U.S. Supreme Court United States v. Nixon, 418 U.S.

683 (1974)

No. 73-1766 Argued July 8, 1974 Decided July 24, 1974* 418 U.S. 683 Syllabus
Following indictment alleging violation of federal statutes by certain staff members of the White House and political supporters of the President, the Special Prosecutor filed a motion under Fed.Rule Crim.Proc. 17(c) for a subpoenaduces tecum for the production before trial of certain tapes and documents relating to precisely identified conversations and meetings between the President and others. The President, claiming executive privilege, filed a motion to quash the subpoena. The District Court, after treating the subpoenaed material as presumptively privileged, concluded that the Special Prosecutor had made a sufficient showing to rebut the presumption and that the requirements of Rule 17(c) had been satisfied. The court thereafter issued an order for an in camera examination of the subpoenaed material, having rejected the President's contentions (a) that the dispute between him and the Special Prosecutor was nonjusticiable as an "intra-executive" conflict and (b) that the judiciary lacked authority to review the President's assertion of executive privilege. The court stayed its order pending appellate review, which the President then sought in the Court of Appeals. The Special Prosecutor then filed in this Court a petition for a writ of certiorari before judgment (No. 73-1766), and the President filed a crosspetition for such a writ challenging the grand jury action (No. 73-1834). The Court granted both petitions. Held: 1. The District Court's order was appealable as a "final" order under 28 U.S.C. 1291, was therefore properly "in" the Court of Appeals, 28 U.S.C. 1254, when the petition for certiorari before judgment was filed in this Court, and is now properly before this Court for review. Although such an order is normally not final and subject to appeal, an exception is made in a "limited class of cases where denial of immediate review would render impossible any review whatsoever of an individual's claims," United States v. Ryan, 402 U. S. 530, 402 U. S. 533. Such an exception is proper in the unique circumstances of this case, where it would be inappropriate to subject the President to the procedure of securing review by resisting the order and inappropriate to require that the District Court proceed by a traditional contempt citation in order to provide appellate review. Pp. 418 U. S. 690692. 2. The dispute between the Special Prosecutor and the President presents a justiciable controversy. Pp. 418 U. S. 692-697. (a) The mere assertion of an "intra-branch dispute," without more, does not defeat federal jurisdiction. United States v. ICC, 337 U. S. 426. P. 418 U. S. 693.

(b) The Attorney General, by regulation, has conferred upon the Special Prosecutor unique tenure and authority to represent the United States, and has given the Special Prosecutor explicit power to contest the invocation of executive privilege in seeking evidence deemed relevant to the performance of his specially delegated duties. While the regulation remains in effect, the Executive Branch is bound by it. United States ex rel. Accardi v. Shaughnessy, 347 U. S. 260. Pp. 418 U. S. 694-696. (c) The action of the Special Prosecutor within the scope of his express authority seeking specified evidence preliminarily determined to be relevant and admissible in the pending criminal case, and the President's assertion of privilege in opposition thereto, present issues "of a type which are traditionally justiciable," United States v. ICC, supra, at 337 U. S. 430, and the fact that both litigants are officers of the Executive Branch is not a bar to justiciability. Pp. 418 U. S. 696-697. 3. From this Court's examination of the material submitted by the Special Prosecutor in support of his motion for the subpoena, much of which is under seal, it is clear that the District Court's denial of the motion to quash comported with Rule 17(c), and that the Special Prosecutor has made a sufficient showing to justify a subpoena for production before trial. Pp. 418 U. S. 697702. 4. Neither the doctrine of separation of powers nor the generalized need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances. See, e.g., 5 U. S. 177; Baker v. Carr, 369 U. S. 186, 369 U. S. 211. Absent a claim of need to protect military, diplomatic, or sensitive national security secrets, the confidentiality of chanroblesvirtualawlibrary Presidential communications is not significantly diminished by producing material for a criminal trial under the protected conditions of in camera@ inspection, and any absolute executive privilege under Art. II of the Constitution would plainly conflict with the function of the courts under the Constitution. Pp. 418 U. S. 703-707. 5. Although the courts will afford the utmost deference to Presidential acts in the performance of an Art. II function,United States v. Burr, 25 F.Cas. 187, 190, 191192 (No. 14,694), when a claim of Presidential privilege as to materials subpoenaed for use in a criminal trial is based, as it is here, not on the ground that military or diplomatic secrets are implicated, but merely on the ground of a generalized interest in confidentiality, the President's generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial and the fundamental demands of due process of law in the fair administration of criminal justice. Pp. 418 U. S. 707-713. 6. On the basis of this Court's examination of the record, it cannot be concluded that the District Court erred in ordering in camera examination of the subpoenaed material, which shall now forthwith be transmitted to the District Court. Pp. 418 U. S. 713-714.

7. Since a president's communications encompass a vastly wider range of sensitive material than would be true of an ordinary individual, the public interest requires that Presidential confidentiality be afforded the greatest protection consistent with the fair administration of justice, and the District Court has a heavy responsibility to ensure that material involving Presidential conversations irrelevant to or inadmissible in the criminal prosecution be accorded the high degree of respect due a President, and that such material be returned under seal to its lawful custodian. Until released to the Special Prosecutor, no in camera material is to be released to anyone. Pp. 418 U. S. 714-716. No. 73-1766, 377 F.Supp. 1326, affirmed; No. 73-1834, certiorari dismissed as improvidently granted. BURGER, C.J.,delivered the opinion of the Court, in which all Members joined except REHNQUIST, J., who took no part in the consideration or decision of the cases. G.R. No. L-45081 July 15, 1936

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 other-things, that said respondent be declared elected member of the National Assembly for the first district of Tayabas, or that the election of said position be nullified (6) That on December 9, 1935, the Electoral Commission adopted a resolution, paragraph 6 of which provides: 6. La Comision no considerara ninguna protesta que no se haya presentado en o antes de este dia. (7) That on December 20, 1935, the herein petitioner, Jose A. Angara, one of the respondents in the aforesaid protest, filed before the Electoral Commission a "Motion to Dismiss the Protest", alleging (a) that Resolution No. 8 of 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; chanrobles virtual law library (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;

JOSE A. ANGARA, Petitioner, vs. THE ELECTORAL COMMISSION, PEDRO YNSUA, MIGUEL CASTILLO, and DIONISIO C. MAYOR, 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; chanrobles virtual law library (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; chanrobles virtual law library (3) That on November 15, 1935, the petitioner took his oath of office; chanrobles virtual law library (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

(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 quasi-judicial attributes; (b) That said respondent presented his motion of protest before the Electoral Commission on December 9, 1935, the last day fixed by paragraph 6 of the rules of the said Electoral Commission; (c) That therefore the Electoral Commission acquired jurisdiction over the protest filed by said respondent and over the parties thereto, and the resolution of the Electoral Commission of January 23, 1936, denying petitioner's motion to dismiss said protest was an act within the jurisdiction of the said commission, and is not reviewable by means of a writ of prohibition (d) That neither the law nor the Constitution requires confirmation by the National Assembly of the election of its members, and that such confirmation does not operate to limit the period within which protests should be filed as to deprive the Electoral Commission of jurisdiction over protest filed subsequent thereto; (e) That the Electoral Commission is an independent entity created by the Constitution, endowed with quasijudicial 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 subcommittee 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: 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. chanrobles virtual law library 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. chanrobles virtual law library 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: 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: chanrobles virtual law library

El Sr. CONEJERO. Antes de votarse la enmienda, quisiera chanrobles virtual law library El Sr. PRESIDENTE. Que dice el Comite? chanrobles virtual law library 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. 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 selfelective, and not bound to act by the principles of justice, but by the discretionary impulse of our own inclinations; nay, it is well known, that in every contested election, many members of this house, who are ultimately to judge in a kind of judicial capacity between the competitors, enlist themselves as parties in the contention, and take upon themselves the partial management of the very business, upon which they should determine with the strictest impartiality." 155. It was to put an end to the practices thus described, that Mr. Grenville brought in a bill which met with the approbation of both houses, and received the royal assent on the 12th of April, 1770. This was the celebrated law since known by the name of the Grenville Act; of which Mr. Hatsell declares, that it "was one of the 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

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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,

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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.

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The petition for a writ of prohibition against the Electoral Commission is hereby denied, with costs against the petitioner. So ordered. 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

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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. 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. 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 Chiongbian-who had, also, run for the Senate, in said election-in Senate Electoral Case No. 4, now pending before the Senate Electoral Tribunal. . The Senate, in its session of February 22, 1956, upon nomination of Senator Cipriano Primicias, on behalf of the Nacionalista Party, chose Senators Jose P. Laurel, Fernando Lopez and Cipriano Primicias, as members of the Senate Electoral Tribunal. Upon nomination of petitioner Senator Taada, on behalf of the Citizens Party, said petitioner was next chosen by the Senate as member of said Tribunal. Then, upon nomination of Senator Primicias on behalf of the Committee on Rules of the Senate, and over the objections of Senators Taada and Sumulong, the Senate choose respondents Senators Mariano J. Cuenco and Francisco A. Delgado as members of the same Electoral Tribunal. Subsequently, the Chairman of the latter appointed: (1) Alfredo Cruz and Catalina Cayetano, as technical assistant and private secretary, respectively, to Senator Cuenco, as supposed member of the Senate Electoral Tribunal, upon his recommendation of said 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) Senator-namely, petitioner, Lorenzo M. Taadabelonging 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 Delgadowho 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

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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:.

IV.

"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

II.

III.

15

had been suspended by said House should not be considered in determining whether the votes cast therein, in favor of a resolution proposing an amendment to the Constitution, sufficed to satisfy the requirements of the latter, such question being a political one. The weight of this decision, as a precedent, has been weakened, however, by our resolutions in Avelino vs. Cuenco (83 Phil., 17), in which this Court proceeded to determine the number essential to constitute a quorum in the Senate. Besides, the case at bar does not hinge on the number of votes needed for a particular act of said body. The issue before us is whether the Senate-after acknowledging that the Citizens Party is the party, having the second largest number of votes in the Senate, to which party the Constitution gives the right to nominate three (3) Senators for the Senate electoral Tribunal-could validly choose therefor two (2) Nacionalista Senators, upon nomination by the floor leader of the Nacionalista Party in the Senate, Senator Primicias claiming to act on behalf of the Committee on Rules for the Senate. The issue in the Cabili case was whether we could review a resolution of the Senate reorganizing its representation in the Commission on Appointments. This was decided in the negative, upon the authority of Alejandrino vs. Quezon (supra) and Vera vs. Avelino (supra), the main purpose of the petition being "to force upon the Senate the reinstatement of Senator Magalona in the Commission on Appointments," one-half (1/2) of the members of which is to be elected by each House on the basis of proportional representation of the political parties therein. Hence, the issue depended mainly on the determination of the political alignment of the members of the Senate at the time of said reorganization and of the necessity or advisability of effecting said reorganization, which is a political question. We are not called upon, in the case at bar, to pass upon an identical or similar question, it being conceded, impliedly, but clearly, that the Citizens Party is the party with the second largest number of votes in the Senate. The issue, therefore, is whether a right vested by the Constitution in the Citizens Party may validly be exercised, either by the Nacionalista Party, or by the Committee on Rules for the Senate, over the objection of said Citizens Party. The only ground upon which respondents' objection to the jurisdiction of this Court and their theory to the effect that the proper remedy for petitioners herein is, not the present action, but an appeal to public opinion, could possibly be entertained is, therefore, whether the case at bar raises merely a political question, not one justiciable in nature. In this connection, respondents assert in their answer that "the remedy of petitioners is not in the judicial forum, but, to use petitioner, Taada's own words, to bring the matter to the bar of public opinion' (p. 81, Discussion on the Creation of the Senate Electoral Tribunal, February 21, 1956)." This allegation may give the impression that said petitioner had declared, on the floor of the Senate, that his only relief against the acts complained of in the petition is to take up the issue before the people- which is not a fact. During the

discussions in the Senate, in the course of the organization of the Senate Electoral Tribunal, on February 21, 1956, Senator Taada was asked what remedies he would suggest if he nominated two (2) 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 wellestablished 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

16

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. " .. 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.

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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, 332333, 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.).

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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. 329330). 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 Senateleave 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

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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.) The aforemention opinion of the Secretary of Justice is not backed up by a, "uniform" application of the view therein adopted, so essential to give thereto the weight accorded by the rules on contemporaneous constructions. Moreover, said opinion tends to change the natural meaning of section 11 of Article VI of the Constitution, which is clear. What is more, there is not the slightest doubt in our mind that the purpose and spirit of said provisions do not warrant said change and that the rejection of the latter is demanded by paramount considerations of public policy. The flaw in the position taken in said opinion and by respondent herein is that, while, it relies upon the compulsory nature of the word "shall", as regards the number of members of the Electoral Tribunals, it ignores the fact that the same term is used with respect to the method prescribed for their election, and that both form part of a single sentence and must be considered, therefore, as integral portions of one and the same thought. Indeed, respondents have not even tried to show and we cannot conceive-why "shall" must be deemed mandatory insofar as the number of members of each Electoral Tribunal, and should be considered directory as regards the procedure for their selection. More important still, the history of section 11 of Article VI of the Constitution and the records of the Convention, refute respondents' pretense, and back up the theory of petitioners herein. Commenting on the frame of mind of the delegates to the Constitutional Convention, when they faced the task of providing for the adjudication of contests relating to the election, returns and qualifications of members of the Legislative Department, Dr. Jose M. Aruego, a member of said Convention, says:. "The experience of the Filipino people under the provisions of the organic laws which left to the lawmaking body the determination of the elections, returns, and qualifications of its members was not altogether satisfactory. There were many complaints against the lack of political justice in this determination; for in a great number of cases, party interests controlled

and dictated the decisions. The undue delay in the dispatch of election contests for legislative seats, the irregularities that characterized the proceedings in some of them, and the very apparent injection of partisanship in the determination of a great number of the cases were decried by a great number of the people as well as by the organs of public opinion. "The faith of the people in the uprightness of the lawmaking body in the performance of this function assigned to it in the organic laws was by no means great. In fact so blatant was the lack of political justice in the decisions that there was, gradually built up a camp of thought in the Philippines inclined to leave to the courts the determination of election contests, following the practice in some countries, like England and Canada. "Such were the conditions of things at the time of the meeting of the convention." (The Framing of the Philippine Constitution by Aruego, Vol. 1, pp. 257-258; emphasis supplied.) This view is shared by distinguished members of the Senate. Thus, in its session of February 22, 1956, Senator Sumulong declared:. ".. when you leave it to either House to decide election protests involving its own members, that is virtually placing the majority party in a position to dictate the decision in those election cases, because each House will be composed of a majority and a minority, and when you make each House the judge of every election protest involving any member of that House, you place the majority in a position to dominate and dictate the decision in the case and result was, there were so many abuses, there were so main injustices: committed by the majority at the expense and to the prejudice of the minority protestants. Statements have been made here that justice was done even under the old system, like that case involving Senator Mabanag, when he almost became a victim of the majority when he had an election case, and it was only through the intervention of President Quezon that he was saved from becoming the victim of majority injustices. "It is true that justice had sometimes prevailed under the old system, but the record will show that those cases were few and they were the rare exceptions. The overwhelming majority of election protests decided under the old system was that the majority being then in a position to dictate the, decision in the election protest, was tempted to commit as it did commit many abuses and injustices." (Congressional Record for the Senate, Vol. 111, p. 361; emphasis supplied.). Senator Paredes, a veteran legislator and former Speaker of the House of Representatives, said:. ".. what was intended in the creation of the electoral tribunal was to create a sort of collegiate court composed of nine members: Three of them belonging to the party having the largest number of votes, and three from the party having the second largest number votes so that these members may represent the party, and the members of said party who will sit before the electoral tribunal as protestees. For when it comes to a party, Mr. President, there ground to believe that decisions will be

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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

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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.) 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

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Constitution when they decided to create the Electoral Tribunal. "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. 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, 3489, 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 prerequisite 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.

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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. 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. ".. 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. "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

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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.chanroblesvirtualawlibrary chanrobles virtual law library 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. 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.'.

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"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 non-existence of one or more parties in the Assembly. "`A cardinal rule in dealing with Constitutions is that they should receive a consistent and uniform interpretation, so they 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.

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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 choose-as it did-said two Members. I vote to dismiss the petition. Endencia, J., concurs. LABRADOR, J., dissenting:. I dissent and herewith proceed to explain my reasons therefore. 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

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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. "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. "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.

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"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 non-existence of one or more parties in the Assembly. `A cardinal rule in dealing with Constitutions is that they should receive a consistent and uniform interpretation, so they 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.).chanroblesvirtualawlibrary chanrobles virtual law library 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

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Tribunal or hold the balance of power. That is the ideal situation.". ".. 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-13250 October 29, 1971 THE COLLECTOR OF INTERNAL REVENUE, Petitioner, vs. ANTONIO CAMPOS RUEDA, Respondent.. FERNANDO, J.: The basic issue posed by petitioner Collector of Internal Revenue in this appeal from a decision of the Court of Tax Appeals as to whether or not the requisites of statehood, or at least so much thereof as may be necessary for the acquisition of an international personality, must be satisfied for a "foreign country" to fall within the exemption of Section 122 of the National Internal Revenue Code 1is now ripe for adjudication. The Court of Tax Appeals answered the question in the negative, and thus reversed the action taken by petitioner Collector, who would hold respondent Antonio Campos Rueda, as administrator of the estate of the late Estrella Soriano Vda. de Cerdeira, liable for the sum of P161,874.95 as deficiency estate and inheritance taxes for the transfer of intangible personal properties in the Philippines, the deceased, a Spanish national having been a resident of Tangier, Morocco from 1931 up to the time of her death in 1955. In an earlier resolution promulgated May 30, 1962, this Court on the assumption that the need for resolving the principal question would be obviated, referred the matter back to the Court of Tax Appeals to determine whether the alleged law of Tangier did grant the reciprocal tax exemption required by the aforesaid Section 122. Then came an order from the Court of Tax Appeals submitting copies of legislation of Tangier that would manifest that the element of reciprocity was not lacking. It was not until July 29, 1969 that the case was deemed submitted for decision. When the petition for review was filed on January 2, 1958, the basic issue raised was impressed with an element of novelty. Four days thereafter, however, on January 6,

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1958, it was held by this Court that the aforesaid provision does not require that the "foreign country" possess an international personality to come within its terms. 2Accordingly, we have to affirm. The decision of the Court of Tax Appeals, now under review, sets forth the background facts as follows: "This is an appeal interposed by petitioner Antonio Campos Rueda as administrator of the estate of the deceased Doa Maria de la Estrella Soriano Vda. de Cerdeira, from the decision of the respondent Collector of Internal Revenue, assessing against and demanding from the former the sum P161,874.95 as deficiency estate and inheritance taxes, including interest and penalties, on the transfer of intangible personal properties situated in the Philippines and belonging to said Maria de la Estrella Soriano Vda. de Cerdeira. Maria de la Estrella Soriano Vda. de Cerdeira (Maria Cerdeira for short) is a Spanish national, by reason of her marriage to a Spanish citizen and was a resident of Tangier, Morocco from 1931 up to her death on January 2, 1955. At the time of her demise she left, among others, intangible personal properties in the Philippines." 3Then came this portion: "On September 29, 1955, petitioner filed a provisional estate and inheritance tax return on all the properties of the late Maria Cerdeira. On the same date, respondent, pending investigation, issued an assessment for state and inheritance taxes in the respective amounts of P111,592.48 and P157,791.48, or a total of P369,383.96 which tax liabilities were paid by petitioner ... . On November 17, 1955, an amended return was filed ... wherein intangible personal properties with the value of P396,308.90 were claimed as exempted from taxes. On November 23, 1955, respondent, pending investigation, issued another assessment for estate and inheritance taxes in the amounts of P202,262.40 and P267,402.84, respectively, or a total of P469,665.24 ... . In a letter dated January 11, 1956, respondent denied the request for exemption on the ground that the law of Tangier is not reciprocal to Section 122 of the National Internal Revenue Code. Hence, respondent demanded the payment of the sums of P239,439.49 representing deficiency estate and inheritance taxes includingad valorem penalties, surcharges, interests and compromise penalties ... . In a letter dated February 8, 1956, and received by respondent on the following day, petitioner requested for the reconsideration of the decision denying the claim for tax exemption of the intangible personal properties and the imposition of the 25% and 5% ad valorempenalties ... . However, respondent denied request, in his letter dated May 5, 1956 ... and received by petitioner on May 21, 1956. Respondent premised the denial on the grounds that there was no reciprocity [with Tangier, which was moreover] a mere principality, not a foreign country. Consequently, respondent demanded the payment of the sums of P73,851.21 and P88,023.74 respectively, or a total of P161,874.95 as deficiency estate and inheritance taxes including surcharges, interests and compromise penalties." The matter was then elevated to the Court of Tax Appeals. As there was no dispute between the parties regarding the values of the properties and the

mathematical correctness of the deficiency assessments, the principal question as noted dealt with the reciprocity aspect as well as the insisting by the Collector of Internal Revenue that Tangier was not a foreign country within the meaning of Section 122. In ruling against the contention of the Collector of Internal Revenue, the appealed decision states: "In fine, we believe, and so hold, that the expression "foreign country", used in the last proviso of Section 122 of the National Internal Revenue Code, refers to a government of that foreign power which, although not an international person in the sense of international law, does not impose transfer or death upon intangible person properties of our citizens not residing therein, or whose law allows a similar exemption from such taxes. It is, therefore, not necessary that Tangier should have been recognized by our Government order to entitle the petitioner to the exemption benefits of the proviso of Section 122 of our Tax. Code."5 Hence appeal to this court by petitioner. The respective briefs of the parties duly submitted, but as above indicated, instead of ruling definitely on the question, this Court, on May 30, 1962, resolve to inquire further into the question of reciprocity and sent back the case to the Court of Tax Appeals for the motion of evidence thereon. The dispositive portion of such resolution reads as follows: "While section 122 of the Philippine Tax Code aforequoted speaks of 'intangible personal property' in both subdivisions (a) and (b); the alleged laws of Tangier refer to 'bienes muebles situados en Tanger', 'bienes muebles radicantes en Tanger', 'movables' and 'movable property'. In order that this Court may be able to determine whether the alleged laws of Tangier grant the reciprocal tax exemptions required by Section 122 of the Tax Code, and without, for the time being, going into the merits of the issues raised by the petitioner-appellant, the case is [remanded] to the Court of Tax Appeals for the reception of evidence or proof on whether or not the words `bienes muebles', 'movables' and 'movable properties as used in the Tangier laws, include or embrace 'intangible person property', as used in the Tax Code." 6In line with the above resolution, the Court of Tax Appeals admitted evidence submitted by the administrator petitioner Antonio Campos Rueda, consisting of exhibits of laws of Tangier to the effect that "the transfers by reason of death of movable properties, corporeal or incorporeal, including furniture and personal effects as well as of securities, bonds, shares, ..., were not subject, on that date and in said zone, to the payment of any death tax, whatever might have been the nationality of the deceased or his heirs and legatees." It was further noted in an order of such Court referring the matter back to us that such were duly admitted in evidence during the hearing of the case on September 9, 1963. Respondent presented no evidence." The controlling legal provision as noted is a proviso in Section 122 of the National Internal Revenue Code. It reads thus: "That no tax shall be collected under this Title in respect of intangible personal property (a) if the decedent at the time of his death was a resident of a foreign country which at the time of his death did not

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impose a transfer tax or death tax of any character in respect of intangible person property of the Philippines not residing in that foreign country, or (b) if the laws of the foreign country of which the decedent was a resident at the time of his death allow a similar exemption from transfer taxes or death taxes of every character in respect of intangible personal property owned by citizens of the Philippines not residing in that foreign country." 8 The only obstacle therefore to a definitive ruling is whether or not as vigorously insisted upon by petitioner the acquisition of internal personality is a conditionsine qua non to Tangier being considered a "foreign country". Deference to the De Lara ruling, as was made clear in the opening paragraph of this opinion, calls for an affirmance of the decision of the Court of Tax Appeals. It does not admit of doubt that if a foreign country is to be identified with a state, it is required in line with Pound's formulation that it be a politically organized sovereign community independent of outside control bound by penalties of nationhood, legally supreme within its territory, acting through a government functioning under a regime of law. 9 It is thus a sovereign person with the people composing it viewed as an organized corporate society under a government with the legal competence to exact obedience to its commands. 10 It has been referred to as a body-politic organized by common consent for mutual defense and mutual safety and to promote the general welfare.11Correctly has it been described by Esmein as "the juridical personification of the nation." 12 This is to view it in the light of its historical development. The stress is on its being a nation, its people occupying a definite territory, politically organized, exercising by means of its government its sovereign will over the individuals within it and maintaining its separate international personality. Laski could speak of it then as a territorial society divided into government and subjects, claiming within its allotted area a supremacy over all other institutions. 13McIver similarly would point to the power entrusted to its government to maintain within its territory the conditions of a legal order and to enter into international relations. 14 With the latter requisite satisfied, international law do not exact independence as a condition of statehood. So Hyde did opine. 15 Even on the assumption then that Tangier is bereft of international personality, petitioner has not successfully made out a case. It bears repeating that four days after the filing of this petition on January 6, 1958 in Collector of Internal Revenue v. De Lara, 16 it was specifically held by us: "Considering the State of California as a foreign country in relation to section 122 of our Tax Code we believe and hold, as did the Tax Court, that the Ancilliary Administrator is entitled the exemption from the inheritance tax on the intangible personal property found in the Philippines." 17There can be no doubt that California as a state in the American Union was in the alleged requisite of international personality. Nonetheless, it was held to be a foreign country within the meaning of Section 122 of the National Internal Revenue Code. 18

What is undeniable is that even prior to the De Lara ruling, this Court did commit itself to the doctrine that even a tiny principality, that of Liechtenstein, hardly an international personality in the sense, did fall under this exempt category. So it appears in an opinion of the Court by the then Acting Chief Justicem Bengson who thereafter assumed that position in a permanent capacity, in Kiene v. Collector of Internal Revenue. 19 As was therein noted: 'The Board found from the documents submitted to it - proof of the laws of Liechtenstein - that said country does not impose estate, inheritance and gift taxes on intangible property of Filipino citizens not residing in that country. Wherefore, the Board declared that pursuant to the exemption above established, no estate or inheritance taxes were collectible, Ludwig Kiene being a resident of Liechtestein when he passed away." 20 Then came this definitive ruling: "The Collector - hereafter named the respondent cites decisions of the United States Supreme Court and of this Court, holding that intangible personal property in the Philippines belonging to a non-resident foreigner, who died outside of this country is subject to the estate tax, in disregard of the principle 'mobilia sequuntur personam'. Such property is admittedly taxable here. Without the proviso above quoted, the shares of stock owned here by the Ludwig Kiene would be concededly subject to estate and inheritance taxes. Nevertheless our Congress chose to make an exemption where conditions are such that demand reciprocity - as in this case. And the exemption must be honored." 21 WHEREFORE, the decision of the respondent Court of Tax Appeals of October 30, 1957 is affirmed. Without pronouncement as to costs.

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