive interpretation thereof is entitled to no weight
and will not be allowed to distort or in any way change its natural meaning. The
reason is that the application of the doctrine of contemporaneous construction is more
restricted as applied to the interpretation of constitutional provisions than when
applied to statutory provisions, and that, except as to matters committed by the
Constitution itself to the discretion of some other department, contemporary or
practical construction is not necessarily binding upon the courts even in a doubtful
case. Hence if in the judgment of the court, such construction is erroneous and its
further application is not made imperative by any paramount consideration of public
policy, it may be rejected (16 C. J. S., 71-72)
12. ID.; CONFLICT BETWEEN SPIRIT AND LETTER OF A STATUTE.
As a general rule of statutory construction, the spirit or intention of a statute prevails
over the letter thereof, and whatever is within the spirit of a statute is within the
statute although it is not within the letter thereof, while that which is within the letter,
but not within the spirit of a statute, is not within the statute, but, the letter of it is not
to be disregarded on the pretext of pursuing its spirit. (82 C.J.S., 613).

DECISION

CONCEPCION, J :
p

Petitioner Lorenzo M. Taada is a member of the Senate of the Philippines,


and President of the Citizens Party, whereas petitioner Diosdado Macapagal, a
member of the House of Representatives of the Philippines, was one of the official
candidates of the Liberal Party for the Senate, at the general elections held in
November, 1955, in which Pacita Madrigal Warns, Lorenzo Sumulong, Quintin
Paredes, Francisco Rodrigo, Pedro Sabido, Claro M. Recto, Domocao Alonto and
Decoroso Rosales, were proclaimed elected. Subsequently, the election of these

Senators-elect who eventually assumed their respective seats in the Senate was
contested by petitioner Macapagal, together with Camilo Osias, Geronima Pecson,
Macario Peralta, Enrique Magalona, Pio Pedrosa and William Chiongbian who
had, also, run for the Senate, in said election in Senate Electoral Case No. 4, now
pending before the Senate Electoral Tribunal.
The Senate, in its session of February 22, 1956, upon nomination of Senator
Cipriano Primicias, on behalf of the Nacionalista Party, chose Senators Jose P. Laurel,
Fernando Lopez and Cipriano Primicias, as members of the Senate Electoral Tribunal.
Upon nomination of petitioner Senator Taada, on behalf of the Citizens Party, said
petitioner was next chosen by the Senate as member of said Tribunal. Then, upon
nomination of Senator Primicias, on behalf of the Committee on Rules of the Senate,
and over the objections of Senators Taada and Sumulong, the Senate choose
respondents Senators Mariano J. Cuenco and Francisco A. Delgado as members of the
same Electoral Tribunal. Subsequently, the Chairman of the latter appointed: (1)
Alfredo Cruz and Catalina Cayetano, as technical assistant and private secretary,
respectively, to Senator Cuenco, as supposed member of the Senate Electoral
Tribunal, upon his recommendation of said respondents; and (2) Manuel Serapio and
Placido Reyes, as technical assistant and private secretary, respectively to Senator
Delgado, as supposed member of said Electoral Tribunal, and upon his
recommendation.
Soon, thereafter, Senator Lorenzo M. Taada and Congressman Diosdado
Macapagal instituted the case at bar against Senators Cuenco and Delgado, and said
Alfredo Cruz, Catalina Cayetano, Manuel Serapio and Placido Reyes, as well as
Fernando Hipolito, in his capacity as Cashier and Disbursing Officer of the Senate
Electoral Tribunal. Petitioners allege that on February 22, 1956, as well as at present,
the Senate consists of 23 Senators who belong to the Nacionalista Party, and one (1)
Senator namely, petitioner, Lorenzo M. Taada belonging to the Citizens Party;
that the Committee on Rules for the Senate, in nominating Senators Cuenco and
Delgado, and the Senate, in choosing these respondents, as members of the Senate
Electoral Tribunal, had "acted absolutely without power or color of authority and in
clear violation . . . of Article VI, Section 11 of the Constitution"; that "in assuming
membership in the Senate Electoral Tribunal, by taking the corresponding oath of
office therefor", said respondents had "acted absolutely without color of appointment
or authority and are unlawfully, and in violation of the Constitution, usurping,
intruding into and exercising the powers of members of the Senate Electoral
Tribunal"; that, consequently, the appointments of respondents, Cruz, Cayetano,
Serapio and Reyes, as technical assistants and private secretaries to Senators Cuenco
and Delgado who caused said appointments to be made as members of the
Senate Electoral Tribunal, are unlawful and void; and that Senators Cuenco and
Delgado "are threatening and are about to take cognizance of Electoral Case No. 4 of
the Senate Electoral Tribunal, as alleged members thereof, in nullification of the
rights of petitioner Lorenzo M. Taada, both as a Senator belonging to the Citizens

Party and as representative of the Citizens Party in the Senate Electoral Tribunal, and
in deprivation of the constitutional rights of petitioner Diosdado Macapagal and his
co-protestants to have their election protest tried and decided by an Electoral Tribunal
composed of not more than three (3) senators chosen by the Senate upon nomination
of the party having the largest number of votes in the Senate and not more than three
(3) Senators upon nomination of the party having the second largest number of votes
therein, together with three (3) Justices of the Supreme Court to be designated by the
Chief Justice, instead of by an Electoral Tribunal packed with five members
belonging to the Nacionalista Party, which is the rival party of the Liberal Party, to
which the petitioner Diosdado Macapagal and his co-protestants in Electoral Case No.
4 belong, the said five (5) Nacionalista Senators having been nominated and chosen in
the manner alleged . . . herein- above."
Petitioners pray that:
"1. Upon petitioners' filing of a bond in such amount as may be
determined by this Honorable Court, a writ of preliminary injunction be
immediately issued directed to respondents Mariano J. Cuenco, Francisco A.
Delgado, Alfredo Cruz, Catalina Cayetano, Manuel Serapio and Placido Reyes,
restraining them from continuing to usurp, intrude into and/or hold or exercise
the said public offices respectively being occupied by them in the Senate
Electoral Tribunal, and to respondent Fernando Hipolito restraining him from
paying the salaries of respondents Alfredo Cruz, Catalina Cayetano, Manuel
Serapio and Placido Reyes, pending this action.
"2. After hearing, judgment be rendered ousting respondents Mariano J.
Cuenco, Francisco A. Delgado, Alfredo Cruz, Catalina Cayetano, Manuel
Serapio and Placido Reyes from the aforementioned public offices in the Senate
Electoral Tribunal and that they be altogether excluded therefrom and making
the preliminary injunction permanent, with costs against the respondents."

Respondents have admitted the main allegations of fact in the petition, except
insofar as it questions the legality and validity of the election of respondents Senators
Cuenco and Delgado, as members of the Senate Electoral Tribunal, and of the
appointment of respondent Alfredo Cruz, Catalina Cayetano, Manuel Serapio and
Placido Reyes as technical assistants and private secretaries to said respondents
Senators. Respondents, likewise, allege, by way of special and affirmative defenses,
that: (a) this Court is without power, authority of jurisdiction to direct or control the
action of the Senate in choosing the members of the Electoral Tribunal; and (b) that
the petition states no cause of action, because "petitioner Taada has exhausted his
right to nominate after he nominated himself and refused to nominate two (2) more
Senators", because said petitioner is in estoppel, and because the present action is not
the proper remedy.
I. Respondents assail our jurisdiction to entertain the petition, upon the ground
that the power to choose six (6) Senators as members of the Senate Electoral Tribunal
has been expressly conferred by the Constitution upon the Senate, despite the fact that

the draft submitted to the constitutional convention gave to the respective political
parties the right to elect their respective representatives in the Electoral Commission
provided for in the original Constitution of the Philippines, and that the only remedy
available to petitioners herein "is not in the judicial forum", but "to bring the matter to
the bar of public opinion."
We cannot agree with the conclusion drawn by respondents from the foregoing
facts. To begin with, unlike the cases of Alejandrino vs. Quezon (46 Phil., 83) and
Vera vs. Avelino (77 Phil., 192) relied upon by the respondents this is not an
action against the Senate, and it does not seek to compel the latter, either directly or
indirectly, to allow the petitioners to perform their duties as members of said House.
Although the Constitution provides that the Senate shall choose six (6) Senators to be
members of the Senate Electoral Tribunal, the latter is part neither of Congress nor of
the Senate. (Angara vs. Electoral Commission, 63 Phil., 139; Suanes vs. Chief
Accountant, 81 Phil., 818; 46 Off. Gaz., 462.)
Secondly, although the Senate has, under the Constitution, the exclusive power
to choose the Senators who shall form part of the Senate Electoral Tribunal, the
fundamental law has prescribed the manner in which the authority shall be exercised.
As the author of a very enlightening study on judicial self-limitation has aptly put it:
"The courts are called upon to say, on the one hand, by whom certain
powers shall be exercised, and on the other hand, to determine whether the
powers thus possessed have been validly exercised. In performing the latter
function, they do not encroach upon the powers of a coordinate branch of the
government, since the determination of the validity of an act is not the same
thing as the performance of the act. In the one case we are seeking to ascertain
upon whom devolves the duty of the particular service. In the other case we are
merely seeking to determine whether the Constitution has been violated by
anything done or attempted by either an executive official or the legislative."
(Judicial Self-Limitation by Finkelstein, pp. 221, 224, 244, Harvard Law
Review, Vol. 39; emphasis supplied.)

The case of Suanes vs. Chief Accountant (supra) cited by respondents refutes
their own pretense. This Court exercised its jurisdiction over said case and decided the
same on the merits thereof, despite the fact that it involved an inquiry into the powers
of the Senate and its President over the Senate Electoral Tribunal and the personnel
thereof.
Again, under the Constitution, "the legislative power" is vested exclusively in
the Congress of the Philippines. Yet, this does not detract from the power of the
courts to pass upon the constitutionality of acts of Congress 1 And, since judicial
power includes the authority to inquire into the legality of statutes enacted by the two
Houses of Congress, and approved by the Executive, there can be no reason why the
validity of an act of one of said Houses, like that of any other branch of the
Government, may not be determined in the proper actions. Thus, in the exercise of the

so- called "judicial supremacy", this Court declared that a resolution of the defunct
National Assembly could not bar the exercise of the powers of the former Electoral
Commission under the original Constitution. 2 (Angara vs. Electoral Commission,
supra), and annulled certain acts of the Executive 3 as incompatible with the
fundamental law.
In fact, whenever the conflicting claims of the parties to a litigation cannot
properly be settled without inquiring into the validity of an act of Congress or of
either House thereof, the courts have, not only jurisdiction to pass upon said issue,
but, also, the duty to do so, which cannot be evaded without violating the fundamental
law and paving the way to its eventual destruction. 4
Neither are the cases of Mabanag vs. Lopez Vito (78 Phil., 1) and Cabili vs.
Francisco (88 Phil., 654), likewise, invoked by respondents, in point. In the Mabanag
case, it was held that the courts could not review the finding of the Senate to the effect
that the members thereof who had been suspended by said House should not be
considered in determining whether the votes cast therein, in favor of a resolution
proposing an amendment to the Constitution, sufficed to satisfy the requirements of
the latter, such question being a political one. The weight of this decision, as a
precedent, has been weakened, however, by our resolutions in Avelino vs. Cuenco (83
Phil., 17), in which this Court proceeded to determine the number essential to
constitute a quorum in the Senate. Besides, the case at bar does not hinge on the
number of votes needed for a particular act of said body. The issue before us is
whether the Senate after acknowledging that the Citizens Party is the party having
the second largest number of votes in the Senate, to which party the Constitution
gives the right to nominate three (3) Senators for the Senate Electoral Tribunal
could validly choose therefor two (2) Nacionalista Senators, upon nomination by the
floor leader of the Nacionalista Party in the Senate, Senator Primicias, claiming to act
on behalf of the Committee on Rules for the Senate.
The issue in the Cabili case was whether we could review a resolution of the
Senate reorganizing its representation in the Commission on Appointments. This was
decided in the negative, upon the authority of Alejandrino vs. Quezon (supra) and
Vera vs. Avelino (supra), the main purpose of the petition being "to force upon the
Senate the reinstatement of Senator Magalona in the Commission on Appointments,"
one-half (1/2) of the members of which is to be elected by each House on the basis of
proportional representation of the political parties therein. Hence, the issue depended
mainly on the determination of the political alignment of the members of the Senate at
the time of said reorganization and of the necessity or advisability of effecting said
reorganization, which is a political question. We are not called upon, in the case at
bar, to pass upon an identical or similar question, it being conceded, impliedly, but
clearly, that the Citizens Party is the party with the second largest number of votes in
the Senate. The issue, therefore, is whether a right vested by the Constitution in the
Citizens Party may validly be exercised, either by the Nacionalista Party, or by the
Committee on Rules for the Senate, over the objection of said Citizens Party.

The only ground upon which respondents' objection to the jurisdiction of this
Court and their theory to the effect that the proper remedy for petitioners herein is, not
the present action, but an appeal to public opinion, could possibly be entertained is,
therefore, whether the case at bar raises merely a political question, not one justiciable
in nature.
In this connection, respondents assert in their answer that "the remedy of
petitioners is not in the judicial forum, but, to use petitioner Taada's own words, 'to
bring the matter to the bar of public opinion' (p. 81, Discussion on the Creation of the
Senate Electoral Tribunal, February 21, 1956)." This allegation may give the
impression that said petitioner had declared, on the floor of the Senate, that his only
relief against the acts complained of in the petition is to take up the issue before the
people which is not a fact. During the discussions in the Senate, in the course of
the organization of the Senate Electoral Tribunal, on February 21, 1956, Senator
Taada was asked what remedies he would suggest if he nominated two (2)
Nacionalista Senators and the latter declined the nomination. Senator Taada replied:
"There are two remedies that occur to my mind right now, Mr. Senator;
one is the remedy open to all of us that if we feel aggrieved and there is no
recourse in the court of justice, we can appeal to public opinion. Another
remedy is an action in the Supreme Court. Of course, as Senator Rodriguez, our
President here, has said one day; 'If you take this matter to the Supreme Court,
you will lose, because until now the Supreme Court has always ruled against
any action that would constitute interference in the business of anybody
pertaining to the Senate. The theory of separation of powers will be upheld by
the Supreme Court.' But that learned opinion of Senator Rodriguez, our
President, notwithstanding, I may take the case to the Supreme Court if my right
herein is not respected. I may lose, Mr. President, but who has not lost in the
Supreme Court? I may lose because of the theory of the separation of powers,
but that does not mean, Mr. President, that what has been done here is pursuant
to the provision of the Constitution." (Congressional Record, Vol. III, p. 339;
emphasis supplied.)

This statement did not refer to the nomination, by Senator Primicias, and the
election, by the Senate, of Senators Cuenco and Delgado as members of said Tribunal.
Indeed, said nomination and election took place the day after the aforementioned
statement of Senator Taada was made. At any rate, the latter announced that he
might "take the case to the Supreme Court if my right here is not respected."
As already adverted to, the objection to our jurisdiction hinges on the question
whether the issue before us is political or not. In this connection, Willoughby lucidly
states:
"Elsewhere in this treatise the well-known and well-established principle
is considered that it is not within the province of the courts to pass judgment
upon the policy of legislative or executive action. Where, therefore,
discretionary powers are granted by the Constitution or by statute, the manner
in which those powers are exercised is not subject to judicial review. The courts,

therefore, concern themselves only with the question as to the existence and
extent of these discretionary powers.
"As distinguished from the judicial, the legislative and executive
departments are spoken of as the political departments of government because
in very many cases their action is necessarily dictated by considerations of
public or political policy. These considerations of public or political policy of
course will not permit the legislature to violate constitutional provisions, or the
executive to exercise authority not granted him by the Constitution or by statute,
but, within these limits, they do permit the departments, separately or together,
to recognize that a certain set of facts exists or that a given status exists, and
these determinations, together with the consequences that flow therefrom, may
not be traversed in the courts." (Willoughby on the Constitution of the United
States, Vol. 3, p. 1326; emnphasis supplied.)

To the same effect is the language used in Corpus Juris Secundum, from which
we quote:
"It is well-settled doctrine that political questions are not within the
province of the judiciary, except to the extent that power to deal with such
questions has been conferred upon the courts by express constitutional or
statutory provisions.
"It is not easy, however, to define the phrase 'political question', nor to
determine what matters fall within its scope. It is frequently used to designate
all questions that lie outside the scope of the judicial questions, which under the
constitution, are to be decided by the people in their sovereign capacity, or in
regard to which full discretionary authority has been delegated to the legislative
or executive branch of the government." (16 C.J.S., 413; see, also Geauga Lake
Improvement Ass'n. vs. Lozier, 182 N. E. 491, 125 Ohio St. 565; Sevilla vs.
Elizalde, 112 F. 2d 29, 72 App. D. C., 108; emphasis supplied.)

Thus, it has been repeatedly held that the question whether certain amendments
to the Constitution are invalid for non-compliance with the procedure therein
prescribed, is not a political one and may be settled by the Courts. 5
In the case of In re McConaughy (119 N.W. 408), the nature of political
question was considered carefully. The Court said:
"At the threshold of the case we are met with the assertion that the
questions involved are political, and not judicial. If this is correct, the court has
no jurisdiction as the certificate of the state canvassing board would then be
final, regardless of the actual vote upon the amendment. The question thus
raised is a fundamental one; but it has been so often decided contrary to the
view contended for by the Attorney General that it would seem to be finally
settled.
xxx xxx xxx

". . . What is generally meant, when it is said that a question is political,


and not judicial, is that it is a matter which is to be exercised by the people in
their primary political capacity, or that it has been specifically delegated to
some other department or particular officer of the government, with
discretionary power to act. See State vs. Cunningham, 81 Wis. 497, 51 L. R. A.
561; In Re Gunn, 50 Kan. 155; 32 Pac. 470, 948, 19 L. R. A. 519; Green vs.
Mills, 69 Fed. 852, 16, C. C. A. 516, 30 L. R. A. 90; Fletcher vs. Tuttle, 151 Ill.
41, 37 N. E. 683, 25 L. R. A. 143, 42 Am. St. Rep. 220. Thus the Legislature
may in its discretion determine whether it will pass a law or submit a proposed
constitutional amendment to the people. The courts have no judicial control
over such matters, not merely because they involve political question, but
because they are matters which the people have by the Constitution delegated to
the Legislature. The Governor may exercise the powers delegated to him, free
from judicial control, so long as he observes the laws and acts within the limits
of the power conferred. His discretionary acts cannot be controllable, not
primarily because they are of a political nature, but because the Constitution and
laws have placed the particular matter under his control. But every officer under
a constitutional government must act according to law and subject him to the
restraining and controlling power of the people, acting through the courts, as
well as through the executive or the Legislature. One department is just as
representative as the other, and the judiciary is the department which is charged
with the special duty of determining the limitations which the law places upon
all official action. The recognition of this principle, unknown except in Great
Britain and America, is necessary, to 'the end that the government may be one
of laws and not men' words which Webster said were the greatest contained
in any written constitutional document." (pp. 411, 417; emphasis supplied.)

In short, the term "political question" connotes, in legal parlance, what it means
in ordinary parlance, namely, a question of policy. In other words, in the language of
Corpus Juris Secundum (supra), it refers to "those questions which, under the
Constitution, are to be decided by the people in their sovereign capacity, or in regard
to which full discretionary authority has been delegated to the Legislature or
executive branch of the Government." It is concerned with issues dependent upon the
wisdom, not legality, of a particular measure.
Such is not the nature of the question for determination in the present case.
Here, we are called upon to decide whether the election of Senators Cuenco and
Delgado, by the Senate, as members of the Senate Electoral Tribunal, upon
nomination by Senator Primicias a member and spokesman of the party having the
largest number of votes in the Senate on behalf of its Committee on Rules,
contravenes the constitutional mandate that said members of the Senate Electoral
Tribunal shall be chosen "upon nomination . . . of the party having the second largest
number of votes" in the Senate, and hence, is null and void. This is not a political
question. The Senate is not clothed with "full discretionary authority" in the choice of
members of the Senate Electoral Tribunal. The exercise of its power thereon is subject
to constitutional limitations which are claimed to be mandatory in nature. It is clearly

within the legitimate province of the judicial department to pass upon the validity of
the proceedings in connection therewith.
". . . whether an election of public officers has been in accordance with
law is for the judiciary. Moreover, where the legislative department has by
statute prescribed election procedure in a given situation, the judiciary may
determine whether a particular election has been in conformity with such
statute, and, particularly, whether such statute has been applied in a way to deny
or transgress on constitutional or statutory rights . . ." (16 C. J. S., 439;
emphasis supplied.)

It is, therefore, our opinion that we have, not only jurisdiction, but, also, the
duty, to consider and determine the principal issue raised by the parties herein.
II. Is the election of Senators Cuenco and Delgado, by the Senate, as members
of the Electoral Tribunal, valid and lawful?
Section 11 of Article VI of the Constitution, reads:
"The Senate and the House of Representatives shall each have an
Electoral Tribunal which shall be the sole judge of all contests relating to the
election, returns, and qualifications of their respective Members. Each Electoral
Tribunal shall be composed of nine Members, three of whom shall be Justices
of the Supreme Court to be designated by the Chief Justice, and the remaining
six shall be Members of the Senate or of the House of Representatives, as the
case may be, who shall be chosen by each House, three upon nomination of the
party having the largest number of votes and three of the party having the
second largest number of votes therein. The Senior Justice in each Electoral
Tribunal shall be its Chairman." (Emphasis supplied.)

It appears that on February 22, 1956, as well as at present, the Senate of the
Philippines consists of twenty-three (23) members of the Nacionalista Party and one
(1) member of the Citizens Party, namely, Senator Taada, who is, also, the president
of said party. In the session of the Senate held on February 21, 1956, Senator Sabido
moved that Senator Taada, "the President of the Citizens Party, be given the
privilege to nominate . . . three (3) members" of the Senate Electoral Tribunal
(Congressional Record for the Senate, Vol. III, pp. 328-329), referring to those who,
according to the provision above-quoted, should be nominated by "the party having
the second largest number of votes" in the Senate. Senator Taada objected formally
to this motion upon the ground: (a) that the right to nominate said members of the
Senate Electoral Tribunal belongs, not to the Nacionalista Party of which Senator
Sabido and the other Senators are members but to the Citizens Party, as the one
having the second largest number of votes in the Senate, so that, being devoid of
authority to nominate the aforementioned members of said Tribunal, the Nacionalista
Party cannot give it to the Citizens Party, which, already, has such authority, pursuant
to the Constitution; and (b) that Senator Sabido's motion would compel Senator
Taada to nominate three (3) Senators to said Tribunal, although as representative of
the minority party in the Senate he has "the right to nominate one, two or three to the

Electoral Tribunal," in his discretion. Senator Taada further stated that he reserved
the right to determine how many he would nominate, after hearing the reasons of
Senator Sabido in support of his motion. After some discussion, in which Senators
Primicias, Cea, Lim, Sumulong, Zulueta, and Rodrigo took part, the Senate adjourned
until the next morning, February 22, 1956 (Do., do., pp. 329, 330, 332-333, 336, 338,
339, 343).
Then, said issues were debated upon more extensively, with Senator
Sumulong, not only seconding the opposition of Senator Taada, but, also,
maintaining that "Senator Taada should nominate only one" member of the Senate,
namely, himself, he being the only Senator who belongs to the minority party in said
House (Do., do., pp. 360-364, 369). Thus, a new issue was raised whether or not
one who does not belong to said party may be nominated by its spokesman, Senator
Taada on which Senators Paredes, Pelaez, Rosales and Laurel, as well as the
other Senators already mentioned, expressed their views (Do., do., pp. 345, 349, 350,
354, 358, 364, 375). Although the deliberations of the Senate consumed the whole
morning and afternoon of February 22, 1956, a satisfactory solution of the question
before the Senate appeared to be remote. So, at 7:40 p. m., the meeting was
suspended, on motion of Senator Laurel, with a view to seeking a compromise
formula (Do., do., pp. 377). When session was resumed at 8:10 p. m., Senator Sabido
withdrew his motion above referred to. Thereupon, Senator Primicias, on behalf of the
Nacionalista Party, nominated, and the Senate elected, Senators Laurel, Lopez and
Primicias, as members of the Senate Electoral Tribunal. Subsequently, Senator
Taada stated:
"On behalf of the Citizens Party, the minority party in this Body, I
nominate the only Citizens Party member in this Body, and that is Senator
Lorenzo M. Taada."

Without any objection, this nomination was approved by the House. Then,
Senator Primicias stood up and said:
"Now, Mr. President, in order to comply with the provision in the
Constitution, the Committee on Rules of the Senate and I am now making
this proposal not on behalf of the Nacionalista Party but on behalf of the
Committee on Rules of the Senate I nominate two other members to
complete the membership of the Tribunal: Senators Delgado and Cuenco."

What took place thereafter appears in the following quotations from the
Congressional Record for the Senate.
"SENATOR TAADA. Mr. President.
"EL PRESIDENTE INTERINO. Caballero de Quezon.
SENATOR TAADA. I would like to record my opposition to the
nominations of the last two named gentlemen, Senators Delgado and Cuenco,
not because I don't believe that they do not deserve to be appointed to the
tribunal but because of my sincere and firm conviction that these additional

nominations are not sanctioned by the Constitution. The Constitution only


permits the Nacionalista Party or the party having the largest number of votes to
nominate three.
"SENATOR SUMULONG. Mr. President.
"EL PRESIDENTE INTERINO. Caballero de Rizal.
"SENATOR SUMULONG. For the reasons that I have stated a few
moments ago when I took the floor, I also wish to record my objection to the
last nominations, to the nomination of two additional NP's to the Electoral
Tribunal.
EL PRESIDENTE INTERINO. Esta dispuesto el Senado a votar?
(Varios Senadores: Si.) Los que esten conformes con la nominacion hecha por
el Presidente del Comite de Reglamentos a favor de los Senadores Delgado y
Cuenco para ser miembros del Tribunal Electoral, digan, si. (Varios Senodores:
Si.) Los que no lo esten digan, no (Silencio.) Queda aprobada." (Congressional
Record for the Senate, Vol. III, p. 377; italics supplied.)

Petitioners maintain that said nomination and election of Senators Cuenco and
Delgado who belong to the Nacionalista Party as members of the Senate
Electoral Tribunal, are null and void and have been made without power or color of
authority, for, after the nomination by said party, and the election by the Senate, of
Senators Laurel, Lopez and Primicias, as members of said Tribunal, the other
Senators, who shall be members thereof, must necessarily be nominated by the party
having the second largest number of votes in the Senate, and such party is, admittedly,
the Citizens Party, to which Senator Taada belongs and which he represents.
Respondents allege, however, that the constitutional mandate to the effect that
"each Electoral Tribunal shall be composed of nine (9) members," six (6) of whom
"shall be members of the Senate or of the House of Representatives, as the case may
be", is mandatory; that when after the nomination of three (3) Senators by the
majority party, and their election by the Senate, as members of the Senate Electoral
Tribunal Senator Taada nominated himself only, on behalf of the minority party,
he thereby "waived his right to nominate two more Senators;" that, when Senator
Primicias nominated Senators Cuenco and Delgado, and these respondents were
chosen by the Senate, as members of the Senate Electoral Tribunal, said Senator
Primicias and the Senate merely complied with the aforementioned provision of the
fundamental law, relative to the number of members of the Senate Electoral Tribunal;
and, that, accordingly, Senators Cuenco and Delgado are de jure members of said
body, and the appointment of their co-respondents, Alfredo Cruz, Catalina Cayetano,
Manuel Serapio and Placido Reyes, is valid and lawful.
At the outset, it will be recalled that the proceedings for the organization of the
Senate Electoral Tribunal began with a motion of Senator Sabido to the effect that
"the distinguished gentleman from Quezon, the President of the Citizens Party, be

given the privilege to nominate the three Members" of said Tribunal. Senator
Primicias inquired why the movant had used the word "privilege". Senator Sabido
explained that the present composition of the Senate had created a condition or
situation which was not anticipated by the framers of our Constitution; that although
Senator Taada formed part of the Nacionalista Party before the end of 1955, he
subsequently "parted ways with" said party; and that Senator Taada "is the
distinguished president of the Citizens Party," which "approximates the situation
desired by the framers of the Constitution" (Congressional Record for the Senate Vol.
III, pp. 329-330). Then Senator Lim intervened, stating:
"At present Senator Taada is considered as forming the only minority
or the one that has the second largest number of votes in the existing Senate, is
not that right? And if this is so, he should be given this as a matter of right, not
as a matter of privilege. . . . I don't believe that we should be allowed to grant
this authority to Senator Taada only as a privilege but we must grant it as a
matter of right." (Id., id., p. 332; emphasis supplied.)

Similarly, Senator Sumulong maintained that "Senator Taada, as Citizens


Party Senator, has the right and not a mere privilege to nominate," adding that:
". . . the question is whether we have a party here having the second
largest number of votes, and it is clear in my mind that there is such a party, and
that is the Citizens Party to which the gentleman from Quezon belongs. . . . We
have to bear in mind, . . . that when Senator Taada was included in the
Nacionalista Party ticket in 1953 it was by virtue of a coalition or an alliance
between the Citizens Party and the Nacionalista Party at that time, and I
maintain that when Senator Taada as head of the Citizens Party entered into a
coalition with the Nacionalista Party, he did not thereby become a Nacionalista
because that was a mere coalition, not a fusion. When the Citizens Party entered
into a mere coalition, that party did not lose its personality as a party separate
and distinct from the Nacionalista. Party. And we should also remember that the
certificate of candidacy filed by Senator Taada in the 1953 election was one to
the effect that he belonged to the Citizens Party . . .." (Id., id., p. 360; emphasis
supplied.)

The debate was closed by Senator Laurel, who remarked, referring to Senator
Taada:
". . . there is no doubt that he does not belong to the majority in the first
place, and that, therefore, he belongs to the minority. And whether we like it or
not, that, is the reality of the actual situation that he is not a Nacionalista
now, that he is the head and the representative of the Citizens Party. I think that
on equitable ground and from the point of view of public opinion, his situation .
. . approximates or approaches what is within the spirit of that Constitution. . . .
and from the point of view of the spirit of the Constitution it would be a good
thing if we grant the opportunity to Senator Taada to help us in the
organization of this Electoral Tribunal . . .." (Id., id., p. 376; emphasis supplied.)

The foregoing statements and the fact that, thereafter, Senator Sabido withdrew
his motion to grant Senator Taada the "privilege" to nominate, and said petitioner
actually nominated himself "on behalf of the Citizens Party, the minority party in this
Body" not only without any objection whatsoever, but, also, with the approval of
the Senate leave no room for doubt that the Senate has regarded the Citizens Party,
represented by Senator Taada, as the party having the second largest number of votes
in said House.
Referring, now, to the contention of respondents herein, their main argument in
support of the mandatory character of the constitutional provision relative to the
number of members of the Senate Electoral Tribunal is that the word "shall", therein
used, is imperative in nature and that this is borne out by an opinion of the Secretary
of Justice dated February 1, 1939, pertinent parts of which are quoted at the footnote.
6
Regardless of the respect due its author, as a distinguished citizen and public
official, said opinion has little, if any, weight in the solution of the question before
this Court, for the "practical construction of a Constitution is of little, if any, unless it
has been uniform . . .." 6 Again, "as a general rule, it is only in cases of substantial
doubt and ambiguity that the doctrine of contemporaneous or practical construction
has any application". As a consequence, "where the meaning of a constitutional
provision is clear, a contemporaneous or practical . . . executive interpretation thereof
is entitled to no weight, and will not be allowed to distort or in any way change its
natural meaning." The reason is that "the application of the doctrine of
contemporaneous construction is more restricted as applied to the interpretation of
constitutional provisions than when applied to statutory provisions", and that, "except
as to matters committed by the Constitution itself to the discretion of some other
department, contemporary or practical construction is not necessarily binding upon
the courts, even in a doubtful case." Hence, "if in the judgment of the court, such
construction is erroneous and its further application is not made imperative by any
paramount considerations of public policy, it may be rejected." (16 C. J. S., 71-72;
italics supplied.) 6
The aforementioned opinion of the Secretary of Justice is not backed up by a
"uniform" application of the view therein adopted, so essential to give thereto the
weight accorded by the rules on contemporaneous constructions. Moreover, said
opinion tends to change the natural meaning of section 11 of Article VI of the
Constitution, which is clear. What is more, there is not the slightest doubt in our mind
that the purpose and spirit of said provisions do not warrant said change and that the
rejection of the latter is demanded by paramount considerations of public policy.
The flaw in the position taken in said opinion and by respondents herein is that,
while, it relies upon the compulsory nature of the word "shall", as regards the number
of members of the Electoral Tribunals, it ignores the fact that the same term is used
with respect to the method prescribed for their election, and that both form part of a
single sentence and must be considered, therefore, as integral portions of one and the

same thought. Indeed, respondents have not even tried to show and we cannot
conceive why "shall" must be deemed mandatory insofar as the number of
members of each Electoral Tribunal, and should be considered directory as regards
the procedure for their selection. More important still, the history of section 11 of
Article VI of the Constitution and the records of the Convention, refute respondents'
pretense, and back up the theory of petitioners herein.
Commenting on the frame of mind of the delegates to the Constitutional
Convention, when they faced the task of providing for the adjudication of contests
relating to the election, returns and qualifications of members of the Legislative
Department, Dr. Jose M. Aruego, a member of said Convention, says:
"The experience of the Filipino people under the provisions of the
organic laws which left to the lawmaking body the determination of the
elections, returns, and qualifications of its members was not altogether
satisfactory. There were many complaints against the lack of political justice in
this determination; for in a great number of cases, party interests controlled and
dictated the decisions. The undue delay in the dispatch of election contests for
legislative seats, the irregularities that characterized the proceedings in some of
them, and the very apparent injection of partisanship in the determination of a
great number of the cases were decried by a great number of the people as well
as by the organs of public opinion.
"The faith of the people in the uprightness of the lawmaking body in the
performance of this function assigned to it in the organic laws was by no means
great. In fact so blatant was the lack of political justice in the decisions that
there was gradually built up a camp of thought in the Philippines inclined to
leave to the courts the determination of election contests, following the practice
in some countries, like England and Canada.
"Such were the conditions of things at the time of the meeting of the
convention." (The Framing of the Philippine Constitution by Aruego, Vol. I, pp.
257-258; emphasis supplied.)

This view is shared by distinguished members of the Senate. Thus, in its


session of February 22, 1956, Senator Sumulong declared:
". . . when you leave it to either House to decide election protests
involving its own members, that is virtually placing the majority party in a
position to dictate the decision in those election cases, because each House will
be composed of a majority and a minority, and when you make each House the
judge of every election protest involving any member of that House, you place
the majority in a position to dominate and dictate the decision in the case and
result was, there were so many abuses, there were so many injustices committed
by the majority at the expense and to the prejudice of the minority protestants.
Statements have been made here that justice was done even under the old
system, like that case involving Senator Mabanag, when he almost became a
victim of the majority when he had an election case, and it was only through the

intervention of President Quezon that he was saved from becoming the victim
of majority injustices.
"It is true that justice had sometimes prevailed under the old system, but
the record will show that those cases were few and they were the rare
exceptions. The overwhelming majority of election protests decided under the
old system was that the majority being then in a position to dictate the decision
in the election protest, was tempted to commit as it did commit many abuses and
injustices." (Congressional Record for the Senate, Vol. III, p. 361; emphasis
supplied.)

Senator Paredes, a veteran legislator and former Speaker of the House of


Representatives, said:
". . . what was intended in the creation of the electoral tribunal was to
create a sort of collegiate court composed of nine members: three of them
belonging to the party having the largest number of votes, and three from the
party having the second largest number of votes so that these members may
represent the party, and the members of said party who will sit before the
electoral tribunal as protestees. For when it comes to a party, Mr. President,
there is ground to believe that decisions will be made along party lines."
(Congressional Record for the Senate, Vol. III, p. 351; emphasis supplied.)

Senator Laurel, who played an important role in the framing of our


Constitution, expressed himself as follows:
"Now, with reference to the protests or contests relating to the election,
the returns and the qualifications of the members of the legislative bodies, I
heard it said here correctly that there was a time when that was given to the
corresponding chamber of the legislative department. So the election, returns
and qualifications of the members of the Congress or legislative body was
entrusted to that body itself as the exclusive body to determine the election,
returns and qualifications of its members. There was some doubt also expressed
as to whether that should continue or not, and the greatest argument in favor of
the retention of that provision was the fact that was, among other things, the
system obtaining in the United States under the Federal Constitution of the
United States, and there was no reason why that power or that right vested in the
legislative body should not be retained. But it was thought that would make the
determination of this contest, of this election protest, purely political as has
been observed in the past." (Congressional Record for the Senate, Vol. III, p.
376; emphasis supplied.)

It is interesting to note that not one of the members of the Senate contested the
accuracy of the views thus expressed.
Referring particularly to the philosophy underlying the constitutional provision
quoted above, Dr. Aruego states:
"The defense of the Electoral Commission was based primarily upon the
hope and belief that the abolition of party lines because of the equal
representation in this body of the majority and the minority parties of the

National Assembly and the intervention of some members of the Supreme Court
who, under the proposed constitutional provision, would also be members of the
same, would insure greater political justice in the determination of election
contests for seats in the National Assembly than there would be if the power had
been lodged in the lawmaking body itself. Delegate Francisco summarized the
arguments for the creation of the Electoral Commission in the following words:
"I understand that from the time that this question is placed in the hands
of members not only of the majority party but also of the minority party, there is
already a condition, a factor which would make protests decided in a nonpartisan manner. We know from experience that many times in the many
protests tried in the House or in the Senate, it was impossible to prevent the
factor of party from getting in. From the moment that it is required that not only
the majority but also the minority should intervene in these questions, we have
already enough guarantee that there would be no tyranny on the part of the
majority.
'But there is another more detail which is the one which satisfies me
most, and that is the intervention of three justices. So that with this intervention
of three justices if there would be any question as to the justice applied by the
majority or the minority, if there would be any fundamental disagreement, or if
there would be nothing but questions purely of party in which the members of
the majority as well as those of the minority should wish to take lightly a protest
because the protestant belongs to one of said parties, we have in this case, as a
check upon the two parties, the actuations of the three justices. In the last
analysis, what is really applied in the determination of electoral cases brought
before the tribunals of justice or before the House of Representatives or the
Senate? Well, it is nothing more than the law and the doctrine of the Supreme
Court. If that is the case, there will be greater skill in the application of the laws
and in the application of doctrines to electoral matters having as we shall have
three justices who will act impartially in these electoral questions.
'I wish to call the attention of my distinguished colleagues to the fact
that in electoral protests it is impossible to set aside party interests. Hence, the
best guarantee, I repeat, for the administration of justice to the parties, for the
fact that the laws will not be applied improperly or incorrectly as well as for the
fact that the doctrines of the Supreme Court will be applied rightfully, the best
guarantee which we shall have, I repeat, is the intervention of the three justices.
And with the formation of the Electoral Commission, I say again, the
protestants as well as the protestees could remain tranquil in the certainty that
they will receive the justice that they really deserve. If we eliminate from this
precept the intervention of the party of the minority and that of the three
justices, then we shall be placing protests exclusively in the hands of the party
in power. And I understand, gentlemen, that in practice that has not given good
results. Many have criticized, many have complained against, the tyranny of the
majority in electoral cases . . .. I repeat that the best guarantee lies in the fact
that these questions will be judged not only by three members of the majority
but also by three members of the minority, with the additional guarantee of the

impartial judgment of three justices of the Supreme Court." (The Framing of the
Philippine Constitution by Aruego, Vol. I, pp. 261-263; emphasis supplied.)

The foregoing was corroborated by Senator Laurel. Speaking for this Court, in
Angara vs. Electoral Commission (63 Phil., 139), he asserted:
"The members of the Constitutional Convention who framed our
fundamental law were in their majority men mature in years and experience. To
be sure, many of them were familiar with the history and political development
of other countries of the world. When, therefore, they deemed it wise to create
an Electoral Commission as a constitutional organ and invested it with the
exclusive function of passing upon and determining the election, returns and
qualifications of the members of the National Assembly, they must have done
so not only in the light of their own experience but also having in view the
experience of other enlightened peoples of the world. The creation of the
Electoral Commission was designed to remedy certain evils of which the
framers of our Constitution were cognizant. Notwithstanding the vigorous
opposition of some members of the Convention to its creation, the plan, as
hereinabove stated, was approved by that body by a vote of 98 against 58. All
that can be said now is that, upon the approval of the Constitution, the creation
of the Electoral Commission is the expression of the wisdom 'ultimate justice of
the people.' (Abraham Lincoln, First Inaugural Address, March 4, 1861.)
"From the deliberations of our Constitutional Convention it is evident
that the purpose was to transfer in its totality all the powers previously exercised
by the legislature in matters pertaining to contested elections of its members, to
an independent and impartial tribunal. It was not so much the knowledge and
appreciation of contemporary constitutional precedents, however, as the longfelt need of determining legislative contests devoid of partisan considerations
which prompted the people acting through their delegates to the Convention, to
provide for this body known as the Electoral Commission. With this end in
view, a composite body in which both the majority and minority parties are
equally represented to off-set partisan influence in its deliberations was created,
and further endowed with judicial temper by including in its membership three
justices of the Supreme Court. (Pp. 174-175.) 7

As a matter of fact, during the deliberations of the convention, Delegates


Conejero and Roxas said:
"El Sr. CONEJERO. Antes de votarse la enmienda, quisiera pedir
informacion del Subcomite de Siete.
"El Sr. PRESIDENTE. Que dice el Comite?
"El Sr. ROXAS. Con mucho gusto.
"El Sr. CONEJERO. Tal como esta el draft, dando tres miembros a la
mayoria, y otros tres a la minoria y tres a la Corte Suprema, no cree su Seoria
que este equivale practicamente a dejar el asunto a los miembros del Tribunal
Supremo?

"El Sr. ROXAS. Si y no. Creemos que si el tribunal a la Comision esta


constituido en esa forma, tanto los miembros de la mayoria como los de la
minoria asi como los miembros de la Corte Suprema consideraran la cuestion
sobre la base de sus meritos, sabiendo que el partidismo no es suficiente para
dar el triunfo.
"El Sr. CONEJERO. Cree Su Seoria que en un caso como ese,
podriamos hacer que tanto los de la mayoria como los de la minoria
prescindieran del partidismo?
"El Sr. ROXAS. Creo que si, porque el partidismo no les daria el
triunfo." (Angara vs. Electoral Commission, supra, pp. 168-169; emphasis
supplied.)

It is clear from the foregoing that the main objective of the framers of our
Constitution in providing for the establishment, first, of an Electoral Commission, 8
and then 9 of one Electoral Tribunal for each House of Congress, was to insure the
exercise of judicial impartiality in the disposition of election contests affecting
members of the law making body. To achieve this purpose, two devices were resorted
to, namely: (a) the party having the largest number of votes, and the party having the
second largest number of votes, in the National Assembly or in each House of
Congress, were given the same number of representatives in the Electoral
Commission or Tribunal, so that they may realize that partisan considerations could
not control the adjudication of said cases, and thus be induced to act with greater
impartiality; and (b) the Supreme Court was given in said body the same number of
representatives as each one of said political parties, so that the influence of the former
may be decisive and endow said Commission or Tribunal with judicial temper.
This is obvious from the very language of the constitutional provision under
consideration. In fact, Senator Sabido who had moved to grant to Senator Taada
the "privilege" to make the nominations on behalf of the party having the second
largest number of votes in the Senate agrees with it. As Senator Sumulong
inquired:
". . . I suppose Your Honor will agree with me that the framers of the
Constitution precisely thought of creating this Electoral Tribunal so as to
prevent the majority from ever having a preponderant majority in the Tribunal."
(Congressional Record for the Senate, Vol. III, p. 330; emphasis supplied.)

Senator Sabido replied:


"That is so, . . .." (Id., p. 330.)

Upon further interpelation, Senator Sabido said:


". . . the purpose of the creation of the Electoral Tribunal and of its
composition is to maintain a balance between the two parties and make the
members of the Supreme Court the controlling power so to speak of the
Electoral Tribunal or hold the balance of power. That is the ideal situation."
(Congressional Record for the Senate, Vol. III, p. 349; emphasis supplied.)

Senator Sumulong opined along the same line. His words were:
". . . The intention is that when the three from the majority and the three
from the minority become members of the Tribunal it is hoped that they will
become aware of their judicial functions, not to protect the protestants or the
protestees. It is hoped that they will act as judges because to decide election
cases is a judicial function. But the framers of the Constitution besides being
learned were men of experience. They knew that even Senators like us are not
angels, that we are human beings, that if we should be chosen to go to the
Electoral Tribunal no one can say that we will entirely be free from partisan
influence to favor our party, so that in case that hope that the three from the
majority and the three from the minority who will act as judges should result in
disappointment, in case they do not act as judges but they go there and vote
along party lines, still there is the guarantee that they will offset each other and
the result will be that the deciding vote will reside in the hands of the three
Justices who have no partisan motives to favor either the protestees or the
protestants. In other words, the whole idea is to prevent the majority from
controlling and dictating the decisions of the Tribunal and to make sure that the
decisive vote will be wielded not by the Congressmen or Senators who are
members of the Tribunal but will be wielded by the Justices who, by virtue of
their judicial offices, will have no partisan motives to serve, either protestants or
protestees. That is my understanding of the intention of the framers of the
Constitution when they decided to create the Electoral Tribunal.
xxx xxx xxx
"My idea is that the intention of the framers of the constitution in
creating the Electoral Tribunal is to insure impartiality and independence in its
decision, and that is sought to be done by never allowing the majority party to
control the Tribunal, and secondly by seeing to it that the decisive vote in the
Tribunal will be left in the hands of persons who have no partisan interest or
motive to favor either protestant or protestee." (Congressional Record for the
Senate, Vol. III, pp. 362-363, 365-366; emphasis supplied.)

So important in the "balance of powers" between the two political parties in the
Electoral Tribunals, that several members of the Senate questioned the right of the
party having the second largest number of votes in the Senate and, hence, of
Senator Taada, as representative of the Citizens Party to nominate for the Senate
Electoral Tribunal any Senator not belonging to said party. Senators Lim, Sabido, Cea
and Paredes maintained that the spirit of the Constitution would be violated if the
nominees to the Electoral Tribunals did not belong to the parties respectively making
the nominations. 10
It is not necessary, for the purpose of this decision, to determine whether the
parties having the largest, and the second largest, number of votes in each House may
nominate, to the Electoral Tribunals, those members of Congress who do not belong
to the party nominating them. It is patent, however, that the most vital feature of the
Electoral Tribunals is the equal representation of said parties therein, and the

resulting equilibrium to be maintained by the Justices of the Supreme Court as


members of said Tribunals. In the words of the members of the present Senate, said
feature reflects the "intent" "purpose", and "spirit of the Constitution", pursuant to
which the Senate Electoral Tribunal should be organized (Congressional Record for
the Senate, pp. 330, 337, 348-9, 350, 351, 355, 358, 362-3, 364, 370, 376).
Now then, it is well settled that "the purpose of all rules or maxims as to the
construction or interpretation of statutes is to discover the true intention of the law"
(82 C. J. S., 526) and that
"As a general rule of statutory construction, the spirit or intention of a
statute prevails over the letter thereof , and whatever is within the spirit of a
statute is within the statute although it is not within the letter thereof, while that
which is within the letter, but not within the spirit of a statute, is not within the
statute; but, where the law is free and clear from ambiguity, the letter of it is not
to be disregarded on the pretext of pursuing its spirit." (82 C. J. S, 613.)
"There is no universal rule or absolute test by which directory provisions
in a statute may in all circumstances be distinguished from those which are
mandatory. However, in the determination of this question, as of every other
question of statutory construction, the prime object is to ascertain the legislative
intent. The legislative intent must he obtained from all the surrounding
circumstances, and the determination does not depend on the form of the
statute. Consideration must be given to the entire statute, its nature, its object,
and the consequences which would result from construing it one way or the
other, and the statute must be construed in connection with other related
statutes. Words of permissive character may be given a mandatory significance
in order to effect the legislative intent, and, when the terms of a statute are such
that they cannot be made effective to the extent of giving each and all of them
some reasonable operation, without construing the statute as mandatory, such
construction should be given; . . . On the other hand, the language of a statute,
however mandatory in form, may be deemed directory whenever legislative
purpose can best be carried out by such construction, and the legislative intent
does not require a mandatory construction; but the construction of mandatory
words as directory should not be lightly adopted and never where it would in
fact make a new law instead of that passed by the legislature. . . . Whether a
statute is mandatory or directory depends on whether the thing directed to be
done is of the essence of the thing required, or is a mere matter of form, and
what is a matter of essence can often be determined only by judicial
construction. Accordingly, when a particular provision of a statute relates to
some immaterial matter, as to which compliance with the statute is a matter of
convenience rather than substance, or where the directions of a statute are given
merely with a view to the proper, orderly, and prompt conduct of business, it is
generally regarded as directory, unless followed by words of absolute
prohibition; and a statute is regarded as directory where no substantial rights
depend on it, no injury can result from ignoring it, and the purpose of the
legislature can be accomplished in a manner other than that prescribed, with
substantially the same result. On the other hand, a provision relating to the

essence of the thing to be done, that is, to matters of substance, is mandatory,


and when a fair interpretation of a statute, which directs acts or proceedings to
be done in a certain way, shows that the legislature intended a compliance with
such provision to be essential to the validity of the act or proceeding, or when
same antecedent and prerequisite conditions must exist prior to the exercise of
power, or must be performed before certain other powers can be exercised, the
statute must be regarded as mandatory. (Id., pp. 869-874.) (See, also, Words
and Phrases, Vol. 26, pp. 463- 467; emphasis supplied.)

What has been said above, relative to the conditions antecedent to, and
concomitant with, the adoption of section 11 of Article VI of the Constitution, reveals
clearly that its framers intended to prevent the majority party from controlling the
Electoral Tribunals, and that the structure thereof is founded upon the equilibrium
between the majority and the minority parties therein, with the Justices of the
Supreme Court, who are members of said Tribunals, holding the resulting balance of
power. The procedure prescribed in said provision for the selection of members of the
Electoral Tribunals is vital to the role they are called upon to play. It constitutes the
essence of said Tribunals. Hence, compliance with said procedure is mandatory, and
acts performed in violation thereof are null and void. 11
It is true that the application of the foregoing criterion would limit the
membership of the Senate Electoral Tribunal, in the case at bar, to seven (7), instead
of nine (9), members; but, it is conceded that the present composition of the Senate
was not foreseen by the framers of our Constitution (Congressional Record for the
Senate, Vol. III, pp. 329, 342, 349, 354, 359, 375). Furthermore, the spirit of the law
prevails over its letter, and the solution herein adopted maintains the spirit of the
Constitution, for partisan considerations can not be decisive in a tribunal consisting of
three (3) Justices of the Supreme Court, three (3) members nominated by the majority
party and either one (1) or two (2) members nominated by the party having the second
largest number of votes in the House concerned.
Upon the other hand, what would be the result of respondents' contention if
upheld? Owing to the fact that the Citizens Party 12 has only one member in the
Upper House, Senator Taada felt he should nominate, for the Senate Electoral
Tribunal, only said member of the Citizens Party. The same is, thus, numerically
handicapped, vis-a-vis the majority party, in said Tribunal. Obviously, Senator Taada
did not nominate other two Senators, because, otherwise, he would worsen the already
disadvantageous position, therein, of the Citizens Party. Indeed, by the
aforementioned nomination and election of Senators Cuenco and Delgado, if the same
were sanctioned, the Nacionalista Party would have five (5) members in the Senate
Electoral Tribunal, as against one (1) member of the Citizens Party and three
members of the Supreme Court. With the absolute majority thereby attained by the
majority party in said Tribunal, the philosophy underlying the same would be entirely
upset. The equilibrium between the political parties therein would be destroyed. What

is worst, the decisive moderating role of the Justices of the Supreme Court would be
wiped out, and, in lieu thereof, the door would be thrown wide open for the
predominance of political considerations in the determination of election protests
pending before said Tribunal, which is precisely what the fathers of our Constitution
earnestly strove to forestall. 13
This does not imply that the honesty, integrity or impartiality of Senators
Cuenco and Delgado are being questioned. As a matter of fact, when Senator Taada
objected to their nomination, he explicitly made of record that his opposition was
based, not upon their character, but upon the principle involved. When the election of
members of Congress to the Electoral Tribunal is made dependent upon the
nomination of the political parties above referred to, the Constitution thereby indicates
its reliance upon the method of selection thus established, regardless of the individual
qualities of those chosen therefor. Considering the wealth of experience of the
delegates to the Convention, all lawyers of great note, as veteran politicians and as
leaders in other fields of endeavor, they could not, and did not, ignore the fact that the
Constitution must limit itself to giving general patterns or norms of action. In
connection, particularly, with the composition of the Electoral Tribunals, they
believed that, even the most well meaning individuals often find it difficult to shake
off the bias and prejudice created by political antagonisms and to resist the demands
of political exigencies, the pressure of which is bound to increase in proportion to the
degree of predominance of the party from which it comes. As above stated, this was
confirmed by distinguished members of the present Senate. (See pp. 25-28, 33, 34,
supra.)
In connection with the argument of the former Secretary of Justice to the effect
that when "there is no minority party represented in the Assembly, the necessity for
such a check by the minority disappears", the following observations of the petitioners
herein are worthy of notice:
"Under the interpretation espoused by the respondents, the very frauds
or terrorism committed by a party would establish the legal basis for the final
destruction of minority parties in the Congress at least. Let us suppose, for
example, that in the Senate, the 15 or 16 senators with unexpired terms belong
to the party A. In the senatorial election to fill the remaining 8 seats, all the 8
candidates of party A are proclaimed elected through alleged fraud and/or
terrorism. (The ouster of not less than 3 senators-elect in the elections held since
liberation attests to the reality of election frauds and terrorism in our country.)
There being no senator or only one senator belonging to the minority, who
would sit in judgment on the election candidates of the minority parties?
According to the contention of the respondents, it would be a Senate Electoral
Tribunal made up of three Supreme Court Justices and 5 or 6 members of the
same party A accused of fraud and terrorism. Most respectfully, we pray this
Honorable Court to reject an interpretation that would make of a democratic
constitution the very instrument by which a corrupt and ruthless party could

intrench itself in power in the legislature and thus destroy democracy in the
Philippines.
xxx xxx xxx
". . . When there are no electoral protests filed by the minority party, or
when the only electoral protests filed are by candidates of the majority against
members-elect of the same majority party, there might be no objection to the
statement. But if electoral protests are filed by candidate of the minority party,
it is at this point that a need for a check on the majority party is greatest, and
contrary to the observation made in the above-quoted opinion, such a check is a
function that cannot be successfully exercised by the 3 Justices of the Supreme
Court, for the obvious and simple reason that they could easily be outvoted by
the 6 members of the majority party in the Tribunal.
xxx xxx xxx
"In the case of the cited opinion of Secretary Abad Santos rendered in
1939, it did not appear that there were minority party candidates who were
adversely affected by the ruling of the Secretary of Justice and who could have
brought a test case to court." (Emphasis supplied.)

The defenses of waiver and estoppel set up against petitioner Taada are
untenable. Although "an individual may waive constitutional provisions intended for
his benefit", particularly those meant for the protection of his property, and,
sometimes, even those tending "to secure his personal liberty", the power to waive
does not exist when "public policy or public morals" are involved. (11 Am. Jur. 765; I
Cooley's Constitutional Limitations, pp. 368-371). The procedure outlined in the
Constitution for the organization of the Electoral Tribunals was adopted in response to
the demands of the common weal, and it has been held that "where a statute is
founded on public policy, those to whom it applies should not be permitted to waive
its provisions" (82 C. J. S., 874). Besides, there can be no waiver without an intent to
such effect, which Senator Taada did not have. Again, the alleged waiver or
exhaustion of his rights does not justify the exercise thereof by a person or party other
than that to which it is vested exclusively by the Constitution.
The rule on estoppel is that "whenever a party has, by his declaration, act or
omissions, intentionally and deliberately led another to believe a particular thing true,
and to act upon such belief, he cannot, in a litigation arising out of such declaration,
act or omission, be permitted to falsify it" (Rule 68, sec. 68 [a], Rules of Court). In
the case at bar, petitioner Senator Taada did not lead the Senate to believe that
Senator Primicias could nominate Senators Cuenco and Delgado. On the contrary,
said petitioner repeatedly asserted that his was the exclusive right to make the
nomination. He, likewise, specifically contested said nomination of Senators Cuenco
and Delgado. Again, the rule on estoppel applies to questions of fact, not of law, about
the truth of which the other party is ignorant (see Moran's Comments on the Rules of
Court, Vol. 3, pp. 490, 495). Such is not the nature of the situation that confronted
Senator Taada and the other members of the Senate. Lastly, the case of Zandueta vs.

De la Costa (66 Phil., 615), cited by respondents, is not in point. Judge Zandueta
assumed office by virtue of an appointment, the legality of which he later on assailed.
In the case at bar, the nomination and election of Senator Taada as member of the
Senate Electoral Tribunal was separate, distinct and independent from the nomination
and election of Senators Cuenco and Delgado.
In view of the foregoing, we hold that the Senate may not elect, as members of
the Senate Electoral Tribunal, those Senators who have not been nominated by the
political parties specified in the Constitution; that the party having the largest number
of votes in the Senate may nominate not more than three (3) members thereof to said
Electoral Tribunal; that the party having the second largest number of votes in the
Senate has the exclusive right to nominate the other three (3) Senators who shall sit as
members in the Electoral Tribunal; that neither these three (3) Senators, nor any of
them, may be nominated by a person or party other than the one having the second
largest number of votes in the Senate or its representative therein; that the Committee
on Rules for the Senate has no standing to validly make such nomination and that the
nomination of Senators Cuenco and Delgado by Senator Primicias, and the election of
said respondents by the Senate, as members of said Tribunal, are null and void ab
initio.
As regards respondents Alfredo Cruz, Catalina Cayetano, Manuel Serapio and
Placido Reyes, we are not prepared to hold, however, that their appointments were
null and void. Although recommended by Senators Cuenco and Delgado, who are not
lawful members of the Senate Electoral Tribunal, they were appointed by its
Chairman, presumably, with the consent of the majority of the de jure members of
said body 14 or, pursuant to the Rules thereof. At any rate, as held in Suanes vs. Chief
Accountant (supra), the selection of its personnel is an internal matter falling within
the jurisdiction and control of said body, and there is every reason to believe that it
will, hereafter, take appropriate measures, in relation to the four (4) respondents
abovementioned, conformably with the spirit of the Constitution and of the decision
in the case at bar.
Wherefore, judgment is hereby rendered declaring that respondents Senators
Mariano Jesus Cuenco and Francisco A. Delgado have not been duly elected as
Members of the Senate Electoral Tribunal, that they are not entitled to act as such and
that they should be, as they are hereby, enjoined from exercising the powers and
duties of Members of said Electoral Tribunal and from acting in such capacity in
connection with Senate Electoral Case No. 4 thereof. With the qualification stated
above, the petition is dismissed, as regards respondents Alfredo Cruz, Catalina
Cayetano, Manuel Serapio and Placido Reyes. Without special pronouncement as to
costs. It is so ordered.
Bengzon, Padilla, Montemayor, Reyes, A., Bautista Angelo, Reyes, J. B. L. and
Felix, JJ., concur.

Separate Opinions
PARAS, C.J., dissenting:
In 1939, Section (4) of Article VI of the Philippine Constitution provided that
"There shall be an Electoral Commission composed of three Justices of the Supreme
Court designated by the Chief Justice, and of six members chosen by the National
Assembly, three of whom shall be nominated by the party having the largest number
of votes, and three by the party having the second largest number of votes therein." As
all the members of the National Assembly then belonged to the Nacionalista Party and
a belief arose that it was impossible to comply with the constitutional requirement that
three members of the Electoral Commission should be nominated by the party having
the second largest number of votes, the opinion of the Secretary of Justice was sought
on the proper interpretation of the constitutional provision involved. Secretary of
Justice Jose A. Santos accordingly rendered the following opinion:
"Sir:
"I have the honor to acknowledge the receipt of your letter of January
24, 1939, thru the office of His Excellency, the President, in which you request
my opinion as 'to the proper interpretation of the following provision of Section
(4) of Article VI of the Philippine Constitution':
'There shall be an Electoral Commission composed of three Justices of
the Supreme Court designated by the Chief Justice, and of six members chosen
by the National Assembly, three of whom shall be nominated by the party
having the largest number of voter, and three by the party having the second
largest number of votes therein.'
"You state that 'as all the members of the present National Assembly
belong to the Nacionalista Party, it is impossible to comply with the last part of
the provision which requires that three members shall be nominated by the party
having the second largest number of votes in the Assembly.'
"The main features of the constitutional provision in question are: (1)
that there shall be an Electoral Commission composed of three Justices of the
Supreme Court designated by the Chief Justice, and of six members chosen by
the National Assembly; and that (2) of the six members to be chosen by the
National Assembly, three shall be nominated by the party having the largest
number of votes and three by the party having the second largest number of
votes.
"Examining the history of the constitutional provision, I find that in the
first two drafts it was provided that the Electoral Commission shall be
composed of 'three members elected by the members of the party having the
largest number of votes, three elected by the members of the party having the
second largest number of votes, and three justices of the Supreme Court . . .
(Aruego, The Framing of the Phil. Const., pp. 260-261). But as finally adopted
by the Convention, the Constitution explicitly states that there shall be 'six

members chosen by the National Assembly, three of whom shall be nominated


by the party having the largest number of votes, and three by the party having
the second largest number of votes' (Aruego, The Framing of the Phil. Const.,
pp. 271-272).
"From the foregoing changes in the phraseology of the provision, it is
evident that the intention of the framers of our Constitution was that there
should invariably be six members from the National Assembly. It was also
intended to create a non-partisan body to decide any partisan contest that may
be brought before the Commission. The primary object was to avoid decision
based chiefly if not exclusively on partisan considerations.
"The procedure or manner of nomination cannot possibly affect the
constitutional mandate that the Assembly is entitled to six members in the
Electoral Commission. When for lack of a minority representation in the
Assembly the power to nominate three minority members cannot be exercised,
it logically follows that the only party in the Assembly may nominate three
others, otherwise the explicit mandate of the Constitution that there shall be six
members from the National Assembly would be nullified.
"In other words, fluctuations in the total membership of the Commission
were not and could not have been intended. We cannot say that the Commission
should have nine members during one legislative term and six members during
the next. Constitutional provisions must always have a consistent application.
The membership of the Commission is intended to be fixed and not variable and
is not dependent upon the existence or non-existence of one or more parties in
the Assembly.
"'A cardinal rule in dealing with Constitutions is that they should
receive a consistent and uniform interpretation, so they shell not be
taken to mean one thing at one time and another thing at another time,
even though the circumstances may have so changed as to make a
different rule seem desirable (11 Am. Jur. 659).
"It is undisputed of course that the primary purpose of the Convention in
giving representation to the minority party in the Electoral Commission was to
safeguard the rights of the minority party and to protect their interests,
especially when the election of any member of the minority party is protected.
The basic philosophy behind the constitutional provision was to enable the
minority party to act as a check on the majority in the Electoral Commission,
with the members of the Supreme Court as the balancing factor. Inasmuch,
however, as there is no minority party represented in the Assembly, the
necessity for such a check by the minority party disappears. It is a function that
is expected to be exercised by the three Justices of the Supreme Court.
"To summarize, considering the plain terms of the constitutional
provision in question, the changes that it has undergone since it was first
introduced until finally adopted by the convention, as well as the considerations
that must have inspired the Constitutional Convention in adopting it as it is, I
have come to the conclusion that the Electoral Commission should be composed

of nine members, three from the Supreme Court and six chosen by the National
Assembly to be nominated by the party in power, there being no other party
entitled to such nomination."

Pursuant to the foregoing opinion of February 1, 1939, the Electoral


Commission was formally organized, with six members of the National Assembly all
belonging to the same party and three Justices of the Supreme Court. Constitutional
amendments were introduced and duly adopted in 1940, and the Electoral
Commission was replaced by an Electoral Tribunal for each house of Congress. It is
now provided that "Each Electoral Tribunal shall be composed of nine Members,
three of whom shall be Justices of the Supreme Court to be designated by the Chief
Justice, and the remaining six shall be Members of the Senate or of the House of
Representatives, as the case may be, who shall be chosen by each House, three upon
nomination of the party having the largest number of votes and three of the party
having the second largest number of votes therein. The senior Justice in each Electoral
Tribunal shall be its Chairman." (Article VI, Section 11, of the Constitution.)
If there was any doubt on the matter, the same was removed by the amendment
of 1940 the framers of which may be assumed to have been fully aware of the oneparty composition of the former National Assembly which gave rise to the
abovequoted opinion of the Secretary of Justice. When instead of wording the
amendment in such a form as to nullify said opinion, Section 11 of Article VI of the
Constitution not only did not substantially depart from the original constitutional
provision but also positively and expressly ordains that "Each Electoral Tribunal shall
be composed of nine Members," the intent has become clear and mandatory that at all
times the Electoral Tribunal shall have nine Members regardless of whether or not
two parties make up each house of Congress.
It is very significant that while the party having the second largest number of
votes is allowed to nominate three Members of the Senate or of the House of
Representatives, it is not required that the nominees should belong to the same party.
Considering further that the six Members are chosen by each house, and not by the
party or parties, the conclusion is inescapable that party affiliation is neither
controlling nor necessary.
Under the theory of the petitioners, even if there were sufficient Members
belonging to the party having the second largest of votes, the latter may nominate less
than three or none at all; and the Chief Justice may similarly designate less than three
Justices. If not absurd, this would frustrate the purpose of having an ideal number in
the composition of the Electoral Tribunal and guarding against the possibility of
deadlocks. It would not be accurate to argue that the Members of the Electoral
Tribunal other than the Justices of the Supreme Court would naturally vote along
purely partisan lines, checked or fiscalized only by the votes of the Justices; otherwise
membership in the Tribunal may well be limited to the Justices of the Supreme Court
and six others who are not Members of the Senate or of the House of Representatives.
Upon the other hand, the framers of the Constitution not insensitive to some such

argument still had reposed their faith and confidence in the independence, integrity
and uprightness of the Members of each House who are to sit in the Electoral
Tribunals and thereby expected them, as does everybody, to decide jointly with the
Justices of the Supreme Court election contests exclusively upon their merits.
In view of the failure or unwillingness of Senator Lorenzo M. Taada of the
Citizens Party, the party having the second largest number of votes in the Senate, to
nominate two other Members of the Electoral Tribunal, the Senate was justified, in
obedience to the constitutional mandate, to choose as it did said two Members.
I vote to dismiss the petition.
Endencia, J., concurs.
LABRADOR, J., dissenting:
I dissent and herewith proceed to explain my reasons therefor.
The constitutional provision, in pursuance of which Senators Cuenco and
Delgado were elected by the Senate members of the Senate Electoral Tribunal is as
follows:
"The Senate and the House of Representatives shall each have an
Electoral Tribunal which shall be the sole judge of all contests relating to the
election, returns, and qualifications of their respective Members. Each Electoral
Tribunal shall be composed of nine Members, three of whom shall be Justices
of the Supreme Court to be designated by the Chief Justice, and the remaining
six shall be Members of the Senate or of the House of Representatives, as the
case may be, who shall be chosen by each House, three upon nomination of the
party having the largest number of votes and three of the party having the
second largest number of votes therein. The Senior Justice in each Electoral
Tribunal shall be its Chairman." (Section II, Article VI of the Constitution.)

I hold that the above provision, just as any other constitutional provision, is
mandatory in character and that this character is true not only of the provision that
nine members shall compose the tribunal but also that which defines the manner in
which the members shall be chosen. Such a holding is in accord with well-settled
rules of statutory construction.
"As a general proposition, there is greater likelihood that constitutional
provisions will be given mandatory effect than is true of any other class of
organic law. Indeed, such a construction accords with the generally
acknowledged import of constitutional fiat; that its character is such as to
require absolute compliance in all cases without exception. And the very
principles of our institutions, involving as they do concepts of constitutional
supremacy, are such as to form reasonable grounds for a presumption that the
framers of a constitution intended that just such efficacy be given to it . . .."
(Sec. 5807, Sutherland Statutory Construction, Vol. 3, p. 84.)

The majority holds that as Senator Taada, the only member of the Senate who
does not belong to the Nacionalista Party, has refused to exercise the constitutional
privilege afforded him to nominate the two other members, the Senate may not elect
said two other members. And the reason given for this ruling is the presumed
intention of the constitutional provision to safeguard the interests of the minority. This
holding is subject to the following fundamental objections. In the first place, it renders
nugatory the provision which fixes the membership of the Senate Electoral Tribunal at
nine, a provision which is admittedly a mandatory provision. In the second place, it
denies to the Senate the power that the constitutional provision expressly grants it,
i.e., that of electing the members of the Electoral Tribunal; so in effect this right or
prerogative is lodged, as a consequence of the refusal of the minority member to
nominate, in the hands of said member of the minority, contrary to the constitutional
provision. In the third place, it would make the supposedly procedural provision, the
process of nomination lodged in the minority party in the Senate, superior to and
paramount over the power of election, which is lodged in the whole Senate itself. So
by the ruling of the majority, a procedural provision overrides a substantive one and
renders nugatory the other more important mandatory provision that the Electoral
Tribunal shall be composed of nine members. In the fourth place, the majority
decision has by interpretation inserted a provision in the Constitution which the
Constitutional Convention alone had the power to introduce, namely, a proviso to the
effect that if the minority fails or refuses to exercise its privilege to nominate all the
three members, the membership of the Electoral Tribunal shall thereby be
correspondingly reduced. This arrogation of power by us is not justified by any rule of
law or reason.
I consider the opinion of the Senate that the refusal of Senator Taada to
nominate the two other members must be construed as a waiver of a mere privilege,
more in consonance not only with the constitutional provision as a whole, but with the
dictates of reason. The above principle (of waiver) furnishes the remedy by which two
parts of the constitutional provision, that which fixes membership at nine and that
which outlines the procedure in which said membership of nine may be elected, can
be reconciled. Well known is the legal principle that provisions which in their
application may nullify each other should be reconciled to make them both effective,
if the reconciliation can be effected by the application of other legal principles. The
reconciliation is brought about in this case by the principle of waiver.
While I agree with the majority that it is the duty of this Court to step in, when
a constitutional mandate is ignored, to enforce said mandate even as against the other
coordinate departments, this is not the occasion for it to do so, for to say the least it
does not clearly appear that the form and manner in which the Senate exercised its
expressly recognized power to elect its members to the Senate Electoral Tribunal has
been clearly violative of the constitutional mandate.

Senators Cuenco and Delgado not having been duly elected as members of the
Senate Electoral Tribunal, are not entitled to act as such. Petition dismissed as
regards respondents Cruz, Cayetano, Serapio and Reyes.

|||

(Taada v. Cuenco, G.R. No. L-10520, [February 28, 1957])

EN BANC
[G.R. No. L-44640. October 12, 1976.]
PABLITO V. SANIDAD, petitioner, vs. HONORABLE
COMMISSION ON ELECTIONS and HONORABLE NATIONAL
TREASURER, respondents.
[G.R. No. L-44684. October 12, 1976.]
VICENTE M. GUZMAN, petitioner, vs. COMMISSION
ELECTIONS, respondents.
[G.R. No. L-44714. October 12, 1976.]
RAUL M. GONZALES, RAUL T. GONZALES, JR., and ALFREDO
SALAPANTAN, petitioner, vs. HONORABLE COMMISSION ON
ELECTIONS and HONORABLE NATIONAL TREASURER,
respondents.

DECISION

MARTIN, J :
p

The capital question raised in these prohibition suits with preliminary injunction relates to
the power of the incumbent President of the Philippines to propose amendments to the
present Constitution in the absence of the interim National Assembly which has not been
convened.
LibLex

On September 2, 1976, President Ferdinand E. Marcos issued Presidential Decree No.


991 calling for a national referendum on October 16, 1976 for the Citizens Assemblies
("barangays") to resolve, among other things, the issues of martial law, the interim
assembly, its replacement, the powers of such replacement, the period of its existence, the
length of the period for the exercise by the President of his present powers. 1
Twenty days after or on September 22, 1976, the President issued another related decree,
Presidential Decree No. 1031, amending the previous Presidential Decree No. 991, by
declaring the provisions of Presidential Decree No. 229 providing for the manner of
voting and canvass of votes in "barangays" (Citizens Assemblies) applicable to the

national referendum-plebiscite of October 16, 1976. Quite relevantly, Presidential Decree


No. 1031 repealed inter alia, Section 4, of Presidential Decree No. 991, the full text of
which (Section 4) is quoted in the footnote below. 2
On the same date of September 22, 1976, the President issued Presidential Decree No.
1033, stating the questions to be submitted to the people in the referendum-plebiscite on
October 16, 1976. The Decree recites in its "whereas" clauses that the people's continued
opposition to the convening of the interim National Assembly evinces their desire to have
such body abolished and replaced thru a constitutional amendment, providing for a new
interim legislative body, which will be submitted directly to the people in the
referendum-plebiscite of October 16.
The questions ask, to wit:
"(1)Do your want martial law to be continued?
(2)Whether or not you want martial law to be continued, do you approve the
following amendments to the Constitution? For the purpose of the second
question, the referendum shall have the effect of a plebiscite within the
contemplation of Section 2 of Article XVI of the Constitution.
PROPOSED AMENDMENTS:
1.There shall be, in lieu of the interim National Assembly, an interim Batasang
Pambansa. Members of the interim Batasang Pambansa which shall not be more
than 120, unless otherwise provided by law, shall include the incumbent
President of the Philippines, representatives elected from the different regions of
the nation, those who shall not be less than eighteen years of age elected by
their respective sectors, and those chosen by the incumbent President from the
members of the Cabinet. Regional representatives shall be apportioned among
the regions in accordance with the number of their respective inhabitants and on
the basis of a uniform and progressive ratio while the sectors shall be
determined by law. The number of representatives from each region or sector
and the, manner of their election shall be prescribed and regulated by law.
2.The interim Batasang Pambansa shall have the same powers and its members
shall have the same functions, responsibilities, rights, privileges, and
disqualifications as the interim National Assembly and the regular National
Assembly and the members thereof. However, it shall not exercise the power
provided in Article VIII, Section 14(1) of the Constitution.
3.The incumbent President of the Philippines shall, within 30 days from the
election and selection of the members, convene the interim Batasang Pambansa
and preside over its sessions until the Speaker shall have been elected. The
incumbent President of the Philippines shall be the Prime Minister and he shall

continue to exercise all his powers even after the interim Batasang Pambansa is
organized and ready to discharge its functions and likewise be shall continue to
exercise his powers and prerogatives under the nineteen hundred and thirty five.
Constitution and the powers vested in the President and the Prime Minister
under this Constitution.
4.The President (Prime Minister) and his Cabinet shall exercise all the powers
and functions, and discharge the responsibilities of the regular President (Prime
Minister) and his Cabinet, and shall be subject only to such disqualifications as
the President (Prime Minister) may prescribe. The President (Prime Minister) if
he so desires may appoint a Deputy Prime Minister or as many Deputy Prime
Ministers as he may deem necessary.
5.The incumbent President shall continue to exercise legislative powers until
martial law shall have been lifted.
6.Whenever in the judgment of the President (Prime Minister), there exists a
grave emergency or a threat or imminence thereof, or whenever the interim
Batasang Pambansa or the regular National Assembly fails or is unable to act
adequately on any matter for any reason that in his judgment requires immediate
action, he may, in order to meet the exigency, issue the necessary decrees,
orders or letters of instructions, which shall form part of the law of the land.
7.The barangays and sanggunians shall continue as presently constituted but
their functions, powers, and composition may be altered by law.
Referenda conducted thru the barangays and under the supervision of the
Commission on Elections may be called at any time the government deems it
necessary to ascertain the will of the people regarding any important matter
whether of national or local interest.
8.All provisions of this Constitution not inconsistent with any of these
amendments shall continue in full force and effect.
9.These amendments shall take effect after the incumbent President shall have
proclaimed that they have been ratified by a majority of the votes cast in the
referendum-plebiscite."

The Commission on Elections was vested with the exclusive supervision and control of
the October 1976 National Referendum-Plebiscite.
On September 27, 1976, PABLO C. SANIDAD and PABLITO V. SANIDAD, father and
son, commenced L-44640 for Prohibition with Preliminary Injunction seeking to enjoin
the Commission on Elections from holding and conducting the Referendum Plebiscite on
October 16; to declare without force and effect Presidential Decree Nos. 991 and 1033,
insofar as they propose amendments to the Constitution, as well as Presidential Decree

No. 1031, insofar as it directs the Commission on Elections to supervise, control, hold,
and conduct the Referendum-Plebiscite scheduled on October 16, 1976.
Petitioners contend that under the 1935 and 1973 Constitutions there is no grant to the
incumbent President to exercise the constituent power to propose amendments to the new
Constitution. As a consequence, the Referendum-Plebiscite on October 16 has no
constitutional or legal basis.
On October 5, 1976, the Solicitor General filed the comment for respondent Commission
on Elections. The Solicitor General principally maintains that petitioners have no
standing to sue; the issue raised is political in nature, beyond judicial cognizance of this
Court; at this state of the transition period, only the incumbent President has the authority
to exercise constituent power; the referendum-plebiscite is a step towards normalization.
On September 30, 1976, another action for Prohibition with Preliminary Injunction,
docketed as L-44684, was instituted by VICENTE M. GUZMAN, a delegate to the 1971
Constitutional Convention, asserting that the power to propose amendments to, or
revision of the Constitution during the transition period is expressly conferred on the
interim National Assembly under action 16, Article XVII of the Constitution. 3
Still another petition for Prohibition with Preliminary Injunction was filed on October 5,
1976 by RAUL M. GONZALES, his son RAUL, JR., and ALFREDO SALAPANTAN,
docketed as L-44714, to restrain the implementation of Presidential Decrees relative to
the forthcoming Referendum-Plebiscite of October 16.
These last petitioners argue that even granting him legislative powers under Martial Law,
the incumbent President cannot act as a constituent assembly to propose amendments to
the Constitution; a referendum-plebiscite is untenable under the Constitutions of 1935
and 1973; the submission of the proposed amendments in such a short period of time for
deliberation renders the plebiscite a nullity; to lift Martial Law, the President need not
consult the people via referendum; and allowing 15-year olds to vote would amount to an
amendment of the Constitution, which confines the right of suffrage to those citizens of
the Philippines 18 years of age and above.
We find the petitions in the three entitled cases to be devoid of merit.
I
Justiciability of question raised.
1.As a preliminary resolution, We rule that the petitioners in L-44640 (Pablo C. Sanidad
and Pablito V. Sanidad) possess locus standi to challenge the constitutional premise of
Presidential Decree Nos. 991, 1031, and 1033. It is now an ancient rule that the valid
source of a statute Presidential Decrees are of such nature may be contested by one

who will sustain a direct injury as a result of its enforcement. At the instance of
taxpayers, laws providing for the disbursement of public funds may be enjoined, upon the
theory that the expenditure of public funds by an officer of the State for the purpose of
executing an unconstitutional act constitutes a misapplication of such funds. 4 The
breadth of Presidential Decree No. 991 carries an appropriation of Five Million Pesos for
the effective implementation of its purposes. 5 Presidential Decree No. 1031 appropriates
the sum of Eight Million Pesos to carry out its provisions. 6 The interest of the
aforenamed petitioners as taxpayers in the lawful expenditure of these amounts of public
money sufficiently clothes them with that personality to litigate the validity of the
Decrees appropriating said funds. Moreover, as regards taxpayer's suits, this Court enjoys
that open discretion to entertain the same or not. 7 For the present case, We deem it sound
to exercise that discretion affirmatively so that the authority upon which the disputed
Decrees are predicated may be inquired into.

2.The Solicitor General would consider the question at bar as a pure political one, lying
outside the domain of judicial review. We disagree. The amending process both as to
proposal and ratification, raises a judicial question. 8 This is especially true in cases
where the power of the Presidency to initiate the amending process by proposals of
amendments, a function normally exercised by the legislature, is seriously doubted.
Under the terms of the 1973 Constitution, the power to propose amendments to the
Constitution resides in the interim National Assembly during the period of transition
(Sec. 15, Transitory Provisions). After that period, and the regular National Assembly in
its active session, the power to propose amendments becomes ipso facto the prerogative
of the regular National Assembly (Sec. 1, pars. 1 and 2 of Art. XVI, 1973 Constitution).
The normal course has not been followed. Rather than calling the interim National
Assembly to constitute itself into a constituent assembly, the incumbent President
undertook the proposal of amendments and submitted the proposed amendments thru
Presidential Decree 1033 to the people in a Referendum-Plebiscite on October 16.
Unavoidably, the regularity of the procedure for amendments, written in lambent words
in the very Constitution sought to be amended, raises a contestable issue. The
implementing Presidential Decree Nos. 991, 1031, and 1033, which commonly purport to
have the force and effect of legislation are assailed as invalid, thus the issue of the
validity of said Decrees is plainly a justiciable one, within the competence of this Court
to pass upon. Section 2 (2) Article X of the new Constitution provides: "All cases
involving the constitutionality of a treaty, executive agreement, or law shall be heard and
decided by the Supreme Court en banc and no treaty, executive agreement, or law may be
declared unconstitutional without the concurrence of at least ten Members. . . .." The
Supreme Court has the last word in the construction not only of treaties and statutes, but
also of the Constitution itself. 9 The amending, like all other powers organized in the
Constitution, is in form a delegated and hence a limited power, so that the Supreme Court

is vested with that authority to determine whether that power has been discharged within
its limits.
LLpr

Political questions are neatly associated with the wisdom, not the legality of a particular
act. Where the vortex of the controversy refers to the legality or validity of the contested
act, that matter is definitely justiciable or non-political. What is in the heels of the Court
is not the wisdom of the act of the incumbent President in proposing amendments to the
Constitution, but his constitutional authority to perform such act or to assume the power
of a constituent assembly. Whether the amending process confers on the President that
power to propose amendments is therefore a downright justiciable question. Should the
contrary be found, the actuation of the President would merely he a brutum fulmen. If the
Constitution provides how it may be amended, the judiciary as the interpreter of that
Constitution, can declare whether the procedure followed or the authority assumed was
valid or not. 10
We cannot accept the view of the Solicitor General, in pursuing his theory of nonjusticiability, that the question of the President's authority to propose amendments and the
regularity of the procedure adopted for submission of the proposals to the people
ultimately lie in the judgment of the latter. A clear Descartes fallacy of vicious circle. Is it
not that the people themselves, by their sovereign act, provided for the authority and
procedure for the amending process when they ratified the present Constitution in 1973?
Whether, therefore, that constitutional provision has been followed or not is indisputably
a proper subject of inquiry, not by the people themselves of course who exercise no
power of judicial review, but by the Supreme Court in whom the people themselves
vested that power, a power which includes the competence to determine whether the
constitutional norms for amendments have been observed or not. And, this inquiry must
be done a priori not a posteriori, i.e., before the submission to and ratification by the
people.
Indeed, the precedents evolved by the Court on prior constitutional cases underline the
preference of the Court's majority to treat such issue of Presidential role in the amending
process as one of non-political impression. In the Plebiscite Cases, 11 the contention of
the Solicitor General that the issue on the legality of Presidential Decree No. 73
"submitting to the Filipino people (on January 15, 1973) for ratification or rejection the
Constitution of the Republic of the Philippines proposed by the 1971 Constitutional
Convention and appropriating funds therefor, "is a political one, was rejected and the
Court unanimously considered the issue as justiciable in nature. Subsequently, in the
Ratification Cases 12 involving the issue of whether or not the validity of Presidential
Proclamation No. 1102, "announcing the Ratification by the Filipino people of the
Constitution proposed by the 1971 Constitutional Convention," partakes of the nature of a
political question, the affirmative stand of the Solicitor General was dismissed, the Court
ruled that the question raised is justiciable. Chief Justice Concepcion, expressing the
majority view, said, "(T)hus, in the aforementioned plebiscite cases, We rejected the

theory of the respondents therein that the question-whether Presidential Decree No. 73
calling a plebiscite to be held on January 15, 1973, for the ratification or rejection of the
proposed new Constitution, was valid or not, was not a proper subject of judicial inquiry
because, they claimed, it partook of a political nature, and We unanimously declared that
the issue was a justiciable one. With identical unanimity. We overruled the respondent's
contention in the 1971 habeas corpus cases, questioning Our authority to determine the
constitutional sufficiency of the factual bases of the Presidential proclamation suspending
the privilege of the writ of habeas corpus on August 21, 1971, despite the opposite view
taken by this Court in Varcelon vs. Baker and Montenegro vs. Castaeda, insofar as it
adhered to the former case, which view We, accordingly, abandoned and refused to
apply. For the same reason, We did not apply and expressly modified, in Gonzales vs.
Commission on Elections, the political-question thereby adopted in Mabanag vs. Lopez
Vito." 13 The return to Barcelon vs. Baker and Mabanag vs. Lopez Vito, urged by the
Solicitor General, was decisively refused by the Court. Chief Justice Concepcion
continued: "The reasons adduced in support thereof are, however, substantially the same
as those given in support of the political question theory advanced in said habeas corpus
and plebiscite cases, which were carefully considered by this Court and found by it to be
legally unsound and constitutionally untenable. As consequence. Our decisions in the
aforementioned habeas corpus cases partakes of the nature and effect of a stare decisis
which gained added weight by its virtual reiteration."
II
The amending process as laid out
in the new Constitution.
1.Article XVI of the 1973 Constitution on Amendments ordains:
"SECTION 1.(1) Any amendment to, or revision of, this Constitution may be
proposed by the National Assembly upon a vote of three-fourths of all its
Members, or by a constitutional convention.
(2)The National Assembly may, by a vote of two-thirds of all its Members, call
a constitutional convention or, by a majority vote of all its Members, submit the
question of calling such a convention to the electorate in an election.
SECTION 2. Any amendment to, or revision of, this Constitution shall be valid
when ratified by a majority of the votes cast in a plebiscite which shall be held
not later than three months a after the approval of such amendment or revision."
In the present period of transition, the interim National Assembly instituted in
the Transitory Provisions is conferred with that amending power. Section 15 of
the Transitory Provisions reads:

"SECTION 15.The interim National Assembly, upon special call by the interim
Prime Minister, may, by a majority vote of all its Members, propose
amendments to this Constitution. Such amendments shall take effect when
ratified in accordance with Article Sixteen hereof."

There are, therefore, two periods contemplated in the constitutional life of the nation, i.e.,
period of normalcy and period of transition. In times of normalcy, the amending process
may be initiated by the proposals of the (1) regular National Assembly upon a vote of
three-fourths of all its members; or (2) by a Constitutional Convention called by a vote of
two-thirds of all the Members of the National Assembly. However the calling of a
Constitutional Convention may be submitted to the electorate in an election voted upon
by a majority vote of all the members of the National Assembly. In times of transition,
amendments may be proposed by a majority vote of all the Members of the interim
National Assembly upon special call by the interim Prime Minister.
2.This Court in Aquino v. COMELEC, 14 had already settled that the incumbent
President is vested with that prerogative of discretion as to when he shall initially
convene the interim National Assembly. Speaking for the majority opinion in that case,
Justice Makasiar said: "The Constitutional Convention intended to leave to the President
the determination of the time when he shall initially convene the interim National
Assembly, consistent with the prevailing conditions of peace and order in the country."
Concurring, Justice Fernandez, himself a member of that Constitutional Convention,
revealed: "(W)hen the Delegates to the Constitutional Convention voted on the Transitory
Provisions, they were aware of the fact that under the same, the incumbent President was
given the discretion as to when he could convene the interim National Assembly; it was
so stated plainly by the sponsor, Delegate Yaneza; as a matter of fact, the proposal that it
be convened 'immediately', made by Delegate Pimentel (V), was rejected." 15 The
President's decision to defer the convening of the interim National Assembly soon found
support from the people themselves. In the plebiscite of January 10-15, 1973, at which
the ratification of the 1973 Constitution was submitted, the people voted against the
convening of the interim National Assembly. In the referendum of July 24, 1973, the
Citizens Assemblies ("bagangays") reiterated their sovereign will to withhold the
convening of the interim National Assembly. Again, in the referendum of February 27,
1975, the proposed question of whether the interim National Assembly shall be initially
convened was eliminated, because some of the members of Congress and delegates of the
Constitutional Convention, who were deemed automatically members of the interim
National Assembly, were against its inclusion since in that referendum of January, 1973,
the people had already resolved against it.

3.In sensu striciore, when the legislative arm of the state undertakes the proposals of
amendment to a Constitution, that body is not in the usual function of lawmaking. It is

not legislating when engaged in the amending process. 16 Rather, it is exercising a


peculiar power bestowed upon it by the fundamental charter itself. In the Philippines, that
power is provided for in Article XVI of the 1973 Constitution (for the regular National
Assembly) or in Section 15 of the Transitory Provisions (for the interim National
Assembly). While ordinarily it is the business of the legislating body to legislate for the
nation by virtue of constitutional conferment, amending of the Constitution is not
legislative in character. In political science a distinction is made between constitutional
content of an organic character and that of a legislative character. The distinction,
however, is one of policy, not of law. 17 Such being the case, approval of the President of
any proposed amendment is a misnomer. 18 The prerogative of the President to approve
or disapprove applies only to the ordinary cases of legislation. The President has nothing
to do with proposition or adoption of amendments to the Constitution. 19
III
Concentration of Powers
in the President during
crisis government.
1.In general, the governmental powers in crisis government the Philippines is a crisis
government today are more or less concentrated in the President. 20 According to
Rossiter, "(t)he concentration of government power in a democracy faced by an
emergency is a corrective to the crisis inefficiencies inherent in the doctrine of the
separation of powers. In most free states it has generally been regarded as Imperative that
the total power of the government be parceled out among three mutually independent
branches executive, legislature, and judiciary. It is believed to be distructive of
constitutionalism if any one branch should exercise any two or more types of power, and
certainly a total disregard of the separation of powers is, as Madison wrote in the
Federalist, No. 47, 'the very definition of tyranny.' In normal times the separation of
powers forms a distinct obstruction to arbitrary governmental action. By this same token,
in abnormal times it may form an insurmountable barrier to a decisive emergency action
in behalf of the state and its independent existence. There are moments in the life of any
government when all powers must work together in unanimity of purpose and action,
even if this means the temporary union of executive, legislative, and judicial power in the
hands of one man. The more complete the separation of powers in a constitutional
system, the more difficult and yet the more necessary will be their fusion in time of
crisis." This is evident in a comparison of the crisis potentialities of the cabinet and
presidential systems of government. In the former the all-important harmony of
legislature and executive is taken for granted; in the latter it is neither guaranteed nor to
be to confidently expected. As a result, cabinet is more easily established and more
trustworthy than presidential dictatorship. The power of the state in crisis must not only
be concentrated and expanded; it must also be freed from the normal system of
constitutional and legal limitations. 21 John Locke, on the other hand, claims for the
executive in its own right a broad discretion capable even of setting aside the ordinary

laws in the meeting of special exigencies for which the legislative power had not
provided. 22 The rationale behind such broad emergency powers of the Executive is the
release of the government from "the paralysis of constitutional restraints" so that the
crisis may be ended and normal times restored.
2. The presidential exercise of legislative powers in times of martial law is now a
conceded valid act. That sun clear authority of the President is saddled on Section 3 (pars.
1 and 2) of the Transitory Provisions, thus: 23
"The incumbent President of the Philippines shall initially convene the interim
National Assembly and shall preside over its sessions until the interim Speaker
shall have been elected. He shall continue to exercise his powers and
prerogatives under the nineteen hundred and thirty-five Constitution and the
powers vested in the President and the Prime Minister under this Constitution
until he calls upon the interim National Assembly to elect the interim President
and the interim Prime Minister, who shall then exercise their respective powers
vested by this Constitution.
All proclamations, orders, decrees, instructions, and acts promulgated, issued, or
done by the incumbent President shall be part of the law of the land, and shall
remain valid, binding, and effective even after lifting of martial law or the
ratification of this Constitution, unless modified, revoked, or superseded by
subsequent proclamations, orders, decrees, instructions, or other acts of the
incumbent President, or unless expressly and explicitly modified or repealed by
the regular National Assembly."

"It is unthinkable," said Justice Fernandez, a 1971 Constitutional Convention


delegate, "that the Constitutional Convention, while giving to the President the
discretion when to call the interim National Assembly to session, and knowing that it
may not be convened soon, would create a vacuum in the exercise of legislative
powers. Otherwise, with no one to exercise the lawmaking powers, there would be
paralyzation of the entire governmental machinery." 24 Paraphrasing Rossiter, this is
an extremely important factor in any constitutional dictatorship which extends over a
period of time. The separation of executive and legislature ordained in the
Constitution presents a distinct obstruction to efficient crisis government. The steady
increase in executive power is not too much a cause for worry as the steady increase
in the magnitude and complexity of the problems the President has been called upon
by the Filipino people to solve in their behalf, which involve rebellion, subversion,
secession, recession, inflation, and economic crisis a. crisis greater than war. In
short, while conventional constitutional law just confines the President's power as
Commander-in-Chief to the direction of the operation of the national forces, yet the
facts of our political, social, and economic disturbances had convincingly shown that
in meeting the same, indefinite power should be attributed to the President to take
emergency measures. 25

IV
Authority of the incumbent
President to propose
amendments to the Constitution.
1.As earlier pointed out, the power to legislate is constitutionally consigned to the interim
National Assembly during the transition period. However, the initial convening of that
Assembly is a matter fully addressed to the judgment of the incumbent President. And, in
the exercise of that judgment, the President opted to defer convening of that body in utter
recognition of the people's preference. Likewise, in the period of transition, the power to
propose amendments to the Constitution lies in the interim National Assembly upon
special call by the President (Sec. 15 of the Transitory Provisions). Again, harking to the
dictates of the sovereign will, the President decided not to call the interim National
Assembly. Would it then be within the bounds of the Constitution and of law for the
President to assume that constituent power of the interim Assembly vis-a-vis his
assumption of that body's legislative functions? The answer is yes. If the President has
been legitimately discharging the legislative functions of the interim Assembly, there is
no reason why he cannot validly discharge the function of that Assembly to propose
amendments to the Constitution, which is but adjunct, although peculiar, to its gross
legislative power. This, of course, is not to say that the President has converted his office
into a constituent assembly of that nature normally constituted by the legislature. Rather,
with the interim National Assembly not convened and only the Presidency and the
Supreme Court in operation, the urges of absolute necessity render it imperative upon the
President to act as agent for and in behalf of the people to propose amendments to the
Constitution. Parenthetically, by its very constitution, the Supreme Court possesses no
capacity to propose amendments without constitutional infractions. For the President to
shy away from that actuality and decline to undertake the amending process would leave
the governmental machinery at a stalemate or create in the powers of the State a
destructive vacuum, thereby impeding the objective of a crisis government "to end the
crisis and restore normal times." In these parlous times, that Presidential initiative to
reduce into concrete forms the constant voices of the people reigns supreme. After all,
constituent assemblies or constitutional conventions, like the President now, are mere
agents of the people. 26
2.The President's action is not a unilateral move. As early as the referendums of January
1973 and February 1975, the people had already rejected the calling of the interim
National Assembly. The Lupong Tagapagpaganap of the Katipunan ng mga Sanggunian,
the Pambansang Katipunan ng mga Barangay, and the Pambansang Katipunan ng mga
Barangay, representing 42,000 barangays, about the same number of Kabataang
Barangay organizations, Sanggunians in 1,458 municipalities, 72 provinces, 3 subprovinces, and 60 cities had informed the President that the prevailing sentiment of the
people is for the abolition of the interim National Assembly. Other issues concerned the
lifting of martial law and amendments to the Constitution. 27 The national organizations

of Sangguniang Bayan presently proposed to settle the issues of martial law, the interim
Assembly, its replacement, the period of its existence, the length of the period for the
exercise by the President of its present powers in a referendum to be held on October 16.
28 The Batasang Bayan (legislative council) created under Presidential Decree 995 of
September 10, 1976, composed of 19 cabinet members, 9 officials with cabinet rank, 91
members of the Lupong Tagapagpaganap (executive committee) of the Katipunan ng
mga Sangguniang Bayan voted in session to submit directly to the people in a plebiscite
on October 16, the previously quoted proposed amendments to the Constitution,
including the issue of martial law. 29 Similarly, the "barangays" and the "sanggunians"
endorsed to the President the submission of the proposed amendments to the people on
October 16. All the foregoing led the President to initiate the proposal of amendments to
the Constitution and the subsequent issuance of Presidential Decree No. 1033 on
September 22, 1976 submitting the questions (proposed amendments) to the people in the
National Referendum-Plebiscite on October 16.

V
The People as Sovereign.
1.Unlike in a federal state, the location of sovereignty in a unitary state is easily seen. In
the Philippines, a republican and unitary state, sovereignty "resides in the people and all
government authority emanates from them. 30 In its fourth meaning, Savigny would treat
"people" as "that particular organized assembly of individuals in which, according to the
Constitution, the highest power exists." 31 This is the concept of popular sovereignty. It
means that the constitutional legislator, namely, the people, is sovereign. 32 In
consequence, the people may thus write into the Constitution their convictions on any
subject they choose in the absence of express constitutional prohibition. 33 This is
because, as Holmes said, the Constitution "is an experiment, as all life is an experiment."
34 "The necessities of orderly government," wrote Rottschaefer, "do not require that one
generation should be permitted to permanently fetter all future generations." A
constitution is based, therefore, upon a self-limiting decision of the people when they
adopt it. 35
2.The October 16 referendum-plebiscite is a resounding call to the people to exercise
their sovereign power as constitutional legislator. The proposed amendments, as earlier
discussed, proceed not from the thinking of a single man. Rather, they are the collated
thoughts of the sovereign will reduced only into enabling forms by the authority who can
presently exercise the powers of the government. In equal vein, the submission of those
proposed amendments and the question of martial law in a referendum-plebiscite
expresses but the option of the people themselves implemented only by the authority of
the President. Indeed, it may well be said that the amending process is a sovereign act,

although the authority to initiate the same and the procedure to be followed reside
somehow in a particular body.
VI
Referendum-Plebiscite not
rendered nugatory by the
participation of the 15-year olds.
1.October 16 is in parts a referendum and a plebiscite. The question (1) Do you want
martial law to be continued? is a referendum question, wherein the 15-year olds may
participate. This was prompted by the desire of the Government to reach the larger mass
of the people so that their true pulse may be felt to guide the President in pursuing his
program for a New Order. For the succeeding question on the proposed amendments,
only those of voting age of 18 years may participate. This is the plebiscite aspect, as
contemplated in Section 2, Article XVI of the new Constitution. 36 On this second
question, it would only be the votes of those 18 years old and above which will have
valid bearing on the results. The fact that the voting populace are simultaneously asked to
answer the referendum question and the plebiscite question does not infirm the
referendum-plebiscite. There is nothing objectionable in consulting the people on a given
issue, which is of current one and submitting to them for ratification of proposed
constitutional amendments. The fear of commingled votes (15-year olds and 18-year olds
above) is readily dispelled by the provision of two ballot boxes for every barangay center,
one containing the ballots of voters fifteen years of age and under eighteen, and another
containing the ballots of voters eighteen years of age and above. 37 The ballots in the
ballot box for voters fifteen years of age and under eighteen shall be counted ahead of the
ballots of voters eighteen years and above contained in another ballot box. And, the
results of the referendum-plebiscite shall be separately prepared for the age groupings,
i.e., ballots contained in each of the two boxes. 38
2.It is apt to distinguish here between a "referendum" and a "plebiscite." A "referendum"
is merely consultative in character. It is simply a means of assessing public reaction to the
given issues submitted to the people for their consideration, the calling of which is
derived from or within the totality of the executive power of the President. 39 It is
participated in by all citizens from the age of fifteen, regardless of whether or not they are
illiterates, feeble-minded, or ex-convicts. 40 A "plebiscite," on the other hand, involves
the constituent act of those "citizens of the Philippines not otherwise disqualified by law,
who are eighteen years of age or over, and who shall have resided in the Philippines for at
least one year and in the place wherein they propose to vote for at least six months
preceding the election." 41 Literacy, property, or any other substantive requirement is not
imposed. It is generally associated with the amending process of the Constitution, more
particularly, the ratification aspect.
VII

Freedoms of expression and


assembly not disturbed.
1.There appears to be no valid basis for the claim that the regime of martial law stultifies
in main the freedom to dissent. That speaks of a bygone fear. The martial law regime
which, in the observation of Justice Fernando, "is impressed with a mild character"
recorded no State imposition for a muffled voice. To be sure, there are restraints of the
individual liberty, but on certain grounds no total suppression of that liberty is aimed at.
The machinery for the referendum-plebiscite on October 16 recognizes all the embracing
freedoms of expression and assembly. The President himself had announced that he
would not countenance any suppression of dissenting views on the issues, as he is not
interested in winning a "yes" or "no" vote, but on the genuine sentiment of the people on
the issues at hand. 42 Thus, the dissenters soon found their way to the public forums,
voicing out loud and clear their adverse views on the proposed amendments and even on
the valid ratification of the 1973 Constitution, which is already a settled matter. 43 Even
government employees have been held by the Civil Service Commission free to
participate in public discussion and even campaign for their stand on the referendumplebiscite issues. 44
VIII
Time for deliberation
is not short.
1.The period from September 21 to October 16 or a period of 3 weeks is not too short for
free debates or discussions on the referendum-plebiscite issues. The questions are not
new. They are the issues of the day. The people have been living with them since the
proclamation of martial law four years ago. The referendums of 1973 and 1975 carried
the same issue of martial law. That notwithstanding, the contested brief period for
discussion is not without counterparts in previous plebiscites for constitutional
amendments. Justice Makasiar, in the Referendum Case, recalls: "Under the old Society,
15 days were allotted for the publication in three consecutive issues of the Official
Gazette of the women's suffrage amendment to the Constitution before the scheduled
plebiscite on April 30, 1937 (Com. Act No. 34). The constitutional amendment to append
as ordinance the complicated Tydings-Kocialskowski was published in only three
consecutive issues of the Official Gazette for 10 days prior to the scheduled plebiscite
(Com. Act 492). For the 1940 Constitutional amendments providing for the bicameral
Congress, the re-election of the President and Vice-President, and the creation of the
Commission on Elections, 20 days of publication in three consecutive issues of the
Official Gazette was fixed (Com. Act No. 517). And the Parity Amendment, an involved
constitutional amendment affecting the economy as well as the independence of the
Republic was publicized in three consecutive issues of the Official Gazette for 20 days
prior to the plebiscite (Rep. Act No. 73)." 45

2.It is worthy to note that Article XVI of the Constitution makes no provision as to the
specific date when the plebiscite shall be held, but simply states that it "shall be held not
later than three months after the approval of such amendment or revision." In Coleman v.
Miller, 46 the United States Supreme court held that this matter of submission involves
"an appraisal of a great variety of relevant conditions, political, social and economic,"
which "are essentially political and not justiciable." The constituent body or in the instant
cases, the President, may fix the time within which the people may act. This is because,
first, proposal and ratification are not treated as unrelated acts, but as succeeding steps in
a single endeavor, the natural inference being that they are not to be widely separated in
time; second, it is only when there is deemed to be a necessity therefor that amendments
are to be proposed, the reasonable implication being that when proposed, they are to be
considered and disposed of the presently, and third, ratification is but the expression of
the approbation of the people, hence, it must be done contemporaneously. 47 In the words
of Jameson, "(a)n alteration of the Constitution proposed today has relation to the
sentiment and the felt needs of today, and that, if not ratified early while that sentiment
may fairly be supposed to exist, it ought to be regarded as waived, and not again to be
voted upon, unless a second time proposed by [proper body]." 48
IN RESUME
The three issues are:
1.Is the question of the constitutionality of Presidential Decrees Nos. 991, 1031 and 1033
political or justiciable?
2.During the present stage of the transition period, and under the environmental
circumstances now obtaining, does the President possess power to propose amendments
to the Constitution as well as set up the required machinery and prescribe the procedure
for the ratification of his proposals by the people?
3.Is the submission to the people of the proposed amendments within the time frame
allowed therefor a sufficient and proper submission?
Upon the first issue, Chief Justice Fred Ruiz Castro and Associate Justices Enrique M.
Fernando, Claudio Teehankee, Antonio P. Barredo, Cecilia Muoz Palma, Hermogenes
Concepcion Jr. and Ruperto G. Martin are of the view that the question posed is
justiciable, while Associate Justices Felix V. Makasiar, Felix Q. Antonio and Ramon C.
Aquino hold the view that the question is political.

Upon the second issue, Chief Justice Castro and Associate Justices Barredo, Makasiar,
Antonio, Aquino, Concepcion Jr. and Martin voted in the affirmative, while Associate

Justices Teehankee and Muoz Palma voted in the negative. Associate Justice Fernando,
conformably to his concurring and dissenting opinion in Aquino vs. Enrile (59 SCRA
183), specifically dissents from the proposition that there is concentration of powers in
the Executive during periods of crisis, thus raising serious doubts as to the power of the
President to propose amendments.
Upon the third issue, Chief Justice Castro and Associate Justices Barredo, Makasiar,
Aquino, Concepcion Jr. and Martin are of the view that there is a sufficient and proper
submission of the proposed amendments for ratification by the people. Associate Justices
Barredo and Makasiar expressed the hope, however, that the period of time may be
extended. Associate Justices Fernando, Makasiar and Antonio are of the view that the
question is political and therefore beyond the competence and cognizance of this Court.
Associate Justice Fernando adheres to his concurrence in the opinion of Chief Justice
Concepcion in Gonzales vs. COMELEC (21 SCRA 774). Associate Justices Teehankee
and Muoz Palma hold that precinding from the President's lack of authority to exercise
the constituent power to propose the amendments, etc., as above stated, there is no fair
and proper submission with sufficient information and time to assure intelligent consent
or rejection under the standards set by this Court in the controlling cases of Gonzales,
supra and Tolentino vs. COMELEC (41 SCRA 702).
Chief Justice Castro and Associate Justices Barredo, Makasiar, Antonio, Aquino,
Concepcion Jr. and Martin voted to dismiss the three petitions at bar. For reasons as
expressed in his separate opinion, Associate Justice Fernando concurs in the result.
Associate Justices Teehankee and Muoz Palma voted to grant the petitions.
ACCORDINGLY, the vote being 8 to 2 to dismiss, the said petitions are hereby
dismissed. This decision is immediately executory.
SO ORDERED.
Aquino, J., concurs in the result.

Separate Opinions
CASTRO, C.J., concurring:
From the challenge as formulated in the three petitions at bar and the grounds advanced
by the Solicitor General in opposition thereto, as well as the arguments adduced by the
counsels of the parties at the hearing had on October 7 and 8, 1976, three vital issues
readily project themselves as the centers of controversy, namely:

(1)Is the question of the constitutionality of Presidential Decrees Nos. 991, 1031
and 1033 political or justiciable?
(2)During the present stage of the transition period, and under the
environmental circumstances now obtaining, does the President possess power
to propose amendments to the Constitution as well as set up the required
machinery and Prescribe the procedure for the ratification of his proposals by
the people?
(3)Is the submission to the people of the proposed amendments within the time
frame allowed therefor a sufficient and proper submission?

I
First Issue
The threshold question is not at all one of first impression. Specifically on the matter of
proposals to amend the Constitution, this Court, in Mabanag vs. Lopez Vito (78 Phil. 1),
inceptively announced the dictum that
"Proposal to amend the Constitution is a highly political function performed by
the Congress in its sovereign legislative capacity and committed to its charge by
the Constitution itself. The exercise of this power is even independent of any
intervention by the Chief Executive. If on grounds of expediency scrupulous
attention of the judiciary be needed to safeguard public interest, there is less
reason for judicial inquiry into the validity of a proposal than into that of a
ratification."

In time, however, the validity of the said pronouncement was eroded. In the
assessment of the Court itself
"The force of this precedent has been weakened, however, by Suanes vs. Chief
Accountant of the Senate (81 Phil. 818), Avelino vs. Cuenco (L-2581, March 4
and 14, 1949), Taada vs. Cuenco (L-10520, February 28, 1957), and Macias
vs. Commission on Elections (L-18684, September 14, 1961).
xxx xxx xxx
"In short, the issue whether or not a Resolution of Congress acting as a
constituent assembly violates the Constitution is essentially justiciable, not
political, and, hence, subject to judicial review, and, to the extent that this view
may be inconsistent with the stand taken in Mabanag vs. Lopez Vito (supra),
the latter should be deemed modified accordingly. The Members of the Court
are unanimous on this point." (Gonzales vs. Commission on Elections, et al, L28196, November 9, 1967, 21 SCRA 774, 786-787).

The abandonment of the Mabanag vs. Lopez Vito doctrine appears to have been
completed when, in Javellana vs. Executive Secretary, et al. (L-36142, March 31,
1973, 50 SCRA 30), six members of the Court concurred in the view that the question
of whether the 1973 Constitution was ratified in accordance with the provisions of
Article XV (Amendments) of the 1935 Constitution is inherently and essentially
justiciable.
As elucidated therein, with extensive quotations from Taada vs. Cuenco (103 Phil.
1051)
"'. . . the term 'political question' connotes, in legal parlance, what it means in
ordinary parlance, namely, a question of policy in matters concerning the
government of a State, as a body politic. In other words, in the language of
Corpus Juris Secundum (supra), it refers to 'those questions which, under the
Constitution, are to be decided by the people in their sovereign capacity, or in
regard to which full discretionary authority has been delegated to the
Legislature or executive branch of the government.' It is concerned with issues
dependent upon the wisdom, not legality, of a particular measure.'
"Accordingly, when the grant of power is qualified, conditional or subject to
limitations, the issue on whether or not the prescribed qualifications or
conditions have been met, or the limitations respected, is justiciable or nonpolitical, the crux of the problem being one of legality or validity of the
contested act, not its wisdom. Otherwise, said qualifications, conditions or
limitations particularly those prescribed or imposed by the Constitution
would be set at naught." (Javellana vs. Executive Secretary, supra).

So it is in the situation here presented. The basic issue is the constitutional validity of the
presidential acts of proposing amendments to the Constitution and of calling a
referendum-plebiscite for the ratification of the proposals made. Evidently, the question
does not concern itself with the wisdom of the exercise of the authority claimed or of the
specific amendments proposed. Instead the inquiry vel non is focused solely on the
existence of the said power in the President a question purely of legality determinable
thru interpretation and construction of the letter and spirit of the Constitution by the Court
as the final arbiter in the delineation of constitutional boundaries and the allocation of
constitutional powers.
LLpr

For the Court to shun cognizance of the challenge herein presented, especially in these
parlous years, would be to abdicate its constitutional powers, shirk its constitutional
responsibility, and deny the people their ultimate recourse for judicial determination.
I have thus no hesitancy in concluding that the question here presented is well within the
periphery of judicial inquiry.

II
Second Issue
The main question stands on a different footing; it appears unprecedented both here and
elsewhere. Its solution, I believe, can be found and unraveled only by a critical
assessment of the existing legal order in the light of the prevailing political and factual
milieu.
To be sure, there is an impressive array of consistent jurisprudence on the proposition
that, normally or under normal conditions, a Constitution may be amended only in accord
with the procedure set forth therein. Hence, if there be any such prescription for the
amendatory process as invariable there is because one of the essential parts of a
Constitution is the so-called "constitution of sovereignty" which comprises the provision
or provisions on the modes in accordance with which formal changes in the fundamental
law may be effected the same would ordinarily be the controlling criterion for the
validity of the amendments sought.
Unfortunately, however, during the present transition period of our political
development, no express provision is extant in the Constitution regarding the agency or
agent by whom and the procedure by which amendments thereto may be proposed and
ratified a fact overlooked by those who challenge the validity of the presidential acts
in the premises. This is so because there are at least two distinctly perceptible stages in
the transition from the old system of government under the 1935 Constitution to the new
one established by the 1973 Constitution.
The first stage comprises the period from the effectivity of the Constitution on January
17, 1973 to the time the Interim National Assembly is convened by the incumbent
President and the interim President and the interim Prime Minister are chosen (Article
XVII, Sections 1 and 3[1]. The existence of this stage as an obvious fact of the nation's
political life was recognized by the Court in Aquino vs. Commission on Elections, et al.
(L-40004, January 31, 1975, 62 SCRA 275), when it rejected the claim that, under the
1973 Constitution, the President was in duty bound to convene the interim National
Assembly soon after the Constitution took effect.
The second stage embraces the period from the date the interim National Assembly is
convened to the date the Government described in Articles VII to IX of the Constitution
is inaugurated, following the election of the members of the regular National Assembly
(Article XVII, Section 1) and the election of the regular President and Prime Minister.
This is as it should be because it is recognized that the President has been accorded the
discretion to determine when he shall initially convene the interim National Assembly,
and his decision to defer the convocation thereof has found overwhelming support by the
sovereign people in two previous referenda, thereby giving reality to an interregnum
between the effectivity of the Constitution and the initial convocation of the interim

National Assembly, which interregnum, as aforesaid, constitutes the first stage in the
transition period.
LexLib

Against this factual backdrop, it is readily discernible that neither of the two sets of
provisions embodied in the Constitution on the amendatory process applied during the
said first stage. Thus, Section 15, Article XVII (Transitory Provisions) provides
"Sec. 15.The interim National Assembly, upon special call by the interim Prime
Minister, may, by a majority vote of all its Members, propose amendments to
this Constitution. Such amendments shall take effect when ratified in
accordance with Article Sixteen hereof."

Patently, the reference to the "interim National Assembly" and the "interim Prime
Minister" limits the application thereof to the second stage of the transition period,
i.e., after the interim National Assembly shall have been convened and the interim
Prime Minister shall have been chosen.
Upon the other hand, the provisions of Article XVI (Amendments), to wit
"SECTION 1.(1) Any amendment to, or revision of, this Constitution may be
proposed by the National Assembly upon a vote of three-fourths of all its
Members, or by a constitutional convention.
"(2.)The National Assembly may, by a vote of two-thirds of all its Members,
call a constitutional convention or, by a majority vote of all its Members, submit
the question of calling such a convention to the electorate in an election.
"SEC. 2.Any amendment to, or revision of, this Constitution shall be valid when
ratified by a majority of the votes cast in a plebiscite which shall be held not
later than three months after the approval of such amendment or revision."

unequivocally contemplate amendments after the regular Government shall have


become fully operative, referring as they do to the National Assembly which will
come Into being only at that time.
In the face of this constitutional hiatus, we are confronted with the dilemma whether
amendments to the Constitution may be effected during the aforesaid first stage and, if in
the affirmative, by whom and in what manner such amendments may be proposed and
ratified.
Susceptibility to change is one of the hallmarks of an ideal Constitution. Not being a
mere declaration of the traditions of a nation but more the embodiment of a people's
hopes and aspirations, its strictures are not unalterable. They are, instead, dynamic

precepts intended to keep in stride with and attuned to the living social organism they
seek to fashion and govern. If it is conceded that "the political or philosophical aphorism
of one generation is doubted by the next and entirely discarded by the third," then a
Constitution must be able to adjust to the changing needs and demands of society so that
the latter may survive, progress and endure. On these verities, there can be no debate.
During the first stage of the transition period in which the Government is at present
which is understandably the most critical the need for change may be most pressing
and imperative, and to disavow the existence of the right to amend the Constitution
would be sheer political heresy. Such view would deny the people a mechanism for
effecting peaceful change, and belie the organic conception of the Constitution by
depriving it of its means of growth. Such a result obviously could not have been intended
by the framers of the fundamental law.
LLpr

It seems, however, that the happenstance that the first period would come to pass before
the convocation of the interim National Assembly was not anticipated, hence, the
omission of an express mandate to govern the said situation in so far as amendments are
concerned. But such omission through inadvertence should not, because it cannot, negate
the sovereign power of the people to amend the fundamental charter that governs their
lives and their future and perhaps even the very survival of the nation.
Upon the other hand, it is clear from the afore-quoted provisions on the amendatory
process that the intent was, instead, to provide a simpler and more expeditious mode of
amending the Constitution during the transition period. For, while under Article XVI
thereof, proposals for amendment may be made directly by the regular National
Assembly by a vote of at least three-fourths of all its members, under Section 15 of
Article XVII, a bare majority vote of all the members of the interim National Assembly
would suffice for the purpose. The relaxation and the disparity in the vote requirement
are revealing. They can only signify a recognition of the need to facilitate the adoption of
amendments during the second state of the transition period so that the interim National
Assembly will be able, in a manner of speaking, to iron out the kinks in the new
Constitution, remove imperfections therein, and provide for changed or changing
circumstances before the establishment of the regular Government. In this context,
therefore, it is inutile speculation to assume that the Constitution was intended to render
impotent or bar the effectuation of needful change at an even more critical period the
first stage. With greater reason, therefore, must the right and power to amend the
Constitution during the first stage of the transition period be upheld, albeit within its
express and implied constraints.
cdphil

Neither can it be successfully argued, in the same context and in the present posture, that
the Constitution may be amended during the said first stage only by convening the
interim National Assembly. That is to say and require that the said stage must first be
brought to an end before any amendment may be proposed and ratified. Settled

jurisprudence does not square with such a proposition. As aptly noted in Aquino vs.
Commission on Elections, et al., supra, the framers of the Constitution set no deadline for
the convening of the interim National Assembly because they could not have foreseen
how long the crises which impelled the proclamation and justify the continued state of
martial law would last. Indeed, the framers committed to the sound judgment or the
President the determination of the time when the interim National Assembly should be
convoked. That judgment is not subject to judicial review, save possibly to determine
whether arbitrariness has infected such exercise; absent such a taint, the matter is solely
in the keeping of the President. To thus contend that only by convening the interim
Nation Assembly may the Constitution be amended at this. time would effectively
override the judgment vested in the President, even in default of any showing that in not
convoking the interim National Assembly he has acted arbitrarily or gravely abused his
discretion. Furthermore, to sustain such a contention would not only negate the mandate
so resoundingly expressed by the people in two national referenda against the immediate
convening of the interim National Assembly, but as well deride the President has
exercised the legislative power to issue proclamations, orders decrees and instructions
having the stature and force of law.
Given the constitutional stalemate or impasse spawned by these supervening
developments, the logical query that compels itself for resolution is: By whom, then, may
proposals for the amendment of the Constitution be made and in what manner may said
proposals be ratified by the people?
It is conventional wisdom that, conceptually, the constituent power is not to be confused
with legislative power in general because the prerogative to propose amendments to the
Constitution is not in any sense embraced within the ambit of ordinary law-making.
Hence, there is much to recommend the proposition that, in default of an express grant
thereof, the legislature traditionally the delegated repository thereof may not claim
it under a general grant of legislative authority. In the same vein, neither would it be
altogether unassailable to say that because by constitutional tradition and express
allocation the constituent power under the Constitution is located in the law-making
agency and at this stage of the transition period the law-making authority is firmly
recognized as being lodged in the President, the said constituent power should now
logically be in the hands of the President, who may thus exercise it in place of the interim
National Assembly. Instead, as pointed out in Gonzales vs. Commission on Elections, et
al., supra, the power to amend the Constitution or to propose amendments thereto
". . . is part of the inherent powers of the people as the reposition of
sovereignty in a republican state, such as ours to make, and, hence, to amend
their own Fundamental Law."

As such it is undoubtedly a power that only the sovereign people, either directly by
themselves or through their chosen delegate, can wield. Since it has been shown that

the people, inadvertently or otherwise, have not delegated that power to any
instrumentality during the current stage of our hegira from crisis to normalcy, it
follows of necessity that the same remains with them for them to exercise in the
manner they see fit and through the agency they choose. And, even if it were
conceded that as it is reputedly the rule in some jurisdictions a delegation of the
constituent authority amounts to a complete divestiture from the people of the power
delegated which they may not thereafter unilaterally reclaim from the delegate, there
would he no violence done to such rule, assuming it to be applicable here, inasmuch
as that power, under the environmental circumstances adverted to, has not been
delegated to anyone in the first place. The constituent power during the first stage of
the transition period belongs to and remains with the people, and accordingly may be
exercised by them how and when at their pleasure.
At this juncture, a flashback to the recent and contemporary political ferment in the
country proves revelatory. The people, shocked and revolted by the "obvious immorality"
of the unabashed manner by which the delegates to the Constitutional Convention
virtually legislated themselves into office as ipso facto members of the interim National
Assembly by the mere fiat of voting for the transitory provisions of the Constitution, and
the stark reality that the unwieldy political monstrosity that the interim Assembly
portended to be would have proven to be a veritable drain on the meager financial
resources of a nation struggling for survival, have unequivocally put their foot down, as it
were, on the convocation thereof. But this patently salutary decision of the people proved
to be double-edged. It likewise bound the political machinery of the Government in a
virtual straight-jacket and consigned the political evolution of the nation into a state of
suspended animation. Faced with the ensuing dilemma, the people understandably
agitated for a solution. Through consultations in the barangays and sanggunian
assemblies, the instrumentalities through which the people's voice is articulated in the
unique system of participatory democracy in the country today, the underpinnings for the
hastening of the return to constitutional normalcy quickly evolved into an overwhelming
sentiment to amend the Constitution in order to replace the discredited interim National
Assembly with what the people believe will be an appropriate agency to eventually take
over the law-making power and thus pave the way for the early lifting of martial rule. In
pursuit of this sentiment, and to translate its constraints into concrete action, the
Pambansang Katipunan ng mga Barangay, the Pambansang Katipunan ng mga Kabataang
Barangay, the Lupong Tagapagpaganap of the Katipunan ng mga Sanggunian, and finally
the Batasang Bayan, to a man and as one voice, have come forward with definitive
proposals for the amendment of the Constitution, and, choosing the President the only
political arm of the State at this time through which that decision could be implemented
and the end in view attained as their spokesman, proposed the amendments under
challenge in the cases at bar.
llcd

In the light of this milieu and its imperatives, one thing is inescapable: the proposals now
submitted to the people for their ratification in the forthcoming referendum-plebiscite are
factually not of the President; they are directly those of the people themselves speaking
thru their authorized instrumentalities. The President merely formalized the said
proposals in Presidential Decree No. 1033. It being conceded in all quarters that
sovereignty resides in the people and it having been demonstrated that their constituent
power to amend the Constitution has not been delegated by them to any instrumentality
of the Government during the present stage of the transition period of our political
development, the conclusion is ineluctable that their exertion of that residuary power
cannot be vulnerable to any constitutional challenge as being ultra vires. Accordingly,
without venturing to rule on whether or not the President is vested with constituent power
as it does not appear necessary to do so in the premises the proposals here
challenged, being acts of the sovereign people no less, cannot be said to be afflicted with
unconstitutionality. A fortiori, the concomitant authority to call a plebiscite and to
appropriate funds therefor is even less vulnerable not only because the President, in
exercising said authority, has acted as a mere alter ego of the people who made the
proposals, but likewise because the said authority is legislative in nature rather than
constituent.
III
Third Issue
Little need be said of the claimed insufficiency and impropriety of the submission of the
proposed amendments for ratification from the standpoint of time. The thesis cannot be
disputed that a fair submission presupposes an adequate time lapse to enable the people to
be sufficiently enlightened on the merits or demerits of the amendments presented for
their ratification or rejection. However, circumstances there are which unmistakably
demonstrated that the desideratum is met. Even if the proposal appear to have been
formalized only upon the promulgation of Presidential Decree No. 1033 on September
22, 1976, they are actually the crystallization of sentiments that for so long have
preoccupied the minds of the people and their authorized representatives, from the very
lowest level of the political hierarchy Hence, unlike proposals emanating from a
legislative body, the same cannot but be said to have been mulled over, pondered upon,
debated, discussed and sufficiently understood by the great masses of the nation long
before they ripened into formal proposals.
Besides, it is a fact of which judicial notice may well be taken that in the not so distant
past when the 1973 Constitution was submitted to the people for ratification, an all-out
campaign, in which all the delegates of the Constitutional Convention reportedly
participated, was launched to acquaint the people with the ramifications and working of
the new system of government sought to be inaugurated thereunder. It may thus well be
assumed that the people in general have since acquired, in the very least, a working
knowledge of the entirety of the Constitution. The changes now proposed the most

substantial of which being merely the replacement of the interim National Assembly with
another legislative arm for the Government during the transition period until the regular
National Assembly shall have been constituted do not appear to be of such complexity
as to require considerable time to be brought home to the full understanding of the
people. And, in fact, the massive and wide-ranging informational and educational
campaign to this end has been and still is in full swing, with all the media, the barangays,
the civic and sectoral groups, and even the religious all over the land in active and often
enthusiastic if not frenetic involvement.
Indeed, when the people cast their votes on October 16, a negative vote could very well
mean an understanding of the proposals which they reject; while an affirmative vote
could equally be indicative of such understanding and/or an abiding credence in the
fidelity with which the President has kept the trust they have confided to him as President
and administrator of martial rule.
IV
Conclusion
It is thus my considered view that no question viable for this Court to pass judgment upon
is posed. Accordingly, I vote for the outright dismissal of the three petitions at bar.
FERNANDO, J., concurring and dissenting:
These three petitions, the latest in a series of cases starting from Planas v. Commission on
Elections, 1 continuing with the epochal resolution in Javellana v. Executive Secretary, 2
and followed successively in three crucial decisions, Aquino v. Ponce Enrile, 3 Aquino v.
Commission on Elections, 4 and Aquino v. Military Commission, 5 manifest to the same
degree the delicate and awesome character of the function of judicial review. While
previous rulings supply guidance and enlightenment, care is to be taken to avoid
doctrinaire rigidity unmindful of altered circumstances and the urgencies of the times. It
is inappropriate to resolve the complex problems of a critical period without full
awareness of the consequences that flow from whatever decision is reached. Jural norms
must be read in the context of social facts. There is need therefore of adjusting inherited
principles to new needs. For law, much more so constitutional law, is simultaneously a
reflection of and a force in the society that it controls. No quality then can be more
desirable in constitutional adjudication than that intellectual and imaginative insight
which goes into the heart of the matter. The judiciary must survey things as they are in
the light of what they must become. It must inquire into the specific problem posed not
only in terms of the teaching of the past but also of the emerging political and legal
theory, especially so under a leadership notable for its innovative approach to social
problems and the vigor of its implementation. This, on the one side. It must equally be
borne in mind through that this Court must ever be conscious of the risk inherent in its
being considered as a mere subservient instrument of government policy, however

admittedly salutary or desirable. There is still the need to demonstrate that the conclusion
reached by it in cases appropriate for its determination has support in the law that must be
applied. To my mind that was the norm followed, the conclusion reached being that the
three petitions be dismissed. I am in agreement. It is with regret however that based on
my reading of past decisions, both Philippine and American, and more specifically my
concurring opinion in Aquino v. Ponce Enrile, I must dissent from the proposition set
forth in the able and scholarly opinion of Justice Martin that there is concentration of
power in the President during a crisis government. Consequently, I cannot see my way
clear to accepting the view that the authority to propose amendments is not open to
question. At the very least, serious doubts could be entertained on the matter.
cdll

1.With due respect then, I have to dissociate myself from my brethren who would rule
that governmental powers in a crisis government, following Rossiter, "are more or less
concentrated in the President." Adherence to my concurring and dissenting opinion in
Aquino v. Ponce Enrile 6 leaves me no choice.
It must be stated at the outset that with the sufficiency of doctrines supplied by our past
decisions to point the way to what I did consider the appropriate response to the basic
issue raised in the Aquino and the other habeas corpus petitions resolved jointly, it was
only in the latter portion of my opinion that reference was made to United States
Supreme Court pronouncements on martial law, at the most persuasive in character and
rather few in number "due no doubt to the absence in the American Constitution of any
provision concerning it." 7 It was understandable then that it was only after the landmark
Ex parte Milligan case, that commentators like Cooley in 1868 and Watson in 1910 paid
attention, minimal at that, to the subject. 8 It was next set forth that in the works on
American constitutional law published in this century especially after the leading cases of
Sterling v. Constantin and Duncan v. Kahanamoku, "there was a fuller treatment of the
question of martial law." 9 While it is the formulation of Willoughby that for me is most
acceptable, my opinion did take note that another commentator, Burdick, came out earlier
with a similar appraisal. 10 Thus: "So-called martial law, except in occupied territory of
an enemy, is merely the calling in of the aid of military forces by the executive, who is
charged with the enforcement of the law, with or without special authorization by the
legislature. Such declaration of martial law does not suspend the civil law, though it may
interfere with the exercise of one's ordinary rights. The right to call out the military forces
to maintain order and enforce the law is simply part of the police power. It is only
justified when it reasonably appears necessary, and only justifies such acts as reasonably
appear necessary to meet the exigency, including the arrest, or in extreme cases the
killing of those who create the disorder or oppose the authorities. When the exigency is
over the members of the military forces are criminally and civilly liable for acts done
beyond the scope of reasonable necessity. When honestly and reasonably coping with a
situation of insurrection or riot a member of the military forces cannot be made liable for
his acts, and persons reasonably arrested under such circumstances will not, during the
insurrection or riot, be free by writ of habeas corpus." 11 When the opinion cited

Willoughby's concept of martial law, stress was laid on his being "partial to the claims of
liberty." 12 This is evident in the explicit statement from his work quoted by me: "There
is, then, strictly speaking, no such thing in American law as a declaration of martial law
whereby military law is substituted for civil law. So-called declarations of martial law
are, indeed, often made but their legal effect goes no further than to warn citizens that the
military powers have been called upon by the executive to assist him in the maintenance
of law and order, and that, while the emergency lasts, they must, upon pain of arrest and
punishment not commit any acts which will in any way render more difficult the
restoration of order and the enforcement of law. Some of the authorities stating
substantially this doctrine are quoted in the footnote below." 13 Nor did I stop there. The
words of Willis were likewise cited: "Martial law proper, that is, military law in case of
insurrection, riots, and invasions, is not a substitute for the civil law, but is rather an aid
to the execution of civil law. Declarations of martial law go no further than to warn
citizens that the executive has called upon the military power to assist him in the
maintenance of law and order. While martial law is in force, no new powers are given to
the executive and no civil rights of the individual, other than the writ of habeas corpus,
are suspended. The relations between the citizen and his state are unchanged." 14

The conclusion reached by me as to the state of American federal law on the question of
martial law was expressed thus: "It is readily evident that even when Milligan supplied
the only authoritative doctrine, Burdick and Willoughby did not ignore the primacy of
civil liberties. Willis wrote after Sterling. It would indeed be surprising if his opinion
were otherwise. After Duncan, such an approach becomes even more strongly fortified.
Schwartz, whose treatise is the latest to be published, has this summary of what he
considers the present state of American law: 'The Milligan and Duncan cases show
plainly that martial law is the public law of necessity. Necessity alone calls it forth;
necessity justifies its exercise; and necessity measures the extent and degree to which it
may be employed. It is, the high Court has affirmed, an unbending rule of law that the
exercise of military power, where the rights of the citizen are concerned, may never be
pushed beyond what the exigency requires. If martial law rule survives the necessity on
which alone it rests, for even a single minute, it becomes a mere exercise of lawless
violence.' Further: 'Sterling v. Constantin is of basic importance. Before it, a number of
decisions, including one by the highest Court, went on the theory that the executive had a
free hand in taking martial-law measures. Under them, it has been widely supposed that a
martial-law proclamation was so far conclusive that any action taken under it was
immune from judicial scrutiny. Sterling v. Constantin definitely discredits these earlier
decisions and the doctrine of conclusiveness derived from them. Under Sterling v.
Constantin, where martial law measures impinge upon personal or property rights normally beyond the scope of military power, whose intervention is lawful only because
an abnormal situation has made it necessary the executive's ipse dixit is not of itself
conclusive of the necessity.'" 15

There was likewise an effort on my part to show what for me is the legal effect of martial
law being expressly provided for in the Constitution rather than being solely predicated
on the common law power based on the urgent need for it because of compelling
circumstances incident to the state of actual clash of arms: "It is not to be lost sight of that
the basis for the declaration of martial law in the Philippines is not mere necessity but an
explicit constitutional provision. On the other hand, Milligan, which furnished the
foundation for Sterling and Duncan had its roots in the English common law. There is
pertinence therefore in ascertaining its significance under that system. According to the
noted English author, Dicey: 'Martial law,' in the proper sense of that term, in which it
means the suspension of ordinary law and the temporary government of a country or parts
of it by military tribunals, is unknown to the law of England. We have nothing equivalent
to what is called in France the "Declaration of the State of Siege," under which the
authority ordinarily vested in the civil power for the maintenance of order and police
passes entirely to the army (autorite militaire). This is an unmistakable proof of the
permanent supremacy of the law under our constitution.' There was this qualification:
'Martial law is sometimes employed as a name for the common law right of the Crown
and its servants to repel force by force in the case of invasion, insurrection, riot, or
generally of any violent resistance to the law, This right, or power, is essential to the very
existence of orderly government, and is most assuredly recognized in the most ample
manner by the law of England. It is a power which has in itself no special connection
with the existence of an armed force. The Crown has the right to put down breaches of
the peace. Every subject, whether a civilian or a soldier, whether what is called a 'servant
of the government,' such for example as a policeman, or a person in no way connected
with the administration, not only has the right, but is, as a matter of legal duty, bound to
assist in putting down breaches of the peace. No doubt policemen or soldiers are the
persons who, as being specially employed in the maintenance of order, are most generally
called upon to suppress a riot, but it is clear that all loyal subjects are bound to take their
part in the suppression of riots." 16
Commitment to such an approach results in my inability to subscribe to the belief that
martial law in terms of what is provided both in the 1935 and the present Constitution,
affords sufficient justification for the concentration of powers in the Executive during
periods of crisis. The better view, considering the juristic theory on which our
fundamental law rests is that expressed by Justice Black in Duncan v. Kahanamoku:
"Legislatures and courts are not merely cherished American institutions; they are
indispensable to our government." 17 If there has been no observance of such a cardinal
concept at the present, it is due to the fact that before the former Congress could meet in
regular session anew, the present Constitution was adopted, abolishing it and providing
for an interim National Assembly, which has not been convened. 18 So I did view the
matter.
2.Nor did I ignore Rossiter in my Aquino v. Ponce Enrile opinion. Reference was made
to the first chapter on his work on Constitutional Dictatorship where he spoke of martial

rule as "a device designed for use in the crisis of invasion or rebellion. It may be most
precisely defined as an extension of military government to the civilian population, the
substitution of the will of a military commander for the will of the people's elected
government." 19 Since, for me at least, the Rossiter characterization of martial law has in
it more of the common law connotation, less than duly mindful of the jural effects of its
inclusion in the Constitution itself as a legitimate device for coping with emergency
conditions in times of grave danger, but always subject to attendant limitations in
accordance with the fundamental postulate of a charter's supremacy, I felt justified in
concluding: "Happily for the Philippines, the declaration of martial law lends itself to the
interpretation that the Burdick, Willoughby, Willis, Schwartz formulations paying due
regard to the primacy of liberty possess relevance. It cannot be said that the martial rule
concept of Rossiter, latitudinarian in scope, has been adopted, even on the assumption
that it can be reconciled with our Constitution. What is undeniable is that President
Marcos has repeatedly maintained that Proclamation No. 1081 was precisely based on the
Constitution and that the validity of acts taken thereunder could be passed upon by the
Supreme Court. For me, that is quite reassuring, persuaded as I am likewise that the view
of Rossiter is opposed to the fundamental concept of our polity, which puts a premium on
freedom." 20
3.Candor and accuracy compel the admission that such a conclusion has to be qualified.
For in the opinion of the Court in the aforecited Aquino v. Commission on Elections,
penned by Justice Makasiar, the proposition was expressly affirmed "that as Commanderin-Chief and enforcer or administrator of martial law, the incumbent President of the
Philippines can promulgate proclamations, orders and decrees during the period of
Martial Law essential to the security and preservation of the Republic, to the defense of
the political and social liberties of the people and to the institution of reforms to prevent
the resurgence of rebellion or insurrection or secession or the threat thereof as well as to
meet the impact of a worldwide recession, inflation or economic crisis which presently
threatens all nations including highly developed countries." 21 To that extent, Rossiter's
view, mainly relied upon, now possesses juristic significance in this jurisdiction. What,
for me at least, gives cause for concern is that with the opinion of the Court this intrusion
of what I would consider an alien element in the limited concept of martial law as set
forth in the Constitution would be allowed further incursion into the corpus of the law,
with the invocation of the view expressed in the last chapter of his work, approving the
"concentration of governmental power in a democracy [as] a corrective to the crisis
inefficiencies inherent in the doctrine of the separation of powers." 22 It is to the credit of
the late Professor Rossiter as an objective scholar that in the very same last chapter, just
three pages later, he touched explicitly on the undesirable aspect of a constitutional
dictatorship. Thus: "Constitutional Dictatorship is a dangerous thing. A declaration of
martial law or the passage of an enabling act is a step which must always be feared and
sometimes bitterly resisted, for it is at once an admission of the incapacity of democratic
institutions to defend the order within which they function and a too conscious
employment of powers and methods long ago outlawed as destructive of constitutional

government. Executive legislation, state control of popular liberties, military courts, and
arbitrary executive action were governmental features attacked by the men who fought
for freedom not because they were inefficient or unsuccessful, but because they were
dangerous and oppressive. The reinstitution of any of these features is a perilous matter, a
step to be taken only when the dangers to a free state will be greater if the dictatorial
institution is not adopted." 23
4.It is by virtue of such considerations that I find myself unable to share the view of those
of my brethren who would accord recognition to the Rossiter concept of concentration of
governmental power in the Executive during periods of crisis. This is not to lose sight of
the undeniable fact that in this country through the zeal, vigor, and energy lavished on
projects conducive to the general welfare, considerable progress has been achieved under
martial rule. A fair summary may be found in a recent address of the First Lady before
the delegates to the 1976 International Monetary Fund-World Bank Joint Annual
Meeting: "The wonder is that so much has been done in so brief a time. Since September
1972, when President Marcos established the crisis government, peace and order have
been restored in a country once avoided as one of the most unsafe in the world. We have
liberated millions of Filipino farmers from the bondage of tenancy, in the most vigorous
and extensive implementation of agrarian reform." 24 Further, she said: "A dynamic
economy has replaced a stagnant order, and its rewards are distributed among the many,
not hoarded by a few. Our foreign policy, once confined by fear and suspicion to a
narrow alley of self-imposed isolation, now travels the broad expressways of friendship
and constructive interaction with the whole world, these in a new spirit of confidence and
self-reliance. And finally, forced to work out our own salvation, the Filipino has rediscovered the well-springs of his strength and resiliency. As Filipinos, we have found
our true identity. And having broken our crisis of identity, we are no longer apologetic
and afraid." 25 The very idea of a crisis, however, signifies a transitory, certainly not a
permanent, state of things. President Marcos accordingly has not been hesitant in giving
utterance to his conviction that full implementation of the modified parliamentary system
under the present Constitution should not be further delayed. The full restoration of
civilian rule can thus be expected. That is more in accord with the imperatives of a
constitutional order. It should not go unnoticed either that the President has referred to
the present regime as one of "constitutional authoritarianism." That has a less
objectionable ring, authority being more identified with the idea of law, as based on right,
the very antithesis of naked force, which to the popular mind is associated with
dictatorship, even if referred to as "constitutional."

For me likewise, that equally eminent scholar Corwin, also invoked in the opinion of the
Court, while no doubt a partisan of a strong Presidency, was not averse to constitutional
restraints even during periods of crisis. So I would interpret this excerpt from the fourth
edition of his classic treatise on the Presidency: "A regime of martial law may be

compendiously, if not altogether accurately, defined as one in which the ordinary law, as
administered by the ordinary courts, is superseded for the time being by the will of a
military commander. It follows that, when martial law is instituted under national
authority, it rests ultimately on the will of the President of the United States in his
capacity as Commander-in-Chief. It should be added at once, nevertheless, that the
subject is one in which the record of actual practice fails often to support the niceties of
theory. Thus, the employment of the military arm in the enforcement of the civil law does
not invariably, or even usually, involve martial law in the strict sense, for, as was noted in
the preceding section, soldiers are often placed simply at the disposal and direction of the
civil authorities as a kind of supplementary police, or posse comitatus; on the other hand
by reason of the discretion that the civil authorities themselves are apt to vest in the
military in any emergency requiring its assistance, the line between such an employment
of the military and a regime of martial law is frequently any but a hard and fast one. And
partly because of these ambiguities the conception itself of martial law today bifurcates
into two conceptions, one of which shades off into military government and the other into
the situation just described, in which the civil authority remains theoretically in control
although dependent on military aid. Finally, there is the situation that obtained throughout
the North during the Civil War, when the privilege of the writ of habeas corpus was
suspended as to certain classes of suspects, although other characteristics of martial law
were generally absent." 26
It is by virtue of the above considerations that, with due respect to the opinion of my
brethren, I cannot yield assent to the Rossiter view of concentration of governmental
powers in the Executive during martial law.
5.There is necessity then, for me at least, that the specific question raised in all three
petitions be squarely faced. It is to the credit of the opinion of the Court that it did so. The
basic issue posed concerns the boundaries of the power of the President during this period
of martial law, more precisely whether it covers proposing amendments to the
Constitution. There is the further qualification if the stand of respondents be taken into
account that the interim National Assembly has not been convened and is not likely to be
called into session in deference to the wishes of the people as expressed in three previous
referenda. It is the ruling of the majority that the answer be in the affirmative, such
authority being well within the area of presidential competence. Again I find myself
unable to join readily in that conviction. It does seem to me that the metes and bounds of
the executive domain, while still recognizable, do appear blurred. This is not to assert that
there is absolutely no basis for such a conclusion, sustained as it is by a liberal
construction of the principle that underlies Aquino v. Commission on Elections as to the
validity of the exercise of the legislative prerogative by the President as long as the
interim National Assembly is not convened. For me, the stage of certitude has not been
reached. I cannot simply ignore the vigorous plea of petitioners that there is a
constitutional deficiency consisting in the absence of any constituent power on the part of
the President, the express provision of the Constitution conferring it on the interim

National Assembly. 27 The learned advocacy reflected in the pleadings as well as the oral
discourse of Solicitor General Estelito P. Mendoza 28 failed to erase the grave doubts in
my mind that the Aquino doctrine as to the possession of legislative competence by the
President during this period of transition with the interim lawmaking body not called into
session be thus expanded. The majority of my brethren took that step. I am not prepared
to go that far. I will explain why.
The way, for me, is beset with obstacles. In the first place, such an approach would lose
sight of the distinction between matters legislative and constituent. That is implicit in the
treatise on the 1935 Constitution by Justices Malcolm and Laurel. 29 In their casebook 30
published the same year, one of the four decisions on the subject of constitutional
amendments is Ellingham v. Dye 31 which categorically distinguished between
constituent and legislative powers. Dean Sinco, a well-known authority on the subject,
was quite explicit. Thus: "If there had been no express provision in the Constitution
granting Congress the power to propose amendments, it would be outside its authority to
assume that power. Congress may not claim it under the general grant of legislative
power for such grant does not carry with it the right 'to erect the state, institute the form
of its government,' which is considered a function inherent in the people. Congressional
law-making authority is limited to the power of approving the laws 'of civil conduct
relating to the details and particulars of the government instituted,' the government
established by the people." 32 If that distinction he preserved, then for me the aforecited
Aquino decision does not reach the heart of the matter.
Nor is this all. In the main opinion of Justice Makasiar as well as that of the then Justice,
now Chief Justice, Castro, support for the ruling that the President cannot he deemed as
devoid of legislative power during this transition stage is supplied by implications from
explicit constitutional provisions. 33 That is not the case with the power to propose
amendments. It is solely the interim National Assembly that is mentioned. That is the
barrier that for me is well-nigh insurmountable. If I limit myself to entertaining doubts
rather than registering a dissent on this point, it is solely because of the consideration,
possessed of weight and significance, that there may be indeed in this far-from-quiescent
and static period a need for amendments. I do not feel confident therefore that a negative
vote on my part would be warranted. What would justify the step taken by the President,
even if no complete acceptance be accorded to the view that he was a mere conduit of the
barangays on this matter, is that as noted in both qualified concurrences by Justices
Teehankee and Muoz Palma in Aquino, as far as the legislative and appropriation
powers are concerned is the necessity that unless such authority be recognized, there may
be paralyzation of governmental activities. While not squarely applicable, such an
approach has, to my mind, a persuasive quality as far as the power to propose
amendments is concerned.
Thus I would confine myself to the expression of serious doubts on the question rather
than a dissent.

6.The constitutional issue posed as thus viewed leaves me free to concur in the result that
the petitions be dismissed. That is to accord respect to the principle that judicial review
goes no further than to checking clear infractions of the fundamental law, except in the
field of human rights where a much greater vigilance is required. That is to make of the
Constitution a pathway to rather than a barrier against a desirable objective. As shown by
my concurring and dissenting opinion in Tolentino v. Commission on Elections, 34 a premartial law decision, the fundamental postulate that sovereignty resides in the people 35
exerts a compelling force requiring the judiciary to refrain as much as possible from
denying the people the opportunity to make known their wishes on matters of the utmost
import for the life of the nation, Constitutional amendments fall in that category. I am
fortified in that conviction by the teaching of persuasive American decisions. 36
There is reinforcement to such a conclusion from retired Chief Justice Concepcion's
concurring and dissenting opinion in Aytona v. Castillo, 37 which I consider applicable to
the present situation. These are his words: "It is well settled that the granting of writs of
prohibition and mandamus is ordinarily within the sound discretion of the courts, to be
exercised on equitable principles, and that said writs should be issued when the right to
the relief is clear . . .." 38 As he noted in his ponencia in the later case of Gonzales v.
Hechanova, 39 an action for prohibition, while petitioner was sustained in his stand, no
injunction was issued. This was evident in the dispositive portion where judgment was
rendered "declaring that respondent Executive Secretary had and has no power to
authorize the importation in question; that he exceeded his jurisdiction in granting said
authority; that said importation is not sanctioned by law and is contrary to its provisions;
and that, for lack of the requisite majority, the injunction prayed for must be and is,
accordingly, denied." 40 With the illumination thus supplied, it does not necessarily
follow that even a dissent on my part would necessarily compel that I vote for the relief
prayed for. Certainly this is not to belittle in any way the action taken by petitioners in
filing these suits. That, for me, is commendable. It attests to their belief in the rule of law.
Even if their contention as to lack of presidential power be accepted in their entirety,
however, there is still discretion that may be exercised on the matter, prohibition being an
equitable remedy. There are, for me, potent considerations that argue against acceding to
the plea. With the prospect of the interimNational Assembly being convened being dim,
if not non-existent, if only because of the results in three previous referenda, there would
be no constitutional agency other than the Executive who could propose amendments,
which, as noted, may urgently press for adoption. Of even greater weight, to my mind, is
the pronouncement by the President that this plebiscite is intended not only to solve a
constitutional anomaly with the country devoid of a legislative body but also to provide
the machinery by which the termination of martial law could be hastened. That is a
consummation devoutly to be wished. That does militate strongly against the stand of
petitioners. The obstruction they would pose may be fraught with pernicious
consequences.
LLjur

It may not be amiss to refer anew to what I deem the cardinal character of the jural
postulate explicitly affirmed in both the 1935 and the present Constitutions that
sovereignty resides in the people. So I made clear in Tolentino v. Commission on
Elections and thereafter in my dissent in Javellana v. The Executive Secretary 41 and my
concurrence in Aquino v. Commission on Elections. 42 The destiny of the country lies in
their keeping. The role of leadership is not to be minimized. It is crucial; it is of the
essence. Nonetheless, it is their will, if given expression in a manner sanctioned by law
and with due care that there he no mistake in its appraisal, that should be controlling.
There is all the more reason then to encourage their participation in the power process.
That is to make the regime truly democratic. Constitutional orthodoxy requires, however,
that the fundamental law be followed. So I would interpret Laski, 43 Corwin, 44 Lerner,
45 Bryn-Jones, 46 and McIver. 47
7.There is reassurance in the thought that this Court has affirmed its commitment to the
principle that the amending process gives rise to a justiciable rather than a political
question. So it has been since the leading case of Gonzales v. Commission on Elections.
48 It has since then been followed in Tolentino v. Commission on Elections, 49 Planas v.
Commission On Elections, 50 and lastly, in Javellana v. The Executive Secretary. 51 This
Court did not heed the vigorous plea of the Solicitor General to resurrect the political
question doctrine announced in Mabanag v. Lopes Vito. 52 This is not to deny that the
federal rule in the United States as set forth in the leading case of Coleman v. Miller, 53 a
1939 decision, and relatively recent State court decisions, supply ammunition to such a
contention. 54 That may be the case in the United States, but certainly not in this
jurisdiction. Philippine constitutional tradition is to the contrary. It can trace its origin to
these words in the valedictory address before the 1934-35 Constitutional Convention by
the illustrious Claro M. Recto: "It is one of the paradoxes a democracy that the people of
times place more confidence in instrumentalities of the State other than those directly
chosen by them for the exercise of their sovereignty." 55 It can be said with truth,
therefore, that there has invariably been a judicial predisposition to activism rather than
self-restraint. The thinking all these years has been that it goes to the heart of
constitutionalism. It may be said that this Court has shunned the role of a mere
interpreter; it did exercise at times creative power. It has to that extent participated in the
molding of policy. It has always recognized that in the large and undefined field of
constitutional law, adjudication partakes of the quality of statecraft. The assumption has
been that just because it cannot by itself guarantee the formation, much less the
perpetuation of democratic values or, realistically, it cannot prevail against the pressure
of political forces if they are bent in other directions, it does not follow that it should not
contribute its thinking to the extent that it can. It has been asked, it will continue to be
asked, to decide momentous questions at each critical stage of this nation's life.
There must be, however, this caveat. Judicial activism gives rise to difficulties in an era
of transformation and change. A society in flux calls for dynamism in the law, which
must be responsive to the social forces at work. It cannot remain static. It must be

sensitive to life. This Court then must avoid the rigidity of legal ideas. It must resist the
temptation of wallowing in the wasteland of meaningless abstractions. It must face
stubborn reality. It has to have a feel for the complexities of the times. This is not to
discount the risk that it may be swept too far and too fast in the surge of novel concepts.
The past too is entitled to a hearing; it cannot just be summarily ignored. History still has
its uses. It is not for this Court to renounce the virtue of systematic jural consistency. It
cannot simply yield to the sovereign sway of the accomplished fact. It must be deaf to the
dissonant dialectic of what appears to be a splintered society. It should strive to be a
factor for unity under a rule of law. There must be, on its part, awareness of the truth that
a new juridical age born before its appointed time may be the cause of unprecedented
travail that may not end at birth. It is by virtue of such considerations that I did strive for
a confluence of principle and practicality. I must confess that I did approach the matter
with some misgivings and certainly without any illusion of omniscience. I am comforted
by the thought that immortality does not inhere in judicial opinions.
LexLib

8.I am thus led by my studies on the subject of constitutional law and, much more so, by
previous judicial opinions to concur in the dismissal of the petitions. If I gave expression
to views not currently fashionable, it is solely due to deeply-ingrained beliefs. Certainly, I
am the first to recognize the worth of the social and economic reforms so needed by the
troubled present that have been introduced and implemented. There is no thought then of
minimizing, much less of refusing to concede, the considerable progress that has been
made and the benefits that have been achieved under this Administration. Again, to
reiterate one of my cherished convictions, I certainly approve of the adherence to the
fundamental principle of popular sovereignty, which, to be meaningful however, requires
both freedom in its manifestation and accuracy in ascertaining what it wills. Then, too, it
is fitting and proper that a distinction was made between two aspects of the coming poll,
the referendum and the plebiscite. It is only the latter that is impressed with authoritative
force. So the Constitution requires. Lastly, there should be, as I did mention in my
concurrence in Aquino v. Commission on Elections, 56 full respect for free speech and
press, free assembly and free association. There should be no thought of branding the
opposition as the enemy and the expression of its views as anathema. Dissent, it is
fortunate to note, has been encouraged. It has not been identified with disloyalty. That
ought to be the case, and not solely due to presidential decrees. Constructive criticism is
to be welcomed not so much because of the right to be heard but because there may be
something worth hearing. That is to ensure a true ferment of ideas, an interplay of
knowledgeable minds. There are though well-defined limits. One may not advocate
disorder in the name of protest, much less preach rebellion under the cloak of dissent.
What i mean to stress is that except on a showing of clear and present danger, there must
be respect for the traditional liberties that make a society truly free.
cdphil

TEEHANKEE, J., dissenting:

I.On the merits: I dissent from the majority's dismissal of the petitions for lack of merit
and vote to grant the petitions for the following reasons and considerations:
1.It is undisputed that neither the 1935 Constitution nor the 1973 Constitution grants to
the incumbent President the constituent power to propose and approve amendments to the
Constitution to be submitted to the people for ratification in a plebiscite.
The 1935 Constitution expressly vests the constituent power in Congress, by a threefourths vote of all its members, to propose amendments or call a constitutional
convention for the purpose. 1
The 1973 Constitution expressly vests the constituent power in the regular National
Assembly to propose amendments (by a three-fourths vote of all its members) or "call a
constitutional convention" (by a two-thirds vote of all its members) or "submit the
question of calling such convention to the electorate in an election" (by a majority vote of
all its members). 2
The transitory provisions of the 1973 Constitution expressly vest the constituent power
during the period of transition in the interim National Assembly "upon special call by the
interim Prime Minister (the incumbent President 3 ). by a majority vote of all its members
(to) propose amendments." 4
Since the Constitution provides for the organization of the essential departments of
government, defines and delimits the powers of each and prescribes the manner of the
exercise of such powers, and the constituent power has not been granted to but has been
withheld from the President or Prime Minister, it follows that the President's questioned
decrees 5 proposing and submitting constitutional amendments directly to the people
(without the intervention of the interim National Assembly in whom the power is
expressly vested) are devoid of constitutional and legal basis.
2.The doctrine in the leading case of Tolentino vs. Comelec is controlling in the case at
bar. In therein declaring null and void the acts of the 1971 Constitutional Convention and
of the Comelec in calling a plebiscite with the general elections scheduled for November
8, 1971 for the purpose of submitting for the people's ratification an advance amendment
reducing the voting age from 21 years to 18 years, and issuing writs of prohibition and
injunction against the holding of the plebiscite, this Court speaking through Mr. Justice
Barredo ruled that
The Constitutional provisions on amendments 6 "dealing with the procedure or
manner of amending the fundamental law are binding upon the Convention and the other
departments of the government, (and) are no less binding upon the people"; 7

"As long as any amendment is formulated and submitted under the aegis of the present
Charter, any proposal for such amendment which is not in conformity with the letter,
spirit and intent of the Charter for effecting amendments, cannot receive the sanction of
this Court"; 8

9 and
Accordingly barred the plebiscite as improper and premature, since "the provisional
nature of the proposed amendment and the manner of its submission to the people for
ratification or rejection" did not "conform with the mandate of the people themselves in
such regard, as expressed in the Constitution itself", 10 i.e. the mandatory requirements
of the amending process as set forth in the Article on Amendments.
3.Applying the above rulings of Tolentino to the case at bar, mutatis mutandis, it is clear
that where the proposed amendments are violative of the Constitutional mandate on the
amending process not merely for being a "partial amendment" of a "temporary or
provisional character" (as in Tolentino) but more so for not being proposed and approved
by the department vested by the Constitution with the constituent power to do so, and
hence transgressing the substantive provision that it is only the interim National
Assembly, upon special call of the interim Prime Minister, by a majority vote of all its
members that may propose the amendments, the Court must declare the amendment
proposals null and void.
4.This is so because the Constitution is a "superior paramount law, unchangeable by
ordinary means" 11 but only by the particular mode and manner prescribed therein by the
people. As stressed by Cooley, "by the Constitution which they establish, (the people) not
only tie up the hands of their official agencies but their own hands as well; and neither
the officers of the State, nor the whole people as an aggregate body, are at liberty to take
action in opposition to this fundamental law". 12
The vesting of the constituent power to propose amendments in the legislative body (the
regular National Assembly or the interim National Assembly during the transition period)
or in a constitutional contention called for the purpose is in accordance with universal
practice. "From the very necessity of the case" Cooley points out "amendments to an
existing constitution, or entire revisions of it, must be prepared and matured by some
body of representatives chosen for the purpose. It is obviously impossible for the whole
people to meet, prepare, and discuss the proposed alterations, and there seems to be no
feasible mode by which an expression of their will can be obtained, except by asking it
upon the single point of assent or disapproval." This body of representatives vested with
the constituent power "submits the result of their deliberations" and "puts in proper form

the questions of amendment upon which the people are to pass" for ratification or
rejection. 13
5.The Court in Tolentino thus rejected the argument "that the end sought to be achieved is
to be desired" and in denying reconsideration, in paraphrase of the late Claro M. Recto,
declared that "let those who would put aside, invoking grounds at best controversial, any
mandate of the fundamental law purportedly in order to attain some laudable objective
bear in mind that someday somehow others with purportedly more laudable objectives
may take advantage of the precedent and continue the destruction of the Constitution,
making those who laid down the precedent of justifying deviations from the requirements
of the Constitution the victims of their own folly."
This same apprehension was echoed by now retired Justice Calixto O. Zaldivar in his
dissenting opinion in the Ratification cases 14 that "we will be opening the gates for a
similar disregard to the Constitution in the future. What I mean is that if this Court now
declares that a new Constitution is now in force because the members of the citizens
assemblies had approved said new Constitution, although that approval was not in
accordance with the procedure and the requirements prescribed in the 1935 Constitution,
it can happen again in some future time that some amendments to the Constitution may
be adopted, even in a manner contrary to the existing Constitution and the law, and then
said proposed amendments is submitted to the people in any manner and what will matter
is that a basis is claimed that there was approval by the people. There will not be stability
in our constitutional system, and necessarily no stability in our government."
6.It is not legally tenable for the majority, without overruling the controlling precedent of
Tolentino (and without mustering the required majority vote to so overrule) to accept the
proposed; amendments as valid notwithstanding their being 'not in conformity with the
letter, spirit and intent of the provision of the Charter for effecting amendments" on the
reasoning that "If the President has been legitimately discharging the legislative functions
of the interim National Assembly, there is no reason why he cannot validly discharge the
function of that Assembly to propose amendments to the Constitution, which is but
adjunct, although peculiar, to its gross legislative functions." 15
In the earlier leading case of Gonzales vs. Comelec 16 , this Court speaking through now
retired Chief Justice Roberto Concepcion, pointed out that "Indeed, the power to amend
the Constitution or to propose amendments thereto is not included in the general grant of
legislative powers to Congress" 17 or to the National Assembly. 18 Where it not for the
express grant in the Transitory Provisions of the constituent power to the interim National
Assembly, the interim National Assembly could not claim the power under the general
grant of legislative power during the transition period.
The majority's ruling in the Referendum cases 19 that the Transitory Provisions in section
3(2) recognized the existence of the authority to legislate in favor of the incumbent

President during the period of martial law manifestly cannot be stretched to encompass
the constituent power as expressly vested in the interim National Assembly in derogation
of the allotment of powers defined in the Constitution.
Paraphrasing Cooley on the non-delegation of legislative power as one of the settled
maxims of constitutional law, 20 the constituent power has been lodged by the sovereign
power of the people with the interim National Assembly during the transition period and
there it must remain as the sole constitutional agency until the Constitution itself is
changed.
As was aptly stated by Justice Jose P. Laurel in the 1936 landmark case of Angara vs.
Electoral Commission 21 "(T)he Constitution sets forth in no uncertain language the
restrictions and limitations upon governmental powers and agencies. If these restrictions
and limitations are transcended it would be inconceivable if the Constitution had not
provided for a mechanism by which to direct the course of government along
constitutional channels, for then the distribution of powers would be mere verbiage, the
bill of rights mere expressions of sentiment, and the principles of good government mere
political apothegms. Certainly, the limitations and restrictions embodied in our
Constitution are real as they should be in any living Constitution".
LLpr

7.Neither is the justification of "constitutional impasse" tenable. The sentiment of the


people against the convening of the interim National Assembly and to have no elections
for "at least seven (7) years" concededly could not amend the Constitution insofar as the
interim National Assembly is concerned (since it admittedly came into existence
"immediately" upon the proclamation of ratification of the 1973 Constitution), much less
remove the constituent power from said interim National Assembly.
As stressed in the writer's separate opinion in the Referendum cases 22 , "(W)hile it has
been advanced that the decision to defer the initial convocation of the interim National
Assembly was supported by the results of the referendum in January, 1973 when the
people voted against the convening of the interim National Assembly for at least seven
years, such sentiment cannot be given any legal force and effect in the light of the State's
admission at the hearing that such referendums are merely consultative and cannot amend
the Constitution or any provision which call for the 'immediate existence' and 'initial
convening of the interim National Assembly to 'give priority to measures for the orderly
transition from the presidential to the parliamentary system' and the other urgent
measures enumerated in section 5 thereof".
While the people reportedly expressed their mandate against the convening of the interim
National Assembly to discharge its legislative tasks during the period of transition under
martial law, they certainly had no opportunity and did not express themselves against
convening the interim National Assembly to discharge the consistent power to propose
amendments likewise vested in it by the people's official mandate in the Constitution.

In point of fact, when the holding of the October 16, 1976 referendum was first
announced, the newspapers reported that among the seven questions proposed by the
sanggunian and barangay national executive committees for the referendum was the
convening of the interim National Assembly. 23
It was further reported that the proposals which were termed tentative "will be discussed
and studied by (the President), the members of the cabinet, and the security council" and
that the barangays felt, notwithstanding the previous referenda on the convening of the
interim National Assembly that "it is time to again ask the people's opinion of this
matter." 24

8.If proposals for constitutional amendments are now deemed necessary to be discussed
and adopted for submittal to the people, strict adherence with the mandatory requirements
of the amending process as provided in the Constitution must be complied with. This
means, under the teaching of Tolentino that the proposed amendments must validly come
from the constitutional agency vested with the constituent power to do so, namely, the
interim National Assembly, and not from the executive power as vested in the Prime
Minister (the incumbent President) with the assistance of the Cabinet 25 from whom such
power has been withheld.
It will not do to contend that these proposals represent the voice of the people for as was
aptly stated by Cooley "The voice of the people, acting in their sovereign capacity, can be
of legal force only when expressed at the times and under the conditions which they
themselves have prescribed and pointed out by the Constitution. . . .." 26
The same argument was put forward and rejected by this Court in Tolentino which
rejected the contention that the "Convention being a legislative body of the highest order
(and directly elected by the people to speak their voice) is sovereign, and as such, its acts
impugned by petitioner are beyond the control of Congress and the Courts" and ruled that
the constitutional article on the amending process "is nothing more than a part of the
Constitution thus ordained by the people. Hence, in construing said section, We must
read it as if the people had said, 'The Constitution may be amended, but it is our will that
the amendment must be proposed and submitted to Us for ratification only in the manner
herein provided'". 27
This Court therein stressed that "This must be so, because it is plain to Us that the
framers of the Constitution took care that the process of amending the same should not be
undertaken with the same ease and facility in changing an ordinary legislation.
Constitution making is the most valued power, second to none, of the people in a
constitutional democracy such as the one our founding fathers have chosen for this
nation, and which we of the succeeding generations generally cherish. And because the

Constitution affects the lives, fortunes, future and every other conceivable aspect of the
lives of all the people within the country and those subject to its sovereignty, every
degree of care is taken in preparing and drafting it. A constitution worthy of the people
for which it is intended must not be prepared in haste without adequate deliberation and
study. It is obvious that correspondingly, any amendment of the Constitution is of no less
importance than the whole Constitution itself, and perforce must be conceived and
prepared with as much care and deliberation;" and that "written constitutions are
supposed to be designed so as to last for some time, if not for ages, or for, at least, as long
as they can be adopted to the needs and exigencies of the people, hence, they must be
insulated against precipitate and hasty actions motivated by more or less passing
political moods or fancies. Thus, as a rule, the original constitutions carry with them
limitations and conditions, more or less stringent, made so by the people themselves, in
regard to the process of their amendment." 28
9.The convening of the interim National Assembly to exercise the constituent power to
proposed amendments is the only way to fulfill the express mandate of the Constitution.
As Mr. Justice Fernando emphasized for this Court in Mutuc vs. Comelec 29 in the
setting aside of a Comelec resolution banning the use of political taped jingles by
candidates for Constitutional Convention delegates in the special 1970 elections, "the
concept of the Constitution as the fundamental law. setting forth the criterion for the
validity of any public act whether proceeding from the highest official or the lowest
functionary, is a postulate of our system of government. That is to manifest fealty to the
rule of law, with priority accorded to that which occupies the topmost rung in the legal
hierarchy. The three departments of government in the discharge of the functions with
which it is entrusted have no choice but to yield obedience to its commands. Whatever
limits it imposes must be observed. Congress in the enactment of statutes must ever be on
guard lest the restrictions on its authority, whether substantive or formal, be transcended.
The Presidency in the execution of the laws cannot ignore or disregard what it ordains. In
its task of applying the law to the facts as found in deciding cases, the judiciary is called
upon to maintain inviolate what is decreed by the fundamental law."
This is but to give meaning to the plain and clear mandate of section 15 of the Transitory
Provisions (which allows of no other interpretation) that during the stage of transition the
interim National Assembly alone exercises the constituent power to propose
amendments, upon special call therefor. This is reinforced by the fact that the cited
section does not grant to the interim National Assembly the same power granted to the
regular National Assembly of calling a constitutional convention, thus expressing the will
of the Convention (and presumably of the people upon ratification) that if ever the need
to propose amendments arose during the limited period of transition, the interim National
Assembly alone would discharge the task and no constitutional convention could be
called for the purpose.

As to the alleged costs involved in convening the interim National Assembly to propose
amendments, among them its own abolition, (P24 million annually in salaries alone for
its 400 members at P60,000.00 per annum per member, assuming that its deliberations
could last for one year), suffice it to recall this Court's pronouncement in Tolentino (in
rejecting a similar argument on the costs of holding a plebiscite separately from the
general elections for elective officials) that "it is a matter of public knowledge that bigger
amounts have been spent or thrown to waste for many lesser objectives. . . . Surely, the
amount of seventeen million pesos or even more is not too much a price to pay for fealty
and loyalty to the Constitution . . ." 30 and that "while the financial costs of a separate
plebiscite may be high, it can never be as much as the dangers involved in disregarding
clear mandate of the Constitution, no matter how laudable the objective" and "no
consideration of financial costs shall deter Us from adherence to the requirements of the
Constitution". 31
10.The imposition of martial law (and "the problems of rebellion, subversion, secession,
recession, inflation and economic crisis -a crisis greater than war") 32 cited by the
majority opinion as justifying the concentration of powers in the President, and the
recognition now of his exercising the constituent power to propose amendments to the
Fundamental Law "as agent for and in behalf of the people" 33 has no constitutional basis.
In the post-war Emergency Powers 33* , former Chief Justice Ricardo Paras reaffirmed
for the Court the principle that emergency in itself cannot and should not create power.
"In our democracy the hope and survival of the nation lie in the wisdom and unselfish
patriotism of all officials and in their faithful adherence to the Constitution".
The martial law clause of the 1973 Constitution found in Article IX, section 12, as
stressed by the writer in his separate opinion in the Referendum Cases, 34 "is a verbatim
reproduction of Article VII, section 10 (2) of the 1935 Constitution and provides for the
imposition of martial law only 'in case of invasion, insurrection or rebellion, or imminent
danger thereof, when the public safety requires it' and hence the use of the legislative
power or more accurately 'military power' under martial rule is limited to such necessary
measures as will safeguard the Republic and suppress the rebellion (or invasion)". 35
11. Article XVII, section 3 (2) of the 1973 Constitution which has been held by the
majority in the Referendum Cases to be the recognition or warrant for the exercise of
legislative power by the President during the period of martial law is but a transitory
provision. Together with the martial law clause, they constitute hut two provisions which
are not to be considered in isolation from the Constitution but as mere integral parts
thereof which must he harmonized consistently with the entire Constitution.
As Cooley restated the rule: "effect is to be given, if possible, to the whole instrument,
and to every section and clause. If different portions seem to conflict, the courts must

harmonize them, if practicable, and must lean in favor of a construction which will render
every word operative, rather than one which may make some words idle and nugatory.
"This rule is applicable with special force to written constitutions, in which the people
will be presumed to have expressed themselves in careful and measured terms,
corresponding with the immense importance of the powers delegated, leaving as little as
possible to implication. It is scarcely conceivable that a case can arise where a court
would be justified in declaring any portion of a written constitution nugatory because of
ambiguity. One part may qualify another so as to restrict its operation, or apply it
otherwise than the natural construction would require if it stood by itself; but one part is
not to be allowed to defeat another, if by any reasonable construction the two can be
made to stand together." 36
The transcendental constituent power to propose and approve amendments to the
Constitution as well as set up the machinery and prescribe the procedure for the
ratification of his proposals has been withheld from the President (Prime Minister) as sole
repository of the Executive Power, presumably in view of the immense powers already
vested in him by the Constitution but just as importantly, because by the very nature of
the constituent power, such amendments proposals have to be prepared, deliberated and
matured by a deliberative assembly of representatives such as the interim National
Assembly and hence may not be antithetical entrusted to one man.

Former Chief Justice Roberto Concepcion had observed before the election of the 1971
Constitutional Convention that the records of past plebiscites show that the constitutional
agency vested with the exercise of the constituent power (Congress or the Constitutional
Convention) really determine the amendments to the Constitution since the proposals
were invariably ratified by the people, 37 thus: "although the people have Convention,
such power is not, in view of the circumstances attending its exercise, as effective as one
might otherwise think; that, despite the requisite ratification by the people, the actual
contents of our fundamental law will really be determined by the Convention; that
accordingly the people should exercise the greatest possible degree of circumspection in
the election of delegates thereto . . .". 38
12Martial law concededly does not abrogate the Constitution nor obliterate its
constitutional boundaries and allocation of powers among the Executive, Legislative and
Judicial Departments. 39
It has thus been aptly observed that "Martial law is an emergency regime, authorized by
and subject to the Constitution. Its basic premise is to preserve and to maintain the
Republic against the dangers that threaten it Such premise imposes constraints and
limitations. For the martial law regime fulfills the constitutional purpose only if, by

reason of martial law measures, the Republic is preserved. If by reason of such measures
the Republic is so transformed that it is changed in its nature and becomes a State other
than republican, then martial law is a failure; worse, martial law would have become the
enemy of the Republic rather than its defender and preserver." 40
II.On the question of the Court's jurisdiction to pass upon the constitutionality of the
questioned presidential decrees: let it be underscored that the Court has long set at rest
the question.
The trail was blazed for the Court since the benchmark case of Angara vs. Electoral
commission when Justice Jose P. Laurel echoed U.S. Chief Justice Marshall's "climactic
phrase" that "we must never forget that it is a Constitution we are expounding" and
declared the Court's "solemn and sacred" constitutional obligation of judicial review and
laid down the doctrine that the Philippine Constitution as "a definition of the powers of
government" placed upon the judiciary the great burden of "determining the nature, scope
and extent of such powers" and stressed that "when the judiciary mediates to allocate
constitutional boundaries, it does not assert any superiority over the other departments.
but only asserts the solemn and sacred obligation entrusted to it by the Constitution to
determine conflicting claims of authority under the Constitution and to establish for the
parties in an actual controversy the rights which the instrument secures and guarantees to
them".
At the same time, the Court likewise adhered to the constitutional tenet that political
questions, i.e. questions which are intended by the Constitutional and relevant laws to be
conclusively determined by the " political", i.e. elective, branches of government
(namely, the Executive and the Legislative) are outside the Court's jurisdiction. 41
Thus, in Gonzales, 42 (by a unanimous Court) and in Tolentino 43 (by the required
constitutional majority), the Court has since consistently ruled that when proposing and
approving amendments to the Constitution, the members of Congress, acting as a
constituent assembly or the members of the Constitutional Convention elected directly
for the purpose "do not have the final say on whether or not their acts are within or
beyond constitutional limits. Otherwise, they could brush aside and set the same at
naught, contrary to the basic tenet that ours is a government of laws, not of men, and to
the rigid nature of our Constitution. Such rigidity is stressed by the fact that, the
Constitution expressly confers upon the Supreme Court, the power to declare a treaty
unconstitutional, despite the eminently political character of treaty-making power". 44
As amplified by former Chief Justice Conception in Javellana vs. Executive Secretary 45
(by a majority vote), "when the grant of power is qualified, conditional or subject to
limitations, the issue on whether or not the prescribed qualifications or conditions have
been met, or the limitations respected, is justiciable or non-political, the crux of the
problem being one of legality or validity of the contested act, not its wisdom. Otherwise,

said qualifications, conditions and limitations-particularly those prescribed or imposed by


the Constitution-would be set at naught".
The fact that the proposed amendments are to be submitted to the people for ratification
by no means makes the question political and non-justiciable, since as stressed even in
Javellana, the issue of validity of the President's proclamation of ratification of the 1973
Constitution presented a justiciable and non-political question.
Stated otherwise, the question of whether the Legislative acting as a constituent assembly
or the Constitutional Convention called for the purpose, in proposing amendments to the
people for ratification followed the constitutional procedure and requirements on the
amending process is perforce a justiciable question and does not raise a political question
of policy or wisdom of the proposed amendments, which if properly submitted, are
reserved for the people's decision.
The substantive question presented in the case at bar of whether the President may legally
exercise the constituent power vested in the interim National Assembly (which has not
been granted to his office) and propose constitutional amendments is prominently a
justiciable issue.
Justice Laurel in Angara had duly enjoined that "in times of social disquietude or
political excitement, the great landmarks of the Constitution are apt to be forgotten or
marred, if not entirely obliterated. In cases of conflict, the judicial department is the only
constitutional organ which can be called upon to determine the proper allocation of
powers between the several departments and among the integral or constituent units
thereof".
To follow the easy way out by disclaiming jurisdiction over the issue as a political
question would be judicial abdication.
III.On the question of whether there is a sufficient and proper submittal of the proposed
amendments to the people: Prescinding from the writer's view of the nullity of the
questioned decrees for lack of authority on the President's part to exercise the constituent
power, I hold that the doctrine of fair and proper submission first enunciated by a simple
majority of six Justices in Gonzales and subsequently officially adopted by the required
constitutional two-thirds majority of the Court in Tolentino is controlling in the case at
bar.
1.There cannot be said to be fair and proper submission of the proposed amendments. As
ruled by this Court in Tolentino, where "the proposed amendment in question is expressly
saddled with reservations which naturally impair, in great measure, its very essence as a
proposed constitutional amendment" and where "the way the proposal is worded, read
together with the reservations tacked to it by the Convention thru Section 3 of the

questioned resolution, it is too much of a speculation to assume what exactly the


amendment would really amount to in the end. All in all, as already pointed out in our
discussion of movants' first ground, if this kind of amendment is allowed, the Philippines
will appear before the world to be in the absurd position of being the only country with a
constitution containing a provision so ephemeral no one knows until when it will be
actually in force", there can be no proper submission.
In Tolentino a solitary amendment reducing the voting age to 18 years was struck down
by this Court which ruled that "in order that a plebiscite for the ratification of an
amendment to the Constitution may be validly held, it must provide the voter not only
sufficient time but ample basis for an intelligent appraisal of the nature of the amendment
per se as well as its relation to the other parts of the Constitution with which it has to
form a harmonious whole," and that there was no proper submission "wherein the people
are in the dark as to frame of reference they can base their judgment on".
2.The now Chief Justice and Mr. Justice Makasiar with two other member 46 graphically
pointed out in their joint separate opinion that the solitary question "would seem to be
uncomplicated and innocuous. But it is one of life's verities that things which appear to
be simple may turn out not to be so simple after all". 47
They further expressed "essential agreement" with Mr. Justice Conrado V. Sanchez'
separate opinion in Gonzales "on the minimum requirements that must be met in order
that there can be a proper submission to the people of a proposed constitutional
amendment" which reads thus:
". . . we take the view that the words 'submitted to the people for their
ratification', if constrained in the light of the nature of the Constitution a
fundamental charter that is legislation direct from the people, an expression of
their sovereign will is that it can only be amended by the people expressing
themselves according to the procedure ordained by the Constitution. Therefore,
amendments must be fairly laid before the people for their blessing or spurning.
The people are rot to be mere rubber stamps. They are not to vote blindly. They
must be afforded ample opportunity to mull over the original provisions,
compare them with the proposed amendments, and try to reach a conclusion as
the dictates of their conscience suggest, free from the incubus of extraneous or
possibly insidious influences. We believe the word 'submitted' can only mean
that the government, within its maximum capabilities, should strain every effort
to inform every citizen of the provisions to be amended, and the proposed
amendments and the meaning, nature and effects thereof. By this, we are not to
be understood as saying that, if one citizen or 100 citizens or 1,000 citizens
cannot be reached, then there is no submission within the meaning of the word
as intended by the framers of the Constitution. What the Constitution in effect
directs is that the government, in submitting an amendment for ratification,
should put every instrumentality or agency within its structural framework to
enlighten the people, educate them with respect to their act of ratification or

rejection. For, as we have earlier stated, one thing is submission and another is
ratification. There must be fair submission, intelligent, consent or rejection. If
with all these safeguards the people still approve the amendment no matter how
prejudicial it is to them, then so be it. For the people decree their own fate." 48

Justice Sanchez therein ended the passage with an apt citation that ". . . The great men
who builded the structure of our state in this respect had the mental vision of a good
Constitution voiced by Judge Cooley, who has said 'A good Constitution should be
beyond the reach of temporary excitement and popular caprice or passion. It is needed for
stability and steadiness; it must yield to the thought of the people; not to the whim of the
people, or the thought evolved in excitement or hot blood, but the sober second thought,
which alone, if the government is to be safe, can be allowed efficiency. . . . Changes in
government are to be feared unless the benefit is certain. As Montaign says: 'All great
mutations shake and disorder a state. Good does not necessarily succeed evil: another
evil may succeed and a worse.'" 49
Justice Sanchez thus stated the rule that has been adopted by the Court in Tolentino that
there is no proper submission "if the people are not sufficiently informed of the
amendments to be voted upon, to conscientiously deliberate thereon, to express their will
in a genuine manner. . . .." 50
3.From the complex and complicated proposed amendments set forth in the challenged
decree and the plethora of confused and confusing clarifications reported in the daily
newspapers, it is manifest that there is no proper submission of the proposed
amendments.
Nine (9) proposed constitutional amendments were officially proposed and made known
as per Presidential Decree No. 1033 dated September 22, 1976 for submittal at the
"referendum-plebiscite" called for this coming Saturday, October 16, 1976 wherein the
15-year and under 18-year-olds are enjoined to vote 51 notwithstanding their lack of
qualification under Article VI of the Constitution.
Former Senator Arturo Tolentino, an acknowledged parliamentarian of the highest order,
was reported by the newspapers last October 3 to have observed that "there is no urgency
in approving the proposed amendments to the Constitution and suggested that the
question regarding charter changes be modified instead of asking the people to vote on
hurriedly prepared amendments". He further pointed out that "apart from lacking the
parliamentary style in the body of the Constitution, they do not indicate what particular
provisions are being repealed or amended". 52
As of this writing, October 11, 1976, the papers today reported his seven-page analysis
questioning among others the proposed granting of dual legislative powers to both the

President and the Batasang Pambansa and remarking that "This dual legislative authority
can give rise to confusion and serious constitutional questions". 53
Aside from the inadequacy of the limited time given for the people's consideration of the
proposed amendments, there can be no proper submission because the proposed
amendments are not in proper form and violate the cardinal rule of amendments of
written constitutions that the specific provisions of the Constitution being repealed or
amended as well as how the specific provisions as amended would read, should be clearly
stated in careful and measured terms. There can be no proper submission because the
vagueness and ambiguity of the proposals do not sufficiently inform the people of the
amendments for conscientious deliberation and intelligent consent or rejection.
4.While the press and the Solicitor General at the hearing have stated that the principal
thrust of the proposals is to substitute the interim National Assembly with an interim
Batasang Pambansa, a serious study thereof in detail would lead to the conclusion that the
whole context of the 1973 Constitution proper would be affected and grave amendments
and modifications thereof would apparently be made, among others, as follows:
Under Amendment No. 1, the qualification age of members of the interim Batasang
Pambansa is reduced to 18 years;
Under Amendment No. 2, the treaty-concurring power of the Legislature is withheld from
the interim Batasang Pambansa;
Under Amendment No. 3, notwithstanding the convening of the interim Batasang
Pambansa within 30 days from the election and selection of the members (for which there
is no fixed date) the incumbent President apparently becomes a regular President and
Prime Minister (not ad interim);
Under Amendment No. 4, the disqualifications imposed on members of the Cabinet in the
Constitution such as the prohibition against the holding of more than one office in the
government including government-owned or controlled corporations would appear to be
eliminated, if not prescribed by the President;
Under Amendment No. 5, the President shall continue to exercise legislative powers until
martial law is lifted;
Under Amendment No. 6, there is a duality of legislative authority given the President
and the interim Batasang Pambansa as well as the regular National Assembly, as pointed
out by Senator Tolentino, with the President continuing to exercise legislative powers in
case of "grave emergency or a threat or imminence thereof" (without definition of terms)
or when said Assemblies "fail or are unable to act adequately on any matter for any

reason that in his judgment requires immediate action", thus radically affecting
provisions of the Constitution governing the said departments;
Under Amendment No. 7, the barangays and Sanggunians would apparently be
constitutionalized, although their functions, powers and composition may be altered by
law. Referendums (which are not authorized in the present 1973 Constitution) would also
be constitutionalized, giving rise to the possibility fraught with grave consequences, as
acknowledged at the hearing, that amendments to the Constitution may thereafter be
effected by referendum, rather than by the rigid and strict amending process provided
presently in Article XVI of the Constitution;
Under Amendment No. 8, there is a general statement in general that the unspecified
provisions of the Constitution "not inconsistent with any of these amendments" shall
continue in full force and effect; and
Under Amendment No. 9, the incumbent President is authorized to proclaim the
ratification of the amendments by the majority of votes cast.
It has likewise been stressed by the officials concerned that the proposed amendments
come in a package and may not be voted upon separately but on an "all or nothing" basis.
5.Whether the people can normally express their will in a genuine manner and with due
circumspection on the proposed amendments amidst the constraints of martial law is yet
another question. That a period of free debate and discussion has to be declared of itself
shows the limitations on free debate and discussion. The facilities for free debate and
discussion over the mass media, print and otherwise are wanting. The President himself is
reported to have observed the timidity of the media under martial law and to have
directed the press to air the views of the opposition. 54
Indeed, the voice of the studentry as reflected in the editorial of the Philippine Collegian
issue of September 23, 1976 comes as a welcome and refreshing model of conscientious
deliberation, as our youth analyzes the issues "which will affect generations yet to come"
and urge the people to "mull over the pros and cons very carefully", as follows:
"THE REFERENDUM ISSUES
"On October 16, the people may be asked to decide on two important national
issues the creation of a new legislative body and the lifting of martial law.
"On the first issue, it is almost sure that the interim National Assembly will not
be convened, primarily because of its membership. Majority of the members of
the defunct Congress, who are mandated by the Constitution to become
members of the interim National Assembly, have gained so widespread a
notoriety that the mere mention of Congress conjures the image of a den of

thieves who are out to fool the people most of the time. Among the three
branches of government, it was the most discredited. In fact, upon the
declaration of martial law, some people were heard to mutter that a 'regime that
has finally put an end to such congressional shenanigans could not be all that
bad.'
"A substitute legislative body is contemplated to help the President in
promulgating laws, and perhaps minimize the issuance of ill-drafted decrees
which necessitate constant amendments. But care should be taken that this new
legislative body would not become a mere rubber stamp akin to those of other
totalitarian countries. It should he given real powers, otherwise we will just
have another nebulous creation having the form but lacking the substance.
Already the President has expressed the desire that among the powers he would
like to have with regard to the proposed legislative body is that of abolishing it
in case 'there is a need to do so'. As to what would occasion such a need, only
the President himself can determine. This would afford the Chief Executive
almost total power over the legislature, for he could always offer the members
thereof a carrot and a stick.
"On the matter of lifting martial law, the people have expressed ambivalent
attitudes. Some of them, remembering the turmoil that prevailed before the
declaration of martial law, have expressed the fear that its lifting might
precipitate the revival of the abuses of the past, and provide an occasion for evil
elements to resurface with their usual tricks. Others say that it is about time
martial law was lifted, since the peace and order situation has already stabilized
and the economy seems to have been perked up.
"The regime of martial law has been with us for four years now. No doubt,
martial law has initially secured some reforms for the country. The people were
quite willing to participate in the new experiment, thrilled by the novelty of it
all. After the euphoria, however, the people seem to have gone back to the old
ways, with the exception that some of our freedoms were taken away, and an
authoritarian regime established.

"We must bear in mind that martial law was envisioned only to cope with an
existing national crisis. It was not meant to be availed of for a long period of
time, otherwise it would undermine our adherence to a democratic form of
government. In the words of the Constitution, martial law shall only be declared
in times of 'rebellion, insurrection invasion, or imminent danger thereof, when
the public safety requires it'. Since we no longer suffer from internal
disturbances of a gargantuan scale, it is about time we seriously rethink the
'necessity' of prolonging the martial law regime. If we justify the continuance of
martial law by economic or other reasons other than the foregoing constitutional
grounds, then our faith in the Constitution might be questioned. Even without

martial law, the incumbent Chief Executive still holds vast powers under the
Constitution. After all, the gains of the New Society can be secured without
sacrificing the freedom of our people. If the converse is true, then we might
have to conclude that the Filipinos deserve a dictatorial form of government.
The referendum results will show whether the people themselves have adopted
this sad conclusion.
"The response of the people to the foregoing issues will affect generations yet to
come, so they should mull over the pros and cons very carefully."

6.This opinion is written in the same spirit as the President's exhortations on the first
anniversary of proclamation of the 1973 Constitution that we "let the Constitution remain
firm and stable" so that it may "guide the people", and that we "remain steadfast on the
rule of law and the Constitution" as he recalled his rejection of the "exercise (of) power
that can be identified merely with a revolutionary government" that makes its own law,
thus:
". . . Whoever he may be and whatever position he may happen to have, whether
in government or outside government, it is absolutely necessary now that we
look solemnly and perceptively into the Constitution and try to discover for
ourselves what our role is in the successful implementation of that Constitution.
With this thought, therefore, we can agree on one thing and that is: Let all of us
age, let all of us then pass away as a pace in the development of our country, but
let the Constitution remain firm and stable and let institutions grow in strength
from day to day, from achievement to achievement, and so long as that
Constitution stands, whoever may the man in power be, whatever may his
purpose be, that Constitution will guide the people and no man, however,
powerful he may be, will dare to destroy and wreck the foundation of such a
Constitution.
"These are the reasons why I personally, having proclaimed martial law, having
been often induced to exercise power that can be identified merely with a
revolutionary government, have remained steadfast on the rule of law and the
Constitution." 54*

IV.A final word on the Court's resolution of October 5, 1976 which in reply to the
Comelec query allowed by a vote of 7 to 3, judges of all courts, after office hours, "to
accept invitations to act as resource speakers under Section 5 of Presidential Decree No.
991, as amended, as well as to take sides in discussions and debates on the referendumplebiscite questions under Section 7 of the same Decree." 55
The writer with Mr. Justice Makasiar and Madame Justice Muoz Palma had dissented
from the majority resolution, with all due respect, on the ground that the nonparticipation of judges in such public discussions and debates on the referendumplebiscite questions would preserve the traditional non-involvement of the judiciary in

public discussions of controversial issues. This is essential for the maintenance and
enhancement of the people's faith and confidence in the judiciary. The questions of the
validity of the scheduled referendum-plebiscite and of whether there is proper submission
of the proposed amendments were precisely subjudice by virtue of the cases at bar.
The lifting of the traditional inhibition of judges from public discussion and debate might
blemish the image and independence of the judiciary. Aside from the fact that the fixing
of a time limit for the acceptance of their courtesy resignations to avoid an indefinite state
of insecurity of their tenure in office still pends, litigants and their relatives and friends as
well as a good sector of the public would be hesitant to air views contrary to that of the
Judge.
Justices Makasiar and Muoz Palma who share these views have agreed that we make
them of record here, since we understand that the permission given in the resolution is
nevertheless addressed to the personal decision and conscience of each judge, and these
views may be of some guidance to them.
BARREDO, J., concurring:
While I am in full agreement with the majority of my brethren that the herein petitions
should he dismissed, as in fact I vote for their dismissal, I deem it imperative that I
should state separately the considerations that have impelled me to do so.
Perhaps, it is best that I should start by trying to disabuse the minds of those who I have
doubts as to whether or not I should have taken part in the consideration and resolution of
these cases. Indeed, it would not be befitting my position in this Highest Tribunal of the
land for me to leave unmentioned the circumstances which have given cause, I presume,
for others to feel apprehensive that my participation in these proceedings might detract
from that degree of faith in the impartiality that the Court's judgment herein should
ordinarily command. In a way, it can be said, of course, that I am the one most
responsible for such a rather problematical situation, and it is precisely for this reason
that I have decided to begin this opinion with a discussion of why I have not inhibited
myself, trusting most confidently that what I have to say will be taken in the same spirit
of good faith, sincerity and purity of purpose in which I am resolved to offer the same.
Plain honesty dictates that I should make of record here the pertinent contents of the
official report of the Executive Committee of the Katipunan ng mga Sanggunian
submitted to the Katipunan itself about the proceedings held on August 14, 1976. It is
stated in that public document that:
"THE ISSUE WITH REGARDS TO THE CONVENING OF A
LEGISLATIVE body came out when the President expressed his desire to share
his powers with other people.

Aware of this, a five-man Committee members of the Philippine Constitution


Association (PHILCONSA) headed by Supreme Court Justice Antonio Barredo
proposed on July 28, the establishment of 'Sangguniang Pambansa' or 'Batasang
Pambansa' which would help the President in the performance of his legislative
functions. The proposed new body will take the place of the interim National
Assembly which is considered not practical to convene at this time considering
the constitution of its membership.
Upon learning the proposal of Justice Barredo, the country's 42,000 barangay
assemblies on August 1 suggested that the people be consulted on a proposal to
create a new legislative body to replace the interim assembly provided for by
the Constitution. The suggestion of the barangay units was made through their
national association, Pambansang Katipunan ng mga Barangay headed by Mrs.
Nora Z. Petines. She said that the people have shown in at least six instances
including in the two past referenda that they are against the convening of the
interim National Assembly. She also said that since the people had ruled out the
calling of such assembly and that they have once proposed that the President
create instead the Sangguniang Pambansa or a legislative advisory body, then
the proposal to create a new legislative must necessarily be referred to the
people.
The federation of Kabataang Barangay, also numbering 42,000 units like their
elder counterparts in the Katipunan ng mga Barangay also asserted their own
right to be heard on whatever plans are afoot to convene a new legislative body.
On August 6, a meeting of the national directorate of PKB was held to discuss
matters pertaining to the stand of the PKB with regards to the convening of a
new legislative body. The stand of the PKB is to create a legislative advisory
council in place of the old assembly. Two days after, August 8, the Kabataang
Barangay held a symposium and made a stand which is the creation of a body
with full legislative powers.
A nationwide clamor for the holding of meeting in their respective localities to
discuss more intelligently the proposal to create a new legislative body was
made by various urban and rural Sangguniang Bayans.
Numerous requests made by some members coming from 75 provincial and 61
city SB assemblies, were forwarded to the Department of Local Government
and Community Development (DLGCD).
On August 7, Local Government Secretary, Jose A. Roo granted the request by
convening the 91 member National Executive Committee of the Pambansang
Katipunan ng mga Sanggunian on August 14 which was held at Session Hall,
Quezon City. Invited also to participate were 13 Regional Federation Presidents
each coming from the PKB and the PKKB."

Actually, the extent of my active participation in the events and deliberations that have
culminated in the holding of the proposed referendum-plebiscite on October 16, 1976,
which petitioners are here seeking to enjoin, has been more substantial and meaningful
than the above report imparts. Most importantly, aside from being probably the first
person to publicly articulate the need for the creation of an interim legislative body to
take the place of the interim National Assembly provided for in the Transitory Provisions
of the Constitution, as suggested in the above report, I might say that I was the one most
vehement and persistent in publicly advocating and urging the authorities concerned to
directly submit to the people in a plebiscite whatever amendments of the Constitution
might be considered necessary for the establishment of such substitute interim legislature.
In the aforementioned session of the Executive Committee of the Katipunan, I discoursed
on the indispensability of a new interim legislative body as the initial step towards the
early lifting of martial law and on the fundamental considerations why in our present
situation a constitutional convention would be superfluous in amending the Constitution.

Moreover, it is a matter of public knowledge that in a speech I delivered at the Coral


Ballroom of the Hilton Hotel in the evening of August 17, 1976, I denounced in no
uncertain terms the plan to call a constitutional convention. I reiterated the same views on
September 7, 1976 at the initial conference called by the Comelec in the course of the
information and educational campaign it was enjoined to conduct on the subject. And
looking back at the subsequent developments up to September 22, 1976, when the
Batasang Bayan approved and the President signed the now impugned Presidential
Decree No. 1033, it is but human for me to want to believe that to a certain extent my
strong criticisms and resolute stand against any other alternative procedure of amending
the Constitution for the purpose intended had borne fruit.
I must hasten to add at this point, however, that in a larger sense, the initiative for all I
have done, was not altogether mine alone. The truth of the matter is that throughout the
four years of this martial law government, it has always been my faith, as a result of
casual and occasional exchanges of thought with President Marcos, that when the
appropriate time does come, the President would somehow make it known that in his
judgment, the situation has already so improved as to permit the implementation, if
gradual, of the constitutionally envisioned evolution of our government from its present
state to a parliamentary one. Naturally, this would inevitably involve the establishment of
a legislative body to replace the abortive interim National Assembly. I have kept tract of
all the public and private pronouncements of the President, and it was the result of my
reading thereof that furnished the immediate basis for my virtually precipitating, in one
way or another, the materialization of the forthcoming referendum-plebiscite. In other
words, in the final analysis, it was the President's own attitude on the matter that made it
opportune for me to articulate my own feelings and ideas as to how the nation can move

meaningfully towards normalization and to publicly raise the issues that have been
ventilated by the parties in the instant cases.
LLpr

I would not be human, if I did not consider myself privileged in having been afforded by
Divine Providence the opportunity to contribute a modest share in the formulation of the
steps that should lead ultimately to the lifting of martial law in our country. Indeed, I am
certain every true Filipino is anxiously looking forward to that eventuality. And if for
having voiced the sentiments of our people, where others would have preferred to be
comfortably silent, and if for having made public what every Filipino must have been
feeling in his heart all these years, I should be singled out as entertaining such
preconceived opinions regarding the issues before the Court in the cases at bar as to
preclude me from taking part in their disposition, I can only say that I do not believe there
is any other Filipino in and out of the Court today who is not equally situated as I am.
The matters that concern the Court in the instant petitions to not involve merely the
individual interests of any single person or group of persons. Besides, the stakes in these
cases affect everyone commonly, not individually. The current of history that has passed
through the whole country in the wake of martial law has swept all of us, sparing none,
and the problem of national survival and of restoring democratic institutions and ideals is
seeking solution in the minds of all of us. That I have preferred to discuss publicly my
own thoughts on the matter cannot mean that my colleagues in the Court have been
indifferent and apathetic about it, for they too are Filipinos. Articulated or not, all of us
must have our own preconceived ideas and notions in respect to the situation that
confronts the country. To be sure, our votes and opinions in the major political cases in
the recent past should more or less indicate our respective basic positions relevant to the
issues now before Us. Certainly, contending counsels cannot be entirely in the dark in
this regard. I feel that it must have been precisely because of such awareness that despite
my known public participation in the discussion of the question herein involved, none of
the parties have sought my inhibition or disqualification.
Actually, although it may be difficult for others to believe it, I have never allowed my
preconceptions and personal inclinations to affect the objectivity needed in the resolution
of any judicial question before the Court. I feel I have always been able to appreciate,
fully consider and duly weight arguments and points raised by all counsels, even when
they conflict with my previous views. I am never beyond being convinced by good and
substantial ratiocination. Nothing has delighted me more than to discover that somebody
else has thought of more weighty arguments refuting my own, regardless of what or
whose interests are at stake. I would not have accepted my position in the Court had I felt
I would not be able to be above my personal prejudices. To my mind, it is not that a judge
has preconceptions that counts, it is his capacity and readiness to absorb contrary views
that are indispensable for justice to prevail. That suspicions of pre-judgment may likely
arise is unavoidable; but I have always maintained that whatever improper factors might
influence a judge will unavoidably always appear on the face of the decision. In any

event, is there better guarantee of justice when the preconceptions of a judge are
concealed?
Withal, in point of law, I belong to the school of though that regards members of the
Supreme Court as not covered by the general rules relative to disqualification and
inhibition of judges in cases before them. If I have in practice actually refrained from
participating in some cases, it has not been because of any legal ground founded on said
rules, but for purely personal reasons, specially because, anyway, my vote would not
have altered the results therein.
It is my considered opinion that unlike in the cases of judges in the lower courts, the
Constitution does not envisage compulsory disqualification or inhibition in any case by
any member of the Supreme Court. The Charter establishes a Supreme Court "composed
of a Chief Justice and fourteen Associate Justices", with the particular qualifications
therein set forth and to be appointed in the manner therein provided. Nowhere in the
Constitution is there any indication that the legislature may designate by law instances
wherein any of the justices should not or may not take part in the resolution of any
justices should not or may not take part in the resolution of any case, much less who
should take his place. Members of the Supreme Court and definite constitutional officers;
it is not within the power of the lawmaking body to replace them even temporarily for
any reason. To put it the other way, nobody who has not been duly appointed as a
member of the Supreme Court can sit in it at any time or for any reason. The Judicial
power is vested in the Supreme Court composed as the Constitution ordains that
power cannot be exercised by a Supreme Court constituted otherwise. And so, when as in
the instant cases where, if any of the member of Court is to abstain from taking part, there
would be no quorum and no court to render the decision it is the ineludible duty of
all the incumbent justices to participate in the proceedings and to cast their votes,
considering that for the reasons stated above, the provisions of Section 9 of the Judiciary
Act do not appear to conform with the concept of the office of Justice of the Supreme
Court contemplated in the Constitution.
cdll

The very nature of the office of Justice of the Supreme Court as the tribunal of last resort
and bulwark of the rights and liberties of all the people demands that only one of
dependable and trustworthy probity should occupy the same. Absolute integrity, mental
and otherwise, must be possessed by everyone who is appointed thereto. The moral
character of every member of the Court must be assumed to be such that in no case
whatsoever, regardless of the issues and the parties involved, may it be feared that
anyone's life, liberty or property, much less the national interests, would ever be in
jeopardy of being unjustly and improperly subjected to any kind of judicial sanction. In
sum, every Justice of the Supreme Court is expected to be capable of rising above himself
in every case and of having full control of his emotions and prejudices, such that with the
legal training and experience he must of necessity be adequately equipped with, it would
be indubitable that his judgment cannot be but objectively impartial, Indeed, even the

appointing power, to whom the Justices owe their positions, should never hope to be
unduly favored by any action of the Supreme Court. All appointments to the Court are
based on these considerations, hence the ordinary rules on inhibition and disqualification
do not have to be applied to its members.
With the preliminary matter of my individual circumstances out of the way, I shall now
address myself to the grave issues submitted for Our resolution.
-IIn regard to the first issue as to whether the questions posed in the petitions herein are
political or justiciable, suffice it for me to reiterate the fundamental position I took in the
Martial Law cases, 1 thus:
"As We enter the extremely delicate task of resolving the grave issues thus
thrust upon Us. We are immediately encountered by absolute verities to guide
Us all the way. The first and most important of them is that the Constitution
(Unless expressly stated otherwise, all references to the Constitution in this
discussion are to both the 1935 and 1973 charters, since, after all, the pertinent
provisions are practically identical in both.) is the supreme law of the land. This
means among other things that all the powers of the government and of all its
officials from the President down to the lowest emanate from it. None of them
may exercise any power unless it can be traced thereto either textually or by
natural and logical implication.

"The second is that it is settled that the Judiciary provisions of the Constitution
point to the Supreme Court as the ultimate arbiter of all conflicts as to what the
Constitution or any part thereof means. While the other Departments may adopt
their own construction thereof, when such construction is challenged by the
proper party in an appropriate case wherein a decision would be impossible
without determining the correct construction, the Supreme Court's word on the
matter controls.
xxx xxx xxx
"The fifth is that in the same manner that the Executive power conferred upon
the Executive by the Constitution is complete, total and unlimited, so also, the
judicial power vested in the Supreme Court and the inferior courts, is the very
whole of that power, without any limitation or qualification.
"xxx xxx xxx

"From these incontrovertible postulates, it results, first of all, that the main
question before Us is not in reality one of jurisdiction, for there can be no
conceivable controversy, especially one involving a conflict as to the correct
construction of the Constitution, that is not contemplated to be within the
judicial authority of the courts to hear and decide. The judicial power of the
courts being unlimited and unqualified, it extends over all situations that call for
the ascertainment and protection of the rights of any party allegedly violated,
even when the alleged violator is the highest official of the land or the
government itself. It is, therefore, evidence that the Court's jurisdiction to take
cognizance of and to decide the instant petitions on their merits is beyond
challenge.
"In this connection, however, it must be borne in mind that in the form of
government envisaged by the farmers of the Constitution and adopted by our
people, the Court's indisputable and plenary authority to decide does not
necessarily impose upon it the duty to interpose its fiat as the only means of
setting the conflicting claims of the parties before it. It is ingrained in the
distribution of powers in the fundamental law that hand in hand with the vesting
of the judicial power upon the Court, the Constitution has coevally conferred
upon it the discretion to determine, in consideration of the constitutional
prerogatives granted to the other Departments, when to refrain from imposing
judicial solutions and instead defer to the judgment of the latter. It is in the very
nature of republican governments that certain matters are left in the residual
power of the people themselves to resolve, either directly at the polls or thru
their elected representatives in the political Departments of the government.
And these reserved matters are easily distinguishable by their very nature, when
one studiously considers the basic functions and responsibilities entrusted by the
charter to each of the great Departments of the government. To cite an obvious
example, the protection, defense and preservation of the state against internal or
external aggression threatening its very existence is far from being within the
ambit of judicial responsibility. The distinct role then of the Supreme Court of
being the final arbiter in the determination of constitutional controversies does
not have to be asserted in such contemplated situations, thereby to give way to
the ultimate prerogative of the people articulated thru suffrage or thru the acts of
their political representatives they have elected for the purpose.
Indeed, these fundamental considerations are the ones that lie at the base of
what is known in American constitutional law as the political question doctrine,
which in that jurisdiction is unquestionably deemed to be part and purse of the
rule of law, exactly like its apparently more attractive or popular opposite,
judicial activism, which is the fullest exertion of judicial power, upon the theory
that unless the courts intervene injustice might prevail. It has been invoked and
applied by this Court in varied forms and modes of projection in several
momentous instances in the past, (Barcelon vs. Baker, 5 Phil. 87; Severino vs.
Governor-General, 16 Phil. 366; Abueva vs. Wood, 45 Phil. 612; Alejandrino
vs. Quezon, 46 Phil. 85; Vera vs. Avelino, 77 Phil. 192; Mabanag vs. Lopez

Vito, 78 Phil. 1; Cabili vs. Francisco, 88 Phil. 654; Montenegro vs. Castaeda,
91 Phil. 882; Santos vs. Yatco, 55 O.G. 8641 [Minute Resolution of Nov. 6,
1959]; Osmea vs. Pendatun, Oct. 28, 1960.) and it is the main support of the
stand of the Solicitor General on the issue of jurisdiction in the cases at bar. It is
also referred to as the doctrine of judicial self-restraint or abstention. But as the
nomenclatures themselves imply, activism and self-restraint are both subjective
attitudes, not inherent imperatives. The choice of alternatives in any particular
eventuality is naturally dictated by what in the Court's considered opinion is
what the Constitution envisions should be done in order to accomplish the
objectives of government and of nationhood. And perhaps it may be added here
to avoid confusion of concepts, that We are not losing sight of the traditional
approach based on the doctrine of separation of powers. In truth, We perceive
that even under such mode of rationalization, the existence of power is
secondary, respect for the acts of a co-ordinate, co-equal and co-independent
Department being the general rule, particularly when the issue is not
encroachment of delimited areas of functions but alleged abuse of a
Department's own basic prerogatives. (59 SCRA, pp. 379-383.)

Applying the foregoing considerations to the cases at bar, I hold that the Court has
jurisdiction to pass on the merits of the various claims of petitioners. At the same time,
however, I maintain that the basic nature of the issues herein raised requires that the
Court should exercise its constitutionally endowed prerogative to refrain from exerting its
judicial authority in the premises.
Cdpr

Stripped of incidental aspects, the constitutional problem that confronts Us stems from
the absence of any clear and definite express provision in the Charter applicable to the
factual milieu herein involved. The primary issue is, to whom, under the circumstances,
does the authority to propose amendments to the Constitution property belong? To say, in
the light of Section 15 of Article XVII of the Charter, that faculty lies in the interim
National Assembly is to beg the main question. Indeed, there could be no occasion for
doubt or debate, if it could only be assumed that the interim National Assembly
envisaged in Sections 1 and 2 of the same Article XVII may be convoked. But precisely,
the fundamental issue We are called upon to decide is whether or not it is still
constitutionally possible to convene that body. And relative to that question, the inquiry
centers on whether or not the political developments since the ratification of the
Constitution indicate that the people have in effect enjoined the convening of the interim
National Assembly altogether. On this score, it is my assessment that the results of the
referenda of January 10-15, 1973, July 27-28, 1973 and February 27, 1975 clearly show
that the great majority of our people, for reasons plainly obvious to anyone who would
consider the composition of that Assembly, what with its more than 400 members
automatically voted into it by the Constitutional Convention together with its own
members, are against its being convoked at all.

Whether or not such a manifest determination of the sentiments of the people should be
given effect without a formal amendment of the Constitution is something that
constitutional scholars may endlessly debate on. What cannot be disputed, however, is
that the government and the nation have acquiesced to it and have actually operated on
the basis thereof. Proclamation 1103 which, on the predicate that the overwhelming
majority of the people desire that the interim Assembly be not convened, has ordained the
suspension of its convocation, has not been assailed either judicially or otherwise since
the date of its promulgation on January 17, 1973.
In these premises, it is consequently the task of the Court to determine what, under these
circumstances, is the constitutional relevance of the interim National Assembly to any
proposal to amend the Constitution at this time. It is my considered opinion that in
resolving that question, the Court must have to grapple with the problem of what to do
with the will of the people, which although manifested in a manner not explicitly
provided for in the Constitution, was nevertheless official, and reliable, and what is more
important clear and unmistakable, despite the known existence of well-meaning, if
insufficiently substantial dissent. Such being the situation, I hold that it is not proper for
the Court to interpose its judicial authority against the evident decision of the people and
should leave it to the political department of the government to devise the ways and
means of resolving the resulting problem of how to amend the Constitution, so long as in
choosing the same, the ultimate constituent power is left to be exercised by the people
themselves in a well-ordered plebiscite as required by the fundamental law.
-2Assuming We have to inquire into the merits of the issue relative to the constitutional
authority behind the projected amendment of the Charter in the manner provided in
Presidential Decree 1033, I hold that in the peculiar situation in which the government is
today, it is not incompatible with the Constitution for the President to propose the subject
amendments for ratification by the people in a formal plebiscite under the supervision of
the Commission on Elections. On the contrary, in the absence of any express prohibition
in the letter of the Charter, the Presidential Decree in question is entirely consistent with
the spirit and the principles underlying the Constitution. The correctness of this
conclusion should become even more patent, when one considers the political
developments that the people have brought about since the ratification of the Constitution
on January 17, 1973.

I consider it apropos at this juncture to repeat my own words in a speech I delivered on


the occasion of the celebration of Law Day on September 18, 1975 before the members
of the Philippine Constitution Association and their guests:

"To fully comprehend the constitutional situation in the Philippines today, one
has to bear in mind that, as I have mentioned earlier, the martial law proclaimed
under the 1935 Constitution overtook the drafting of the new charter by the
Constitutional Convention of 1971. It was inevitable, therefore, that the
delegates had to take into account not only the developments under it but, most
of all, its declared objectives and what the President, as its administrator, was
doing to achieve them. In this connection, it is worthy of mention that an
attempt to adjourn the convention was roundly voted down to signify the
determination of the delegates to finish earliest their work, thereby to
accomplish the mission entrusted to them by the people to introduce meaningful
reforms in our government and society. Indeed, the constituent labors gained
rapid tempo, but in the process, the delegates were to realize that the reforms
they were formulating could be best implemented if the martial law powers of
the President were to be allowed to subsist even after the ratification of the
Constitution they were approving. This denouement was unusual. Ordinarily, a
constitution born out of a crisis is supposed to provide all the needed cures and
can, therefore, be immediately in full force and effect after ratification. Not so,
with our 1973 Constitution, Yes, according to the Supreme Court, 'there is no
more judicial obstacle to the new Constitution being considered in force and
effect', but in truth, it is not yet so in full. Let me explain.
To begin with, in analyzing the new Constitution, we must be careful to
distinguish between the body or main part thereof and its transitory provisions.
It is imperative to do so because the transitory provisions of our Constitution are
extraordinary in the sense that obviously they have been designed to provide not
only for the transition of our government from the presidential form under the
past charter to a parliamentary one as envisaged in the new fundamental law,
but also to institutionalize, according to the President, the reforms introduced
thru the exercise of his martial law powers. Stated differently, the transitory
provisions, as it has turned out, has in effect established a transition
government, not, I am sure, perceived by many. It is a government that is
neither presidential nor parliamentary. It is headed, of course, by President
Marcos who not only retains all his powers under the 1935 Constitution but
enjoys as well those of the President and the Prime Minister under the new
Constitution. Most importantly, he can and does legislate alone. But to be more
accurate, I should say that he legislates alone in spite of the existence of the
interim National Assembly unequivocally ordained by the Constitution, for the
simple reason that he has suspended the convening of said assembly by issuing
Proclamation No. 1103 purportedly 'in deference to the sovereign will of the
Filipino people' expressed in the January 10-15, 1973 referendum.
Thus, we have here the unique case of a qualified ratification. The whole
Constitution was submitted for approval or disapproval of the people, and after
the votes were counted and the affirmative majority known, we were told that
the resulting ratification was subject to the condition that the interim National
Assembly evidently established in the Constitution as the distinctive and

indispensable element of a parliamentary form of government should


nevertheless be not convened and that no elections should be held for about
seven years, with the consequence that we have now a parliamentary
government without a parliament and a republic without any regular election of
its officials. And as you can see, this phenomenon came into being not by virtue
of the Constitution but of the direct mandate of the sovereign people expressed
in a referendum. In other words, in an unprecedented extra-constitutional way,
we have established, wittingly or unwittingly, a direct democracy through the
Citizens Assemblies created by Presidential Decree No. 86, which later on have
been transformed into barangays, a system of government proclaimed by the
President as 'a real achievement in participatory democracy.' What I am trying
to say, my friends, is that as I perceive it, what is now known as constitutional
authoritarianism means, in the final analysis, that the fundamental source of
authority of our existing government may not be necessarily found within the
four corners of the Constitution but rather in the results of periodic referendums
conducted by the Commission on Elections in a manner well known to all of us.
This, as I see it, is perhaps what the President means by saying that under the
new Constitution he has extra-ordinary powers independently of martial law
powers sanctioned directly by the people which may not even be read in the
language of the Constitution. In brief, when we talk of the rule of law
nowadays, our frame of reference should not necessarily be the Constitution but
the outcome of referendums called from time to time by the President. The
sooner we imbibe this vital concept the more intelligent will our perspective be
in giving our support and loyalty to the existing government. What is more, the
clearer will it be that except for the fact that all the powers of government are
being exercised by the President, we do not in reality have a dictatorship but an
experimental type of direct democracy."

In the foregoing disquisition, I purposely made no mention of the referendum of February


27, 1975. It is important to note, relative to the main issue now before Us, that it was
originally planned to ask the people in that referendum whether or not they would like the
interim National Assembly to convene, but the Comelec to whom the task of preparing
the questions was assigned was prevailed upon not to include any such question anymore,
precisely because it was the prevalent view even among the delegates to the Convention
as well as the members of the old Congress concerned that matter had already been
finally resolved in the previous referenda of January and July 1973 in the sense that the
Assembly should not be convened comparable to res adjudicata.
It is my position that as a result of the political developments since January 17, 1973 the
transitory provisions envisioning the convening of the interim National Assembly have
been rendered legally inoperative. There is no doubt in my mind that for the President to
convoke the interim National Assembly as such would be to disregard the will of the
people something no head of a democratic republican state like ours should do. And I
find it simply logical that the reasons that motivated the people to enjoin the convening of
the Assembly the unusually large and unmanageable number of its members and the

controversial morality of its automatic composition consisting of all the incumbent


elective national executive and legislative officials under the Old Constitution who would
agree to join it and the delegates themselves to the Convention who had voted in favor of
the Transitory Provisions apply not only to the Assembly as an ordinary legislature but
perhaps more to its being a constituent body. And to be more realistic, it is but natural to
conclude that since the people are against politicians in the old order having anything to
do with the formulation of national policies, there must be more reasons for them to
frown on said politicians taking part in amendment of the fundamental law, specially
because the particular amendment herein involved calls for the abolition of the interim
National Assembly to which they belong and its substitution by the Batasang Pambansa.
It is argued that in law, the qualified or conditional ratification of a constitution is not
contemplated. I disagree. It is inconsistent with the plenary power of the people to give or
withhold their assent to a proposed Constitution to maintain that they can do so only
wholly. I cannot imagine any sound principle that can be invoked to support the theory
that the proposing authority can limit the power of ratification of the people. As long as
there are reliable means by which only partial approval can be manifested, no cogent
reason exists why the sovereign people may not do so. True it is that no proposed
Constitution can be perfect and it may therefore be taken with the good and the bad in it,
but when there are feasible ways by which it can be determined which portions of it, the
people disapprove, it would be stretching technicality beyond its purported office to
render the final authority the people impotent to act according to what they deem
best suitable to their interests.
In any event, I feel it would be of no consequence to debate at length regarding the legal
feasibility of qualified ratification. Proclamation 1103 categorically declares that:
"WHEREAS, fourteen million nine hundred seventy six thousand five hundred
sixty-one (14,976.561) members of all the Barangays voted for the adoption of
the proposed Constitution, as against seven hundred forty-three thousand eight
hundred sixty-nine (743,869) who voted for its rejection; but a majority of those
who approved the new Constitution conditioned their votes on the demand that
the interim National Assembly provided in its Transitory Provisions should not
be convened."

and in consequence, the President has acted accordingly by not convening the
Assembly. The above factual premises of Proclamation 1103 is not disputed by
petitioners. Actually, it is binding on the Court, the same being a political act of a
coordinate department of the government not properly assailed as arbitrary or
whimsical. At this point, it must be emphasized in relation to the contention that a
referendum is only consultative, that Proclamation 1103, taken together with
Proclamation 1102 which proclaimed the ratification of the Constitution, must be
accorded the same legal significance as the latter proclamation, as indeed it is part and
parcel of the act of ratification of the Constitution, hence not only persuasive but

mandatory. In the face of the incontrovertible fact that the sovereign people have
voted against the convening of the interim National Assembly, and faced with the
problem of amending the Constitution in order precisely to implement the people's
rejection of that Assembly, the problem of constitutional dimension that confronts Us,
is how can any such amendment be proposed for ratification by the people?

To start with, it may not be supposed that just because the office or body designed by the
constitutional convention to perform the constituent function of formulating proposed
amendments has been rendered inoperative by the people themselves, the people have
thereby foreclosed the possibility of amending the Constitution no matter how desirable
or necessary this might be. In this connection, I submit that by the very nature of the
office of the Presidency in the prevailing scheme of government we have it being the
only political department of the government in existence it is consistent with basic
principles of constitutionalism to acknowledge the President's authority to perform the
constituent function, there being no other entity or body lodged with the prerogative to
exercise such function.
There is another consideration that leads to the same conclusion. It is conceded by
petitioners that with the non-convening of the interim Assembly, the legislative authority
has perforce fallen into the hands of the President, if only to avoid a complete paralysis of
law-making and resulting anarchy and chaos. It is likewise conceded that the provisions
of Section 3 (2) of Article XVII invest the President with legislative power for the
duration of the transition period. From these premises, it is safe to conclude that in effect
the President has been substituted by the people themselves in place of the interim
Assembly. Such being the case, the President should be deemed as having been granted
also the cognate prerogative of proposing amendments to the Constitution. In other
words, the force of necessity and the cognate nature of the act justify that the department
exercising the legislative faculty be the one to likewise perform the constituent function
that was attached to the body rendered impotent by the people's mandate. Incidentally, I
reject most vehemently the proposition that the President may propose amendments to the
Constitution in the exercise of his martial law powers. Under any standards, such a
suggestion cannot be reconciled with the ideal that a Constitution is the free act of the
people.
It was suggested during the oral argument that instead of extending his legislative powers
by proposing the amendment to create a new legislative body, the President should issue
a decree providing for the necessary apportionment of the seats in the Regular National
Assembly and call for an election of the members thereof and thus effect the immediate
normalization of the parliamentary government envisaged in the Constitution. While
indeed procedurally feasible, the suggestion overlooks the imperative need recognized by
the constitutional convention as may be inferred from the obvious purpose of the
transitory provisions, for a period of preparation and acquaintance by all concerned with

the unfamiliar distinctive features and practices of the parliamentary system. Accustomed
as we are to the presidential system, the Convention has seen to it that there should be an
interim parliament under the present leadership, which will take the corresponding
measures to effectuate the efficient and smooth transition from the present system to the
new one. I do not believe this pattern set by the convention should be abandoned.
The alternative of calling a constitutional convention has also been mentioned. But, in the
first place, when it is considered that whereas, under Section 1 (1) and (2) of Article XVI,
the regular National Assembly may call a Constitutional Convention or submit such a call
for approval of the people, Section 15 of Article XVII, in reference to interim National
Assembly, does not grant said body the prerogative of calling a convention, one can
readily appreciate that the spirit of the Constitution does not countenance or favor the
calling of a convention during the transition, if only because such a procedure would be
time consuming, cumbersome and expensive. And when it is further noted that the
requirement as to the number of votes needed for a proposal is only a majority, whereas it
is three-fourths in respect to regular Assembly, and, relating this point to the provision of
Section 2 of Article XVI to the effect that all ratification plebiscites must be held "not
later than three months after the approval" of the proposed amendment by the proposing
authority, the adoption of the most simple manner of amending the charter, as that
provided for in the assailed Presidential Decree 1033 suggests itself as the one most in
accord with the intent of the fundamental law.
There is nothing strange in adopting steps not directly based on the letter of the
Constitution for the purpose of amending or changing the same. To cite but one important
precedent, as explained by Mr. Justice Makasiar in his concurring opinion in Javellana 2 ,
the present Constitution of the United States was neither proposed nor ratified in the
manner ordained by the original charter of that country, the Articles of Confederation and
Perpetual Union.
In brief, if the convening and operation of the interim National Assembly has been
effectuated through a referendum-plebiscite in January, 1973, and ratified expressly and
impliedly in two subsequent referenda, those of July, 1973 and February, 1975, why may
not a duly held plebiscite suffice for the purpose of creating a substitute for that
Assembly? It should be borne in mind that after all, as indicated in the whereas of the
impugned Presidential Decree, actually, the proposed amendments were initiated by the
barangays and sanggunian members. In other words, in submitting the amendments for
ratification, the President is merely acting as the conduit thru whom a substantial portion
of the people, represented in the Katipunan ng Mga Sanggunian, Barangay at Kabataang
Barangay, seek the approval of the people as a whole of the amendments in question. If
all these mean that the sovereign people have arrogated unto themselves the functions
relative to the amendment to the Constitution, I would regard myself as totally devoid of
legal standing to question it, having in mind that the most fundamental tenet on which our

whole political structure rests is that "sovereignty resides in the people and all
government authority emanates from them."
In the light of the foregoing considerations, I hold that Presidential Decree No. 1033 does
not infringe the Constitution, if only because the specific provision it is supposed to
infringe does not exist in legal contemplation since it was coevally made inoperative
when the people ratified the Constitution on January 17, 1973. I am fully convinced that
there is nothing in the procedure of amendment contained in said decree that is
inconsistent with the fundamental principles of constitutionalism. On the contrary, I find
that the Decree, in issue conforms admirably with the underlying tenet of our government
the sovereignty and plenary power of the people.
On the issue of whether or not October 16, 1976 is too proximate to enable the people to
sufficiently comprehend the issues and intelligently vote in the referendum and plebiscite
set by Presidential Decree 1033, all I can say is that while perhaps my other colleagues
are right in holding that the period given to the people is adequate, I would leave it to the
President to consider whether or not it would be wiser to extend the same. Just to avoid
adverse comments later I wish the President orders a postponement. But whether such
postponement is ordered or not, date of the referendum-plebiscite anywhere from October
16, 1976 to any other later date, would be of no vital import.
In conclusion, I vote to dismiss all the three petitions before Us.
MAKASIAR, J.; concurring and dissenting:
Since the validity or effectivity of the proposed amendments is to be decided ultimately
by the people in their sovereign capacity, the question is political as the term is defined in
Taada, et al. vs. Cuenco, et al. (103 Phil. 1051), which is a bar to any judicial inquiry,
for the reasons stated in Our opinion in Javellana, et al. vs. Executive Secretary, et al. (L36142); Tan, et al. vs. Executive Secretary, et al. (L-36164); Roxas, et al. vs. Executive
Secretary, et al. (L-36165); Monteclaro, etc., et al. vs. Executive Secretary, et al. (L36236); and Dilag, et al. vs. Executive Secretary, et al. (L-36283, March 31, 1973, 50
SCRA 30, 204-283). The procedure for amendment is not important. Ratification by the
people is all that is indispensable to validate an amendment. Once ratified, the method of
making the proposal and the period for submission become irrelevant.
The contrary view negates the very essence of a republican democracy that the people
are sovereign and renders meaningless the emphatic declaration in the very first
provision of Article II of the 1973 Constitution that the Philippines is a republican state,
sovereignty resides in the people and all government authority emanates from them. It is
axiomatic that sovereignty is illimitable. The representatives cannot dictate to the
sovereign people. They may guide them; but they cannot supplant their judgment. Such
an opposite view likewise distrusts the wisdom of the people as much as it despises their

intelligence. It evinces a presumptuous pretension to intellectual superiority. There are


thousands upon thousands among the citizenry, who are not in the public service, who are
more learned and better skilled than many of their elected representatives.
Moreover, WE already ruled in Aquino, et al. vs. Comelec, et al. (L-40004, Jan. 31, 1975,
62 SCRA 275, 298-302) that the President as enforcer or administrator of martial rule
during the period of martial law can legislate; and that he has the discretion as to when
the convene the interim National Assembly depending on prevailing conditions of peace
and order. In view of the fact that the interim National Assembly has not been convoked
in obedience to the desire of the people clearly expressed in the 1973 referenda, the
President therefore remains the lone law-making authority while martial law subsists.
Consequently, he can also exercise the power of the interim National Assembly to
propose amendments to the New Constitution (Sec. 15, Art. XVII). If, as conceded by
petitioner Vicente Guzman (L-44684), former delegate to the 1971 Constitutional
Convention which drafted the 1973 Constitution, the President, during the period of
martial law, can call a constitutional convention for the purpose, admittedly a constituent
power, it stands to reason that the President can likewise legally propose amendments to
the fundamental law.
LLpr

ANTONIO, J., concurring:


I.
At the threshold, it is necessary to clarify what is a "political question". It must be noted
that this device has been utilized by the judiciary "to avoid determining questions it is ill
equipped to determine or that could be settled in any event only with the effective support
of the political branches." 1 According to Weston, judges, whether "personal
representatives of a truly sovereign king, or taking their seats as the creatures of a largely
popular sovereignty speaking through a written constitution, derive their power by a
delegation, which clearly or obscurely as the case may be, delineates and delimits their
delegated jurisdiction. . . . Judicial questions . . . are those which the sovereign has set to
be decided in the courts. Political question, similarly, are those which the sovereign has
entrusted to the so-called political departments of government or has reserved to be
settled by its own extra-governmental action." 2 Reflecting a similar concept, this Court
has defined a "political question" as a "matter which is to be exercised by the people in
their primary political capacity or that has been specifically delegated to some other
department or particular officer of the government, with discretionary power to act." 3 In
other words, it refers to those questions which, under the Constitution, are to be decided
by the people in their sovereign capacity, or in regard to which full discretionary
authority has been delegated to the legislative or executive branch of government. 4

In determining whether an issue falls within the political question category, the absence
of a satisfactory criterion for a judicial determination or the appropriateness of attributing
finality to the action of the political departments of government is a dominant
consideration. This was explained by Justice Brennan in Baker v. Carr, 5 thus:
"Prominent on the surface of any case held to involve 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 non-judicial 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. . . ."

To decide whether a matter has in a measure been committed by the Constitution to


another branch of government or retained by the people to be decided by them in their
sovereign capacity, or whether that branch exceeds whatever authority has been
committed, is indeed a delicate exercise in constitutional interpretation.
In Coleman v. Miller, 6 the United States Supreme Court held that the efficacy of the
ratification by state legislatures of a constitutional amendment is a political question. On
the question of whether the State Legislature could constitutionally ratify an amendment,
after the same had been previously rejected by it, it was held that the ultimate authority
over the question was in Congress in the exercise of its control over the promulgation of
the adoption of the amendment. And in connection with the second question of whether
the amendment has lost its vitality through the lapse of time, the Court held that the
question was likewise political, involving "as it does . . . an appraisal of a great variety of
relevant conditions, political, social and economic, which can hardly be said to be within
the appropriate range of evidence receivable in a court of justice and as to which it would
be an extravagant extension of juridical authority to assert judicial notice as the basis of
deciding a controversy with respect to the validity of an amendment actually ratified. On
the other hand, these conditions are appropriate for the consideration of the political
departments of the Government. The questions they involve are essentially political and
not justiciable."
'In their concurring opinions, Justices Black, Roberts, Frankfurter and Douglas stressed
that:
"The Constitution grants Congress exclusive power to control submission of
constitutional amendments. Final determination by Congress that ratification by
three-fourths of the States has taken place 'is conclusive upon the courts.' In the
exercise of that power, Congress, of course, is governed by the Constitution.

However, whether submission, intervening procedure for Congressional


determination of ratification conforms to the commands of the Constitution, call
for decisions by a 'political department' of questions of a type which this Court
has frequently designated 'political.' And decision of a 'political question' by the
political department' to which the Constitution has committed it 'conclusively
binds the judges, as well as all other officers, citizens and subjects of . . .
government. Proclamation under authority of Congress that an amendment has
been ratified will carry with it a solemn assurance by the Congress that
ratification has taken place as the Constitution commands. Upon this assurance
a proclaimed amendment must be accepted as a part of the Constitution, leaving
to the judiciary its traditional authority of interpretation. To the extent that the
Court's opinion in the present case even impliedly assumes a power to make
judicial interpretation of the exclusive constitutional authority of Congress over
submission and ratification of amendments, we are unable to agree."

Relying on this doctrine enunciated in Coleman v. Miller, supra, this Court, in Mabanag
v. Lopez Vito, 7 speaking through Mr. Justice Pedro Tuason, ruled that the process of
constitutional amendment, involving proposal and ratification, is a political question. In
the Mabanag case, the petitioners sought to prevent the enforcement of a resolution of
Congress proposing the "Parity Amendment" to the Philippine Constitution on the ground
that it had not been approved by the three-fourths vote of all the members of each house
as required by Article XV of the 1935 Constitution. It was claimed that three (3) Senators
and eight (8) members of the House of Representatives had been suspended and that their
membership was not considered in the determination of the three-fourths vote. In
dismissing the petition on the ground that the question of the validity of the proposal was
political, the Court stated:
"If ratification of an amendment is a political question, a proposal which leads
to ratification has to be a political question. The two steps complement each
other in a scheme intended to achieve a single objective. It is to be noted that
amendatory process as provided in Section 1 of Article XV of the Philippine
Constitution 'consists of (only) two distinct parts: proposal and ratification.'
There is no logic in attaching political character to one and withholding that
character from the other. Proposal to amend the Constitution is highly political
function performed by the Congress in its sovereign legislative capacity and
committed to its charge by the Constitution itself. . . ." (At pages 4-5, emphasis
supplied.)

It is true that in Gonzales v. Comelec, 8 this Court held that "the issue whether or not a
Resolution of Congress, acting as a constituent assembly violates the Constitution is
essentially justiciable, not political, and hence, subject to judicial review." What was
involved in Gonzales, however, was not a proposed amendment to the Constitution but an
act of Congress, 9 submitting proposed amendments to the Constitution. Similarly, in
Tolentino v. Commission on Elections. 10 what was involved was not the validity of the
proposal to lower the voting age but rather that of the resolution of the Constitutional

Convention submitting the proposal for ratification. The question was whether piecemeal
amendments to the Constitution could be submitted to the people for approval or
rejection.
II
Here, the point has been stressed that the President is acting as agent for and in behalf of
the people in proposing the amendment. There can be no question that in the referendums
of January, 1973 and in the subsequent referendums the people had clearly and
categorically rejected the calling of the interim National Assembly. As stated in the main
opinion, the Lupang Tagapagpaganap of the Katipunan ng mga Sanggunian, the
Pambansang Katipunan ng mga Barangay, representing 42,000 barangays, the
Kabataang Barangay organizations and the various sectoral groups had proposed the
replacement of the interim National Assembly. These barangays and the Sanggunian
assemblies are effective instrumentalities through which the desires of the people are
articulated and expressed. The Batasang Bayan (Legislative Council), composed of
nineteen (19) cabinet members and nine (9) officials with cabinet rank, and ninety-one
(91) members of the Lupang Tagapagpaganap (Executive Committee) of the Katipunan
ng mga Sangguniang Bayan voted in their special session to submit directly to the people
in a plebiscite on October 16, 1976 the afore-mentioned constitutional amendments.
Through the Pambansang Katipunan ng mga Barangay and the Pampurok na Katipunan
ng mga Sangguniang Bayan, the people have expressed their desire not only to abolish
the interim National Assembly, but to replace it with a more representative body
acceptable to them in order to effect the desirable constitutional changes necessary to
hasten the political evolution of the government towards the parliamentary system, while
at the same time ensuring that the gains of the New Society, which are vital to the welfare
of the people, shall be safeguarded. The proposed constitutional amendments, therefore,
represent a consensus of the people.

It would be futile to insist that the interim National Assembly should have been convened
to propose those amendments pursuant to Section 15 of Article XVII of the Constitution.
This Court, in the case of Aquino v. Commission, on Elections, 11 took judicial notice of
the fact that in the referendum of January, 1973, a majority of those who approved the
new Constitution conditioned their votes on the demand that the interim National
Assembly provided in the Transitory Provisions should not be convened, and the
President "in deference to the sovereign will of the Filipino people" declared that the
convening of said body shall be suspended. 12 As this Court observed in the Aquino case:
"His decision to defer the initial convocation of the interim National Assembly
was supported by the sovereign people at the referendum in January, 1973 when
the people voted to postpone the convening of the interim National Assembly

until after at least seven (7) years from the approval of the new Constitution.
And the reason why the same question was eliminated from the questions to be
submitted at the referendum on February 27, 1975, is that even some members
of the Congress and delegates of the Constitutional Convention, who are already
ipso facto members of the interim National Assembly, are against such
inclusion; because the issue was already decided in the January, 1973
referendum by the sovereign people indicating thereby their disenchantment
with any Assembly as the former Congress failed to institutionalize the reforms
they demanded and had wasted public funds through endless debates without
relieving the suffering of the general mass of citizenry" (p. 302.)

The action of the President in suspending the convening of the interim National
Assembly has met the overwhelming approval of the people in subsequent referenda.
Since it was the action by the people that gave binding force and effect to the new
Constitution, then it must be accepted as a necessary consequence that their objection
against the immediate convening of the interim National Assembly must be respected as
a positive mandate of the sovereign.
In the Philippines, which is a unitary state, sovereignty "resides in the people and all
government authority emanates from them." 13 The term "people" as sovereign is
comprehensive in its context. The people, as sovereign creator of all political reality, is
not merely the enfranchised citizens but the political unity of the people. 14 It connotes,
therefore, a people which exists not only in the urgent present but in the continuum of
history. The assumption that the opinion of The People as voters can be treated as the
expression of the interests of The People as a historic community was, to the
distinguished American journalist and public philosopher, Walter Lippmann,
unwarranted.
"'Because of the discrepancy between The People as Voters and The People as
the corporate nation, the voters have no title to consider themselves the
proprietors of the commonwealth and to claim that their interests are identical to
the public interest. A prevailing plurality of the voters are not The People. The
claim that they are is a bogus title invoked to justify the usurpation of the
executive power by representative assemblies and the intimidation of public
men by demagogic politicians. In fact demagoguery can be described as the
sleight of hand by which a faction of The People as voters are invested with the
authority of The People. That is why so many crimes are committed in the
People's name.'" 15

In Gonzales v. Comelec, supra, the Court clearly emphasized that the power to propose
amendments or to amend the Constitution is part of the inherent power of the people as
the repository of sovereignty in a republican state. While Congress may propose
amendments to the Constitution, it acts pursuant to authority granted to it by the people

through the Constitution. Both the power to propose and the authority to approve,
therefore, inhere in the people as the bearer of the Constitution making power.
Absent an interim National Assembly upon whom the people, through the Constitution,
have delegated the authority to exercise constituent powers, it follows from necessity that
either the people should exercise that power themselves or through any other
instrumentality they may choose. For Law, like Nature, abhors a vacuum (natura vacuum
abhorret).
The question then is whether the President has authority to act for the people in
submitting such proposals for ratification at the plebiscite of October 16. The political
character of the question is, therefore, particularly manifest, considering that ultimately it
is the people who will decide whether the President has such authority. It certainly
involves a matter which is to be exercised by the people in their sovereign capacity,
hence, it is essentially political, not judicial.
While it is true that the constituent power is not to be confused with legislative power in
general because the prerogative to propose amendments is not embraced within the
context of ordinary lawmaking, it must be noted that the proposals to be submitted for
ratification in the forthcoming referendum are, in the final analysis, actually not of the
President but directly of the people themselves, speaking through their authorized
instrumentalities.
As the Chief Justice aptly stated in his concurring opinion in this case:
". . . The President merely formalized the said proposals in Presidential Decree
No. 1033. It being conceded in all quarters that sovereignty resides in the people
and it having been demonstrated that their constituent power to amend the
Constitution has not been delegated by them to any instrumentality of the
Government during the present stage of the transition period of our political
development, the conclusion is ineluctable that their exertion of that residuary
power cannot be vulnerable to any constitutional challenge as being ultra vires.
Accordingly, without venturing to rule on whether or not the President is vested
with constituent power as it does not appear necessary to do so in the
premises the proposals here challenged, being acts of the sovereign people
no less, cannot be said to be afflicted with unconstitutionality. A fortiori, the
concomitant authority to call a plebiscite and to appropriate funds therefor is
even less vulnerable not only because the President, in exercising said authority,
has acted as a mere alter ego of the people who made the proposals, but
likewise because the said authority is legislative in nature rather than
constituent.

This is but a recognition that the People of the Philippines have the inherent, sole and
exclusive right of regulating their own government, and of altering or abolishing their

Constitution whenever it may be necessary to their safety or happiness. There appears


to be no justification, under the existing circumstances, for a Court to create by
implication a limitation on the sovereign power of the people. As has been clearly
explained in a previous case: 16
"'There is nothing in the nature of the submission which should cause the free
exercise of it to be obstructed, or that could render it dangerous to the stability
of the government; because the measure derives all its vital force from the
action of the people at the ballot box, and there can never be danger in
submitting in an established form, to a free people, the proposition whether they
will change their fundamental law. The means provided for the exercise of their
sovereign right of changing their constitution should receive such a construction
as not to trammel the exercise of the right. Difficulties and embarrassments in
its exercise are in derogation of the right of free government, which is inherent
in the people; and the best security against tumult and revolution is the free and
unobstructed privilege to the people of the State to change their constitution in
the mode prescribed by the instrument."

III
The paramount consideration that impelled Us to arrive at the foregoing opinion is the
necessity of ensuring popular control over the constituent power. "If the people are to
control the constituent power the power to make and change the fundamental law of
the State," observed Wheeler, 17 "the process of Constitutional change must not be based
too heavily upon existing agencies of government." Indeed, the basic premise of
republicanism is that the ordinary citizen, the common man, can be trusted to determine
his political destiny. Therefore, it is time that the people should be accorded the fullest
opportunity to decide the laws that shall provide for their governance. For in the ultimate
analysis, the success of the national endeavor shall depend on the vision, discipline and
firmness of the moral will of every Filipino.
IN VIEW OF THE FOREGOING CONSIDERATIONS, We vote to dismiss the
petitions.
Aquino, J., concur.
MUOZ PALMA, J., dissenting:
I concur fully with the remarkably frank (so characteristic of him) dissenting opinion of
my distinguished colleague, Justice Claudio Teehankee. If I am writing this brief
statement it is only to unburden myself of some thoughts which trouble my mind and
leave my conscience with no rest nor peace.

Generally, one who dissents from a majority view of the Court takes a lonely and at times
precarious road, the burden being lightened only by the thought that in this grave task of
administering justice, when matters of conscience are at issue, one must be prepared to
espouse and embrace a rightful cause however unpopular it may be.
1.That sovereignty resides in the people and all government authority emanates from
them is a fundamental, basic principle of government which cannot be disputed, but when
the people have opted to govern themselves under the mantle of a written constitution,
each and every citizen, from the highest to the lowliest has the sacred duty to respect and
obey the Charter they have so ordained.

"By the Constitution which they establish, they not only tie up the hands of their
official agencies, but their own hands as well; and neither the officers of the
state, nor the whole people as an aggregate body, are at liberty to take action in
opposition to this fundamental law." (Cooley's Constitutional Limitations, 7th
Ed. p. 56, Emphasis Supplied)

The afore-quoted passage from the eminent jurist and author Judge Cooley, although
based on declarations of law of more than a century ago, lays down a principle which to
my mind is one of the enduring cornerstones of the Rule of Law. It is a principle with
which I have been familiar as a student of law under the tutelage of revered Professors,
Dr. Vicente G. Sinco and Justice Jose P. Laurel, and which I pray will prevail at all times
to ensure the existence of a free, stable, and civilized society.
The Filipino people, wanting to ensure to themselves a democratic republican form of
government, have promulgated a Constitution whereby the power to govern themselves
has been entrusted to and distributed among three branches of government; they have
also mandated in clear and unmistakable terms the method by which provisions in their
fundamental Charter may be amended or revised. Having done so, the people are bound
by these constitutional limitations. For while there is no surrender or abdication of the
people's ultimate authority to amend, revise, or adopt a new Constitution, sound reason
demands that they keep themselves within the procedural bounds of the existing
fundamental law. The right of the people to amend or change their Constitution if and
when the need arises is not to be denied, but we assert that absent a revolutionary state or
condition in the country, the change must be accomplished through the ordinary, regular
and legitimate processes provided for in the Constitution. 1
I cannot subscribe therefore to the view taken by the Solicitor General that the people,
being sovereign, have the authority to amend the Constitution even in a manner different
from and contrary to that expressly provided for in that instrument, and that the
amendatory process is intended more as a limitation of a power rather than a grant of
power to a particular agency and it should not be construed as limiting the ultimate

sovereign will of the people to decide on amendments to the Constitution. 2 Such a view
will seriously undermine the very existence of a constitutional government and will
permit anarchy and/or mob rule to set afoot and prevail. Was it the Greek philosopher
Plato who warned that the rule of the mob is a prelude to the rule of the tyrant?
I would use the following excerpt from Bernas, S.J., "The 1973 Philippine Constitution,
Notes and Cases" as relevant to my point:
". . . the amendatory provisions are called a 'constitution of sovereignty' because
they define the constitutional meaning of 'sovereignty of the people.' Popular
sovereignty, as embodied in the Philippine Constitution, is not extreme popular
sovereignty. As one American writer put it:
'A constitution like the American one serves as a basic check
upon the popular will at any given time. It is the distinctive function of
such written document to classify certain things as legal fundamentals;
these fundamentals may not be changed except by the slow and
cumbersome process of amendment. The people themselves have
decided, in constitutional convention assembled, to limit themselves and
future generations in the exercise of the sovereign power which they
would otherwise possess. And it is precisely such limitation that enables
those subject to governmental authority to appeal from the people drunk
to the people sober, in time of excitement and hysteria. The Constitution,
in the neat phrase of the Iowa court, is the protector of the people against
injury by the people.'" *

Truly, what need is there for providing in the Constitution a process by which the
fundamental law may be amended if, after all, the people by themselves can set the same
at naught even in times of peace when civil authority reigns supreme?
To go along with the respondents' theory in this regard is to render written Constitutions
useless or mere "ropes of sand", allowing for a government of men instead of one of
laws. For it cannot be discounted that a situation may arise where the people are heralded
to action at a point of a gun or by the fiery eloquence of a demagogue, and where passion
overpowers reason, and mass action overthrows legal processes.
History has recorded such instances, and I can think of no better example than that of
Jesus Christ of Judea who was followed and loved by the people while curing the sick,
making the lame walk and the blind see, but shortly was condemned by the same people
turned into fanatic rabble crying out "Crucify Him, Crucify Him" upon being incited into
action by chief priests and elders of Jerusalem.
Yes, to quote once more from Judge Cooley:

"A good Constitution should be beyond the reason of temporary excitement and
popular caprice or passion. It is needed for stability and steadiness; it must yield
to the thought of the people; not to the whim of the people, or the thought
evolved in excitement or hot blood, but the sober second thought, which alone,
if the government is to be safe, can be allowed efficiency. . . . Changes in
government are to be feared unless the benefit is certain." (quoted in Ellingham
v. Dye, 99 N.E. 1, 15) 3

2.Presidential Decrees Nos. 991 and 1033 which call for a national referendum-plebiscite
on October 16, 1976 for the purpose, among other things, of amending certain provisions
of the 1973 Constitution are null and void; as they contravene the express provisions on
the amending process of the 1973 Constitution laid down in Article XVI, Section 1(1)
and Article XVII, Section 15, more particularly the latter which applies during the
present transition period. The Opinion of Justice Teehankee discusses in detail this
particular matter.
I would just wish to stress the point that although at present there is no interim National
Assembly which may propose amendments to the Constitution, the existence of a socalled "vacuum" or "hiatus" does not justify a transgression of the constitutional
provisions on the manner of amending the fundamental law. We cannot cure one
infirmity the existence of a "vacuum" caused by the non-convening of the interim
National Assembly with another infirmity, that is, doing violence to the Charter.
"'All great mutations shake and disorder a state. Good does not necessarily
succeed evil; another evil may succeed and a worse.'" (Am. Law Rev. 1889, p.
311., quoted in Ellingham v. Dye, supra, p. 15)

Respondents contend that the calling of the referendum-plebiscite for the purpose
indicated is a step necessary to restore the state of normalcy in the country. To my mind,
the only possible measure that will lead our country and people to a condition of
normalcy is the lifting or ending of the state of martial law. If I am constrained to make
this statement it is because so much stress was given during the hearings of these cases on
this particular point, leaving one with the impression that for petitioners to contest the
holding of the October 16 referendum-plebiscite is for them to assume a position of
blocking or installing the lifting of martial law, which I believe is unfair to the
petitioners. Frankly, I cannot see the connection between the two. My esteemed
colleagues should pardon me therefore if I had ventured to state that the simple solution
to the present dilemma is the lifting of martial law and the implementation of the
constitutional provisions which will usher in the parliamentary form of government
ordained in the Constitutional, which, as proclaimed in Proclamation 1102, the people
themselves have ratified.
If the people have indeed ratified the 1973 Constitution, then they are bound by their act
and cannot escape from the pretended unfavorable consequences thereof, the only remedy

being to set in motion the constitutional machinery by which the supposed desired
amendments may properly be adopted and submitted to the electorate for ratification.
Constitutional processes are to be observed strictly, if we have to maintain and preserve
the system of government decreed under the fundamental Charter. As said by Justice
Enrique Fernando in Mutuc vs. Commission on Elections:
". . . The concept of the Constitution as the fundamental law, setting forth the
criterion for the validity of any public act whether proceeding from the highest
official or the lowest functionary, is a postulate of our system of government.
That is to manifest fealty to the rule of law, with priority accorded to that which
occupies the topmost rung in the legal hierarchy." . . . (36 SCRA, 228, 234,
Emphasis supplied)

A contrary view would lead to disastrous consequences for, in the words of Chief
Justice Cox of the Supreme Court of Indiana in Ellingham v. Dye, (supra, p. 7) liberty
and popular sovereignty are not meant to give rein to passion or thoughtless impulse
but to allow the exercise of power by the people for the general good under constant
restraints of law.
3.The true question before Us is one of power: Does the incumbent President of the
Philippines possess constituent powers? Again, the negative answer is explained in detail
in the dissenting opinion of Justice Teehankee.
Respondents would justify the incumbent President's exercise of constituent powers on
theory that he is vested with legislative powers as held by this Court in Benigno S.
Aquino, Jr., et al. vs. Commission on Elections, et al., L-40004, January 31, 1975. I wish
to stress that although in my separate opinion in said case I agreed that Section 3 (2) of
the Transitory provisions grants to the incumbent President legislative powers, I qualified
my statement as follows:
". . . As to, whether, or not, this unlimited legislative power of the President
continues to exist even after the ratification of the Constitution is a matter which
I am not ready to concede at the moment, and which at any rate I believe is not
essential in resolving this Petition for reasons to be given later. Nonetheless, I
hold the view that the President is empowered to issue proclamations, orders,
decrees, etc. to carry out and implement the objectives of the proclamation of
martial law be it under the 1935 or 1973 Constitution, and for the orderly and
efficient functioning of the government, its instrumentalities, and agencies. This
grant of legislative power is necessary to fill up a vacuum during the transition
period when the interim National Assembly is not yet convened and
functioning, for otherwise, there will be a disruption of official functions
resulting in a collapse of the government and of the existing social order." (62
SCRA, pp. 275, 347)

I believe it is not disputed that legislative power is essentially different from constituent
power; one does not encompass the other unless so specified in the Charter, and the 1973
Constitution contains provisions in this regard. This is well-explained in Justice
Teehankee's Opinion. The state of necessity brought about by the current political
situation, invoked by the respondents, provides no source of power to propose
amendments to the existing Constitution. Must we "bend the Constitution to suit the law
of the hour?" 4 or cure its defects "by inflicting upon it a wound which nothing can heal,"
commit one assault after the other "until all respect for the fundamental law is lost and
the powers of government are just what those in authority please to call them?" 5 Or can
we now ignore what this Court, speaking through Justice Barredo, said in Tolentino vs.
Comelec:
". . . let those who would put aside, invoking. grounds at best controversial, any
mandate of the fundamental law purportedly in order to attain some laudable
objective bear in mind that someday somehow others with purportedly more
laudable objectives may take advantage of the precedent and continue the
destruction of the Constitution, making those who laid down the precedent of
justifying deviations from the requirements of the Constitution the victims of
their own folly." 6

Respondents emphatically assert that the final word is the people's word and that
ultimately it is in the hands of the people where the final decision rests. (Comment, pp.
18, 19, 22) Granting in gratia argumenti that it is so, let it be an expression of the will of
the people under a normal political situation and not under the aegis of martial rule for as
I have stated in Aquino vs. Comelec, et al., supra, a referendum (and now a plebiscite)
held under a regime of martial law can be of no far reaching significance because it is
being accomplished under an atmosphere or climate of fear as it entails a wide area of
curtailment and infringement of individual rights, such as, human liberty, property rights,
rights of free expression and assembly, protection against unreasonable searches and
seizures, liberty of abode and of travel, and so on.
4.The other issues such as the sufficiency and proper submission of the proposed
amendments for ratification by the people are expounded in Justice Teehankee's Opinion.
I wish to stress indeed that it is incorrect to state that the thrust of the proposed
amendments is the abolition of the interim National Assembly and its substitution with an
"interim Batasang Pambansa", for that is not all. Proposed amendment No. 6 will permit
or allow the concentration of power in one man the Executive Prime Minister or
President or whatever you may call him for it gives him expressly (which the 1973
Constitution or the 1935 Constitution does not) legislative powers even during the
existence of the appropriate legislative body, dependent solely on the executive's
judgment on the existence of a grave emergency or a threat or imminence thereof. **

I must be forgiven if, not concerned with the present, I am haunted however by what can
happen in the future, when we shall all be gone. Verily, this is a matter of grave concern
which necessitates full, mature, sober deliberation of the people but which they can do
only in a climate of freedom without the restraints of martial law.
I close, remembering what Claro M. Recto, President of the Constitutional Convention
which drafted the 1935 Philippine Constitution, once said:
". . . Nor is it enough that our people possess a written constitution in order that
their government may be called constitutional. To be deserving of this name,
and to drive away all danger of anarchy as well as of dictatorship whether by
one man or a few, it is necessary that both the government authorities and the
people faithfully observe and obey the constitution, and that the citizens be duly
conversant not only with their rights but also with their duties." 7

Jose P. Laurel who served his people as Justice of the Supreme Court of this country gave
this reminder; the grave and perilous task of halting transgressions and vindicating
cherished rights is reposed mainly on the judiciary and therefore let the Courts be the
vestal keepers of the purity and sanctity of our Constitution. 8
On the basis of the foregoing, I vote to declare Presidential Decrees Nos. 991 and 1033
unconstitutional and enjoin the implementation thereof.
CONCEPCION, JR., J., concurring:
I vote for the dismissal of the petitions.
1.The issue is not political and therefore justiciable.
The term "political question", as this Court has previously defined, refers to those
questions which, under the constitution, are to be decided by the people in their sovereign
capacity, or in regard to which full discretionary authority has been delegated to the
Legislature or executive branch of the Government It is concerned with the issues
dependent upon the wisdom, not legality, of a particular measure. 1
Here, the question raised is whether the President has authority to propose to the people
amendments to the Constitution which the petitioners claim is vested solely upon the
National Assembly, the constitutional convention called for the purpose, and the interim
National Assembly. This is not a political question since it involves the determination of
conflicting claims of authority under the constitution.
In Gonzales vs. Comelec, 2 this Court, resolving the issue of whether or not a Resolution
of Congress, acting as a constituent assembly, violates the Constitution, ruled that the
question is essentially justiciable, not political, and hence, subject to judicial review.

In Tolentino vs. Comelec, 3 this Court finally dispelled all doubts as to its position
regarding its jurisdiction vis-a-vis the constitutionality of the acts of Congress, acting as a
constituent assembly, as well as those of a constitutional convention called for the
purpose of proposing amendments to the constitution. Insofar as observance of
constitutional provisions on the procedure for amending the constitution is concerned, the
issue is cognizable by this Court under its powers of judicial review.
2.As to the merits, a brief backdrop of the decision to hold the referendum-plebiscite will
help resolve the issue. It is to be noted that under the 1973 Constitution, an interim
National Assembly was organized to bring about an orderly transition from the
presidential to the parliamentary system of government. 4 The people, however, probably
distrustful of the members who are old-time politicians and constitutional delegates who
had voted themselves into membership in the interim National Assembly, voted against
the convening of the said interim assembly for at least seven years, 5 thus creating a
political stalemate and a consequent delay' in the transformation of the government into
the parliamentary system. To resolve the impasse, the President, at the instance of the
barangays and sanggunian assemblies through their duly authorized instrumentalities who
recommended a study of the feasibility of abolishing and replacing the interim National
Assembly with another interim body truly representative of the people in a reformed
society, issued Presidential Decree No. 991, on September 2, 1976, calling for a national
referendum on October 16, 1976 to ascertain the wishes of the people as to the ways and
means that may be available to attain the objective; providing for a period of educational
and information campaign on the issues; and establishing the mechanics and manner for
holding thereof. But the people, through their barangays, addressed resolutions to the
Batasang Bayan, expressing their desire to have the constitution amended, thus
prompting the President to issue Presidential Decree No. 1033, stating the questions to be
submitted to the people in the referendum-plebiscite on October 16, 1976.
As will be seen, the authority to amend the Constitution was removed from the interim
National Assembly and transferred to the seat of sovereignty itself. Since the Constitution
emanates from the people who are the repository of all political powers, their authority to
amend the Constitution through the means they have adopted, aside from those
mentioned in the Constitution, cannot be gainsaid. Not much reflection is also needed to
show that the President did not exercise his martial law legislative powers when he
proposed the amendments to the Constitution. He was merely acting as an instrument to
carry out the will of the people. Neither could he convene the interim National Assembly,
as suggested by the petitioners, without doing violence to the people's will expressed
overwhelmingly when they decided against convening the interim assembly for at least
seven years.
3.The period granted to the people to consider the proposed amendments is reasonably
long and enough to afford intelligent discussion of the issues to be voted upon. PD 991
has required the barangays to hold assemblies or meetings to discuss and debate on the

referendum questions, which in fact they have been doing. Considering that the proposed
amendments came from the representatives of the people themselves, the people must
have already formed a decision by this time on what stand to take on the proposed
amendments come the day for the plebiscite. Besides, the Constitution itself requires the
holding of a plebiscite for the ratification of an amendment not later than three (3)
months after the approval of such amendment or revision, 6 but without setting a definite
period within which such plebiscite shall not be held. From this I can only conclude that
the framers of the Constitution desired that only a short period shall elapse from the
approval of such amendment or resolution to its ratification by the people.
(Sanidad v. Commission on Elections, G.R. No. L-44640, L-44684, L-44714, [October
12, 1976], 165 PHIL 303-447)
|||

EN BANC
[G.R. No. 86344. December 21, 1989.]
REP. RAUL A. DAZA, petitioner, vs. REP. LUIS C. SINGSON and
HON. RAOUL V. VICTORINO IN THE LATTER'S CAPACITY AS
SECRETARY OF THE COMMISSION ON APPOINTMENTS,
respondent.

DECISION

CRUZ, J :
p

After the congressional elections of May 11, 1987, the House of Representatives
proportionally apportioned its twelve seats in the Commission on Appointments among
the several political parties represented in that chamber, including the Lakas ng Bansa,
the PDP-Laban, the NP-Unido, the Liberal Party, and the KBL, in accordance with
Article VI, Section 18, of the Constitution. Petitioner Raul A. Daza was among those
chosen and was listed as a representative of the Liberal Party. 1
On September 16, 1988, the Laban ng Demokratikong Pilipino was reorganized, resulting
in a political realignment in the House of Representatives. Twenty four members of the
Liberal Party formally resigned from that party and joined the LDP, thereby swelling its
number to 159 and correspondingly reducing their former party to only 17 members. 2
On the basis of this development, the House of Representatives revised its representation
in the Commission on Appointments by withdrawing the seat occupied by the petitioner
and giving this to the newly-formed LDP. On December 5, 1988, the chamber elected a
new set of representatives consisting of the original members except the petitioner and
including therein respondent Luis C. Singson as the additional member from the LDP. 3
The petitioner came to this Court on January 13, 1989, to challenge his removal from the
Commission on Appointments and the assumption of his seat by the respondent. Acting
initially on his petition for prohibition and injunction with preliminary injunction, we
issued a temporary restraining order that same day to prevent both the petitioner and the
respondent from serving in the Commission on Appointments. 4
Briefly stated, the contention of the petitioner is that he cannot be removed from the
Commission on Appointments because his election thereto is permanent under the
doctrine announced in Cunanan v. Tan. 5 His claim is that the reorganization of the

House representation in the said body is not based on a permanent political realignment
because the LDP is not a duly registered political party and has not yet attained political
stability.
For his part, the respondent argues that the question raised by the petitioner is political in
nature and so beyond the jurisdiction of this Court. He also maintains that he has been
improperly impleaded, the real party respondent being the House of Representatives
which changed its representation in the Commission on Appointments and removed the
petitioner. Finally, he stresses that nowhere in the Constitution is it required that the
political party be registered to be entitled to proportional representation in the
Commission on Appointments.
cdll

In addition to the pleadings filed by the parties, a Comment was submitted by the
Solicitor General as amicus curiae in compliance with an order from the Court.
At the core of this controversy is Article VI, Section 18, of the Constitution providing as
follows:
Sec. 18. There shall be a Commission on Appointments consisting of the
President of the Senate, as ex officio Chairman, twelve Senators and twelve
Members of the House of Representatives, elected by each House on the basis
of proportional representation from the political parties and parties or
organizations registered under the party-list system represented therein. The
Chairman of the Commission shall not vote, except in case of a tie. The
Commission shall act on all appointments submitted to it within thirty session
days of the Congress from their submission. The Commission shall rule by a
majority vote of all the Members.

Ruling first on the jurisdictional issue, we hold that, contrary to the respondent's
assertion, the Court has the competence to act on the matter at bar. Our finding is that
what is before us is not a discretionary act of the House of Representatives that may not
be reviewed by us because it is political in nature. What is involved here is the legality,
not the wisdom, of the act of that chamber in removing the petitioner from the
Commission on Appointments. That is not a political question because, as Chief Justice
Concepcion explained in Taada v. Cuenco: 6
. . . the term "political question" connotes, in legal parlance, what it means in
ordinary parlance, namely, a question of policy. In other words, . . . it refers "to
those questions which, under the Constitution, are to be decided by the people in
their sovereign capacity, or in regard to which full discretionary authority has
been delegated to the Legislature or executive branch of the Government." It is
concerned with issues dependent upon the wisdom, not legality, of a particular
measure.

In the aforementioned case, the Court was asked by the petitioners therein to annul the
election of two members of the Senate Electoral Tribunal of that chamber, on the ground
that they had not been validly nominated. The Senate then consisted of 23 members from
the Nacionalista Party and the petitioner as the lone member of the Citizens Party.
Senator Lorenzo M. Taada nominated only himself as the minority representative in the
Tribunal, whereupon the majority elected Senators Mariano J. Cuenco and Francisco
Delgado, from its own ranks, to complete the nine-man composition of the Tribunal as
provided for in the 1935 Constitution. The petitioner came to this Court, contending that
under Article VI, Section 11, of that Charter, the six legislative members of the Tribunal
were to be chosen by the Senate, "three upon nomination of the party having the largest
number of votes and three of the party having the second largest number of votes
therein." As the majority party in the Senate, the Nacionalista Party could nominate only
three members and could not also fill the other two seats pertaining to the minority.
LibLex

By way of special and affirmative defenses, the respondents contended inter alia that the
subject of the petition was an internal matter that only the Senate could resolve. The
Court rejected this argument, holding that what was involved was not the wisdom of the
Senate in choosing the respondents but the legality of the choice in light of the
requirement of the Constitution. The petitioners were questioning the manner of filling
the Tribunal, not the discretion of the Senate in doing so. The Court held that this was a
justiciable and not a political question, thus:
Such is not the nature of the question for determination in the present case.
Here, we are called upon to decide whether the election of Senators Cuenco and
Delgado by the Senate, as members of the Senate Electoral Tribunal, upon
nomination by Senator Primicias a member and spokesman of the party
having the largest number of votes in the Senate on behalf of its Committee
on Rules, contravenes the constitutional mandate that said members of the
Senate Electoral Tribunal shall be chosen "upon nomination . . . of the party
having the second largest number of votes" in the Senate and hence, is null and
void. The Senate is not clothed with "full discretionary authority" in the choice
of members of the Senate Electoral Tribunal. The exercise of its power thereon
is subject to constitutional limitations which are claimed to be mandatory in
nature. It is clearly within the legitimate province of the judicial department to
pass upon the validity of the proceeding in connection therewith.
'. . . whether an election of public officers has been in accordance with
law is for the judiciary. Moreover, where the legislative department has
by statute prescribed election procedure in a given situation, the
judiciary may determine whether a particular election has been in
conformity with such statute, and particularly, whether such statute has
been applied in a way to deny or transgress on constitutional or statutory
rights . . . .' (16 C.J.S., 439; emphasis supplied).

It is, therefore, our opinion that we have, not only jurisdiction but also the duty,
to consider and determine the principal issue raised by the parties herein."

Although not specifically discussed, the same disposition was made in Cunanan v. Tan as
it likewise involved the manner or legality of the organization of the Commission on
Appointments, not the wisdom or discretion of the House in the choice of its
representatives.
In the case now before us, the jurisdictional objection becomes even less tenable and
decisive. The reason is that, even if we were to assume that the issue presented before us
was political in nature, we would still not be precluded from resolving it under the
expanded jurisdiction conferred upon us that now covers, in proper cases, even the
political question. Article VII, Section 1, of the Constitution clearly provides:
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.

The respondent's contention that he has been improperly impleaded is even less
persuasive. While he may be technically correct in arguing that it is not he who caused
the petitioner's removal, we feel that this objection is also not an insuperable obstacle to
the resolution of this controversy. We may, for one thing, treat this proceeding as a
petition for quo warranto as the petitioner is actually questioning the respondent's right to
sit as a member of the Commission on Appointments. For another, we have held as early
as in the Emergency Powers Cases 7 that where serious constitutional questions are
involved, "the transcendental importance to the public of these cases demands that they
be settled promptly and definitely, brushing aside, if we must, technicalities of
procedure." The same policy has since then been consistently followed by the Court, as in
Gonzales v. Commission on Elections, 8 where we held through Chief Justice Fernando:
LexLib

In the course of the deliberations, a serious procedural objection was raised by


five members of the Court. It is their view that respondent Commission on
Elections not being sought to be restrained from performing any specific act,
this suit cannot be characterized as other than a mere request for an advisory
opinion. Such a view, from the remedial law standpoint, has much to
recommend it. Nonetheless, a majority would affirm the original stand that
under the circumstances, it could still rightfully be treated as a petition for
prohibition.

The language of Justice Laurel fits the case: "All await the decision of this
Court on the constitutional question. Considering, therefore, the importance
which the instant case has assumed and to prevent multiplicity of suits, strong
reasons of public policy demand that [its] constitutionality . . . be now
resolved." It may likewise be added that the exceptional character of the
situation that confronts us, the paramount public interest, and the undeniable
necessity for ruling, the national elections being barely six months away,
reinforce our stand.
It would appear undeniable, therefore, that before us is an appropriate
invocation of our jurisdiction to prevent the enforcement of an alleged
unconstitutional statute. We are left with no choice then; we must act on the
matter.

Coming now to the more crucial question, the Court notes that both the petitioner and the
respondent are invoking the case of Cunanan v. Tan to support their respective positions.
It is best, therefore, to make a quick review of that case for a proper disposition of this
one.
In the election for the House of Representatives held in 1961, 72 seats were won by the
Nacionalista Party, 29 by the Liberal Party and 1 by an independent. Accordingly, the
representation of the chamber in the Commission on Appointments was apportioned to 8
members from the Nacionalista Party and 4 from the Liberal Party. Subsequently, 25
members of the Nacionalista Party, professing discontent over the House leadership,
made common cause with the Liberal Party and formed what was called the Allied
Majority to install a new Speaker and reorganize the chamber. Included in this
reorganization was the House representation in the Commission on Appointments where
three of the Nacionalista congressmen originally chosen were displaced by three of their
party colleagues who had joined the Allied Majority.
prcd

Petitioner Carlos Cunanan's ad interim appointment as Deputy Administrator of the


Reforestration Administration was rejected by the Commission on Appointments as thus
reorganized and respondent Jorge Tan, Jr. was thereafter designated in his place.
Cunanan then came to this Court, contending that the rejection of his appointment was
null and void because the Commission itself was invalidly constituted.
The Court agreed. It noted that the Allied Majority was a merely temporary combination
as the Nacionalista defectors had not disaffiliated from their party and permanently joined
the new political group. Officially, they were still members of the Nacionalista Party. The
reorganization of the Commission on Appointments was invalid because it was not based
on the proportional representation of the political parties in the House of Representatives
as required by the Constitution. The Court held:

. . . In other words, a shifting of votes at a given time, even if due to


arrangements of a more or less temporary nature, like the one that has led to the
formation of the so-called "Allied Majority," does not suffice to authorize are
organization of the membership of the Commission for said House. Otherwise
the Commission on Appointments may have to be reorganized as often as votes
shift from one side to another in the House. The framers of our Constitution
could not have intended to thus place a constitutional organ, like the
Commission on Appointments, at the mercy of each House of Congress.

The petitioner vigorously argues that the LDP is not the permanent political party
contemplated in the Constitution because it has not been registered in accordance with
Article IX-B, Section 2(5), in relation to the other provisions of the Constitution. He
stresses that the so-called party has not yet achieved stability and suggests it might be no
different from several other political groups that have died "a-bornin'," like the UNA, or
have subsequently floundered, like the UNIDO.
The respondent also cites Cunanan but from a different viewpoint. According to him, that
case expressly allows reorganization at any time to reflect changes in the political
alignments in Congress, provided only that such changes are permanent. The creation of
the LDP constituting the bulk of the former PDP Laban and to which no less than 24
Liberal congressmen had transferred was a permanent change. That change fully justified
his designation to the Commission on Appointments after the reduction of the LP
representation therein. Thus, the Court held:
Upon the other hand, the constitutional provision to the effect that "there shall
be a Commission on Appointments consisting of twelve (12) Senators and
twelve (12) members of the House of Representatives elected by each House,
respectively, on the basis of proportional REPRESENTATION OF THE
POLITICAL PARTIES THEREIN," necessarily connotes the authority of each
House of Congress to see to it that this requirement is duly complied with. As a
consequence, it may take appropriate measures, not only upon the initial
organization of the Commission, but also, subsequently thereto. If by reason of
successful election protests against members of a House, or of their expulsion
from the political party to which they belonged and/or of their affiliation with
another political party, the ratio in the representation of the political parties in
the House is materially changed, the House is clothed with authority to declare
vacant the necessary number of seats in the Commission on Appointments held
by members of said House belonging to the political party adversely affected by
the change and then fill said vacancies in conformity with the Constitution.

In the course of the spirited debate on this matter between the petitioner and the
respondent (who was supported by the Solicitor General) an important development has
supervened to considerable simplify the present controversy.

The petitioner, to repeat, bases his argument heavily on the non-registration of the LDP
which, he claims has not provided the permanent political realignment to justify the
questioned reorganization. As he insists:
(c) Assuming that the so-called new coalesced majority is actually the LDP
itself, then the proposed reorganization is likewise illegal and ineffectual,
because the LDP, not being a duly registered political party, is not entitled to the
"rights and privileges granted by law to political parties" (Sec. 160, BP No.
881), and therefore cannot legally claim the right to be considered in
determining the required proportional representation of political parties in the
House of Representatives. 9
xxx xxx xxx
. . . the clear constitutional intent behind Section 18, Article VI, of the 1987
Constitution, is to give the right of representation in the Commission on
Appointment only to political parties who are duly registered with the Comelec.

10
On November 23, 1989, however, that argument boomeranged against the petitioner. On
that date, the Commission on Elections in an en banc resolution affirmed the resolution
of its First Division dated August 28, 1989, granting the petition of the LDP for
registration as a political party. 11 This has taken the wind out of the sails of the
petitioner, so to speak, and he must now limp to shore as best he can.
LLpr

The petitioner's contention that, even if registered, the party must still pass the test of
time to prove its permanence is not acceptable. Under this theory, a registered party
obtaining the majority of the seats in the House of Representatives (or the Senate) would
still not be entitled to representation in the Commission on Appointments as long as it
was organized only recently and has not yet "aged." The Liberal Party itself would fall in
such a category. That party was created in December 1945 by a faction of the
Nacionalista Party that seceded therefrom to support Manuel A. Roxas's bid for the
Presidency of the Philippines in the election held on April 23, 1946 12 The Liberal Party
won. At that time it was only four months old. Yet no question was raised as to its right
to be represented in the Commission on Appointments and in the Electoral Tribunals by
virtue of its status as the majority party in both chambers of the Congress.
The LDP has been in existence for more than one year now. It now has 157 members in
the House of Representatives and 6 members in the Senate. Its titular head is no less than
the President of the Philippines and its President is Senator Neptali A. Gonzales, who
took over recently from Speaker Ramon V. Mitra. It is true that there have been, and
there still are, some internal disagreements among its members, but these are to be
expected in any political organization, especially if it is democratic in structure. In fact,
even the monolithic Communist Party in a number of socialist states has undergone

similar dissension, and even upheavals. But it surely cannot be considered still temporary
because of such discord.
If the petitioner's argument were to be pursued, the 157 members of the LDP in the
House of Representatives would have to be denied representation in the Commission on
Appointments and, for that matter, also the Electoral Tribunal. By the same token, the
KBL, which the petitioner says is now "history only," should also be written off. The
independents also cannot be represented because they belong to no political party. That
would virtually leave the Liberal Party only-with all of its seventeen members to claim
all the twelve seats of the House of Representatives in the Commission on Appointments
and the six legislative seats in the House Electoral Tribunal.

It is noteworthy that when with 41 members the Liberal Party was alloted two of the seats
in the Commission on Appointments, it did not express any objection. 13 Inconsistently,
the petitioner is now opposed to the withdrawal from it of one seat although its original
number has been cut by more than half.
As for the other condition suggested by the petitioner, to wit, that the party must survive
in a general congressional election, the LDP has doubtless also passed that test, if only
vicariously. It may even be said that as it now commands the biggest following in the
House of Representatives, the party has not only survived but in fact prevailed. At any
rate, that test was never laid down in Cunanan.
Cdpr

To summarize, then, we hold, in view of the foregoing considerations, that the issue
presented to us is justiciable rather political, involving as it does the legality and not the
wisdom of the act complained of, or the manner of filling the Commission on
Appointments as prescribed by the Constitution. Even if the question were political in
nature, it would still come within our powers of review under the expanded jurisdiction
conferred upon us by Article VIII, Section 1, of the Constitution, which includes the
authority to determine whether grave abuse of discretion amounting to excess or lack of
jurisdiction has been committed by any branch or instrumentality of the government. As
for the alleged technical flaw in the designation of the party respondent, assuming the
existence of such a defect, the same may be brushed aside, conformably to existing
doctrine, so that the important constitutional issue raised may be addressed. Lastly, we
resolve that issue in favor of the authority of the House of Representatives to change its
representation in the Commission on Appointments to reflect at any time the changes that
may transpire in the political alignments of its membership. It is understood that such
changes must be permanent and do not include the temporary alliances or factional
divisions not involving severance of political loyalties or formal disaffiliation and
permanent shifts of allegiance from one political party to another.
llcd

The Court would have preferred not to intervene in this matter, leaving it to be settled by
the House of Representatives or the Commission on Appointments as the bodies directly
involved. But as our jurisdiction has been invoked and, more importantly, because a
constitutional stalemate had to be resolved, there was no alternative for us except to act,
and to act decisively. In doing so, of course, we are not imposing our will upon the said
agencies, or substituting our discretion for theirs, but merely discharging our sworn
responsibility to interpret and apply the Constitution. That is a duty we do not evade, lest
we ourselves betray our oath.
WHEREFORE, the petition is DISMISSED. The temporary restraining order dated
January 13, 1989, is LIFTED. The Court holds that the respondent has been validly
elected as a member of the Commission on Appointments and is entitled to assume his
seat in that body pursuant to Article VI, Section 18, of the Constitution. No
pronouncement as to costs.
SO ORDERED.
Fernan, C .J ., Narvasa, Melencio-Herrera, Gutierrez, Jr., Paras, Feliciano, Gancayco,
Padilla, Bidin, Corts, Grio-Aquino, Medialdea and Regalado, JJ ., concur.
Sarmiento, J ., took no part.
|||

(Daza v. Singson, G.R. No. 86344, [December 21, 1989], 259 PHIL 980-992)

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