Republic of the Philippines Rules for the Senate, in nominating Senators Cuenco and Delgado,
SUPREME COURT and the Senate, in choosing these respondents, as members of the
Manila
TANADA V. CUENCOELECTORAL TRIBUNAL
G.R. No. L-10520 February 28, 1957
LORENZO M. TAÑADA and DIOSDADOMACAPAGAL, 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.
Tañada, Teehankee and Macapagal for petitioners.
Office of the Solicitor General Ambrosio Padilla and Solicitor Troadio
T. Quiazon, Jr. for respondents.
CONCEPCION, J.:
Petitioner Lorenzo M. Tañada is a member of the Senate of the
Philippines, and President of the Citizens Party, whereas petitioner
DiosdadoMacapagal, 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,
QuintinParedes, Francisco Rodrigo, Pedro Sabido, Claro M. Recto,
DomocaoAlonto and Decoroso Rosales, were proclaimed elected.
Subsequently, the elections of this Senators-elect-who eventually
assumed their respective seats in the Senate-was contested by
petitioner Macapagal, together with CamiloOsias, GeronimaPecson,
Macario Peralta, Enrique Magalona, PioPedrosa 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 CiprianoPrimicias, on behalf of the Nacionalista Party, chose
Senators Jose P. Laurel, Fernando Lopez and CiprianoPrimicias, as
members of the Senate Electoral Tribunal. Upon nomination of
petitioner Senator Tañada, 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 Tañada 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 respondent; 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. Tañada and Congressman
DiosdadoMacapagal 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. Tañada-belonging to the Citizens Party; that the Committee on
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. Tañada, 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 DiosdadoMacapagal 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 the (3) Senators upon
nomination of the Party having the second largest number of votes
therein, together, three (3) Justice 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
DiosdadoMacapagal 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.. hereinabove.".
Petitioners pray that:.
"1. Upon petitioners' filing of 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 respondent Alfredo Cruz, Catalina Cayetano,
Manuel Serapio and Placido Reyes, pending this action.
"2. After hearing, judgment be rendered ousting respondent
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
Tañada 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 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 attented 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 respondent
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.
x xxxxxxxx
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, Tañada'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 Tañada was asked what remedies he would suggest if he
nominated two (2) Nacionialista Senators and the latter declined
the, nomination. Senator Tañada 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
Tañada 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; emphasis supplied.).
To the same effect is the language used in Corpus JurisSecundum,
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; Sevillavs, 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.
x xxxxxxxx.
" .. 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 JurisSecundum (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
prove of the judicial department to pass upon the validity 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 the
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 Tañada, who is, also, the president of said party. In
the session of the Senate held on February 21, 1956, Senator Sabido
moved that Senator Tañada, "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 Tañada 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 Tañada 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 Tañada 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 Tañada,
but, also, maintaining that "Senator Tañada 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 Tañada - 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 Tañada 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. Tañada.".
Without an 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 TAÑADA. Mr. President.
"EL PRESIDENTEINTERINO. Caballero de Quezon.
"SENATOR TAÑADA. 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 PRESIDENTEINTERINO. 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 PRESIDENTEINTERINO. Estadispuesto el Senado a votar?
(VariosSenadores: Si.) Los queestenconformes con la
nominacionhechapor el Presidente del Comite de Reglamentos a
favor de los Senadores Delgado y Cuencoparasermiembrosdel
Tribunal Electoral, digan, si. (VariosSenadores: Si.) Los que no lo
estendigan, no (Silencio.)Quedaaprobada."(Congressional Record for
the Senate, Vol. III, p. 377; emphasis 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 Tañada belongs and which he represents.
Respondents allege, however, that the constitutional mandate to
the effect that "each Electoral Tribunal shall be compose 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 Tañada nominated himself only, on behalf
of the minority party, he thereby "waived his right to no 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 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 Tañada formed
part of the Nacionalista Party before the end of 1955, he
subsequently parted ways with" said party; and that Senator Tañada
"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 Tañada 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
Tañada only as a privilege but we must grant it as a matter of right."
(Id., id., p. 32; emphasis supplied.).
Similarly, Senator Sumulong maintained that "Senator Tañada, 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
Tañada 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 Tañada 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 Tañada 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 Tañada:.
"..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 Tañada 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 Tañada 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-leave no room
for doubt that the Senate has regarded the Citizens Party,
represented by Senator Tañada, 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 .." 6a 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
he rejected." (16 C. J. S., 71-72; emphasis supplied.) 6b.
The aforemention 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 respondent
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. 1, 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 main 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. 111, 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 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 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 line 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 non-partisan 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
rightfully 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 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 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 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," (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,
quisierapedirinformaciondelSubcomite de Siete.
"El Sr. PRESIDENTE.Que dice el Comite?" El Sr. ROXAS. Con mucho
gusto. "El Sr. CONEJERO. Tal comoesta el
draft.,dandotresmiembrosalamayoria, y otros t?-es a la minyoryia y
atros a la Corte Suprerma, no
creesuSenoriaqueesteequivalepricticamente a dejar el asunto a los
miembros del Tribunal Supremo?.
"El Sr. ROXAS.Si y no.Creemosquesi el tribunal a la
Comisionestacotistuido en esa forma, tanto los miembros de la
mayoriacomo los de la minoriaasicomo los miembros de la Corte
Saprema consideration la cuestionsobre la base de sus meritos,
sabiendoque el partidismo no essuficienteparadar el triunbo.
"El Sr. CONEJERO. Cree Su Senoriaque en un casocomoese,
podriamoshacerquetanto los de la mayoriacomo los de la
minoriaprescindieran del partidisrno?.
"El Sr. ROXAS.Creoquesi, 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 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.
This is obvious from the very language of the constitutional
provision under consideration. In fact, Senator Sabido-who had
moved to grant to Senator Tañada the privilege" to make the
nominations on behalf of 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 interpretation, 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 protegees. 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 liner, 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 by the
Congressmen or Senators who are members 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.
x xxxxxxxx.
"My idea is that the intention of the framers of the constitution in
creating the Electoral Tribunal is to insure impartially 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 Tañada, 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 statute is within the statute although it is not within the
letter, 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 be obtained front 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 were no substantial rights depend on it, no
injury can result from ignoring it, and the purpose of the legislative
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 pre-requisite conditions must exist prior to the
exercise of power, or must be performed before certain other
powers can be exercise, 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 Tañada 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 Tañada 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 Tañada 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
delegatesto the Convention, as 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 elections 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
entrench itself in power the legislature and thus destroy democracy
in the Philippines.
x xxxxxxxx.
".. 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 candidates 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 cheek 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.
x xxxxxxxx.
"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
Tañada 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
Tañada 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 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 69, sec. 68 [a], Rules of Court). In the
case at bar, petitioner Senator Tañada 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 Tañada
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 Tañada 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 election 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.
ALEJANDRINO V. QUEZON
Punishment by the Legislative against a senator
G.R. No. 22041 September 11, 1924
JOSE ALEJANDRINO, petitioner,
vs.
MANUEL L. QUEZON, ET AL., respondents.
Araneta& Zaragoza for petitioner.
Attorney-General Villa-Real for respondents.
MALCOLM, J.:
The petitioner in this original proceeding in mandamus and
injunction is Jose Alejandrino, a Senator appointed by the Governor-
General to represent the Twelfth Senatorial District. The
respondents are Manuel L. Quezon, President of the Philippine
Senate; Isabelo de los Reyes, Santiago Fonacier, AlejoMabanag,
Bernabe de Guzman, Ramon Fernandez, Emiliano T. Tirona, Antero
Soriano, Juan B. Alegre, Vicente de Vera, Jose Ma. Arroyo, Francisco
Enage, Tomas Gomez, Sergio Osmeña, Celestino Rodriguez,
Francisco Soriano, Jose A. Clarin, HadjiButu, EspiridionGuanco,
Hermenegildo Villanueva, Jose Hontiveros, TeodoroSandiko, and
Santiago Lucero, all members of the Philippine Senate; Faustino
Aguilar, Secretary of the Philippine Senate; Bernabe Bustamante,
Sergeant-at-arms of the Philippine Senate, and Francisco Dayaw,
Paymaster of the Philippine Senate.
The casus belli is a resolution adopted by the Philippine Senate
composed of the respondent Senators, on February 5, 1924,
depriving Senator Alejandrino of all the prerogatives, privileges, and
emoluments of his office for the period of one year from the first of
January, 1924. The resolution reads as follows:
Resolved: That the Honorable Jose Alejandrino, Senator for the
Twelfth District, be, as he is hereby declared guilty of disorderly
conduct and flagrant violation of the privileges of the Senate for
having treacherously assaulted the Honorable Vicente de Vera,
Senator for the Sixth District on the occasion of the debate regarding
the credentials of said Mr.Alejandrino;
Resolved, further: That the Honorable Jose Alejandrino be, as he is
hereby, deprived of all of his prerogatives, privileges and
emoluments as such Senator during one year from the first of
January, nineteen hundred and twenty-four;
And, resolved, lastly: That the said Honorable Jose Alejandrino,
being a Senator appointed by the Governor-General of these Islands,
a copy of this resolution be furnished said Governor-General for his
information.
The burden of petitioner's complaint is that the resolution above
quoted is unconstitutional and entirely of no effect, for five reasons.
He prays the court: (1) To issue a preliminary injunction against the
respondents enjoining them from executing the resolution; (2) to
declare the aforesaid resolution of the Senate null and void; and (3)
as a consequence of the foregoing, to issue a final writ of mandamus
and injunction against the respondents ordering them to recognize
the rights of the petitioner to exercise his office as Senator and that
he enjoy all of his prerogatives, privileges, and emoluments, and
prohibiting them from preventing the petitioner from exercising the
rights of his office, and from carrying the order of suspension, into
effect. By special appearance, the Attorney-General, in
representation of the respondents, has objected to the jurisdiction
of the court, and later, by demurrer, has pressed the same point.
In order that an obvious angle to the case may not subsequently
embarrass us, we desire first of all to say that looking through the
form of the action to the substance, this is, in effect, a suit instituted
by one member of the Philippine Senate against the Philippine
Senate and certain of its official employees. May the Supreme Court
of the Philippines Islands by mandamus and injunction annul the
suspension of Senator Alejandrino and compel the Philippine Senate
to reinstate him in his official position? Without, therefore, at this
time discussing any of the other interesting questions which have
been raised and argued, we proceed at once to resolve the issue
here suggested.
There are certain basic principles which lie at the foundation of the
Government of the Philippine Islands, which are familiar to students
of public law. It is here only necessary to recall that under our
system of government, each of the three departments is distinct and
not directly subject to the control of another department. The
power to control is the power to abrogate and the power to
abrogate is the power to usurp. Each department may, nevertheless,
indirectly restrain the others.
It is peculiarly the duty of the judiciary to say what the law is, to
enforce the Constitution, and to decide whether the proper
constitutional sphere of a department has been transcended. The
courts must determine the validity of legislative enactments as well
as the legality of all private and official acts. To this extent, do the
courts restrain the other departments.
With these sound premises in mind, we are not at all surprised to
find the general rule of mandamus to be, that the writ will not lie
from one branch of the government to a coordinate branch, for the
very obvious reason that neither is inferior to the other. Mandamus
will not lie against the legislative body, its members, or its officers,
to compel the performance of duties purely legislative in their
character which therefore pertain to their legislative, functions and
over which they have exclusive control. The courts cannot dictate
action in this respect without a gross usurpation of power. So it has
been held that there where a member has been expelled by the
legislative body, the courts have no power, irrespective of whether
the expulsion was right or wrong, to issue a mandate to compel his
reinstatement. (Code of Civil Procedure, secs. 222, 515; 18 R. C. L.,
186, 187; Cooley, Constitutional Limitations, 190; French vs. Senate
[1905], 146 Cal., 604; Hiss vs. Bartlett [1855], 69 Mass., 468; Ex parte
Echols [1886], 39 Ala., 698; State vs. Bolte [1889], 151 Mo., 362; De
Diego vs. House of Delegates [1904], 5 Porto Rico, 235; Greenwood
Cemetery Land Co. vs. Routt [1892], 17 Colo., 156; State ex rel.
Cranmer vs. Thorson [1896], 33 L. R. A., 582; People ex rel. Billings
vs. Bissell [1857], 19 Ill., 229; People ex rel. Bruce vs. Dunne [1913],
258 Ill., 441; People ex rel. La Chicote vs. Best [1907], 187 N. Y., 1;
Abueva vs. Wood [1924], 45 Phil., 612.)
The authorities which support the doctrines above announced are
numerous and instructive. They are found among the decisions of
our own court, of the United States Supreme Court, and of other
jurisdictions. If some of these cases relate to the chief executive
rather than to the legislature, it is only necessary to explain that the
same rules which govern the relations of the court to the chief
executive likewise govern the relations of the courts to the
legislature.
The controlling case in this jurisdiction on the subject is Severino vs.
Governor-General and Provincial Board of Occidental Negros
([1910], 16 Phil., 366). This was an original application made in this
court praying for a writ of mandamus to the Governor-General to
compel him to call a special election as provided by law. The
Attorney-General demurred to the petition on the ground of lack of
jurisdiction, and the court, after an elaborate discussion, reached
the conclusion that "we have no jurisdiction to interfere with the
Governor-General of these Islands, as the head of the executive
department, in the performance of any of his official acts." The
demurrer was accordingly sustained and the complaint dismissed. It
is noted that in this decision reliance was placed on the cases of
Mississippi vs. Johnson and Ord ([1867], 4 Wall., 475, and Sutherland
vs. Governor ([1874], 29 Mich., 320), which we will now proceed to
notice.
State of Mississippi vs. Andrew Johnson, President of the United
States, supra, concerned a bill praying the United States, Supreme
Court to enjoin and restrain Andrew Johnson, President of the
United States, and E. O. C. Ord, General Commanding in the District
of Mississippi and Arkansas from executing certain Acts of Congress.
Mr. Chief Justice Chase delivering the opinion of the court said the
single point which required consideration was this: Can the
President be restrained by injunction from carrying into effect an Act
of Congress alleged to be unconstitutional? He continued:
The Congress is the Legislative Department of the Government; the
President is the Executive Department. Neither can be restrained in
its action by the Judicial Department; though the acts of both, when
performed, are, in proper cases, subject to its cognizance.
The impropriety of such interference will be clearly seen upon
consideration of its possible consequences.
Suppose the bill filed and the injunction prayed for allowed. If the
President refuse obedience, it is needless to observe that the court
is without power to enforce its process. If, on the other hand, the
President complies with the order of the court and refuses to
execute the Acts of Congress, is it not clear that a collision may occur
between the Executive and Legislative Departments of the
Government? May not the House of Representatives impeach the
President for such refusal? And in that case could this court interfere
in behalf of the President, thus endangered by compliance with its
mandate, and restrain by injunction the Senate of the United States
from sitting as a court of impeachment? Would the strange
spectacle be offered to the public wonder of an attempt by this
court to arrest proceedings in that court?
These questions answer themselves.
xxxxxxxxx
We are fully satisfied that this court has no jurisdiction of a bill to
enjoin the President in the performance of his official duties; and
that no such bill ought to be received by us.
It has been suggested that the bill contains a prayer that, if the relief
sought cannot be had against Andrew Johnson, as President, it may
be granted against Andrew Johnson, as a citizen of Tennessee. But it
is plain that relief as against the execution of an Act of Congress by
Andrew Johnson, is relief against its execution by the President. . . .
Sutherland vs. Governor of Michigan, supra, well known to the legal
fraternity on account of being written by Judge Cooley, related to an
application for mandamus to the Governor to compel him to
perform a duty imposed upon him by statute. Judge Cooley, in part,
said:
. . . Our government is on whose powers have been carefully
apportioned between three distinct departments, which emanate
alike from the people, have their powers alike limited and defined
by the constitution, are of equal dignity, and within their respective
spheres of action equally independent.
xxxxxxxxx
It is true that neither of the departments can operate in all respects
independently of the others, and that what are called the checks
and balances of government constitute each a restraint upon the
rest. . . . But in each of these cases the action of the department
which controls, modifies, or in any manner influences that of
another, is had strictly within its own sphere, and for that reason
gives no occasion for conflict, controversy or jealousy. The
Legislature in prescribing rules for the courts, is acting within its
proper province in making laws, while the courts, in declining to
enforce an unconstitutional law, are in like manner acting within
their proper province, because they are only applying that which is
law to the controversies in which they are called upon to give
judgment. It is mainly by means of these checks and balances that
the officers of the several departments are kept within their
jurisdiction, and if they are disregarded in any case, and power is
usurped or abused, the remedy is by impeachment, and not by
another department of the government attempting to correct the
wrong by asserting a superior authority over that which by the
constitution is its equal.
It has long been a maxim in this country that the Legislature cannot
dictate to the courts what their judgments shall be, or set aside or
alter such judgments after they have been rendered. If it could,
constitutional liberty would cease to exist; and if the Legislature
could in like manner override executive action also, the government
would become only a despotism under popular forms. On the other
hand it would be readily cancelled that no court can compel the
Legislature to make or to refrain from making laws, or to meet or
adjourn at its command, or to take any action whatsoever, though
the duty to take it be made ever so clear by the constitution or the
laws. In these cases the exemption of the one department from the
control of the other is not only implied in the framework of
government, but is indispensably necessary if any useful
apportionment of power is to exist.
xxxxxxxxx
It is not attempted to be disguised on the part of the relators that
any other course than that which leaves the head of the executive
department to act independently in the discharge of his duties might
possibly lead to unseemly conflicts, if not to something worse,
should the courts undertake to enforce their mandates and the
executive refuse to obey. . . . And while we should concede, if
jurisdiction was plainly vested in us, the inability to enforce our
judgment would be no sufficient reason for failing to pronounce it,
especially against an officer who would be presumed ready and
anxious in all cases to render obedience to the law, yet in a case
where jurisdiction is involved in doubt it is not consistent with the
dignity of the court to pronounce judgments which may be
disregarded with impunity, nor with that of the executive to place
him in position where, in a matter within his own province, he must
act contrary to his judgment, or strand convicted of a disregard of
the laws.
We only take space to notice on more case, which concerns
specifically the right of the judiciary to control by mandamus the
action of the legislature. French vs. Senate of the State of California,
supra, was an original proceeding in mandamus brought by the
petitioners who were duly elected senators of the state to compel
the Senate of California to admit them as members thereof. It was
alleged that the petitioners had been expelled without hearing or
opportunity for defense. The writ was denied, Mr. Justice Shaw
delivering the opinion of the court, saying:
Even if we should give these allegations their fullest force in favor of
the pleader, they do not make a case justifying the interposition of
this court. Under our form of government the judicial department
has no power to revise even the most arbitrary and unfair action of
the legislative department, or of their house thereof, taken in
pursuance of the power committed exclusively to that department
by the constitution. . . .
There can be noted as specific corroborative authority, State vs.
Bolte, supra, Abueva vs. Wood, supra, and Commonwealth of
Massachusetts vs. Mellon, Secretary of the Treasury ([1923], 262 U.
S., 447), the latest expression of opinion by the United States
Supreme Court. The record discloses that it was the firm opinion of
the late Chief Justice that the court should not assume jurisdiction of
the proceedings.
So as to be perfectly fair to the petitioner, it is but proper to state
that the principles laid down in some of the preceding authorities
have been the subject of adverse criticism. It is said that the fallacy
of the argument lies in the statement that the three departments of
the government are independent of each other. "They are
independent in so far as they proceed within their legitimate
province and perform the duties that the law requires; yet it has
never been held that the executive was the sole judge of what
duties the law imposes upon him, or the manner in which duties
shall be exercised. The final arbiter in cases of dispute is the
judiciary, and to this extent at least the executive department may
be said to be dependent upon and subordinate to the judiciary. . . . It
is not the office of the person to whom the writ of mandamus is
directed, but the nature of the thing to be done, by which the
propriety of issuing a mandamus is to be determined." (2 Bailey on
Mandamus, pp. 926-927.) But these were arguments which should
have been presented years ago in this court, and which when
recently presented by counsel in his argument for the petitioner in
the case of Perfecto vs. Wood, R. G. No. 20867, 1 met with no
favorable response from the court. It is now too late to go back and
revise previous decisions and overturn them; in fact this would be
not only impracticable but impossible since at least two decision of
the United States Supreme Court seem to us to be controlling.
ON MANDAMUS
No court has ever held and we apprehend no court will ever hold
that it possesses the power to direct the Chief Executive or the
Legislature or a branch thereof to take any particular action. If a
court should ever be so rash as to thus trench on the domain of
either of the other departments, it will be the end of popular
government as we know it in democracies.
It is intimated rather faintly that, conceding all that is said with
reference to the right of the Supreme Court to issue mandamus
directed to the Philippine Senate, yet we would be justified in having
our mandate run not against the Philippine Senate or against the
President of the Philippine Senate and his fellow Senators but
against the secretary, the sergeant-at-arms, and the disbursing
officer of the Senate. But this begs the question. If we have no
authority to control the Philippine Senate, we have no authority to
control the actions of subordinate employees acting under the
direction of the Senate. The secretary, sergeant-at-arms, and
disbursing officer of the Senate are mere agents of the Senate who
cannot act independently of the will of that body. Should the Court
do as requested, we might have the spectable presented of the
court ordering the secretary, the sergeant-at-arms, and the
disbursing officer of the Philippine Senate to do one thing, and the
Philippine Senate ordering them to do another thing. The writ of
mandamus should not be granted unless it clearly appears that the
person to whom it is directed has the absolute power to execute
it.(Turnbull vs. Giddings [1893], 95 Mich., 314; Abueva vs. Wood,
supra.)
The question of jurisdiction is invariably one of perplexing difficulty.
On the one hand, no consideration of policy or convenience should
induce this court to exercise a power that does not belong to it. On
the other hand, no consideration of policy or convenience should
induce this court to surrender a power which it is its duty to
exercise. But certainly mandamus should never issue from this
court where it will not prove to be effectual and beneficial. It
should not be awarded where it will create discord and confusion. It
should not be awarded where mischievous consequences are likely
to follow. Judgment should not be pronounced which might possibly
lead to unseemly conflicts or which might be disregarded with
impunity. This court should offer no means by a decision for any
possible collision between it as the highest court in the Philippines
and the Philippine Senate as a branch of a coordinate department,
or between the Court and the Chief Executive or the Chief Executive
and the Legislature.
ON THE MERITS OF THE CASE
On the merits of the controversy, we will only say this: The Organic
Act authorizes the Governor-General of the Philippine Islands to
appoint two senators and nine representatives to represent the non-
Christian regions in the Philippine Legislature. These senators and
representatives "hold office until removed by the Governor-
General." (Organic Act, secs. 16, 17.)They may not be removed by
the Philippine Legislature. However, to the Senate and the House
of Representatives, respectively, is granted the power to "punish
its members for disorderly behavior, and, with the concurrence of
two-thirds, expel an elective member."(Organic Act, sec. 18.)Either
House may thus punish an appointive member for disorderly
behavior. Neither House may expel an appointive member for any
reason. As to whether the power to "suspend" is then included in
the power to "punish," a power granted to the two Houses of the
Legislature by the Constitution, or in the power to "remove," a
power granted to the Governor-General by the Constitution, it
would appear that neither is the correct hypothesis. The
Constitution has purposely withheld from the two Houses of the
Legislature and the Governor-General alike the power to suspend
an appointive member of the Legislature.
It is noteworthy that the Congress of the United States has not in all
its long history suspended a member. And the reason is obvious.
Punishment by way of reprimand or fine vindicates the outraged
dignity of the House without depriving the constituency of
representation;expulsion, when permissible, likewise vindicates the
honor of the legislative body while giving to the constituency an
opportunity to elect anew; but suspension deprives the
electoral district of representation without that district
being afforded any means by which to fill the vacancy. By
suspension, the seat remains filed but the occupant is silenced.
Suspension for one year is equivalent to qualified expulsion or
removal.
It is beyond the power of any branch of the Government of
the Philippine Islands to exercise its functions in any other
way than that prescribed by the Organic Law or by local
laws which conform to the Organic Law. This was, in effect, our
holding in the comparatively recent case of Concepcion vs. Paredes
([1921], 42 Phil., 599), when we had under particular consideration a
legislative attempt to deprive the Chief Executive of his
constitutional power of appointment. What was there announced is
equally applicable to the instant proceedings.
While what has just been said may be unnecessary for a correct
decision, it is inserted so that the vital question argued with so much
ability may not pass entirely unnoticed, and so that there may be at
least an indication of the attitude of the court as a restraining force,
with respect to the checks and balances of government. The
Supreme Court, out of respect for the Upper House of a coordinate
branch of the government, takes no affirmative action. But the
perfection of the entire system suggests the thought that no action
should be taken elsewhere which would constitute, or even seem to
constitute, disregard for the Constitution.
Conceding therefore that the power of the Senate to punish its
members for disorderly behavior does not authorize it to suspend
on appointive member from the exercise of his office for one year,
conceding what has been so well stated by the learned counsel for
the petitioner, conceding all this and more, yet the writ prayed for
cannot issue,for the all-conclusive reason that the Supreme Court
does not possess the power of coercion to make the Philippine
Senate take any particular action. If it be said that this conclusion
leaves the petitioner without a remedy, the answer is that the
judiciary is not the repository of all wisdom and all power. It would
hardly be becoming for the judiciary to assume the role of either a
credulous inquisitor, a querulous censor, or a jaunty knight, who
passes down the halls of legislation and of administration giving
heed to those who have grievances against the Legislature and the
Chief Executive.
We rule that neither the Philippine Legislature nor a branch thereof
can be directly controlled in the exercise of their legislative powers
by any judicial process. The court accordingly lacks jurisdiction to
consider the petition and the demurrer must be sustained. As it is
unlikely that the petition could be amended to state a cause of
action, it must be dismissed without costs. Such is the judgment of
the court. So ordered.
Street, Villamor and Romualdez, JJ., concur.
AVELINO V. CUENCO
G.R. No. L-2821 March 4, 1949
JOSE AVELINO, petitioner,
vs.
MARIANO J. CUENCO, respondent.
Vicente J. Francisco for petitioner.
Office of the Solicitor General Felix Angelo Bautista, Ramon Diokno
and Lorenzo M. Tañada for respondent.
Teehankee, Fernando, Sunico& Rodrigo; Vera, Montesines&
Navarro; Felixberto M. Serrano and Vicente del Rosario as amici
curiae.
RESOLUTION
In G.R. No. L-2821, Avelino vs. Cuenco, the Court by a vote of six
justices against four resolved to deny the petition.
Without prejudice to the promulgation of a more extended opinion,
this is now written briefly to explain the principal grounds for the
denial.
The Court believes the following essential facts have been
established:
In the session of the Senate of February 18, 1949, Senator Lorenzo
M. Tañadare quested that his right to speak on the next session day,
February 21, 1949, to formulate charges against the then Senate
President Jose Avelino be reserved. His request was approved.
On February 21, 1949, hours before the opening of the session
Senator Tañada and Senator Tañada and Senator Prospero Sanidad
filed with the Secretary of the Senate a resolution enumerating
charges against the then Senate President and ordering the
investigation thereof.
Although a sufficient number of senators to constitute a quorum
were at the Senate session hall at the appointed time (10:00 A.M.),
and the petitioner was already in his office, said petitioner delayed
his appearance at the session hall until about 11:35 A.M. When he
finally ascended the rostrum, he did not immediately open the
session, but instead requested from the Secretary a copy of the
resolution submitted by Senators Tañada and Sanidad and in the
presence of the public he read slowly and carefully said resolution,
after which he called and conferred with his colleagues Senator
Francisco and Tirona.
Shortly before 12:00 noon, due to the session be opened, the
petitioner finally called the meeting to order. Except Senator Sotto
who was confined in a hospital and Senator Confesor who is in the
United States, all the Senator were present.
Senator Sanidad, following a long established practice, moved that
the roll call be dispensed with, but Senator Tirona opposed said
motion, obviously in pursuance of a premeditated plan of petitioner
and his partisans to make use of dilatory tactics to prevent Senator
Tañada from delivering his privilege speech. The roll was called.
Senator Sanidad next moved, as is the usual practice, to dispense
with the reading of the minutes, but this motion was likewise
opposed by Senator Tirona and David, evidently, again, in pursuance
of the above-mentioned conspiracy.
Before and after the roll call and before and after the reading of the
minutes, Senator Tañada repeatedly stood up to claim his right to
deliver his one-hour privilege speech but the petitioner, then
presiding, continuosly ignored him; and when after the reading of
the minutes, Senator Tañada instead on being recognized by the
Chair, the petitioner announced that he would order the arrest of
any senator who would speak without being previously recognized
by him, but all the while, tolerating the actions of his follower,
Senator Tirona, who was continuously shouting at Senator Sanidad
"Out of order!" everytime the latter would ask for recognition of
Senator Tañada.
At this juncture, some disorderly conduct broke out in the Senate
gallery, as if by pre-arrangement. At about this same time Senator
Pablo Angeles David, one of the petitioner's followers, was
recognized by petitioner, and he moved for adjournment of session,
evidently, again, in pursuance of the above-mentioned conspiracy to
muzzle Senator Tañada.
Senator Sanidad registered his opposition to the adjournment of the
session and this opposition was seconded by herein respondent who
moved that the motion of adjournment be submitted to a vote.
Another commotion ensued.
Senator David reiterated his motion for adjournment and herein
respondent also reiterated his opposition to the adjournment and
again moved that the motion of Senator David be submitted to a
vote.
Suddenly, the petitioner banged the gavel and abandoning the Chair
hurriedly walked out of the session hall followed by Senator David,
Tirona, Francisco, Torres, Magalona and Clarin, while the rest of the
senators remained. Whereupon Senator MelencioArranz, Senate
President Pro-tempore, urged by those senators present took the
Chair and proceeded with the session.
Senator Cabili stood up, and asked that it be made of record — it
was so made — that the deliberate abandonment of the Chair by
the petitioner, made it incumbent upon Senate President Pro-
tempore Arranz and the remaining members of the Senate to
continue the session in order not to paralyze the functions of the
Senate.
Senate President Pro-tempore Arranz then suggested that
respondent be designated to preside over the session which
suggestion was carried unanimously. the respondent thereupon
took the Chair.
Upon motion of Senator Arranz, which was approved Gregorio Abad
was appointedActing Secretary, because the Assistance Secretary,
who was then acting as Secretary, had followed the petitioner when
the latter abandoned the session.
Senator Tañada, after being recognized by the Chair, was then
finally able to deliver his privilege speech. Thereafter Senator
Sanidad read aloud the complete text of said Resolution (No. 68),
and submitted his motion for approval thereof and the same was
unanimously approved.
With Senate President Pro-tempore Arranz again occupying the
Chair, after the respondent had yielded it to him, Senator Sanidad
introduced Resolution No. 67, entitled "Resolution declaring vacant
the position of the President of the Senate and designated the
Honorable Mariano Jesus Cuenco Acting President of the Senate."
Put to a vote, the said resolution was unanimously approved.
Senator Cuenco took the oath.
The next day the President of the Philippines recognized the
respondent as acting president of the Philippines Senate.
By his petition in this quo warranto proceeding petitioners asked the
Court to declare him the rightful President of the Philippines senate
and oust respondent.
The Court has examined all principal angles of the controversy and
believes that these are the crucial points:
a. Does the Court have jurisdiction over the subject-matter?
NO, SEPARATION OF POWERS
b. If it is has, were resolution Nos. 68 and 67 validly
approved?
c. Should the petition be granted?
DISCUSSIONS
ISSUE 1:
To the first question, the answer is in the negative, in view of the
separation of powers, the political nature of the controversy
(Alejandrino vs. Quezon, 46 Phil., 83; Vera vs. Avelino, 77 Phil., 192;
Mabanag vs. Lopez Vito, 78 Phil., 1) and the constitutional grant to
the Senate of the power to elect its own president, which
power should not be interfered with, nor taken over, by the
judiciary. We refused to take cognizance of the Vera case even if
the rights of the electors of the suspended senators were alleged
affected without any immediate remedy. A fortiori we should
abstain in this case because the selection of the presiding officer
affect only the Senators themselves who are at liberty at any time
to choose their officers, change or reinstate them. Anyway, if, as
the petition must imply to be acceptable, the majority of the
Senators want petitioner to preside, his remedy lies in the Senate
Session Hall — not in the Supreme Court.
The Court will not sally into the legitimate domain of the Senate on
the plea that our refusal to intercede might lead into a crisis, even a
resolution. No state of things has been proved that might change
the temper of the Filipino people as a peaceful and law-abiding
citizens. And we should not allow ourselves to be stampeded into a
rash action inconsistent with the calm that should characterized
judicial deliberations.
The precedent of Werts vs. Roger does not apply, because among
other reasons, the situation is not where two sets of senators have
constituted themselves into two senates actually functioning as
such, (as in said Werts case), there being no question that there is
presently one Philippines Senate only. To their credit be it recorded
that petitioner and his partisans have not erected themselves into
another Senate. The petitioner's claim is merely that respondent has
not been duly elected in his place in the same one Philippines
Senate.
It is furthermore believed that the recognition accorded by
the Chief Executive to the respondent makes it advisable,
more than ever, to adopt the hands-off policy wisely
enunciated by this Court in matters of similar nature.
ISSUE 2:
The second question depends upon these sub-questions.
(1) Was the session of the so-called rump Senate a continuation of
the session validly assembled with twenty two Senators in the
morning of February 21, 1949?;
(2) Was there a quorum in that session?
Mr. Justice Montemayor and Mr. Justice Reyes deem it useless, for
the present to pass on these questions once it is held, as they do,
that the Court has no jurisdiction over the case.
What follows is the opinion of the other four on those four on those
sub-questions.
Supposing that the Court has jurisdiction, there is unanimity in the
view that the session under Senator Arranz was a continuation of
the morning session and that a minority of ten senators may not,
by leaving the Hall, prevent the other twelve senators from passing
a resolution that met with their unanimous endorsement. The
answer might be different had the resolution been approved only
by ten or less.
If the rump session was not a continuation of the morning session,
was it validly constituted? In other words, was there the majority
required by the Constitution for the transaction of the business of
the Senate? Justice Paras, Feria, Pablo and Bengzon say there was,
firstly because the minute say so, secondly, because at the beginning
of such session there were at least fourteen senators including
Senators Pendatun and Lopez, and thirdly because in view of the
absence from the country of Senator Tomas Confesor twelve
senators constitute a majority of the Senate of twelve three
senators. When the Constitution declares that a majority of "each
House" shall constitute a quorum, "the House: does not mean "all"
the members. Even a majority of all the members constitute "the
House". (Missouri Pac. vs. Kansas, 63 Law ed. [U. S.], p. 239). There is
a difference between a majority of "the House", the latter requiring
less number than the first. Therefore an absolute majority (12) of
all the members of the Senate less one (23), constitutes
constitutional majority of the Senate for the purpose of a quorum.
Mr. Justice Pablo believes furthermore than even if the twelve did
not constitute a quorum, they could have ordered the arrest of one,
at least, of the absent members; if one had been so arrested, there
would be no doubt Quorum then, and Senator Cuenco would have
been elected just the same inasmuch as there would be eleven for
Cuenco, one against and one abstained.
In fine, all the four justice agree that the Court being confronted
with the practical situation that of the twenty three senators who
may participate in the Senate deliberations in the days immediately
after this decision, twelve senators will support Senator Cuenco and,
at most, eleven will side with Senator Avelino, it would be most
injudicious to declare the latter as the rightful President of the
Senate, that office being essentially one that depends exclusively
upon the will of the majority of the senators, the rule of the Senate
about tenure of the President of that body being amenable at any
time by that majority. And at any session hereafter held with
thirteen or more senators, in order to avoid all controversy arising
from the divergence of opinion here about quorum and for the
benefit of all concerned,the said twelve senators who approved the
resolutions herein involved could ratify all their acts and thereby
place them beyond the shadow of a doubt.
As already stated, the six justices hereinabove mentioned voted to
dismiss the petition. Without costs.
Separate Opinions
."
ABAS V. COMELEC
G.R. No. 89651 November 10, 1989
DATU FIRDAUSI I.Y. ABBAS, DATUBLOUMPARADIONG,
DATUMACALIMPOWACDELANGALEN, CELSO PALMA, ALI MONTANA
BABAO, JULMUNIRJANNARAL, RASHID SABER, and DATU JAMAL
ASHLEY ABBAS, representing the other taxpayers of Mindanao,
petitioners,
vs.
COMMISSION ON ELECTIONS, and HONORABLE GUILLERMO C.
CARAGUE, DEPARTMENT SECRETARY OF BUDGET AND
MANAGEMENT, respondents.
G.R. No. 89965 November 10, 1989
ATTY. ABDULLAH D. MAMA-O, petitioner,
vs.
HON. GUILLERMO CARAGUE, in his capacity as the Secretary of the
Budget, and the COMMISSION ON ELECTIONS, respondents.
Abbas, Abbas, Amora, Alejandro-Abbas & Associates for petitioners
in G.R. Nos. 89651 and 89965.
Abdullah D. Mama-o for and in his own behalf in 89965.
CORTES, J.:
The present controversy relates to the plebiscite in thirteen (13)
provinces and nine (9) cities in Mindanao and Palawan, 1 scheduled
for November 19, 1989, in implementation of Republic Act No. 6734,
entitled "An Act Providing for an Organic Act for the Autonomous
Region in Muslim Mindanao."
These consolidated petitions pray that the Court: (1) enjoin the
Commission on Elections (COMELEC) from conducting the plebiscite
and the Secretary of Budget and Management from releasing funds
to the COMELEC for that purpose; and (2) declare R.A. No. 6734, or
parts thereof, unconstitutional .
After a consolidated comment was filed by Solicitor General for the
respondents, which the Court considered as the answer, the case
was deemed submitted for decision, the issues having been joined.
Subsequently, petitioner Mama-o filed a "Manifestation with
Motion for Leave to File Reply on Respondents' Comment and to
Open Oral Arguments," which the Court noted.
The arguments against R.A. 6734 raised by petitioners may generally
be categorized into either of the following:
(a) that R.A. 6734, or parts thereof, violates the Constitution,
and
(b) that certain provisions of R.A. No. 6734 conflict with the
Tripoli Agreement.
The Tripoli Agreement, more specifically, the Agreement Between
the government of the Republic of the Philippines of the Philippines
and Moro National Liberation Front with the Participation of the
Quadripartie Ministerial Commission Members of the Islamic
Conference and the Secretary General of the Organization of Islamic
Conference" took effect on December 23, 1976. It provided for
"[t]he establishment of Autonomy in the southern Philippines within
the realm of the sovereignty and territorial integrity of the Republic
of the Philippines" and enumerated the thirteen (13) provinces
comprising the "areas of autonomy." 2
In 1987, a new Constitution was ratified, which the for the first time
provided for regional autonomy, Article X, section 15 of the charter
provides that "[t]here shall be created autonomous regions in
Muslim Mindanao and in the Cordilleras consisting of provinces,
cities, municipalities, and geographical areas sharing common and
distinctive historical and cultural heritage, economic and social
structures, and other relevant characteristics within the framework
of this Constitution and the national sovereignty as well as territorial
integrity of the Republic of the Philippines."
To effectuate this mandate, the Constitution further provides:
Sec. 16. The President shall exercise general supervision over
autonomous regions to ensure that the laws are faithfully executed.
Sec. 17. All powers, functions, and responsibilities not granted by
this Constitution or by law to the autonomous regions shall be
vested in the National Government.
Sec. 18. The Congress shall enact an organic act for each
autonomous region with the assistance and participation of the
regional consultative commission composed of representatives
appointed by the President from a list of nominees from
multisectoral bodies. The organic act shall define the basic structure
of government for the region consisting of the executive and
representative of the constituent political units. The organic acts
shall likewise provide for special courts with personal, family, and
property law jurisdiction consistent with the provisions of this
Constitution and national laws.
The creation of the autonomous region shall be effective when
approved by majority of the votes cast by the constituent units in a
plebiscite called for the purpose, provided that only the provinces,
cities, and geographic areas voting favorably in such plebiscite shall
be included in the autonomous region.
Sec. 19 The first Congress elected under this Constitution shall,
within eighteen months from the time of organization of both
Houses, pass the organic acts for the autonomous regions in Muslim
Mindanao and the Cordilleras.
Sec. 20. Within its territorial jurisdiction and subject to the
provisions of this Constitution and national laws, the organic act of
autonomous regions shall provide for legislative powers over:
(1) Administrative organization;
(2) Creation of sources of revenues;
(3) Ancestral domain and natural resources;
(4) Personal, family, and property relations;
(5) Regional urban and rural planning development;
(6) Economic, social and tourism development;
(7) Educational policies;
(8) Preservation and development of the cultural heritage;
and
(9) Such other matters as may be authorized by law for the
promotion of the general welfare of the people of the region.
Sec. 21. The preservation of peace and order within the regions
shall be the responsibility of the local police agencies which shall be
organized, maintained, supervised, and utilized in accordance with
applicable laws. The defense and security of the region shall be the
responsibility of the National Government.
Pursuant to the constitutional mandate, R.A. No. 6734 was enacted
and signed into law on August 1, 1989.
1. The Court shall dispose first of the second category of
arguments raised by petitioners, i.e. that certain provisions of R.A.
No. 6734 conflict with the provisions of the Tripoli Agreement.
Petitioners premise their arguments on the assumption that the
Tripoli Agreement is part of the law of the land, being a binding
international agreement . The Solicitor General asserts that the
Tripoli Agreement is neither a binding treaty, not having been
entered into by the Republic of the Philippines with a sovereign
state and ratified according to the provisions of the 1973 or 1987
Constitutions, nor a binding international agreement.
We find it neither necessary nor determinative of the case to rule on
the nature of the Tripoli Agreement and its binding effect on the
Philippine Government whether under public international or
internal Philippine law. In the first place, it is now the Constitution
itself that provides for the creation of an autonomous region in
Muslim Mindanao. The standard for any inquiry into the validity of
R.A. No. 6734 would therefore be what is so provided in the
Constitution. Thus, any conflict between the provisions of R.A. No.
6734 and the provisions of the Tripoli Agreement will not have the
effect of enjoining the implementation of the Organic Act. Assuming
for the sake of argument that the Tripoli Agreement is a binding
treaty or international agreement, it would then constitute part of
the law of the land. But as internal law it would not be superior to
R.A. No. 6734, an enactment of the Congress of the Philippines,
rather it would be in the same class as the latter [SALONGA, PUBLIC
INTERNATIONAL LAW 320 (4th ed., 1974), citing Head Money Cases,
112 U.S. 580 (1884) and Foster v. Nelson, 2 Pet. 253 (1829)]. Thus, if
at all, R.A. No. 6734 would be amendatory of the Tripoli Agreement,
being a subsequent law. Only a determination by this Court that R.A.
No. 6734 contravened the Constitution would result in the granting
of the reliefs sought. 3
2. The Court shall therefore only pass upon the constitutional
questions which have been raised by petitioners.
Petitioner Abbas argues that R.A. No. 6734 unconditionally creates
an autonomous region in Mindanao, contrary to the aforequoted
provisions of the Constitution on the autonomous region which
make the creation of such region dependent upon the outcome of
the plebiscite.
In support of his argument, petitioner cites Article II, section 1(1) of
R.A. No. 6734 which declares that "[t]here is hereby created the
Autonomous Region in Muslim Mindanao, to be composed of
provinces and cities voting favorably in the plebiscite called for the
purpose, in accordance with Section 18, Article X of the
Constitution." Petitioner contends that the tenor of the above
provision makes the creation of an autonomous region absolute,
such that even if only two provinces vote in favor of autonomy, an
autonomous region would still be created composed of the two
provinces where the favorable votes were obtained.
The matter of the creation of the autonomous region and its
composition needs to be clarified.
Firs, the questioned provision itself in R.A. No. 6734 refers to Section
18, Article X of the Constitution which sets forth the conditions
necessary for the creation of the autonomous region. The reference
to the constitutional provision cannot be glossed over for it clearly
indicates that the creation of the autonomous region shall take
place only in accord with the constitutional requirements. Second,
there is a specific provision in the Transitory Provisions (Article XIX)
of the Organic Act, which incorporates substantially the same
requirements embodied in the Constitution and fills in the details,
thus:
SEC. 13. The creation of the Autonomous Region in Muslim
Mindanao shall take effect when approved by a majority of the
votes cast by the constituent units provided in paragraph (2) of Sec.
1 of Article II of this Act in a plebiscite which shall be held not earlier
than ninety (90) days or later than one hundred twenty (120) days
after the approval of this Act: Provided, That only the provinces and
cities voting favorably in such plebiscite shall be included in the
Autonomous Region in Muslim Mindanao. The provinces and cities
which in the plebiscite do not vote for inclusion in the Autonomous
Region shall remain the existing administrative determination,
merge the existing regions.
Thus, under the Constitution and R.A. No 6734, the creation of the
autonomous region shall take effect only when approved by a
majority of the votes cast by the constituent units in a plebiscite,
and only those provinces and cities where a majority vote in favor of
the Organic Act shall be included in the autonomous region. The
provinces and cities wherein such a majority is not attained shall not
be included in the autonomous region. It may be that even if an
autonomous region is created, not all of the thirteen (13) provinces
and nine (9) cities mentioned in Article II, section 1 (2) of R.A. No.
6734 shall be included therein. The single plebiscite contemplated
by the Constitution and R.A. No. 6734 will therefore be
determinative of (1) whether there shall be an autonomous region
in Muslim Mindanao and (2) which provinces and cities, among
those enumerated in R.A. No. 6734, shall compromise it. [See III
RECORD OF THE CONSTITUTIONAL COMMISSION 482-492 (1986)].
As provided in the Constitution, the creation of the Autonomous
region in Muslim Mindanao is made effective upon the approval "by
majority of the votes cast by the constituent units in a plebiscite
called for the purpose" [Art. X, sec. 18]. The question has been
raised as to what this majority means. Does it refer to a majority of
the total votes cast in the plebiscite in all the constituent units, or a
majority in each of the constituent units, or both?
We need not go beyond the Constitution to resolve this question.
If the framers of the Constitution intended to require approval by a
majority of all the votes cast in the plebiscite they would have so
indicated. Thus, in Article XVIII, section 27, it is provided that "[t]his
Constitution shall take effect immediately upon its ratification by a
majority of the votes cast in a plebiscite held for the purpose ...
Comparing this with the provision on the creation of the
autonomous region, which reads:
The creation of the autonomous region shall be effective when
approved by majority of the votes cast by the constituent units in a
plebiscite called for the purpose, provided that only provinces, cities
and geographic areas voting favorably in such plebiscite shall be
included in the autonomous region. [Art. X, sec, 18, para, 2].
it will readily be seen that the creation of the autonomous region is
made to depend, not on the total majority vote in the plebiscite, but
on the will of the majority in each of the constituent units and the
proviso underscores this. for if the intention of the framers of the
Constitution was to get the majority of the totality of the votes cast,
they could have simply adopted the same phraseology as that used
for the ratification of the Constitution, i.e. "the creation of the
autonomous region shall be effective when approved by a majority
of the votes cast in a plebiscite called for the purpose."
It is thus clear that what is required by the Constitution is a simple
majority of votes approving the organic Act in individual constituent
units and not a double majority of the votes in all constituent units
put together, as well as in the individual constituent units.
More importantly, because of its categorical language, this is also
the sense in which the vote requirement in the plebiscite provided
under Article X, section 18 must have been understood by the
people when they ratified the Constitution.
Invoking the earlier cited constitutional provisions, petitioner Mama-
o, on the other hand, maintains that only those areas which, to his
view, share common and distinctive historical and cultural heritage,
economic and social structures, and other relevant characteristics
should be properly included within the coverage of the autonomous
region. He insists that R.A. No. 6734 is unconstitutional because only
the provinces of Basilan, Sulu, Tawi-Tawi, Lanaodel Sur, Lanao del
Norte and Maguindanao and the cities of Marawi and Cotabato, and
not all of the thirteen (13) provinces and nine (9) cities included in
the Organic Act, possess such concurrence in historical and cultural
heritage and other relevant characteristics. By including areas which
do not strictly share the same characteristics. By including areas
which do not strictly share the same characteristic as the others,
petitioner claims that Congress has expanded the scope of the
autonomous region which the constitution itself has prescribed to
be limited.
Petitioner's argument is not tenable. The Constitution lays down the
standards by which Congress shall determine which areas should
constitute the autonomous region. Guided by these constitutional
criteria, the ascertainment by Congress of the areas that share
common attributes is within the exclusive realm of the legislature's
discretion. Any review of this ascertainment would have to go into
the wisdom of the law. This the Court cannot do without doing
violence to the separation of governmental powers. [Angara v.
Electoral Commission, 63 Phil 139 (1936); Morfe v. Mutuc, G.R. No.L-
20387, January 31, 1968, 22 SCRA 424].
After assailing the inclusion of non-Muslim areas in the Organic Act
for lack of basis, petitioner Mama-o would then adopt the extreme
view that other non-Muslim areas in Mindanao should likewise be
covered. He argues that since the Organic Act covers several non-
Muslim areas, its scope should be further broadened to include the
rest of the non-Muslim areas in Mindanao in order for the other
non-Muslim areas denies said areas equal protection of the law, and
therefore is violative of the Constitution.
Petitioner's contention runs counter to the very same constitutional
provision he had earlier invoked. Any determination by Congress of
what areas in Mindanao should compromise the autonomous
region, taking into account shared historical and cultural heritage,
economic and social structures, and other relevant characteristics,
would necessarily carry with it the exclusion of other areas. As
earlier stated, such determination by Congress of which areas
should be covered by the organic act for the autonomous region
constitutes a recognized legislative prerogative, whose wisdom may
not be inquired into by this Court.
Moreover, equal protection permits of reasonable classification
[People v. Vera, 65 Phil. 56 (1963); Laurel v. Misa, 76 Phil. 372
(1946); J.M. Tuason and Co. v. Land tenure Administration, G.R. No.
L-21064, February 18, 1970, 31 SCRA 413]. In Dumlao v. Commission
on Elections G.R. No. 52245, January 22, 1980, 95 SCRA 392], the
Court ruled that once class may be treated differently from another
where the groupings are based on reasonable and real distinctions.
The guarantee of equal protection is thus not infringed in this case,
the classification having been made by Congress on the basis of
substantial distinctions as set forth by the Constitution itself.
Both petitions also question the validity of R.A. No. 6734 on the
ground that it violates the constitutional guarantee on free exercise
of religion [Art. III, sec. 5]. The objection centers on a provision in
the Organic Act which mandates that should there be any conflict
between the Muslim Code [P.D. No. 1083] and the Tribal Code (still
be enacted) on the one had, and the national law on the other hand,
the Shari'ah courts created under the same Act should apply
national law. Petitioners maintain that the islamic law (Shari'ah) is
derived from the Koran, which makes it part of divine law. Thus it
may not be subjected to any "man-made" national law. Petitioner
Abbas supports this objection by enumerating possible instances of
conflict between provisions of the Muslim Code and national law,
wherein an application of national law might be offensive to a
Muslim's religious convictions.
As enshrined in the Constitution, judicial power includes the duty to
settle actual controversies involving rights which are legally
demandable and enforceable. [Art. VIII, Sec. 11. As a condition
precedent for the power to be exercised, an actual controversy
between litigants must first exist [Angara v. Electoral Commission,
supra; Tan v. Macapagal, G.R. No. L-34161, February 29, 1972, 43
SCRA 677]. In the present case, no actual controversy between real
litigants exists. There are no conflicting claims involving the
application of national law resulting in an alleged violation of
religious freedom. This being so, the Court in this case may not be
called upon to resolve what is merely a perceived potential conflict
between the provisions the Muslim Code and national law.
Petitioners also impugn the constitutionality of Article XIX, section
13 of R.A. No. 6734 which, among others, states:
. . . Provided, That only the provinces and cities voting favorably in
such plebiscite shall be included in the Autonomous Region in
Muslim Mindanao. The provinces and cities which in the plebiscite
do not vote for inclusion in the Autonomous Region shall remain in
the existing administrative regions: Provided, however, that the
President may, by administrative determination, merge the existing
regions.
According to petitioners, said provision grants the President the
power to merge regions, a power which is not conferred by the
Constitution upon the President. That the President may choose to
merge existing regions pursuant to the Organic Act is challenged as
being in conflict with Article X, Section 10 of the Constitution which
provides:
No province, city, municipality, or barangay may be created, divided,
merged, abolished, or its boundary substantially altered, except in
accordance with the criteria established in the local government
code and subject to approval by a majority of the votes cast in a
plebiscite in the political units directly affected.
It must be pointed out that what is referred to in R.A. No. 6734 is the
merger of administrative regions, i.e. Regions I to XII and the
National Capital Region, which are mere groupings of contiguous
provinces for administrative purposes [Integrated Reorganization
Plan (1972), which was made as part of the law of the land by Pres.
dec. No. 1, Pres. Dec. No. 742]. Administrative regions are not
territorial and political subdivisions like provinces, cities,
municipalities and barangays [see Art. X, sec. 1 of the Constitution].
While the power to merge administrative regions is not expressly
provided for in the Constitution, it is a power which has traditionally
been lodged with the President to facilitate the exercise of the
power of general supervision over local governments [see Art. X,
sec. 4 of the Constitution]. There is no conflict between the power of
the President to merge administrative regions with the
constitutional provision requiring a plebiscite in the merger of local
government units because the requirement of a plebiscite in a
merger expressly applies only to provinces, cities, municipalities or
barangays, not to administrative regions.
Petitioners likewise question the validity of provisions in the Organic
Act which create an Oversight Committee to supervise the transfer
to the autonomous region of the powers, appropriations, and
properties vested upon the regional government by the organic Act
[Art. XIX, Secs. 3 and 4]. Said provisions mandate that the transfer of
certain national government offices and their properties to the
regional government shall be made pursuant to a schedule
prescribed by the Oversight Committee, and that such transfer
should be accomplished within six (6) years from the organization of
the regional government.
It is asserted by petitioners that such provisions are unconstitutional
because while the Constitution states that the creation of the
autonomous region shall take effect upon approval in a plebiscite,
the requirement of organizing an Oversight committee tasked with
supervising the transfer of powers and properties to the regional
government would in effect delay the creation of the autonomous
region.
Under the Constitution, the creation of the autonomous region
hinges only on the result of the plebiscite. if the Organic Act is
approved by majority of the votes cast by constituent units in the
scheduled plebiscite, the creation of the autonomous region
immediately takes effect delay the creation of the autonomous
region.
Under the constitution, the creation of the autonomous region
hinges only on the result of the plebiscite. if the Organic Act is
approved by majority of the votes cast by constituent units in the
scheduled plebiscite, the creation of the autonomous region
immediately takes effect. The questioned provisions in R.A. No. 6734
requiring an oversight Committee to supervise the transfer do not
provide for a different date of effectivity. Much less would the
organization of the Oversight Committee cause an impediment to
the operation of the Organic Act, for such is evidently aimed at
effecting a smooth transition period for the regional government.
The constitutional objection on this point thus cannot be sustained
as there is no bases therefor.
Every law has in its favor the presumption of constitutionality [Yu
Cong Eng v. Trinidad, 47 Phil. 387 (1925); Salas v. Jarencio, G.R. No.
L-29788, August 30, 1979, 46 SCRA 734; Morfe v. Mutuc, supra;
Peralta v. COMELEC, G.R. No.L-47771, March 11, 1978, 82 SCRA 30].
Those who petition this Court to declare a law, or parts thereof,
unconstitutional must clearly establish the basis for such a
declaration. otherwise, their petition must fail. Based on the
grounds raised by petitioners to challenge the constitutionality of
R.A. No. 6734, the Court finds that petitioners have failed to
overcome the presumption. The dismissal of these two petitions is,
therefore, inevitable.

WHEREFORE, the petitions are DISMISSED for lack of merit.

SO ORDERED.

Fernan, C.J., Narvasa, Gutierrez, Jr., Cruz, Paras, Feliciano, Gancayco,

Padilla, Bidin, Sarmiento, Griño-Aquino, Medialdea and Regalado, JJ.,
concur.

Melencio-Herrera, J., is on leave.

Footnotes

1 Art. II, Sec 1(2) of R.A. No. 6734 provides that "[t]he
plebiscite shall be conducted in the provinces of Basilan, Cotabato,
Davao del Sur, Lanao del Norte, Lanao del Sur, Maguindanao,
Palawan, South Cotabato, Sultan Kudarat, Sulu, Tawi-Tawi,
Zamboanga del Norte, and Zamboanga del Sur, and the cities of
Cotabato, Dapitan, Dipolog, General Santos, Iligan, Marawi,
Pagadian, Puerto Princesa, and Zamboanga."

2 The provinces enumerated in the Tripoli Agreement are

the same ones mentioned in R.A. No. 6734.

3 With regard to the controversy regarding the alleged

inconsistencies between R.A. No. 6734 and the Tripoli Agreement, it
may be enlightening to quote from the statement of Senator
Aquilino Pimentel, Jr., the principal sponsor of R.A. No. 6734:

xxx xxx xxx

The assertion that the organic Act is a "betrayal" of the Tripoli

Agreement is actually misplaced, to say the least. Misplaced because
it overlooks the fact that the Organic Act incorporates, at least, 99
percent of the provisions of the Tripoli Agreement. Misplaced, again,
because it gratuitously assumes that the Tripoli Agreement can bring
more benefits to the people of Mulim Mindanao than the Organic
Act.

The truth of the matter is that the Organic Act addresses the basis
demands of the Muslim, tribal and Christian populations of the
proposed area of autonomy in a far more reasonable, realistic and
immediate manner than the Tripoli Agreement ever sought to do.

The Organic Act is, therefore, a boon to, not a betrayal, of the
interest of the people of Muslim Mindanao.

xxx xxx xxx

[Consolidated Comment, p. 26].