Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 47065 June 26, 1940

PANGASINAN TRANSPORTATION CO., INC., petitioner,

vs.
THE PUBLIC SERVICE COMMISSION, respondent.

C. de G. Alvear for petitioner.

Evaristo R. Sandoval for respondent.

LAUREL, J.:

The petitioner has been engaged for the past twenty years in the business of transporting
passengers in the Province of Pangasinan and Tarlac and, to a certain extent, in the Province of
Nueva Ecija and Zambales, by means of motor vehicles commonly known as TPU buses, in
accordance with the terms and conditions of the certificates of public convenience issued in its favor
by the former Public Utility Commission in cases Nos. 24948, 30973, 36830, 32014 and 53090. On
August 26, 1939, the petitioner filed with the Public Service Commission an application for
authorization to operate ten additional new Brockway trucks (case No. 56641), on the ground that
they were needed to comply with the terms and conditions of its existing certificates and as a result
of the application of the Eight Hour Labor Law. In the decision of September 26, 1939, granting the
petitioner's application for increase of equipment, the Public Service Commission ordered:

Y de acuerdo con que se provee por el articulo 15 de la ley No. 146 del Commonwealth, tal
como ha sido enmendada por el articulo 1 de la Ley No. 454, por la presente se enmienda
las condiciones de los certificados de convenciencia publica expedidos en los expedientes
Nos. 24948, 30973, 36831, 32014 y la authorizacion el el expediente No. 53090, asi que se
consideran incorporadas en los mismos las dos siguientes condiciones:

Que los certificados de conveniencia publica y authorizacion arriba mencionados seran

validos y subsistentes solamente durante de veinticinco (25) anos, contados desde la fecha
de la promulgacion de esta decision.

Que la empresa de la solicitante porda ser adquirida por el Commonwealth de Filipinas o por
alguna dependencia del mismo en cualquier tiempo que lo deseare previo pago del precio d
costo de su equipo util, menos una depreciacion razonable que se ha fijar por la Comision al
tiempo de su adquisicion.

Not being agreeable to the two new conditions thus incorporated in its existing certificates, the
petitioner filed on October 9, 1939 a motion for reconsideration which was denied by the Public
Service Commission on November 14, 1939. Whereupon, on November 20, 1939, the present
petition for a writ of certiorari was instituted in this court praying that an order be issued directing the
secretary of the Public Service Commission to certify forthwith to this court the records of all
proceedings in case No. 56641; that this court, after hearing, render a decision declaring section 1 of
Commonwealth Act No. 454 unconstitutional and void; that, if this court should be of the opinion that
section 1 of Commonwealth Act No. 454 is constitutional, a decision be rendered declaring that the
provisions thereof are not applicable to valid and subsisting certificates issued prior to June 8, 1939.
Stated in the language of the petitioner, it is contended:

1. That the legislative powers granted to the Public Service Commission by section 1 of
Commonwealth Act No. 454, without limitation, guide or rule except the unfettered discretion
and judgment of the Commission, constitute a complete and total abdication by the
Legislature of its functions in the premises, and for that reason, the Act, in so far as those
powers are concerned, is unconstitutional and void.

2. That even if it be assumed that section 1 of Commonwealth Act No. 454, is valid
delegation of legislative powers, the Public Service Commission has exceeded its authority
because: (a) The Act applies only to future certificates and not to valid and subsisting
certificates issued prior to June 8, 1939, when said Act took effect, and (b) the Act, as
applied by the Commission, violates constitutional guarantees.

Section 15 of Commonwealth Act No. 146, as amended by section 1 of Commonwealth Act No. 454,
invoked by the respondent Public Service Commission in the decision complained of in the present
proceedings, reads as follows:

With the exception to those enumerated in the preceding section, no public service shall
operate in the Philippines without possessing a valid and subsisting certificate from the
Public Service Commission, known as "certificate of public convenience," or "certificate of
convenience and public necessity," as the case may be, to the effect that the operation of
said service and the authorization to do business will promote the public interests in a proper
and suitable manner.

The Commission may prescribed as a condition for the issuance of the certificate provided in
the preceding paragraph that the service can be acquired by the Commonwealth of the
Philippines or by any instrumentality thereof upon payment of the cost price of its useful
equipment, less reasonable depreciation; and likewise, that the certificate shall valid only for
a definite period of time; and that the violation of any of these conditions shall produce the
immediate cancellation of the certificate without the necessity of any express action on the
part of the Commission.

In estimating the depreciation, the effect of the use of the equipment, its actual condition, the
age of the model, or other circumstances affecting its value in the market shall be taken into
consideration.

The foregoing is likewise applicable to any extension or amendment of certificates actually

force and to those which may hereafter be issued, to permits to modify itineraries and time
schedules of public services and to authorization to renew and increase equipment and
properties.

Under the first paragraph of the aforequoted section 15 of Act No. 146, as amended, no public
service can operate without a certificate of public convenience or certificate of convenience and
public necessity to the effect that the operation of said service and the authorization to do business
will "public interests in a proper and suitable manner." Under the second paragraph, one of the
conditions which the Public Service Commission may prescribed the issuance of the certificate
provided for in the first paragraph is that "the service can be acquired by the Commonwealth of the
Philippines or by any instrumental thereof upon payment of the cost price of its useful equipment,
less reasonable depreciation," a condition which is virtually a restatement of the principle already
embodied in the Constitution, section 6 of Article XII, which provides that "the State may, in the
interest of national welfare and defense, establish and operate industries and means of
transportation and communication, and, upon payment of just compensation, transfer to public
ownership utilities and other private enterprises to be operated by the Government. "Another
condition which the Commission may prescribed, and which is assailed by the petitioner, is that the
certificate "shall be valid only for a definite period of time." As there is a relation between the first and
second paragraphs of said section 15, the two provisions must be read and interpreted together.
That is to say, in issuing a certificate, the Commission must necessarily be satisfied that the
operation of the service under said certificate during a definite period fixed therein "will promote the
public interests in a proper and suitable manner." Under section 16 (a) of Commonwealth Act. No.
146 which is a complement of section 15, the Commission is empowered to issue certificates of
public convenience whenever it "finds that the operation of the public service proposed and the
authorization to do business will promote the public interests in a proper and suitable manner."
Inasmuch as the period to be fixed by the Commission under section 15 is inseparable from the
certificate itself, said period cannot be disregarded by the Commission in determining the question
whether the issuance of the certificate will promote the public interests in a proper and suitable
manner. Conversely, in determining "a definite period of time," the Commission will be guided by
"public interests," the only limitation to its power being that said period shall not exceed fifty years
(sec. 16 (a), Commonwealth Act No. 146; Constitution, Art. XIII, sec. 8.) We have already ruled that
"public interest" furnishes a sufficient standard. (People vs. Fernandez and Trinidad, G. R. No.
45655, promulgated June 15, 1938; People vs. Rosenthal and Osmeña, G. R. Nos. 46076 and
46077, promulgated June 12, 1939, citing New York Central Securities Corporation vs. U.S.A., 287
U.S. 12, 24, 25, 77 Law. ed. 138, 145, 146; Schenchter Poultry Corporation vs. I.S., 295, 540, 79
Law. ed. 1570, 1585; Ferrazzini vs. Gsell, 34 Phil., 697, 711-712.)

Section 8 of Article XIII of the Constitution provides, among other things, that no franchise,
certificate, or any other form of authorization for the operation of a public utility shall be "for a longer
period than fifty years," and when it was ordained, in section 15 of Commonwealth Act No. 146, as
amended by Commonwealth Act No. 454, that the Public Service Commission may prescribed as a
condition for the issuance of a certificate that it "shall be valid only for a definite period of time" and,
in section 16 (a) that "no such certificates shall be issued for a period of more than fifty years," the
National Assembly meant to give effect to the aforesaid constitutional mandate. More than this, it
has thereby also declared its will that the period to be fixed by the Public Service Commission shall
not be longer than fifty years. All that has been delegated to the Commission, therefore, is the
administrative function, involving the use discretion, to carry out the will of the National Assembly
having in view, in addition, the promotion of "public interests in a proper and suitable manner." The
fact that the National Assembly may itself exercise the function and authority thus conferred upon
the Public Service Commission does not make the provision in question constitutionally
objectionable.

The theory of the separation of powers is designed by its originators to secure action and at the
same time to forestall overaction which necessarily results from undue concentration of powers, and
thereby obtain efficiency and prevent deposition. Thereby, the "rule of law" was established which
narrows the range of governmental action and makes it subject to control by certain devices. As a
corollary, we find the rule prohibiting delegation of legislative authority, and from the earliest time
American legal authorities have proceeded on the theory that legislative power must be exercised by
the legislature alone. It is frankness, however, to confess that as one delves into the mass of judicial
pronouncement, he finds a great deal of confusion. One thing, however, is apparent in the
development of the principle of separation of powers and that is that the maxim of delegatus non
potest delegari or delegata potestas non potest delegari, attributed to Bracton (De Legius et
Consuetedinious Angliae, edited by G. E. Woodbine, Yale University Press, 1922, vol. 2, p. 167) but
which is also recognized in principle in the Roman Law (D. 17.18.3), has been made to adapt itself
to the complexities of modern governments, giving rise to the adoption, within certain limits, of the
principle of "subordinate legislation," not only in the United States and England but in practically all
modern governments. (People vs. Rosenthal and Osmeña, G. R. Nos. 46076 and 46077,
promulgated June 12, 1939.) Accordingly, with the growing complexity of modern life, the
multiplication of the subjects of governmental regulation, and the increased difficulty of administering
the laws, there is a constantly growing tendency toward the delegation of greater powers by the
legislature, and toward the approval of the practice by the court. (Dillon Catfish Drainage Dist, v.
Bank of Dillon, 141 S. E. 274, 275, 143 S. Ct. 178; State vs. Knox County, 54 S. W. 2d. 973, 976,
165 Tenn. 319.) In harmony with such growing tendency, this Court, since the decision in the case
of Compañia General de Tabacos de Filipinas vs. Board of Public Utility Commissioner (34 Phil.,
136), relied upon by the petitioner, has, in instances, extended its seal of approval to the "delegation
of greater powers by the legislature." (Inchausti Steamship Co. vs. Public Utility Commissioner, 44
Phil., Autobus Co. vs. De Jesus, 56 Phil., 446; People vs. Fernandez & Trinidad, G. R. No. 45655,
promulgated June 15, 1938; People vs. Rosenthal & Osmeña, G. R. Nos. 46076, 46077,
promulgated June 12, 1939; and Robb and Hilscher vs. People, G. R. No. 45866, promulgated June
12, 1939.).

Under the fourth paragraph of section 15 of Commonwealth Act No. 146, as amended by
Commonwealth Act No. 454, the power of the Public Service Commission to prescribed the
conditions "that the service can be acquired by the Commonwealth of the Philippines or by any
instrumentality thereof upon payment of the cost price of its useful equipment, less reasonable," and
"that the certificate shall be valid only for a definite period of time" is expressly made applicable "to
any extension or amendment of certificates actually in force" and "to authorizations to renew and
increase equipment and properties." We have examined the legislative proceedings on the subject
and have found that these conditions were purposely made applicable to existing certificates of
public convenience. The history of Commonwealth Act No. 454 reveals that there was an attempt to
suppress, by way of amendment, the sentence "and likewise, that the certificate shall be valid only
for a definite period of time," but the attempt failed:

xxx xxx xxx

Sr. CUENCO. Señor Presidente, para otra enmienda. En la misma pagina, lineas 23 y 24,
pido que se supriman las palabras 'and likewise, that the certificate shall be valid only for a
definite period time.' Esta disposicion del proyecto autoriza a la Comision de Servicios
Publicos a fijar un plazo de vigencia certificado de conveniencia publica. Todo el mundo
sabe que bo se puede determinar cuando los intereses del servicio publico requiren la
explotacion de un servicio publico y ha de saber la Comision de Servisios, si en un tiempo
determinado, la explotacion de algunos buses en cierta ruta ya no tiene de ser, sobre todo,
si tiene en cuenta; que la explotacion de los servicios publicos depende de condiciones
flutuantes, asi como del volumen como trafico y de otras condiciones. Ademas, el servicio
publico se concede por la Comision de Servicios Publicos el interes publico asi lo exige. El
interes publico no tiene duracion fija, no es permanente; es un proceso mas o menos
indefinido en cuanto al tiempo. Se ha acordado eso en el caucus de anoche.

EL PRESIDENTE PRO TEMPORE. ¿Que dice el Comite?

Sr. ALANO. El Comite siente tener que rechazar esa enmienda, en vista de que esto
certificados de conveniencia publica es igual que la franquicia: sepuede extender. Si los
servicios presentados por la compañia durante el tiempo de su certificado lo require, puede
pedir la extension y se le extendera; pero no creo conveniente el que nosotros demos un
certificado de conveniencia publica de una manera que podria pasar de cincuenta anos,
porque seria anticonstitucional.

xxx xxx xxx

By a majority vote the proposed amendment was defeated. (Sesion de 17 de mayo de 1939,
Asamblea Nacional.)

The petitioner is mistaken in the suggestion that, simply because its existing certificates had been
granted before June 8, 1939, the date when Commonwealth Act No. 454, amendatory of section 15
of Commonwealth Act No. 146, was approved, it must be deemed to have the right of holding them
in perpetuity. Section 74 of the Philippine Bill provided that "no franchise, privilege, or concession
shall be granted to any corporation except under the conditions that it shall be subject to
amendment, alteration, or repeal by the Congress of the United States." The Jones Law,
incorporating a similar mandate, provided, in section 28, that "no franchise or right shall be granted
to any individual, firm, or corporation except under the conditions that it shall be subject to
amendment, alteration, or repeal by the Congress of the United States." Lastly, the Constitution of
the Philippines provided, in section 8 of Article XIII, that "no franchise or right shall be granted to any
individual, firm, or corporation, except under the condition that it shall be subject to amendment,
alteration, or repeal by the National Assembly when the public interest so requires." The National
Assembly, by virtue of the Constitution, logically succeeded to the Congress of the United States in
the power to amend, alter or repeal any franchise or right granted prior to or after the approval of the
Constitution; and when Commonwealth Acts Nos. 146 and 454 were enacted, the National
Assembly, to the extent therein provided, has declared its will and purpose to amend or alter existing
certificates of public convenience.

Upon the other hand, statutes enacted for the regulation of public utilities, being a proper exercise by
the state of its police power, are applicable not only to those public utilities coming into existence
after its passage, but likewise to those already established and in operation.

Nor is there any merit in petitioner's contention, that, because of the establishment of
petitioner's operations prior to May 1, 1917, they are not subject to the regulations of the
Commission. Statutes for the regulation of public utilities are a proper exercise by the state of
its police power. As soon as the power is exercised, all phases of operation of established
utilities, become at once subject to the police power thus called into operation. Procedures'
Transportation Co. v. Railroad Commission, 251 U. S. 228, 40 Sup. Ct. 131, 64 Law. ed.
239, Law v. Railroad Commission, 184 Cal. 737, 195 Pac. 423, 14 A. L. R. 249. The statute
is applicable not only to those public utilities coming into existence after its passage, but
likewise to those already established and in operation. The 'Auto Stage and Truck
Transportation Act' (Stats. 1917, c. 213) is a statute passed in pursuance of the police
power. The only distinction recognized in the statute between those established before and
those established after the passage of the act is in the method of the creation of their
operative rights. A certificate of public convenience and necessity it required for any new
operation, but no such certificate is required of any transportation company for the operation
which was actually carried on in good faith on May 1, 1917, This distinction in the creation of
their operative rights in no way affects the power of the Commission to supervise and
regulate them. Obviously the power of the Commission to hear and dispose of complaints is
as effective against companies securing their operative rights prior to May 1, 1917, as
against those subsequently securing such right under a certificate of public convenience and
necessity. (Motor Transit Co. et al. v. Railroad Commission of California et al., 209 Pac.
586.)

Moreover, Commonwealth Acts Nos. 146 and 454 are not only the organic acts of the Public Service
Commission but are "a part of the charter of every utility company operating or seeking to operate a
franchise" in the Philippines. (Streator Aqueduct Co. v. et al., 295 Fed. 385.) The business of a
common carrier holds such a peculiar relation to the public interest that there is superinduced upon it
the right of public regulation. When private property is "affected with a public interest it ceased to
be juris privati only." When, therefore, one devotes his property to a use in which the public has an
interest, he, in effect, grants to the public an interest in that use, and must submit to be controlled by
the public for the common good, to the extent of the interest he has thus created. He may withdraw
his grant by discounting the use, but so long as he maintains the use he must submit to control.
Indeed, this right of regulation is so far beyond question that it is well settled that the power of the
state to exercise legislative control over public utilities may be exercised through boards of
commissioners. (Fisher vs. Yangco Steamship Company, 31 Phil., 1, citing Munn vs. Illinois, 94 U.S.
113; Georgia R. & Bkg. Co. vs. Smith, 128 U.S. 174; Budd vs. New York, 143 U.S. 517; New York
etc. R. Co. vs. Bristol 151 U.S. 556, 571; Connecticut etc. R. Co. vs. Woodruff, 153 U.S. 689;
Louisville etc. Ry Co. vs. Kentucky, 161 U.S. 677, 695.) This right of the state to regulate public
utilities is founded upon the police power, and statutes for the control and regulation of utilities are a
legitimate exercise thereof, for the protection of the public as well as of the utilities themselves. Such
statutes are, therefore, not unconstitutional, either impairing the obligation of contracts, taking
property without due process, or denying the equal protection of the laws, especially inasmuch as
the question whether or not private property shall be devoted to a public and the consequent
burdens assumed is ordinarily for the owner to decide; and if he voluntarily places his property in
public service he cannot complain that it becomes subject to the regulatory powers of the state. (51
C. J., sec. 21, pp. 9-10.) in the light of authorities which hold that a certificate of public convenience
constitutes neither a franchise nor contract, confers no property right, and is mere license or
privilege. (Burgess vs. Mayor & Alderman of Brockton, 235 Mass. 95, 100, 126 N. E. 456;
Roberto vs. Commisioners of Department of Public Utilities, 262 Mass. 583, 160 N. E. 321;
Scheible vs. Hogan, 113 Ohio St. 83, 148 N. E. 581; Martz vs. Curtis [J. L.] Cartage Co. [1937], 132
Ohio St. 271, 7 N. E. [d] 220; Manila Yellow Taxicab Co. vs. Sabellano, 59 Phil., 773.)

Whilst the challenged provisions of Commonwealth Act No. 454 are valid and constitutional, we are,
however, of the opinion that the decision of the Public Service Commission should be reversed and
the case remanded thereto for further proceedings for the reason now to be stated. The Public
Service Commission has power, upon proper notice and hearing, "to amend, modify or revoke at any
time any certificate issued under the provisions of this Act, whenever the facts and circumstances on
the strength of which said certificate was issued have been misrepresented or materially changed."
(Section 16, par. [m], Commonwealth Act No. 146.) The petitioner's application here was for an
increase of its equipment to enable it to comply with the conditions of its certificates of public
convenience. On the matter of limitation to twenty five (25) years of the life of its certificates of public
convenience, there had been neither notice nor opportunity given the petitioner to be heard or
present evidence. The Commission appears to have taken advantage of the petitioner to augment
petitioner's equipment in imposing the limitation of twenty-five (25) years which might as well be
twenty or fifteen or any number of years. This is, to say the least, irregular and should not be
sanctioned. There are cardinal primary rights which must be respected even in proceedings of this
character. The first of these rights is the right to a hearing, which includes the right of the party
interested or affected to present his own case and submit evidence in support thereof. In the
language of Chief Justice Hughes, in Morgan v. U.S., (304 U.S. 1, 58 S. Ct. 773, 999, 82 Law. ed.
1129), "the liberty and property of the citizen shall be protected by the rudimentary requirements of
fair play." Not only must the party be given an opportunity to present his case and to adduce
evidence tending to establish the rights which he asserts but the tribunal must consider the evidence
presented. (Chief Justice Hughes in Morgan vs. U.S., 298 U.S. 468, 56 S. Ct. 906, 80 :Law. ed.
1288.) In the language of this Court in Edwards vs. McCoy (22 Phil., 598), "the right to adduce
evidence, without the corresponding duty on the part of the board to consider it, is vain. Such right is
conspicuously futile if the person or persons to whom the evidence is presented can thrust it aside
without or consideration." While the duty to deliberate does not impose the obligation to decide right,
it does imply a necessity which cannot be disregarded, namely, that of having something to support
its decision. A decision with absolutely nothing to support it is a nullity, at least when directly
attacked. (Edwards vs. McCoy, supra.) This principle emanates from the more fundamental principle
that the genius of constitutional government is contrary to the vesting of unlimited power anywhere.
Law is both a grant and a limitation upon power.
The decision appealed from is hereby reversed and the case remanded to the Public Service
Commission for further proceedings in accordance with law and this decision, without any
pronouncement regarding costs. So ordered.

Avanceña, C.J., Imperial, Diaz, Concepcion and Moran, JJ., concur.

 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 102781. April 22, 1993.

BONIFACIO SANZ MACEDA, Presiding Judge, Branch 12, Regional Trial Court, Antique, petitioner,
vs.
HON. OMBUDSMAN CONRADO M. VASQUEZ AND ATTY. NAPOLEON A. ABIERA, respondents.

Bonifacio Sanz Maceda for and in his own behalf.

Public Attorney's Office for private respondent.

SYLLABUS

1. REMEDIAL LAW; JURISDICTION; OFFICE OF THE OMBUDSMAN HAS JURISDICTION TO

INVESTIGATE OFFENSE COMMITTED BY JUDGE WHETHER OR NOT OFFENSE RELATES TO
OFFICIAL DUTIES; REASON. — Petitioner also contends that the Ombudsman has no jurisdiction
over said cases despite this Court's ruling in Orap vs. Sandiganbayan, since the offense charged
arose from the judge's performance of his official duties, which is under the control and supervision
of the Supreme Court . . . The Court disagrees with the first part of petitioner's basic argument.
There is nothing in the decision in Orap that would restrict it only to offenses committed by a judge
unrelated to his official duties. A judge who falsifies his certificate of service is administratively liable
to the Supreme Court for serious misconduct and inefficiency under Section 1, Rule 140 of the Rules
of Court, and criminally liable to the State under the Revised Penal Code for his felonious act.

2. ID.; ID.; ID.; JURISDICTION TO INVESTIGATE OFFENSE RELATED TO OFFICIAL DUTIES

SUBJECT TO PRIOR ADMINISTRATIVE ACTION TAKEN AGAINST JUDGE BY SUPREME
COURT; REASON. — However, We agree with petitioner that in the absence of any administrative
action taken against him by this Court with regard to his certificates of service, the investigation
being conducted by the Ombudsman encroaches into the Court's power of administrative
supervision over all courts and its personnel, in violation of the doctrine of separation of powers.

3. ID.; ID.; ID.; ID.; PROCEDURE TO BE OBSERVED BY OMBUDSMAN REGARDING

COMPLAINT AGAINST JUDGE OR OTHER COURT EMPLOYEE; PURPOSE. — Thus, the
Ombudsman should first refer the matter of petitioner's certificates of service to this Court for
determination of whether said certificates reflected the true status of his pending case load, as the
Court has the necessary records to make such a determination . . . In fine, where a criminal
complaint against a judge or other court employee arises from their administrative duties, the
Ombudsman must defer action on said complaint and refer the same to this Court for determination
whether said judge or court employee had acted within the scope of their administrative duties.

4. ID.; ID.; ID.; ID.; OMBUDSMAN CANNOT SUBPOENA SUPREME COURT AND ITS
PERSONNEL; REASON. — The Ombudsman cannot compel this Court, as one of the three
branches of government, to submit its records, or to allow its personnel to testify on this matter, as
suggested by public respondent Abiera in his affidavit-complaint. The rationale for the foregoing
pronouncement is evident in this case. Administratively, the question before Us is this: should a
judge, having been granted by this Court an extension of time to decide cases before him, report
these cases in his certificate of service? As this question had not yet been raised with, much less
resolved by, this Court, how could the Ombudsman resolve the present criminal complaint that
requires the resolution of said question?

DECISION

NOCON, J p:

The issue in this petition for certiorari with prayer for preliminary mandatory injunction and/or
restraining order is whether the Office of the Ombudsman could entertain a criminal complaint for the
alleged falsification of a judge's certification submitted to the Supreme Court, and assuming that it
can, whether a referral should be made first to the Supreme Court.

Petitioner Bonifacio Sanz Maceda, Presiding Judge of Branch 12 of the Regional Trial Court of
Antique, seeks the review of the following orders of the Office of the Ombudsman: (1) the Order
dated September 18, 1991 denying the ex-parte motion to refer to the Supreme Court filed by
petitioner; and (2) the Order dated November 22, 1951 denying petitioner's motion for
reconsideration and directing petitioner to file his counter-affidavit and other controverting evidences.

In his affidavit-complaint dated April 18, 1991 filed before the Office of the Ombudsman, respondent
Napoleon A. Abiera of the Public Attorney's Office alleged that petitioner had falsified his Certificate
of Service 1 dated February 6, 1989, by certifying "that all civil and criminal cases which have been
submitted for decision or determination for a period of 90 days have been determined and decided
on or before January 31, 1998," when in truth and in fact, petitioner knew that no decision had been
rendered in five (5) civil and ten (10) criminal cases that have been submitted for decision.
Respondent Abiera further alleged that petitioner similarly falsified his certificates of service for the
months of February, April, May, June, July and August, all in 1989; and the months beginning
January up to September 1990, or for a total of seventeen (17) months.

On the other hand, petitioner contends that he had been granted by this Court an extension of ninety
(90) days to decide the aforementioned cases.

Petitioner also contends that the Ombudsman has no jurisdiction over said case despite this Court's
ruling in Orap vs. Sandiganbayan, 2 since the offense charged arose from the judge's performance
of his official duties, which is under the control and supervision of the Supreme Court. Furthermore,
the investigation of the Ombudsman constitutes an encroachment into the Supreme Court's
constitutional duty of supervision over all inferior courts.

The Court disagrees with the first Part of petitioner's basic argument. There is nothing in the decision
in Orap that would restrict it only to offenses committed by a judge unrelated to his official duties. A
judge who falsifies his certificate of service is administratively liable to the Supreme Court for serious
misconduct and inefficiency under Section 1, Rule 140 of the Rules of Court, and criminally liable to
the State under the Revised Penal Code for his felonious act.

However, We agree with petitioner that in the absence of any administrative action taken against him
by this Court with regard to his certificates of service, the investigation being conducted by the
Ombudsman encroaches into the Court's power of administrative supervision over all courts and its
personnel, in violation of the doctrine of separation of powers.
Article VIII, section 6 of the 1987 Constitution exclusively vests in the Supreme Court administrative
supervision over all courts and court personnel, from the Presiding Justice of the Court of Appeals
down to the lowest municipal trial court clerk. By virtue of this power, it is only the Supreme Court
that can oversee the judges' and court personnel's compliance with all laws, and take the proper
administrative action against them if they commit any violation thereof. No other branch of
government may intrude into this power, without running afoul of the doctrine of separation of
powers.

The Ombudsman cannot justify its investigation of petitioner on the powers granted to it by the
Constitution, 3 for such a justification not only runs counter to the specific mandate of the
Constitution granting supervisory powers to the Supreme Court over all courts and their personnel,
but likewise undermines the independence of the judiciary.

Thus, the Ombudsman should first refer the matter of petitioner's certificates of service to this Court
for determination of whether said certificates reflected the true status of his pending case load, as
the Court has the necessary records to make such a determination. The Ombudsman cannot
compel this Court, as one of the three branches of government, to submit its records, or to allow its
personnel to testify on this matter, as suggested by public respondent Abiera in his affidavit-
complaint. 4

The rationale for the foregoing pronouncement is evident in this case. Administratively. the question
before Us is this: should a judge, having been granted by this Court an extension of time to decide
cases before him, report these cases in his certificate of service? As this question had not yet been
raised with, much less resolved by, this Court. how could the Ombudsman resolve the present
criminal complaint that requires the resolution of said question?

In fine, where a criminal complaint against a Judge or other court employee arises from their
administrative duties, the Ombudsman must defer action on said complaint and refer the same to
this Court for determination whether said Judge or court employee had acted within the scope of
their administrative duties.

WHEREFORE, the instant petition is hereby GRANTED. The Ombudsman is hereby directed to
dismiss the complaint filed by public respondent Atty. Napoleon A. Abiera and to refer the same to
this Court for appropriate action.

SO ORDERED.

Narvasa, C .J ., Cruz, Feliciano, Padilla, Bidin, Griño-Aquino, Regalado, Davide, Jr., Romero,
Bellosillo, Melo and Quiason, JJ ., concur.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 88211 October 27, 1989

FERDINAND E. MARCOS, IMELDA R. MARCOS, FERDINAND R. MARCOS. JR., IRENE M.

ARANETA, IMEE M. MANOTOC, TOMAS MANOTOC, GREGORIO ARANETA, PACIFICO E.
MARCOS, NICANOR YÑIGUEZ and PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA),
represented by its President, CONRADO F. ESTRELLA, petitioners,
vs.
HONORABLE RAUL MANGLAPUS, CATALINO MACARAIG, SEDFREY ORDOÑEZ, MIRIAM
DEFENSOR SANTIAGO, FIDEL RAMOS, RENATO DE VILLA, in their capacity as Secretary of
Foreign Affairs, Executive Secretary, Secretary of Justice, Immigration Commissioner,
Secretary of National Defense and Chief of Staff, respectively, respondents.

RESOLUTION

EN BANC:

In its decision dated September 15,1989, the Court, by a vote of eight (8) to seven (7), dismissed the
petition, after finding that the President did not act arbitrarily or with grave abuse of discretion in
determining that the return of former President Marcos and his family at the present time and under
present circumstances pose a threat to national interest and welfare and in prohibiting their return to
the Philippines. On September 28, 1989, former President Marcos died in Honolulu, Hawaii. In a
statement, President Aquino said:

In the interest of the safety of those who will take the death of Mr. Marcos in widely
and passionately conflicting ways, and for the tranquility of the state and order of
society, the remains of Ferdinand E. Marcos will not be allowed to be brought to our
country until such time as the government, be it under this administration or the
succeeding one, shall otherwise decide. [Motion for Reconsideration, p. 1; Rollo, p,
443.]

On October 2, 1989, a Motion for Reconsideration was filed by petitioners, raising the following
major arguments:

1. to bar former President Marcos and his family from returning to the Philippines is to deny them not
only the inherent right of citizens to return to their country of birth but also the protection of the
Constitution and all of the rights guaranteed to Filipinos under the Constitution;

2. the President has no power to bar a Filipino from his own country; if she has, she had exercised it
arbitrarily; and

3. there is no basis for barring the return of the family of former President Marcos. Thus, petitioners
prayed that the Court reconsider its decision, order respondents to issue the necessary travel
documents to enable Mrs. Imelda R. Marcos, Ferdinand R. Marcos, Jr., Irene M. Araneta, Imee M.
Manotoc, Tommy Manotoc and Gregorio Araneta to return to the Philippines, and enjoin
respondents from implementing President Aquino's decision to bar the return of the remains of Mr.
Marcos, and the other petitioners, to the Philippines.

Commenting on the motion for reconsideration, the Solicitor General argued that the motion for
reconsideration is moot and academic as to the deceased Mr. Marcos. Moreover, he asserts that
"the 'formal' rights being invoked by the Marcoses under the label 'right to return', including the label
'return of Marcos' remains, is in reality or substance a 'right' to destabilize the country, a 'right' to hide
the Marcoses' incessant shadowy orchestrated efforts at destabilization." [Comment, p. 29.] Thus, he
prays that the Motion for Reconsideration be denied for lack of merit.

We deny the motion for reconsideration.

1. It must be emphasized that as in all motions for reconsideration, the burden is upon the movants,
petitioner herein, to show that there are compelling reasons to reconsider the decision of the Court.

2. After a thorough consideration of the matters raised in the motion for reconsideration, the Court is
of the view that no compelling reasons have been established by petitioners to warrant a
reconsideration of the Court's decision.

The death of Mr. Marcos, although it may be viewed as a supervening event, has not changed the
factual scenario under which the Court's decision was rendered. The threats to the government, to
which the return of the Marcoses has been viewed to provide a catalytic effect, have not been shown
to have ceased. On the contrary, instead of erasing fears as to the destabilization that will be caused
by the return of the Marcoses, Mrs. Marcos reinforced the basis for the decision to bar their return
when she called President Aquino "illegal," claiming that it is Mr. Marcos, not Mrs. Aquino, who is the
"legal" President of the Philippines, and declared that the matter "should be brought to all the courts
of the world." [Comment, p. 1; Philippine Star, October 4, 1989.]

3. Contrary to petitioners' view, it cannot be denied that the President, upon whom executive power
is vested, has unstated residual powers which are implied from the grant of executive power and
which are necessary for her to comply with her duties under the Constitution. The powers of the
President are not limited to what are expressly enumerated in the article on the Executive
Department and in scattered provisions of the Constitution. This is so, notwithstanding the avowed
intent of the members of the Constitutional Commission of 1986 to limit the powers of the President
as a reaction to the abuses under the regime of Mr. Marcos, for the result was a limitation of specific
power of the President, particularly those relating to the commander-in-chief clause, but not a
diminution of the general grant of executive power.

That the President has powers other than those expressly stated in the Constitution is nothing new.
This is recognized under the U.S. Constitution from which we have patterned the distribution of
governmental powers among three (3) separate branches.

Article II, [section] 1, provides that "The Executive Power shall be vested in a
President of the United States of America." In Alexander Hamilton's widely accepted
view, this statement cannot be read as mere shorthand for the specific executive
authorizations that follow it in [sections] 2 and 3. Hamilton stressed the difference
between the sweeping language of article II, section 1, and the conditional language
of article I, [section] 1: "All legislative Powers herein granted shall be vested in a
Congress of the United States . . ." Hamilton submitted that "[t]he [article III
enumeration [in sections 2 and 31 ought therefore to be considered, as intended
merely to specify the principal articles implied in the definition of execution power;
 leaving the rest to flow from the general grant of that power, interpreted in confomity
with other parts of the Constitution...

In Myers v. United States, the Supreme Court — accepted Hamilton's proposition,

concluding that the federal executive, unlike the Congress, could exercise power
from sources not enumerated, so long as not forbidden by the constitutional text: the
executive power was given in general terms, strengthened by specific terms where
emphasis was regarded as appropriate, and was limited by direct expressions where
limitation was needed. . ." The language of Chief Justice Taft in Myers makes clear
that the constitutional concept of inherent power is not a synonym for power without
limit; rather, the concept suggests only that not all powers granted in the Constitution
are themselves exhausted by internal enumeration, so that, within a sphere properly
regarded as one of "executive' power, authority is implied unless there or elsewhere
expressly limited. [TRIBE, AMERICAN CONSTITUTIONAL LAW 158-159 (1978).]

And neither can we subscribe to the view that a recognition of the President's implied or residual
powers is tantamount to setting the stage for another dictatorship. Despite petitioners' strained
analogy, the residual powers of the President under the Constitution should not be confused with the
power of the President under the 1973 Constitution to legislate pursuant to Amendment No. 6 which
provides:

Whenever in the judgment of the President (Prime Minister), there exists a grave
emergency or a threat or imminence thereof, or whenever the interim Batasang
Pambansa or the regular National Assembly fails or is unable to act adequately on
any matter for any reason that in his judgment requires immediate action, he may, in
order to meet the exigency, issue the necessary decrees, orders, or letters of
instruction, which shall form part of the law of the land,

There is no similarity between the residual powers of the President under the 1987 Constitution and
the power of the President under the 1973 Constitution pursuant to Amendment No. 6. First of all,
Amendment No. 6 refers to an express grant of power. It is not implied. Then, Amendment No. 6
refers to a grant to the President of the specific power of legislation.

4. Among the duties of the President under the Constitution, in compliance with his (or her) oath of
office, is to protect and promote the interest and welfare of the people. Her decision to bar the return
of the Marcoses and subsequently, the remains of Mr. Marcos at the present time and under present
circumstances is in compliance with this bounden duty. In the absence of a clear showing that she
had acted with arbitrariness or with grave abuse of discretion in arriving at this decision, the Court
will not enjoin the implementation of this decision.

ACCORDINGLY, the Court resolved to DENY the Motion for Reconsideration for lack of merit."

Separate Opinions

CRUZ, J., dissenting:

Nothing important has happened to change my vote for granting the petition. The death of Marcos
has not plunged the nation into paroxysms of grief as the so-called "loyalists" had hoped. By and
large, it has been met with only passing interest if not outright indifference from the people. Clearly,
the discredited dictator is in death no El Cid. Marcos dead is only an unpleasant memory, not a bolt
of lightning to whip the blood.

This only shows that if he was at all a threat to the national security when he was already moribund
that feeble threat has died with him. As the government stresses, he has been reduced to a non-
person (which makes me wonder why it is still afraid of him). His cadaver is not even regarded as a
symbol of this or that or whatever except by his fanatical followers. It is only a dead body waiting to
be interred in this country.

This is a tempest in a teapot. We have more important things to do than debating over a corpse that
deserves no kinder fate than dissolution and oblivion. I say let it be brought home and buried deep
and let us be done with it forever.

PARAS, J., dissenting on the Motion for Reconsideration:

I find no reason to deviate from the dissenting opinion I have already expressed.

Firstly, the former President, although already dead, is still entitled to certain rights. It is not correct
to say that a dead man, since he is no longer a human being, has ceased to have rights. For
instance, our Revised Penal Code prohibits the commission of libel against a deceased individual.
And even if we were to assume the non- existence anymore of his human rights what about the
human rights of his widow and the other members of his family?

Secondly, up to now, the alleged threats to national security have remained unproved and
consequently, unpersuasive. Our Armed Forces can easily control any possible uprising or political
and military destabilization. In fact, the converse appears to be nearer the truth, that is, if we do not
allow the remains to come, more trouble may be expected.

Thirdly, reconciliation can proceed at a much faster pace if the petition for the return is granted. To
refuse the request can mean a hardening of resistance against the well-intentioned aim of the
administration. Upon the other hand, to grant the petition may well soften the hearts of the
oppositionists; paving the way for a united citizenry.

Finally, the entire world will surely applaud our government's act of mercy. As Shakespeare once
wrote "the quality of mercy is not strained." Surely, compassion is the better part of government.
Remove mercy, and you remove the best reason against civil strife, which if not abated can turn our
country into a mainstream of fiery dissent and in the end, as one great man has put it, the question
will no longer be what is right, but what is left.

PADILLA, J., dissenting:

The death of former President Ferdinand E. Marcos, which supervened after decision in this case
had been rendered, was pre-empted and foreseen in my original dissenting opinion. There I said that
the first cogent and decisive proposition in this case is that "Mr. Marcos is a Filipino and, as such,
entitled to return to, die and be buriedin this country." I have only to add a few statements to that
dissenting opinion.
Respondents have succeeded in denying Mr. Marcos the first two (2) rights, i.e. to return to and die
in this country, The remaining right of this Filipino that cries out for vindication at this late hour is the
right to be buried in this country. Will the respondents be allowed to complete the circle of denying
the constitutional and human right of Mr. Marcos to travel which, as stated in my dissenting opinion,
includes the right to return to, die and be buried in this country? The answer should be in the
negative if the Constitution is to still prevail; the answer should be in the negative if we are to avoid
the completely indefensible act of denying a Filipino the last right to blend his mortal remains with a
few square feet of earth in the treasured land of his birth.

Those who would deny this Filipino the only constitutional and human right that can be accorded him
now say that the constitutional and human right to be buried in this country would apply to any
Filipino, except Mr. Marcos, because he was a dictator and he plundered the country. This is the
most irrelevant argument that can be raised at this time. For, our democracy is built on the
fundamental assumption (so we believe) that the Constitution and all its guarantees apply
to all Filipinos, whether dictator or pauper, learned or ignorant, religious or agnostic as long as he is
a Filipino.

It is said that to accord this Filipino the right to be buried in this country would pose a serious threat
to national security and public safety. What threat? As pointed out in my dissenting opinion, the
second cogent and decisive proposition in this case is that respondents have not presented any
"hard evidence" (factual bases) or convincing proof of such threat. "All we have are general
conclusions of national security and public safety' in avoidance of a specific, demandable and
enforceable constitutional and basic human right to return." Recent events have, to my mind, served
to confirm the validity of such dissenting statement.

If a live Marcos returning to this country did not pose a serious threat to national security, the
situation cannot be any worse with a dead Marcos returning. For, a dead Marcos will return to be
buried into mother earth, where there are no protests, "demos", or even dissents, where the rule that
reigns, in the language of Mr. Justice Jackson in Barnette is the "unanimity of the graveyard."

It is said that, while a dead Marcos has been rendered impotent to threaten national security, his
supporters would pose that threat to national security. This argument is untenable as it is without
merit. As I see it, Marcos' supporters pose a greater threat to peace and order, with Marcos deprived
of his right to burial in this country. On the other hand, if the remains of Mr. Marcos are brought to
the country and allowed the burial to which he is constitutionally and humanly entitled, Marcos'
supporters would be deprived of an otherwise potent argument—so conducive to mass protests and
even violence—that their Idol has been cruelly denied the right to be buried in his homeland.

It is also said that Mr. Marcos, in cadaver form, has no constitutional or human rights, to speak of.
This contention entirely begs the issue. In the first place, one cannot overlook that the right of Mr.
Marcos, as a Filipino, to be buried in this country, is asserted not for the first time after his death. It
was vigorously asserted long before his death. But, more importantly, the right of every Filipino to be
buried in his country, is part of a continuing right that starts from birth and ends only on the day he is
finally laid to rest in his country.

This dissenting opinion does not pretend to deny the Philippine government the right to lay down
conditions for the burial of Mr. Marcos in this country, but I submit that these conditions must, as a
fundamental postulate, recognize the right of the man, as a Filipino, to be buried in this country
NOW.

The majority resolution, in effect, bans Mr. Marcos' burial in this country now. Without in any way
affecting my respect and regard for my brethren and sisters in the majority, I am deeply concerned
and greatly disturbed that, with their decision banning a dead Marcos from burial in this country, they
have passed an opportunity to defuse a constitutional crisis that, in my humble assessment,
threatens to ignite an already divided nation, Regrettably, they have ignored the constitutional
dimension of the problem rooted in the ageless and finest tradition of our people for respect and
deference to the dead. What predictably follows will be a continuing strife, among our people, of
unending hatred, recriminations and retaliations. God save this country!

My vote is for this Court to ORDER the respondents to allow the immediate return and burial in the
Republic of the Philippines of former President Ferdinand E. Marcos, subject to such conditions as
the Philippine government may impose in the interest of peace and order.

SARMIENTO, J., Dissenting:

The case has curious trappings of a deja vu, the shoe being on the other foot, yet, as I stated before,
I can not allow personal emotions to soften my "hardened impartiality" and deny, as a consequence,
the rights of the ex-President's bereaved to bury his remains in his homeland, and for them to return
from exile. As I had, then, voted to grant the petition, so do I vote to grant reconsideration.

I have gone to lengths to locate in the four comers of the Constitution, by direct grant or by
implication, the President's supposed "residual" power to forbid citizens from entering the
motherland reiterated in the resolution of the majority. I have found none. I am not agreed, that:

3. Contrary to petitioners view, it cannot be denied that the President, upon whom
executive power is vested, has unstated residual powers which are implied from the
grant of executive power and which are necessary for her to comply with her duties
under the Constitution. The powers of the President are not limited to what are
expressly enumerated in the article on the Executive Department and in scattered
provisions of the Constitution. This, notwithstanding the avowed intent of the
members of the Constitutional Commission of 1986 to limit the powers of the
President as a reaction to the abuses under the regime of Mr. Marcos, for the result
was a limitation of specific powers of the President, particularly those relating to the
commander-in-chief clause, but not a diminution of the general grant of executive
power.

It is a nice word game, but it is nothing else. For, if the Constitution has imposed limitations on
specific powers of the President, it has, a fortiori, prescribed a diminution of executive power. The
Charter says that the right may only be restricted by: (1) a court order; or (2) by fiat of law. Had the
fundamental law intended a presidential imprimatur, it would have said so. It would have also
completed the symmetry: judicial, congressional, and executive restraints on the right. No amount of
presumed residual executive power can amend the Charter.

It is well to note that the Bill of Rights stands primarily, a limitation not only against legislative
encroachments on individual liberties, but more so, against presidential intrusions. And especially
so, because the President is the caretaker of the military establishment that has, several times over,
been unkind to part of the population it has also sworn to protect.

That "[t]he threats to the government, to which the return of the Marcoses has been viewed to
provide a catalytic effect, have not been shown to have ceased" (Res., 3) is the realm of conjecture,
speculation, and imagination. The military has shown no hard evidence that "the return of the
Marcoses" would indeed interpose a threat to national security. And apparently, the majority itself is
not convinced ("has been viewed...").
That Mrs. Marcos has referred to President Corazon Aquino as an illegitimate President, does not,
so I submit, reinforce alleged fears of a massive destabilization awaiting the nation. The military has
said over and over that Marcos followers are not capable of successful destabilization effort. And
only this morning (October 27, 1989), media reported the assurances given to foreign investors by
no less than the President, of the political and economic stability of the nation, as well as the
Government's capability to quell forces that menace the gains of EDSA.

I have no eulogies to say on the passing of Mr. Marcos. My personal impressions, however, are
beside the point. I reiterate that the President has no power to deny requests of Marcos relatives to
bury Marcos in his homeland. As for the former, let them get their just deserts here too. And let the
matter rest.

Separate Opinions

CRUZ, J., dissenting:

Nothing important has happened to change my vote for granting the petition. The death of Marcos
has not plunged the nation into paroxysms of grief as the so-called "loyalists" had hoped. By and
large, it has been met with only passing interest if not outright indifference from the people. Clearly,
the discredited dictator is in death no El Cid. Marcos dead is only an unpleasant memory, not a bolt
of lightning to whip the blood.

This only shows that if he was at all a threat to the national security when he was already moribund
that feeble threat has died with him. As the government stresses, he has been reduced to a non-
person (which makes me wonder why it is still afraid of him). His cadaver is not even regarded as a
symbol of this or that or whatever except by his fanatical followers. It is only a dead body waiting to
be interred in this country.

This is a tempest in a teapot. We have more important things to do than debating over a corpse that
deserves no kinder fate than dissolution and oblivion. I say let it be brought home and buried deep
and let us be done with it forever.

PARAS, J., dissenting on the Motion for Reconsideration:

I find no reason to deviate from the dissenting opinion I have already expressed.

Firstly, the former President, although already dead, is still entitled to certain rights. It is not correct
to say that a dead man, since he is no longer a human being, has ceased to have rights. For
instance, our Revised Penal Code prohibits the commission of libel against a deceased individual.
And even if we were to assume the non- existence anymore of his human rights what about the
human rights of his widow and the other members of his family?

Secondly, up to now, the alleged threats to national security have remained unproved and
consequently, unpersuasive. Our Armed Forces can easily control any possible uprising or political
and military destabilization. In fact, the converse appears to be nearer the truth, that is, if we do not
allow the remains to come, more trouble may be expected.

Thirdly, reconciliation can proceed at a much faster pace if the petition for the return is granted. To
refuse the request can mean a hardening of resistance against the well-intentioned aim of the
administration. Upon the other hand, to grant the petition may well soften the hearts of the
oppositionists; paving the way for a united citizenry.
Finally, the entire world will surely applaud our government's act of mercy. As Shakespeare once
wrote "the quality of mercy is not strained." Surely, compassion is the better part of government.
Remove mercy, and you remove the best reason against civil strife, which if not abated can turn our
country into a mainstream of fiery dissent and in the end, as one great man has put it, the question
will no longer be what is right, but what is left.

PADILLA, J., dissenting:

The death of former President Ferdinand E. Marcos, which supervened after decision in this case
had been rendered, was pre-empted and foreseen in my original dissenting opinion. There I said that
the first cogent and decisive proposition in this case is that "Mr. Marcos is a Filipino and, as such,
entitled to return to, die and be buriedin this country." I have only to add a few statements to that
dissenting opinion.

Respondents have succeeded in denying Mr. Marcos the first two (2) rights, i.e. to return to and die
in this country, The remaining right of this Filipino that cries out for vindication at this late hour is the
right to be buried in this country. Will the respondents be allowed to complete the circle of denying
the constitutional and human right of Mr. Marcos to travel which, as stated in my dissenting opinion,
includes the right to return to, die and be buried in this country? The answer should be in the
negative if the Constitution is to still prevail; the answer should be in the negative if we are to avoid
the completely indefensible act of denying a Filipino the last right to blend his mortal remains with a
few square feet of earth in the treasured land of his birth.

Those who would deny this Filipino the only constitutional and human right that can be accorded him
now say that the constitutional and human right to be buried in this country would apply to any
Filipino, except Mr. Marcos, because he was a dictator and he plundered the country. This is the
most irrelevant argument that can be raised at this time. For, our democracy is built on the
fundamental assumption (so we believe) that the Constitution and all its guarantees apply
to all Filipinos, whether dictator or pauper, learned or ignorant, religious or agnostic as long as he is
a Filipino.

It is said that to accord this Filipino the right to be buried in this country would pose a serious threat
to national security and public safety. What threat? As pointed out in my dissenting opinion, the
second cogent and decisive proposition in this case is that respondents have not presented any
"hard evidence" (factual bases) or convincing proof of such threat. "All we have are general
conclusions of national security and public safety' in avoidance of a specific, demandable and
enforceable constitutional and basic human right to return." Recent events have, to my mind, served
to confirm the validity of such dissenting statement.

If a live Marcos returning to this country did not pose a serious threat to national security, the
situation cannot be any worse with a dead Marcos returning. For, a dead Marcos will return to be
buried into mother earth, where there are no protests, "demos", or even dissents, where the rule that
reigns, in the language of Mr. Justice Jackson in Barnette is the "unanimity of the graveyard."

It is said that, while a dead Marcos has been rendered impotent to threaten national security, his
supporters would pose that threat to national security. This argument is untenable as it is without
merit. As I see it, Marcos' supporters pose a greater threat to peace and order, with Marcos deprived
of his right to burial in this country. On the other hand, if the remains of Mr. Marcos are brought to
the country and allowed the burial to which he is constitutionally and humanly entitled, Marcos'
supporters would be deprived of an otherwise potent argument—so conducive to mass protests and
even violence—that their Idol has been cruelly denied the right to be buried in his homeland.
It is also said that Mr. Marcos, in cadaver form, has no constitutional or human rights, to speak of.
This contention entirely begs the issue. In the first place, one cannot overlook that the right of Mr.
Marcos, as a Filipino, to be buried in this country, is asserted not for the first time after his death. It
was vigorously asserted long before his death. But, more importantly, the right of every Filipino to be
buried in his country, is part of a continuing right that starts from birth and ends only on the day he is
finally laid to rest in his country.

This dissenting opinion does not pretend to deny the Philippine government the right to lay down
conditions for the burial of Mr. Marcos in this country, but I submit that these conditions must, as a
fundamental postulate, recognize the right of the man, as a Filipino, to be buried in this country
NOW.

The majority resolution, in effect, bans Mr. Marcos' burial in this country now. Without in any way
affecting my respect and regard for my brethren and sisters in the majority, I am deeply concerned
and greatly disturbed that, with their decision banning a dead Marcos from burial in this country, they
have passed an opportunity to defuse a constitutional crisis that, in my humble assessment,
threatens to ignite an already divided nation, Regrettably, they have ignored the constitutional
dimension of the problem rooted in the ageless and finest tradition of our people for respect and
deference to the dead. What predictably follows will be a continuing strife, among our people, of
unending hatred, recriminations and retaliations. God save this country!

My vote is for this Court to ORDER the respondents to allow the immediate return and burial in the
Republic of the Philippines of former President Ferdinand E. Marcos, subject to such conditions as
the Philippine government may impose in the interest of peace and order.

SARMIENTO, J., Dissenting:

The case has curious trappings of a deja vu, the shoe being on the other foot, yet, as I stated before,
I can not allow personal emotions to soften my "hardened impartiality" and deny, as a consequence,
the rights of the ex-President's bereaved to bury his remains in his homeland, and for them to return
from exile. As I had, then, voted to grant the petition, so do I vote to grant reconsideration.

I have gone to lengths to locate in the four comers of the Constitution, by direct grant or by
implication, the President's supposed "residual" power to forbid citizens from entering the
motherland reiterated in the resolution of the majority. I have found none. I am not agreed, that:

3. Contrary to petitioners view, it cannot be denied that the President, upon whom
executive power is vested, has unstated residual powers which are implied from the
grant of executive power and which are necessary for her to comply with her duties
under the Constitution. The powers of the President are not limited to what are
expressly enumerated in the article on the Executive Department and in scattered
provisions of the Constitution. This, notwithstanding the avowed intent of the
members of the Constitutional Commission of 1986 to limit the powers of the
President as a reaction to the abuses under the regime of Mr. Marcos, for the result
was a limitation of specific powers of the President, particularly those relating to the
commander-in-chief clause, but not a diminution of the general grant of executive
power.

It is a nice word game, but it is nothing else. For, if the Constitution has imposed limitations on
specific powers of the President, it has, a fortiori, prescribed a diminution of executive power. The
Charter says that the right may only be restricted by: (1) a court order; or (2) by fiat of law. Had the
fundamental law intended a presidential imprimatur, it would have said so. It would have also
completed the symmetry: judicial, congressional, and executive restraints on the right. No amount of
presumed residual executive power can amend the Charter.

It is well to note that the Bill of Rights stands primarily, a limitation not only against legislative
encroachments on individual liberties, but more so, against presidential intrusions. And especially
so, because the President is the caretaker of the military establishment that has, several times over,
been unkind to part of the population it has also sworn to protect.

That "[t]he threats to the government, to which the return of the Marcoses has been viewed to
provide a catalytic effect, have not been shown to have ceased" (Res., 3) is the realm of conjecture,
speculation, and imagination. The military has shown no hard evidence that "the return of the
Marcoses" would indeed interpose a threat to national security. And apparently, the majority itself is
not convinced ("has been viewed...").

That Mrs. Marcos has referred to President Corazon Aquino as an illegitimate President, does not,
so I submit, reinforce alleged fears of a massive destabilization awaiting the nation. The military has
said over and over that Marcos followers are not capable of successful destabilization effort. And
only this morning (October 27, 1989), media reported the assurances given to foreign investors by
no less than the President, of the political and economic stability of the nation, as well as the
Government's capability to quell forces that menace the gains of EDSA.

I have no eulogies to say on the passing of Mr. Marcos. My personal impressions, however, are
beside the point. I reiterate that the President has no power to deny requests of Marcos relatives to
bury Marcos in his homeland. As for the former, let them get their just deserts here too. And let the
matter rest.
 Republic of the Philippines
SUPREME COURT
Manila

FIRST DIVISION

G.R. No. L-38025 August 20, 1979

DANTE O. CASIBANG, petitioner,

vs.
HONORABLE NARCISO A. AQUINO, Judge of the Court of First Instance of Pangasinan,
Branch XIV, and REMEGIO P. YU, respondents.

Nicanor & Bautista and Agaton D. Yaranon for petitioner.

Bince, Sevilleja, Agsalud & Associates for respondents.

MAKASIAR, J.:

Respondent Remigio P. Yu was proclaimed on November 9, 1971 as the elected Mayor of Rosales,
Pangasinan in the 1971 local elections, by a plurality of 501 votes over his only rival, herein
petitioner, who seasonably filed on November 24, 1971 a protest against the election of the former
with the Court of First Instance of Pangasinan, on the grounds of (1) anomalies and irregularities in
the appreciation, counting and consideration of votes in specified electoral precincts; (2) terrorism;
(3) rampant vote buying; (4) open voting or balloting; and (5) excessive campaign expenditures and
other violations of the 1971 Election Code.

Respondent Yu filed on November 29, 1971 his answer and counter-protest which petitioner
answered on December 10, 1971. However, respondent Yu withdrew his counter-protest after
waiving the opening and revision of the ballot boxes specified therein.

Proceedings therein continued with respect to the election protest of petitioner before the Court of
First Instance of Pangasinan, Branch XIV, presided by respondent Judge, who initially took
cognizance of the same as it is unquestionably a justiciable controversy.

In the meantime or on September 21, 1972, the incumbent President of the Republic of the
Philippines issued Proclamation No. 1081, placing the entire country under Martial Law; and two
months thereafter, more or less, or specifically on November 29, 1972, the 1971 Constitutional
Convention passed and approved a Constitution to supplant the 1935 Constitution; and the same
was thereafter overwhelmingly ratified by the sovereign people of the Republic of the Philippines on
January 17, 1973; and on March 31, 1973, this Court declared that "there is no further judicial
obstacle to the new Constitution being considered in force and effect" (Javellana vs. Executive
Secretary, 50 SCRA 30 [1973]).

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

Petitioner vigorously opposed the motion to dismiss, and, relying mainly on Sections 7 and 8 of
Article XVII (Transitory Provisions) of the New Constitution and G.O. No. 3, contended that the New
Constitution did not divest the Court of First Instance of its jurisdiction to hear and decide election
protests pending before them at the time of its ratification and effectivity; that the ratification of the
New Constitution and its effectivity did not automatically abolish the office and position of municipal
mayor nor has it automatically cut short the tenure of the office, so as to render the issue as to who
is the lawfully elected candidate to said office or position moot and academic; that election protests
involve public interest such that the same must be heard until terminated and may not be dismissed
on mere speculation that the office involved may have been abolished, modified or reorganized; and
that the motion to dismiss was filed manifestly for delay.

Respondent Yu replied pointing out, among others, that petitioner failed to refute the issue of political
question; and reiterated his stand, expanding his arguments on the political question, thus:

It is an undeniable fact that this case has its source from the 1971 elections for
municipal mayoralty. Unsatisfied with the counting of votes held by the Board of
Canvassers, the herein protestant filed this present case. And before the termination
of the same and pending trial, the Filipino people in the exercise of their free will and
sovereign capacity approved a NEW CONSTITUTION, thus a NEW FORM OF
GOVERNMENT-PARLIAMENTARY IN FORM was enforced. We find this provision
under Article XI of the New Constitution, which provides:

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

which may not thereafter be amended except by a majority vote of all
its members, defining a more responsive and accountable local
government structure with an effective system of recall, allocating
among the different local government units their powers,
responsibilities, and resources, and providing for the qualifications,
election and removal, term, salaries, powers, functions, and duties of
local officials, and all other matters relating to the organization and
operation of the local units. However, any change in the existing form
of local government shall not take effect until ratified by a majority of
the votes cast in a plebiscite called for the purpose.

It is respectfully submitted that the contention of the protestant to the effect that the
New Constitution "shows that the office of the Municipal Mayor has not been
abolished ... ," is not ACCURATE. Otherwise, the provisions of Section 9 of Article
XVII, is meaningless.

All officials and employees in the existing Government of the

Republic shall continue in office until otherwise provided by law or
decreed by the incumbent President of the Philippines, ...

In the above-quoted provision is the protection of the officials and employees working
in our government, otherwise, by the force of the New Constitution they are all out of
 the government offices. In fact, in the case above-cited (Javellana) we are all
performing our duties in accordance with the New Constitution.

Therefore, election cases of the 1935 Constitution being interwoven in the political
complexion of our new Constitution should be dismissed because only those
incumbent official and employees existing in the new government are protected by
the transitional provisions of the New Fundamental Law of the Land. The protestant,
we respectfully submit, is not covered by the provisions of Section 9 Article XVII of
the Constitution. And in case he will win in this present case he has no right to hold
the position of mayor of the town of Rosales, Pangasinan, because he was not then
an official of the government at the time the New Constitution was approved by the
Filipino People. His right if proclaimed a winner is derived from the 1935 Constitution
which is changed by the Filipino people.

On December 18, 1973, the trial court, presided by respondent Judge, sustained the political
question theory of respondent Yu and ordered the dismissal of the electoral protest. Thus:

There is no dispute that the Filipino people have accepted and submitted to a new
Constitution to replace the 1935 Constitution, and that we are now living under its
aegis and protection. ...

xxx xxx xxx

Under Section 9, Article XVII, of the new Constitution, above-quoted, only those
officials and employees of the existing Government of the Republic of the Philippines
like the protestee herein, are given protection and are authorized to continue in office
at the pleasure of the incumbent President of the Philippines, while under Section 2
of Article XI of the new Constitution, also above-quoted, the intention of completely
revamp the whole local government structure, providing for different qualifications,
election and removal, term, salaries, powers, functions, and duties, is very clear.
These present questions of policy, the necessity and expediency of which are
outside the range of judicial review. With respect to the fate of incumbent oficials and
employees in the existing Government of the Republic of the Philippines, as well as
to the qualifications, election and removal, term of office, salaries, and powers of all
local officials under the parliamentary form of government — these have been
entrusted or delegated by the sovereign people or has reserved it to be settled by the
incumbent Chief Executive or by the National Assembly with full discretionary
authority therefor. As if to supplement these delegated powers, the people have also
decreed in a referendum the suspension of all elections. Thus, in the United States,
questions relating to what persons or organizations constituted the lawful
government of a state of the Union (Luther vs. Borden, 7 How. 1, 12, L. Ed 58), and
those relating to the political status of a state (Highland Farms Dairy vs. Agnew, 57
S. et 549, 300 U.S. 608, 81 L.ed 835), have been held to be political and for the
judiciary to determine.

To the mind of the Court, therefore, the ratification and effectivity of the new
Constitution has tainted this case with a political complexion above and beyond the
power of judicial review. As fittingly commented by Mr. Justice Antonio in a separate
opinion in the Javellana, et al. cases, 69 0. G. No. 36, September 3, 1973, p. 8008:

The essentially political nature of the question is at once manifest by

understanding that in the final analysis, what is assailed is not merely
 the validity of Proclamation No. 1102 of the President, which is
merely declaratory of the fact of the approval or ratification, but the
legitimacy of the government. It is addressed more to the frame-work
and political character of this government which now functions under
the new Charter. It seeks to nullify a Constitution that is already
effective. In other words, where a complete change in the
fundamental law has been effected through political action, the Court
whose existence is affected by such a change is, in the words of Mr.
Meville Fuller Weston "precluded from passing upon the fact of
change by a logical difficulty which is not to be surmounted as the
change relates to the existence of a prior point in the Court's "chain of
title" to its authority and "does not relate merely to a question of the
horizontal distribution of powers." It involves a matter which 'the
sovereign has entrusted to the so-called political departments or has
reserved to be settled by its own extra-governmental action." The
present Government functions under the new Constitution which has
become effective through political action. Judicial power presupposes
an established government and an effective constitution. If it decides
at all as a court, it necessarily affirms the existence and authority of
the Government under which it is exercising judicial power.

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

Hence, this petition.

We reverse.

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

I
There is an imperative need to re-state pronouncements of this Court on the new Constitution which
are decisive in the resolution of the political question theory of respondent Yu.

WE ruled:

1. That Section 9 of Article XVII of the 1973 Constitution did not render moot and academic pending
election protest cases (Santos vs. Castañeda, 65 SCRA 114 [1975]; Euipilag vs. Araula, 60 SCRA
211 [1974]; Nunez vs. Averia, 57 SCRA 726 [1974]; Parades vs. Abad, L-36927, Sunga vs.
Mosueda, L-37715, Valley vs. Caro, L-38331, 56 SCRA 522, [1974]).

2. That "the constitutional grant of privilege to continue in office, made by the new Constitution for
the benefit of persons who were incumbent officials or employees of the Government when the new
Constitution took effect, cannot be fairly construed as indiscriminately encompassing every person
who at the time happened to be performing the duties of an elective office, albeit under protest or
contest" and that "subject to the constraints specifically mentioned in Section 9, Article XVII of the
Transitory Provisions, it neither was, nor could have been the intention of the framers of our new
fundamental law to disregard and shunt aside the statutory right of a condidate for elective position
who, within the time-frame prescribed in the Election Code of 1971, commenced proceedings
beamed mainly at the proper determination in a judicial forum of a proclaimed candidate-elect's right
to the contested office."' (Santos vs. Castañeda, supra); and We rationalized that "the Constitutional
Convention could not have intended, as in fact it .did not intend, to shielf or protect those who had
been unduly elected. To hold that the right of the herein private respondents to the respective offices
which they are now holding, may no longer be subject to question, would be tantamount to giving a
stamp of approval to what could have been an election victory characterized by fraud, threats,
intimidation, vote buying, or other forms of irregularities prohibited by the Election Code to preserve
inviolate the sanctity of the ballot." (Parades, Sunga and Valley cases, supra).

3. That "the right of the private respondents (protestees) to continue in office indefinitely arose not
only by virtue of Section 9 of Article XVII of the New Constitution but principally from their having
been proclaimed elected to their respective positions as a result of the November 8, 1971 elections.
Therefore, if in fact and in law, they were not duly elected to their respective positions and
consequently, have no right to hold the same, perform their functions, enjoy their privileges and
emoluments, then certainly, they should not be allowed to enjoy the indefinite term of office given to
them by said constitutional provision" (Parades, Sunga and Valley cases, supra).

4. That "until a subsequent law or presidential decree provides otherwise, the right of respondent
(protestee) to continue as mayor rests on the legality of his election which has been protested by
herein petitioner. Should the court decide adversely against him the electoral protest, respondent
(protestee) would cease to be mayor even before a law or presidential decree terminates his tenure
of office pursuant to said Section 9 of Article XVII of the 1973 Constitution" (Euipilag, supra).

5. That "there is a difference between the 'term' of office and the 'right' to hold an office. A 'term' of
office is the period during winch an elected officer or appointee is entitled to hold office, perform its
functions and enjoy its privileges and emoluments. A 'right' to hold a public office is the just and legal
claim to hold and enjoy the powers and responsibilities of the office. In other words, the 'term' refers
to the period, duration of length of time during which the occupant of an office is .entitled to stay
therein whether such period be definite or indefinite. Hence, although Section 9, Article XVII of the
New Constitution made the term of the petitioners indefinite, it did not foreclose any challenge by the
herein petitioners, in an election protest, of the 'right' of the private respondents to continue holding
their respective office. What has been directly affected by said constitutional provision is the 'term' to
the office, although the 'right' of the incumbent to an office which he is legally holding is co-extensive
with the 'term' thereof," and that "it is erroneous to conclude that under Section 9, Article XVII of the
New Constitution, the term of office of the private respondents expired, and that they are now
holding their respective offices under a new term. We are of the opinion that they hold their
respective offices still under the term to which they have been elected, although the same is now
indefinite" (Parades, Sunga and Valley cases, supra).

6. That the New Constitution recognized the continuing jurisdiction of courts of first instance to hear,
try and decide election protests: "Section 7 of Article XVII of the New Constitution provides that 'all
existing laws not inconsistent with this Constitution shall remain operative until amended, modified or
repealed by the National Assembly. 'And there has been no amendment, modification or repeal of
Section 220 of the Election Code of 1971 which gave the herein petitioners the right to file an
election contest against those proclaimed elected," and "according to Section 8, Article XVII of the
New Constitution 'all courts existing at the time of the ratification of this Constitution shall continue
and exercise their jurisdiction until otherwise provided by law in accordance with this Constitution,
and all cases pending in said courts shall be heard, tried and determined under the laws then in
force.' Consequently, the Courts of First Instance presided over by the respondent-Judges should
continue and exercise their jurisdiction to hear, try and decide the election protests filed by herein
petitioners" (Santos, Euipilag, Nunez, Parades, Sunga and Valley cases, supra).

While under the New Constitution the Commission on Elections is now the sole judge of all contests
relating to the elections, returns, and qualifications of members of the National Assembly as well as
elective provincial and city officials (par. 2 of Sec. 2, Article XII-C of the 1973 Constitution), such
power does not extend to electoral contests concerning municipal elective positions.

7. That General Order No. 3, issued by the President of the Philippines merely reiterated his powers
under Section 9 of Article XVII of the New Constitution. The President did not intend thereby to
modify the aforesaid constitutional provision (Euipilag, supra).

General Order No. 3, as amended by General Order No. 3-A, does not expressly include electoral
contests of municipal elective positions as among those removed from the jurisdiction of the courts;
for said General Order, after affirming the jurisdiction of the Judiciary to decide in accordance with
the existing laws on criminal and civil cases, simply removes from the jurisdiction of the Civil Court
certain crimes specified therein as well as the validity, legality or constitutionality of any decree,
order or acts issued by the President or his duly designated representative or by public servants
pursuant to his decrees and orders issued under Proclamation No. 1081.

8. That General Order No. 3 may not be invoked by the courts to avoid exercise of their jurisdiction
because to do co "is nothing short of unwarranted abdication of judicial', authority, which no judge
duly imbued with the implications of the paramount principle of independence of the judiciary should
ever think of doing. It is unfortunate indeed that respondent Judge is apparently unaware that it is a
matter of highly significant historical fact that this Court has always deemed General Order No. 3
including its amendment by General Order No. 3-A as practically inoperative even in the light of
Proclamation No. 1081 of September 21, 1972 and Proclamation No. 1104 of January 17, 1973,
placing the whole Philippines under martial law. While the members of the Court are not agreed on
whether or not particular instances of attack against the validity of certain Presidential decrees raise
political questions which the Judiciary would not interfere with, there is unanimity among Us in the
view that it is for the Court rather than the Executive to determine whether or not We may take
cognizance of any given case involving the validity of acts of the Executive Department purportedly
under the authority of the martial law proclamations" (Lina vs. Purisima, 3 PHILAJUR 605, 610-611,
82 SCRA 344 [1978]).

II
1. In the light of the foregoing pronouncements, We hold that the electoral protest case herein
involved has remained a justiciable controversy. No political question has ever been interwoven into
this case. Nor is there any act of the incumbent President or the Legislative Department to be
indirectly reviewed or interfered with if the respondent Judge decides the election protest. The term
"political question" connotes what it means in ordinary parlance, namely, a question of policy. It
refers to those questions which under the Constitution, are to be decided by the people in their
sovereign capacity; or in regard to which full discretionary authority has been delegated to the
legislative or executive branch of the government. It is concerned with issues dependent upon the
wisdom, not legality, of a particular measure" (Tañada vs. Cuenco, L-1052, Feb. 28, 1957). A
broader definition was advanced by U.S. Supreme Court Justice Brennan in Baker vs. Carr (369
U.S. 186 [1962]): "Prominent on the surface of any case held to involve a political question is found a
textually demonstrable constitutional commitment of the issue to a coordinate political department; or
a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of
deciding without an initial policy determination of a kind clearly for non-judicial discretion; or the
impossibility of a court's undertaking independent resolution without expressing lack of respect due
coordinate branches of the government; or an unusual need for unquestioning adherence to a
political decision already made; or the potentiality of embarrassment from multifarious
pronouncements by various departments on one question" (p. 217). And Chief Justice Enrique M.
Fernando, then an Associate Justice, of this Court fixed the limits of the term, thus: "The term has
been made applicable to controversies clearly non-judicial and therefore beyond its jurisdiction or to
an issue involved in a case appropriately subject to its cognizance, as to which there has been a
prior legislative or executive determination to which deference must be paid (Cf. Vera vs. Avelino, 77
Phil. 192 [1946]; Lopez vs. Roxas, L-25716, July 28, 1966, 17 SCRA 756; Gonzales vs. Commission
on Elections, L-28196, Nov. 9, 1967, 21 SCRA 774). It 'has likewise been employed loosely to
characterize a suit where the party proceeded against is the President or Congress, or any branch
thereof (Cf. Planas vs. Gil, 67 Phil. 62 [1937]; Vera vs. Avelino, 77 Phil. 192 [1946]). If to be
delimited with accuracy; 'political questions' should refer to such as would under the Constitution be
decided by the people in their sovereign capacity or in regard to which full discretionary authority is
vested either in the President or Congress. It is thus beyond the competence of the judiciary to pass
upon. ..." (Lansang vs. Garcia, 42 SCRA 448, 504-505 [1971]).

2. The only issue in the electoral protest case dismissed by respondent Judge on the ground of
political question is who between protestant — herein petitioner — and protestee — herein
respondent Yu — was the duly elected mayor of Rosales, Pangasinan, and legally entitled to enjoy
the rights, privileges and emoluments appurtenant thereto and to discharge the functions, duties and
obligations of the position. If the protestee's election is upheld by the respondent Judge, then he
continues in office; otherwise, it is the protestant, herein petitioner. That is the only consequence of a
resolution of the issue therein involved — a purely justiciable question or controversy as it implies a
given right, legally demandable and enforceable, an act or ommission violative of said right, and a
remedy, granted or sanctioned by law, for said breach of right (Tan vs. Republic, 107 Phil. 632-633
[1960]). Before and after the ratification and effectivity of the New Constitution, the nature of the
aforesaid issue as well as the consequences of its resolution by the Court, remains the same as
above-stated.

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

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

III

The construction made by respondent Judge of Sections 7 and 8 of Article XVII of the New
Constitution "... that these refer to matters raised in the enforcement of existing laws or in the
invocation of a court's jurisdiction which have not been 'entrusted to the so-called political
department or reserved to be settled by its own extra-governmental action,"' strained as it is, cannot
be sustained in view of the result herein reached on the issue of political question as well as Our
previous pronouncements as above restated on the same Sections 7 and 8 of the New Constitution.

WHEREFORE, RESPONDENT COURT'S ORDER OF DISMISSAL IS HEREBY SET ASIDE AND

THE RESPONDENT COURT IS DIRECTED TO IMMEDIATELY PROCEED WITH THE TRIAL AND
DETERMINATION OF THE ELECTION PROTEST BEFORE IT ON THE MERITS. THIS DECISION
SHALL BE IMMEDIATELY EXECUTORY UPON PROMULGATION HEREOF. NO COSTS.

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