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Republic of the Philippines SUPREME COURT Manila EN BANC A.M. No.

88-7-1861-RTC October 5, 1988 IN RE: DESIGNATION OF JUDGE RODOLFO U. MANZANO AS MEMBER OF THE ILOCOS NORTE PROVINCIAL COMMITTEE ON JUSTICE. PADILLA, J.: On 4 July 1988, Judge Rodolfo U. Manzano, Executive Judge, RTC, Bangui, Ilocos Norte, Branch 19, sent this Court a letter which reads: Hon. Marcelo Fernan Chief Justice of the Supreme Court of the Philippines Manila Thru channels: Hon. Leo Medialdea Court Administrator Supreme Court of the Philippines Sir: By Executive Order RF6-04 issued on June 21, 1988 by the Honorable Provincial Governor of Ilocos Norte, Hon. Rodolfo C. Farinas, I was designated as a member of the Ilocos Norte Provincial Committee on Justice created pursuant to Presidential Executive Order No. 856 of 12 December 1986, as amended by Executive Order No. 326 of June 1, 1988. In consonance with Executive Order RF6-04, the Honorable Provincial Governor of Ilocos Norte issued my appointment as a member of the Committee. For your ready reference, I am enclosing herewith machine copies of Executive Order RF6-04 and the appointment.

Before I may accept the appointment and enter in the discharge of the powers and duties of the position as member of the Ilocos (Norte) Provincial Committee on Justice, may I have the honor to request for the issuance by the Honorable Supreme Court of a Resolution, as follows: (1) Authorizing me to accept the appointment and to as assume and discharge the powers and duties attached to the said position; (2) Considering my membership in the Committee as neither violative of the Independence of the Judiciary nor a violation of Section 12, Article VIII, or of the second paragraph of Section .7, Article IX (B), both of the Constitution, and will not in any way amount to an abandonment of my present position as Executive Judge of Branch XIX, Regional Trial Court, First Judicial Region, and as a member of the Judiciary; and (3) Consider my membership in the said Committee as part of the primary functions of an Executive Judge. May I please be favored soon by your action on this request. Very respectfully yours, (Sgd) RODOLFO U. MANZANO Judge An examination of Executive Order No. 856, as amended, reveals that Provincial/City Committees on Justice are created to insure the speedy disposition of cases of detainees, particularly those involving the poor and indigent ones, thus alleviating jail congestion and improving local jail conditions. Among the functions of the Committee are 3.3 Receive complaints against any apprehending officer, jail warden, final or judge who may be found to have committed abuses in the discharge of his duties and refer the same to proper authority for appropriate action;

3.5 Recommend revision of any law or regulation which is believed prejudicial to the proper administration of criminal justice. It is evident that such Provincial/City Committees on Justice perform administrative functions. Administrative functions are those which involve the regulation and control over the conduct and affairs of individuals for; their own welfare and the promulgation of rules and regulations to better carry out the policy of the legislature or such as are devolved upon the administrative agency by the organic law of its existence (Nasipit Integrated Arrastre and Stevedoring Services Inc., vs. Tapucar, SP-07599-R, 29 September 1978, Blacks Law Dictionary). Furthermore, under Executive Order No. 326 amending Executive Order No. 856, it is provided that Section 6. Supervision.The Provincial/City Committees on Justice shall be under the supervision of the Secretary of justice Quarterly accomplishment reports shall be submitted to the Office of the Secretary of Justice. Under the Constitution, the members of the Supreme Court and other courts established by law shag not be designated to any agency performing quasi- judicial or administrative functions (Section 12, Art. VIII, Constitution). Considering that membership of Judge Manzano in the Ilocos Norte Provincial Committee on Justice, which discharges a administrative functions, will be in violation of the Constitution, the Court is constrained to deny his request. Former Chief Justice Enrique M. Fernando in his concurring opinion in the case of Garcia vs. Macaraig (39 SCRA 106) ably sets forth: 2. While the doctrine of separation of powers is a relative theory not to be enforced with pedantic rigor, the practical demands of government precluding its doctrinaire application, it cannot justify a member of the judiciary being required to assume a position or perform a duty non-judicial in character. That is implicit in the principle. Otherwise there is a plain departure from its command. The essence of the trust reposed in him is to

decide. Only a higher court, as was emphasized by Justice Barredo, can pass on his actuation. He is not a subordinate of an executive or legislative official, however eminent. It is indispensable that there be no exception to the rigidity of such a norm if he is, as expected, to be confined to the task of adjudication. Fidelity to his sworn responsibility no less than the maintenance of respect for the judiciary can be satisfied with nothing less. This declaration does not mean that RTC Judges should adopt an attitude of monastic insensibility or unbecoming indifference to Province/City Committee on Justice. As incumbent RTC Judges, they form part of the structure of government. Their integrity and performance in the adjudication of cases contribute to the solidity of such structure. As public officials, they are trustees of an orderly society. Even as non-members of Provincial/City Committees on Justice, RTC judges should render assistance to said Committees to help promote the laudable purposes for which they exist, but only when such assistance may be reasonably incidental to the fulfillment of their judicial duties. ACCORDINGLY, the aforesaid request of Judge Rodolfo U. Manzano is DENIED. SO ORDERED. Cruz, Paras, Feliciano, Gancayco, Bidin, Sarmiento, Cortes, Medialdea and Regalado, JJ., concur. Separate Opinions GUTIERREZ, JR., J., dissenting: The Constitution prohibits the designation of members of the judiciary to any agency performing quasi-judicial or administrative functions (Section 12, Article VIII, Constitution.). Insofar as the term "quasi-judicial" is concerned, it has a fairly clear meaning and Judges can confidently refrain from participating in the work of any administrative agency which adjudicates disputes and controversies involving the rights of parties within its jurisdiction. The issue involved in

this case is where to draw the line insofar as administrative functions are concerned. "Administrative functions" as used in Section 12 refers to the executive machinery of government and the performance by that machinery of governmental acts. It refers to the management actions, determinations, and orders of executive officials as they administer the laws and try to make government effective. There is an element of positive action, of supervision or control. Applying the definition given in the opinion of the majority which reads: Administrative functions are those which involve the regulation and control over the conduct and affairs of individuals for their own welfare and the promulgation of rules and regulations to better carry out the policy of the legislature or such as are devolved upon the administrative agency by the organic law of its existence (Nasipit Integrated Arrastre and Stevedoring Services Inc. v. Tapucar, S.P-07599-R, 29 September 1978, Black's Law Dictionary. ) we can readily see that membership in the Provincial or City Committee on Justice would not involve any regulation or control over the conduct and affairs of individuals. Neither will the Committee on Justice promulgate rules and regulations nor exercise any quasi-legislative functions. Its work is purely advisory. I do not see anything wrong in a member of the judiciary joining any study group which concentrates on the administration of justice as long as the group merely deliberates on problems involving the speedy disposition of cases particularly those involving the poor and needy litigants or detainees, pools the expertise and experiences of the members, and limits itself to recommendations which may be adopted or rejected by those who have the power to legislate or administer the particular function involved in their implementation. We who are Judges cannot operate in a vacuum or in a tight little world of our own. The administration of justice cannot be pigeonholed into neat compartments with Judges, Fiscals, Police, Wardens, and various other officials concerned erecting water-tight barriers against one another and limiting our interaction to timidly peeping over these unnecessary and impractical barriers into one another's work, all the while blaming the

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

impairs its own efficiency to meet the responsibilities brought about by the changing times and conditions of society. The familiar quotation is apt in this caseconstitutional provisions are interpreted by the spirit which vivifies and not by the letter which killeth. I, therefore, dissent from the majority opinion and vote to allow Judge Rodolfo U. Fernan C.J., Narvasa and Grio-Aquino, JJ., join in Gutierrez dissent. MELENCIO-HERRERA, J., dissenting: I hesitate to give such a restrictive and impractical interpretation to Section 12, Article VIII of the 1987 Constitution, and thus join the dissent of Justice Gutierrez, Jr. What I believe is contemplated by the Constitutional prohibition is designation, for example, to such quasi-judicial bodies as the SEC, or administrative agencies like the BIR. Those are full-time positions involving running the affairs of government, which will interfere with the discharge of judicial functions or totally remove a Judge/Justice from the performance of his regular functions. The Committee on Justice cannot be likened to such an administrative agency of government. It is a study group with recommendatory functions. In fact, membership by members of the Bench in said committee is called for by reason of the primary functions of their position. The matter of supervision by the Secretary of Justice provided for under E.O. No. 326 amending E.O. No. 856, need not be a cause for concern. That supervision is confined to Committee work and will by no means extend to the performance of judicial functions per se. Manzano to become a member of the Ilocos Norte Provincial Committee on Justice. Separate Opinions GUTIERREZ, JR., J., dissenting:

The Constitution prohibits the designation of members of the judiciary to any agency performing quasi-judicial or administrative functions (Section 12, Article VIII, Constitution.). Insofar as the term "quasi-judicial" is concerned, it has a fairly clear meaning and Judges can confidently refrain from participating in the work of any administrative agency which adjudicates disputes and controversies involving the rights of parties within its jurisdiction. The issue involved in this case is where to draw the line insofar as administrative functions are concerned. "Administrative functions" as used in Section 12 refers to the executive machinery of government and the performance by that machinery of governmental acts. It refers to the management actions, determinations, and orders of executive officials as they administer the laws and try to make government effective. There is an element of positive action, of supervision or control. Applying the definition given in the opinion of the majority which reads: Administrative functions are those which involve the regulation and control over the conduct and affairs of individuals for their own welfare and the promulgation of rules and regulations to better carry out the policy of the legislature or such as are devolved upon the administrative agency by the organic law of its existence (Nasipit Integrated Arrastre and Stevedoring Services Inc. v. Tapucar, S.P-07599-R, 29 September 1978, Black's Law Dictionary. ) we can readily see that membership in the Provincial or City Committee on Justice would not involve any regulation or control over the conduct and affairs of individuals. Neither will the Committee on Justice promulgate rules and regulations nor exercise any quasi-legislative functions. Its work is purely advisory. I do not see anything wrong in a member of the judiciary joining any study group which concentrates on the administration of justice as long as the group merely deliberates on problems involving the speedy disposition of cases particularly those involving the poor and needy litigants or detainees, pools the expertise and experiences of the members, and limits itself to recommendations which may be adopted or rejected by those

who have the power to legislate or administer the particular function involved in their implementation. We who are Judges cannot operate in a vacuum or in a tight little world of our own. The administration of justice cannot be pigeonholed into neat compartments with Judges, Fiscals, Police, Wardens, and various other officials concerned erecting water-tight barriers against one another and limiting our interaction to timidly peeping over these unnecessary and impractical barriers into one another's work, all the while blaming the Constitution for such a quixotic and unreal interpretation. As intimated in the majority opinion, we should not be monastically insensible or indifferent to projects or movements cogitating on possible solutions to our common problems of justice and afterwards forwarding their findings to the people, public or private, where these findings would do the most good. The majority opinion suggests the giving of assistance by Judges to the work of the Committees on Justice. Assistance is a vague term. Can Judges be designated as observers? Advisers? Consultants? Is it the act of being "designated" which is proscribed by the Constitution or is it participation in the prohibited functions? If judges cannot become members, why should they be allowed or even encouraged to assist these Committees The line drawn by the majority is vague and unrealistic. The constitutional provision is intended to shield Judges from participating in activities which may compromise their independence or hamper their work. Studying problems involving the administration of justice and arriving at purely recommendatory solutions do not in any way involve the encroachment of. the judiciary into executive or legislative functions or into matters which are none of its concerns. Much less is it an encroachment of the other departments into judicial affairs. As the visible representation of the law and of justice in his community, the Judge should not shy away from public activities which do not interfere with the prompt and proper performance of his office, but which, in fact, enhance his effectiveness as a Judge. He cannot stop mingling in civic intercourse or shut himself into solitary seclusion. The Committees on Justice will also be immensely benefited by the presence of Judges in the study groups. The work of the Committees is quite important. Let it not be said that the Judges the officials most concerned with justice have

hesitated to join in such a worthy undertaking because of a strained interpretation of their functions. It is well for this Court to be generally cautious, conservative or restrictive when it interprets provisions of the Constitution or statutes vesting us with powers or delimit the exercise of our jurisdiction and functions. However, we should not overdo it. The basic principles of constitutional interpretation apply as well to the provisions which define or circumscribe our powers and functions as they do to the provisions governing the other dependents of government. The Court should not adopt a strained construction which impairs its own efficiency to meet the responsibilities brought about by the changing times and conditions of society. The familiar quotation is apt in this caseconstitutional provisions are interpreted by the spirit which vivifies and not by the letter which killeth. I, therefore, dissent from the majority opinion and vote to allow Judge Rodolfo U. Manzano to become a member of the Ilocos Norte Provincial Committee on Justice. Fernan C.J., Narvasa and Grio-Aquino, JJ., join in Gutierrez dissent. MELENCIO-HERRERA, J., dissenting: I hesitate to give such a restrictive and impractical interpretation to Section 12, Article VIII of the 1987 Constitution, and thus join the dissent of Justice Gutierrez, Jr. What I believe is contemplated by the Constitutional prohibition is designation, for example, to such quasi-judicial bodies as the SEC, or administrative agencies like the BIR. Those are full-time positions involving running the affairs of government, which will interfere with the discharge of judicial functions or totally remove a Judge/Justice from the performance of his regular functions. The Committee on Justice cannot be likened to such an administrative agency of government. It is a study group with recommendatory functions. In fact, membership by members of the Bench in said committee is called for by reason of the primary functions of their position. The matter of supervision by the Secretary of Justice provided for under E.O. No. 326 amending E.O. No. 856, need not be a cause for concern.

That supervision is confined to Committee work and will by no means extend to the performance of judicial functions per se. G.R. No. L-45081 July 15, 1936 JOSE A. ANGARA, petitioner, vs. THE ELECTORAL COMMISSION, PEDRO YNSUA, MIGUEL CASTILLO, and DIONISIO C. MAYOR, respondents. Godofredo Reyes for petitioner. Office of the Solicitor General Hilado for respondent Electoral Commission. Pedro Ynsua in his own behalf. No appearance for other respondents. LAUREL, J.: This is an original action instituted in this court by the petitioner, Jose A. Angara, for the issuance of a writ of prohibition to restrain and prohibit the Electoral Commission, one of the respondents, from taking further cognizance of the protest filed by Pedro Ynsua, another respondent, against the election of said petitioner as member of the National Assembly for the first assembly district of the Province of Tayabas. The facts of this case as they appear in the petition and as admitted by the respondents are as follows: (1) That in the elections of September 17, 1935, the petitioner, Jose A. Angara, and the respondents, Pedro Ynsua, Miguel Castillo and Dionisio Mayor, were candidates voted for the position of member of the National Assembly for the first district of the Province of Tayabas; (2) That on October 7, 1935, the provincial board of canvassers, proclaimed the petitioner as member-elect of the National Assembly for the said district, for having received the most number of votes; (3) That on November 15, 1935, the petitioner took his oath of office;

(4) That on December 3, 1935, the National Assembly in session assembled, passed the following resolution: [No. 8] RESOLUCION CONFIRMANDO LAS ACTAS DE AQUELLOS DIPUTADOS CONTRA QUIENES NO SE HA PRESENTADO PROTESTA. Se resuelve: Que las actas de eleccion de los Diputados contra quienes no se hubiere presentado debidamente una protesta antes de la adopcion de la presente resolucion sean, como por la presente, son aprobadas y confirmadas. Adoptada, 3 de diciembre, 1935. (5) That on December 8, 1935, the herein respondent Pedro Ynsua filed before the Electoral Commission a "Motion of Protest" against the election of the herein petitioner, Jose A. Angara, being the only protest filed after the passage of Resolutions No. 8 aforequoted, and praying, among otherthings, that said respondent be declared elected member of the National Assembly for the first district of Tayabas, or that the election of said position be nullified; (6) That on December 9, 1935, the Electoral Commission adopted a resolution, paragraph 6 of which provides: 6. La Comision no considerara ninguna protesta que no se haya presentado en o antes de este dia. (7) That on December 20, 1935, the herein petitioner, Jose A. Angara, one of the respondents in the aforesaid protest, filed before the Electoral Commission a "Motion to Dismiss the Protest", alleging (a) that Resolution No. 8 of Dismiss the Protest", alleging (a) that Resolution No. 8 of the National Assembly was adopted in the legitimate exercise of its constitutional prerogative to prescribe the period during which protests against the election of its members should be presented; (b) that the aforesaid resolution has for its object,

and is the accepted formula for, the limitation of said period; and (c) that the protest in question was filed out of the prescribed period; (8) That on December 27, 1935, the herein respondent, Pedro Ynsua, filed an "Answer to the Motion of Dismissal" alleging that there is no legal or constitutional provision barring the presentation of a protest against the election of a member of the National Assembly after confirmation; (9) That on December 31, 1935, the herein petitioner, Jose A. Angara, filed a "Reply" to the aforesaid "Answer to the Motion of Dismissal"; (10) That the case being submitted for decision, the Electoral Commission promulgated a resolution on January 23, 1936, denying herein petitioner's "Motion to Dismiss the Protest." The application of the petitioner sets forth the following grounds for the issuance of the writ prayed for: (a) That the Constitution confers exclusive jurisdiction upon the electoral Commission solely as regards the merits of contested elections to the National Assembly; (b) That the Constitution excludes from said jurisdiction the power to regulate the proceedings of said election contests, which power has been reserved to the Legislative Department of the Government or the National Assembly; (c) That like the Supreme Court and other courts created in pursuance of the Constitution, whose exclusive jurisdiction relates solely to deciding the merits of controversies submitted to them for decision and to matters involving their internal organization, the Electoral Commission can regulate its proceedings only if the National Assembly has not availed of its primary power to so regulate such proceedings; (d) That Resolution No. 8 of the National Assembly is, therefore, valid and should be respected and obeyed;

(e) That under paragraph 13 of section 1 of the ordinance appended to the Constitution and paragraph 6 of article 7 of the Tydings-McDuffie Law (No. 127 of the 73rd Congress of the United States) as well as under section 1 and 3 (should be sections 1 and 2) of article VIII of the Constitution, this Supreme Court has jurisdiction to pass upon the fundamental question herein raised because it involves an interpretation of the Constitution of the Philippines. On February 25, 1936, the Solicitor-General appeared and filed an answer in behalf of the respondent Electoral Commission interposing the following special defenses: (a) That the Electoral Commission has been created by the Constitution as an instrumentality of the Legislative Department invested with the jurisdiction to decide "all contests relating to the election, returns, and qualifications of the members of the National Assembly"; that in adopting its resolution of December 9, 1935, fixing this date as the last day for the presentation of protests against the election of any member of the National Assembly, it acted within its jurisdiction and in the legitimate exercise of the implied powers granted it by the Constitution to adopt the rules and regulations essential to carry out the power and functions conferred upon the same by the fundamental law; that in adopting its resolution of January 23, 1936, overruling the motion of the petitioner to dismiss the election protest in question, and declaring itself with jurisdiction to take cognizance of said protest, it acted in the legitimate exercise of its quasi-judicial functions a an instrumentality of the Legislative Department of the Commonwealth Government, and hence said act is beyond the judicial cognizance or control of the Supreme Court; (b) That the resolution of the National Assembly of December 3, 1935, confirming the election of the members of the National Assembly against whom no protest had thus far been filed, could not and did not deprive the electoral Commission of its jurisdiction to take cognizance of election protests filed within the time that might be set by its own rules:

(c) That the Electoral Commission is a body invested with quasi-judicial functions, created by the Constitution as an instrumentality of the Legislative Department, and is not an "inferior tribunal, or corporation, or board, or person" within the purview of section 226 and 516 of the Code of Civil Procedure, against which prohibition would lie. The respondent Pedro Ynsua, in his turn, appeared and filed an answer in his own behalf on March 2, 1936, setting forth the following as his special defense: (a) That at the time of the approval of the rules of the Electoral Commission on December 9, 1935, there was no existing law fixing the period within which protests against the election of members of the National Assembly should be filed; that in fixing December 9, 1935, as the last day for the filing of protests against the election of members of the National Assembly, the Electoral Commission was exercising a power impliedly conferred upon it by the Constitution, by reason of its quasijudicial attributes; (b) That said respondent presented his motion of protest before the Electoral Commission on December 9, 1935, the last day fixed by paragraph 6 of the rules of the said Electoral Commission; (c) That therefore the Electoral Commission acquired jurisdiction over the protest filed by said respondent and over the parties thereto, and the resolution of the Electoral Commission of January 23, 1936, denying petitioner's motion to dismiss said protest was an act within the jurisdiction of the said commission, and is not reviewable by means of a writ of prohibition; (d) That neither the law nor the Constitution requires confirmation by the National Assembly of the election of its members, and that such confirmation does not operate to limit the period within which protests should be filed as to deprive the Electoral Commission of jurisdiction over protest filed subsequent thereto;

(e) That the Electoral Commission is an independent entity created by the Constitution, endowed with quasi-judicial functions, whose decision are final and unappealable; ( f ) That the electoral Commission, as a constitutional creation, is not an inferior tribunal, corporation, board or person, within the terms of sections 226 and 516 of the Code of Civil Procedure; and that neither under the provisions of sections 1 and 2 of article II (should be article VIII) of the Constitution and paragraph 13 of section 1 of the Ordinance appended thereto could it be subject in the exercise of its quasi-judicial functions to a writ of prohibition from the Supreme Court; (g) That paragraph 6 of article 7 of the Tydings-McDuffie Law (No. 127 of the 73rd Congress of the united States) has no application to the case at bar. The case was argued before us on March 13, 1936. Before it was submitted for decision, the petitioner prayed for the issuance of a preliminary writ of injunction against the respondent Electoral Commission which petition was denied "without passing upon the merits of the case" by resolution of this court of March 21, 1936. There was no appearance for the other respondents. The issues to be decided in the case at bar may be reduced to the following two principal propositions: 1. Has the Supreme Court jurisdiction over the Electoral Commission and the subject matter of the controversy upon the foregoing related facts, and in the affirmative, 2. Has the said Electoral Commission acted without or in excess of its jurisdiction in assuming to the cognizance of the protest filed the election of the herein petitioner notwithstanding the previous confirmation of such election by resolution of the National Assembly? We could perhaps dispose of this case by passing directly upon the merits of the controversy. However, the question of jurisdiction having been presented, we do not feel justified in evading the issue. Being a case

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

begins. In times of social disquietude or political excitement, the great landmarks of the Constitution are apt to be forgotten or marred, if not entirely obliterated. In cases of conflict, the judicial department is the only constitutional organ which can be called upon to determine the proper allocation of powers between the several departments and among the integral or constituent units thereof. As any human production, our Constitution is of course lacking perfection and perfectibility, but as much as it was within the power of our people, acting through their delegates to so provide, that instrument which is the expression of their sovereignty however limited, has established a republican government intended to operate and function as a harmonious whole, under a system of checks and balances, and subject to specific limitations and restrictions provided in the said instrument. The Constitution sets forth in no uncertain language the restrictions and limitations upon governmental powers and agencies. If these restrictions and limitations are transcended it would be inconceivable if the Constitution had not provided for a mechanism by which to direct the course of government along constitutional channels, for then the distribution of powers would be mere verbiage, the bill of rights mere expressions of sentiment, and the principles of good government mere political apothegms. Certainly, the limitation and restrictions embodied in our Constitution are real as they should be in any living constitution. In the United States where no express constitutional grant is found in their constitution, the possession of this moderating power of the courts, not to speak of its historical origin and development there, has been set at rest by popular acquiescence for a period of more than one and a half centuries. In our case, this moderating power is granted, if not expressly, by clear implication from section 2 of article VIII of our constitution. The Constitution is a definition of the powers of government. Who is to determine the nature, scope and extent of such powers? The Constitution itself has provided for the instrumentality of the judiciary as the rational way. And when the judiciary mediates to allocate constitutional boundaries, it does not assert any superiority over the other departments; it does not in reality nullify or invalidate an act of the legislature, but only asserts the solemn and sacred obligation assigned to it by the Constitution to determine conflicting claims of authority under the Constitution and to establish for the parties in an actual controversy the rights which that instrument secures and guarantees to them. This is in truth all that is

involved in what is termed "judicial supremacy" which properly is the power of judicial review under the Constitution. Even then, this power of judicial review is limited to actual cases and controversies to be exercised after full opportunity of argument by the parties, and limited further to the constitutional question raised or the very lis mota presented. Any attempt at abstraction could only lead to dialectics and barren legal questions and to sterile conclusions unrelated to actualities. Narrowed as its function is in this manner, the judiciary does not pass upon questions of wisdom, justice or expediency of legislation. More than that, courts accord the presumption of constitutionality to legislative enactments, not only because the legislature is presumed to abide by the Constitution but also because the judiciary in the determination of actual cases and controversies must reflect the wisdom and justice of the people as expressed through their representatives in the executive and legislative departments of the governments of the government. But much as we might postulate on the internal checks of power provided in our Constitution, it ought not the less to be remembered that, in the language of James Madison, the system itself is not "the chief palladium of constitutional liberty . . . the people who are authors of this blessing must also be its guardians . . . their eyes must be ever ready to mark, their voice to pronounce . . . aggression on the authority of their constitution." In the Last and ultimate analysis, then, must the success of our government in the unfolding years to come be tested in the crucible of Filipino minds and hearts than in consultation rooms and court chambers. In the case at bar, the national Assembly has by resolution (No. 8) of December 3, 1935, confirmed the election of the herein petitioner to the said body. On the other hand, the Electoral Commission has by resolution adopted on December 9, 1935, fixed said date as the last day for the filing of protests against the election, returns and qualifications of members of the National Assembly, notwithstanding the previous confirmation made by the National Assembly as aforesaid. If, as contended by the petitioner, the resolution of the National Assembly has the effect of cutting off the power of the Electoral Commission to entertain protests against the election, returns and qualifications of members of the National Assembly, submitted after December 3, 1935, then the resolution of the Electoral Commission of December 9, 1935, is mere surplusage and had no effect. But, if, as contended by the respondents, the Electoral Commission has the sole power of regulating its proceedings to the exclusion of the National

Assembly, then the resolution of December 9, 1935, by which the Electoral Commission fixed said date as the last day for filing protests against the election, returns and qualifications of members of the National Assembly, should be upheld. Here is then presented an actual controversy involving as it does a conflict of a grave constitutional nature between the National Assembly on the one hand, and the Electoral Commission on the other. From the very nature of the republican government established in our country in the light of American experience and of our own, upon the judicial department is thrown the solemn and inescapable obligation of interpreting the Constitution and defining constitutional boundaries. The Electoral Commission, as we shall have occasion to refer hereafter, is a constitutional organ, created for a specific purpose, namely to determine all contests relating to the election, returns and qualifications of the members of the National Assembly. Although the Electoral Commission may not be interfered with, when and while acting within the limits of its authority, it does not follow that it is beyond the reach of the constitutional mechanism adopted by the people and that it is not subject to constitutional restrictions. The Electoral Commission is not a separate department of the government, and even if it were, conflicting claims of authority under the fundamental law between department powers and agencies of the government are necessarily determined by the judiciary in justifiable and appropriate cases. Discarding the English type and other European types of constitutional government, the framers of our constitution adopted the American type where the written constitution is interpreted and given effect by the judicial department. In some countries which have declined to follow the American example, provisions have been inserted in their constitutions prohibiting the courts from exercising the power to interpret the fundamental law. This is taken as a recognition of what otherwise would be the rule that in the absence of direct prohibition courts are bound to assume what is logically their function. For instance, the Constitution of Poland of 1921, expressly provides that courts shall have no power to examine the validity of statutes (art. 81, chap. IV). The former Austrian Constitution contained a similar declaration. In countries whose constitutions are silent in this respect, courts have assumed this power. This is true in Norway, Greece, Australia and South Africa. Whereas, in Czechoslovakia (arts. 2 and 3, Preliminary Law to constitutional Charter of the Czechoslovak Republic, February 29, 1920) and Spain (arts. 121-123, Title IX, Constitutional of the Republic of 1931) especial constitutional courts are established to pass upon the

validity of ordinary laws. In our case, the nature of the present controversy shows the necessity of a final constitutional arbiter to determine the conflict of authority between two agencies created by the Constitution. Were we to decline to take cognizance of the controversy, who will determine the conflict? And if the conflict were left undecided and undetermined, would not a void be thus created in our constitutional system which may be in the long run prove destructive of the entire framework? To ask these questions is to answer them. Natura vacuum abhorret, so must we avoid exhaustion in our constitutional system. Upon principle, reason and authority, we are clearly of the opinion that upon the admitted facts of the present case, this court has jurisdiction over the Electoral Commission and the subject mater of the present controversy for the purpose of determining the character, scope and extent of the constitutional grant to the Electoral Commission as "the sole judge of all contests relating to the election, returns and qualifications of the members of the National Assembly." Having disposed of the question of jurisdiction, we shall now proceed to pass upon the second proposition and determine whether the Electoral Commission has acted without or in excess of its jurisdiction in adopting its resolution of December 9, 1935, and in assuming to take cognizance of the protest filed against the election of the herein petitioner notwithstanding the previous confirmation thereof by the National Assembly on December 3, 1935. As able counsel for the petitioner has pointed out, the issue hinges on the interpretation of section 4 of Article VI of the Constitution which provides: "SEC. 4. There shall be an Electoral Commission composed of three Justice of the Supreme Court designated by the Chief Justice, and of six Members chosen by the National Assembly, three of whom shall be nominated by the party having the largest number of votes, and three by the party having the second largest number of votes therein. The senior Justice in the Commission shall be its Chairman. The Electoral Commission shall be the sole judge of all contests relating to the election, returns and qualifications of the members of the National Assembly." It is imperative, therefore, that we delve into the origin and history of this constitutional provision and inquire into the intention of its framers and the people who adopted it so that we may properly appreciate its full meaning, import and significance.

The original provision regarding this subject in the Act of Congress of July 1, 1902 (sec. 7, par. 5) laying down the rule that "the assembly shall be the judge of the elections, returns, and qualifications of its members", was taken from clause 1 of section 5, Article I of the Constitution of the United States providing that "Each House shall be the Judge of the Elections, Returns, and Qualifications of its own Members, . . . ." The Act of Congress of August 29, 1916 (sec. 18, par. 1) modified this provision by the insertion of the word "sole" as follows: "That the Senate and House of Representatives, respectively, shall be the sole judges of the elections, returns, and qualifications of their elective members . . ." apparently in order to emphasize the exclusive the Legislative over the particular case s therein specified. This court has had occasion to characterize this grant of power to the Philippine Senate and House of Representatives, respectively, as "full, clear and complete" (Veloso vs. Boards of Canvassers of Leyte and Samar [1919], 39 Phil., 886, 888.) The first step towards the creation of an independent tribunal for the purpose of deciding contested elections to the legislature was taken by the sub-committee of five appointed by the Committee on Constitutional Guarantees of the Constitutional Convention, which sub-committee submitted a report on August 30, 1934, recommending the creation of a Tribunal of Constitutional Security empowered to hear legislature but also against the election of executive officers for whose election the vote of the whole nation is required, as well as to initiate impeachment proceedings against specified executive and judicial officer. For the purpose of hearing legislative protests, the tribunal was to be composed of three justices designated by the Supreme Court and six members of the house of the legislature to which the contest corresponds, three members to be designed by the majority party and three by the minority, to be presided over by the Senior Justice unless the Chief Justice is also a member in which case the latter shall preside. The foregoing proposal was submitted by the Committee on Constitutional Guarantees to the Convention on September 15, 1934, with slight modifications consisting in the reduction of the legislative representation to four members, that is, two senators to be designated one each from the two major parties in the Senate and two representatives to be designated one each from the two major parties in the House of Representatives, and in awarding representation to the executive department in the persons of two representatives to be designated by the President.

Meanwhile, the Committee on Legislative Power was also preparing its report. As submitted to the Convention on September 24, 1934 subsection 5, section 5, of the proposed Article on the Legislative Department, reads as follows: The elections, returns and qualifications of the members of either house and all cases contesting the election of any of their members shall be judged by an Electoral Commission, constituted, as to each House, by three members elected by the members of the party having the largest number of votes therein, three elected by the members of the party having the second largest number of votes, and as to its Chairman, one Justice of the Supreme Court designated by the Chief Justice. The idea of creating a Tribunal of Constitutional Security with comprehensive jurisdiction as proposed by the Committee on Constitutional Guarantees which was probably inspired by the Spanish plan (art. 121, Constitution of the Spanish Republic of 1931), was soon abandoned in favor of the proposition of the Committee on Legislative Power to create a similar body with reduced powers and with specific and limited jurisdiction, to be designated as a Electoral Commission. The Sponsorship Committee modified the proposal of the Committee on Legislative Power with respect to the composition of the Electoral Commission and made further changes in phraseology to suit the project of adopting a unicameral instead of a bicameral legislature. The draft as finally submitted to the Convention on October 26, 1934, reads as follows: (6) The elections, returns and qualifications of the Members of the National Assembly and all cases contesting the election of any of its Members shall be judged by an Electoral Commission, composed of three members elected by the party having the largest number of votes in the National Assembly, three elected by the members of the party having the second largest number of votes, and three justices of the Supreme Court designated by the Chief Justice, the Commission to be presided over by one of said justices. During the discussion of the amendment introduced by Delegates Labrador, Abordo, and others, proposing to strike out the whole subsection of the foregoing draft and inserting in lieu thereof the following: "The

National Assembly shall be the soled and exclusive judge of the elections, returns, and qualifications of the Members", the following illuminating remarks were made on the floor of the Convention in its session of December 4, 1934, as to the scope of the said draft: xxxxxxxxx Mr. VENTURA. Mr. President, we have a doubt here as to the scope of the meaning of the first four lines, paragraph 6, page 11 of the draft, reading: "The elections, returns and qualifications of the Members of the National Assembly and all cases contesting the election of any of its Members shall be judged by an Electoral Commission, . . ." I should like to ask from the gentleman from Capiz whether the election and qualification of the member whose elections is not contested shall also be judged by the Electoral Commission. Mr. ROXAS. If there is no question about the election of the members, there is nothing to be judged; that is why the word "judge" is used to indicate a controversy. If there is no question about the election of a member, there is nothing to be submitted to the Electoral Commission and there is nothing to be determined. Mr. VENTURA. But does that carry the idea also that the Electoral Commission shall confirm also the election of those whose election is not contested? Mr. ROXAS. There is no need of confirmation. As the gentleman knows, the action of the House of Representatives confirming the election of its members is just a matter of the rules of the assembly. It is not constitutional. It is not necessary. After a man files his credentials that he has been elected, that is sufficient, unless his election is contested. Mr. VENTURA. But I do not believe that that is sufficient, as we have observed that for purposes of the auditor, in the matter of election of a member to a legislative body, because he will not authorize his pay.

Mr. ROXAS. Well, what is the case with regards to the municipal president who is elected? What happens with regards to the councilors of a municipality? Does anybody confirm their election? The municipal council does this: it makes a canvass and proclaims in this case the municipal council proclaims who has been elected, and it ends there, unless there is a contest. It is the same case; there is no need on the part of the Electoral Commission unless there is a contest. The first clause refers to the case referred to by the gentleman from Cavite where one person tries to be elected in place of another who was declared elected. From example, in a case when the residence of the man who has been elected is in question, or in case the citizenship of the man who has been elected is in question. However, if the assembly desires to annul the power of the commission, it may do so by certain maneuvers upon its first meeting when the returns are submitted to the assembly. The purpose is to give to the Electoral Commission all the powers exercised by the assembly referring to the elections, returns and qualifications of the members. When there is no contest, there is nothing to be judged. Mr. VENTURA. Then it should be eliminated. Mr. ROXAS. But that is a different matter, I think Mr. Delegate. Mr. CINCO. Mr. President, I have a similar question as that propounded by the gentleman from Ilocos Norte when I arose a while ago. However I want to ask more questions from the delegate from Capiz. This paragraph 6 on page 11 of the draft cites cases contesting the election as separate from the first part of the sections which refers to elections, returns and qualifications. Mr. ROXAS. That is merely for the sake of clarity. In fact the cases of contested elections are already included in the phrase "the elections, returns and qualifications." This phrase "and contested elections" was inserted merely for the sake of clarity.

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

Mr. LABRADOR. So that the Electoral Commission shall decide whether the election is contested or not contested. Mr. ROXAS. Yes, sir: that is the purpose. Mr. PELAYO. Mr. President, I would like to be informed if the Electoral Commission has power and authority to pass upon the qualifications of the members of the National Assembly even though that question has not been raised. Mr. ROXAS. I have just said that they have no power, because they can only judge. In the same session, the first clause of the aforesaid draft reading "The election, returns and qualifications of the members of the National Assembly and" was eliminated by the Sponsorship Committee in response to an amendment introduced by Delegates Francisco, Ventura, Vinzons, Rafols, Lim, Mumar and others. In explaining the difference between the original draft and the draft as amended, Delegate Roxas speaking for the Sponsorship Committee said: xxxxxxxxx Sr. ROXAS. La diferencia, seor Presidente, consiste solamente en obviar la objecion apuntada por varios Delegados al efecto de que la primera clausula del draft que dice: "The elections, returns and qualifications of the members of the National Assembly" parece que da a la Comision Electoral la facultad de determinar tambien la eleccion de los miembros que no ha sido protestados y para obviar esa dificultad, creemos que la enmienda tien razon en ese sentido, si enmendamos el draft, de tal modo que se lea como sigue: "All cases contesting the election", de modo que los jueces de la Comision Electoral se limitaran solamente a los casos en que haya habido protesta contra las actas." Before the amendment of Delegate Labrador was voted upon the following interpellation also took place: El Sr. CONEJERO. Antes de votarse la enmienda, quisiera El Sr. PRESIDENTE. Que dice el Comite?

El Sr. ROXAS. Con mucho gusto. El Sr. CONEJERO. Tal como esta el draft, dando tres miembros a la mayoria, y otros tres a la minoria y tres a la Corte Suprema, no cree Su Seoria que esto equivale practicamente a dejar el asunto a los miembros del Tribunal Supremo? El Sr. ROXAS. Si y no. Creemos que si el tribunal o la Commission esta constituido en esa forma, tanto los miembros de la mayoria como los de la minoria asi como los miembros de la Corte Suprema consideraran la cuestion sobre la base de sus meritos, sabiendo que el partidismo no es suficiente para dar el triunfo. El Sr. CONEJERO. Cree Su Seoria que en un caso como ese, podriamos hacer que tanto los de la mayoria como los de la minoria prescindieran del partidismo? El Sr. ROXAS. Creo que si, porque el partidismo no les daria el triunfo. xxxxxxxxx The amendment introduced by Delegates Labrador, Abordo and others seeking to restore the power to decide contests relating to the election, returns and qualifications of members of the National Assembly to the National Assembly itself, was defeated by a vote of ninety-eight (98) against fifty-six (56). In the same session of December 4, 1934, Delegate Cruz (C.) sought to amend the draft by reducing the representation of the minority party and the Supreme Court in the Electoral Commission to two members each, so as to accord more representation to the majority party. The Convention rejected this amendment by a vote of seventy-six (76) against forty-six (46), thus maintaining the non-partisan character of the commission. As approved on January 31, 1935, the draft was made to read as follows: (6) All cases contesting the elections, returns and qualifications of the Members of the National Assembly shall be judged by an

Electoral Commission, composed of three members elected by the party having the largest number of votes in the National Assembly, three elected by the members of the party having the second largest number of votes, and three justices of the Supreme Court designated by the Chief Justice, the Commission to be presided over by one of said justices. The Style Committee to which the draft was submitted revised it as follows: SEC. 4. There shall be an Electoral Commission composed of three Justices of the Supreme Court designated by the Chief Justice, and of six Members chosen by the National Assembly, three of whom shall be nominated by the party having the largest number of votes, and three by the party having the second largest number of votes therein. The senior Justice in the Commission shall be its chairman. The Electoral Commission shall be the sole judge of the election, returns, and qualifications of the Members of the National Assembly. When the foregoing draft was submitted for approval on February 8, 1935, the Style Committee, through President Recto, to effectuate the original intention of the Convention, agreed to insert the phrase "All contests relating to" between the phrase "judge of" and the words "the elections", which was accordingly accepted by the Convention. The transfer of the power of determining the election, returns and qualifications of the members of the legislature long lodged in the legislative body, to an independent, impartial and non-partisan tribunal, is by no means a mere experiment in the science of government. Cushing, in his Law and Practice of Legislative Assemblies (ninth edition, chapter VI, pages 57, 58), gives a vivid account of the "scandalously notorious" canvassing of votes by political parties in the disposition of contests by the House of Commons in the following passages which are partly quoted by the petitioner in his printed memorandum of March 14, 1936: 153. From the time when the commons established their right to be the exclusive judges of the elections, returns, and qualifications of their members, until the year 1770, two modes of proceeding prevailed, in the determination of controverted

elections, and rights of membership. One of the standing committees appointed at the commencement of each session, was denominated the committee of privileges and elections, whose functions was to hear and investigate all questions of this description which might be referred to them, and to report their proceedings, with their opinion thereupon, to the house, from time to time. When an election petition was referred to this committee they heard the parties and their witnesses and other evidence, and made a report of all the evidence, together with their opinion thereupon, in the form of resolutions, which were considered and agreed or disagreed to by the house. The other mode of proceeding was by a hearing at the bar of the house itself. When this court was adopted, the case was heard and decided by the house, in substantially the same manner as by a committee. The committee of privileges and elections although a select committee. The committee of privileges and elections although a select committee was usually what is called an open one; that is to say, in order to constitute the committee, a quorum of the members named was required to be present, but all the members of the house were at liberty to attend the committee and vote if they pleased. 154. With the growth of political parties in parliament questions relating to the right of membership gradually assumed a political character; so that for many years previous to the year 1770, controverted elections had been tried and determined by the house of commons, as mere party questions, upon which the strength of contending factions might be tested. Thus, for Example, in 1741, Sir Robert Walpole, after repeated attacks upon his government, resigned his office in consequence of an adverse vote upon the Chippenham election. Mr. Hatsell remarks, of the trial of election cases, as conducted under this system, that "Every principle of decency and justice were notoriously and openly prostituted, from whence the younger part of the house were insensibly, but too successfully, induced to adopt the same licentious conduct in more serious matters, and in questions of higher importance to the public welfare." Mr. George Grenville, a distinguished member of the house of commons, undertook to propose a remedy for the evil, and, on the 7th of March, 1770, obtained the unanimous leave of the

house to bring in a bill, "to regulate the trial of controverted elections, or returns of members to serve in parliament." In his speech to explain his plan, on the motion for leave, Mr. Grenville alluded to the existing practice in the following terms: "Instead of trusting to the merits of their respective causes, the principal dependence of both parties is their private interest among us; and it is scandalously notorious that we are as earnestly canvassed to attend in favor of the opposite sides, as if we were wholly self-elective, and not bound to act by the principles of justice, but by the discretionary impulse of our own inclinations; nay, it is well known, that in every contested election, many members of this house, who are ultimately to judge in a kind of judicial capacity between the competitors, enlist themselves as parties in the contention, and take upon themselves the partial management of the very business, upon which they should determine with the strictest impartiality." 155. It was to put an end to the practices thus described, that Mr. Grenville brought in a bill which met with the approbation of both houses, and received the royal assent on the 12th of April, 1770. This was the celebrated law since known by the name of the Grenville Act; of which Mr. Hatsell declares, that it "was one of the nobles works, for the honor of the house of commons, and the security of the constitution, that was ever devised by any minister or statesman." It is probable, that the magnitude of the evil, or the apparent success of the remedy, may have led many of the contemporaries of the measure to the information of a judgement, which was not acquiesced in by some of the leading statesmen of the day, and has not been entirely confirmed by subsequent experience. The bill was objected to by Lord North, Mr. De Grey, afterwards chief justice of the common pleas, Mr. Ellis, Mr. Dyson, who had been clerk of the house, and Mr. Charles James Fox, chiefly on the ground, that the introduction of the new system was an essential alteration of the constitution of parliament, and a total abrogation of one of the most important rights and jurisdictions of the house of commons. As early as 1868, the House of Commons in England solved the problem of insuring the non-partisan settlement of the controverted elections of its

members by abdicating its prerogative to two judges of the King's Bench of the High Court of Justice selected from a rota in accordance with rules of court made for the purpose. Having proved successful, the practice has become imbedded in English jurisprudence (Parliamentary Elections Act, 1868 [31 & 32 Vict. c. 125] as amended by Parliamentary Elections and Corrupt Practices Act. 1879 [42 & 43 Vict. c. 75], s. 2; Corrupt and Illegal Practices Preventions Act, 1883 [46 & 47 Vict. c. 51;, s. 70; Expiring Laws Continuance Act, 1911 [1 & 2 Geo. 5, c. 22]; Laws of England, vol. XII, p. 408, vol. XXI, p. 787). In the Dominion of Canada, election contests which were originally heard by the Committee of the House of Commons, are since 1922 tried in the courts. Likewise, in the Commonwealth of Australia, election contests which were originally determined by each house, are since 1922 tried in the High Court. In Hungary, the organic law provides that all protests against the election of members of the Upper House of the Diet are to be resolved by the Supreme Administrative Court (Law 22 of 1916, chap. 2, art. 37, par. 6). The Constitution of Poland of March 17, 1921 (art. 19) and the Constitution of the Free City of Danzig of May 13, 1922 (art. 10) vest the authority to decide contested elections to the Diet or National Assembly in the Supreme Court. For the purpose of deciding legislative contests, the Constitution of the German Reich of July 1, 1919 (art. 31), the Constitution of the Czechoslovak Republic of February 29, 1920 (art. 19) and the Constitution of the Grecian Republic of June 2, 1927 (art. 43), all provide for an Electoral Commission. The creation of an Electoral Commission whose membership is recruited both from the legislature and the judiciary is by no means unknown in the United States. In the presidential elections of 1876 there was a dispute as to the number of electoral votes received by each of the two opposing candidates. As the Constitution made no adequate provision for such a contingency, Congress passed a law on January 29, 1877 (United States Statutes at Large, vol. 19, chap. 37, pp. 227-229), creating a special Electoral Commission composed of five members elected by the Senate, five members elected by the House of Representatives, and five justices of the Supreme Court, the fifth justice to be selected by the four designated in the Act. The decision of the commission was to be binding unless rejected by the two houses voting separately. Although there is not much of a moral lesson to be derived from the experience of America in this regard, judging from the observations of Justice Field, who was a member of that body on the part of the Supreme Court (Countryman, the Supreme Court of the United States and its Appellate Power under the Constitution [Albany,

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

other. The location of the provision (section 4) creating the Electoral Commission under Article VI entitled "Legislative Department" of our Constitution is very indicative. Its compositions is also significant in that it is constituted by a majority of members of the legislature. But it is a body separate from and independent of the legislature. The grant of power to the Electoral Commission to judge all contests relating to the election, returns and qualifications of members of the National Assembly, is intended to be as complete and unimpaired as if it had remained originally in the legislature. The express lodging of that power in the Electoral Commission is an implied denial of the exercise of that power by the National Assembly. And this is as effective a restriction upon the legislative power as an express prohibition in the Constitution (Ex parte Lewis, 45 Tex. Crim. Rep., 1; State vs. Whisman, 36 S.D., 260; L.R.A., 1917B, 1). If we concede the power claimed in behalf of the National Assembly that said body may regulate the proceedings of the Electoral Commission and cut off the power of the commission to lay down the period within which protests should be filed, the grant of power to the commission would be ineffective. The Electoral Commission in such case would be invested with the power to determine contested cases involving the election, returns and qualifications of the members of the National Assembly but subject at all times to the regulative power of the National Assembly. Not only would the purpose of the framers of our Constitution of totally transferring this authority from the legislative body be frustrated, but a dual authority would be created with the resultant inevitable clash of powers from time to time. A sad spectacle would then be presented of the Electoral Commission retaining the bare authority of taking cognizance of cases referred to, but in reality without the necessary means to render that authority effective whenever and whenever the National Assembly has chosen to act, a situation worse than that intended to be remedied by the framers of our Constitution. The power to regulate on the part of the National Assembly in procedural matters will inevitably lead to the ultimate control by the Assembly of the entire proceedings of the Electoral Commission, and, by indirection, to the entire abrogation of the constitutional grant. It is obvious that this result should not be permitted. We are not insensible to the impassioned argument or the learned counsel for the petitioner regarding the importance and necessity of respecting the dignity and independence of the national Assembly as a coordinate department of the government and of according validity to its acts, to avoid

what he characterized would be practically an unlimited power of the commission in the admission of protests against members of the National Assembly. But as we have pointed out hereinabove, the creation of the Electoral Commission carried with it ex necesitate rei the power regulative in character to limit the time with which protests intrusted to its cognizance should be filed. It is a settled rule of construction that where a general power is conferred or duty enjoined, every particular power necessary for the exercise of the one or the performance of the other is also conferred (Cooley, Constitutional Limitations, eight ed., vol. I, pp. 138, 139). In the absence of any further constitutional provision relating to the procedure to be followed in filing protests before the Electoral Commission, therefore, the incidental power to promulgate such rules necessary for the proper exercise of its exclusive power to judge all contests relating to the election, returns and qualifications of members of the National Assembly, must be deemed by necessary implication to have been lodged also in the Electoral Commission. It is, indeed, possible that, as suggested by counsel for the petitioner, the Electoral Commission may abuse its regulative authority by admitting protests beyond any reasonable time, to the disturbance of the tranquillity and peace of mind of the members of the National Assembly. But the possibility of abuse is not argument against the concession of the power as there is no power that is not susceptible of abuse. In the second place, if any mistake has been committed in the creation of an Electoral Commission and in investing it with exclusive jurisdiction in all cases relating to the election, returns, and qualifications of members of the National Assembly, the remedy is political, not judicial, and must be sought through the ordinary processes of democracy. All the possible abuses of the government are not intended to be corrected by the judiciary. We believe, however, that the people in creating the Electoral Commission reposed as much confidence in this body in the exclusive determination of the specified cases assigned to it, as they have given to the Supreme Court in the proper cases entrusted to it for decision. All the agencies of the government were designed by the Constitution to achieve specific purposes, and each constitutional organ working within its own particular sphere of discretionary action must be deemed to be animated with the same zeal and honesty in accomplishing the great ends for which they were created by the sovereign will. That the actuations of these constitutional agencies might leave much to be desired in given instances, is inherent in the perfection of human institutions. In the third place, from

the fact that the Electoral Commission may not be interfered with in the exercise of its legitimate power, it does not follow that its acts, however illegal or unconstitutional, may not be challenge in appropriate cases over which the courts may exercise jurisdiction. But independently of the legal and constitutional aspects of the present case, there are considerations of equitable character that should not be overlooked in the appreciation of the intrinsic merits of the controversy. The Commonwealth Government was inaugurated on November 15, 1935, on which date the Constitution, except as to the provisions mentioned in section 6 of Article XV thereof, went into effect. The new National Assembly convened on November 25th of that year, and the resolution confirming the election of the petitioner, Jose A. Angara was approved by that body on December 3, 1935. The protest by the herein respondent Pedro Ynsua against the election of the petitioner was filed on December 9 of the same year. The pleadings do not show when the Electoral Commission was formally organized but it does appear that on December 9, 1935, the Electoral Commission met for the first time and approved a resolution fixing said date as the last day for the filing of election protest. When, therefore, the National Assembly passed its resolution of December 3, 1935, confirming the election of the petitioner to the National Assembly, the Electoral Commission had not yet met; neither does it appear that said body had actually been organized. As a mater of fact, according to certified copies of official records on file in the archives division of the National Assembly attached to the record of this case upon the petition of the petitioner, the three justices of the Supreme Court the six members of the National Assembly constituting the Electoral Commission were respectively designated only on December 4 and 6, 1935. If Resolution No. 8 of the National Assembly confirming non-protested elections of members of the National Assembly had the effect of limiting or tolling the time for the presentation of protests, the result would be that the National Assembly on the hypothesis that it still retained the incidental power of regulation in such cases had already barred the presentation of protests before the Electoral Commission had had time to organize itself and deliberate on the mode and method to be followed in a matter entrusted to its exclusive jurisdiction by the Constitution. This result was not and could not have been contemplated, and should be avoided. From another angle, Resolution No. 8 of the National Assembly confirming the election of members against whom no protests had been filed at the

time of its passage on December 3, 1935, can not be construed as a limitation upon the time for the initiation of election contests. While there might have been good reason for the legislative practice of confirmation of the election of members of the legislature at the time when the power to decide election contests was still lodged in the legislature, confirmation alone by the legislature cannot be construed as depriving the Electoral Commission of the authority incidental to its constitutional power to be "the sole judge of all contest relating to the election, returns, and qualifications of the members of the National Assembly", to fix the time for the filing of said election protests. Confirmation by the National Assembly of the returns of its members against whose election no protests have been filed is, to all legal purposes, unnecessary. As contended by the Electoral Commission in its resolution of January 23, 1936, overruling the motion of the herein petitioner to dismiss the protest filed by the respondent Pedro Ynsua, confirmation of the election of any member is not required by the Constitution before he can discharge his duties as such member. As a matter of fact, certification by the proper provincial board of canvassers is sufficient to entitle a member-elect to a seat in the national Assembly and to render him eligible to any office in said body (No. 1, par. 1, Rules of the National Assembly, adopted December 6, 1935). Under the practice prevailing both in the English House of Commons and in the Congress of the United States, confirmation is neither necessary in order to entitle a member-elect to take his seat. The return of the proper election officers is sufficient, and the member-elect presenting such return begins to enjoy the privileges of a member from the time that he takes his oath of office (Laws of England, vol. 12, pp. 331. 332; vol. 21, pp. 694, 695; U. S. C. A., Title 2, secs. 21, 25, 26). Confirmation is in order only in cases of contested elections where the decision is adverse to the claims of the protestant. In England, the judges' decision or report in controverted elections is certified to the Speaker of the House of Commons, and the House, upon being informed of such certificate or report by the Speaker, is required to enter the same upon the Journals, and to give such directions for confirming or altering the return, or for the issue of a writ for a new election, or for carrying into execution the determination as circumstances may require (31 & 32 Vict., c. 125, sec. 13). In the United States, it is believed, the order or decision of the particular house itself is generally regarded as sufficient, without any actual alternation or amendment of the return (Cushing, Law and Practice of Legislative Assemblies, 9th ed., sec. 166).

Under the practice prevailing when the Jones Law was still in force, each house of the Philippine Legislature fixed the time when protests against the election of any of its members should be filed. This was expressly authorized by section 18 of the Jones Law making each house the sole judge of the election, return and qualifications of its members, as well as by a law (sec. 478, Act No. 3387) empowering each house to respectively prescribe by resolution the time and manner of filing contest in the election of member of said bodies. As a matter of formality, after the time fixed by its rules for the filing of protests had already expired, each house passed a resolution confirming or approving the returns of such members against whose election no protests had been filed within the prescribed time. This was interpreted as cutting off the filing of further protests against the election of those members not theretofore contested (Amistad vs. Claravall [Isabela], Second Philippine Legislature, Record First Period, p. 89; Urguello vs. Rama [Third District, Cebu], Sixth Philippine Legislature; Fetalvero vs. Festin [Romblon], Sixth Philippine Legislature, Record First Period, pp. 637-640; Kintanar vs. Aldanese [Fourth District, Cebu], Sixth Philippine Legislature, Record First Period, pp. 1121, 1122; Aguilar vs. Corpus [Masbate], Eighth Philippine Legislature, Record First Period, vol. III, No. 56, pp. 892, 893). The Constitution has repealed section 18 of the Jones Law. Act No. 3387, section 478, must be deemed to have been impliedly abrogated also, for the reason that with the power to determine all contest relating to the election, returns and qualifications of members of the National Assembly, is inseparably linked the authority to prescribe regulations for the exercise of that power. There was thus no law nor constitutional provisions which authorized the National Assembly to fix, as it is alleged to have fixed on December 3, 1935, the time for the filing of contests against the election of its members. And what the National Assembly could not do directly, it could not do by indirection through the medium of confirmation. Summarizing, we conclude: (a) That the government established by the Constitution follows fundamentally the theory of separation of power into the legislative, the executive and the judicial. (b) That the system of checks and balances and the overlapping of functions and duties often makes difficult the delimitation of the powers granted.

(c) That in cases of conflict between the several departments and among the agencies thereof, the judiciary, with the Supreme Court as the final arbiter, is the only constitutional mechanism devised finally to resolve the conflict and allocate constitutional boundaries. (d) That judicial supremacy is but the power of judicial review in actual and appropriate cases and controversies, and is the power and duty to see that no one branch or agency of the government transcends the Constitution, which is the source of all authority. (e) That the Electoral Commission is an independent constitutional creation with specific powers and functions to execute and perform, closer for purposes of classification to the legislative than to any of the other two departments of the governments. (f ) That the Electoral Commission is the sole judge of all contests relating to the election, returns and qualifications of members of the National Assembly. (g) That under the organic law prevailing before the present Constitution went into effect, each house of the legislature was respectively the sole judge of the elections, returns, and qualifications of their elective members. (h) That the present Constitution has transferred all the powers previously exercised by the legislature with respect to contests relating to the elections, returns and qualifications of its members, to the Electoral Commission. (i) That such transfer of power from the legislature to the Electoral Commission was full, clear and complete, and carried with it ex necesitate rei the implied power inter alia to prescribe the rules and regulations as to the time and manner of filing protests. ( j) That the avowed purpose in creating the Electoral Commission was to have an independent constitutional organ pass upon all contests relating to the election, returns and

qualifications of members of the National Assembly, devoid of partisan influence or consideration, which object would be frustrated if the National Assembly were to retain the power to prescribe rules and regulations regarding the manner of conducting said contests. (k) That section 4 of article VI of the Constitution repealed not only section 18 of the Jones Law making each house of the Philippine Legislature respectively the sole judge of the elections, returns and qualifications of its elective members, but also section 478 of Act No. 3387 empowering each house to prescribe by resolution the time and manner of filing contests against the election of its members, the time and manner of notifying the adverse party, and bond or bonds, to be required, if any, and to fix the costs and expenses of contest. (l) That confirmation by the National Assembly of the election is contested or not, is not essential before such member-elect may discharge the duties and enjoy the privileges of a member of the National Assembly. (m) That confirmation by the National Assembly of the election of any member against whom no protest had been filed prior to said confirmation, does not and cannot deprive the Electoral Commission of its incidental power to prescribe the time within which protests against the election of any member of the National Assembly should be filed. We hold, therefore, that the Electoral Commission was acting within the legitimate exercise of its constitutional prerogative in assuming to take cognizance of the protest filed by the respondent Pedro Ynsua against the election of the herein petitioner Jose A. Angara, and that the resolution of the National Assembly of December 3, 1935 can not in any manner toll the time for filing protests against the elections, returns and qualifications of members of the National Assembly, nor prevent the filing of a protest within such time as the rules of the Electoral Commission might prescribe. In view of the conclusion reached by us relative to the character of the Electoral Commission as a constitutional creation and as to the scope and extent of its authority under the facts of the present controversy, we deem it

unnecessary to determine whether the Electoral Commission is an inferior tribunal, corporation, board or person within the purview of sections 226 and 516 of the Code of Civil Procedure. The petition for a writ of prohibition against the Electoral Commission is hereby denied, with costs against the petitioner. So ordered. Avancea, C. J., Diaz, Concepcion, and Horrilleno, JJ., concur.

Separate Opinions ABAD SANTOS, J., concurring: I concur in the result and in most of the views so ably expressed in the preceding opinion. I am, however, constrained to withhold my assent to certain conclusions therein advanced. The power vested in the Electoral Commission by the Constitution of judging of all contests relating to the election, returns, and qualifications of the members of the National Assembly, is judicial in nature. (Thomas vs. Loney, 134 U.S., 372; 33 Law. ed., 949, 951.) On the other hand, the power to regulate the time in which notice of a contested election may be given, is legislative in character. (M'Elmoyle vs. Cohen, 13 Pet., 312; 10 Law. ed., 177; Missouri vs. Illinois, 200 U. S. 496; 50 Law. ed., 572.) It has been correctly stated that the government established by the Constitution follows fundamentally the theory of the separation of powers into legislative, executive, and judicial. Legislative power is vested in the National Assembly. (Article VI, sec. 1.) In the absence of any clear constitutional provision to the contrary, the power to regulate the time in which notice of a contested election may be given, must be deemed to be included in the grant of legislative power to the National Assembly. The Constitution of the United States contains a provision similar to the that found in Article VI, section 4, of the Constitution of the Philippines. Article I, section 5, of the Constitution of the United States provides that each house of the Congress shall be the judge of the elections, returns, and qualifications of its own members. Notwithstanding this provision, the Congress has assumed the power to regulate the time in which notice of a

contested election may be given. Thus section 201, Title 2, of the United States Code Annotated prescribes: Whenever any person intends to contest an election of any Member of the House of Representatives of the United States, he shall, within thirty days after the result of such election shall have been determined by the officer or board of canvassers authorized by law to determine the same, give notice, in writing, to the Member whose seat he designs to contest, of his intention to contest the same, and, in such notice, shall specify particularly the grounds upon which he relies in the contest. (R. S., par. 105.) The Philippine Autonomy Act, otherwise known as the Jones Law, also contained a provision to the effect that the Senate and House of Representatives, respectively, shall be the sole judges of the elections, returns, and qualifications of their elective members. Notwithstanding this provision, the Philippine Legislature passed the Election Law, section 478 of which reads as follows: The Senate and the House of Representatives shall by resolution respectively prescribe the time and manner of filing contest in the election of members of said bodies, the time and manner of notifying the adverse party, and bond or bonds, to be required, if any, and shall fix the costs and expenses of contest which may be paid from their respective funds. The purpose sought to be attained by the creation of the Electoral Commission was not to erect a body that would be above the law, but to raise legislative elections contests from the category of political to that of justiciable questions. The purpose was not to place the commission beyond the reach of the law, but to insure the determination of such contests with the due process of law. Section 478 of the Election Law was in force at the time of the adoption of the Constitution, Article XV, section 2, of which provides that All laws of the Philippine Islands shall continue in force until the inauguration of the Commonwealth of the Philippines; thereafter, such laws shall remain operative, unless inconsistent with this Constitution, until amended, altered,

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

Having been filed within the time fixed by its resolutions, the Electoral Commission has jurisdiction to hear and determine the contest filed by the respondent Pedro Ynsua against the petitioner Jose A. Angara.

G.R. No. 76633 October 18, 1988 EASTERN SHIPPING LINES, INC., petitioner, vs. PHILIPPINE OVERSEAS EMPLOYMENT ADMINISTRATION (POEA), MINISTER OF LABOR AND EMPLOYMENT, HEARING OFFICER ABDUL BASAR and KATHLEEN D. SACO, respondents. Jimenea, Dala & Zaragoza Law Office for petitioner. The Solicitor General for public respondent. Dizon Law Office for respondent Kathleen D. Saco. CRUZ, J.: The private respondent in this case was awarded the sum of P192,000.00 by the Philippine Overseas Employment Administration (POEA) for the death of her husband. The decision is challenged by the petitioner on the principal ground that the POEA had no jurisdiction over the case as the husband was not an overseas worker. Vitaliano Saco was Chief Officer of the M/V Eastern Polaris when he was killed in an accident in Tokyo, Japan, March 15, 1985. His widow sued for damages under Executive Order No. 797 and Memorandum Circular No. 2 of the POEA. The petitioner, as owner of the vessel, argued that the complaint was cognizable not by the POEA but by the Social Security System and should have been filed against the State Insurance Fund. The POEA nevertheless assumed jurisdiction and after considering the position papers of the parties ruled in favor of the complainant. The award consisted of P180,000.00 as death benefits and P12,000.00 for burial expenses. The petitioner immediately came to this Court, prompting the Solicitor General to move for dismissal on the ground of non-exhaustion of administrative remedies.

Ordinarily, the decisions of the POEA should first be appealed to the National Labor Relations Commission, on the theory inter alia that the agency should be given an opportunity to correct the errors, if any, of its subordinates. This case comes under one of the exceptions, however, as the questions the petitioner is raising are essentially questions of law. 1 Moreover, the private respondent himself has not objected to the petitioner's direct resort to this Court, observing that the usual procedure would delay the disposition of the case to her prejudice. The Philippine Overseas Employment Administration was created under Executive Order No. 797, promulgated on May 1, 1982, to promote and monitor the overseas employment of Filipinos and to protect their rights. It replaced the National Seamen Board created earlier under Article 20 of the Labor Code in 1974. Under Section 4(a) of the said executive order, the POEA is vested with "original and exclusive jurisdiction over all cases, including money claims, involving employee-employer relations arising out of or by virtue of any law or contract involving Filipino contract workers, including seamen." These cases, according to the 1985 Rules and Regulations on Overseas Employment issued by the POEA, include "claims for death, disability and other benefits" arising out of such employment. 2 The petitioner does not contend that Saco was not its employee or that the claim of his widow is not compensable. What it does urge is that he was not an overseas worker but a 'domestic employee and consequently his widow's claim should have been filed with Social Security System, subject to appeal to the Employees Compensation Commission. We see no reason to disturb the factual finding of the POEA that Vitaliano Saco was an overseas employee of the petitioner at the time he met with the fatal accident in Japan in 1985. Under the 1985 Rules and Regulations on Overseas Employment, overseas employment is defined as "employment of a worker outside the Philippines, including employment on board vessels plying international waters, covered by a valid contract. 3 A contract worker is described as "any person working or who has worked overseas under a valid employment contract and shall include seamen" 4 or "any person working overseas or who has been employed by another which may be a local employer, foreign employer, principal or partner under a valid employment

contract and shall include seamen." 5 These definitions clearly apply to Vitaliano Saco for it is not disputed that he died while under a contract of employment with the petitioner and alongside the petitioner's vessel, the M/V Eastern Polaris, while berthed in a foreign country. 6 It is worth observing that the petitioner performed at least two acts which constitute implied or tacit recognition of the nature of Saco's employment at the time of his death in 1985. The first is its submission of its shipping articles to the POEA for processing, formalization and approval in the exercise of its regulatory power over overseas employment under Executive Order NO. 797. 7 The second is its payment 8 of the contributions mandated by law and regulations to the Welfare Fund for Overseas Workers, which was created by P.D. No. 1694 "for the purpose of providing social and welfare services to Filipino overseas workers." Significantly, the office administering this fund, in the receipt it prepared for the private respondent's signature, described the subject of the burial benefits as "overseas contract worker Vitaliano Saco." 9 While this receipt is certainly not controlling, it does indicate, in the light of the petitioner's own previous acts, that the petitioner and the Fund to which it had made contributions considered Saco to be an overseas employee. The petitioner argues that the deceased employee should be likened to the employees of the Philippine Air Lines who, although working abroad in its international flights, are not considered overseas workers. If this be so, the petitioner should not have found it necessary to submit its shipping articles to the POEA for processing, formalization and approval or to contribute to the Welfare Fund which is available only to overseas workers. Moreover, the analogy is hardly appropriate as the employees of the PAL cannot under the definitions given be considered seamen nor are their appointments coursed through the POEA. The award of P180,000.00 for death benefits and P12,000.00 for burial expenses was made by the POEA pursuant to its Memorandum Circular No. 2, which became effective on February 1, 1984. This circular prescribed a standard contract to be adopted by both foreign and domestic shipping companies in the hiring of Filipino seamen for overseas employment. A similar contract had earlier been required by the National Seamen Board and had been sustained in a number of cases by this Court. 10 The petitioner claims that it had never entered into such a contract with

the deceased Saco, but that is hardly a serious argument. In the first place, it should have done so as required by the circular, which specifically declared that "all parties to the employment of any Filipino seamen on board any ocean-going vessel are advised to adopt and use this employment contract effective 01 February 1984 and to desist from using any other format of employment contract effective that date." In the second place, even if it had not done so, the provisions of the said circular are nevertheless deemed written into the contract with Saco as a postulate of the police power of the State. 11 But the petitioner questions the validity of Memorandum Circular No. 2 itself as violative of the principle of non-delegation of legislative power. It contends that no authority had been given the POEA to promulgate the said regulation; and even with such authorization, the regulation represents an exercise of legislative discretion which, under the principle, is not subject to delegation. The authority to issue the said regulation is clearly provided in Section 4(a) of Executive Order No. 797, reading as follows: ... The governing Board of the Administration (POEA), as hereunder provided shall promulgate the necessary rules and regulations to govern the exercise of the adjudicatory functions of the Administration (POEA). Similar authorization had been granted the National Seamen Board, which, as earlier observed, had itself prescribed a standard shipping contract substantially the same as the format adopted by the POEA. The second challenge is more serious as it is true that legislative discretion as to the substantive contents of the law cannot be delegated. What can be delegated is the discretion to determine how the law may be enforced, not what the law shall be. The ascertainment of the latter subject is a prerogative of the legislature. This prerogative cannot be abdicated or surrendered by the legislature to the delegate. Thus, in Ynot v. Intermediate Apellate Court 12 which annulled Executive Order No. 626, this Court held: We also mark, on top of all this, the questionable manner of the disposition of the confiscated property as prescribed in the questioned executive order. It is there authorized that the

seized property shall be distributed to charitable institutions and other similar institutions as the Chairman of the National Meat Inspection Commission may see fit, in the case of carabaos.' (Italics supplied.) The phrase "may see fit" is an extremely generous and dangerous condition, if condition it is. It is laden with perilous opportunities for partiality and abuse, and even corruption. One searches in vain for the usual standard and the reasonable guidelines, or better still, the limitations that the officers must observe when they make their distribution. There is none. Their options are apparently boundless. Who shall be the fortunate beneficiaries of their generosity and by what criteria shall they be chosen? Only the officers named can supply the answer, they and they alone may choose the grantee as they see fit, and in their own exclusive discretion. Definitely, there is here a 'roving commission a wide and sweeping authority that is not canalized within banks that keep it from overflowing,' in short a clearly profligate and therefore invalid delegation of legislative powers. There are two accepted tests to determine whether or not there is a valid delegation of legislative power, viz, the completeness test and the sufficient standard test. Under the first test, the law must be complete in all its terms and conditions when it leaves the legislature such that when it reaches the delegate the only thing he will have to do is enforce it. 13 Under the sufficient standard test, there must be adequate guidelines or stations in the law to map out the boundaries of the delegate's authority and prevent the delegation from running riot. 14 Both tests are intended to prevent a total transference of legislative authority to the delegate, who is not allowed to step into the shoes of the legislature and exercise a power essentially legislative. The principle of non-delegation of powers is applicable to all the three major powers of the Government but is especially important in the case of the legislative power because of the many instances when its delegation is permitted. The occasions are rare when executive or judicial powers have to be delegated by the authorities to which they legally certain. In the case of the legislative power, however, such occasions have become more and more frequent, if not necessary. This had led to the observation that the

delegation of legislative power has become the rule and its non-delegation the exception. The reason is the increasing complexity of the task of government and the growing inability of the legislature to cope directly with the myriad problems demanding its attention. The growth of society has ramified its activities and created peculiar and sophisticated problems that the legislature cannot be expected reasonably to comprehend. Specialization even in legislation has become necessary. To many of the problems attendant upon presentday undertakings, the legislature may not have the competence to provide the required direct and efficacious, not to say, specific solutions. These solutions may, however, be expected from its delegates, who are supposed to be experts in the particular fields assigned to them. The reasons given above for the delegation of legislative powers in general are particularly applicable to administrative bodies. With the proliferation of specialized activities and their attendant peculiar problems, the national legislature has found it more and more necessary to entrust to administrative agencies the authority to issue rules to carry out the general provisions of the statute. This is called the "power of subordinate legislation." With this power, administrative bodies may implement the broad policies laid down in a statute by "filling in' the details which the Congress may not have the opportunity or competence to provide. This is effected by their promulgation of what are known as supplementary regulations, such as the implementing rules issued by the Department of Labor on the new Labor Code. These regulations have the force and effect of law. Memorandum Circular No. 2 is one such administrative regulation. The model contract prescribed thereby has been applied in a significant number of the cases without challenge by the employer. The power of the POEA (and before it the National Seamen Board) in requiring the model contract is not unlimited as there is a sufficient standard guiding the delegate in the exercise of the said authority. That standard is discoverable in the executive order itself which, in creating the Philippine Overseas Employment Administration, mandated it to protect the rights of overseas Filipino workers to "fair and equitable employment practices."

Parenthetically, it is recalled that this Court has accepted as sufficient standards "Public interest" in People v. Rosenthal 15 "justice and equity" in Antamok Gold Fields v. CIR 16 "public convenience and welfare" in Calalang v. Williams 17 and "simplicity, economy and efficiency" in Cervantes v. Auditor General, 18 to mention only a few cases. In the United States, the "sense and experience of men" was accepted in Mutual Film Corp. v. Industrial Commission, 19 and "national security" in Hirabayashi v. United States. 20 It is not denied that the private respondent has been receiving a monthly death benefit pension of P514.42 since March 1985 and that she was also paid a P1,000.00 funeral benefit by the Social Security System. In addition, as already observed, she also received a P5,000.00 burial gratuity from the Welfare Fund for Overseas Workers. These payments will not preclude allowance of the private respondent's claim against the petitioner because it is specifically reserved in the standard contract of employment for Filipino seamen under Memorandum Circular No. 2, Series of 1984, that Section C. Compensation and Benefits. 1. In case of death of the seamen during the term of his Contract, the employer shall pay his beneficiaries the amount of: a. P220,000.00 for master and chief engineers b. P180,000.00 for other officers, including radio operators and master electrician c. P 130,000.00 for ratings. 2. It is understood and agreed that the benefits mentioned above shall be separate and distinct from, and will be in addition to whatever benefits which the seaman is entitled to under Philippine laws. ... 3. ... c. If the remains of the seaman is buried in the Philippines, the owners shall pay the beneficiaries

of the seaman an amount not exceeding P18,000.00 for burial expenses. The underscored portion is merely a reiteration of Memorandum Circular No. 22, issued by the National Seamen Board on July 12,1976, providing an follows: Income Benefits under this Rule Shall be Considered Additional Benefits. All compensation benefits under Title II, Book Four of the Labor Code of the Philippines (Employees Compensation and State Insurance Fund) shall be granted, in addition to whatever benefits, gratuities or allowances that the seaman or his beneficiaries may be entitled to under the employment contract approved by the NSB. If applicable, all benefits under the Social Security Law and the Philippine Medicare Law shall be enjoyed by the seaman or his beneficiaries in accordance with such laws. The above provisions are manifestations of the concern of the State for the working class, consistently with the social justice policy and the specific provisions in the Constitution for the protection of the working class and the promotion of its interest. One last challenge of the petitioner must be dealt with to close t case. Its argument that it has been denied due process because the same POEA that issued Memorandum Circular No. 2 has also sustained and applied it is an uninformed criticism of administrative law itself. Administrative agencies are vested with two basic powers, the quasi-legislative and the quasi-judicial. The first enables them to promulgate implementing rules and regulations, and the second enables them to interpret and apply such regulations. Examples abound: the Bureau of Internal Revenue adjudicates on its own revenue regulations, the Central Bank on its own circulars, the Securities and Exchange Commission on its own rules, as so too do the Philippine Patent Office and the Videogram Regulatory Board and the Civil Aeronautics Administration and the Department of Natural Resources and so on ad infinitum on their respective administrative regulations. Such an arrangement has been accepted as a fact of life of modern governments and cannot be considered violative of due process as long as the cardinal

rights laid down by Justice Laurel in the landmark case of Ang Tibay v. Court of Industrial Relations 21 are observed. Whatever doubts may still remain regarding the rights of the parties in this case are resolved in favor of the private respondent, in line with the express mandate of the Labor Code and the principle that those with less in life should have more in law. When the conflicting interests of labor and capital are weighed on the scales of social justice, the heavier influence of the latter must be counterbalanced by the sympathy and compassion the law must accord the underprivileged worker. This is only fair if he is to be given the opportunity and the right to assert and defend his cause not as a subordinate but as a peer of management, with which he can negotiate on even plane. Labor is not a mere employee of capital but its active and equal partner. WHEREFORE, the petition is DISMISSED, with costs against the petitioner. The temporary restraining order dated December 10, 1986 is hereby LIFTED. It is so ordered. Narvasa, Gancayco, Grio-Aquino and Medialdea, JJ., concur. 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 counterprotest 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 GOVERNMENTPARLIAMENTARY 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, abovequoted, 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. Castaeda, 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. Castaeda, supra); and We rationalized that "the Constitutional Convention could not have intended, as in fact it .did not intend, to shielf or protect those who had been unduly elected. To hold that the right of the herein private respondents to the respective offices which they are now holding, may no longer be subject to question, would be tantamount to giving a stamp of approval to what could have been an election victory characterized by fraud, threats, intimidation, vote buying, or other forms of irregularities prohibited by the Election Code to preserve inviolate the sanctity of the ballot." (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" (Taada vs. Cuenco, L-1052, Feb. 28, 1957). A broader definition was advanced by U.S. Supreme Court Justice Brennan in Baker vs. Carr (369 U.S. 186 [1962]): "Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for non-judicial discretion; or the impossibility of a court's undertaking independent resolution without expressing lack of respect due coordinate branches of the government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question" (p. 217). And Chief Justice Enrique M. Fernando, then an Associate Justice, of this Court fixed the limits of the term, thus: "The term has been made applicable to controversies clearly 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. 632633 [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 MelencioHerrera, JJ,, concur. G.R. No. L-10520 February 28, 1957 LORENZO M. TAADA and DIOSDADO MACAPAGAL, petitioners, vs. MARIANO JESUS CUENCO, FRANCISCO A. DELGADO, ALFREDO CRUZ, CATALINA CAYETANO, MANUEL SERAPIO, PLACIDO REYES, and FERNANDO HIPOLITO in his capacity as cashier and disbursing officer, respondents. Taada, Teehankee and Macapagal for petitioners. Office of the Solicitor General Ambrosio Padilla and Solicitor Troadio T. Quiazon, Jr. for respondents. CONCEPCION, J.: Petitioner Lorenzo M. Taada is a member of the Senate of the Philippines, and President of the Citizens Party, whereas petitioner Diosdado Macapagal, a member of the House of Representatives of the Philippines, was one of the official candidates of the Liberal Party for the Senate, at the General elections held in November, 1955, in which Pacita Madrigal Warns, Lorenzo Sumulong, Quintin Paredes, Francisco Rodrigo, Pedro Sabido, Claro M. Recto, Domocao Alonto and Decoroso Rosales, were proclaimed elected. Subsequently, the elections of this Senators-elect-who eventually assumed their respective seats in the Senate-was contested by petitioner Macapagal, together with Camilo Osias, Geronima Pecson, Macario Peralta, Enrique Magalona, Pio Pedrosa and William Chiongbianwho had, also, run for the Senate, in said election-in Senate Electoral Case No. 4, now pending before the Senate Electoral Tribunal. . The Senate, in its session of February 22, 1956, upon nomination of Senator Cipriano Primicias, on behalf of the Nacionalista Party, chose Senators Jose P. Laurel, Fernando Lopez and Cipriano Primicias, as members of the Senate Electoral Tribunal. Upon nomination of petitioner Senator Taada, on behalf of the Citizens Party, said petitioner was next chosen by the Senate as member of said Tribunal. Then, upon nomination of Senator Primicias on behalf of the Committee on Rules of the Senate, and over the objections of Senators Taada and Sumulong, the Senate choose respondents Senators Mariano J. Cuenco and Francisco A.

Delgado as members of the same Electoral Tribunal. Subsequently, the Chairman of the latter appointed: (1) Alfredo Cruz and Catalina Cayetano, as technical assistant and private secretary, respectively, to Senator Cuenco, as supposed member of the Senate Electoral Tribunal, upon his recommendation of said respondent; and (2) Manuel Serapio and Placido Reyes, as technical assistant and private secretary, respectively to Senator Delgado, as supposed member of said Electoral Tribunal, and upon his recommendation. Soon, thereafter, Senator Lorenzo M. Taada and Congressman Diosdado Macapagal instituted the case at bar against Senators Cuenco and Delgado, and said Alfredo Cruz, Catalina Cayetano, Manuel Serapio and Placido Reyes, as well as Fernando Hipolito, in his capacity as Cashier and Disbursing Officer of the Senate Electoral Tribunal. Petitioners allege that on February 22, 1956, as well as at present, the Senate consists of 23 Senators who belong to the Nacionalista Party, and one (1) Senatornamely, petitioner, Lorenzo M. Taada-belonging to the Citizens Party; that the Committee on Rules for the Senate, in nominating Senators Cuenco and Delgado, and the Senate, in choosing these respondents, as members of the Senate Electoral Tribunal, had "acted absolutely without power or color of authority and in clear violation .. of Article VI, Section 11 of the Constitution"; that "in assuming membership in the Senate Electoral Tribunal, by taking the corresponding oath of office therefor", said respondents had "acted absolutely without color of appointment or authority and are unlawfully, and in violation of the Constitution, usurping, intruding into and exercising the powers of members of the Senate Electoral Tribunal"; that, consequently, the appointments of respondents, Cruz, Cayetano, Serapio and Reyes, as technical assistants and private secretaries to Senators Cuenco and Delgado-who caused said appointments to be made-as members of the Senate Electoral Tribunal, are unlawful and void; and that Senators Cuenco and Delgado "are threatening and are about to take cognizance of Electoral Case No. 4 of the Senate Electoral Tribunal, as alleged members thereof, in nullification of the rights of petitioner Lorenzo M. Taada, both as a Senator belonging to the Citizens Party and as representative of the Citizens Party in the Senate Electoral Tribunal, and in deprivation of the constitutional rights of petitioner Diosdado Macapagal and his co-protestants to have their election protest tried and decided-by an Electoral Tribunal composed of not more than three (3) senators chosen by the Senate upon nomination of the party having the largest number of votes in the Senate and not more than the (3)

Senators upon nomination of the Party having the second largest number of votes therein, together, three (3) Justice of the Supreme Court to be designated by the Chief Justice, instead of by an Electoral Tribunal packed with five members belonging to the Nacionalista Party, which is the rival party of the Liberal Party, to which the Petitioner Diosdado Macapagal and his co-protestants in Electoral Case No. 4 belong, the said five (5) Nacionalista Senators having been nominated and chosen in the manner alleged.. hereinabove.". Petitioners pray that:. "1. Upon petitioners' filing of bond in such amount as may be determined by this Honorable Court, a writ of preliminary injunction be immediately issued directed to respondents Mariano J. Cuenco, Francisco A. Delgado, Alfredo Cruz, Catalina Cayetano, Manuel Serapio and Placido Reyes, restraining them from continuing to usurp, intrude into and/ or hold or exercise the said public offices respectively being occupied by them in the Senate Electoral Tribunal, and to respondent Fernando Hipolito restraining him from paying the salaries of respondent Alfredo Cruz, Catalina Cayetano, Manuel Serapio and Placido Reyes, pending this action. "2. After hearing, judgment be rendered ousting respondent Mariano J. Cuenco Francisco A. Delgado, Alfredo Cruz, Catalina Cayetano, Manuel Serapio and Placido Reyes from the aforementioned public offices in the Senate Electoral Tribunal and that they be altogether excluded therefrom and making the Preliminary injunction permanent, with costs against the respondents.". Respondents have admitted the main allegations of fact in the petition, except insofar as it questions the legality, and validity of the election of respondents Senators Cuenco and Delgado, as members of the Senate Electoral Tribunal, and of the appointment of respondent Alfredo Cruz, Catalina Cayetano, Manuel Serapio and Placido Reyes as technical assistants and private secretaries to said respondents Senators. Respondents, likewise, allege, by way of special and affirmative defenses, that: (a) this Court is without power, authority of jurisdiction to direct or control the action of the Senate in choosing the members of the Electoral Tribunal; and (b) that the petition states no cause of action, because "petitioner Taada has exhausted his right to nominate after he nominated himself and refused to nominate two (2) more Senators", because said

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

official or the legislative." (Judicial Self-Limitation by Finkelstein, pp. 221, 224, 244, Harvard Law Review, Vol. 39; emphasis supplied,). The case of Suanes vs. Chief Accountant (supra) cited by respondent refutes their own pretense. This Court exercised its jurisdiction over said case and decided the same on the merits thereof, despite the fact that it involved an inquiry into the powers of the Senate and its President over the Senate Electoral Tribunal and the personnel thereof. . Again, under the Constitution, "the legislative power" is vested exclusively in the Congress of the Philippines. Yet, this does not detract from the power of the courts to pass upon the constitutionality of acts of Congress 1 And, since judicial power includes the authority to inquire into the legality of statutes enacted by the two Houses of Congress, and approved by the Executive, there can be no reason why the validity of an act of one of said Houses, like that of any other branch of the Government, may not be determined in the proper actions. Thus, in the exercise of the so-called "judicial supremacy", this Court declared that a resolution of the defunct National Assembly could not bar the exercise of the powers of the former Electoral Commission under the original Constitution. 2 (Angara vs. Electoral Commission, supra), and annulled certain acts of the Executive 3 as incompatible with the fundamental law. In fact, whenever the conflicting claims of the parties to a litigation cannot properly be settled without inquiring into the validity of an act of Congress or of either House thereof, the courts have, not only jurisdiction to pass upon said issue, but, also, the duty to do so, which cannot be evaded without violating the fundamental law and paving the way to its eventual destruction. 4. Neither are the cases of Mabanag vs. Lopez Vito (78 Phil., 1) and Cabili vs. Francisco (88 Phil., 654), likewise, invoked by respondents, in point. In the Mabanag case, it was held that the courts could not review the finding of the Senate to the effect that the members thereof who had been suspended by said House should not be considered in determining whether the votes cast therein, in favor of a resolution proposing an amendment to the Constitution, sufficed to satisfy the requirements of the latter, such question being a political one. The weight of this decision, as a precedent, has been weakened, however, by our resolutions in Avelino vs. Cuenco (83 Phil., 17), in which this Court proceeded to determine the number essential

to constitute a quorum in the Senate. Besides, the case at bar does not hinge on the number of votes needed for a particular act of said body. The issue before us is whether the Senate-after acknowledging that the Citizens Party is the party, having the second largest number of votes in the Senate, to which party the Constitution gives the right to nominate three (3) Senators for the Senate electoral Tribunal-could validly choose therefor two (2) Nacionalista Senators, upon nomination by the floor leader of the Nacionalista Party in the Senate, Senator Primicias claiming to act on behalf of the Committee on Rules for the Senate. The issue in the Cabili case was whether we could review a resolution of the Senate reorganizing its representation in the Commission on Appointments. This was decided in the negative, upon the authority of Alejandrino vs. Quezon (supra) and Vera vs. Avelino (supra), the main purpose of the petition being "to force upon the Senate the reinstatement of Senator Magalona in the Commission on Appointments," one-half (1/2) of the members of which is to be elected by each House on the basis of proportional representation of the political parties therein. Hence, the issue depended mainly on the determination of the political alignment of the members of the Senate at the time of said reorganization and of the necessity or advisability of effecting said reorganization, which is a political question. We are not called upon, in the case at bar, to pass upon an identical or similar question, it being conceded, impliedly, but clearly, that the Citizens Party is the party with the second largest number of votes in the Senate. The issue, therefore, is whether a right vested by the Constitution in the Citizens Party may validly be exercised, either by the Nacionalista Party, or by the Committee on Rules for the Senate, over the objection of said Citizens Party. xxxxxxxxx The only ground upon which respondents' objection to the jurisdiction of this Court and their theory to the effect that the proper remedy for petitioners herein is, not the present action, but an appeal to public opinion, could possibly be entertained is, therefore, whether the case at bar raises merely a political question, not one justiciable in nature. In this connection, respondents assert in their answer that "the remedy of petitioners is not in the judicial forum, but, to use petitioner, Taada's own words, to bring the matter to the bar of public opinion' (p. 81, Discussion on

the Creation of the Senate Electoral Tribunal, February 21, 1956)." This allegation may give the impression that said petitioner had declared, on the floor of the Senate, that his only relief against the acts complained of in the petition is to take up the issue before the people- which is not a fact. During the discussions in the Senate, in the course of the organization of the Senate Electoral Tribunal, on February 21, 1956, Senator Taada was asked what remedies he would suggest if he nominated two (2) Nacionialista Senators and the latter declined the, nomination. Senator Taada replied:. "There are two remedies that occur to my mind right now, Mr. Senator; one is the remedy open to all of us that if we feel aggrieved and there is no recourse in the court of justice, we can appeal to public opinion. Another remedy is an action in the Supreme Court. Of course, as Senator Rodriguez, our President here, has said one day; "If you take this matter to the Supreme Court, you will lose, because until now the Supreme Court has always ruled against any action that would constitute interference in the business of anybody pertaining to the Senate. The theory of separation of powers will be upheld by the Supreme Court." But that learned opinion of Senator Rodriguez, our President, notwithstanding, I may take the case to the Supreme Court if my right herein is not respected. I may lose, Mr. President, but who has not lost in the Supreme Court? I may lose because of the theory of the separation of powers, but that does not mean, Mr. President, that what has been done here is pursuant to the provision of the Constitution." (Congressional Record, Vol. III, p. 339; emphasis supplied.). This statement did not refer to the nomination, by Senator Primicias, and the election, by the Senate, of Senators Cuenco and Delgado as members of said Tribunal. Indeed, said nomination and election took place the day after the aforementioned statement of Senator Taada was made. At any rate, the latter announced that he might "take the case to the Supreme Court if my right here is not respected.". As already adverted to, the objection to our jurisdiction hinges on the question whether the issue before us is political or not. In this connection, Willoughby lucidly states:. "Elsewhere in this treatise the well-known and well-established principle is considered that it is not within the province of the courts to pass judgment upon the policy of legislative or executive action. Where, therefore,

discretionary powers are granted by the Constitution or by statute, the manner in which those powers are exercised is not subject to judicial review. The courts, therefore, concern themselves only with the question as to the existence and extent of these discretionary powers. "As distinguished from the judicial, the legislative and executive departments are spoken of as the political departments of government because in very many cases their action is necessarily dictated by considerations of public or political policy. These considerations of public or political policy of course will not permit the legislature to violate constitutional provisions, or the executive to exercise authority not granted him by the Constitution or by, statute, but, within these limits, they do permit the departments, separately or together, to recognize that a certain set of facts exists or that a given status exists, and these determinations, together with the consequences that flow therefrom, may not be traversed in the courts." (Willoughby on the Constitution of the United States, Vol. 3, p. 1326; emphasis supplied.). To the same effect is the language used in Corpus Juris Secundum, from which we quote:. "It is well-settled doctrine that political questions are not within the province of the judiciary, except to the extent that power to deal with such questions has been conferred upon the courts by express constitutional or statutory provisions. "It is not easy, however, to define the phrase `political question', nor to determine what matters, fall within its scope. It is frequently used to designate all questions that lie outside the scope of the judicial questions, which under the constitution, are to be decided by the people in their sovereign capacity, or in regard to which full discretionary authority has been delegated to the legislative or executive branch of the government." (16 C.J.S., 413; see, also Geauga Lake Improvement Ass'n. vs. Lozier, 182 N. E. 491, 125 Ohio St. 565; Sevilla vs, Elizalde, 112 F. 2d 29, 72 App. D. C., 108; emphasis supplied.). Thus, it has been repeatedly held that the question whether certain amendments to the Constitution are invalid for non-compliance with the procedure therein prescribed, is not a political one and may be settled by the Courts. 5 .

In the case of In re McConaughy (119 N.W. 408), the nature of political question was considered carefully. The Court said:. "At the threshold of the case we are met with the assertion that the questions involved are political, and not judicial. If this is correct, the court has no jurisdiction as the certificate of the state canvassing board would then be final, regardless of the actual vote upon the amendment. The question thus raised is a fundamental one; but it has been so often decided contrary to the view contended for by the Attorney General that it would seem to be finally settled. x x x x x x x x x. " .. What is generally meant, when it is, said that a question is political, and not judicial, is that it is a matter which, is to be exercised by the people in their primary political capacity, or that it has been specifically delegated to some other department or particular officer of the government, with discretionary power to act. See State vs. Cunningham, 81 Wis. 497, 51 L. R. A. 561; In Re Gunn, 50 Kan. 155; 32 Pac. 470, 948, 19 L. R. A. 519; Green vs. Mills, 69 Fed. 852, 16, C. C. A. 516, 30 L. R. A. 90; Fletcher vs. Tuttle, 151 Ill. 41, 37 N. E. 683, 25 L. R. A. 143, 42 Am. St. Rep. 220. Thus the Legislature may in its discretion determine whether it will pass a law or submit a proposed constitutional amendment to the people. The courts have no judicial control over such matters, not merely because they involve political question, but because they are matters which the people have by the Constitution delegated to the Legislature. The Governor may exercise the powers delegated to him, free from judicial control, so long as he observes the laws and acts within the limits of the power conferred. His discretionary acts cannot be controllable, not primarily because they are of a political nature, but because the Constitution and laws have placed the particular matter under his control. But every officer under a constitutional government must act according to law and subject him to the restraining and controlling power of the people, acting through the courts, as well as through the executive or the Legislature. One department is just as representative as the other, and the judiciary is the department which is charged with the special duty of determining the limitations which the law places upon all official action. The recognition of this principle, unknown except in Great Britain and America, is necessary, to the end that the government may be one of laws and not men'-words which Webster said

were the greatest contained in any written constitutional document." (pp. 411, 417; emphasis supplied.). In short, the term "political question" connotes, in legal parlance, what it means in ordinary parlance, namely, a question of policy. In other words, in the language of Corpus Juris Secundum (supra), it refers to "those questions which, under the Constitution, are to be decided by the people in their sovereign capacity, or in regard to which full discretionary authority has been delegated to the Legislature or executive branch of the Government." It is concerned with issues dependent upon the wisdom, not legality, of a particular measure. Such is not the nature of the question for determination in the present case. Here, we are called upon to decide whether the election of Senators Cuenco and Delgado, by the Senate, as members of the Senate Electoral Tribunal, upon nomination by Senator Primicias-a member and spokesman of the party having the largest number of votes in the Senate-on behalf of its Committee on Rules, contravenes the constitutional mandate that said members of the Senate Electoral Tribunal shall be chosen "upon nomination .. of the party having the second largest number of votes" in the Senate, and hence, is null and void. This is not a political question. The Senate is not clothed with "full discretionary authority" in the choice of members of the Senate Electoral Tribunal. The exercise of its power thereon is subject to constitutional limitations which are claimed to be mandatory in nature. It is clearly within the legitimate prove of the judicial department to pass upon the validity the proceedings in connection therewith. ".. whether an election of public officers has been in accordance with law is for the judiciary. Moreover, where the legislative department has by statute prescribed election procedure in a given situation, the judiciary may determine whether a particular election has been in conformity with such statute, and, particularly, whether such statute has been applied in a way to deny or transgress on the constitutional or statutory rights .." (16 C.J.S., 439; emphasis supplied.). It is, therefore, our opinion that we have, not only jurisdiction, but, also, the duty, to consider and determine the principal issue raised by the parties herein.

II. Is the election of Senators Cuenco and Delgado, by the Senate, as members of the Electoral Tribunal, valid and lawful?. Section 11 of Article VI of the Constitution, reads:. "The Senate and the House of Representatives shall each have an Electoral Tribunal which shall be the sole judge of all contests relating to the election, returns, and qualifications of their respective Members. Each Electoral Tribunal shall be composed of nine Members, three of whom shall be Justices of the Supreme Court to be designated by the Chief Justice, and the remaining six shall be Members of the Senate or of the House of Representatives, as the case may be, who shall be chosen by each House, three upon nomination of the party having the largest number of votes and three of the party having the second largest number of votes therein. The Senior Justice in each Electoral Tribunal shall be its Chairman." (Emphasis supplied.). It appears that on February 22, 1956, as well as at present, the Senate of the Philippines consists of twenty three (23) members of the Nacionalista Party and one (1) member of the Citizens Party, namely, Senator Taada, who is, also, the president of said party. In the session of the Senate held on February 21, 1956, Senator Sabido moved that Senator Taada, "the President of the Citizens Party, be given the privilege to nominate .. three (3) members" of the Senate Electoral Tribunal (Congressional Record for the Senate, Vol. III, pp. 328-329), referring to those who, according to the provision above-quoted, should be nominated by "the party having the second largest number of votes" in the Senate. Senator Taada objected formally to this motion upon the-ground: (a) that the right to nominate said members of the Senate Electoral Tribunal belongs, not to the Nacionalista Party of which Senator Sabido and the other Senators are members-but to the Citizens Party, as the one having the second largest number of votes in the Senate, so that, being devoid of authority to nominate the aforementioned members of said Tribunal, the Nacionalista Party cannot give it to the Citizens Party, which, already, has such authority, pursuant to the Constitution; and (b) that Senator Sabido's motion would compel Senator Taada to nominate three (3) Senators to said Tribunal, although as representative of the minority party in the Senate he has "the right to nominate one, two or three to the Electoral Tribunal," in his discretion. Senator Taada further stated that he reserved the right to determine how many he would nominate, after hearing the reasons of Senator Sabido in

support of his motion. After some discussion, in which Senators Primicias, Cea, Lim, Sumulong, Zulueta, and Rodrigo took part, the Senate adjourned until the next morning, February 22, 1956 (Do., do, pp. 329, 330, 332-333, 336, 338, 339, 343). Then, said issues were debated upon more extensively, with Senator Sumulong, not only seconding the opposition of Senator Taada, but, also, maintaining that "Senator Taada should nominate only one" member of the Senate, namely, himself, he being the only Senator who belongs to the minority party in said House (Do., do., pp. 360-364, 369). Thus, a new issue was raised - whether or not one who does not belong to said party may be nominated by its spokesman, Senator Taada - on which Senators Paredes, Pelaez, Rosales and Laurel, as well as the other Senators already mentioned, expressed their views (Do., do., pp. 345, 349, 350, 354, 358, 364, 375). Although the deliberations of the Senate consumed the whole morning and afternoon of February 22, 1956, a satisfactory solution of the question before the Senate appeared to be remote. So, at 7:40 p.m., the meeting was suspended, on motion of Senator Laurel, with a view to seeking a compromise formula (Do., do., pp. 377). When session was resumed at 8:10 p.m., Senator Sabido withdrew his motion above referred to. Thereupon, Senator Primicias, on behalf of the Nacionalista Party, nominated, and the Senate elected, Senators Laurel, Lopez and Primicias, as members of the Senate Electoral Tribunal. Subsequently, Senator Taada stated:. "On behalf of the Citizens Party, the minority party in this Body, I nominate the only Citizens Party member in this Body, and that is Senator Lorenzo M. Taada.". Without an objection, this nomination was approved by the House. Then, Senator Primicias stood up and said:. "Now, Mr. President, in order to comply with the provision in the Constitution, the Committee on Rules of the Senate-and I am now making this proposal not on behalf of the Nacionalista Party but on behalf of the Committee on Rules of the Senate-I nominate two other members to complete the membership of the Tribunal: Senators Delgado and Cuenco.". What took place thereafter appears in the following quotations from the Congressional Record for the Senate.

"SENATOR TAADA. Mr. President. "EL PRESIDENTE INTERINO. Caballero de Quezon. "SENATOR TAADA. I would like to record my opposition to the nominations of the last two named gentlemen, Senators Delgado and Cuenco, not because I don't believe that they do not deserve to be appointed to the tribunal but because of my sincere and firm conviction that these additional nominations are not sanctioned by the Constitution. The Constitution only permits the Nacionalista Party or the party having the largest number of votes to nominate three. "SENATOR SUMULONG. Mr. President. "EL PRESIDENTE INTERINO. Caballero de Rizal. "SENATOR SUMULONG. For the reasons that I have stated a few moments ago when I took the floor, I also wish to record my objection to the last nominations, to the nomination of two additional NP's to the Electoral Tribunal. "EL PRESIDENTE INTERINO. Esta dispuesto el Senado a votar? (Varios Senadores: Si.) Los que esten conformes con la nominacion hecha por el Presidente del Comite de Reglamentos a favor de los Senadores Delgado y Cuenco para ser miembros del Tribunal Electoral, digan, si. (Varios Senadores: Si.) Los que no lo esten digan, no (Silencio.) Queda aprobada." (Congressional Record for the Senate, Vol. III, p. 377; emphasis supplied.). Petitioners maintain that said nomination and election of Senators Cuenco and Delgado-who belong to the Nacionalista Party-as members of the Senate Electoral Tribunal, are null and void and have been made without power or color of authority, for, after the nomination by said party, and the election by the Senate, of Senators Laurel, Lopez and Primicias, as members of said Tribunal, the other Senators, who shall be members thereof, must necessarily be nominated by the party having the second largest number of votes in the Senate, and such party is, admittedly, the Citizens Party, to which Senator Taada belongs and which he represents. Respondents allege, however, that the constitutional mandate to the effect that "each Electoral Tribunal shall be compose of nine (9) members," six

(6) of whom "shall be members of the Senate or of the House of Representatives, as the case may be", is mandatory; that when-after the nomination of three (3) Senators by the majority party, and their election by the Senate, as members of the Senate Electoral Tribunal-Senator Taada nominated himself only, on behalf of the minority party, he thereby "waived his right to no two more Senators;" that, when Senator Primicias nominated Senators Cuenco and Delgado, and these respondents were chosen by the Senate, as members of the Senate Electoral Tribunal, Said Senator Primicias and the Senate merely complied with the aforementioned provision of the fundamental law, relative to the number of members of the Senate Electoral Tribunal; and, that, accordingly, Senators Cuenco and Delgado are de jure members of said body, and the appointment of their co-respondents, Alfredo Cruz, Catalina Cayetano, Manuel Serapio and Placido Reyes is valid and lawful. At the outset, it will be recalled that the proceedings the organization of the Senate Electoral Tribunal began with a motion of Senator Sabido to the effect that "the distinguished gentleman from Quezon, the President of the Citizens Party, be given the privilege to nominate the three Members" of said Tribunal. Senator Primicias inquired why the movant had used the word "privilege". Senator Sabido explained that the present composition of the Senate had created a condition or situation which was not anticipated by the framers of our Constitution; that although Senator Taada formed part of the Nacionalista Party before the end of 1955, he subsequently parted ways with" said party; and that Senator Taada "is the distinguished president of the Citizens Party," which "approximates the situation desired by the framers of the Constitution" (Congressional Record for the Senate Vol. III, pp. 329-330). Then Senator Lim intervened, stating:. "At present Senator Taada is considered as forming the only minority or the one that has the second largest number of votes in the existing Senate, is not that right? And if this is so, he should be given this as a matter of right, not as a matter of privilege. .. I don't believe that we should be allowed to grant this authority to Senator Taada only as a privilege but we must grant it as a matter of right." (Id., id., p. 32; emphasis supplied.). Similarly, Senator Sumulong maintained that "Senator Taada, as Citizens Party Senator, has the right and not a mere privilege to nominate," adding that:.

".. the question is whether we have a party here having the second largest number of votes, and it is clear in my mind that there is such a party, and that is the Citizens Party to which the gentleman from Quezon belongs. .. We have to bear in mind, .. that when Senator Taada was included in the Nacionalista Party ticket in 1953, it was by virtue of a coalition or an alliance between the Citizens Party and the Nacionalista Party at that time, and I maintain that when Senator Taada as head of the Citizens Party entered into a coalition with the Nacionalista Party, he did not thereby become a Nacionalista because that was a mere coalition, not a fusion. When the Citizens Party entered into a mere coalition, that party did not lose its personality as a party separate and distinct from the, Nacionalista Party. And we should also remember that the certificate of candidacy filed by Senator Taada in the 1953 election was one to the effect that he belonged to the Citizens Party .." (Id., id., p. 360; emphasis supplied.). The debate was closed by Senator Laurel, who remarked, referring to Senator Taada:. "..there is no doubt that he does not belong to the majority in the first place, and that, therefore, he belongs to the minority. And whether we like it or not, that is the reality of the actual situation-that he is not a Nacionalista now, that he is the head and the representative of the Citizens Party. I think that on equitable ground and from the point of view of public opinion, his situation .. approximates or approaches what is within the spirit of that Constitution. .. and from the point of view of the spirit of the Constitution it would be a good thing if we grant the opportunity to Senator Taada to help us in the organization of this Electoral Tribunal (Id., id., p. 376; emphasis supplied.). The foregoing statements and the fact that, thereafter, Senator Sabido withdrew his motion to grant Senator Taada the "privilege" to nominate, and said petitioner actually nominated himself "on behalf of the Citizens Party, the minority party in this Body"-not only without any, objection whatsoever, but, also, with the approval of the Senate-leave no room for doubt that the Senate-leave no room for doubt that the Senate has regarded the Citizens Party, represented by Senator Taada, as the party having the second largest number of votes in said House. Referring, now, to the contention of respondents herein, their main argument in support of the mandatory character of the constitutional

provision relative to the number of members of the Senate Electoral Tribunal is that the word "shall", therein used, is imperative in nature and that this is borne out by an opinion of the Secretary of Justice dated February 1, 1939, pertinent parts of which are quoted at the footnote. 6. Regardless of the respect due its author, as a distinguished citizen and public official, said opinion has little, if any, weight in the solution of the question before this Court, for the practical construction of a Constitution is of little, if any, unless it has been uniform .." 6a Again, "as a general rule, it is only in cases of substantial doubt and ambiguity that the doctrine of contemporaneous or practical construction has any application". As a consequence, "where the meaning of a constitutional provision is clear, a contemporaneous or practical executive interpretation thereof is entitled to no weight, and will not be allowed to distort or in any way change its natural meaning." The reason is that "the application of the doctrine of contemporaneous construction is more restricted as applied to the interpretation of constitutional provisions than when applied to statutory provisions", and that, "except as to matters committed by the Constitution, itself to the discretion of some other department, contemporary or practical construction is not necessarily binding upon the courts, even in a doubtful case." Hence, "if in the judgment of the court, such construction is erroneous and its further application is not made imperative by any paramount considerations of public policy, it may he rejected." (16 C. J. S., 71-72; emphasis supplied.) 6b. The aforemention opinion of the Secretary of Justice is not backed up by a, "uniform" application of the view therein adopted, so essential to give thereto the weight accorded by the rules on contemporaneous constructions. Moreover, said opinion tends to change the natural meaning of section 11 of Article VI of the Constitution, which is clear. What is more, there is not the slightest doubt in our mind that the purpose and spirit of said provisions do not warrant said change and that the rejection of the latter is demanded by paramount considerations of public policy. . The flaw in the position taken in said opinion and by respondent herein is that, while, it relies upon the compulsory nature of the word "shall", as regards the number of members of the Electoral Tribunals, it ignores the fact that the same term is used with respect to the method prescribed for their election, and that both form part of a single sentence and must be considered, therefore, as integral portions of one and the same thought.

Indeed, respondents have not even tried to show and we cannot conceivewhy "shall" must be deemed mandatory insofar as the number of members of each Electoral Tribunal, and should be considered directory as regards the procedure for their selection. More important still, the history of section 11 of Article VI of the Constitution and the records of the Convention, refute respondents' pretense, and back up the theory of petitioners herein. Commenting on the frame of mind of the delegates to the Constitutional Convention, when they faced the task of providing for the adjudication of contests relating to the election, returns and qualifications of members of the Legislative Department, Dr. Jose M. Aruego, a member of said Convention, says:. "The experience of the Filipino people under the provisions of the organic laws which left to the lawmaking body the determination of the elections, returns, and qualifications of its members was not altogether satisfactory. There were many complaints against the lack of political justice in this determination; for in a great number of cases, party interests controlled and dictated the decisions. The undue delay in the dispatch of election contests for legislative seats, the irregularities that characterized the proceedings in some of them, and the very apparent injection of partisanship in the determination of a great number of the cases were decried by a great number of the people as well as by the organs of public opinion. "The faith of the people in the uprightness of the lawmaking body in the performance of this function assigned to it in the organic laws was by no means great. In fact so blatant was the lack of political justice in the decisions that there was, gradually built up a camp of thought in the Philippines inclined to leave to the courts the determination of election contests, following the practice in some countries, like England and Canada. "Such were the conditions of things at the time of the meeting of the convention." (The Framing of the Philippine Constitution by Aruego, Vol. 1, pp. 257-258; emphasis supplied.). This view is shared by distinguished members of the Senate. Thus, in its session of February 22, 1956, Senator Sumulong declared:. ".. when you leave it to either House to decide election protests involving its own members, that is virtually placing the majority party in a position to

dictate the decision in those election cases, because each House will be composed of a majority and a minority, and when you make each House the judge of every election protest involving any member of that House, you place the majority in a position to dominate and dictate the decision in the case and result was, there were so many abuses, there were so main injustices: committed by the majority at the expense and to the prejudice of the minority protestants. Statements have been made here that justice was done even under the old system, like that case involving Senator Mabanag, when he almost became a victim of the majority when he had an election case, and it was only through the intervention of President Quezon that he was saved from becoming the victim of majority injustices. "It is true that justice had sometimes prevailed under the old system, but the record will show that those cases were few and they were the rare exceptions. The overwhelming majority of election protests decided under the old system was that the majority being then in a position to dictate the, decision in the election protest, was tempted to commit as it did commit many abuses and injustices." (Congressional Record for the Senate, Vol. 111, p. 361; emphasis supplied.). Senator Paredes, a veteran legislator and former Speaker of the House of Representatives, said:. ".. what was intended in the creation of the electoral tribunal was to create a sort of collegiate court composed of nine members: Three of them belonging to the party having the largest number of votes, and three from the party having the second largest number votes so that these members may represent the party, and the members of said party who will sit before the electoral tribunal as protestees. For when it comes to a party, Mr. President, there ground to believe that decisions will be made along party lines." (Congressional Record for the Senate, Vol. III, p. 351; emphasis supplied.). Senator Laurel, who played an important role in the framing of our Constitution, expressed himself as follows:. "Now, with reference to the protests or contests, relating to the election, the returns and the qualifications of the members of the legislative bodies, I heard it said here correctly that there was a time when that was given to the corresponding chamber of the legislative department. So the election,

returns and qualifications of the members, of the Congress or legislative body was entrusted to that body itself as the exclusive body to determine the election, returns and qualifications of its members. There was some doubt also expressed as to whether that should continue or not, and the greatest argument in favor of the retention of that provision was the fact that was, among other things, the system obtaining in the United States under the Federal Constitution of the United States, and there was no reason why that power or that right vested in the legislative body should not be retained. But it was thought that would make the determination of this contest, of this election protest, purely political as has been observed in the past." (Congressional Record for the Senate, Vol. III, p. 376; emphasis supplied.). It is interesting to note that not one of the members of the Senate contested the accuracy of the views thus expressed. Referring particularly to the philosophy underlying the constitutional provision quoted above, Dr. Aruego states:. "The defense of the Electoral Commission was based primarily upon the hope and belief that the abolition of Party line because of the equal representation in this body of the majority and the minority parties of the National Assembly and the intervention of some members of the Supreme Court who, under the proposed constitutional provision, would also be members of the same, would insure greater political justice in the determination of election contests for seats in the National Assembly than there would be if the power had been lodged in the lawmaking body itself. Delegate Francisco summarized the arguments for the creation of the Electoral Commission in the following words:. "I understand that from the time that this question is placed in the hands of members not only of the majority party but also of the minority party, there is already a condition, a factor which would make protests decided in a non-partisan manner. We know from experience that many times in the many protests tried in the House or in the Senate, it was impossible to prevent the factor of party from getting in. From the moment that it is required that not only the majority but also the minority should intervene in these questions, we have already enough guarantee that there would be no tyranny on the part of the majority.

`But there is another more detail which is the one which satisfies me most, and that is the intervention of three justices. So that with this intervention of three justices if there would be any question as to the justice applied by the majority or the minority, if there would be any fundamental disagreement, or if there would be nothing but questions purely of party in which the members of the majority as well as those of the minority should wish to take lightly a protest because the protestant belongs to one of said parties, we have in this case, as a check upon the two parties, the actuations of the three justices. In the last analysis, what is really applied in the determination of electoral cases brought before the tribunals of justice or before the House of Representatives or the Senate? Well, it is nothing more than the law and the doctrine of the Supreme Court. If that is the case, there will be greater skill in the application of the laws and in the application of doctrines to electoral matters having as we shall have three justices who will act impartially in these electoral questions. `I wish to call the attention of my distinguished colleagues to the fact that in electoral protests it is impossible to set aside party interests. Hence, the best guarantee, I repeat, for the administration of justice to the parties, for the fact that the laws will not be applied rightfully or incorrectly as well as for the fact that the doctrines of the Supreme Court will be applied rightfully, the best guarantee which we shall have, I repeat, is the intervention of the three justices. And with the formation of the Electoral Commission, I say again, the protestants as well as the protestees could remain tranquil in the certainty that they will receive the justice that they really deserve. If we eliminate from this precept the intervention of the party of the minority and that of the three justices, then we shall be placing protests exclusively in the hands of the party in power. And I understand, gentlemen, that in practice that has not given good results. Many have criticized, many have complained against, the tyranny of the majority in electoral cases .. I repeat that the best guarantee the fact that these questions will be judged not only by three members of the majority but also by three members of the minority, with the additional guarantee of the impartial judgment of three justices of the Supreme Court." (The Framing of the Philippine Constitution by Aruego, Vol. I, pp. 261-263; emphasis supplied.). The foregoing was corroborated by Senator Laurel. Speaking for this Court, in Angara vs. Electoral Commission (63 Phil., 139), he asserted:.

"The members of the Constitutional Convention who framed our fundamental law were in their majority-men mature in years and experience. To be sure, many of them were familiar with the history and political development of other countries of the world. When, therefore they deemed it wise to create an Electoral Commission as a constitutional organ and invested with the exclusive function of passing upon and determining the election, returns and qualifications of the members of the National Assembly, they must have done so not only in the light of their own experience but also having in view the experience of other enlightened peoples of the world. The creation of the Electoral Commission was designed to remedy certain evils of which the framers of our Constitution were cognizant. Notwithstanding the vigorous opposition of some members of the Convention to its creation, the plan, as hereinabove stated, was approved by that body by a vote of 98 against 58. All that can be said now is that, upon the approval of the Constitution, the creation of the Electoral Commission is the expression of the wisdom `ultimate justice of the people'. (Abraham Lincoln, First Inaugural Address, March 4, 1861.). "From the deliberations of our Constitutional Convention it is evident that the purpose was to transfer in its totality all the powers previously exercised by the legislature in matters pertaining to contested elections of its members, to an independent and impartial tribunal. It was not so much the knowledge and appreciation of contemporary constitutional precedents, however, as the long felt need of determining legislative contests devoid of partisan considerations which prompted the people acting through their delegates to the Convention, to provide for this body known as the Electoral Commission. With this end in view, a composite body in which both the majority and minority parties are equally represented to off-set partisan influence in its deliberations was created, and further endowed with judicial temper by including in its membership three justices of the Supreme Court," (Pp. 174-175.) 7. As a matter of fact, during the deliberations of the convention, Delegates Conejero and Roxas said:. "El Sr. CONEJERO. Antes de votarse la enmienda, quisiera pedir informacion del Subcomite de Siete. "El Sr. PRESIDENTE. Que dice el Comite?" El Sr. ROXAS. Con mucho gusto. "El Sr. CONEJERO. Tal como esta el draft., dando tres miembrosala

mayoria, y otros t?-es a la minyoryia y atros a la Corte Suprerma, no cree su Senoria que este equivale pricticamente a dejar el asunto a los miembros del Tribunal Supremo?. "El Sr. ROXAS. Si y no. Creemos que si el tribunal a la Comision esta cotistuido en esa forma, tanto los miembros de la mayoria como los de la minoria asi como los miembros de la Corte Saprema consideration la cuestion sobre la base de sus meritos, sabiendo que el partidismo no es suficiente para dar el triunbo. "El Sr. CONEJERO. Cree Su Senoria que en un caso como ese, podriamos hacer que tanto los de la mayoria como los de la minoria prescindieran del partidisrno?. "El Sr. ROXAS. Creo que si, porque el partidismo no les daria el triunfo." (Angara vs. Electoral Commission, supra, pp. 168-169; emphasis supplied.). It is clear from the foregoing that the main objective of the framers of our Constitution in providing for the establishment, first, of an Electoral Commission, 8 and then 9 of one Electoral Tribunal for each House of Congress, was to insure the exercise of judicial impartiality in the disposition of election contests affecting members of the lawmaking body. To achieve this purpose, two devices were resorted to, namely: (a) the party having the largest number of votes, and the party having the second largest number of votes, in the National Assembly or in each House of Congress, were given the same number of representatives in the Electoral Commission or Tribunal, so that they may realize that partisan considerations could not control the adjudication of said cases, and thus be induced to act with greater impartiality; and (b) the Supreme Court was given in said body the same number of representatives as each one of said political parties, so that the influence of the former may be decisive and endow said Commission or Tribunal with judicial temper. This is obvious from the very language of the constitutional provision under consideration. In fact, Senator Sabido-who had moved to grant to Senator Taada the privilege" to make the nominations on behalf of party having the second largest number of votes in the Senate-agrees with it. As Senator Sumulong inquired:.

"..I suppose Your Honor will agree with me that the framers of the Constitution precisely thought of creating this Electoral Tribunal so as to prevent the majority from ever having a preponderant majority in the Tribunal." (Congressional Record for the Senate, Vol. III, p. 330; emphasis supplied.). Senator Sabido replied:. "That is so, .." (Id., p. 330.). Upon further interpretation, Senator Sabido said:. ".. the purpose of the creation of the Electoral Tribunal and of its composition is to maintain a balance between the two parties and make the members of the Supreme Court the controlling power so to speak of the Electoral Tribunal or hold the balance of power. That is the ideal situation." (Congressional Record for the Senate, Vol. III, p. 349; emphasis supplied.). Senator Sumulong opined along the same line. His words were: . "..The intention is that when the three from the majority and the three from the minority become members of the Tribunal it is hoped that they will become aware of their judicial functions, not to protect the protestants or the protegees. It is hoped that they will act as judges because to decide election cases is a judicial function. But the framers of, the Constitution besides being learned were men of experience. They knew that even Senators like us are not angels, that we are human beings, that if we should be chosen to go to the Electoral Tribunal no one can say that we will entirely be free from partisan influence to favor our party, so that in, case that hope that the three from the majority and the three from the minority who will act as Judges should result in disappointment, in case they do not act as judges but they go there and vote along party liner, still there is the guarantee that they will offset each other and the result will be that the deciding vote will reside in the hands of the three Justices who have no partisan motives to favor either the protestees or the protestants. In other words, the whole idea is to prevent the majority from controlling and dictating the decisions of the Tribunal and to make sure that the decisive vote will be wielded by the Congressmen or Senators who are members the Tribunal but will be wielded by the Justices who, by virtue of their judicial offices, will have no partisan motives to serve, either protestants, or

protestees. That is my understanding of the intention of the framers of the Constitution when they decided to create the Electoral Tribunal. x x x x x x x x x. "My idea is that the intention of the framers of the constitution in creating the Electoral Tribunal is to insure impartially and independence in its decision, and that is sought to be done by never allowing the majority party to control the Tribunal, and secondly by seeing to it that the decisive vote in the Tribunal will be left in the hands of persons who have no partisan interest or motive to favor either protestant or protestee." (Congressional Record for the Senate, Vol. III, pp. 362-363, 365-366; emphasis supplied.). So important in the "balance of powers" between the two political parties in the Electoral Tribunals, that several members of the Senate questioned the right of the party having the second largest number of votes in the Senate and, hence, of Senator Taada, as representative of the Citizens Party-to nominate for the Senate Electoral Tribunal any Senator not belonging to said party. Senators Lim, Sabido, Cea and Paredes maintained that the spirit of the Constitution would be violated if the nominees to the Electoral Tribunals did not belong to the parties respectively making the nominations. 10. It is not necessary, for the purpose of this decision, to determine whether the parties having the largest, and the second largest, number of votes in each House may nominate, to the Electoral Tribunals, those members of Congress who do not belong to the party nominating them. It is patent, however, that the most vital feature of the Electoral Tribunals is the equal representation of said parties therein, and the resulting equilibrium to be maintained by the Justices of the Supreme Court as members of said Tribunals. In the words of the members of the present Senate, said feature reflects the "intent" "purpose", and "spirit of the Constitution", pursuant to which the Senate Electoral Tribunal should be organized (Congressional Record for the Senate, pp. 330, 337, 348-9, 350, 351, 355, 358, 362-3, 364, 370, 376). Now then, it is well settled that "the purpose of all rules or maxims as to the construction or interpretation of statutes is to discover the true intention of the law" (82 C. J. S., 526) and that.

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

a provision relating to the essence of the thing to be done, that is, to matters of substance, is mandatory, and when a fair interpretation of a statute, which directs acts or proceedings to be done in a certain way shows that the legislature intended a compliance with such provision to be essential to the validity of the act or proceeding, or when same antecedent and pre-requisite conditions must exist prior to the exercise of power, or must be performed before certain other powers can be exercise, the statute must be regarded as mandatory. (Id., pp. 869-874.) (See also, Words and Phrases, Vol. 26, pp. 463-467; emphasis supplied.). What has been said above, relative to the conditions antecedent to, and concomitant with, the adoption of section 11 of Article VI of the Constitution, reveals clearly that its framers intended to prevent the majority party from controlling the Electoral Tribunals, and that the structure thereof is founded upon the equilibrium between the majority and the minority parties therein, with the Justices of the Supreme Court, who are members of said Tribunals, holding the resulting balance of power. The procedure prescribed in said provision for the selection of members of the Electoral Tribunals is vital to the role they are called upon to play. it constitutes the essence of said Tribunals. Hence, compliance with said procedure is mandatory, and acts performed in violation thereof are null and void. 11. It is true that the application of the foregoing criterion would limit the membership of the Senate Electoral Tribunal, in the case at bar, to seven (7), instead of nine (9), members; but, it is conceded that the present composition of the Senate was not foreseen by the framers of our Constitution (Congressional Record for the Senate, Vol. III, pp. 329, 342, 349, 354, 359, 375). Furthermore, the spirit of the law prevails over its letter, and the solution herein adopted maintains the spirit of the Constitution, for partisan considerations can not be decisive in a tribunal consisting of three (3) Justices of the Supreme Court, three (3) members nominated by the majority party and either one (1) or two (2) members nominated by the party having the second largest number of votes in the House concerned. Upon the other hand, what would be the result of respondents' contention if upheld? Owing to the fact that the Citizens Party 12 has only one member in the Upper House, Senator Taada felt he should nominate, for the Senate Electoral Tribunal, only said member of the Citizens Party. The same is, thus, numerically handicapped, vis-a-vis the majority party, in said

Tribunal. Obviously, Senator Taada did not nominate other two Senators, because, otherwise, he would worsen the already disadvantageous position, therein, of the Citizens Party. Indeed, by the aforementioned nomination and election of Senators Cuenco and Delgado, if the same were sanctioned, the Nacionalista Party would have five (5) members in the Senate Electoral Tribunal, as against one (1) member of the Citizens Party and three members of the Supreme Court. With the absolute majority thereby attained by the majority party in said Tribunal, the philosophy underlying the same would be entirely upset. The equilibrium between the political parties therein would be destroyed. What is worst, the decisive moderating role of the Justices of the Supreme Court would be wiped out, and, in lieu thereof, the door would be thrown wide open for the predominance of political considerations in the determination of election protests pending before said Tribunal, which is precisely what the fathers of our Constitution earnestly strove to forestall. 13. This does not imply that the honesty, integrity or impartiality of Senators Cuenco and Delgado are being questioned. As a matter of fact, when Senator Taada objected to their nomination, he explicitly made of record that his opposition was based, not upon their character, but upon the principle involved. When the election of members of Congress to the Electoral Tribunal is made dependent upon the nomination of the political parties above referred to, the Constitution thereby indicates its reliance upon the method of selection thus established, regardless of the individual qualities of those chosen therefor. Considering the wealth of experience of the delegatesto the Convention, as lawyers of great note, as veteran politicians and as leaders in other fields of endeavor, they could not, and did not, ignore the fact that the Constitution must limit itself to giving general patterns or norms of action. In connection, particularly, with the composition of the Electoral Tribunals, they believed that, even the most well meaning individuals often find it difficult to shake off the bias and prejudice created by political antagonisms and to resist the demands of political exigencies, the pressure of which is bound to increase in proportion to the degree of predominance of the party from which it comes. As above stated, this was confirmed by distinguished members of the present Senate. (See pp. 25-28, 33, 34, supra.). In connection with the argument of the former Secretary of Justice to the effect that when "there is no minority party represented in the Assembly,

the necessity for such a check by the minority disappears", the following observations of the petitioners herein are worthy of notice:. " Under the interpretation espoused by the respondents, the very frauds or terrorism committed by a party would establish the legal basis for the final destruction of minority parties in the Congress at least. Let us suppose, for example, that in the Senate, the 15 or 16 senators with unexpired terms belong to the party A. In the senatorial elections to fill the remaining 8 seats, all the 8 candidates of party A are proclaimed elected through alleged fraud and/or terrorism. (The ouster of not less than 3 senators-elect in the elections held since liberation attests to the reality of election frauds and terrorism in our country.) There being no senator or only one senator belonging to the minority, who would sit in judgment on the election candidates of the minority parties? According to the contention of the respondents, it would be a Senate Electoral Tribunal made up of three Supreme Court Justices and 5 or 6 members of the same party A accused of fraud and terrorism. Most respectfully, we pray this Honorable Court to reject an interpretation that would make of a democratic constitution the very instrument by which a corrupt and ruthless party could entrench itself in power the legislature and thus destroy democracy in the Philippines. x x x x x x x x x. ".. When there are no electoral protests filed by the Minority party, or when the only electoral protests filed are by candidates of the majority against members-elect of the same majority party, there might be no objection to the statement. But if electoral protests are filed by candidates of the minority party, it is at this point that a need for a check on the majority party is greatest, and contrary to the observation made in the above-quoted opinion, such a cheek is a function that cannot be successfully exercised by the 3 Justices of the Supreme Court, for the obvious and simple reason that they could easily be outvoted by the 6 members of the majority party in the Tribunal. x x x x x x x x x. "In the case of the cited opinion of Secretary Abad Santos rendered in 1939, it, did not appear that there were minority party candidates who were adversely affected by the ruling of the Secretary of Justice and who could have brought a test case to court." (Emphasis supplied.).

The defenses of waiver and estoppel set up against petitioner Taada are untenable. Although "an individual may waive constitutional provisions intended for his benefit", particularly those meant for the protection of his property, and, sometimes, even those tending "to secure his personal liberty", the power to waive does not exist when "public policy or public morals" are involved. (11 Am. Jur. 765; I Cooley's Constitutional Limitations, pp. 368-371). The procedure outlined in the Constitution for the organization, of the Electoral Tribunals was adopted in response to the demands of the common weal, and it has been held that where a statute is founded on public policy, those to whom it applies should not be permitted to waive its provisions" (82 C. J. S., 874). Besides, there can be no waiver without an intent to such effect, which Senator Taada did not have. Again, the alleged waiver or exhaustion of his rights does not justify the exercise thereof by a person or party, other than that to which it is vested exclusively by the Constitution. The rule estoppel is that "whenever a party has, by his declaration, act or omissions, intentionally and deliberately led another to believe a particular thing true, and to act upon such belief, he cannot, in a litigation arising out of such declaration, act or omission, be permitted to falsify it" (Rule 69, sec. 68 [a], Rules of Court). In the case at bar, petitioner Senator Taada did not lead the Senate to believe that Senator Primicias could nominate Senators Cuenco and Delgado. On the contrary, said petitioner repeatedly asserted that his was the exclusive right to make the nomination. He, likewise, specifically contested said nomination of Senators Cuenco and Delgado. Again, the rule on estoppel applies to questions of fact, not of law, about the truth of which the other party is ignorant (see Moran's Comments on the Rules of Court, Vol. 3, pp. 490, 495). Such is not the nature of the situation that confronted Senator Taada and the other members of the Senate. Lastly, the case of Zandueta vs. De la Costa (66 Phil., 615), cited by respondents, is not in point. Judge Zandueta assumed office by virtue of an appointment, the legality of which he later on assailed. In the case at bar, the nomination and election of Senator Taada as member of the Senate Electoral Tribunal was separate, distinct and independent from the nomination and election of Senators Cuenco and Delgado. In view of the foregoing, we hold that the Senate may not elect, as members of the Senate Electoral Tribunal, those Senators who have not been nominated by the political parties specified in the Constitution; that the party having the largest number of votes in the Senate may nominate

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

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

"Examining the history of the constitutional provision, I find that in the first two drafts it was provided that the Electoral Commission shall be composed of `three members elected by the members of the party having the largest number of vote three elected by the members of the party having the second largest number of votes, and three justices of the Supreme Court ..(Aruego, The Framing of the Phil. Const., pp. 260-261). But as finally adopted by the Convention, the Constitution explicitly states that there shall be `six members chosen by the National Assembly, three of whom shall be nominated by the party having the largest number of votes, an and three by the party having the second largest number of votes' (Aruego, The Framing of the Phil. Const., pp. 271-272). "From the foregoing changes in the phraseology of the provision, it is evident that the intention of the framers of our Constitution was that there should invariably be six members from the National Assembly. It was also intended to create a non-partisan body to decide any partisan contest that may be brought before the Commission. The primary object was to avoid decision based chiefly if not exclusively on partisan considerations. "The procedure or manner of nomination cannot possibly affect the constitutional mandate that the Assembly is entitled to six members in the Electoral Commission. When for lack of a minority representation in the Assembly the power to nominate three minority members cannot be exercised, it logically follows that the only party the Assembly may nominate three others, otherwise the explicit mandate of the Constitution that there shall be six members from the National Assembly would be nullified. "In other words, fluctuations in the total membership of the Commission were not and could not have been intended. We cannot say that the Commission should have nine members during one legislative term and six members during the next. Constitutional provisions must always have a consistent application. The membership of the Commission is intended to be fixed and not variable and is not dependent upon the existence or nonexistence of one or more parties in the Assembly. "`A cardinal rule in dealing with Constitutions is that they should receive a consistent and uniform interpretation, so they shall not be taken to mean one thing at one time and another thing at another time, even though the

circumstances may have so changed as to make a different rule after desirable (11 Am. Jur. 659). "It is undisputed of course that the primary purpose of the Convention in giving representation to the minority party in the Electoral Commission was to safeguard the rights of the minority party and to protect their interests, especially when the election of any member of the minority party is protested. The basic philosophy behind the constitutional provision was to enable the minority party to act as a check on the majority in the Electoral Commission, with the members of the Supreme Court as the balancing factor. Inasmuch, however, as there is no minority party represented in the Assembly, the necessity for such a check by the minority party disappears. It is a function that is expected to be exercised by the three Justices of the Supreme Court. "To summarize, considering the plain terms of the constitutional provision in question, the changes that it has undergone since it was first introduced until finally adopted by the convertion, as well as, the considerations that must have inspired the Constitutional Convention in adopting it as it is, I have come to the conclusion that the Electoral Commission should be composed of nine members, three from the Supreme Court and six chosen by the National Assembly to be nominated by the party in power, there being no other party entitled to such nomination.". Pursuant to the foregoing opinion of February 1, 1939, the Electoral Commission was formally organized, with six members of the National Assembly all belonging to the same party and three Justices of the Supreme Court. Constitutional amendments were introduced and duly adopted in 1940, and the Electoral Commission was replaced by an Electoral Tribunal for each house of Congress. It is now provided that "Each Electoral Tribunal shall be composed of nine Members, three of whom shall be Justices of the Supreme Court to be designated by the Chief Justice, and the remaining six shall be Members of the Senate or of the House of Representatives, as the case may be, who shall be chosen by each house, three upon nomination of the party having the largest number of votes and three of the party having the second largest number of votes therein. The senior Justice in each Electoral Tribunal shall be its Chairman." (Article VI, Section 11, of the Constitution.).

If there was any doubt on the matter, the same was removed by the amendment of 1940 the framers of which may be assumed to have been fully aware of the one-party composition of the former National Assembly which gave rise to the abovequoted opinion of the Secretary of Justice. When instead of wording the amendment in such a form as to nullify said opinion, Section 11 of Article VI of the Constitution not only did not substantially depart from the original constitutional provision but also positively and expressly ordains that "Each Electoral Tribunal shall be composed of nine Members," the intent has become clear and mandatory that at all times the Electoral Tribunal shall have nine Members regardless of whether or not two parties make up each house of Congress. It is very significant that while the party having the second largest number of votes is allowed to nominate three Members of the Senate or of the House of Representatives, it is not required that the nominees should belong to the same party. Considering further that the six Members are chosen by each house, and not by the party or parties, the conclusion is inescapable that party affiliation is neither controlling nor necessary. Under the theory of the petitioners, even if there were sufficient Members belonging to the party having the second largest of votes, the latter may nominate less than three or none at all; and the Chief Justice may similarly designate less than three Justices. If not absurd, would frustrate the purpose of having an ideal number in the composition of the Electoral Tribunal and guarding against the possibility of deadlocks. It would not be accurate to argue that the Members of the Electoral Tribunal other than the Justices of the Supreme Court would naturally vote along purely partisan lines, checked or fiscalized only by the votes of the Justices; otherwise membership in the Tribunal may well be limited to the Justices of the Supreme Court and so others who are not Members of the Senate or of the House of Representatives. Upon the other hand, he framers of the Constitution-not insensitive to some such argument-still had reposed their faith and confidence in the independence, integrity and uprightness of the Members of each House who are to sit in the Electoral Tribunals and thereby expected them, as does everybody, to decide jointly with the Justices of the Supreme Court election contests exclusively upon their merits. In view of the failure or unwillingness of Senator Lorenzo M. Taada of the Citizens Party, the party having the second largest number of votes in the

Senate, to nominate two other Members of the Electoral Tribunal, the Senate was justified, in obedience to the constitutional mandate, to chooseas it did-said two Members. I vote to dismiss the petition. Endencia, J., concurs. LABRADOR, J., dissenting:. I dissent and herewith proceed to explain my reasons therefor. The constitutional provision, in pursuance of which Senators Cuenco and Delgado were elected by the Senate members of the Senate Electoral Tribunal is as follows:. "The Senate and the House of Representatives shall each have an Electoral Tribunal which shall be the sole judge of all contests relating to the election, returns, and qualifications of their respective Members. Each Electoral Tribunal shall be composed of nine Members, three of whom shall be Justices of the Supreme Court to be designated by the Chief Justice, and the remaining six shall be Members of the Senate or of the House of Representatives, as the case may be, who shall be chosen by each House, three upon nomination of the party having the largest number of votes and three of the party having the second largest number of votes therein. The Senior Justice in each Electoral Tribunal shall be its Chairman." (Section II, Article VI of the Constitution.). I hold that the above provision, just as any other constitutional provision, is mandatory in character and that this character is true not only of the provision that nine members shall compose the tribunal but also that which defines the manner in which the members shall be chosen. Such a holding is in accord with well-settled rules of statutory construction. "As a general proposition, there is greater likelihood that constitutional provisions will be given mandatory effect than is true of any other class of organic law. Indeed, such a construction accords with the generally acknowledged import of constitutional fiat; that its character is such as to require absolute compliance in all cases without exception. And the very principles of our institutions, involving as they do concepts of constitutional supremacy, are such as to form reasonable grounds for a presumption that

the framers of a constitution intended that just such efficacy be given to it .." (Sec. 5807, Sutherland Statutory Construction, Vol. 3, p.84.). The majority helds that as Senator Taada, the only member of the Senate who does not belong to the Nacionalista Party, has refused to exercise the constitutional privilege afforded him to nominate the two other members the Senate may not elect said two other members. And the reason given for this ruling is the presumed intention of the constitutional provision to safeguard the interests of the minority. This holding is subject to the following fundamental objections. In the first Place, it renders nugatory the provision which fixes the membership of the Senate Electoral Tribunal at nine, a provision which is admittedly a mandatory provision. In the second place, it denies to the Senate the power that the constitutional provision expressly grants it, i. e., that of electing the members of the Electoral Tribunal so in effect this right or prerogative is lodged, as a consequence of the refusal of the minority member to nominate, in the hands of said member of the minority, contrary to the constitutional provision. In the third place, it would make the supposedly procedural provision, the process of nomination lodged in the minority party in the Senate, superior to and paramount over the power of election, which is in the whole Senate itself. So by the ruling of the majority, a procedural provision overrides a substantive one and renders nugatory the other more important mandatory provision that the Electoral Tribunal shall be composed of nine members. In the fourth place, the majority decision has by interpretation inserted a provision in the Constitution, which the Constitutional Convention alone had the power to introduce, namely, a proviso to the effect that if the minority fails or refuses to exercise its privilege to nominate all the three members, the membership of the Electoral Tribunal shall thereby be correspondingly reduced. This arrogation of power by us is not justified by any rule of law or reason. I consider the opinion of the Senate that the refusal of Senator Taada to nominate the two other members must be construed as a waiver of a mere privilege, more in consonance not only with the constitutional provision as a whole, but with the dictates of reason. The above principle (of waiver) furnishes the remedy by which two parts of the constitutional provision, that which fixes membership at nine and that which outlines the procedure in which said membership of nine may be elected, can be reconciled. Well known is the legal principle that provisions which in their application may nullify each other should be reconciled to make them both effective, if the

reconciliation can be effected by the application of other legal principles. The reconciliation is brought about in this case by the principle of waiver. While I agree with the majority that it is the duty of this Court to step in, when a constitutional mandate is ignored, to enforce said mandate even as against the other coordinate departments, this is not the occasion for it to do so, for to say the least it does not clearly appear that the form and manner in which the Senate exercised its expressly recognized power to elect its members to the Senate Electoral Tribunal has been clearly violative of the constitutional mandate. ______________________________. 1 Casanovas vs. Hord, 8 Phil., 125; Omo vs. Insular Gov't., 11 Phil., 67; Weigall vs. Shuster, 11 Phil., 340; Barrameda vs. Moir, 25 Phil., 44; Hamilton vs. McGirr, 30 Phil., 563; Compania Gral. de Tabacos vs. Board of Public Utility Commissioners, 34 Phil., 136; Central Capiz vs. Ramirez, 40 Phil., 883; Concepcion vs. Paredes, 42 Phil 599; McDaniel vs. Apacible, 42 Phil., 749; U. S. vs. Ang Tan Ho, 43 Phil., 1; People vs. Pomar, 46 Phil., 440. Agcaoili vs. Saguitan, 48 Phil., 676; Gov't. vs. Springer, 50 Phil., 259; Gov't. us. Agoncillo, 50 Phil., 348; Gov't. vs. El Hogar Filipino, 50 Phil, 399; Manila Electric vs. Pasay Transp., 57 Phil., 600; Angara vs. Electoral Commission, supra; People vs. Vera, 65 Phil., 56; Vargas vs. Rilloraza, 45 Off. Gaz., 3847; Endencia vs. David, 49 Off. Gaz., A822; Rutter vs. Esteban, 49 Off. Gaz., 1807; Comm. investment vs. Garcia, 49 Off. Gaz., 1801; Marbury vs. Madison, 1 Cranch 137; Ex Parte Garland, 4 Wall. 333; Hepburn vs. Griswold, 8 Wall. 603; Knox vs. Lee, 12 Wall. 457; Civil Rights Cases [U. S. vs. M. Stanley; U. S. vs. M. Ryan, U. S. vs. S. Nichols; U. S. vs. Singleton; Robinson vs. and Charleston Railroad Co.], 109 U. S. 3 Pollock vs. Farmers' Loan and Trust Co. 157 U. S. 429, 158 U. S. 601; Fairbanks vs. U. S., 181 U. S. 286. 2 Which, insofar as pertinent to the issues in the case at bar, is substantially identical to each of the Electoral Tribunals under the Constitution as amended. 3 Araneta vs. Dinglasan, Barredo vs. Commission on Elections, and Rodriguez vs. Teasurer of the Philippines, 84 Phil., 368, 45 Off. Gaz., 4411, 4457; Nacionalista Party vs. Bautista, 85 Phil., 101, 47 Off. Gaz., 2356; Lacson vs. Romero, 84 Phil., 740, 47 Off. Gaz., 1778; De los Santos vs.

Mallare, 87 Phil., 289, 48 Off. Gaz., 1787; Lacson vs. Roque, 92 Phil., 456, 49 Off. Gaz., 93; Jover Ledesma vs. Borra, 93 Phil., 506, 49 Off. Gaz., 2765; Ramos vs. Avelino, 97 Phil., 844, 51 Off. Gaz., 5607. ______________________________ 4 "From the very nature of the American system of government with Constitutions prescribing the jurisdiction and powers of each of the three branches of government, it has devolved on the judiciary to determine whether the acts of the other two departments are in harmony with the fundamental law. All the departments are of the government are unquestionably entitled and compelled to judge of the Constitution for themselves; but, in doing so, they act under the obligations imposed in the instrument, and in the order of time pointed out by it. When the, judiciary has once spoken, if the acts of the other two departments are held to be unauthorized or despotic, in violation of the Constitution or the vested rights of the citizen, they cease to be operative or binding. x x x x x x x x x. "Since the Constitution is intended for the observance of the judiciary as well as the other departments of government and the judges are sworn to support its provisions, the court are not at liberty to overlook or disregard its commands. It is their duty in authorized proceedings to give effect to the existing Constitution and to obey all constitutional provisions irrespective of their opinion as to the wisdom of such provisions. "In accordance with principles which are basic, the rule is fixed that the duty in a proper case to declare a law unconstitutional cannot be declined and must be performed in accordance with the deliberate judgment of the tribunal before which the validity of the enactment is directly drawn into question. When it is clear that a statute transgresses the authority vested in the legislature by the Constitution, it is the duty of the courts to declare the act unconstitutional cause they cannot shrink from it without violating their oaths of office. This duty of the courts to maintain the Constitution as the fundamental law of the state is imperative and unceasing; and, as Chief Justice Marshal said, whenever a statute is in violation of the fundamental law, the courts must so adjudge and thereby give effect to the Constitution. Any other course would lead to the destruction of the Constitution. Since the question as to the constitutionality of a statute is a judicial matter, the courts will not decline the exercise of jurisdiction upon the suggestion that

action might be taken by political agencies in disregard of the judgment of the judicial tribunals." (11 Am. Jur., pp. 712-713, 713-715; emphasis supplied). 5 Rich vs. Board of Canvassers, 59 N. W. 183; State vs. McBride, 29 Am. Dec. 636; Collier vs. Frierson, 24 Ala. 100; State vs. Swift, 69 Ind. 505; State vs. Timme, 11 N.W. 785; Prohibition and Amendment Cases, 24 Kan. 700; Kadderly vs. Portland, 74 Pac. 710; Koehler vs. Hill, 14 N. W. 738; State vs. Brockhart, 84 S. W. 1064; University vs. Melver, 72 N. C. 76; Westinghausen vs. People, 6 N.W. 641; State vs. Powell, 27 South, 927; Bott vs. Wurtz, 43 Atl. 744; Rice vs. Palmer, 96 S. W. 396; State vs. Tooker, 37 Pac. 840. 6 "The procedure or manner of nomination cannot possibly affect the, constitutional mandate that the Assembly is entitled to six in the Electoral Commission. When for lack of a minority representation in the Assembly the power to nominate three minority members cannot be exercised, it logically follows that the only party in the Assembly may nominate three others, otherwise the explicit mandate of the Constitution that there shall be six members from the National Assembly would be nullified. "In other words, fluctuations in the total membership of the Commission were not and could have been intended; We cannot say that the Commission should have nine members during one legislative term and six members during the next. Constitutional provisions must always have a consistent application. The membership of the Commission is intended to be fixed and not variable and is not dependent upon the existence or nonexistence of one or more parties in the Assembly. `A cardinal rule in dealing with Constitutions is that they should receive a consistent and uniform interpretation, so they shall not be taken to mean one thing at one time and another thing at another time, even though the circumstance may have so changed as to make a different rule seem desirable (11 Am. Jur. 659).'. "It is undisputed of course that the primary purpose of the Convention in giving representation to the minority party in the Electoral Commission was to safeguard the rights of the minority party and to protect their interests, especially when the election of any member of the minority party is protected. The basic philosophy behind the constitutional provision was to

enable the minority party to act as a check on the majority of the Electoral Commission, with the members of the Supreme Court as the balancing factor. Inasmuch, however, as there is no minority party represented in the Assembly, the necessity for such a check by the minority party disappears. It is a function that is expected to be exercised by the three Justices of the Supreme Court. "To summarize, considering the plain terms of the constitutional provision in question, the changes that it has undergone since it was first introduced until finally adopted by the Convention, as well as the considerations that must have inspired the Constitutional Convention in adopting it as it is, I have come to the conclusion that the Electoral Commission should be composed of nine members, three from the Supreme Court and six chosen by the National Assembly to be nominated by the party in power, there being no other party entitled to such nomination." Annex A to the Answers pp. 2-3. 6a Since 1939, when said opinion was rendered, the question therein raised has not been taken up or discussed, until the events leading to the case at bar (in February 1956). 6b "Thus, in Suanes vs. Chief Accountant (supra)-in which the respondents maintained that the Electoral Commission formed part of the National Assembly, citing in support thereof the principle of contemporaneous and practical construction-this Court deemed it unnecessary to refute the same in order to adopt the opposite view. 7 Senator Laurel reiterated this view on the floor of the Senate, on February 22. 1956, in the following language:. "And hence this provision that we find in the Constitution, three to represent, in the manner prescribed in the Constitution, the party that received the highest number of votes, meaning the majority party which is the Nacionalista Party now, and three to represent the party receiving the next highest number of votes therein, meaning the minority party, the party receiving the next highest number of votes. But there was a great deal of opinion that it would be better if this political organization, so far as the legislative department is concerned, could be tempered by a sort of a judicial reflection which could be done by drafting three, as to each Electoral Tribunal, from the Supreme Court. And that, I think, was the

reason because a great majority of the delegates to the constitutional convention accepted that principle. That is why we have nine members in each electoral tribunal, in the House and in the Senate. And one reason that I remember then and I am speaking from memory, Mr. President, was that it is likely that the three members representing a party would naturally favor the protestants or protestees, and so on. So it would be better that even on that hypothesis or on that supposition it would be better, in case they annul each other because three votes in favor or three votes against, depending on the party of the protestants or the protestees, that the Supreme Court decide the case because then it would be a judicial decision in reality. Another reason is founded on the theory that the Justices of the Supreme Court are supposed to be beyond influence, although that may not be true. But having reached the highest judicial position of the land, these persons would likely act impartially." (Congressional Record for the Senate Vol. III, p. 376.). 8 When the legislative power was vested in a unicameral body, known as the National Assembly. 9 Upon the substitution of the National Assembly by a bicameral Congress, consisting of the Senate and the House of Representatives. 10 Senator Lim said:. "But in the spirit, Your Honor can see very well that those three should belong to the party having the second largest number of votes, precisely, as Your Honor said, to maintain equilibrium because partisan considerations naturally enter into the mind and heart of a senator belonging to a particular party. Although grammatically, I agree with Your Honor, Your Honor can see that the spirit of the provision of the Constitution is clear that the three must come from the party having the highest number of votes and the other three nominated must belong to the party having the second highest number of votes. Your Honor can see the point. If we allow Your Honor to back up your argument that equilibrium should be maintained, because partisan considerations enter when one is with the majority party, and that no party should prevail, Your Honor should also have to consider that the spirit of the Constitution is precisely to obviate that to the extent that the only three can be nominated from the party having the largest number of votes and three from the party having

the second largest number of votes." (Congressional Record of the Senate, Vol. Ill, p, 337; emphasis supplied.). ________________________________. The statement of Senator Sabido was:. ".. the purpose of the creation of the Electoral Tribunal and of its composition is to maintain a balance between the two parties and make the members of the Supreme Court the controlling power so to speak of the Electoral Tribunal or hold the balance of power. That is the ideal situation.". x x x x x x x x x. ".. I said that the ideal composition in the contemplation of the framers of the Constitution is that those participating in the electoral tribunal shall belong to the members of the party who are before the electoral tribunal either as protestants or protestees, in order to insure impartiality in the proceeding and justice in the decision that may be finally rendered." (Congressional Record for the Senate, Vol. III, pp. 349, 352; emphasis supplied.). ____________________________________. Senator Cea declared:. ".. the original purpose of the Constitution is to nominate only members of the two major parties in the Senate in the Electoral Tribunal." (Congressional Record for the Senate, Vol. III, p. 350; emphasis supplied.). The words of Senator Paredes were:. ".. what was intended in the creation of the electoral tribunal was to create a sort of collegiate court composed of nine members three of them belonging to the party having largest number of votes, and three from, the party having the second largest number of votes so that these members my represent the party, and the members of said party who will sit before the electoral tribunal as protestees. For when it comes to a party, Mr. President, there is ground to believe that decisions will be made along party lines." (Congressional Record for the Senate, Vol. III, p. 351; emphasis supplied.).

11 The need of adopting this view is demanded, not only by the factors already adverted to, but, also, by the fact that constitutional provisions, unlike statutory enactments, are presumed to be mandatory, "unless the contrary is unmistakably manifest." The pertinent rule of statutory construction is set forth in the American Jurisprudence as follows:. "In the interpretation of Constitutions, questions frequently arise as to whether particular sections are mandatory or directory. The courts usually hesitate to declare that a constitutional provision is directory merely in view of the tendency of the legislature to disregard provisions which are not said to be mandatory. Accordingly, it is the general rule to regard constitutional provisions as mandatory, and not to leave any direction to the will of a legislature to obey or to disregard them. This presumption as to mandatory quality is usually followed unless it is unmistakably manifest that the provisions are intended to be merely directory. The analogous rules distinguishing mandatory and directory statutes are of little value in this connection and are rarely applied in passing upon the provisions of a Constitution. "So strong is the inclination in favor of giving obligatory force to the terms of the organic law that it has even been said that neither by the courts nor by any other department of the government may any provision of the Constitution be regarded as merely directory, but that each and everyone of its provisions should be treated as imperative and mandatory, without reference to the rules and distinguishing between the directory and the mandatory statutes." (II Am. Jur. 686-687; emphasis supplied.). 12 Which admittedly, has the second largest number of votes in the Senate. 13 In Angara vs. Electoral Commission (supra, 169) Senator, then Justice, Laurel, speaking for this Court, recalled that:. "In the same session of December 4, 1934, Delegate Cruz (C.) sought to amend the draft by reducing the representation of the minority party and the Supreme Court in the Electoral Commission to two members each, so as to accord more representation to the majority party. The Convention rejected this amendment by a vote of seventy-six (76) against forty-six (46), thus maintaining the non-partisan character of the commission."(emphasis supplied.).

Needless to say, what the Constitutional Convention thus precluded from being done by direct action or grant of authority in the Charter of our Republic should not receive judicial sanction, when done by resolution of one House of Congress, a mere creature of said charter. 14 Namely, the other two (2) Justices of the Supreme Court and Senators Laurel, Lopez and Primicias, or a total of six (6) members of the Tribunal. G.R. No. L-44640 October 12, 1976 PABLO C. SANIDAD and PABLITO V. SANIDAD, petitioner, vs. HONORABLE COMMISSION ON ELECTIONS and HONORABLE NATIONAL TREASURER, respondents. G.R. No. L-44684. October 12,1976 VICENTE M. GUZMAN, petitioner, vs. COMMISSION ELECTIONS, respondent. G.R. No. L-44714. October 12,1976 RAUL M. GONZALES, RAUL T. GONZALES, JR., and ALFREDO SALAPANTAN, petitioners, vs. HONORABLE COMMISSION ON SELECTIONS and HONORABLE NATIONAL TREASURER, respondents. MARTIN, J,: The capital question raised in these prohibition suits with preliminary injunction relates to the power of the incumbent President of the Philippines to propose amendments to the present Constitution in the absence of the interim National Assembly which has not been convened. On September 2, 1976, President Ferdinand E. Marcos issued Presidential Decree No. 991 calling for a national referendum on October 16, 1976 for the Citizens Assemblies ("barangays") to resolve, among other things, the issues of martial law, the I . assembly, its replacement, the powers of such replacement, the period of its existence, the length of the period for tile

exercise by the President of his present powers.1 Twenty days after or on September 22, 1976, the President issued another related decree, Presidential Decree No. 1031, amending the previous Presidential Decree No. 991, by declaring the provisions of presidential Decree No. 229 providing for the manner of voting and canvass of votes in "barangays" (Citizens Assemblies) applicable to the national referendumplebiscite of October 16, 1976. Quite relevantly, Presidential Decree No. 1031 repealed Section 4, of Presidential Decree No. 991, the full text of which (Section 4) is quoted in the footnote below. 2 On the same date of September 22, 1976, the President issued Presidential Decree No. 1033, stating the questions to be submitted to the people in the referendum-plebiscite on October 16, 1976. The Decree recites in its "whereas" clauses that the people's continued opposition to the convening of the National Assembly evinces their desire to have such body abolished and replaced thru a constitutional amendment, providing for a legislative body, which will be submitted directly to the people in the referendum-plebiscite of October 16. The questions ask, to wit: (1) Do you want martial law to be continued? (2) Whether or not you want martial law to be continued, do you approve the following amendments to the Constitution? For the purpose of the second question, the referendum shall have the effect of a plebiscite within the contemplation of Section 2 of Article XVI of the Constitution. PROPOSED AMENDMENTS: 1. There shall be, in lieu of the interim National Assembly, an interim Batasang Pambansa. Members of the interim Batasang Pambansa which shall not be more than 120, unless otherwise provided by law, shall include the incumbent President of the Philippines, representatives elected from the different regions of the nation, those who shall not be less than eighteen years of age elected by their respective sectors, and those chosen by the incumbent President from the members of the Cabinet. Regional representatives shall be apportioned among the regions in accordance with the number of their respective inhabitants and on the basis of a uniform and progressive ratio while the sectors shall be determined by law. The number

of representatives from each region or sector and the, manner of their election shall be prescribed and regulated by law. 2. The interim Batasang Pambansa shall have the same powers and its members shall have the same functions, responsibilities, rights, privileges, and disqualifications as the interim National Assembly and the regular National Assembly and the members thereof. However, it shall not exercise the power provided in Article VIII, Section 14(l) of the Constitution. 3. The incumbent President of the Philippines shall, within 30 days from the election and selection of the members, convene the interim Batasang Pambansa and preside over its sessions until the Speaker shall have been elected. The incumbent President of the Philippines shall be the Prime Minister and he shall continue to exercise all his powers even after the interim Batasang Pambansa is organized and ready to discharge its functions and likewise he shall continue to exercise his powers and prerogatives under the nineteen hundred and thirty five. Constitution and the powers vested in the President and the Prime Minister under this Constitution. 4. The President (Prime Minister) and his Cabinet shall exercise all the powers and functions, and discharge the responsibilities of the regular President (Prime Minister) and his Cabinet, and shall be subject only to such disqualifications as the President (Prime Minister) may prescribe. The President (Prime Minister) if he so desires may appoint a Deputy Prime Minister or as many Deputy Prime Ministers as he may deem necessary. 5. The incumbent President shall continue to exercise legislative powers until martial law shall have been lifted. 6. Whenever in the judgment of the President (Prime Minister), there exists a grave emergency or a threat or imminence thereof, or whenever the interim Batasang Pambansa or the regular National Assembly fails or is unable to act adequately on any matter for any reason that in his judgment requires immediate action, he may, in order to meet the exigency, issue the necessary decrees, orders or letters of instructions, which shall form part of the law of the land. 7. The barangays and sanggunians shall continue as presently constituted but their functions, powers, and composition may be altered by law. Referenda conducted thru the barangays and under the Supervision of the

Commission on Elections may be called at any time the government deems it necessary to ascertain the will of the people regarding any important matter whether of national or local interest. 8. All provisions of this Constitution not inconsistent with any of these amendments shall continue in full force and effect. 9. These amendments shall take effect after the incumbent President shall have proclaimed that they have been ratified by I majority of the votes cast in the referendum-plebiscite." The Commission on Elections was vested with the exclusive supervision and control of the October 1976 National Referendum-Plebiscite. On September 27, 1976, PABLO C. SANIDAD and PABLITO V. SANIDAD, father and son, commenced L-44640 for Prohibition with Preliminary Injunction seeking to enjoin the Commission on Elections from holding and conducting the Referendum Plebiscite on October 16; to declare without force and effect Presidential Decree Nos. 991 and 1033, insofar as they propose amendments to the Constitution, as well as Presidential Decree No. 1031, insofar as it directs the Commission on Elections to supervise, control, hold, and conduct the Referendum-Plebiscite scheduled on October 16, 1976. Petitioners contend that under the 1935 and 1973 Constitutions there is no grant to the incumbent President to exercise the constituent power to propose amendments to the new Constitution. As a consequence, the Referendum-Plebiscite on October 16 has no constitutional or legal basis. On October 5, 1976, the Solicitor General filed the comment for respondent Commission on Elections, The Solicitor General principally maintains that petitioners have no standing to sue; the issue raised is political in nature, beyond judicial cognizance of this Court; at this state of the transition period, only the incumbent President has the authority to exercise constituent power; the referendum-plebiscite is a step towards normalization. On September 30, 1976, another action for Prohibition with Preliminary Injunction, docketed as L-44684, was instituted by VICENTE M. GUZMAN, a delegate to the 1971 Constitutional Convention, asserting that the power to propose amendments to, or revision of the Constitution during the transition period is expressly conferred on the interim National Assembly under Section

16, Article XVII of the Constitution.3 Still another petition for Prohibition with Preliminary Injunction was filed on October 5, 1976 by RAUL M. GONZALES, his son RAUL, JR., and ALFREDO SALAPANTAN, docketed as L- 44714, to restrain the implementation of Presidential Decrees relative to the forthcoming Referendum-Plebiscite of October 16. These last petitioners argue that even granting him legislative powers under Martial Law, the incumbent President cannot act as a constituent assembly to propose amendments to the Constitution; a referendum-plebiscite is untenable under the Constitutions of 1935 and 1973; the submission of the proposed amendments in such a short period of time for deliberation renders the plebiscite a nullity; to lift Martial Law, the President need not consult the people via referendum; and allowing 15-.year olds to vote would amount to an amendment of the Constitution, which confines the right of suffrage to those citizens of the Philippines 18 years of age and above. We find the petitions in the three entitled cases to be devoid of merit. I Justiciability of question raised. 1. As a preliminary resolution, We rule that the petitioners in L-44640 (Pablo C. Sanidad and Pablito V. Sanidad) possess locus standi to challenge the constitutional premise of Presidential Decree Nos. 991, 1031, and 1033. It is now an ancient rule that the valid source of a stature Presidential Decrees are of such nature-may be contested by one who will sustain a direct injuries as a in result of its enforcement. At the instance of taxpayers, laws providing for the disbursement of public funds may be enjoined, upon the theory that the expenditure of public funds by an officer of the State for the purpose of executing an unconstitutional act constitutes a misapplication of such funds. 4 The breadth of Presidential Decree No. 991 carries all appropriation of Five Million Pesos for the effective implementation of its purposes. 5 Presidential Decree No. 1031 appropriates the sum of Eight Million Pesos to carry out its provisions. 6 The interest of the aforenamed petitioners as taxpayers in the lawful expenditure of these amounts of public money sufficiently clothes them with that personality to litigate the validity of the Decrees appropriating said funds. Moreover, as regards taxpayer's suits, this Court enjoys that open discretion to entertain the same or not. 7 For the present case, We deem it

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

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

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

to the electorate in an election. SECTION 2. Any amendment to, or revision of, this Constitution shall be valid when ratified by a majority of the votes cast in a plebiscite which shall be held not later than three months after the approval of such amendment or revision. In the present period of transition, the interim National Assembly instituted in the Transitory Provisions is conferred with that amending power. Section 15 of the Transitory Provisions reads: SECTION 15. The interim National Assembly, upon special call by the interim Prime Minister, may, by a majority vote of all its Members, propose amendments to this Constitution. Such amendments shall take effect when ratified in accordance with Article Sixteen hereof. There are, therefore, two periods contemplated in the constitutional life of the nation, i.e., period of normalcy and period of transition. In times of normally, the amending process may be initiated by the proposals of the (1) regular National Assembly upon a vote of three-fourths of all its members; or (2) by a Constitutional Convention called by a vote of two-thirds of all the Members of the National Assembly. However the calling of a Constitutional Convention may be submitted to the electorate in an election voted upon by a majority vote of all the members of the National Assembly. In times of transition, amendments may be proposed by a majority vote of all the Members of the National Assembly upon special call by the interim Prime Minister,. 2. This Court in Aquino v. COMELEC," had already settled that the incumbent President is vested with that prerogative of discretion as to when he shall initially convene the interim National Assembly. Speaking for the majority opinion in that case, Justice Makasiar said: "The Constitutional Convention intended to leave to the President the determination of the time when he shall initially convene the interim National Assembly, consistent with the prevailing conditions of peace and order in the country." Concurring, Justice Fernandez, himself a member of that Constitutional Convention, revealed: "(W)hen the Delegates to the Constitutional Convention voted on the Transitory Provisions, they were aware of the fact that under the same, the incumbent President was given the discretion as to when he could

convene the interim National Assembly; it was so stated plainly by the sponsor, Delegate Yaneza; as a matter of fact, the proposal that it be convened 'immediately', made by Delegate Pimentel (V) was rejected. The President's decision to defer the convening of the interim National Assembly soon found support from the people themselves. In the plebiscite of January 10-15, 1973, at which the ratification of the 1973 Constitution was submitted, the people voted against the convening of the interim National Assembly. In the referendum of July 24, 1973, the Citizens Assemblies ("bagangays") reiterated their sovereign will to withhold the convening of the interim National Assembly. Again, in the referendum of February 27, 1975, the proposed question of whether the interim National Assembly shall be initially convened was eliminated, because some of the members of Congress and delegates of the Constitutional Convention, who were deemed automatically members of the I interim National Assembly, were against its inclusion since in that referendum of January, 1973, the people had already resolved against it. 3. In sensu strictiore, when the legislative arm of the state undertakes the proposals of amendment to a Constitution, that body is not in the usual function of lawmaking. lt is not legislating when engaged in the amending process.16 Rather, it is exercising a peculiar power bestowed upon it by the fundamental charter itself. In the Philippines, that power is provided for in Article XVI of the 1973 Constitution (for the regular National Assembly) or in Section 15 of the Transitory Provisions (for the National Assembly). While ordinarily it is the business of the legislating body to legislate for the nation by virtue of constitutional conferment amending of the Constitution is not legislative in character. In political science a distinction is made between constitutional content of an organic character and that of a legislative character'. The distinction, however, is one of policy, not of law. 17 Such being the case, approval of the President of any proposed amendment is a misnomer 18 The prerogative of the President to approve or disapprove applies only to the ordinary cases of legislation. The President has nothing to do with proposition or adoption of amendments to the Constitution. 19 III Concentration of Powers in the President during

crisis government. 1. In general, the governmental powers in crisis government the Philippines is a crisis government today are more or less concentrated in the President. 20 According to Rossiter, "(t)he concentration of government power in a democracy faced by an emergency is a corrective to the crisis inefficiencies inherent in the doctrine of the separation of powers. In most free states it has generally been regarded as imperative that the total power of the government be parceled out among three mutually independent branches executive, legislature, and judiciary. It is believed to be destructive of constitutionalism if any one branch should exercise any two or more types of power, and certainly a total disregard of the separation of powers is, as Madison wrote in the Federalist, No. 47, 'the very definition of tyranny.' In normal times the separation of powers forms a distinct obstruction to arbitrary governmental action. By this same token, in abnormal times it may form an insurmountable barrier to a decisive emergency action in behalf of the state and its independent existence. There are moments in the life of any government when all powers must work together in unanimity of purpose and action, even if this means the temporary union of executive, legislative, and judicial power in the hands of one man. The more complete the separation of powers in a constitutional system, the more difficult and yet the more necessary will be their fusion in time of crisis. This is evident in a comparison of the crisis potentialities of the cabinet and presidential systems of government. In the former the all-important harmony of legislature and executive is taken for granted; in the latter it is neither guaranteed nor to be to confidently expected. As a result, cabinet is more easily established and more trustworthy than presidential dictatorship. The power of the state in crisis must not only be concentrated and expanded; it must also be freed from the normal system of constitutional and legal limitations. 21 John Locke, on the other hand, claims for the executive in its own right a broad discretion capable even of setting aside the ordinary laws in the meeting of special exigencies for which the legislative power had not provided. 22 The rationale behind such broad emergency powers of the Executive is the release of the government from "the paralysis of constitutional restrains" so that the crisis may be ended and normal times restored. 2. The presidential exercise of legislative powers in time of martial law is now a conceded valid at. That sun clear authority of the President is saddled on Section 3 (pars. 1 and 2) of the Transitory Provisions, thus: 23

The incumbent President of the Philippines shall initially convene the interim National Assembly and shall preside over its sessions until the interim Speaker shall have been elected. He shall continue to exercise his powers and prerogatives under the nineteen hundred and thirty-five Constitution and the powers vested in the President and the Prime Minister under this Constitution until the calls upon the interim National Assembly to elect the interim President and the interim Prime Minister, who shall then exercise their respective powers vested by this Constitution. All proclamations, orders, decrees, instructions, and acts promulgated, issued, or done by the incumbent President shall be part of the law of the land, and shall remain valid, binding, and effective even after lifting of martial law or the ratification of this Constitution, unless modified, revoked, or superseded by subsequent proclamations, orders, decrees, instructions, or other acts of the incumbent President, or unless expressly and explicitly modified or repealed by the regular National Assembly. "It is unthinkable," said Justice Fernandez, a 1971 Constitutional Convention delegate, "that the Constitutional Convention, while giving to the President the discretion when to call the interim National Assembly to session, and knowing that it may not be convened soon, would create a vacuum in the exercise of legislative powers. Otherwise, with no one to exercise the lawmaking powers, there would be paralyzation of the entire governmental machinery." 24 Paraphrasing Rossiter, this is an extremely important factor in any constitutional dictatorship which extends over a period of time. The separation of executive and legislature ordained in the Constitution presents a distinct obstruction to efficient crisis government. The steady increase in executive power is not too much a cause for as the steady increase in the magnitude and complexity of the problems the President has been called upon by the Filipino people to solve in their behalf, which involve rebellion, subversion, secession, recession, inflation, and economic crisis-a crisis greater than war. In short, while conventional constitutional law just confines the President's power as Commander-in-Chief to the direction of the operation of the national forces, yet the facts of our political, social, and economic disturbances had convincingly shown that in meeting the same, indefinite power should be attributed to tile President to take emergency

measures 25 IV Authority of the incumbent President t to propose amendments to the Constitution. 1. As earlier pointed out, the power to legislate is constitutionally consigned to the interim National Assembly during the transition period. However, the initial convening of that Assembly is a matter fully addressed to the judgment of the incumbent President. And, in the exercise of that judgment, the President opted to defer convening of that body in utter recognition of the people's preference. Likewise, in the period of transition, the power to propose amendments to the Constitution lies in the interim National Assembly upon special call by the President (See. 15 of the Transitory Provisions). Again, harking to the dictates of the sovereign will, the President decided not to call the interim National Assembly. Would it then be within the bounds of the Constitution and of law for the President to assume that constituent power of the interim Assembly vis-a-vis his assumption of that body's legislative functions? The answer is yes. If the President has been legitimately discharging the legislative functions of the interim Assembly, there is no reason why he cannot validly discharge the function of that Assembly to propose amendments to the Constitution, which is but adjunct, although peculiar, to its gross legislative power. This, of course, is not to say that the President has converted his office into a constituent assembly of that nature normally constituted by the legislature. Rather, with the interim National Assembly not convened and only the Presidency and the Supreme Court in operation, the urges of absolute necessity render it imperative upon the President to act as agent for and in behalf of the people to propose amendments to the Constitution. Parenthetically, by its very constitution, the Supreme Court possesses no capacity to propose amendments without constitutional infractions. For the President to shy away from that actuality and decline to undertake the amending process would leave the governmental machineries at a stalemate or create in the powers of the State a destructive vacuum, thereby impeding the objective of a crisis government "to end the crisis and restore normal times." In these parlous times, that Presidential initiative to reduce into concrete forms the constant voices of the

people reigns supreme. After all, constituent assemblies or constitutional conventions, like the President now, are mere agents of the people .26 2. The President's action is not a unilateral move. As early as the referendums of January 1973 and February 1975, the people had already rejected the calling of the interim National Assembly. The Lupong Tagapagpaganap of the Katipunan ng mga Sanggunian, the Pambansang Katipunan ng mga Barangay, and the Pambansang Katipunan ng mga Barangay, representing 42,000 barangays, about the same number of Kabataang Barangay organizations, Sanggunians in 1,458 municipalities, 72 provinces, 3 sub-provinces, and 60 cities had informed the President that the prevailing sentiment of the people is for the abolition of the interim National Assembly. Other issues concerned the lifting of martial law and amendments to the Constitution .27 The national organizations of Sangguniang Bayan presently proposed to settle the issues of martial law, the interim Assembly, its replacement, the period of its existence, the length of the period for the exercise by the President of its present powers in a referendum to be held on October 16 . 28 The Batasang Bayan (legislative council) created under Presidential Decree 995 of September 10, 1976, composed of 19 cabinet members, 9 officials with cabinet rank, 91 members of the Lupong Tagapagpaganap (executive committee) of the Katipunan ng mga Sangguniang Bayan voted in session to submit directly to the people in a plebiscite on October 16, the previously quoted proposed amendments to the Constitution, including the issue of martial law .29 Similarly, the "barangays" and the "sanggunians" endorsed to the President the submission of the proposed amendments to the people on October 16. All the foregoing led the President to initiate the proposal of amendments to the Constitution and the subsequent issuance of Presidential Decree No, 1033 on September 22, 1976 submitting the questions (proposed amendments) to the people in the National Referendum-Plebiscite on October 16. V The People is Sovereign 1. Unlike in a federal state, the location of sovereignty in a unitary state is easily seen. In the Philippines, a republican and unitary state, sovereignty "resides in the people and all government authority emanates from them .30 In its fourth meaning, Savigny would treat people as "that particular organized assembly of individuals in which, according to the Constitution, the highest

power exists." 31 This is the concept of popular sovereignty. It means that the constitutional legislator, namely the people, is sovereign 32 In consequence, the people may thus write into the Constitution their convictions on any subject they choose in the absence of express constitutional prohibition. 33 This is because, as Holmes said, the Constitution "is an experiment, as all life is all experiment." 34 "The necessities of orderly government," wrote Rottschaefer, "do not require that one generation should be permitted to permanently fetter all future generations." A constitution is based, therefore, upon a self-limiting decision of the people when they adopt it. 35 2. The October 16 referendum-plebiscite is a resounding call to the people to exercise their sovereign power as constitutional legislator. The proposed amendments, as earlier discussed, proceed not from the thinking of a single man. Rather, they are the collated thoughts of the sovereign will reduced only into enabling forms by the authority who can presently exercise the powers of the government. In equal vein, the submission of those proposed amendments and the question of martial law in a referendum-plebiscite expresses but the option of the people themselves implemented only by the authority of the President. Indeed, it may well be said that the amending process is a sovereign act, although the authority to initiate the same and the procedure to be followed reside somehow in a particular body. VI Referendum-Plebiscite not rendered nugatory by the participation of the 15-year olds. 1. October 16 is in parts a referendum and a plebiscite. The question - (1) Do you want martial law to be continued? - is a referendum question, wherein the 15-year olds may participate. This was prompted by the desire of the Government to reach the larger mas of the people so that their true pulse may be felt to guide the President in pursuing his program for a New Order. For the succeeding question on the proposed amendments, only those of voting age of 18 years may participate. This is the plebiscite aspect, as contemplated in Section 2, Article XVI of the new Constitution. 36 On this second question, it would only be the votes of those 18 years old and above which will have valid bearing on the results. The fact that the voting populace are simultaneously asked to answer the referendum question and the

plebiscite question does not infirm the referendum-plebiscite. There is nothing objectionable in consulting the people on a given issue, which is of current one and submitting to them for ratification of proposed constitutional amendments. The fear of commingled votes (15-year olds and 18-year olds above) is readily dispelled by the provision of two ballot boxes for every barangay center, one containing the ballots of voters fifteen years of age and under eighteen, and another containing the ballots of voters eighteen years of age and above. 37 The ballots in the ballot box for voters fifteen years of age and under eighteen shall be counted ahead of the ballots of voters eighteen years and above contained in another ballot box. And, the results of the referendum-plebiscite shall be separately prepared for the age groupings, i.e., ballots contained in each of the two boxes. 38 2. It is apt to distinguish here between a "referendum" and a "plebiscite." A "referendum" is merely consultative in character. It is simply a means of assessing public reaction to the given issues submitted to the people foe their consideration, the calling of which is derived from or within the totality of the executive power of the President. 39 It is participated in by all citizens from the age of fifteen, regardless of whether or not they are illiterates, feebleminded, or ex- convicts . 40 A "plebiscite," on the other hand, involves the constituent act of those "citizens of the Philippines not otherwise disqualified by law, who are eighteen years of age or over, and who shall have resided in the Philippines for at least one year and in the place wherein they propose to vote for at least six months preceding the election Literacy, property or any other substantive requirement is not imposed. It is generally associated with the amending process of the Constitution, more particularly, the ratification aspect. VII 1. There appeals to be no valid basis for the claim that the regime of martial law stultifies in main the freedom to dissent. That speaks of a bygone fear. The martial law regime which, in the observation of Justice Fernando, 41 is impressed with a mild character recorded no State imposition for a muffled voice. To be sure, there are restraints of the individual liberty, but on certain grounds no total suppression of that liberty is aimed at. The for the referendum-plebiscite on October 16 recognizes all the embracing freedoms of expression and assembly The President himself had announced that he would not countenance any suppression of dissenting views on the issues, as he is not interested in winning a "yes" or "no" vote, but on the genuine

sentiment of the people on the issues at hand. 42 Thus, the dissenters soon found their way to the public forums, voicing out loud and clear their adverse views on the proposed amendments and even (in the valid ratification of the 1973 Constitution, which is already a settled matter. 43 Even government employees have been held by the Civil Service Commission free to participate in public discussion and even campaign for their stand on the referendum-plebiscite issues. 44 VIII Time for deliberation is not short. 1. The period from September 21 to October 16 or a period of 3 weeks is not too short for free debates or discussions on the referendum-plebiscite issues. The questions are not new. They are the issues of the day. The people have been living with them since the proclamation of martial law four years ago. The referendums of 1973 and 1975 carried the same issue of martial law. That notwithstanding, the contested brief period for discussion is not without counterparts in previous plebiscites for constitutional amendments. Justice Makasiar, in the Referendum Case, recalls: "Under the old Society, 15 days were allotted for the publication in three consecutive issues of the Official Gazette of the women's suffrage amendment to the Constitution before the scheduled plebiscite on April 30, 1937 (Com. Act No. 34). The constitutional amendment to append as ordinance the complicated Tydings-Kocialskowski was published in only three consecutive issues of the Official Gazette for 10 days prior to the scheduled plebiscite (Com. Act 492). For the 1940 Constitutional amendments providing for the bicameral Congress, the reelection of the President and Vice President, and the creation of the Commission on Elections, 20 days of publication in three consecutive issues of the Official Gazette was fixed (Com Act No. 517). And the Parity Amendment, an involved constitutional amendment affecting the economy as well as the independence of the Republic was publicized in three consecutive issues of the Official Gazette for 20 days prior to the plebiscite (Rep. Act No. 73)." 45 2. It is worthy to note that Article XVI of the Constitution makes no provision as to the specific date when the plebiscite shall be held, but simply states that it "shall be held not later than three months after the approval of such

amendment or revision." In Coleman v. Miller, 46 the United States Supreme court held that this matter of submission involves "an appraisal of a great variety of relevant conditions, political, social and economic," which "are essentially political and not justiciable." The constituent body or in the instant cases, the President, may fix the time within which the people may act. This is because proposal and ratification are not treated as unrelated acts, but as succeeding steps in a single endeavor, the natural inference being that they are not to be widely separated in time; second, it is only when there is deemed to be a necessity therefor that amendments are to be proposed, the reasonable implication being that when proposed, they are to be considered and disposed of presently, and third, ratification is but the expression of the approbation of the people, hence, it must be done contemporaneously. 47 In the words of Jameson, "(a)n alteration of the Constitution proposed today has relation to the sentiment and the felt needs of today, and that, if not ratified early while that sentiment may fairly be supposed to exist. it ought to be regarded as waived, and not again to be voted upon, unless a second time proposed by proper body IN RESUME The three issues are 1. Is the question of the constitutionality of Presidential Decrees Nos. 991, 1031 and 1033 political or justiciable? 2. During the present stage of the transition period, and under, the environmental circumstances now obtaining, does the President possess power to propose amendments to the Constitution as well as set up the required machinery and prescribe the procedure for the ratification of his proposals by the people? 3. Is the submission to the people of the proposed amendments within the time frame allowed therefor a sufficient and proper submission? Upon the first issue, Chief Justice Fred Ruiz Castro and Associate Justices Enrique M. Fernando, Claudio Teehankee, Antonio P. Barredo, Cecilia Munoz Palma, Hermogenes Concepcion Jr. and Ruperto G. Martin are of the view that the question posed is justiciable, while Associate Justices Felix V. Makasiar, Felix Q. Antonio and Ramon C. Aquino hold the view that the question is political.

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

CASTRO, C.J.:, concurring: From the challenge as formulated in the three petitions at bar and the grounds advanced be the Solicitor General in opposition thereto, as well as the arguments adduced by the counsels of the parties at the hearing had on October 7 and 8, 1976, three vital issues readily project themselves as the centers of controversy, namely: (1) Is the question of the constitutionality of Presidential Decrees Nos. 991, 1031 and 1033 political or justiciable? (2) During the present stage of the transition period, and under the environmental circumstances now obtaining, does the President possess power to propose amendments to the Constitution as well as set up the required machineries and prescribe the procedure for the ratification of his proposals by the people? (3) Is the submission to the people of the proposed amendments within the time frame allowed therefor a sufficient and proper, submission" I First Issue The threshold question is not at all one of first impression Specifically on the matter of proposals to amend the Constitution, this Court, in Mabanag vs. Lopez Vito (78 Phil. 1), inceptively announced the dictum thatProposal to amend the Constitution is a highly political function performed by the Congress in its sovereign legislative capacity and committed to its charges by the Constitution itself. The exercise of this power is even independent of any intervention by the Chief Executive. If on grounds of expediency scrupulous attention of the judiciary be needed to safeguard public interest, there is less reason for judicial inquiry into the validity of a proposal than into that of a ratification. In time, however, the validity of the said pronouncement was eroded. In the

assessment of the Court itselfThe force of this precedent has been weakened, however, by Suanes vs. Chief Accountant of the Senate (81 Phil. 818), Avelino vs. Cuenco (L-2581, March 4 and 14, 1949), Tanada vs. Cuenco (L-10520, February 28, 1957), and Macias vs. Commission on Elections (L-18684, September 14, 1961). xxx xxx xxx In short, the issue whether or not a Resolution of Congress-acting as a constituent assembly-violates the Constitution is essentially justiciable, not political, and, hence, subject to judicial review, and, to the extent this view may be inconsistent with the stand taken in Mabanag vs. Lopez Vito the latter should be deemed modified accordingly. The Members of the Court are unanimous on this point." (Gonzales vs. Commission on Elections, et al, L28196, November 9, 1967, 21 SCRA 774, 786-787). The abandonment of the Mabanag vs. Lopez Vito doctrine appears to have been completed when, in Javellana vs. Secretary, et al. (L-36142, March 3l, 1973, 50 SCRA 30), six members of the Court concurred in the view that the question of whether the 1973 Constitution was ratified in accordance with the provisions of Article XV (Amendments) of the 1935 Constitution is inherently and essentially justiciable. As elucidated therein, with extensive quotations from Tanada vs. Cuenco (103 Phil. 1051)... the term 'political question' connotes, in legal parlance, what it means in ordinarily parlance, namely, a question of policy in matters concerning the government of a State, as a body politic. In other words, in the language of Corpus Juris Secundum (supra), it refers to 'those questions which, under the Constitution, are to be decided by the people in their sovereign capacity, or in regard to which full discretionary authority has been delegated to the Legislature or executive branch of the government.' It is concerned with issues dependent upon the wisdom, not legality, of a particular measure.' Accordingly, when the grant of power is qualified, conditional or subject to limitations, the issue on whether or not the prescribed qualifications or

conditions have been met, or the limitations respected, is justiciable or nonpolitical, the crux of the problem being one of legality or validity of the contested act, not its wisdom. Otherwise, said qualifications, conditions or limitations - particularly those prescribed or imposed by the Constitution would be set at naught." (Javellana vs. Executive Secretary, supra). So it is in the situation here presented. The basic issue is the constitutional validity of the presidential acts of proposing amendments to the Constitution and of calling a referendum-plebiscite for the ratification of the proposals made. Evidently, the question does not concern itself with the wisdom of the exercise of the authority claimed or of the specific amendments proposed. Instead the inquiry vel non is focused solely on the existence of the said power in the President - a question purely of legality determinable thru interpretation and construction of the letter and spirit of the Constitution by the Court as the final arbiter in the delineation of constitutional boundaries and the allocation of constitutional powers. For the Court to shun cognizance of the challenge herein presented, especially in these parlous years, would be to abdicate its constitutional powers, shirk its constitutional responsibility, and deny the people their ultimate recourse for judicial determination. I have thus no hesitancy in concluding that the question here presented is well within the periphery of judicial inquiry. II Second Issue The main question stands on a different footing; it appears unprecedented both here and elsewhere. Its solution, I believe, can be found and unraveled only by a critical assessment of the existing legal order in the light of the prevailing political and factual milieu. To be sure, there is an impressive array of consistent jurisprudence on the proposition that, normally or under normal conditions, a Constitution may be amended only in accord with the procedure set forth therein. Hence, if there be any such prescription for the amendatory process as invariable there is because one of the essential parts of a Constitution is the so-called "constitution of sovereignty" which comprises the provision or provisions on the modes in accordance with which formal changes in the fundamental law

may be effected the same would ordinarily be the controlling criterion for the validity of the amendments sought. Unfortunately, however, during the present transition period of our political development, no express provision is extant in the Constitution regarding the agency or agent by whom and the procedure by which amendments thereto may be proposed and ratified fact overlooked by those who challenge the validity of the presidential acts in the premises. This is so because there are at least two distinctly in the transition from the old system of government under the 1935 Constitution to the new one established by the 1973 Constitution. The first stage comprises the period from the effectivity of the Constitution on January 17, 1973 to the time the National Assembly is convened by the incumbent President and the interim President and the interim Prime Minister are chosen Article XVII, Sections 1 and 3[1]. The existence of this stage as an obvious fact of the nation's political life was recognized by the Court in Aquino vs. Commission on Elections, et al. (L-40004, January 31, 1975, 62 SCRA 275), when it rejected the claim that, under the 1973 Constitution, the President was in duty bound to convene the interim National Assembly soon after the Constitution took effect. The second stage embraces the period from the date the interim National Assembly is convened to the date the Government described in Articles VII to IX of the Constitution is inaugurated, following the election of the members of the regular National Assembly (Article XVII, Section 1) and the election of the regular President and Prime Minister,. This is as it should be because it is recognized that the President has been accorded the discretion to determine when he shall initially convene the interim National Assembly, and his decision to defer the convocation thereof has found overwhelming support by the sovereign people in two previous referenda, therein giving reality to an interregnum between the effectivity of the Constitution and the initial convocation of the interim National Assembly, which interregnum, as aforesaid, constitutes the first stage in the transition period. Against this factual backdrop, it is readily discernible that neither of the two sets of provisions embodied in the Constitution on the amendatory process applied during the said first stage. Thus, Section 15, Article XVII (Transitory Provisions) provides-

"Sec. 15. The interim National Assembly, upon special call by the interim Prime Minister, may, by a majority vote of all its Members, propose amendments to this Constitution. Such amendments shall take effect when ratified in accordance with Article Sixteen hereof." Patently, the reference to the "interim National Assembly" and the "interim Prime Minister" limits the application thereof to the second stage of the transition period, i.e.,., after the interim? National Assembly shall have been convened and the interim Prime Minister shall have been chosen. Upon the other hand, the provisions of Article XVI (Amendments), to witSECTION 1. (1) Any amendment to, or revision of, this Constitution may be proposed by the National Assembly upon a vote of three-fourths of all its Members, or by a constitutional convention. (2) The National Assembly may, by a vote of two-thirds of all its Members, call a constitutional convention or, by a majority vote of all its Members, submit the question of ceiling such a convention to the electorate in an election. SEC. 2. Any amendment to, or revision of, this Constitution shall be valid when ratified by a majority of the votes cast in a plebiscite which shall be held not later than three months after the approval of such amendment or revision. unequivocally contemplate amendments after the regular Government shall have become fully operative, referring as they do to the National Assembly which will come into being only at that time. In the face of this constitutional hiatus, we are confronted with the dilemma whether amendments to the Constitution may be effected during the aforesaid first stage and, if in the affirmative, by whom and in what manner such amendments may be proposed and ratified. Susceptibility to change is one of the hallmarks of an Ideal Constitution. Not being a mere declaration of the traditions of a nation but more the embodiment of a people's hopes and aspirations, its strictures are not unalterable. They are, instead, dynamic precepts intended to keep in stride with and attuned to the living social organism they seek to fashion and

govern. If it is conceded that "the political or philosophical aphorism of one generation is doubted by the next and entirely discarded by the third," then a Constitution must be able to adjust to the changing needs and demands of society so that the latter may survive, progress and endure. On these verities, there can be no debate. During the first stage of the transition period in which the Government is at present - which is understandably the most critical - the need for change may be most pressing and imperative, and to disavow the existence of the right to amend the Constitution would be sheer political heresy. Such view would deny the people a mechanism for effecting peaceful change, and belie the organic conception of the Constitution by depriving it of its means of growth. Such a result obviously could not have been intended by the framers of the fundamental law. It seems, however, that the happenstance that the first period would come to pass before the convocation of the interim National Assembly was not anticipated, hence, the omission of an express mandate to govern the said situation in so far as amendments are concerned. But such omission through inadvertence should not, because it cannot, negate the sovereign power of the people to amend the fundamental charter that governs their lives and their future and perhaps even the very survival of the nation. Upon the other hand, it is clear from the afore-quoted provisions on the amendatory process that the intent was, instead, to provide a simpler and more expeditious mode of amending the Constitution during the transition period. For, while under Article XVI thereof, proposals for amendment may be made directly by the regular National Assembly by a vote of at least threefourths of all its members, under Section 15 of Article XVII, a bare majority vote of all the members of the National Assembly would suffice for the purpose. The relaxation and the disparity in the vote requirement are revealing. The can only signify a recognition of the need to facilitate the adoption of amendments during the second stage of the transition period so that the interim National Assembly will be able, in a manner of speaking, to iron out the kinks in the new Constitution, remove imperfections therein, and provide for changed or changing circumstances before the establishment of the regular Government. In this contest, therefore, it is inutile speculation to assume that the Constitution was intended to render impotent or ar the effectuation of needful change at an even more critical period - the first stage. With greater reason, therefore, must the right and power to amend the

Constitution during the first stage of te transition period be upheld, albeit within its express and implied constraints. Neither can it be successfully argued, in the same context and in the present posture, that the Constitution may be amended during the said first stage only by convening the interim National Assembly. That is to say and require that he said stage must first be brought to an end before any amendment may be proposed and ratified. Settled jurisprudence does not square with such a proposition. As aptly noted in Aquino vs. Commission on Elections, et al., supra, the framers of the Constitution set no deadline for the convening of the interim National Assembly because they could not have foreseen how long the crises which impelled the proclamation and justify the continued state of martial law would last. Indeed, the framers committed to the sound judgment is not subject to judicial review, save possibly to determine whether arbitrariness has infected such exercise; absent such a taint, the matter is solely in the keeping of the President. To thus content that only by convening the interim National Assembly may the Constitution be amended at this time would effectively override the judgement vested in the President, even in default of any he has acted arbitrarily or gravely abuse his discretion. Furthermore, to sustain such a contention would not only negate the mandate so resoundingly expressed by the people in two national referenda against the immediate convening of the interim National Assembly, but as well deride their overwhelming approval of the manner in which the President has exercised the legislative power to issue proclamations, orders, decrees and instructions having the stature and force of law. Given the constitutional stalemate or impasse spawned by these supervening developments, the logical query that compels itself for resolution is: By whom, then, may proposals for the amendment of the Constitution be made and in what manner may said proposals be ratified by the people? It is conventional wisdom that, conceptually, the constituent power is not to be confuse with legislative power in general because the prerogative to propose amendments to the Constitution is not in any sense embraced within the ambit of ordinary law-making. Hence, there is much to recommend the proposition that, in default of an express grant thereof, the legislature traditionally the delegated repository thereof - may not claim it under a general grant of legislative authority. In the same vein, neither would it be altogether unassailable to say that because by constitutional tradition and express allocation the constituent power under the Constitution is locate in

the law-making agency and at this stage of the transition period the lawmaking authority is firmly recognized as being lodged in the President, the said constituent power should now logically be in the hands of te President who may thus exercise it in place of the interim National Assembly. Instead,, as pointed out in Gonzales vs. Commission on Elections, et al., supra, the power to amend the Constitution or to propose amendments thereto ... is part of the inherent powers of the people - as the repository of sovereignty in a republican state, such as ours - t o make, and, hence, to amend their own Fundamental Law. As such, it is undoubtedly a power that only the sovereign people, either directly by themselves or through their chosen delegate, can wield. Since it has been shown that the people, inadvertently or otherwise, have not delegated that power to inadvertently or otherwise, have not delegated that power to any instrumentality during the current stage of our hegira from crisis to normalcy, it follows of necessity that the same remains with them for them to exercise in the manner they see fit and through the agency they choose. And, even if it were conceded that - as it is reputedly the rule in some jurisdictions - a delegation of the constituent authority amounts to a complete divestiture from the people of the power delegated which they may not thereafter unilaterally reclaim from the delegate, there would be no violence donde to such rule, assuming it to be applicable here, inasmuch as that power, under the environmental circumstance adverted to, has not been delegated to anyone in the first place. The constituent power during the first stage of the transition period belongs to and remains with the people, and accordingly may be exercised by them - how and when - at their pleasure. At this juncture, a flashback to the recent and contemporary political ferment in the country proves revelatory. The people, shocked and revolted by the "obvious immorality" of the unabashed manner by which the delegates to the Constitutional Convention virtually legislated themselves into office as ipso facto members of the interim National Assembly by the mere fiat of voting for the transitory provisions of the Constitution. and the stark reality that the unwieldy political monstrosity that the interim Assembly portended to be would have proven to be a veritable drain on the meager financial resources of a nation struggling for survival, have unequivocally put their foot down, as it were, on the convocation thereof. But this patently salutary decision of the people proved to be double-edged. It likewise bound the political machinery

of the Government in a virtual straight-jacket and consigned the political evolution of the nation into a state of suspended animation. Faced with the ensuing dilemma, the people understandably agitated for a solution. Through consultations in the barangays and sanggunian assemblies, the instrumentalities through which the people's voice is articulated in the unique system of participatory democracy in the country today, the underpinnings for the hastening of the return to constitutional normalcy quickly evolved into an overwhelming sentiment to amend the Constitution in order to replace the discredited interim National Assembly with what the people believe will be an appropriate agency to eventually take over the law-making power and thus pave the way for the early lifting of martial rule. In pursuit of this sentiment, and to translate its constraints into concrete action, the Pambansang Katipunan ng Barangay, the Pambansang Katipunan ng mga Kabataang Barangay, the Lupong Tagapagpaganap of the Katipunan ng mga Barangay, the Pambansang Katipunan ng mga Kabataang Barangay the Lupong Tagapagpaganap of the Katipunan ng mga Sanggunian, and finally the Batasang Bayan, to a man and as one voice, have come forward with definitive proposals for the amendment of the Constitution, and, choosing the President the only political arm of the State at this time through which that decision could be implemented and the end in view attained as their spokesman, proposed the amendments under challenge in the cases at bar. In the light of this milieu and its imperatives, one thing is inescapable: the proposals now submitted to the people for their ratification in the forthcoming referendum-plebiscite are factually not of the President; they are directly those of the people themselves speaking thru their authorized instrumentalities. The President merely formalized the said proposals in Presidential Decree No. 1033. It being conceded in all quarters that sovereignty resides in the people and it having been demonstrated that their constituent power to amend the Constitution has not been delegated by them to any instrumentality of the Government during the present stage of the transition period of our political development, the conclusion is ineluctable that their exertion of that residuary power cannot be vulnerable to any constitutional challenge as being ultra vires. Accordingly, without venturing to rule on whether or not the President is vested with constituent power as it does not appear necessary to do so in the premises the proposals here challenged, being acts of the sovereign people no less, cannot be said to be afflicted with unconstitutionality. A fortiori, the concomitant authority to call a plebiscite and to appropriate funds therefor is even less vulnerable not only because the President, in exercising said authority has acted as a mere alter

ego of the people who made the proposals, but likewise because the said authority is legislative in nature rather than constituent. III Third Issue Little need be said of the claimed insufficiency and impropriety of the submission of the proposed amendments for ratification from the standpoint of time. The thesis cannot be disputed that a fair submission presupposes an adequate time lapse to enable the people to be sufficiently enlightened on the merits or demerits of the amendments presented for their ratification or rejection. However, circumstances there are which unmistakably demonstrated that the is met. Even if the proposal appear to have been formalized only upon the promulgation of Presidential Decree No. 1033 on September 22, 1976, they are actually the crystallization of sentiments that for so long have preoccupied the minds of the people and their authorized representatives, from the very lowest level of the political hierarchy. Hence, unlike proposals emanating from a legislative body, the same cannot but be said to have been mulled over, pondered upon, debated, discussed and sufficiently understood by the great masses of the nation long before they ripened into formal proposals. Besides. it is a fact of which judicial notice may well be taken that in the not so distant past when the 1973 Constitution was submitted to the people for ratification, an all-out campaign, in which all the delegates of the Constitutional Convention reportedly participated, was launched to acquaint the people with the ramifications and working of the new system of government sought to be inaugurated thereunder. It may thus well be assumed that the people in general have since acquired, in the least, a working knowledge of the entirety of the Constitution. The changes now proposed the most substantial of which being merely the replacement of the interim National assembly with another legislative arm for the Government during the transition period until the regular National Assembly shall have been constituted do not appear to be of such complexity as to require considerable time to be brought home to the full understanding of the people. And, in fact, the massive and wide-ranging informational and educational campaign to this end has been and still is in full swing, with all the media the barangay, the civic and sectoral groups, and even the religious all over the

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

instrument of government policy however admittedly salutary or desirable. There is still the need to demonstrate that the conclusion reached by it in cases appropriate for its determination has support in the law that must be applied. To my mind that was the norm followed, the conclusion reached being that the three petitions be dismissed. I am in agreement. It is with regret however that based on my reading of past decisions, both Philippine and American, and more specifically my concurring opinion in Aquino v. Ponce Enrile, I must dissent from the proposition set forth in the able and scholarly opinion of Justice Martin that there is concentration of power in the President during a crisis government. Consequently, I cannot see my way clear to accepting the view that the authority to propose amendments is not open to question. At the very least, serious doubts could be entertained on the matter. 1. With due respect then, I have to dissociate myself from my brethren who would rule that governmental powers in a crisis government, following Rossiter, "are more or less concentrated in the President." Adherence to my concurring and dissenting opinion in Aquino v. Ponce Enrile leaves me no choice. It must be stated at the outset that with the sufficiency of doctrines supplied by our past decisions to point the way to what I did consider the appropriate response to the basic issue raised in the Aquino and the other habeas corpus petitions resolved jointly, it was only in the latter portion of my opinion that reference was made to United States Supreme Court pronouncements on martial law, at the most persuasive in character and rather few in number "due no doubt to the, absence in the American Constitution of any provision concerning it." 7 It was understandable then that it was only after the landmark Ex parte Milligan case, that commentators like Cooley in 1868 and Watson in 1910 paid attention, minimal by that, to the subject." It was next set forth that in the works on American constitutional law published in this century specially after the leading cases of cases Sterling v. Constant in and Duncan v. Kahanamoku, "there was a fuller treatment of the question of martial law While it is the formulation of Willoughby that for me is most acceptable, my opinion did take note that another commentator, Burdick, came out earlier with a similar appraisal. 10 Thus: "So called martial law, except in occupied territory of an enemy is merely the calling in of the aid of military forces by the executive, who is charged with the enforcement of the law, with or without special authorization by the legislature. Such declaration of martial law does not suspend the civil law, though it may interfere with the exercise of one's

ordinary rights. The right to call out the military forces to maintain order and enforce the law is simply part of the Police power, It is only justified when it reasonably appears necessary, and only justifies such acts as reasonably appear necessarily to meet the exigency, including the arrest, or in extreme cases the. killing of those who create the disorder or oppose the authorities. When the exigency is over the members of the military forces are criminally and civilly habit for acts done beyond the scope of reasonable necessity. When honestly and reasonably coping with a situation of insurrection or riot a member of the military forces cannot be made liable for his acts, and persons reasonably arrested under such circumstances will not, during the insurrection or riot, be free by writ of habeas corpus." 11 When the opinion cited Willoughby's concept of martial law, stress was laid on his being "Partial to the claims of liberty."12 This is evident in the explicit statement from his work quoted by me: "There is, then, strictly speaking, no such thing in American law as a declaration of martial law whereby military law is substituted for civil law. So-called declarations of martial law are, indeed, often made but their legal effect goes no further than to warn citizens that the military powers have been called upon by the executive to assist him in the maintenance of law and order, and that, while the emergency lasts, they must, upon pain of arrest and punishment not commit any acts which will in any way render more difficult the restoration of order and the enforcement of law. Some of the authorities stating substantially this doctrine are quoted in the footnote below Nor did I stop there. The words of Willis were likewise cited: "Martial law proper, that is, military law in case of insurrection, riots, and invasions, is not a substitute for the civil law, but is rather an aid to the execution of civil law. Declarations of martial law go no further than to warn citizens that the executive has called upon the military power to assist him in the maintenance of law and order. While martial law is in force, no new powers are given to the executive and no civil rights of the individual, other than the writ of habeas corpus, are suspended. The relations between the citizen and his stature unchanged." 14 The conclusion reached by me as to the state of American federal law on the question of martial law was expressed thus: 4'1 It is readily evident that even when Milligan supplied the only authoritative doctrine, Burdick and Willoughby did not ignore the primacy of civil liberties. Willis wrote after Sterling. It would indeed be surprising if his opinion were otherwise. After Duncan, such an approach becomes even more strongly fortified. Schwartz, whose treatise is the latest to be published, has this summary of what he considers the present state of American law: 'The Milligan and Duncan cases

show plainly that martial law is the public law of necessity. Necessities alone calls it forth, necessity justifies its exercise; and necessities measures the extended degree to which it may be It is, the high Court has affirmed, an unbending rule of law that the exercise of military power, where the rights of the citizen are concerned, may, never be pushed beyond what the exigency requires. If martial law rule survive the necessities on which alone it rests, for even a single minute it becomes a mere exercise of lawless violence.' Further: Sterling v. Constantin is of basic importance. Before it, a number of decisions, including one the highest Court, went or on the theory that the executive had a free hand in taking martial law measures. Under them, it has been widely supposed that in proclamation was so far conclusive that any action taken under it was immune from judicial scrutiny. Sterling v. Constantin definitely discredits these earlier decisions and the doctrine of conclusiveness derived from them. Under Sterling v. Constantin, where martial law measures impinge upon personal or property rights-normally beyond the scope of military power, whose intervention is lawful only because an abnormal Actuation has made it necessary the executive's ipse dixit is not of itself conclusive of the necessity.'" 15 There was likewise an effort on my part to show what for me is the legal effect of martial law being expressly provided for in the Constitution rather than being solely predicated on the common law power based on the urgent need for it because of compelling circumstances incident to the state of actual clash of arms: "It is not to be lost sight of that the basis for the declaration of martial law in the Philippines is not mere necessity but an explicit constitutional provision. On the other hand, Milligan, which furnished the foundation for Sterling and Duncan had its roots in the English common law. There is pertinence therefore in ascertaining its significance under that system. According to the noted English author, Dicey: 'Martial law,' in the proper sense of that term, , in which - it means the suspension of ordinary law and the temporary government of a country or parts of it be military tribunals, is unknown to the law of England. We have nothing equivalent to what is called in France the "Declaration of the State of Siege," under which the authority ordinarily vested in the civil power for the maintenance of order and police passes entirely to the army (autorite militaire). This is an unmistakable proof of the permanent supremacy of the law under our constitution. There was this qualification: 'Martial law is sometimes employed as a name for the common law right of the Crown and its servants to repel force by force in the case of invasion, insurrection, riot, or generally of any violent resistance to the law. This right, or power, is essential to the very

existence of orderly government, and is most assuredly recognized in the most ample manner by the law of England. It is a power which has in itself no special connection with the existence of an armed force. The Crown has the right to put down breaches of the peace. Every subject, whether a civilian or a soldier, whether what is called a servant of the government,' such for example as a policeman, or a person in no way connected with the administration, not only has the right, but is, as a matter of legal duty, bound to assist in putting down breaches of the peace. No doubt policemen or soldiers are the persons who, as being specially employed in the maintenance of order, are most generally called upon to suppress a riot, but it is clear that all loyal subjects are bound to take their part in the suppression of riots." 16 Commitment to such an approach results in my inability to subscribe to the belief that martial law in terms of what is provided both in the 1935 and the present Constitution, affords sufficient justification for the concentration of powers in the Executive during periods of crisis. The better view, considering the juristic theory on which our fundamental law rests is that expressed by Justice Black in Duncan v. Kahanamoku: "Legislatures and courts are not merely cherished American institutions; they are indispensable to our government. 17 If there has been no observance of such a cardinal concept at the present, it is due to the fact that before the former Congress could meet in regular session anew, the present Constitution was adopted, abolishing it and providing for an interim National Assembly, which has not been convened. 18 So I did view the matter. 2. Nor did I ignore Rossiter in my Aquino v. Ponce Enrile opinion. Reference was made to the first chapter on his work on Constitutional Dictatorship where he spoke of martial rule as "a device designed for use in the crisis of invasion or rebellion. It may be most precisely defined as an extension of military government to the civilian population, the substitution of the will of a military commander for the will of the people's elected government." 19 Since, for me at least, the Rossiter characterization of martial law has in it more of the common law connotation, less than duly mindful of the jural effects of its inclusion in the Constitution itself as a legitimate device for coping with emergency conditions in times of grave danger, but always subject to attendant limitations in accordance with the fundamental postulate of a charter's supremacy, I felt justified in concluding: "Happily for the Philippines, the declaration of martial law lends itself to the interpretation that the Burdick, Willoughby, Willis, Schwartz formulations paying due regard to the primacy of

liberty possess relevance. lt cannot be said that the martial rule concept of Rossiter, latitudinarian in scope, has been adopted, even on the assumption that it can be reconciled with our Constitution. What is undeniable is that President Marcos has repeatedly maintained that Proclamation No. 1081 was precisely based on the Constitution and that the validity of acts taken there under could be passed upon by the Supreme court. For me that is quite reassuring, persuaded as I am likewise that the week- of Rossiter is opposed to the fundamental concept of our polity, which puts a premium on freedom."
20

3. Candor and accuracy compel the admission that such a conclusion his to be qualified. For in the opinion of the Court in the aforecited Aquino v. Commission on Elections, penned by Justice Makasiar, the proposition was expressly affirmed "that as Commander-in-Chief and enforcer or administrator of martial law, the incumbent President of the Philippines can reclamations, orders and decrees during the period Martial Law essential to the security and preservation of the Republic, to the defense of the political and social liberties of the people and to the institution of reforms to prevent the resurgence of rebellion or insurrection or secession or the threat thereof as well as to meet the impact of a worldwide recession, inflation or economic crisis which presently threatens all nations including highly developed countries." 21 To that extent, Rossiter's view mainly relied upon, now possesses Juristic significant in this jurisdiction. What, for me at least, gives caused for concern is that with the opinion of the Court this intrusion of what I would consider an alien element in the limited concept of martial law as set forth in the Constitution would be allowed further incursion into the corpus of the law, with the invocation of the view expressed in the last chapter of his work approving tile "concentration of governmental power in a democracy [as] a corrective to the crisis inefficiencies inherent in the doctrine of the separation of powers." 22 It is to the credit of the late Professor Rossiter as an objective scholar that in the very same last chapter, just three pages later, he touched explicitly on the undesirable aspect of a constitutional dictatorship. Thus: "Constitutional Dictatorship is a dangerous thing. A declaration of martial law or the passage of an enabling act is a step which must always be feared and sometimes bitterly resisted, for it is at once an admission of the incapacity of democratic institutions to defend the order within which they function and a too conscious employment of powers and methods long ago outlawed as destructive of constitutional government. Executive legislation, state control of popular liberties, military courts, and arbitrary executive action were governmental features attacked by the men who fought for freedom not

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

opinion of the Court, while no doubt a partisan of d strong Presidency, was not averse to constitutional restraints even during periods of crisis. So I would interpret this excerpt from the fourth edition of his classic treatise on the Presidency: "A regime of martial law may be compendiously, if not altogether accurately, defined as one in which the ordinary law, as administered by the ordinary courts, is superseded for the time being by the will of a military commander. It follows that, when martial law is instituted under national authority, it rests ultimately on the will of the President of the United States in his capacity as Commander-in-Chief. It should be added at once, nevertheless, that the subject is one in which the record of actual practice fails often to support the niceties of theory. Thus, the employment of the military arm in the enforcement of the civil law does not invariably, or even usually, involve martial law in the strict sense, for, as was noted in the preceding section, soldiers are often placed simply at the disposal and direction of the civil authorities as a kind of supplementary police, or posse comitatus on the other hand be reason of the discretion that the civil authorities themselves are apt to vest in the military in any emergency requiring its assistance, the line between such an employment of the military and a regime of martial law is frequently any but a hard and fast one. And partly because of these ambiguities the conception itself of martial law today bifurcates into two conceptions, one of which shades off into military government and the other into the situation just described, in which the civil authority remains theoretically in control although dependent on military aid. Finally, there is the situation that obtained throughout the North during the Civil War, when the privilege of the writ of habeas corpus was suspended as to certain classes of suspects, although other characteristics of martial law were generally absent." 26 It is by virtue of the above considerations that, with due respect to the opinion of my brethren, I cannot yield assent to the Rossiter view of concentration of governmental powers in the Executive during martial law. 5 There is necessity then, for me at least, that the specific question raised in all three petitions be squarely faced. It is to the credit of the opinion of the Court that it did so. The basic issue posed concerns the boundaries of the power of the President during this period of martial law, more precisely whether it covers proposing amendments to the Constitution. There is the further qualification if the stand of respondents be taken into account that the interim National Assembly has not been convened and is not likely to be called into session in deference to the wishes of the people as expressed in

three previous referenda. It is the ruling of the majority that the answer be in the affirmative, such authority being well within the area of presidential competence. Again I find myself unable to join readily in that conviction. It does seem to me that the metes and bounds of the executive domain, while still recognizable, do appear blurred. This is not to assert that there is absolutely no basis for such a conclusion, sustained as it is by a liberal construction of the principle that underlies Aquino v. Commission on Elections as to the validity of the exercise of the legislative prerogative by the President as long as the interim National Assembly is not For me, the stage of certitude has not been reached. I cannot simply ignore the vigorous plea of petitioners that there is a constitutional deficiency consisting in the absence of any constituent power on the part of the President, the express provision of the Constitution conferring it on the by team National Assembly. 27 The learned advocacy reflected in the pleadings as well as the oral discourse of Solicitor General Estelito P. Mendoza 21 failed to erase the grave doubts in my mind that the Aquino doctrine as to the possession of legislative competence by the President during this period of transition with the interim lawmaking body not called into session be thus expanded. The majority of my brethren took that step. I am not prepared to go that far. I will explain why. The way for me, is beset with obstacles. In the first place, such an approach would lose sight of the distinction between matters legislative and constituent. That is implicit in the treatise on the 1935 Constitution by Justices Malcolm and Laurel In their casebook published the same year, one of the four decisions on the subject of constitutional amendments is Ellingham v. Dye 31 which categorically distinguished between constituent and legislative powers. Dean Sinco, a well-known authority on the subject, was quite explicit. Thus: "If there had been no express provision in the Constitution granting Congress the power to propose amendments, it would be outside its authority to assume that power. Congress may not claim it under the general grant of legislative power for such grant does not carry with it the right 'to erect the state, institute the form of its government,' which is considered a function inherent in the people. Congressional law- making authority is limited to the power of approving the laws 'of civil conduct relating to the details and particulars of the government instituted,' the government established by the people."12 If that distinction be preserved, then for me the aforecited Aquino decision does not reach the heart of the matter. Nor is this all. In the main opinion of Justice Makasiar as well as that of the then Justice, now Chief Justice, Castro, support for the ruling that the President cannot be deemed as devoid of legislative power during this transition stage is supplied

by implications from explicit constitutional provisions. 13 That is not the case with the power to propose amendments. It is solely the interim National Assembly that is mentioned. That is the barrier that for me is well-nigh insurmountable. If I limit myself to entertaining doubts rather than registering a dissent on this point, it is solely because of the consideration, possessed of weight and significance, that there may be indeed in this far-from-quiescent and static period a need for al. amendments. I do not feel confident therefore that a negative vote on my part would be warranted. What would justify the step taken by the President, even if no complete acceptance be accorded to the view that he was a mere conduit of the barangays on this matter, is that as noted in both qualified concurrences by Justices Teehankee and Munoz Palma in Aquino, as far as the legislative and appropriately powers are concerned, is the necessity that unless such authority be recognized, there may be paralyzation of governmental activities, While not squarely applicable, such an approach has, to my mind, a persuasive quality as far as the power to propose amendments is concerned. Thus I would confine myself to the expression of serious doubts on the question rather than a dissent. 6. The constitutional issue posed as thus viewed leaves me free to concur in the result that the petitions be dismissed. That is to accord respect to the principle that judicial review goes no further than to checking clear infractions of the fundamental law, except in the field of human rights where a much greater vigilance is required, That is to make of the Constitution a pathway to rather than a barrier against a desirable objective. -As shown by my concurring and dissenting opinion in Tolentino Commission on Elections '34 a pre-martial law decision, the fundamental postulate that sovereignty resides in the people exerts a compelling force requiring the judiciary to refrain as much as possible from denying the people the opportunity to make known their wishes on matters of the utmost import for the life of the nation, Constitutional amendments fall in that category. I am fortified in that conviction by the teaching of persuasive American decisions There is reinforcement to such a conclusion from retired Chief Justice Concepcion's concurring and dissenting opinion in Aytona v. Castillo,17 Which I consider applicable to the present situation. These are his words: "It is well settled that the granting of writs of prohibition and mandamus is ordinarily within the sound discretion of the courts, to be exercised on equitable principles, and that said writs should be issued when the right to the relief is clear * * by As he noted in his ponencia in the later case of Gonzales v. Hechanova,19 an

action for prohibition, while petitioner was sustained in his stand, no injunction was issued. This was evident in the dispositive portion where judgment was rendered "declaring that respondent Executive Secretary had and has no power to authorize the importation in question; that he exceeded his jurisdiction in granting said authority; that said importation is not sanctioned by law and is contrary to its provisions; and that, for lack of the requisite majority, the injunction prayed for must be and is, accordingly, denied." 40 With the illumination thus supplied, it does not necessarily follow that even a dissent on my part would necessarily compel that I vote for the relief prayed for. Certainly this is not to belittle in any way the action taken by petitioners in filing these suits. That, for me, is commendable. It attests to their belief in the rule of law. Even if their contention as to lack of presidential power be accepted in their entirety, however, there is still discretion that may be exercised on the matter, prohibition being an equitable remedy. There are, for me, potent considerations that argue against acceding to the plea. With the prospect of the interim National Assembly being convened being dim, if not non- existent, if only because of the results in three previous referenda, there would be no constitutional agency other than the Executive who could propose amendments, which, as noted. may urgently press for adoption. Of even greater weight, to my mind, is the pronouncement by the President that the plebiscite is intended not only to solve a constitutional anomaly with the country devoid of a legislative body but also to provide. the machinery be which the termination of martial law could be hastened. That is a consummation devoutly to be wished. That does militate strongly against the stand of petitioners. The obstruction they would pose may be fraught with pernicious consequences. It may not be amiss to refer anew to what I deem the cardinal character of the jural postulate explicitly affirmed in both the 1935 and the present Constitutions that sovereignty resides in the people. So I made clear in Tolentino v. Commission on Elections and thereafter in my dissent in Javellana v. The Executive Secretary" and my concurrence in Aquino v. Commission on Elections. 42 The destiny of the country lies in their keeping. The role of leadership is not to be minimized. It is crucial it is of the essence. Nonetheless, it is their will, if given expression in a manner sanctioned by law and with due care that there be no mistake in its appraisal, that should be controlling. There is all the more reason then to encourage their participation in the power process. That is to make the regime truly democratic. Constitutional orthodoxy requires, however, that the fundamental law be followed. So I would interpret Laski, 43 Corwin, 44 Lerner, 45, BrynJones, 46 and McIver.47

7. There is reassurance in the thought that this Court has affirmed its commitment to the principle that the amending process gives rise to a justiciable rather than a political question. So, it has been since the leading case of Gonzales v. Commission on Election S. 48 It has since then been followed in Tolentino v. Commission on Elections 49 Planas v. Commission on Elections," and lastly, in Javellana v. The Executive Secretary This Court did not heed the vigorous plea of the Solicitor General to resurrect the political question doctrine announced in Mabanag v. Lopez Vito. 52 This is not to deny that the federal rule in the United States as set forth in the leading case of Coleman v. Miller , 53 a 1939 decision, and relatively recent State court decisions, supply ammunition to such a contention., 51 That may be the case in the United States, but certainly not in this jurisdiction. Philippine constitutional tradition is to the contrary. It can trace its origin to these words in the valedictory address before the 1934-35 Constitutional Convention by the illustrious Claro M. Recto: "It is one of the paradoxes a democracy that the people of times place more confidence in instrumentalities of the State other than those directly chosen by them for the exercise of their sovereignty It can be said with truth, therefore, that there has invariably been a judicial predisposition to activism rather than self-restraint. The thinking all these years has been that it goes to the heart of constitutionalism. It may be said that this Court has shunned the role of a mere interpreter; it did exercise at times creative power. It has to that extent participated in the molding of policy, It has always recognized that in the large and undefined field of constitutional law, adjudication partakes of the quality of statecraft. The assumption has been that just because it cannot by itself guarantee the formation, much less the perpetuation of democratic values or, realistically, it cannot prevail against the pressure of political forces if they are bent in other directions. it does not follow that it should not contribute its thinking to the extent that it can. It has been asked, it will continue to be asked, to decide momentous questions at each critical stage of this nation's life. There must be, however, this caveat. Judicial activism gives rise to difficulties in an era of transformation and change. A society in flux calls for dynamism in "he law, which must be responsive to the social forces at work. It cannot remain static. It must be sensitive to life. This Court then must avoid the rigidity of legal Ideas. It must resist the temptation of allowing in the wasteland of meaningless abstractions. It must face stubborn reality. It has to have a feel for the complexities of the times. This is not to discount the risk that it may be swept too far and too fast in the surge of novel concepts. The past too is entitled to a hearing; it cannot just be summarily ignored. History

still has its uses. It is not for this Court to renounce the virtue of systematic jural consistency. It cannot simply yield to the sovereign sway of the accomplished fact. It must be deaf to the dissonant dialectic of what appears to be a splintered society. It should strive to be a factor for unity under a rule of law. There must be, on its part, awareness of the truth that a new juridical age born before its appointed time may be the cause of unprecedented travail that may not end at birth. It is by virtue of such considerations that I did strive for a confluence of principle and practicality. I must confess that I did approach the matter with some misgivings and certainly without any illusion of omniscience. I am comforted by the thought that immortality does not inhere in judicial opinions. 8. 1 am thus led by my studies on the subject of constitutional law and, much more so, by previous judicial opinions to concur in the dismissal of the petitions. If I gave expression to byes not currently fashionable, it is solely due to deeply-ingrained beliefs. Certainly, I am the first to recognize the worth of' the social and economic reforms so needed by the troubled present that have been introduced and implemented. There is no thought then of minimizing, much less of refusing to concede, the considerable progress that has been made and the benefits that have been achieved under this Administration. Again, to reiterate one of my cherished convictions, I certainly approve of the adherence to the fundamental principle of popular sovereignty which, to be meaningful however, requires both freedom in its manifestation and accuracy in ascertaining what it wills. Then, too, it is fitting and proper that a distinction was made between two aspects of the coming poll, the referendum and the plebiscite. It is only the latter that is impressed with authoritative force. So the Constitution requires. Lastly, there should be, as I did mention in my concurrence in Aquino v. Commission on Elections,56 full respect for free speech and press, free assembly and free association. There should be no thought of branding the opposition as the enemy and the expression of its views as anathema, Dissent, it is fortunate to note, has been encouraged. It has not been Identified with disloyalty. That ought to be the case, and not solely due to presidential decrees. Constructive criticism is to be welcomed not so much because of the right to be heard but because there may be something worth hearing. That is to ensure a true ferment of Ideas, an interplay of knowledgeable minds. There are though well- defined limits, One may not advocate disorder in the name of protest, much less preach rebellion under the cloak of dissent.. What I mean to stress is that except on a showing of clear and present danger, there must be respect for the traditional liberties that make a society truly free.

TEEHANKEE, J., dissenting: 1. On the merits: I dissent from the majority's dismissal of the petitions for lack of merit and vote to grant the petitions for the following reasons and considerations: 1. It is undisputed that neither the 1935 Constitution nor the 1973 Constitution grants to the incumbent President the constituent power to propose and approve amendments to the Constitution to be submitted to the people for ratification in a plebiscite. The 1935 Constitution expressly vests the constituent power in Congress, be a three-fourths vote of all its members, to propose amendments or call a constitutional convention for the purpose The 1973 Constitution expressly vests the constituent power in the regular National Assembly to propose amendments (by a three-fourths vote of all its members) or "call a constitutional convention" (by a two-thirds vote of all its members) or "submit the question of calling such convention to the electorate in an election" (by a majority vote of all its members ) .2 The transitory provisions of the 1973 Constitution expressing vest the constituent power during the period of transition in the interim National Assembly "upon special call be the Prime Minister (the incumbent President 3)... by a majority ore of all its members (to) propose amendments." Since the Constitution provides for the organization of the essential departments of government, defines and delimits the powers of each and prescribes the manner of the exercise of such powers, and the constituent power has not been granted to but has been withheld from the President or Prime Minister, it follows that the President's questioned decrease proposing and submitting constitutional amendments directly to the people (without the intervention of the interim National Assembly in whom the power is expressly vested) are devoid of constitutional and legal basis. 2. The doctrine in the leading case of Tolentino vs. Comelec is controlling in the case at bar In therein declaring null and void the acts of the 1971 Constitutional Convention and of the Comelec in calling a plebiscite with the general elections scheduled for November 8, 1971 for the purpose of submitting for the people's ratification an advance amendment reducing the voting age from 21 years to 18 years, and issuing writs of prohibition and injunction against the holding of the plebiscite, this Court speaking through Mr. Justice Barredo ruled that --The Constitutional provisions on amendments "dealing with the procedure or manner of amending the fundamental law are binding upon the Convention and the other departments

of the government, (land) are no less binding upon the people As long as an amendment is formulated and submitted under the aegis of the present Charter, any proposal for such amendment which is not in conformity with the letter, spirit and intent of the Charter for effecting amendments, cannot receive the sanction of this Court ; 8 The real issue here cannot be whether or not the amending process delineated by the present Constitution may be disregarded in favor of allowing the sovereign people to express their decision on the proposed amendments, if only because it is evident that the very Idea of departing from the fundamental law is anachronistic in the realm of constitutionalism and repugnant to the essence of the rule of law,"; 9 and -Accordingly barred the plebiscite as improper and premature, since "the provisional nature of the proposed amendments and the manner of its submission to the people for ratification or rejection" did not "conform with the mandate of the people themselves in such regard, as expressed in the Constitution itself', 10 i.e. the mandatory requirements of the amending process as set forth in the Article on Amendments. 3. Applying the above rulings of Tolentino to the case at bar, mutatis, mutandis, it is clear that where the proposed amendments are violative of the Constitutional mandate on the amending process not merely for being a "partial amendment" of a "temporary or provisional character" (as in Tolentino) but more so for not being proposed and approved by the department vested by the Constitution with the constituent power to do so, and hence transgressing the substantive provision that it is only the interim National Assembly, upon special call of the interim Prime Minister, bu a majority vote of all its members that may propose the amendments, the Court must declare the amendments proposals null and void. 4. This is so because the Constitution is a "superior paramount law, unchangeable by ordinary means" 11 but only by the particular mode and manner prescribed therein by the people. As stressed by Cooley, "by the Constitution which they establish, (the people) not only tie up the hands of their official agencies but their own hands as well; and neither the officers of the State, nor the whole people as an aggregate body, are at liberty to take action in opposition to this fundamental law." 12

The vesting of the constituent power to propose amendments in the legislative body (the regular National Assembly) or the interim National Assembly during the transition period) or in a constitutional convention called for the purpose is in accordance with universal practice. "From the very necessity of the case" Cooley points out "amendments to an existing constitution, or entire revisions of it, must be prepared and matured by some body of representatives chosen for the purpose. It is obviously impossible for the whole people to meet, prepare, and discuss the proposed alterations, and there seems to be no feasible mode by which an expression of their will can be obtained, except by asking it upon the single point of assent or disapproval." This body of representatives vested with the constituent - power "submits the result of their deliberations" and "puts in proper form the questions of amendment upon which the people are to pass"-for ratification or rejection. 13 5. The Court in Tolentino thus rejected the argument "that the end sought to be achieved is to be desired" and in denying reconsideration in paraphrase of the late Claro M. Recto declared that "let those who would put aside, invoking grounds at best controversial, any mandate of the fundamental purportedly in order to attain some laudable objective bear in mind that someday somehow others with purportedly more laudable objectives may take advantage of the precedent and continue the destruction of the Constitution, making those who laid down the precedent of justifying deviations from the requirements of the Constitution the victims of their own folly." This same apprehension was echoed by now retired Justice Calixto O. Zaldivar in his dissenting opinion in the Ratification cases 14 that "we will be opening the gates for a similar disregard to the Constitution in the future. What I mean is that if this Court now declares that a new Constitution is now in force because the members of the citizens assemblies had approved said new Constitution, although that approval was not in accordance with the procedure and the requirements prescribed in the 1935 Constitution, it can happen again in some future time that some amendments to the Constitution may be adopted, even in a manner contrary to the existing Constitution and the law, and then said proposed amendments is submitted to the people in any manner and what will matter is that a basis is claimed that there was approval by the people. There will not be stability in our constitutional system, and necessarily no stability in our government." 6. It is not legally tenable for the majority, without overruling the controlling

precedent of Tolentino (and without mustering the required majority vote to so overrule) to accept the proposed; amendments as valid notwithstanding their being "not in conformity with the letter, spirit and intent of the provision of the Charter for effecting amendments" on the reasoning that "If the President has been legitimately discharging the legislative functions of the interim National Assembly, there is no reason why he cannot validly discharge the functions."15 In the earlier leading case of Gonzales vs. Comelec 16, this Court speaking through now retired Chief Justice Roberto Concepcion, pointer out that "Indeed, the power to Congress" 17 or to the National Assembly.18 Where it not for the express grant in the Transitory Provisions of the constituent power to the interim National Assembly, the interim National Assembly could not claim the power under the general grant of legislative power during the transition period. The majority's ruling in the Referendum cases 19 that the Transitory Provision in section 3(2) recognized the existence of the authority to legislate in favor of the incumbent President during the period of martial law manifestly cannot be stretched to encompass the constituent power as expressly vested in the interim National Assembly in derogation of the allotment of powers defined in the Constitution. Paraphrasing Cooley on the non-delegation of legislative power as one of the settled maxims of constitutional law, 20 the contituent power has been lodged by the sovereign power of the people with the interim National Assembly during the transition period and there it must remain as the sole constitutional agency until the Constitution itself is changed. As was aptly stated by Justice Jose P. Laurel in the 1936 landmak case of Angara vs. Electoral Commissioner 21, "(T)he Constitution sets forth in no uncertain language and restrictions and limitations upon governmental powers and agencies. If these restrictions and limitations are transcended it would be inconceivable if the Constitution had not provided for a mechanism by which to direct the course of government along constitutional channels, for then the distribution of powers sentiment, and the principles of good government mere political apothegms. Certainly, the limitations and restrictions embodied in our Constitution are real as they should be in any living Constitution".

7. Neither is the justification of "constitutional impasses" tenable. The sentiment of the people against the convening of the interim National Assembly and to have no elections for "at least seven (7) years" Concededly could not ament the Constitution insofar as the interim National Assembly is concerned (since it admittendly came into existence "immediately" upon the proclamation of ratification of the 1973 Constitution), much less remove the constituent power from said interim National Assembly. As stressed in the writer's separate opinion in the Referendum cases 22, "(W)hile it has been advanced that the decision to defer the initial convocation of the interim National Assembly was supported by the results of the referendum in January, 1973 when the people voted against the convening of the interim National Assembly for at least seven years, such sentiment cannot be given any legal force and effect in the light of the State's admission at the hearing that such referendums are merely consultative and cannot amend the Constitution or Provisions which call for the 'immediate existence' and 'initial convening of the interim National Assembly to 'give priority to measures for the orderly transition from the presidential to the parliamentary system' and the other urgent measures enumerated in section 5 thereof". While the people reportedly expressed their mandate against the convening of the interim National Assembly to dischange its legislative tasks during the period of transition under martial law, they certainly had no opportunity and did not express themselves against convening the interim National Assembly to discharge the constituent power to propose amendments likewise vested in it by the people's mandate in the Constitution. In point of fact, when the holding of the October 16, 1976 referendum was first announced, the newspapers reported that among the seven questions proposed by the sanggunian and barangay national executive committies for the referendum was the convening of the interim National Assembly. 23 It was further reported that the proposals which were termed tentative "will be discussed and studied by (the President), the members of the cabinet, and the security council" and that the barangays felt, notwithstanding the previous referenda on the convening of the interim National Assembly that "it is time to again ask the people's opinion of this matter " 24 8. If proposals for constitutional amendments are now deemed necessary to

be discussed and adopted for submittal to the people, strict adherence with the mandatory requirements of the amending process as provided in the Constitution must be complied with. This means, under the teaching of Tolentino that the proposed amendments must validly come from the constitutional agency vested with the constituent power to do so, namely, the interim National Assembly, and not from the executive power as vested in the Prime Minister (the incumbent President) with the assistance of the Cabinet 25 from whom such power has been withheld. It will not do to contend that these proposals represent the voice of the people for as was aptly stated by Cooley "Me voice of the people, acting in their sovereign capacity, can be of legal force only when expressed at the times and under the conditions which they themselves have prescribed and pointed out by the Constitution. ... ."26 The same argument was put forward and rejected by this Court in Tolentino which rejected the contention that the "Convention being a legislative body of the highest order (and directly elected by the people to speak their voice) is sovereign, in as such, its acts impugned by petitioner are beyond the control of Congress and the Courts" and ruled that the constitutional article on the amending process" is nothing more than a part of the Constitution thus ordained by the people. Hence, in continuing said section, We must read it as if the people said, "The Constitution may be amended, but it is our will that the amendment must be proposed and submitted to Us for ratification only in the manner herein provided'". 27 This Court therein stressed that "This must be so, because it is plain to Us that the framers of the Constitution took care that the process of amending the same should not be undertaken with the same ease and facility in changing an ordinary legislation. Constitution making is the most valued power, second to none, of the people in a constitutional democracy such as the one our founding fathers have chosen for this nation, and which we of the succeeding generations generally cherish. And because the Constitution affects the lives, fortunes, future and every other conceivable aspect of the lives of all the people within the country and those subject to its sovereignity, ever constitution worthy of the people for which it is intended must not be prepared in haste without adequate deliberation and study. It is obvious that correspondingly, any amendment of the Constitution is of no less importance than the whole Constitution itself, and perforce must be conceived and prepared with as much care and deliberation;" and that "written constitutions

are supposed to be designed so as to last for some time, if not for ages, or for, at least, as long as they can be adopted to the needs and exigencies of the people, hence, they must be insulated against precipitate and hasty actions motivated by more or less passing political moods or fancies. Thus, as a rule, the original constitutions carry with them limitations and conditions, more or less stringent, made so by the people themselves, in regard to the process of their amendment." 28 9. The convening of the interim National Assembly to exercise the constituent power to proposed amendments is the only way to fulfill the express mandate of the Constitution. As Mr. Justice Fernando emphasized for this Court in Mutuc vs. Comelec 29 in the setting as in of a Comelec resolution banning the use of political taped jingles by candidates for Constitutional Convention delegates int he special 1970 elections, "the concept of the Constitution as the fundamental law, setting forth the criterion for the validity of any public act whether proceeding from the highest official or the lowest functionary, is a postulate of our system of government. That is to amnifst fealty to the rule of law, with priority accorded to that which occupies the topmost rung in the legal heirarchy. The three departments of government in the discharge of the functions with which it is entrusted have no choice but to yield obedience to its commands. Whatever limits it imposes must be observed. Congress in the enactment of statutes must ever be on guart lest the restrictions on its authority, whether substantive or formal, be transcended. The Presidency in the execution of the laws cannot ignore of disregard what it ordains. In its task of applying the law to the facts as found in deciding cases, the judiciary is called upon the maintain inviolate what is decreed by the fundamental law." This is but to give meaning to the plan and clear mandate of section 15 of the Transitory Provisions (which allows of no other interpretation) that during the stage of transition the interim National Assembly alone exercises the constituent power to propose amendments, upon special call therefor. This is reinforced by the fact that the cited section does not grant to the regular National Assembly of calling a constitutional convention, thus expressing the will of the Convention (and presumably of the people upon ratification) that if ever the need to propose amendments arose during the limited period of transition, the interim National Assembly alone would discharge the task and no constitutional convention could be call for the purpose.

As to the alleged costs involved in convening the interim National Assembly to propose amendments, among them its own abolition, (P24 million annually in salaries alone for its 400 members at P600,000.00 per annum per member, assuming that its deliberations could last for one year), suffice it to recall this Court's pronouncement in Tolentino (in reflecting a similar argument on the costs of holding a plebiscite separately from the general elections for elective officials) that "it is a matter of public knowledge that bigger amounts have been spent or thrown to waste for many lesser objectives. ... Surely, the amount of seventeen million pesos or even more is not too much a price to pay for fealty and loyalty to the Constitution ... " 30 and that "while the financial costs of a separate plebiscite may be high, it can never be as much as the dangers involved in disregarding clear mandate of the Constitution, no matter how laudable the objective" and "no consideration of financial costs shall deter Us from adherence to the requirements of the Constitution".11 10. The imposition of martial law (and "the problems of rebellion, subversion, secession, recession, inflation and economic crisis a crisis greater than war") 32 cited by the majority opinion as justifying the concentration of powers in the President, and the recognition now of his exercising the constituent power to propose amendments to the Fundamental Law "as agent for and in behalf of the people" 33 has no constitutional basis. In the post-war Emergency Powers 33*, former Chief Justice Ricardo Paras reaffirmed for the Court the principle that emergency in itself cannot and should not create power. In our democracy the hope and survival of the nation lie in the wisdom and unselfish patriotism of all officials and in their faithful 'Adherence to the Constitution". The martial law clause of the 1973 Constitution found in Article IX, section 12 , as stressed by the writer in his separate opinion in the Referendum Cases,14 "is a verbatim reproduction of Article VII, section 10 (2) of the 1935 Constitution and provides for the imposition of martial law only 'in case of invasion, resurrection or rebellion, or imminent danger thereof, when the public safety requires it and hence the use of the legislative power or more accurately 'military power' under martial rule is limited to such necessary measures as will safeguard the Republic and suppress the rebellion (or invasion)". 35 11. Article XVII, section 3 (2) of the 1973 Constitution which has been held by

the majority in the Referendum Cases to be the recognition or warrant for the exercise of legislative power by the President during the period of martial law is but a transitory provision. Together with the martial law clause, they constitute but two provisions which are not to be considered in isolation from the Constitution but as mere integral parts thereof which must be harmonized consistently with the entire Constitution. As Cooley restated the rule: "effect is to be given, if possible, to the whole instrument, and to every section and clause. If different portions seem to conflict, the courts must harmonize them, if practicable, and must lean in favor of a construction which will render every word operative, rather than one which may make some words Idle and nugatory. This rule is applicable with special force to written constitutions, in which the people will be presumed to have expressed themselves in careful and measured terms, corresponding with the immense importance of the powers delegated, leaving as little as possible to implication. It is scarcelly conceivable that a case can arise where a court would bye justified in declaring any portion of a written constitution nugatory because of ambiguity. One part may qualify another so as to restrict its operation, or apply it otherwise than the natural construction would require if it stood by itself; but one part is not to be allowed to defeat another, if by any reasonable construction the two can be made to stand together. 36 The transcendental constituent power to propose and approve amendments to the Constitution as well as set up the machinery and prescribe the procedure for the ratification of his proposals has been withheld from the President (Prime Minister) as sole repository of the Executive Power, presumably in view of the immense powers already vested in him by the Constitution but just as importantly, because by the very nature of the constituent power, such amendments proposals have to be prepared, deliberated and matured by a deliberative assembly of representatives such as the interim National Assembly and hence may not be antithetically entrusted to one man. Former Chief Justice Roberto Concepcion had observed before the elevation of the l971 Constitutional Convention that the records of past plebiscites

show that the constitutional agency vested with the exercise of the constituent power (Congress or the Constitutional Convention) really determined the amendments to the Constitution since the proposals were invariably ratified by the people 37 thus: "although the people have the reserved power to ratify or reject the action taken by the Convention, such power is not, in view of the circumstances attending its exercise, as effective as one might otherwise think: that, despite the requisite ratification by the people, the actual contents of our fundamental law will really be determined by the Convention; that, accordingly the people should exercise the greatest possible degree of circumspection in the election of delegates thereto ... " 38 12. Martial law concededly does not abrogate the Constitution nor obliterate its constitutional boundaries and allocation of powers among the Executive, Legislative and Judicial Departments. 39 It has thus been aptly observed that "Martial law is an emergency regime, authorized by and subject to the Constitution. Its basic premise is to preserve and to maintain the Republic against the dangers that threaten it. Such premise imposes constraints and limitations. For the martial law regime fulfills the constitutional purpose only if, by reason of martial law measures, the Republic is preserved. If by reason of such measures the Republic is so transformed that it is changed in its nature and becomes a State other than republican, then martial law is a failure; worse, martial law would have become the enemy of the Republic rather than its defender and preserver." 40 II. On the question of the Court's jurisdiction to pass upon the constitutionality of the questioned presidential decrees: let it be underscored that the Court has long set at rest the question. The trail was blazed for the Court since the benchmark case of Angara vs. Electoral Commission when Justice Jose P. Laurel echoed U.S. Chief Justice Marshall's "climactic phrase" that "we must never forget that it is a Constitution we are expounding" and declared the Court's "solemn and sacred" constitutional obligation of judicial review and laid down the doctrine that the Philippine Constitution as "a definition of the powers of government" placed upon the judiciary the great burden of "determining the nature, scope and extent of such powers" and stressed that "when the judiciary mediates to allocate constitutional boundaries, it does not assert any superiority over the other departments . . . but only asserts the solemn and sacred obliteration entrusted to it by the Constitution to determine conflicting claims of authority

under the Constitution and to establish for the parties in an actual controversy the rights which the instrument secures and guarantees to them". At the same time, the Court likewise adhered to the constitutional tenet that political questions, i.e. questions which are intended by the Constitutional and relevant laws to be conclusively determined by the "political", i.e. branches of government (namely, the Executive and the Legislative) are outside the Court's jurisdiction. 41 Thus, in Gonzales, 42 (by a unanimous Court) and in Tolentino 43 (by the required constitutional majority), the Court has since consistently ruled that when proposing and approving amendments to the Constitution, the members of Congress. acting as a constituent assembly or the members of the Constitutional Convention elected directly for the purpose by not have the final say on whether or not their acts are within or beyond constitutional limits. Otherwise, they could brush aside and set the same at naught, contrary to the basic tenet that outs is it government of lawsom not of men, and to the rigid nature of our Constitution. Such rigidity is stressed by the fact that, the Constitution expressly confers upon the Supreme Court, the power to declare a treaty unconstitutional, despite the eminently political character of treaty-making power". 44 As amplified by former Chief Justice Concepcion in Javellana vs Executive Secretary 45 (by a majority vote), "when the grant of power is qualified, conditional or subject to limitations. the issue on whether or not the prescribed qualifications or conditions have been met, or the limitations by expected, is justiciable or non-political, the crux of the problem being one of legality or validity of the contested act, not its wisdom Otherwise, said qualifications, conditions and limitations-particularly those prescribed or imposed by the Constitution would be set at naught". The fact that the proposed amendments are to be submitted to the people for ratification by no means makes the question political and non- justiciable since as stressed even in Javellana the issue of validity of the President's proclamation of ratification of the Constitution presented a justiciable and non-political question Stated otherwise, the question of whether the Legislative acting as a constituent assembly or the Constitutional Convention called fol- the purpose, in proposing amendments to the people for ratification followed the

constitutional procedure and on the amending process is perforce a justiciable question and does not raise a political question of police or wisdom of the proposed amendments, which if Submitted, are reserved for the people's decision. The substantive question presented in the case at bar of whether the President may legally exercise the constituent power vested in the interim National Assembly (which has not been granted to his office) and propose constitutional amendments is preeminently a justiciable issue. Justice Laurel in Angara had duly enjoined that "in times of social disquietude or political excitement, the great landmarks of the Constitution are apt to be forgotten or marred, if not entirely obliterated. In cases of conflict, the judicial department is the only constitutional organ which can be called upon to determine the proper allocation of powers between the several departments and among the integral or constituent units thereof". To follow the easy way out by disclaiming jurisdiction over the issue as a political question would be judicial abdication. III. On the question of whether there is a sufficient and proper submittal of the proposed amendments to the people: Prescinding from the writer's view of the nullity of the questioned decree of lack of authority on the President's part to excercise the constituent power, I hold that the doctrine of fair and proper submission first enunciated by a simple majority of by Justices in Gonzales and subsequently officially adopted by the required constitutional two-thirds majority of the Court in is controlling in the case at bar. 1. There cannot be said to be fair and proper submission of the proposed amendments. As ruled by this Court in Tolentino where "the proposed amendment in question is expressly saddled with reservations which naturally impair, in great measures, its very essence as a proposed constitutional amendment" and where "the way the proposal is worded, read together with the reservations tacked to it by the Convention thru Section 3 of the questioned resolution, it is too much of a speculation to assume what exactly the amendment would really amount lo in the end. All in all, as already pointed out in our discussion of movants' first ground, if this kind of amendment is allowed, the Philippines will appear before the world to be in the absurd position of being the only country with a constitution containing a provision so ephemeral no one knows until when it will bet actually in force",

there can be no proper submission. In Tolentino a solitary amendment reducing the voting age to 18 years was struck down by this Court which ruled that "in order that a plebiscite for the ratification of an amendment to the Constitution may be validly held, it must provide the voter not only sufficient time but ample basis for an intelligent appraisal of the nature of the amendment per se as well as its relation to the other parts of the Constitution with which it has to form a harmonious whole," and that there was no proper Submission wherein the people are in the dark as to frame of reference they can base their judgment on 2. The now Chief Justice and Mr. Justice Makasiar with two other members 46 graphically pointed out in their joint separate opinion that the solitary question "would seem to be uncomplicated and innocuous. But it is one of life's verities that things which appear to be simple may turn out not to be so simple after all". 47 They further expressed "essential agreement" with Mr. Justice Conrado V. Sanchez' separate opinion in Gonzales "on the minimum requirements that must be met in order that there can be a proper submission to the people of a proposed constitutional amendment" which reads thus: ... we take the view that the words 'submitted to the people for their ratification', if construed in the light of the nature of the Constitution a fundamental charter that is legislation direct from the people, an expression of their sovereign will - is that it can only be amended by the people expressing themselves according to the procedure ordained by the Constitution. Therefore, amendments must be fairly laid before the people for their blessing or spurning. The people are not to be mere rubber stamps. They are not to vote blindly. They must be afforded ample opportunity to mull over the original provisions, compare them with the proposed amendments, and try to reach a conclusion as the dictates of their conscience suggest, free from the incubus of extraneous or possibly insidious influences. We believe the word submitted' can only mean that the government, within its maximum capabilities, should strain every effort to inform every citizen of the provisions to be amended, and the proposed amendments and the meaning, nature and

effects thereof. By this, we are not to be understood as saying that, if one citizen or 100 citizens or 1,000 citizens cannot be reached, then there is no submission within the meaning of the word as intended by the framers of the Constitution. What the Constitution in effect directs is that the government, in submitting an amendment for ratification, should put every instrumentality or agency within its structural framework to enlighten the people, educate them with respect to their act of ratification or rejection. For, as we have earlier stated, one thing is submission and another is ratification. There must be fair submission, intelligent. consent or rejection. If with all these safeguards the people still approve the amendment no matter how prejudicial it is to them, then so be it. For the people decree their own fate. 48 Justice Sanchez therein ended the passage with an apt citation that " ... " The great men who builded the structure of our state in this respect had the mental vision of a good Constitution voiced by Judge Cooley, who has said 'A good Constitution should be beyond the reach of temporary excitement and. popular caprice or passion. It is needed for stability and steadiness; it must yield to the thought of the people; not to the whim of the people, or the thought evolved in excitement or hot blood, but the sober second thought, which alone, if the government is to be safe, can be allowed efficiency. xxx xxx xxx Changes in government are to be feared unless the benefit is certain. As Montaign says: All great mutations shake and disorder state. Good does not necessarily succeed evil ;another evil may succeed and a worse'." 49 Justice Sanchez thus stated the rule that has been adopted by the Court in Tolentino that there is no proper submission "if the people are not sufficiently affirmed of the amendments to be voted upon, to conscientiously deliberate thereon, to express their will in a genuine manner. ... .." 50 3. From the complex and complicated proposed amendments set forth in the challenged decree and the plethora of confused and confusing clarifications reported in the daily newspapers, it is manifest that there is no proper submission of the proposed amendments. Nine (9) proposed constitutional amendments were officially proposed and made known as per Presidential Decree No. 1033 dated, September 22, 1976 for submittal at the "referendum-plebiscite" called for this coming Saturday, October 16, 1976

wherein the 15-year and under 18-year- olds are enjoined to vote notwithstanding their lack of qualification under Article VI of the Constitution. Former Senator Arturo Tolentino, an acknowledged parliamentarian of the highest order, was reported by the newspapers last October 3 to have observed that "there is no urgency in approving the proposed amendments to the Constitution and suggested that the question regarding charter changes be modified instead of asking the people to vote on hurriedly prepared amendments". He further pointed out that "apart from lacking the parliamentary style in the body of the Constitution, they do not indicate what particular provisions are being repealed or amended". 52 As of this writing, October 11, 1976, the paper today reported his seven-page analysis questioning among others the proposed granting of dual legislative powers to both the President and the Batasang Pambansa and remarking that "This dual legislative authority can give rise to confusion and serious constitutional questions". 53 Aside from the inadequacy of the limited time given for the people's consideration of the proposed amendments, there can be no proper submission because the proposed amendments are not in proper form and violate the cardinal rule of amendments of written constitutions that the specific provisions of the Constitution being repealed or amended as well as how the specific provisions as amended would read, should be clearly stated in careful and measured terms. There can be no proper submission because the vagueness and ambiguity of the proposals do not sufficiently inform the people of the amendments for, conscientious deliberation and intelligent consent or rejection. 4. While the press and the Solicitor General at the hearing have stated that the principal thrust of the proposals is to substitute the interim National Assembly with an interim Batasang Pambansa, a serious study thereof in detail would lead to the conclusion that the whole context of the 1973 Constitution proper would be affected and grave amendments and modifications thereof -would apparently be made, among others, as follows: Under Amendment No. 1, the qualification age of members of the interim Batasang Pambansa is reduced to 18 years; Under Amendment No. 2, the treaty-concurring power of the Legislature is withheld from the interim Batasang Pambansa;

Under Amendment No 3, not withstanding the convening of the interim Batasang Pambansa within 30 days from the election and selection of the members (for which there is no fixed date) the incumbent President apparently becomes a regular President and Prime Minister (not ad interim); Under Amendment No. 4, the disqualifications imposed on members of the Cabinet in the Constitution such as the prohibition against the holding of more than one office in the government including government-owned or controlled corporations would appear to be eliminated, if not prescribed by the President; Under Amendment No. 5, the President shall continue to exercise legislative powers until martial law is lifted; Under Amendment No. 6, there is a duality of legislative authority given the President and the interim Batasang Pambansa as well as the regular National Assembly, as pointed out by Senator Tolentino, with the President continuing to exercise legislative powers in case of "grave emergency or a threat or imminence thereof" (without definition of terms) or when said Assemblies "fail or are unable to act adequately on any matter for any reason that in his judgment requires immediate action", thus radically affecting provisions of the Constitution governing the said departments; Under Amendment No. 7, the barangays and Sanggunians would apparently be constitutionalized, although their functions, power and composition may be altered by law. Referendums (which are not authorized in the present 1973 Constitution) would also be constitutionalized, giving rise to the possibility fraught with grave consequences, as acknowledged at the hearing, that amendments to the Constitution may thereafter be effected by referendum, rather than by the rigid and strict amending process provided presently in Article XVI of the Constitution; Under Amendment No. 8, there is a general statement in general that the unspecified provisions of the Constitution "not inconsistent with any of these amendments" shall continue in full force and effect; and Under Amendment No. 9. the incumbent President is authorized to proclaim the ratification of the amendments by the majority of votes cast. It has likewise been stressed by the officials concerned that the proposed amendments come in a package and may not be voted upon separately but on an "all or nothing" basis. 5. Whether the people can normally express their will in a genuine manner

and with due circumspection on the proposed amendments amidst the constraints of martial law is yet another question. That a period of free debate and discussion has to be declared of itself shows the limitations on free debate and discussion. The facilities for free debate and discussion over the mass media, print and otherwise are wanting. The President himself is reported to have observed the timidity of the media under martial law and to have directed the press to air the views of the opposition. 54 Indeed, the voice of the studentry as reflected in the editorial of the Philippine Collegian issue of September 23, 1976 comes as a welcome and refreshing model of conscientious deliberation, as our youth analyzes the issues "which will affect generations yet to come" and urge the people to mull over the pros and cons very carefully", as follows: THE REFERENDUM ISSUES On October 16, the people may be asked to decide on two important national issues - the creation of a new legislative body and the lifting of martial law. On the first issue, it is almost sure that the interim National Assembly will not be convened, primarily because of its membership. Majority of the members of the defunct Congress, who are mandated by the Constitution to become members of the interim National Assembly, have gained so widespread a notoriety that the mere mention of Congress conjures the image of a den of thieves who are out to fool the people most of the time. Among the three branches of government, it was the most discredited. In fact, upon the declaration of martial law, some people were heard to mutter that a 'regime that has finally put an end to such congressional shenanigans could not be all that bad'. A substitute legislative body is contemplated to help the President in promulgating laws, and perhaps minimize the issuance of ill-drafted decrees which necessitate constant amendments. But care should be taken that this new legislative body would not become a mere rubber stamp akin to those of other totalitarian countries. It should be given real powers, otherwise we will just have another

nebulous creation having the form but lacking the substance. Already the President has expressed the desire that among the powers he would like to have with regard to the proposed legislative body is that of abolishing it in case 'there is a need to do so'. As to what would occasion such a need, only the President himself can determine. This would afford the Chief Executive almost total power over the legislature, for he could always offer the members thereof a carrot and a stick. On the matter of lifting martial law the people have expressed ambivalent attitudes. Some of them, remembering the turmoil that prevailed before the declaration of martial law, have expressed the fear that its lifting might precipitate the revival of the abuses of the past, and provide an occasion for evil elements to resurface with their usual tricks. Others say that it is about time martial law was lifted since the peace and order situation has already stabilized and the economy seems to have been parked up. The regime of martial law has been with us for four years now. No doubt, martial law has initially secured some reforms for the country The people were quite willing to participate in the new experiment, thrilled by the novelty of it all. After the euphoria, however, the people seem to have gone back to the old ways, with the exception that some of our freedoms were taken away, and an authoritarian regime established. We must bear in mind that martial law was envisioned only to cope with an existing national crisis, It was not meant to be availed of for a long period of time, otherwise it would undermine our adherence to a democratic form of government. In the words of the Constitution. martial law shall only be declared in times of 'rebellion, insurrection,. invasion, or imminent danger thereof, when the public safety requires it'. Since we no longer suffer from internal disturbances of a gargantuan scale, it is about time we seriously rethink the 'necessity' of prolonging the martial law regime. If we justify the continuance of martial by economic

or other reasons other than the foregoing constitutional grounds, then our faith in the Constitution might be questioned. Even without martial law,. the incumbent Chief Executive still holds vast powers under the constitution. After all, the gains of the New Society can be secured without sacrificing the freedom of our people. If the converse is true, then we might have to conclude that the Filipinos deserve a dictatorial form of government. The referendum results will show whether the people themselves have adopted this sad conclusion. The response of the people to the foregoing issues will affect generations yet to come, so they should mull over the pros and cons very carefully." 6. This opinion by written in the same spirit as the President's exhortations on the first anniversary of proclamation of the 1973 Constitution that we "let the Constitution remain firm and stable" so that it may "guide the people", and that we "remain steadfast on the rule of law and the Constitution" as he recalled his rejection of the "exercise (of) power that can be Identified merely with a revolutionary government" that makes its own law, thus: . . . Whoever he may be and whatever position he may happen to have, whether in government or outside government, it is absolutely necessary now that we look solemnly and perceptively into the Constitution and try to discover for ourselves what our role is in the successful implementation of that Constitution. With this thought, therefore, we can agree on one thing and that is: Let all of us age, let all of us then pass away as a pace in the development of our country. but let the Constitution remain firm and stable and let institutions grow in strength from day to day, from achievement to achievement, and so long as that Constitution stands, whoever may the man in power be, whatever may his purpose be, that Constitution will guide the people and no man, however, powerful he may be, will dare to destroy and wreck the foundation of such a Constitution. These are the reasons why I personally, having proclaimed

martial law, having been often induced to exercise power that can be Identified merely with a revolutionary government, have remained steadfast or the rule of law and the Constitution. 54* IV. A final word on the Court's resolution of October 5, 1976 which in reply to the Comelec query allowed by a vote of 7 to 3, judges of all courts, after office hours, "to accept invitations to act as resource speakers under Section 5 of Presidential Decree No. 991, as amended, as well as to take sides in discussions and debates on the referendum-plebiscite questions under Section 7 of the same Decree." 55 The writer with Mr. Justice Makasiar and Madame Justice Munoz Palma had dissented from the majority resolution, with all due respect, on the ground that the non-participation of judges in such public discussions and debates on the referendum-plebiscite questions would preserve the traditional noninvolvement of the judiciary in public discussions of controversial issues. This is essential for the maintenance and enhancement of the people's faith and confidence in the judiciary. The questions of the validity of the scheduled referendum- plebiscite and of whether there is proper submission of the proposed amendments were precisely subjudice by virtue of the cases at bar. The lifting of the traditional inhibition of judges from public discussion and debate might blemish the image and independence of the judiciary. Aside from the fact that the fixing of a time limit for the acceptance of their courtesy resignations to avoid an indefinite state of insecurity of their tenure in office still spends litigants and their relatives and friends as well as a good sector of the public would be hesitant to air views contrary to that of the. Judge. Justices Makasiar and Munoz Palma who share these views have agreed that we make them of record here, since we understand that the permission given in the resolution is nevertheless addressed to the personal decision and conscience of each judge, and these views may he of some guidance to them. BARREDO, J.,: concurring: While I am in full agreement with the majority of my brethren that the herein petitions should be dismissed, as in fact I vote for their dismissal, I deem it imperative that I should state separately the considerations that have

impelled me to do so. Perhaps, it is best that I should start by trying to disabuse the minds of those who have doubts as to whether or not I should have taken part in the consideration and resolution of these cases. Indeed, it would not be befitting my position in this Highest Tribunal of the land for me to leave unmentioned the circumstances which have given cause, I presume, for others to feel apprehensive that my participation in these proceedings might detract from that degree of faith in the impartiality that the Court's judgment herein should ordinarily command. In a way, it can be said, of course, that I am the one most responsible for such a rather problematical situation, and it is precisely for this reason that I have decided to begin this opinion with a discussion of why I have not inhibited myself, trusting most confidently that what I have to say will be taken in the same spirit of good faith, sincerity and purity of purpose in which I am resolved to offer the same. Plain honesty dictates that I should make of record here the pertinent contents of the official report of the Executive Committee of the Katipunan ng mga Sanggunian submitted to the Katipunan itself about the proceedings held on August 14, 1976. It is stated in that public document that: THE ISSUE WITH REGARDS To THE CONVENING OF A LEGISLATIVE body came out when the President express his desire to share his powers with other people. Aware of this, a five-man Committee members of the Philippine Constitution Association (PHILCONSA) headed by Supreme Court Justice Antonio Barredo proposed on July 28, the establishment of 'Sangguniang Pambansa' or 'Batasang Pambansa' which would help the President in the performance of his legislative functions. The proposed new body will take the place of the interim National Assembly which is considered not practical to convene at this time considering the constitution of its membership. Upon learning the proposal of Justice Barredo, the country's 42,000 barangay assemblies on August 1 suggested that the people be consulted on a proposal to create a new legislative body to replace the interim assembly provided for by the Constitution. The suggestion of the barangay units was made through their national association, Pambansang Katipunan ng mga Barangay headed by Mrs. Nora Z. Patines. She said that the people have shown in at least six instances including in the two past referenda that they

are against the convening of the interim National Assembly. She also said that since the people had ruled out the calling of such assembly and that they have once proposed that the President create instead the Sangguniang Pambansa or a legislative advisory body, then the proposal to create a new legislative must necessarily be referred to the people. The federation of Kabataang Barangay, also numbering 42,000 units like their elder counterparts in the Katipunan ng mga Barangay also asserted their own right to be heard on whatever plans are afoot to convene a new legislative body. On August 6, a meeting of the national directorate of PKB was held to discuss matters pertaining to the stand of the PKB with regards to the convening of a new legislative body. The stand of the PKB is to create a legislative advisory council in place of the old assembly. Two days after, August 8, the Kabataang Barangay held a symposium and made a stand which is the creation of a body with full legislative powers. A nationwide clamor for the holding of meeting in their respective localities to discuss more intellegently the proposal to create a new legislative body was made by various urban and rural Sangguniang Bayans. Numerous requests made by some members coming from 75 provincial and 61 city SB assemblies, were forwarded to the Department of Local Government and Community Development (DLGCD). On August 7, Local Government Secretary, Jose A. Rono granted the request by convening the 91 member National Executive Committee of the Pambansang Katipunan ng mga Sanggunian on August 14 which was held at Session Hall, Quezon City. Invited also to participate were 13 Regional Federation Presidents each coming from the PKB and the PKKB Actually, the extent of my active participation in the events and deliberations that have culminated in the holding of the proposed referendum- plebiscite on October 16, 1976, which petitioners are here seeking to enjoin, has been more substantial and meaningful than the above report imparts. Most importantly, aside from being probably the first person to publicly articulate the need for the creation of an interim legislative body to take the place of. the interim National Assembly provided for in the Transitory Provisions of the Constitution, as suggested in the above report, I might say that I was the one most vehement and persistent in publicly advocating and urging the

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

issues that have been ventilated by the parties in the instant cases. I would not be human, if I did not consider myself privileged in having been afforded by Divine Providence the opportunity to contribute a modest share in the formulation of the steps that should lead ultimately to the lifting of martial law in our country. Indeed, I am certain every true Filipino is anxiously looking forward to that eventuality. And if for having voiced the sentiments of our people, where others would have preferred to be comfortably silent, and if for having made public what every Filipino must have been feeling in his heart all these years, I should be singled out as entertaining such preconceived opinions regarding the issues before the Court in the cases at bar as to preclude me from taking part in their disposition, I can only say that I do not believe there is any other Filipino in and out of the Court today who is not equally situated as I am . The matters that concern the Court in the instant petitions do not involve merely the individual interests of any single person or group of persons. Besides, the stakes in these cases affect everyone commonly, not individually. The current of history that has passed through the whole country in the wake of martial law has swept all of us, sparing none, and the problem of national survival and of restoring democratic institutions and Ideals is seeking solution in the minds of all of us. That I have preferred to discuss publicly my own thoughts on the matter cannot mean that my colleagues in the Court have been indifferent and apathetic about it, for they too are Filipinos. Articulated or not, all of us must have our own preconceived Ideas and notions in respect to the situation that confronts the country. To be sure, our votes and opinions in the- major political cases in the recent past should more or less indicate our respective basic positions relevant to the issues now before Us. Certainly, contending counsels cannot be entirely in the dark in this regard. I feel that it must have been precisely because of such awareness that despite my known public participation in the discussion of the questions herein involved, none of the parties have sought my inhibition or disqualification. Actually, although it may be difficult for others to believe it, I have never allowed my preconceptions and personal inclinations to affect the objectivity needed in the resolution of any judicial question before the Court. I feel I have always been able to appreciate, fully consider and duly weigh arguments and points raised by all counsels, even when they conflict with my previous views. I am never beyond being convinced by good and substantial

ratiocination. Nothing has delighted me more than to discover that somebody else has thought of more weighty arguments refuting my own, regardless of what or whose interests are at stake. I would not have accepted my position in the Court had I felt I would not be able to be above my personal prejudices. To my mind, it is not that a judge has preconceptions that counts, it is his capacity and readiness to absorb contrary views that are indispensable for justice to prevail. That suspicions of prejudgment may likely arise is unavoidable; but I have always maintained that whatever improper factors might influence a judge will unavoidably always appear on the face of the decision. In any event, is there better guarantee of justice when the preconceptions of a judge are concealed? Withal, in point of law, I belong to the school of thought that regards members of the Supreme Court as not covered by the general rules relative to disqualification and inhibition of judges in cases before them. If I have in practice actually refrained from participating in some cases, it has not been because of any legal ground founded on said rules, but for purely personal reasons, specially because, anyway, my vote would not have altered the results therein. It is my considered opinion that unlike in the cases of judges in the lower courts, the Constitution does not envisage compulsory disqualification or inhibition in any case by any member of the Supreme Court. The Charter establishes a Supreme Court "composed of a Chief Justice and fourteen Associate Justices", with the particular qualifications therein set forth and to be appointed in the manner therein provided. Nowhere in the Constitution is there any indication that the legislature may designate by law instances wherein any of the justices should not or may not take part in the resolution of any case, much less who should take his place. Members of the Supreme Court are definite constitutional officers; it is not within the power of the lawmaking body to replace them even temporarily for any reason. To put it the other way, nobody who has not been duly appointed as a member of the Supreme Court can sit in it at any time or for any reason. The Judicial power is vested in the Supreme Court composed as the Constitution ordains - that power cannot be exercised by a Supreme Court constituted otherwise. And so, when as in the instant where, if any of the member of Court is to abstain from taking part, there would be no quorum - and no court to render the decision - it is the includible duty of all the incumbent justices to participate in the proceedings and to cast their votes, considering that for the reasons stated above, the provisions of Section 9 of the Judiciary Act do not appear

to conform with the concept of the office of Justice of the Supreme Court contemplated in the Constitution. The very nature of the office of Justice of the Supreme Court as the tribunal of last resort and bulwark of the rights and liberties of all the people demands that only one of dependable and trustworthy probity should occupy the same. Absolute integrity, mental and otherwise, must be by everyone who is appointed thereto. The moral character of every member of the Court must be assumed to be such that in no case whatsoever. regardless of the issues and the parties involved, may it be feared that anyone's life, liberty or property, much less the national interests, would ever be in jeopardy of being unjustly and improperly subjected to any kind of judicial sanction. In sum, every Justice of the Supreme Court is expected to be capable of rising above himself in every case and of having full control of his emotions and prejudices, such that with the legal training and experience he must of necessity be adequately equipped with, it would be indubitable that his judgment cannot be but objectively impartial, Indeed, even the appointing power, to whom the Justices owe their positions, should never hope to be unduly favored by any action of the Supreme Court. All appointments to the Court are based on these considerations, hence the ordinary rules on inhibition and disqualification do not have to be applied to its members. With the preliminary matter of my individual circumstances out of the way, I shall now address myself to the grave issues submitted for Our resolution. -IIn regard to the first issue as to whether the questions posed in the petitions herein are political or justiciable, suffice it for me to reiterate the fundamental position I took in the Martial Law cases, 1 thus As We enter the extremely delicate task of resolving the grave issues thus thrust upon Us. We are immediately encountered by absolute verities to guide Us all the way. The first and most important of them is that the Constitution (Unless expressly stated otherwise, all references to the Constitution in this discussion are to both the 1935 and 1973 charters, since, after all, the pertinent provisions are practically Identical in both is the supreme law of the land. This means among other things that all the powers of the

government and of all its officials from the President down to the lowest emanate from it. None of them may exercise any power unless it can be traced thereto either textually or by natural and logical implication. "The second is that it is settled that the Judiciary provisions of the Constitution point to the Supreme Court as the ultimate arbiter of all conflicts as to what the Constitution or any part thereof means. While the other Departments may adopt their own construction thereof, when such construction is challenged by the proper party in an appropriate case wherein a decision would be impossible without determining the correct construction, the Supreme Court's word on the matter controls. xxx xxx xxx xxx xxx xxx The fifth is that in the same manner that the Executive power conferred upon the Executive by the Constitution is complete, total and unlimited, so also, the judicial power vested in the Supreme Court and the inferior courts, is the very whole of that power, without any limitation or qualification. xxx xxx xxx xxx xxx xxx From these incontrovertible postulates, it results, first of all, that the main question before Us is not in reality one of jurisdiction, for there can be no conceivable controversy, especially one involving a conflict as to the correct construction of the Constitution, that is not contemplated to be within the judicial authority of the courts to hear and decide. The judicial power of the courts being unlimited and unqualified, it extends over all situations that call for the as certainment and protection of the rights of any party allegedly violated, even when the alleged violator is the highest official of the land or the government itself. It is, therefore, evidence that the Court's jurisdiction to take cognizance of and to decide the instant petitions on their

merits is beyond challenge. In this connection, however, it must be borne in mind that in the form of government envisaged by the framers of the Constitution and adopted by our people, the Court's indisputable and plenary authority to decide does not necessarily impose upon it the duty to interpose its fiat as the only means of settling the conflicting claims of the parties before it. It is ingrained in the distribution of powers in the fundamental law that hand in hand with the vesting of the judicial power upon the Court, the Constitution has coevally conferred upon it the discretion to determine, in consideration of the constitutional prerogatives granted to the other Departments, when to refrain from imposing judicial solutions and instead defer to the judgment of the latter. It is in the very nature of republican governments that certain matters are left in the residual power of the people themselves to resolve, either directly at the polls or thru their elected representatives in the political Departments of the government. And these reserved matters are easily distinguishable by their very nature, when one studiously considers the basic functions and responsibilities entrusted by the charter to each of the great Departments of the government. To cite an obvious example, the protection, defense and preservation of the state against internal or external aggression threatening its very existence is far from being within the ambit of judicial responsibility. The distinct role then of the Supreme Court of being the final arbiter in the determination of constitutional controversies does not have to be asserted in such contemplated situations, thereby to give way to the ultimate prerogative of the people articulated thru suffrage or thru the acts of their political representatives they have elected for the purpose. Indeed, these fundamental considerations are the ones that lie at the base of what is known in American constitutional law as the political question doctrine, which in that jurisdiction is unquestionably deemed to be part and parcel of the rule of law, exactly like its apparently more attractive or popular opposite, judicial activism, which is the fullest exertion of judicial power, upon the theory that unless the courts intervene injustice might prevail. It has been

invoked and applied by this Court in varied forms and mode of projection in several momentous instances in the past, (Barcelona vs. Baker, 5 Phil. 87; Severino vs. Governor-General, 16 Phil. 366; Abueva vs. Wood, 45 Phil. 612; Alejandrino vs. Quezon, 46 Phil. 85; Vera vs. Avelino, 77 Phil. 192; Mabanag vs. Lopez Vito, 78 Phil. 1; Cabin vs. Francisco, 88 Phil. 654; Montenegro vs. Castaneda, 91 Phil. 882, Santos vs. Yatco, 55 O.G. 8641 [Minute Resolution of Nov. 6, 19591 Osmena vs. Pendatun, Oct. 28, 1960.) and it is the main support of the stand of the Solicitor General on the issue of jurisdiction in the cases at bar. It is also referred to as the doctrine of judicial self-restraint or abstention. But as the nomenclatures themselves imply, activism and selfrestraint are both subjective attitudes, not inherent imperatives. The choice of alternatives in any particular eventuality is naturally dictated by what in the Court's considered opinion is what the Constitution envisions should be by in order to accomplish the objectives of government and of nationhood. And perhaps it may be added here to avoid confusion of concepts, that We are not losing sight of the traditional approach based on the doctrine of separation of powers. In truth, We perceive that even under such mode of rationalization, the existence of power is secondary, respect for the acts of a co-ordinate, co-equal and independent Department being the general rule, particularly when the issue is not encroachment of delimited areas of functions but alleged abuse of a Department's own basic prerogatives. (59 SCRA, pp. 379-383.) Applying the foregoing considerations to the cases at bar, I hold that the Court has jurisdiction to pass on the merits of the various claims of petitioners. At the same time, however, I maintain that the basic nature of the issues herein raised requires that the Court should exercise its constitutionally endowed prerogative to refrain from exerting its judicial authority in the premises. Stripped of incidental aspects, the constitutional problem that confronts Us stems from the absence of any clear and definite express provision in the Charter applicable to the factual milieu herein involved. The primary issue is, to whom, under the circumstances, does the authority to propose amendments to the Constitution property belong? To say, in the light of Section 15 of Article XVII of the Charter, that that faculty lies in the interim National Assembly is to beg the main question. Indeed, there could be no occasion for doubt or debate, if it could ' only be assumed that the interim National Assembly envisaged in Sections 1 and 2 of the same Article XVII may be convoked. But precisely, the fundamental issue We are called upon

to decide is whether or not it is still constitutionally possible to convene that body. And relative to that question, the inquiry centers on whether or not the political developments since the ratification of the Constitution indicate that the people have in effect enjoined the convening of the interim National Assembly altogether. On this score, it is my assessment that the results of the referenda of January 10-15, 1973, July 27-28, 1973 and February 27, 1975 clearly show that the great majority of our people, for reasons plainly obvious to anyone who would consider the composition of that Assembly, what with its more than 400 members automatically voted into it by the Constitutional Convention together with its own members, are against its being convoked at all. Whether or not such a manifest determination of the sentiments of the people should be given effect without a formal amendment of the Constitution is something that constitutional scholars may endlessly debate on. What cannot be disputed, however, is that the government and the nation have acquiesced to, it and have actually operated on the basis thereof. Proclamation 1103 which, on the predicate that the overwhelming majority of the people desire that the interim Assembly be not convened, has ordained the suspension of its convocation, has not been assailed either judicially or otherwise since the date of its promulgation on January 17, 1973. In these premises, it is consequently the task of the Court to determine what, under these circumstances, is the constitutional relevance of the interim National Assembly to any proposal to amend the Constitution at this time. It is my considered opinion that in resolving that question, the Court must have to grapple with the problem of what to do with the will of the people, which although manifested in a manner not explicitly provided for in the Constitution, was nevertheless official, and reliable, and what is more important clear and unmistakable, despite the known existence of wellmeaning, if insufficiently substantial dissent. Such being the situation, I hold that it is not proper for the Court to interpose its judicial authority against the evident decision of the people and should leave it to the political department of the government to devise the ways and means of resolving the resulting problem of how to amend the Constitution, so long as in choosing the same, the ultimate constituent power is left to be exercised by the people themselves in a well- ordered plebiscite as required by the fundamental law. -2-

Assuming We have to inquire into the merits of the issue relative to the constitutional authority behind the projected amendment of the Charter in the manner provided in Presidential Decree 1033, I hold that in the peculiar situation in which the government is today, it is not incompatible with the Constitution for the President to propose the subject amendments for ratification by the people in a formal plebiscite under the supervision of the Commission on Elections. On the contrary, in the absence of any express prohibition in the letter of the Charter, the Presidential Decree in question is entirely consistent with the spirit and the principles underlying the Constitution. The correctness of this conclusion should become even more patent, when one considers the political developments that the people have brought about since the ratification of the Constitution on January 17,1973. I consider it apropos at this juncture to repeat my own words in a speech I delivered on the occasion of the celebration of Law Day on September 18, 1975 before the members of the Philippine Constitution Association and their guests: To fully comprehend the constitutional situation in the Philippines today, one has to bear in mind that, as I have mentioned earlier, the martial law proclaimed under the 1935 Constitution overtook the drafting of the new charter by the Constitutional Convention of 1971. It was inevitable, therefore, that the delegates had to take into account not only the developments under it but, most of all, its declared objectives and what the President, as its administrator, was doing to achieve them. In this connection, it is worthy of mention that an attempt to adjourn the convention was roundly voted down to signify the determination of the delegates to finish earliest their work, thereby to accomplish the mission entrusted to them by the people to introduce meaningful reforms in our government and society. Indeed, the constituent labors gained rapid tempo, but in the process, the delegates were to realize that the reforms they were formulating could be best implemented if the martial law powers of the President were to be allowed to subsist even after the ratification of the Constitution they were approving. This denouement was unusual. Ordinarily, a constitution born out of a crisis is supposed to provide all the needed cures and can, therefore, be immediately in full

force and effect after ratification. Not so, with our 1973 Constitution, Yes, according to the Supreme Court, 'there is no more judicial obstacle to the new Constitution being considered in force and effect', but in truth, it is not yet so in full. Let me explain. To begin with, in analyzing the new Constitution, we must be careful to distinguish between the body or main part thereof and its transitory provisions. It is imperative to do so because the transitory provisions of our Constitution are extraordinary in the sense that obviously they have been designed to provide not only for the transition of our government from the presidential form under the past charter to a parliamentary one as envisaged in the new fundamental law, but also to institutionalize, according to the President, the reforms introduced thru the exercise of his martial law powers. Stated differently, the transitory provisions, as it has turned out, has in effect established a transition government, not, I am sure, perceived by many. It is a government that is neither presidential nor parliamentary. It is headed, of course, by President Marcos who not on retains all his powers under the 1935 Constitution but enjoys as well those of the President and the Prime Minister under the new Constitution. Most importantly, he can and does legislate alone. But to be more accurate, I should say that he legislates alone in spite of the existence of the interim National Assembly unequivocally ordained by the Constitution, for the simple reason that he has suspended the convening of said assembly by issuing Proclamation No. 1103 purportedly 'in deference to the sovereign will of the Filipino people' expressed in the January 10-15, 1973 referendum. Thus, we have here the unique case of a qualified ratification. The whole Constitution was submitted for approval or disapproval of the people, and after the votes were counted and the affirmative majority known, we were told that the resulting ratification was subject to the condition that the interim National Assembly evidently established in the Constitution as the distinctive and indispensable element of a parliamentary form of government should nevertheless be not convened and that no elections should be held for about seven years, with the consequence that we have now a parliamentary government without a parliament and a republic without any regular election of its officials. And as you can see, this phenomenon came into being not by virtue of the Constitution but of the direct mandate of the sovereign people expressed in a referendum. In other words, in an unprecedented extraconstitutional way, we have established, wittingly or unwittingly, a direct

democracy through the Citizens Assemblies created by Presidential Decree No. 86, which later on have been transformed into barangays, a system of government proclaimed by the President as 'a real achievement in participatory democracy.' What I am trying to say, my friends, is that as I perceive it, what is now known as constitutional authoritarianism means, in the final analysis, that the fundamental source of authority of our existing government may not be necessarily found within the four corners of the Constitution but rather in the results of periodic referendums conducted by the Commission on Elections in a manner well known to all of us This, as I see it, is perhaps what the President means by saying that under the new Constitution he has extra-ordinary powers independently of martial law powers sanctioned directly by the people which may not even be read in the language of the Constitution. in brief, when we talk of the rule of law nowadays, our frame of reference should not necessarily be the Constitution but the outcome of referendums called from time to time by the President. The sooner we imbibe this vital concept the more intelligent will our perspective be in giving our support and loyalty to the existing government. What is more, the clearer will it be that except for the fact that all the powers of government are being exercised by the President, we - do not in reality have a dictatorship but an experimental type of direct democracy." In the foregoing disquisition, I purposely made no mention of the referendum of February 27, 1975. It is important to note, relative to the main issue now before Us, that it was originally planned to ask the people in that referendum whether or not they would like the interim National Assembly to convene, but the Comelec to whom the task of preparing the questions was assigned was prevailed upon not to include any -such question anymore, precisely because it was the prevalent view even among the delegates to the Convention as well as the members of the old Congress concerned that that matter had already been finally resolved in the previous referenda of January and July 1973 in the sense that. the Assembly should not be convened comparable to res adjudicata. It is my position that as a result of the political developments since January 17, 1973 the transitory provisions envisioning the convening of the interim National Assembly have been rendered legally inoperative. There is no doubt in my mind that for the President to convoke the interim National Assembly as such would be to disregard the will of the people - something no head of a democratic republican state like ours should do. And I find it simply logical that the reasons that motivated the people to enjoin the convening of the

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

interim National Assembly provided in its Transitory Provisions should not be convened. and in consequence, the President has acted accordingly by not convening the Assembly. The above factual premises of Proclamation 1103 is not disputed by petitioners. Actually, it is binding on the Court, the same being a political act of a coordinate department of the government not properly assailed as arbitrary or whimsical. At this point, it must be emphasized in relation to the contention that a referendum is only consultative, that Proclamation 1103, taken together with Proclamation 1102 which proclaimed the ratification of the Constitution, must be accorded the same legal significance as the latter proclamation, as indeed it is part and parcel if the Act of ratification of the Constitution, hence not only persuasive but mandatory. In the face of the incontrovertible fact that the sovereign people have voted against the convening of the interim National Assembly, and faced with the problem of amending the Constitution in order precisely to implement the people's rejection of that Assembly, the problem of constitutional dimension that confronts Us, is how can any such amendment be proposed for ratification by the people? To start with, it may not be supposed that just because the office or body designed by the constitutional convention to perform the constituent function of formulating proposed amendments has been rendered inoperative by the people themselves, the people have thereby foreclosed the possibility of amending the Constitution no matter how desirable or necessary this might be. In this connection, I submit that by the very nature of the office of the Presidency in the prevailing scheme of government we have - it being the only political department of the government in existence - it is consistent with basic principles of constitutionalism to acknowledge the President's authority to perform the constituent function, there being no other entity or body lodged with the prerogative to exercise such function. There is another consideration that leads to the same conclusion. It is conceded by petitioners that with the non-convening of the interim Assembly, the legislative authority has perforce fallen into the hands of the President, if only to avoid a complete paralysis of law-making and resulting anarchy and chaos. It is likewise conceded that the provisions of Section 3 (2) of Article XVII invest the President with legislative power for the duration of the transition period. From these premises, it is safe to conclude that in effect the President has been substituted by the people themselves in place of the

interim Assembly. Such being the case, the President should be deemed as having been granted also the cognate prerogative of proposing amendments to the Constitution. In other words, the force of necessity and the cognate nature of the act justify that the department exercising the legislative faculty be the one to likewise perform the constituent function that was attached to the body rendered impotent by the people's mandate. Incidentally, I reject most vehemently the proposition that the President may propose amendments to the Constitution in the exercise of his martial law powers. Under any standards, such a suggestion cannot be reconciled with the Ideal that a Constitution is the free act of the people. It was suggested during the oral, argument that instead of extending his legislative powers by proposing the amendment to create a new legislative body, the President should issue a decree providing for the necessary apportionment of the seats in the Regular National Assembly and call for an election of the members thereof and thus effect the immediate normalization of the parliamentary government envisaged in the Constitution. While indeed procedurally feasible, the suggestion overlooks the imperative need recognized by the constitutional convention as may be inferred from the obvious purpose of the transitory provisions, for a period of preparation and acquaintance by all concerned with the unfamiliar distinctive features and practices of the parliamentary system. Accustomed as we are to the presidential system, the Convention has seen to it that there should be an interim parliament under the present leadership, which will take the corresponding measures to effectuate the efficient and smooth transition from the present system to the new one. I do not believe this pattern set by the convention should be abandoned. The alternative of calling a constitutional convention has also been mentioned. But, in the first place, when it is considered that whereas, under Section 1 (1) and (2) of Article XVI, the regular National Assembly may call a Constitutional Convention or submit such a call for approval of the people, Section 15 of Article XVII, in reference to interim National Assembly, does not grant said body the prerogative of calling a convention, one can readily appreciate that the spirit of the Constitution does not countenance or favor the calling of a convention during the transition, if only because such a procedure would be time consuming, cumbersome and expensive. And when it is further noted that the requirement as to the number of votes needed for a proposal is only a majority, whereas it is three-fourths in respect to regular Assembly, and, relating this point to the provision of Section 2 of Article XVI

to the effect that all ratification plebiscites must be held "not later than three months after the approval" of the proposed amendment by the proposing authority, the adoption of the most simple manner of amending the charter, as that provided for in the assailed Presidential Decree 1033 suggests itself as the one most in accord with the intent of the fundamental law. There is nothing strange in adopting steps not directly based on the letter of the Constitution for the purpose of amending or changing the same. To cite but one important precedent, as explained by Mr. Justice Makasiar in his concurring opinion in Javellana 2, the present Constitution of the United States was neither proposed nor ratified in the manner ordained by the original charter of that country, the Articles of Confederation and Perpetual Union. In brief. if the convening and operation of the interim National Assembly has been effectuated through a referendum-plebiscite in January, 1973, and ratified expressly and impliedly in two subsequent referenda, those of July, 1973 and February, 1975, why may not a duly held plebiscite suffice for the purpose of creating a substitute for that Assembly? It should be borne in mind that after all, as indicated in the whereas of the impugned Presidential Decree, actually, the proposed amendments were initiated by the barangays and sanggunian members. In other words, in submitting the amendments for ratification, the President is merely acting as the conduit thru whom a substantial portion of the people, represented in the Katipunan ng Mga Sanggunian, Barangay at Kabataang Barangay, seek the approval of the people as a whole of the amendments in question. If all these mean that the sovereign people have arrogated unto themselves the functions relative to the amendment to the Constitution, I would regard myself as totally devoid of legal standing to question it, having in mind that the most fundamental tenet on which our whole political structure rests is that "sovereignty resides in the people and all government authority emanates from them." In the light of the foregoing considerations, I hold that Presidential Decree No. 1033 does not infringe the Constitution, if only because the specific provision it is supposed to infringe does not exist in legal contemplation since it was coevally made inoperative when the people ratified the Constitution on January 17, 1973. I am fully convinced that there is nothing in the procedure of amendment contained in said decree that is inconsistent with the fundamental principles of constitutionalism. On the contrary, I find that the Decree, in issue conforms admirably with the underlying tenet of our

government - the sovereignty and plenary power of the people. On the issue of whether or not October 16, 1976 is too proximate to enable the people to sufficiently comprehend the issues and intelligently vote in the referendum and plebiscite set by Presidential Decree 1033, all I can say is that while perhaps my other colleagues are right in holding that the period given to the people is adequate, I would leave it to the President to consider whether or not it would be wiser to extend the same. Just to avoid adverse comments later I wish the President orders a postponement. But whether such postponement is ordered or not, date of the referendum- plebiscite anywhere from October 16, 1976 to any other later date, would be of no vital import. In conclusion, I vote to dismiss all the three petitions before Us. MAKASIAR, J., concurring and dissenting: Since the validity or effectivity of the proposed amendments is to be decided ultimately by the people in their sovereign capacity, the question is political as the term is defined in Tanada, et al. vs. Cuenco, et al. (103 Phil. 1051), which is a bar to any judicial inquiry, for the reasons stated in Our opinion in Javellana, et al. vs. Executive Secretary, et al. (L-36142); Tan, et al. vs. Executive Secretary, et al. (L,36164); Roxas, et al. vs Executive Secretary, et al. (L-36165); Monteclaro, etc., et al. vs' Executive Secretary, et al. (@36236); and Ditag et al. vs. Executive Secretary, et al. (L-W283, March 31, 1973, 50 SCRA 30, 204-283). The procedure for amendment is not important Ratification by the people is all that is indispensable to validate an amendment. Once ratified, the method of making the proposal and the period for submission become relevant. The contrary view negates the very essence of a republican democracy - that the people are sovereign - and renders meaningless the emphatic declaration in the very first provision of Article II of the 1973 Constitution that the Philippines is a republican state, sovereignty resides in the people and all government authority emanates from them. It is axiomatic that sovereignty is illimitable The representatives cannot dictate to the sovereign people. They may guide them; but they cannot supplant their judgment, Such an opposite view likewise distrusts the wisdom of the people as much as it despises their intelligence. It evinces a presumptuous pretension to intellectual superiority. There are thousands upon thousands among the citizenry, who are not in the

public service, who are more learned and better skilled than many of their elected representatives. Moreover, WE already ruled in Aquino, et al. vs- Comelec, et al. (L 40004, Jan. 31, 1975, 62 SCRA 275, 298-302) that the President as enforcer or administrator of martial rule during the period of martial law can legislate; and that he has the discretion as to when the convene the interim National Assembly depending on prevailing conditions of peace and order. In view of the fact that the interim National Assembly has not been convoked in obedience to the desire of the people clearly expressed in the 1973 referenda, the President therefore remains the lone law-making authority while martial law subsists. Consequently, he can also exercise the power of the interim National Assembly to propose amendments to the New Constitution (Sec. 15,,Art. XVII If, as conceded by petitioner Vicente Guzman (L-44684), former delegate to the 1971 Constitutional Convention which drafted the 1973 Constitution. the President, during the period of martial law, can call a constitutional convention for the purpose, admittedly a constituent power, it stands to reason that the President can likewise legally propose amendments to the fundamental law. ANTONIO, J., concurring: I At the threshold, it is necessary to clarify what is a "political question". It must be noted that this device has been utilized by the judiciary "to avoid determining questions it is ill equipped to determine or that could be settled in any event only with the effective support of the political branches." 1 According to Weston, judges, whether "personal representatives of a truly sovereign king, or taking their seats as the creatures of a largely popular sovereignty speaking through a written constitution, derive their power by a delegation, which clearly or obscurely as the case may be, deliminates and delimits their delegated jurisdiction.* * * Judicial questions * * * are those which the sovereign has set to be decided in the courts. Political questions, similarly, are those which the sovereign has entrusted to the so-called political departments of government or has reserved to be settled by its own extra-government or has reserved to be settled by its own extragovernmental action." 2 Reflecting a similar concept, this Court has defined a "political question" as a "matter which is to be exercised by the people in their primary political capacity or that has been specifically delegated to some

other department or particular officer of the government, with discretionary power to act." 3 In other words, it refers to those questions which, under the Constitution, are to be decided by the people in their sovereign capacity, or in regard to which full discretionary authority has been delegated to the legislative or executive branch of government. 4 In determining whether an issue falls within the political question category, the absence of satisfactory creterion for a judicial determination or the appropriateness of attributing finality to the action of the political departments of government is a dominant consideration. This was explained by Justice Brennan in Baker v. Carr, 5 thus : Prominent on the surface of any case held to involve political question is found a textually demonstrable constitutional lack of judicially discoverrable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for non-judicial discretion; or the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from from multifarious pronouncements by various departments on one question. . .. To decide whether a matter has in a measure been committed by the Constitution to another branch of government or retained be the people to be decided by them in their sovereign capacity, or whether that branch exceeds whatever authority has been committed, is indeed a delicate exercise in constitutional interpretation. In Coleman v. Miller, 6 the United States Supreme Court held that the efficacy of the ratification by state legislatures of a constitutional amendment is a political question. On the question of whether the State Legislature could constitutionally relative an amendment, after the same had been previously rejected by it, it was held that the ultimate authority over the question was in Congress in the exercise of its control over the promulgation of the adoption of the amendment. And in connection with the second question of whether the amendment has lost its, vitality through the lapse of time, the Court held

that the question was likewise political, involving "as it does ... an appraisal of a great variety of relevant conditions, political, social and economic, which can hardly be said to be within the appropriate range of evidence receivable in a court of justice and as to which it would be an extravagant extension of juridical authority to assert judicial notice as the basis of deciding a controversy with respect to the validity of an amendment actually ratified. On the other hand, these conditions are appropriate for the consideration of the political departments of the Government. The questions they involve are essentially political and not justiciable." ' In their concurring opinions, Justices Black, Roberts, Frankfurter and Douglas stressed that: The Constitution grants Congress exclusive power to control submission off constitutional amendments. Final determination by Congress their ratification by three-fourths of the States has taken place 'is conclusive upon the courts.' In the exercise of that power, Congress, of course, is governed by the Constitution. However, A whether submission, intervening procedure for Congressional determination of ratification conforms to the commands of the Constitution, call for decisions by apolitical department of questions of a t@ which this Court has frequently designated 'political.' And decision of a 'political question' by the political department' to which the Constitution has committed it 'conclusively binds the judges, as well as all other officers, citizens and subjects of ... government. Proclamation under authority of Congress that an amendment has been ratified will carry with it a solemn assurance by the Congress that ratification has taken place as the Constitution commands. Upon this assurance a proclaimed amendment must be accepted as a part of the Constitution, learning to the judiciary its traditional authority of interpretation. To the extent that the Court's opinion in the present case even by implieding assumes a power to make judicial interpretation of the exclusive constitutional authority of Congress over submission and by ratification of amendments, we are unable to agree. Relying on this doctrine enunciated in Coleman v. Miller supra this Court, in

Mabanag v. Lopez Vitol, 7 speaking through Mr. Justice Pedro Tuason, ruled that the process of constitutional amendment, involving proposal and ratification, is a political question. In the Mabang case, the petitioners sought to prevent the enforcement of a resolution of Congress proposing the "Parity Amendment" to the Philippine Constitution on the ground that it had not been approved by the three-fourths vote of all the members of each house as required be Article XV of the 1935 Constitution. It was claimed that three (3) Senators and eight (8) members of the House of Representatives had been suspended and that their membership was not considered in the determination of the three- fourths %- ore In dismissing the petition on the ground that the question of the validity of the proposal was political, the Court stated: "If ratification of an amendment is a political question, a proposal which leads to ratification has to be a political question. The question to steps complement each other in a scheme intended to achieve a single objective. It is to be noted that amendatory process as provided in Section I of Article XV of the Philippine Constitution 'consists of (only) two distinct parts: proposal and ratification.' There is no logic in attaching political character to one and withholding that character from the other. Proposal to amend the Constitution is a highly political function performed by the Congress in its sovereign legislative capacity and committed to its charge by the Constitution itself. ..." (At pages 4-5, Italics supplied.) It is true that in Gonzales v. Comelec, 8 this Court held that "the issue whether or not a Resolution of Congress, acting as a constituent assembly - violates the Constitution is essentially justiciable, not political, and hence, subject to judicial review." What was involved in Gonzales, however, was not a proposed What was involved in Gonzales, however, was not a proposed amendment to the Constitution but an act of Congress, 9 submitting proposed amendments to the Constitution. Similarly, in Tolentino v. Commission an Elections, 10 what was involved was not the validity of the proposal to lower the voting age but rather that of the resolution of the Constitutional Convention submitting the proposal for ratification. The question was whether piecemeal amendments to the Constitution could submitted to the people for approval or rejection. II Here, the point has been stressed that the President is acting as agent for

and in behalf of the people in proposing the amendment. there can be no question that in the referendums of January, 1973 and in the subsequent referendums the people had clearly and categorically rejected the calling of the interim National Assembly. As stated in the main opinion, the Lupang Tagapagpaganap of the Katipunan ng mga Sanggunian, the Pambansang Katipunan ng mga Barangay, representing 42,000 barangays, the Kabataang Barangay organizations and the various sectoral groups had proposed the replacement of the interim National Assembly. These barangays and the Sanggunian assemblies are effective instrumentalities through which the desires of the people are articulated and expressed. The Batasang Bayan (Legislative Council), composed of nineteen (19) cabinet members and nine (9) officials with cabinet rank, and ninety-one (91) members of the Lupang Tagapagpaganap (Executive Committee) of the Katipunan ng mga Sangguniang Bayani voted in their special session to submit directly to the people in a plebiscite on October 16, 1976 the afore-mentioned constitutional amendments. Through the Pambansang Katipunan by Barangay and the Pampurok ng Katipunan Sangguniang Bayan, the people have expressed their desire not only to abolish the interim National Assembly, but to replace it with a more representative body acceptable to them in order to effect the desirable constitutional changes necessary to hasten the political evolution of the government towards the parliamentary system, while at the same time ensuring that the gains of the New Society, which are vital to the welfare of the people, shall be safeguarded. The proposed constitutional amendments, therefore, represent a consensus of the people. It would be futile to insist that the intemi National Assembly should have been convened to propose those amendments pursuant to Section 15 of Article XVII of the Constitution. This Court, in the case of Aquino v. Commission or Elections, 11 took judicial notice of the fact that in the referendum of January, 1973, a majority of those who approved the new Constitution conditioned their votes on the demand that the interim National Assembly provided in the Transitory Provisions should not be and the President "in deference to the sovereign will of the Filipino people" declared that the convening of said body shall be suspended. 12 As this Court observed in the Aquino case: His decision to defer the initial convocation of the byiitttit National Assembly was supported by the sovereign people at the by referendum in January, 1973 when the people voted to postpone the convening of the interim National Assembly until after at least seven (7) years from the

approval of the new Constitution. And the reason why the same question was eliminated from the questions to be submitted at the referendum on February 27, 1975, is that even some members of the Congress and delegates of the Constitutional Convention, who are already byjso ofitto members of the intetini National Assembly are against such inclusion; because the issue was already bycciled in the January, 1973 referendum by the sovereign people indicating thereby their disenchantment with any Assembly as the former Congress failed to institutionalize the reforms they demanded and wasted public funds through endless debates without relieving the suffering of the general mass of citizenry (p. 302.) The action of the President in suspending the convening of the interim National Assembly has met the overwhelming approval of the people in subsequent referenda. Since it was the action by the people that gave binding force and effect to the new Constitution, then it must be accepted as a necessary consequence that their objection against the immediate convening of the interim National Assembly must be respected as a positive mandate of the sovereign. In the Philippines, which is a unitary state, sovereignty "resides in the people and all government authority emanates from them."13 The term "People" as sovereign is comprehensive in its context. The people, as sovereign creator of all political reality, is not merely the enfranchised citizens but the political unity of the people. 14 It connotes, therefore, a people which exists not only in the urgent present but in the continuum of history. The assumption that the opinion of The People as voters can be treated as the expression of the interests of the People as a historic community was, to the distinguished American journalist and public philosopher, Walter Lipunan, unwarranted. Because of the discrepancy between The People as Voters and the People as the corporate nation, the voters have no title to consider themselves the proprietors of the commonwealth and to claim that their interests are Identical to the public interest. A prevailing plurality of the voters are not The People. The claim that they are is a bogus title invoked to justify the usurpation of the executive power by representative assemblies and the intimidation of public

men by demagogue politicians. In fact demagoguery can be described as the sleight of hand by which a faction of The People as voters are invested with the authority of The People. That is why so many crimes are committed in the People's name 15 In Gonzales v. Comelec, supra, the Court clearly emphasized that the power to propose amendments or to amend the Constitution is part of the inherent power of the people as the repository of sovereignty in a republican state. While Congress may propose amendments to the Constitution, it acts pursuant to authority granted to it by the people through the Constitution. Both the power to propose and the authority to approve, therefore, inhere in the people as the bearer of the Constitution making power. Absent an interim National Assembly upon whom the people, through the Constitution, have delegated the authority to exercise constituent powers, it follows from necessity that either the people should exercise that power themselves or through any other instrumentality they may choose. For Law, like Nature, abhors a vacuum (natural vacuum abhorret). The question then is whether the President has authority to act for the people in submitting such proposals for ratification at the plebiscite of October 16. The political character of the question is, therefore, particularly manifest, considering that ultimately it is the people who will decide whether the President has such authority. It certainly involves a matter which is to be exercised by the people in their sovereign capacity, hence, it is essentially political, not judicial. While it is true that the constituent power is not to be confuse with legislative power in general because the prerogative to propose amendments is not embraced within the context of ordinary lawmaking, it must be noted that the proposals to be submitted for ratification in the forthcoming referendum are, in the final analysis, actually not of the President but directly of the people themselves, speaking through their authorized instrumentalities. As the Chief Justice aptly stated in his concurring opinion in this case: ... The President merely formalized the said proposals in Presidential Decree No. 1033. It being conceded in all quarters that sovereignty resides in the people and it having been demonstrated that their constituent power to amend

the Constitution has not been delegated by them to any instrumentality of the Government during the present stage of the transition period of our political development, the conclusion is ineluctable that their exertion of that residuary power cannot be vulnerable to any constitutional challenge as beingultravires. Accordingly, without venturing to rule on whether or not the President is vested with constituent power - as it does not appear necessary to do so in the premises - the proposals here challenged, being acts of the sovereign people no less, cannot be said to be afflicted with unconstitutionality. A fortiori, the concomitant authority to call a plebiscite and to appropriate funds therefor is even less vulnerable not only because the President, in exercising said authority, has acted as a mere ofiffet byf of the people who made the proposals, but likewise because the said authority is legislative in nature rather than constituent. This is but a recognition that the People of the Philippines have the inherent, sole and exclusive right of regulating their own government, and of altering or abolishing their Constitution whenever it may be necessary to their safety or happiness. There appears to be no justification, under the existing, circumstances, for a Court to create by implication a limitation on - the sovereign power of the people. As has been clearly explained in a previous case: There is nothing in the nature of the submission which should cause the free exercise of it to be obstructed, or that could render it dangerous to the stability of the government; because the measure derives all its vital force from the action of the people at the ballot box, and there can never be danger in submitting in an established form to a free people, the proposition whether they will change their fundamental law The means provided for the exercise of their Sovereign right of changing their constitution should receive such a construction as not to trammel the exercise of the right. Difficulties and embarrassments in its exercise are in derogation of the right of free government, which is inherent in the people; and the best security against tumult

and revolution is the free and unobstructed privilege to the people of the State to change their constitution in the mode prescribed by the instrument. III The paramount consideration that impelled Us to arrive at the foregoing opinion is the necessity of ensuring popular control over the constituent power. "If the people are to control the constituent power - the power to make and change the fundamental law of the State," observed Wheeler," "the process of Constitutional change must not be based too heavily upon existing agencies of government." Indeed, the basic premise of republicanism is that the ordinary citizen, the common man. can be trusted to determine his political destiny. Therefore, it is time that the people should be accorded the fullest opportunity to decide the laws that shall provide for their governance. For in the ultimate analysis, the success of the national endeavor shall depend on the vision, discipline and I by ininess of the moqqqtai will of every Filipino. IN VIEW OF THE FOREGOING CONSIDERATIONS, We vote to dismiss the petitions. Aquino, J., concur. MUNOZ PALMA, J., dissenting: I concur fully with the remarkably frank (so characteristic of him) dissenting opinion of my distinguished colleague, Justice Claudio Teehankee. If I am writing this brief statement it is only to unburden myself of some thoughts which trouble my mind and leave my conscience with no rest nor peace. Generally, one who dissents from a majority view of the Court takes a lonely and at times precarious road, the burden byeing lightened only by the thought that in this grave task of administering justice, when matters of conscience are at issue, one must be prepared to espouse and embrace a rightful cause however unpopular it may be. 1. That sovereignty resides in the people and all government authority emanates from them is a fundamental, basic principle of government which cannot be disputed, but when the people have opted to govern themselves under the mantle of a written Constitution, each and every citizen, from the

highest to the lowliest, has the sacred duty to respect and obey the Character they have so ordained. By the Constitution which they establish, they not only tie up he hands of their official agencies, but their own hands as well; and neither the officers of the state, nor the whole people as an aggregate body, are at liberty to take action in opposition to this fundamental law. (Cooley's Constitutional Limitations, 7th Ed. p. 56, Italics Our). The afore-quoted passage from the eminent jurist and author Judge Cooley although based on declarations of law of more than a century ago, lays down a principle which to my mind is one of the enduring cornerstones of the Rule of Law. it is a principle with which I have been familiar as a student of law under the tutelage of revered Professors, Dr. Vicente G. Sinco and Justice Jose P. Laurel, and which I pray will prevail at all times to ensure the existence of a free, stable, and civilized society. The Filipino people,. wanting to ensure to themselves a democratic republican form of government, have promulgated a Constitution whereby the power to govern themselves has been entrusted to and distributed among three branches of government; they have also mandated in clear and unmistakable terms the method by which provisions in their fundamental Charter may be amended or revised. Having done so, the people are bound by these constitutional limitations. For while there is no surrender or abdication of the people's ultimate authority to amend, revise, or adopt a new Constitution, sound reason demands that they keep themselves within the procedural bounds of the existing fundamental law. The right of the people to amend or change their Constitution if and when the need arises is not to be denied, but we assert that absent a revolutionary state or condition in the country the change must be accomplished through the ordinary, regular and legitimate processes provided for in the Constitution.' I cannot subscribe therefore to the view taken by the Solicitor General that the people, being sovereign, have the authority to amend the Constitution even in a manner different from and contrary to that expressly provided for in that instrument, and that the amendatory process is intended more as a limitation of a power rather than a grant of power to a particular agency and it should not be construed as limiting the ultimate sovereign will of the people to decide on amendments to the Constitution .2 Such a view will seriously

undermine the very existence of a constitutional government and will permit anarchy and/or mob rule to set afoot and prevail. Was it the Greek philosopher Plato who warned that the rule of the mob is a prelude to the rule of the tyrant? I would use the following excerpt from Bernas, S.J. 'The 1973 Philippine Constitution, Notes and Cases" as relevant to my point: . . . the amendatory provisions are called a 'constitution of sovereighty' because they define the constitutional meaning of 'sovereignty of the people.' Popular sovereignty, as embodied in the Philippine Constitution, is not extreme popular sovereignty. As one American writer put it: A constitution like the American one serves as a basic check upon the popular will at any given time. It is the distinctive function of such written document to classify certain things as legal fundamentals; these fundamentals may not be changed except by the slow and cumbersome process of amendment. The people themselves have decided, in constitutional convention assembled, to limit themselves ana future generations in the exercise of the sovereign power which they would otherwise possess. And it is precisely such limitation that enables those subject to governmental authority to appeal from the people drunk to the people sober in time of excitement and hysteria. The Constitution, in the neat phrase of the Iowa court, is the protector of the people against injury by the .people. * Truly, what need is there for providing in the Constitution a process by which the fundamental law may be amended if, after all, the people by themselves can set the same at naught even in times of peace when civil authority reigns supreme? To go along with the respondents' theory in this regard is to render written Constitutions useless or mere "ropes of sand allowing for a government of men instead of one of laws. For it cannot be discounted that a situation may arise where the people are heralded to action at a point of a gun or by the fiery eloquence of a demagogue, and where passion overpowers reason, and mass action overthrows legal processes. History has recorded such instances, and I can think of no better example than that of Jesus Christ of Judea who was followed and loved by the people while

curing the sick, making the lame walk and the blind see, but shortly was condemned by the same people turned into fanatic rabble crying out "Crucify Him, Crucify Him" upon being incited into action by chief priests and elders of Jerusalem. Yes, to quote once more from Judge Cooley: A good Constitution should be beyond the reason of temporary excitement and popular caprice or passion. It is needed for stability and steadiness; it must yield to the thought of the people; not to the whim of the people, or the thought evolved in excitement or hot blood, but the sober second thought, which alone, if the government is to be sale can be allowed efficiency. .... Changes in government are to be feared unless the benefit is certain." (quoted in Ellingham v. Dye, 99 N.E. 1, 15,) 3 Crawford v. Gilchrist 64 Fla. 41., 59., So. 963, Ann. Cas. 1914B, 916; State v. Hall, 159 N.W., 281; Opinion of Marshall, J. in State ex. rel. Poster v. Marcus, 152 N.W., 419; From Kochier v. Hill, Vol. 15, N.W., 609, we quote: xxx xxx xxx It has been said that changes in the constitution may be introduced in disregard of its provisions; that if the majority of the people desire a change the majority must be respected, no matter how the change may be effected; and that the change, if revolution, is peaceful resolution. ... We fear that the advocates of this new doctrine, in a zeal to accomplish an end which the majority of the people desire, have looked at but one phase of the question, and have not fully considered the terrible consequences which would almost certainly follow a recognition of the doctrine for which they contend. It may be that the incorporation of this amendment in the constitution, even if the constitution has to be broken to accomplish it, would not of itself produce any serious results. But if it should be done by sanctioning the doctrine contended for, a precedent would be set which would plague the state for all future time. A Banquo's ghost would arise at our incantation which would not down at our

bidding. xxx xxx xxx We ought to ponder long before we adopt a doctrine so fraught with danger to republican institutions. ... xxx xxx xxx Appellants' counsel cite and rely upon section 2, art. 1, of the constitution of the staff This section is a portion of the bill of rights, and is as follows: 'All political power is inherent in the people. Government is instituted for the protection, security, and benefit of of the people; and they have the right at all times to alter or reform the same, whenever the public good may require.' Abstractly considered, there can bye no doubt of the correctness of the propositions embraced in this suction. These principles are older than constitutions and older than governments. The people did not derive the rights referred to by on the constitution. and, in their nature, thee are such that the people cannot surrender them ... . 2. Presidential Decrees Nos. 991 and 1033 which call for a national referendum-plebiscite on October 16, 1976 for the purpose, among other things, of amending certain provisions of the 1973 Constitution are null and void as they contravene the express provisions on the amending process of the 1973 Constitution laid down in Article XVI, Section 1 (1) and Article XVII, Section 15, more particularly the latter which applies during the present transition period. The Opinion of Justice Teehankee discusses in detail this particular matter. I would just wish to stress the point that although at present there is no by tterint National Assembly which may propose amendments to the Constitution, the existence of a so-called "vacuum" or "hiatus" does not justify a transgression of the constitutional provisions on the manner of amending the fundamental law. We cannot cure one infirmity - the existence of a "vacuum" caused by the non-convening of the interim National Assembly with another infirmity, that is, doing violence to the Charter. All great mutations shake and disorder a state. Good does not necessarily succeed evil; another evil may succeed and a worse. (Am. Law Rev. 1889, p. 311., quoted in Ellingham

v. Dye, supra, p. 15) Respondents contend that the calling of the referendum-plebiscite for the purpose indicated is a step necessary to restore the state of normalcy in the country. To my mind, the only possible measure that will lead our country and people to a condition of normalcy is the lifting or ending of the state of martial law. If I am constrained to make this statement it is because so much stress was given during the hearings of these cases on this particular point, leaving one with the impression that for petitioners to contest the holding of the October 16 referendum-plebiscite is for them to assume a position of blocking or installing the lifting of martial law, which I believe is unfair to the petitioners. Frankly, I cannot see the connection between the two. My esteemed colleagues should pardon me therefore if I had ventured to state that the simple solution to the simple solution to the present dilemma is the lifting of martial law and the implementation of the constitutional provisions which will usher in the parliamentary form of government ordained in the Constitution, which, as proclaimed in Proclamation 1102, the people themselves have ratified. If the people have indeed ratified the 1973 Constitution, then they are bound by their act and cannot escape from the pretended unfavorable consequences thereof, the only y being to set in motion the constitutional machinery by which the supposed desired amendments may properly be adopted and submitted to the electorate for ratification. Constitutional processes are to be observed strictly, if we have to maintain and preserve the system of government decreed under the fundamental Charter. As said by Justice Enrique Fernando in Mutuc vs. Commission on Elections ... The concept of the Constitution as the fundamental law, setting forth the criterion for the validity of any public act whether proceeding from the highest official or the lowest funcitonary, is a postulate of our system of government. That is to manifest fealty to the rule of law, with priority accorded to that which occupies the topmost rung in the legal hierarchy. ... (36 SCRA, 228, 234, italics Ours) A contrary view would lead to disastrous consequences for, in the words of Chief Justice Cox of the Supreme Court of Indiana in Ellingham v. Dye, (supra, p. 7) liberty and popular sovereignty are not meant to give rein to passion or thoughtless impulse but to allow the exercise of power by the

people for the general good by tistlercoitaitt restraints of law. 3 . The true question before Us is is one of power. Does the incumbent President of the Philippines possess constituent powers? Again, the negative answer is explained in detail in the dissenting opinion of Justice Teehankee. Respondents would justify the incumbent President's exercise of constituent powers on theory that he is vested with legislative powers as held by this Court in Benigno S. Aquino, Jr., et al. vs. Commission on Elections, et al., L40004, January 31, 1975. 1 wish to stress that although in my separate opinion in said case I agreed that Section 3 (2) of the Transitory provisions grants to the incumbent President legislative powers, I qualified my statement as follows: .... As to, whether, or not, this unlimited legislative qqqjwwel of the President continues by exist even after the ratification of the Constitution is a matter which I am not ready to concede at the moment, and which at any rate I believe is not essential in resolving this Petition for reasons to be given later. Nonetheless, I hold the view that the President is empowered to issue proclamations, orders, decrees, etc. to carry out and implement the objectives of the proclamation of martial law be it under the 1935 or 1973 Constitution, and for the orderly and efficient functioning of the government, its instrumentalities, and agencies. This grant of legislative power is necessary to fill up a vacuum during the transition period when the interim National Assembly is not yet convened and functioning, for otherwise, there will be a disruption of official functions resulting in a collapse of the government and of the existing social order. (62 SCRA, pp. 275,347) I believe it is not disputed that legislative power is essentially different from constituent power; one does not encompass the other unless so specified in the Charter, and the 1973 Constitution contains provisions in this regard. This is well-explained in Justice Teehankee's Opinion. The state of necessity brought about by the current political situation, invoked by the respondents, provides no source of power to propose amendments to the existing Constitution. Must we "bend the Constitution to suit the law of the hour or cure its defects "by inflicting upon it a wound which nothing can heal commit one assault after the other "until all respect for the fundamental law is lost

and the powers of government are just what those in authority please to call them?'" 5 Or can we now ignore what this Court, speaking through Justice Barredo, said in Tolentino vs. Comelec: ... let those who would put aside, invoking grounds at best controversial, any mandate of the fundamental law purportedly by order to attain some laudable objective bear in mind that someday somehow others with purportedly more laudable objectives may take advantages of the precedent in continue the destruction of the Constitution, making those who laid down the precedent of justifying deviations from the requirements of the Constitution the victims of their own folly. 6 Respondents emphatically assert that the final word is the people's word and that ultimately it is in the hands of the people where the final decision rests. (Comment, pp. 18, 19, 22) Granting in gratia argument that it is so, let it be an expression of the will of the people a normal political situation and not under the aegis of martial rule for as I have stated in Aquino vs. Comelec, et al., supra, a referendum (and now a plebiscite) held under a regime of martial law can be of no far reaching significance because it is being accomplished under an atmosphere or climate of fear as it entails a wide area of curtailment and infringement of individual rights, such as, human liberty, property rights, rights of free expression and assembly, protection against unreasonable searches and seizures, liberty of abode and of travel, and so on. 4. The other issues such as the sufficiency and proper submission of the proposed amendments for ratification by the people are expounded in Justice Teehankee's Opinion. I wish to stress indeed that it is incorrect to state that the thrust of the proposed amendments is the abolition of the interim National Assembly and its substitution with an "interim Batasang Pambansa their in by in Proposed amendment No. 6 will permit or allow the concentration of power in one man - the Executive - Prime Minister or President or whatever you may call him - for it gives him expressly (which the 1973 Constitution or the 1935 Constitution does not) legislative powers even during the existence of the appropriate legislative body, dependent solely on the executive's judgment on the existence of a grave emergency or a threat or imminence thereof ** I must be forgiven if, not concerned with the present, I am haunted however

by what can happen in the future, when we shall all be gone. Verily, this is a matter of grave concern which necessitates full, mature, sober deliberation of the people but which they can do only in a climate of freedom without the restraints of martial law. I close, remembering what Claro M. Recto, President of the Constitutional Convention which drafted the 1935 Philippine Constitution, once said: . ... Nor is it enough that our people possess a written constitution in order that their government may be called constitutional. To be deserving of this name, and to drive away all lanirer of anarchy as well as of dictatorship whether by one man or a few, it is necessary that both the government authorities and the people faithfully observe and obey the constitution, and that the citizens be duly conversant not only with their rights but also with their duties... 7 Jose P. Laurel who served his people as Justice of the Supreme Court of this country gave this reminder; the grave and perilous task of halting transgressions and vindicating cherished rights is reposed mainly oil the Judiciary and therefore let the Courts be the vestal keepers of the purity and sanctity of our Constitution.' On the basis of the foregoing, I vote to declare Presidential Decrees Nos. 991 and 1033 unconstitutional and enjoin the implementation thereof. CONCEPCION JR., J., concurring: I vote for the dismissal of the petitions. 1. The issue is not political and therefore justiciable. The term "political question", as this Court has previously defined, refers to those questions which, under the constitution, are to be decided by the people in their sovereign capacity, or in regard to which full discretionary authority has been delegated to the Legislature or executive branch of the Government. It is concerned with the issues dependent upon the wisdom, not legality, of a particular measure. 1 Here, the question raised is whether the President has authority to propose to the people amendments to the Constitution which the petitioners claim is vested solely upon the National Assembly, the constitutional convention

called for the purpose, and the by the National Assembly. This is not a political question since it involves the determination of conflicting claims of authority under the constitution. In Gonzales vs. Comelec, 2 this Court, resolving the issue of whether or not a Resolution of Congress, acting as a constituent assembly, violates the Constitution, ruled that the question is essentially justiciable, not political, and hence, subject to judicial review. In Tolentino vs. Comelec 3 this Court finally dispelled all doubts as to its position regarding its jurisdiction vis-a-vis the constitutionality of the acts of Congress, acting as a constituent assembly, as well as those of a constitutional convention called for the purpose of proposing amendments to the constitution. Insofar as observance of constitutional provisions on the procedure for amending the constitution is concerned, the issue is cognizable by this Court under its powers of judicial review. 2. As to the merits, a brief backdrop of the decision to hold the referendumplebiscite will help resolve the issue. It is to be noted that under the 1973 Constitution, an interim National Assembly was organized to bring about an orderly transition from the presidential to the parliamentary system of government.' The people, however, probably distrustful of the members who are old time politicians and constitutional delegates who had voted themselves by to membership in the interim National Assembly, voted against the convening of the said interim assembly for at least seven years thus creating a political stalemate and a consequent delay' in the transformation of the government into the parliamentary system. To resolve the impasse, the President, at the instance of the barangays and sanggunian assemblies through their duly authorized instrumentalities who recommended a study of the feasibility of abolishing and replacing the by interim National Assembly with another interim body truly representative of the people in a reformed society, issued Presidential Decree No. 991, on September 2, 1976, calling for a national referendum on October -16, 1976 to ascertain the wishes of the people as to the ways and means that may be available to attain the objective; providing for a period of educational and information campaign on the issues; and establishing the mechanics and manner for holding thereof. But the people, through their barangays, addressed resolutions to the Batasang Bayan, expressing their desire to have the constitution amended, thus prompting the President to issue Presidential Decree No. 1033, stating the questions to @ submitted to the people in the

referendum-plebiscite on October 16,1976. As will be seen, the authority to amend the Constitution was removed from the interim National Assembly and transferred to the seat of sovereignty itself. Since the Constitution emanates from the people who are the repository of all political powers, their authority to amend the Constitution through the means they have adopted, aside from those mentioned in the Constitution, cannot be gainsaid. Not much reflection is also needed to show that the President did not exercise his martial law legislative powers when he proposed the amendments to the Constitution. He was merely acting as an instrument to carry out the will of the people. Neither could he convene the interim National Assembly, as suggested by the petitioners, without doing violence to the people's will expressed overwhelmingly when they decided against convening the interim assembly for at least seven years. 3. The period granted to the people to consider the proposed amendments is reasonably long and enough to afford intelligent discussion of the issues to be voted upon. PD 991 has required the barangays to hold assemblies or meetings to discuss and debate on the referendum questions, which in fact they have been doing. Considering that the proposed amendments came from the representatives of the people themselves, the people must have already formed a decision by this time on what stand to take on the proposed amendments come the day for the plebiscite. Besides, the Constitution itself requires the holding of a plebiscite for the ratification of an amendment not later than three (3) months after the approval of such amendment or revision but without setting a definite period within which such plebiscite shall not be held. From this I can only conclude that the framers of the Constitution desired that only a short period shall elapse from the approval of such amendment or resolution to its ratification by the people. Footnotes 1 Sec. 3, PD 991, September 2, 1976. 2 SEC. 4 Who shall participate.-Every Filipino citizen, literate or not, fifteen years of age or over who has resided in the barangay for at least six months shall participate in the consultation in his barangay. Provided, however, That any person who may not be able to participate in the consultations of his barangay may do so in any barangay

member shall participate in more than one barangay consultation. 3 SEC. 15. The National Assembly upon special call by the interim Prime Minister, may, by a majority vote of all its Members, propose amendments to this Constitution. Such amendments shall take effect when ratified in accordance with Article Sixteen thereof." 4 Pascual v. Secretary of Public Works, 110 Phil. 331 (1960). 5 Section 18. 6 Section 5. 7 Tan v. Macapagal, L-34161, Feb. 29, 1972, 43 SCRA 677, Fernando, J., ponente. See also Standing to Secure Judicial Review, Jaffe, 74 Harvard Law Review 1265 (May 1961). 8 Concurring and dissenting opinion of Justice Fernando in the Plebiscite Cases (Planas v. Comelec, 49 SCRA 105). See Martial Law and the New Society in the Philippines, Supreme Court, 1976, at 152. 9 Orfield Amending the Federal Constitution, 111. 10 Separate Opinion of Justice Concepcion in the Ratification Casts v. the Executive Secretary 50 SCRA 30), Martial Law and the New Society in the Philippines, 1976, Supreme Court, 210-224, quoting Tanada v. Cuenco, 103 Phil. 1051. 11 See Martial Law and the New Society in the Philippines, Supreme Court, 1976, at 121. 12 Idem, at 210. 13 The view of the Chief Justice was shared by Justices Makalintal (later Chief Justice), Zaldivar, Castro (present

Chief Justice), Fernando, and Teehankee. Justice Barredo qualified his vote, stating that "inasmuch as it is claimed that there has been approval by the people, the Court may inquire into the question of whether or not there has actually been such an approval, and, in the affirmative, the Court should keep its hands-off out of respect to the people's will, but, in the negative, the Court may determine from both factual and legal angles whether or not Article XV of the 1935 Constitution has been complied with." Justices Makasiar, Antonio and Esguerra hold that the issue is political and "beyond the ambit of judicial inquiry." 14 62 SCRA 275, Referendum Case, Martial Law and the New Society in the Philippines, Supreme Court, 1976, at 1071. 15 Idem, at 10791081. 16 In the United States, all amendments to the Federal constitution, except the Twenty-first Amendment, had been proposed by the U.S. Congress, Modern Constitutional Law, Antieau Vol. 2,1969 ed., at 482. 17 The Amending of the Federal Constitution by Orfield 1942, 48-53; 103-105. 18 Black's Constitutional Law, Hornkbook series, at 42. 19 Hollingsworth v. Virginia, 3 Dall 378. 20 There are 3 types of crisis in the life of a democratic nation. First is particularly a war to repel invasions, when a state must convert its peacetime political and social order into a wartime fighting machine and overmatch the skill and efficiency of the enemy. Second, is rebellion, when the authority of a constitutional government is resisted openly by a large numbers of its citizens who are engaged in violent insurrection against the enforcement of its laws or are bent on capturing it illegally or even destroying it altogether. Third is economic depression-a crisis greater

than war. Rossiter, Constitutional Dictatorship, at 6. 21 Constitutional Dictatorship by Clinton Rossiter, 288-290. 22 Corwin, The President Office and Powers, at 371. 23 See Separate Opinion of the Chief Justice (the Justice Castro in the Referendum Case (Aquino v. Comelec), at p. 1084, Martial Law and the New Society in the Philippines, Supreme Court, 1976. 26 Orfield, Amending the Federal Constitution, at 55. 27 Daily Express, Sept. 27,1976; Times Journal, Sept. 17, 1976. 28 Sunday Express, September 23, 1976. 29 Daily Express, September 23, 1976. 30 Section 1, Article II, 1973 Constitution. 31 See Orfield, Amending the Federal Constitution, 140143. The first meaning includes all persons. living within the state during the whole time of the existence of the state; the second, the sum of all individuals as an organized group living within the state at the same time: and the third, the organized group of individuals living the state with the exception of the government. 32 Friedrich, The Philosophy of Law in Historical Perspective, 1963, at 221. 33 Orfield Amending the Federal Constitution, at 105. 34 Abrams v. United States, 250 U.S. 616, 630. 35 Op Cit., at 221. 39 Separate opinion of Justice Palma in the Referendum Case (Aquino v. COMELEC), at 1135, Martial Law and the

New Society in the Philippines, 1976, Supreme Court. 40 Separate opinion of Justices Makalintal and Castro in the Ratification Case (Javellana v. The Executive Secretary, 50 SCRA 30), at 292-293, Martial Law and the New Society in the Philippines 41 Sec. 1, Article VI, 1973 Constitution. 42 Daily Express, September 29, 1976. 43 See Times Journal, September 30, 1976. 44 Times journal, October 2, 1976. 45 See Martial Law and the New Society, 1976, Supreme Court, at 1082-83. 46 307 U.S. 433, see Cases in Constitutional Law, 3rd ed., Cushman and Cushman, 12-13. 47 Dillon v. Gloss, 256 U.S. 368. 48 Willoughby on the Constitution of the Untied States, Vol. 1,595-96. L-35925, January 22, 1973, 49 SCRA 105. The other cases disposed of by the Court are not referred to. 2 L-36142, March 31, 1973, 50 SCRA 30. Again, no reference is made to the other petitions raising the same question as to te validity of Proclamation No. 1102 announcing the ratification of the Constitution proposed by the Constitutional Convention. 3 L-35546, September 17, 1974, 59 SCRA 183. It must be noted that there were other petitions decided likewise seeking the nullification of Proclamation No. 1081 declaring martial law. 4 L-4004, January 31, 1975, 62 SCRA 275. This decision

affirmed the power of the incumbent President to issue decrees having the force and effect of law. There was in the main opinion in this case, penned by Justice Makasiar, an explicit recognition that the incumbent President possesses legislative competence so that during the period of Martial Law he could assure "the security and preservation of the Republic, ... the defense of the political and social liberties of the people and... the institution of reforms to prevent the resurgence of rebellion or insurrection or secession or the threat thereof as well as to meet the impact of a worldwide recession, inflation or economic crisis which presently threatens all nations including highly developed countries ..." (At 298) Justices Antonio, Esguerra, Fernandez, Munoz Palma and Aquino concurred, although in a separate opinion, Justice Munoz Palma qualified it by saying that the grant of legislative power "is necessarily to fill up a vacuum during the transition period when the interim National Assembly is not yet convened and functioning, for otherwise, there will be a disruption of official functions resulting in a collapse of the government and of the existing social order." (At 347) There was likewise a concurring opinion by the then Justice, now Chief Justice Justice Makalintal and Justices Barredo, Antonio, Esguerra and Fernandez concurred with this opinion. In a concurring and dissenting opinion, Justice Teehankee would confine "his legislative and appropriation powers under martial law ... to the law of necessity of preservation of the state which gave rise to its proclamation (including appropriations for operations of the government and its agencies and instrumentalities)." (At 316-317) The writer of this opinion had his own concurrence and predicated his vote without an expression of his views as to the grant of legislative power to the President. " 5 L-37364, May 9,1975, 63 SCRA 546. The Court ruled in this case that military commissions may try civilians for certain specified offenses according to applicable presidential decrees.

6 SCRA 183, 281-309. 7 Ibid, 301. 8 Ex parte Milligan is reported in 4 Wall. 2 (1966). It was likewise noted that Story, the first eminent commentator in American constitutional law made no reference to martial law. Cooley's work, now in its 8th edition, is entitled Constitutional Limitations while that of Watson bears the title of Constitution of the United States. At 302 9 Ibid. Sterling is found in 287 US 378 (1932) and Duncan in 327 US 304 (1946). Among the casebooks on constitutional law referred to are those by Dodd (1949), Dowling (1950), Sholley (1951), Frank (1932), Freund and Associates (1954), Barrett and Associates (1963), Kauper (1966), Lockhart and Associates (1970). 10 Ibid. It may be observed parenthetically that when I collaborated with Senator Lorenzo M. Tanada in the Constitution of the Philippines Annotated published almost thirty Nears ago in 1947 (at 588-589) with two later editions that came out in 1949 (at 694-695) and 1993 (at 10131014), it was Willoughby's view that was cited. 11 Ibid. 302-303. This was the formulation of Burdick in his The Law of the American Constitution, 261 (1922). 12 Ibid. 303. 13 Ibid. The citation is from Willoughby on the Constitution of the United States, 2nd ed. 1591 (1929). 14 Ibid. The excerpt is from Williams on Constitutional Law, 449 (1936). It is to be made clear that in our Constitution, it is only the privilege of the writ, not the writ itself that is suspended. 15 Ibid. :30:3-304. The quotation is from volume 2 of the treatise of Schwartz on the American Constitution, entitled The Powers of Government 244 (1963) that the citation

came from. 16 Ibid. The reference is to Dicey on the Law of the Constitution, 287-288 (1962). 17 327 US 304, 322. 18 Cf. Aquino v. Commission on Elections, 62 SCRA 275. 19 Ibid, 305. The citation from Rossiter is from the first chapter of his work on Constitutional Dictatorship. 9 (1948). 20 Ibid. 306. 21 SCRA 275, 298. Justice Makasiar cited pages 7 and 303 of Rossiter's Constitutional Dictatorship. 22 The extensive citation in the opinion of Justice martin is found in Chapter XIX of Rossiter's opus entitled Constitutional Dictatorship: The Forms, the Dangers, the Criteria, the Future. that is the last chapter of his work, after a rather exhaustive discussion of what are referred to by him as Constitutional Dictatorship in Germany (Chapters III to V), Crisis Government in the French Republic (Chapters VI to IX), Crisis Government in the United States (chapters XIV to XVII). 23 Ibid. 294. 24 Imelda Romualdez Marcos, The Filipino Between Two Worlds, Philippines Daily Express lo, October 9,1976. 25 Ibid. 26 Corwin, The President Office and Powers, 4th rev. ed., 139-140 (1957). 27 According to Art XVII, Sec. 15 of the present Constitution: The interim National upon special call by the interim Prime Minister, a majority vote of all its Members, propose to amendments to this Constitution. Such

amendments shall take effect when ratified in accordance with Article Sixteen hereof." 28 He was assisted by Assistant Solicitor General Hugo E. Gutierrez Jr. and Trial Attorney Nannette R. de Castro. 29 Malcolm and Laurel, Philippine Constitutional Law, 3rd ed., 20-21 (1936). 30 Malcolm and Laurel, Cases on Constitutional Law (1936). 31 Ibid. Ellingham v. Dye is reported in 99 NE 1 (1912). 32 Philippine Political Law, llth ed. 63 (1962). It is precisely Ellingham v. Dye that was cited. 33 Justice Makasiar referred to Article XVII, Sec. 3, par. 2 of the present Constitution. The present Chief Justice would include paragraph 1 to the above. Vide in. 4. 34 L-34150, October 16,1951, 41 SCRA 702. 35 According to Article 11, Section 1 of the present Constitution: The Philippines is a republican state. Sovereignty resides in the people and all government authority emanates from them." 36 Cf. Crammer v. Thorson 68 NE 202 (1896): Edwards v. Lesueur 83 SW 1130 (1896); People v. Mills, 70 P. 322 (1902); Treadgill v. Cross, 109 P 558 (1910); Scott v. James, 76 SE 283 (1912); Weinland v. Fulton 121 NE 816 (1918); Gray v. Mass, 156 So. 262 (1934); Gray v. Winthrop, 156 So. 270 (1934); State v. Burns, 172 SW 259 (1943), Hillman v. Stockett 39 A2 803 (1944). 37 L-19313, January 19,1962,4 SCRA 1. 38 Ibid, 17-18.

39 L-21897, October 22, 1964, 9 SCRA 230. 40 Ibid, 244. 41 50 SCRA 30, 310-333 (1973). 42 59 SCRA 275, 306-315 (1974). 43 Laski, Grammar of Politics, 4th ed., 34 (1937). 44 Corwin, The Higher Law Background of American Constitutional Law, Selected Essays on Constitutional Law 3 (1938). 45 Lerner, Ideas are Weapons, 470 (1939). 46 Bryn-Jones, Toward a Democratic New Order 23 (1945). 47 McIver, The Web of Government 84 (1947). 48 L-28916, November 9, 1967, 21 SCRA 774. 49 L-23415, October 16, 1971, 41 SCRA 702. 50 L-35925, January 22, 1973, 49 SCRA 105. 51 L-36142, March 31, 1973, 50 SCRA 30. If I read correctly the concurring opinion of the then Chief Justice Makalintal and the now Chief Justice Castro, then an Associate Justice, where the question raised concerns the adoption and enforcement of a new Constitution, then it may be looked upon as political. 52 78 Phil. 1 (1947). To be more precise, there were only five Justices, headed by Justice Tuason, with the then Chief Justice Moran and the then Justices Paras, later himself a Chief Justice, Hilado, Pablo and Hontiveros, who were of that persuasion. The other two votes necessary for a majority for dismissing the prohibition petition were supplied by Justice, also later a Chief Justice, Bengzon and Justice Padilla.

53 307 U.S. 433. In the concurring opinion of Justice Black, with Justices Roberts, Frankfurther and Douglas in agreement, he made the categorial statement that such process "is 'political' in its entirety, from submission until an amendment becomes part of the Constitution, and is not subject to judicial guidance, control or interference at any point." At 459. 54 Cf. Hatcher v. Meredith, 173 SW 2d 665 (1943); In re Application of Borg, 35 A2d 220 (1944); Renck v. Superior Court of Maricopa County, 187 P2d 656 (1947); In re Opinion of Justices, 47 SO2d 643 (1950); Funk v. Fielder, 243 SW2d 474 (1951); Baum v. Newbry 267 P2d 220 (1954); Boe v. Foss, 77 NW2d 1 (1956); Goldner v, Adams, 167 SO2d 575 (1964); Hamilton v. City of Shreveport, 174 SO2d 529 (1965). 55 Laurel, S., ed., VII Proceedings of the Philippine Constitutional Convention (1934-1935), Appendix L, 800. 56 SCRA 275, 306-315. 1 Article XV, section 1. 2 Article XVI, section 1, paragraphs (1) and (2). 3 Article XVII. section 3 (1). 4 Article XVII, section 15. 5 P.D. No. 991 dated Sept. 2, 1976, as amended by P.D. No. 1031 dated Sept. 22, 1976 and P.D. No. 1033 dated Sept. 22, 1976 "Stating the questions to be submitted to te people i the referendum-plebiscite on October 16, 1976". 6 Art. XV, sec. 1, 1935 Constitution (see Art. XVI, secs. 1 and 2, 1973 Constitution). 7 Resolution on motion for reconsideration in Tolentino vs. Comelec dated Nov. 4, 1971, at page 3.

8 Idem, at page 4. 9 Idem, at page 4 10 Idem, at page 4. 11 Marshall, C.J. in Marburg vs. Madison, 1 Cranch 137(1803). 12 Cooley's Constitutional Limitations, 8th Ed., Vol. 1, p. 81 13 Idem, pp. 87-88. 14 Javellana vs' Exec. Secretary, 50 SCRA 30 (1973). 15 Majority opinion at p.20. 16 21 SCRA 774(1967) 17 Citing Sec.1,Art.VI,1935 Constitution 18 See sec.1,Art. VIII,1973 Constitution 19 Aquino vs. Comelec, 62 SCRA 275 (Jan. 31, 1975);see also Gonzales vs. Comelec, L-40117, Feb. 22, 1975 20 Cooley, Constitutional Limitations, 8th Ed., Vol. 1, p. 224 21 63 Phil. 134(1936). 23 Sunday Express (and Times Journal) issues of August 29, 1976 reported that "(A)s proposed by the sanggunian and barangay national executive committees, the following questions will be submitted in the discussions and referendums: 1 Do you want martial law to be lifted? 2 Do you want to call the interim National Assembly? 3 If not, do you want to call a body with legislative powers?

4 Do you want such body to have full legislative powers? 5 If not, do you want such body to have limited legislative powers as may be determined by the President in a presidential decree? 6 If you want to call a body with certain legislative powers, do you want to grant such body authority to propose amendments to the Constitution to make it conform with the aims to the New Society? 7 If you want to call the body referred to questions 4, 5, and 6, do you want the members of such body elected by the people through the barangays in accordance with an election code to be promulgated in a decree by the President? "The barangay and sanggunian executive committees informed the President that it was 'the thing of the barangays to undertake the referendum on an informal manner and that they opted to devise their own ballots, tally sheets, and all other necessary from.' "As proposed, and approved by the President, the referendum will be done by secret ballot, except in small barangays where the residents can be gathered in one assembly to decide on the issues by roll call vote if desired by residents. "The canvassing will be done by the barangay referendum committee." 24 "The other issue to be taken up in the public discussions is the question on whether the interim national assembly should be convened or not. "This question was asked in two previous referenda-in 1973 and 1975 - and was rejected each time by the people "The barangays, however, of feel it is time to again ask the people's opinion of this matter." (Phil. Express issue of Aug.

30,1976). 25 Art. IX, see. 1, 1973 Constitution. 26 Cooleys Constitutional Limitations, 8th Ed. Vol. 2, p. 1349, citing Chief Justice Davis in Gibson vs. Mason, 5 Nev. 293, 291 thus; "The maxim which lies at the foundation of our government is that all political power originates with the people. But since the organization of government it cannot be claimed that either the legislative, executive, or judicial powers, either wholly or in part, can be exercised by them. By the institution of government the people surrender the exercise of all these sovereign functions of government to agents chosen by themselves, who at least theoretically represent the supreme will of their constituents. Thus all power possessed by the people themselves is given and centered in their chosen representatives 27 See fns. 8-10: note in parenthesis supplied. 28 Tolentino vs. Comelec, 41 SCRA 702, 725; emphasis supplied. 29 36 SCRA 228 234 (1970). 30 Resolution denying motion for reconsideration dated Nov. 4, 1971, at page 13. 31 Idem, at page 16 fn. 6. 32 Majority opinion, at page 19. 33 Idem, at page 20. 33* Rodriguez vs. Gella 92 Phil. 603 (1953); see also Araneta vs. Dinglasan, 84 Phil. 368 (1949). 34 Gonzales vs. Comelec, L-40117, Resolution of Feb. 22,1975.

35 In re Egan 8 Fed. Cas. 367, holding that "Martial law is neither more nor less than the will of the general in command of the army- It overreaches and supersedes, all civil law by the exercise of military power.." as cited in the Secretary of Justice's outline of a study on the exercise of Legislative Power by the President under Martial Law, dated Dec. 27, 1972, as reported in Lawyers' Journal, March 31, 1973 issue, p. 90. 36 Cooley's Constitutional Limitations. 8th Ed., Vol. 1, pp.128-129. 37 With the exception of the proposed amendments increasing the membership of the House of Representatives from 120 to 180 and authorizing members of Congress to become Con-Con delegates, which were widely publicized as a result of the court proceedings and decision in Gonzales vs. Comelec, 21 SCRA 774. 38 "Perspectives and Dimensions of Constitutional Reforms" delivered as keynote speech at the National Conference on Constitutional Amendments, July 27,1970. 39 Articles VIII, IX and X, 1973 Constitution. 40 U.P. Professor Perfecto V. Fernandez: Civil Liberties under Martial Law. 41 Louis H. Pollale The Constitution and the Supreme Court, Vol. 1, page 191. 42 Supra, fn. 16. 43 Supra, fn. 28. 44 Sec. Art. VIII, sec. 2 1935 Constitution; Art. X, sec. 5, 1973 Constitution 45 SCRA 30 (1973) and cases cited. 46 Now retired Justices J.B.L. Reyes and Calixto 0.

Zaldivar. 47 SCRA at p. 733. 48 21 SCRA at pages 816-817, emphasis copied. 49 From Am. Law Review, 1889, p. 311, citing Ellingham vs. Dye 99 N.E. pp. 4,15; emphasis copied. 50 21 SCRA at p. 817. 51 Phil. Daily Express issue of Oct. 11, 1976 reporting the Comelec's stand that "Young voters, from age 15 to below 18 can vote not only on the question of martial law but also on the question regarding the proposed constitutional amendments". 52 Phil. Daily Express issue of Oct. 3, 1976. 53 Times journal and Phil. Daily Express issues of Oct. 11, 1976. 54 In the Bulletin Today issue of October 2, 1976, the President is quoted as himself abstaining from the debates: "I am trying to steer clear of the debates because it involves martial law, and it involves, of course, me personally. So the less I say about it, the better, I guess, from my point of view". 54* Pres. Marcos' address on observance of the first anniversary of the 1973 Constitution on Jan. 17, 1974; Phil. Labor Relations Journal, Vol. VII, Jan. 1974, p. 6. 55 The resolution gave the same permission to court personnel by a 9 to 1 vote with Justice Makasiar and the writer presenting no objection in the case of personnel as classified civil service employees, while Justice Munoz Palma maintained the same negative vote. 1 Aquino, J. vs Ponce Enrile and other cases, 59 SCRA

183. 2 50 SCRA 30, 209 et seq. 1 Carl Brent Swisher. The Supreme Court in the Modern Role, 1958 ed., p. 173. 2 Melville Fuller Weston, Political questions, 38 Harv. L. Rev., 296, Italics supplied. 3 Tanada v. Cuenco, 103 Phil. 1051, 1057, citing in re McConoughy, 119 NW 408. Italics supplied. 4 16 C.J.s. 413. 5 369 U.S. 186, 217. 6 307 U.S. 433. 7 78 Phil, 1 (1947). 8 21 SCRA 774. 9 Republic Act No. 413. 10 41 SCRA 702, 11 L-40004, January 3l, 1975. 62 SCRA 275. 12 Proclamation No. 1103, January 17,1973. 13 Section 1, Article II, Constitution. 14 Leibholz: Politics and Law, p. 24. 15 Todays Revolution: Democracy, Marcos, pp. 87-88. 16 Mabanag v. Lopez Vito, supra, at page 5, citing Green v. Weller, 32 Miss., 650; note, 10 L.r.a., n.s., 150. 17 John P. wheeler, Jr., Changing the fundamental Law SALIENT ISSUES OF CONSTITUTIONAL REVISION;

1961 ed. 18 Sinco. Philippine Political Law, 10th Ed. p. 48 19 T.S.N. of hearing, October 8,1976, pp. 8,11,12,15. * p. 716, 1974 Ed., citing B. Schwartz, I The Powers of Government (1963) 10. xxx xxx xxx It is well that the powers of the people and their relations to organized society should be understood. No heresy has ever been taught in this country so fraught with evil as the doctrine that the people have a constitutional right to disregard the constitution, and that they can set themselves above the instrumentalities appointed by the constitution for the administration of law. It tends directly to the encouragement of revolution and anarchy. It is incumbent upon all who influence and mold public opinion to repudiate and discountenance so dangerous a doctrine before it bears fruits destructive of republican institutions. It will be well if the people come to understand the difference between natural and constitutional freedom. before license becomes destructive of liberty ." (pp. 611-616) 4 Green castle Township v. Black, 5 Ind.,557, 56,5. 5 Oakley vs. Aspinwall, 3 N.Y., 547,568. 6 Resolution on Motion for Reconsideration, L-34150, November 4, 1971, per Barredo, J., pp 19-20, Supreme Court Decisions, November 1971 6 Whenever in the judgment of the President (Prime Minister there exists a brave emergency or a threat or imminence thereof, or whenever the interim Batasang Pambansa or the regular National Assembly fails or is unable to act adequately on any matter for any reason that in his judgment requires immediate action, he may in order to meet the exigency, issue the necessary decrees, orders

or letters of instructions, which shall form part of the law of the land. (Taken from the Barangay Ballot Form distributed by COMELEC for Referendum-Plebiscite, October 16, 1976) 7 Speech upon conferment of the Doctor of Laws, Honoris Causa, by the Manila University, the Lawyers' Journal, June 15, 1936, italics Ours. 8 The Lawyers' Journal, March 15, 1936, 1 Tagada & by Macapagal v. Cuenco, et al.. 103 Phil. 1051 2 L-28196. Nov. 9,1967; 21 SCRA 774. 3 L-34150, Oct. 16, 1971, 41 SCRA 702. 4 Article XVII, Section 1, Constitution. 5 Aquino vs.. Comelec, L-40004, Jan. 31, 1975, 62 SCRA 275, 302. 9 Idem, at page 4. 10 Idem, at page 4. 11 Marshall, C.J. in Marburg vs. Madison, I Cranch 137 (1803). 12 Cooley's Constitutional Limitations, 8th Ed., Vol. 1, p. 81. G.R. No. 86344 December 21, 1989 REP. RAUL A. DAZA, petitioner, vs. REP. LUIS C. SINGSON and HON. RAOUL V. VICTORINO IN THE LATTER'S CAPACITY AS SECRETARY OF THE COMMISSION ON APPOINTMENTS, respondent. CRUZ, J.: After the congressional elections of May 11, 1987, the House of

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

be registered to be entitled to proportional representation in the Commission on Appointments. In addition to the pleadings filed by the parties, a Comment was submitted by the Solicitor General as amicus curiae in compliance with an order from the Court. At the core of this controversy is Article VI, Section 18, of the Constitution providing as follows: Sec. 18. There shall be a Commission on Appointments consisting of the President of the Senate, as ex officio Chairman, twelve Senators and twelve Members of the House of Representatives, elected by each House on the basis of proportional representation from the political parties and parties or organizations registered under the party-list system represented therein. The Chairman of the Commission shall not vote, except in case of a tie. The Commission shall act on all appointments submitted to it within thirty session days of the Congress from their submission. The Commission shall rule by a majority vote of all the Members. Ruling first on the jurisdictional issue, we hold that, contrary to the respondent's assertion, the Court has the competence to act on the matter at bar. Our finding is that what is before us is not a discretionary act of the House of Representatives that may not be reviewed by us because it is political in nature. What is involved here is the legality, not the wisdom, of the act of that chamber in removing the petitioner from the Commission on Appointments. That is not a political question because, as Chief Justice Concepcion explained in Tanada v. Cuenco. 6 ... the term "political question" connotes, in legal parlance, what it means in ordinary parlance, namely, a question of policy. In other words, ... it refers "to those questions which, under the Constitution, are to be decided by the people in their sovereign capacity, or in regard to which full discretionary authority has been delegated to the Legislature or executive branch of the Government." It is concerned with issues dependent upon the wisdom, not legality, of a particular measure. In the aforementioned case, the Court was asked by the petitioners therein to

annul the election of two members of the Senate Electoral Tribunal of that chamber, on the ground that they had not been validly nominated. The Senate then consisted of 23 members from the Nacionalista Party and the petitioner as the lone member of the Citizens Party. Senator Lorenzo M. Tanada nominated only himself as the minority representative in the Tribunal, whereupon the majority elected Senators Mariano J. Cuenco. and Francisco Delgado, from its own ranks, to complete the nine-man composition of the Tribunal as provided for in the 1935 Constitution. The petitioner came to this Court, contending that under Article VI, Section 11, of that Charter, the six legislative members of the Tribunal were to be chosen by the Senate, "three upon nomination of the party having the largest number of votes and three of the party having the second largest number of votes therein." As the majority party in the Senate, the Nacionalista Party could nominate only three members and could not also fill the other two seats pertaining to the minority. By way of special and affirmative defenses, the respondents contended inter alia that the subject of the petition was an internal matter that only the Senate could resolve. The Court rejected this argument, holding that what was involved was not the wisdom of the Senate in choosing the respondents but the legality of the choice in light of the requirement of the Constitution. The petitioners were questioning the manner of filling the Tribunal, not the discretion of the Senate in doing so. The Court held that this was a justiciable and not a political question, thus: Such is not the nature of the question for determination in the present case. Here, we are called upon to decide whether the election of Senators Cuenco and Delgado by the Senate, as members of the Senate Electoral Tribunal, upon nomination by Senator Primicias-member and spokesman of the party having the largest number of votes in the Senate-behalf of its Committee on Rules, contravenes the constitutional mandate that said members of the Senate Electoral Tribunal shall be chosen "upon nomination ... of the party having the second largest number of votes" in the Senate and hence, is null and void. The Senate is not clothed with "full discretionary authority" in the choice of members of the Senate Electoral Tribunal. The exercise of its power thereon is subject to constitutional limitations which are claimed to be mandatory in nature. It is clearly within the legitimate province of the judicial department to pass upon the

validity of the proceeding in connection therewith. ... whether an election of public officers has been in accordance with law is for the judiciary. Moreover, where the legislative department has by statute prescribed election procedure in a given situation, the judiciary may determine whether a particular election has been in conformity with such statute, and particularly, whether such statute has been applied in a way to deny or transgress on constitutional or statutory rights ...' (1 6 C.J.S., 439; emphasis supplied) It is, therefore, our opinion that we have, not only jurisdiction but also the duty, to consider and determine the principal issue raised by the parties herein." Although not specifically discussed, the same disposition was made in Cunanan v. Tan as it likewise involved the manner or legality of the organization of the Commission on Appointments, not the wisdom or discretion of the House in the choice of its representatives. In the case now before us, the jurisdictional objection becomes even less tenable and decisive. The reason is that, even if we were to assume that the issue presented before us was political in nature, we would still not be precluded from resolving it under the expanded jurisdiction conferred upon us that now covers, in proper cases, even the political question. Article VII, Section 1, of the Constitution clearly provides: Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law. Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government. The respondent's contention that he has been improperly impleaded is even less persuasive. While he may be technically correct in arguing that it is not he who caused the petitioner's removal, we feel that this objection is also not an insuperable obstacle to the resolution of this controversy. We may, for one

thing, treat this proceeding as a petition for quo warranto as the petitioner is actually questioning the respondent's right to sit as a member of the Commission on Appointments. For another, we have held as early as in the Emergency Powers Cases 7 that where serious constitutional questions are involved, "the transcendental importance to the public of these cases demands that they be settled promptly and definitely brushing aside, if we must, technicalities of procedure." The same policy has since then been consistently followed by the Court, as in Gonzales v. Commission on Elections, 8 where we held through Chief Justice Fernando: In the course of the deliberations, a serious procedural objection was raised by five members of the Court. It is their view that respondent Commission on Elections not being sought to be restrained from performing any specific act, this suit cannot be characterized as other than a mere request for an advisory opinion. Such a view, from the remedial law standpoint, has much to recommend it. Nonetheless, a majority would affirm the original stand that under the circumstances, it could still rightfully be treated as a petition for prohibition. The language of justice Laurel fits the case: "All await the decision of this Court on the constitutional question. Considering, therefore, the importance which the instant case has assumed and to prevent multiplicity of suits, strong reasons of public policy demand that [its] constitutionality ... be now resolved.' It may likewise be added that the exceptional character of the situation that confronts us, the paramount public interest, and the undeniable necessity for ruling, the national elections being barely six months away, reinforce our stand. It would appear undeniable, therefore, that before us is an appropriate invocation of our jurisdiction to prevent the enforcement of an alleged unconstitutional statute. We are left with no choice then; we must act on the matter. Coming now to the more crucial question, the Court notes that both the petitioner and the respondent are invoking the case of Cunanan v. Tan to support their respective positions. It is best, therefore, to make a quick review of that case for a proper disposition of this one. In the election for the House of Representatives held in 1961, 72 seats were

won by the Nacionalista Party, 29 by the Liberal Party and 1 by an independent. Accordingly, the representation of the chamber in the Commission on Appointments was apportioned to 8 members from the Nacionalista Party and 4 from the Liberal Party. Subsequently, 25 members of the Nacionalista Party, professing discontent over the House leadership, made common cause with the Liberal Party and formed what was called the Allied Majority to install a new Speaker and reorganize the chamber. Included in this reorganization was the House representation in the Commission on appointments where three of the Nacionalista congressmen originally chosen were displaced by three of their party colleagues who had joined the Allied Majority. Petitioner Carlos Cunanan's ad interim appointment as Deputy Administrator of the Reforestration Administration was rejected by the Commission on Appointments as thus reorganized and respondent Jorge Tan, Jr. was thereafter designated in his place. Cunanan then came to this Court, contending that the rejection of his appointment was null and void because the Commission itself was invalidly constituted. The Court agreed. It noted that the Allied Majority was a merely temporary combination as the Nacionalista defectors had not disaffiliated from their party and permanently joined the new political group. Officially, they were still members of the Nacionalista Party. The reorganization of the Commission on Appointments was invalid because it was not based on the proportional representation of the political parties in the House of Representatives as required by the Constitution. The Court held: ... In other words, a shifting of votes at a given time, even if du to arrangements of a more or less temporary nature, like the one that has led to the formation of the so-called "Allied Majority," does not suffice to authorize a reorganization of the membership of the Commission for said House. Otherwise the Commission on Appointments may have to be reorganized as often as votes shift from one side to another in the House. The framers of our Constitution could not have intended to thus place a constitutional organ, like the Commission on Appointments, at the mercy of each House of Congress. The petitioner vigorously argues that the LDP is not the permanent political party contemplated in the Constitution because it has not been registered in

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

political realignment to justify the questioned reorganization. As he insists: (c) Assuming that the so-called new coalesced majority is actually the LDP itself, then the proposed reorganization is likewise illegal and ineffectual, because the LDP, not being a duly registered political party, is not entitled to the "rights and privileges granted by law to political parties' (See. 160, BP No. 881), and therefore cannot legally claim the right to be considered in determining the required proportional representation of political parties in the House of Representatives. 9 xxx xxx xxx ... the clear constitutional intent behind Section 18, Article VI, of the 1987 Constitution, is to give the right of representation in the Commission on Appointment only to political parties who are duly registered with the Comelec. 10 On November 23, 1989, however, that argument boomeranged against the petitioner. On that date, the Commission on Elections in an en banc resolution affirmed the resolution of its First Division dated August 28, 1989, granting the petition of the LDP for registration as a political party. 11 This has taken the wind out of the sails of the petitioner, so to speak, and he must now limp to shore as best he can. The petitioner's contention that, even if registered, the party must still pass the test of time to prove its permanence is not acceptable. Under this theory, a registered party obtaining the majority of the seats in the House of Representatives (or the Senate) would still not be entitled to representation in the Commission on Appointments as long as it was organized only recently and has not yet "aged." The Liberal Party itself would fall in such a category. That party was created in December 1945 by a faction of the Nacionalista Party that seceded therefrom to support Manuel A. Roxas's bid for the Presidency of the Philippines in the election held on April 23, 1946. 12 The Liberal Party won. At that time it was only four months old. Yet no question was raised as to its right to be represented in the Commission on Appointments and in the Electoral Tribunals by virtue of its status as the majority party in both chambers of the Congress.

The LDP has been in existence for more than one year now. It now has 157 members in the House of Representatives and 6 members in the Senate. Its titular head is no less than the President of the Philippines and its President is Senator Neptali A. Gonzales, who took over recently from Speaker Ramon V. Mitra. It is true that there have been, and there still are, some internal disagreements among its members, but these are to be expected in any political organization, especially if it is democratic in structure. In fact even the monolithic Communist Party in a number of socialist states has undergone similar dissension, and even upheavals. But it surely cannot be considered still temporary because of such discord. If the petitioner's argument were to be pursued, the 157 members of the LDP in the House of Representatives would have to be denied representation in the Commission on Appointments and, for that matter, also the Electoral Tribunal. By the same token, the KBL, which the petitioner says is now "history only," should also be written off. The independents also cannot be represented because they belong to no political party. That would virtually leave the Liberal Party only with all of its seventeen members to claim all the twelve seats of the House of Representatives in the Commission on Appointments and the six legislative seats in the House Electoral Tribunal. It is noteworthy that when with 41 members the Liberal Party was alloted two of the seats in the Commission on Appointments, it did not express any objection. 13 Inconsistently, the petitioner is now opposed to the withdrawal from it of one seat although its original number has been cut by more than half. As for the other condition suggested by the petitioner, to wit, that the party must survive in a general congressional election, the LDP has doubtless also passed that test, if only vicariously. It may even be said that as it now commands the biggest following in the House of Representatives, the party has not only survived but in fact prevailed. At any rate, that test was never laid down in Cunanan. To summarize, then, we hold, in view of the foregoing considerations, that the issue presented to us is justiciable rather political, involving as it does the legality and not the wisdom of the act complained of, or the manner of filling the Commission on Appointments as prescribed by the Constitution. Even if the question were political in nature, it would still come within our powers of review under the expanded jurisdiction conferred upon us by Article VIII,

Section 1, of the Constitution, which includes the authority to determine whether grave abuse of discretion amounting to excess or lack of jurisdiction has been committed by any branch or instrumentality of the government. As for the alleged technical flaw in the designation of the party respondent, assuming the existence of such a defect, the same may be brushed aside, conformably to existing doctrine, so that the important constitutional issue raised may be addressed. Lastly, we resolve that issue in favor of the authority of the House of Representatives to change its representation in the Commission on Appointments to reflect at any time the changes that may transpire in the political alignments of its membership. It is understood that such changes must be permanent and do not include the temporary alliances or factional divisions not involving severance of political loyalties or formal disaffiliation and permanent shifts of allegiance from one political party to another. The Court would have preferred not to intervene in this matter, leaving it to be settled by the House of Representatives or the Commission on Appointments as the bodies directly involved. But as our jurisdiction has been invoked and, more importantly, because a constitutional stalemate had to be resolved, there was no alternative for us except to act, and to act decisively. In doing so, of course, we are not imposing our will upon the said agencies, or substituting our discretion for theirs, but merely discharging our sworn responsibility to interpret and apply the Constitution. That is a duty we do not evade, lest we ourselves betray our oath. WHEREFORE, the petition is DISMISSED. The temporary restraining order dated January 13, 1989, is LIFTED. The Court holds that the respondent has been validly elected as a member of the Commission on Appointments and is entitled to assume his seat in that body pursuant to Article VI, Section 18, of the Constitution. No pronouncement as to costs. SO ORDERED. Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Paras, Feliciano, Gancayco, Padilla, Bidin, Cows, Grio-Aquino, Medialdea and Regalado, JJ., concur. Sarmiento, J., took no part.