EN BANC
[G.R. No. 120265. September 18, 1995.]
AGAPITO A.
AQUINO, petitioner, vs. COMMISSION ON
ELECTIONS, MOVE MAKATI, MATEO BEDON,
and JUANITO ICARO, respondents.
Haydee B. Yorac, R.A.V . Saguisag and Clarence D. Guerrero for
petitioner.
Felix D. Carao, Jr., collaborating counsel for petitioner.
Pete Quirino Quadra for private respondents Move Makati and
Mateo B. Bedon.
SYLLABUS
1. ELECTION LAW; COMMISSION ON ELECTIONS; JURISDICTION
OVER QUALIFICATION CASES OF CANDIDATES FOR MEMBERS OF
HOUSE OF REPRESENTATIVES; CONTINUES EVEN AFTER THE
ELECTION. — Petitioner vigorously contends that after the May 8,
1995 elections, the COMELEC lost its jurisdiction over the question
of petitioner's qualifications to run for member of the House of
Representatives. He claims that jurisdiction over the petition for
disqualification is exclusively lodged with the House of
Representatives Electoral Tribunal (HRET). Given the yet —
unresolved question of jurisdiction, petitioner avers that the
COMELEC committed serious error and grave abuse of discretion in
directing the suspension of his proclamation as the winning
candidate in the Second Congressional District of Makati City. We
disagree. Petitioner conveniently confuses the distinction between
an unproclaimed candidate to the House of Representatives and a
member of the same. Obtaining the highest number of votes in an
election does not automatically vest the position in the winning
candidate. Under Section 17 of Article VI of the 1987 Constitution,
the Senate and the House of Representatives shall have an Electoral
Tribunal which shall be the sole judge of all contests relating to the
election, returns and qualifications of their respective Members. The
electoral tribunal clearly assumes jurisdiction over all contests
relative to the election, returns and qualifications of candidates for
either the Senate or the House only when the latter
become membersof either the Senate or the House of
Representatives. A candidate who has not been proclaimed and
who has not taken his oath of office cannot be said to be a member
of the House of Representatives subject to Section 17 of Article VI of
the Constitution. While the proclamation of a winning candidate in
an election is ministerial, B.P. 881 in conjunction with Sec. 6 of R.A.
6646 allows suspension of proclamation under circumstances
mentioned therein. Thus, petitioner's contention that "after the
conduct of the election and (petitioner) has been established the
winner of the electoral exercise from the moment of election, the
COMELEC is automatically divested of authority to pass upon the
question of qualification" finds no basis in law, because
even after the elections the COMELEC is empowered by Section 6 (in
relation to Section 7) of R.A. 6646 to continue to hear and decide
questions relating to qualifications of candidates.
2. CONSTITUTIONAL LAW; LEGISLATIVE DEPARTMENT; HOUSE OF
REPRESENTATIVES; QUALIFICATION OF CANDIDATES FOR MEMBERS;
RESIDENCY REQUIREMENT; CANDIDATE MUST PROVE THAT HE HAS
ESTABLISHED NOT JUST RESIDENCE BUT DOMICILE OF CHOICE. —
Clearly, the place "where a party actually or constructively has his
permanent home," where he, no matter where he may be found at
any given time, eventually intends to return and remain, i.e., his
domicile, is that to which the Constitutionrefers when it speaks of
residence for the purposes of election law. The manifest purpose of
this deviation from the usual conceptions of residency in law as
explained in Gallego vs. Vera, (73 Phil. 453 [1941]) is "to exclude
strangers or newcomers unfamiliar with the conditions and needs of
the community" from taking advantage of favorable circumstances
existing in that community for electoral gain. While there is nothing
wrong with the practice of establishing residence in a given area for
meeting election law requirements, this nonetheless defeats the
essence of representation, which is to place through the assent of
voters those most cognizant and sensitive to the needs of a
particular district, if a candidate falls short of the period of residency
mandated by law for him to qualify. That purpose could be
obviously best met by individuals who have either had actual
residence in the area for a given period or who have been domiciled
in the same area either by origin or by choice. It would, therefore,
be imperative for this Court to inquire into the threshold question as
to whether or not petitioner actually was a resident for a period of
one year in the area now encompassed by the Second Legislative
District of Makati at the time of his election or whether or not he
was domiciled in the same.
3. ID.; ID.; ID.; ID.; ID.; RESIDENCE SYNONYMOUS WITH DOMICILE
FOR ELECTION PURPOSES. — We agree with COMELEC's contention
that in order that petitioner could qualify as a candidate for
Representative of the Second District of Makati City the latter "must
prove that he has established not just residence but domicile of
choice." TheConstitution requires that a person seeking election to
the House of Representatives should be a resident of the district in
which he seeks election for a period of not less than one (1) year
prior to the elections. Residence, for election law purposes, has a
settled meaning in our jurisdiction. In Co v. Electoral Tribunal of the
House of Representatives (199 SCRA 692 [1991]) this Court held that
the term "residence" has always been understood as synonymous
with "domicile" not only under the previous Constitutions but also
underthe 1987 Constitution.
4. ID.; ID.; ID.; ID.; ID.; CLEAR AND POSITIVE PROOF SHOWING A
SUCCESSFUL ABANDONMENT OF DOMICILE MUST BE ESTABLISHED;
CASE AT BAR. — While property ownership is not and should never
be an indicia of the right to vote or to be voted upon, the fact that
petitioner himself claims that he has other residences in Metro
Manila coupled with the short length of time he claims to be a
resident of the condominium unit in Makati (and the fact, of his
stated domicile in Tarlac) "indicate that the sole purpose of
(petitioner) in transferring his physical residence" is not to acquire a
new residence or domicile "but only to qualify as a candidate for
Representative of the Second District of Makati City." The absence
of clear and positive proof showing a successful abandonment of
domicile under the conditions stated above, the lack of
identification — sentimental, actual or otherwise — with the area,
and the suspicious circumstances under which the lease agreement
was effected all belie petitioner's claim of residency for the period
required by the Constitution, in the Second District of Makati. As the
COMELEC en banc emphatically pointed out: [T]he lease agreement
was executed mainly to support the one year residence requirement
as a qualification for a candidate of Representative, by establishing a
commencement date of his residence. If a perfectly valid lease
agreement cannot, by itself establish a domicile of choice, this
particular lease agreement cannot do better. Moreover, his
assertion that he has transferred his domicile from Tarlac to Makati
is a bare assertion which is hardly supported by the facts in the case
at bench. Domicile of origin is not easily lost. To successfully effect a
change of domicile, petitioner must prove an actual removal or an
actual change of domicile; a bona fide intention of abandoning the
former place of residence and establishing a new one and definite
acts which correspond with the purpose. These requirements are
hardly met by the evidence adduced in support of petitioner's
claims of a change of domicile from Tarlac to the Second District of
Makati. In the absence of clear and positive proof, the domicile of
origin should be deemed to continue.
5. ID.; ELECTORAL REFORM LAW OF 1987 (R.A. 6646); EFFECT OF
DISQUALIFICATION; OBTAINING THE HIGHEST NUMBER OF VOTES
WILL NOT RESULT IN THE SUSPENSION OR TERMINATION OF THE
PROCEEDINGS WHEN THE EVIDENCE OF GUILT IS STRONG. — Under
Section 6 of R.A. 6646, not only is a disqualification case against a
candidate allowed to continue after the election (and does not oust
the COMELEC of its jurisdiction), but his obtaining the highest
number of votes will not result in the suspension or termination of
the proceedings against him when the evidence of guilt is strong.
While the phrase "when the evidence of guilt is strong" seems to
suggest that the provisions of Section 6 ought to be applicable only
to disqualification cases under Section 68 of the Omnibus Election
Code, Section 7 of R.A. 6646 allows the application of the provisions
of Section 6 to cases involving disqualification based on ineligibility
under Section 78 of B.P. 881.
6. ID.; INELIGIBILITY OF CANDIDATE; DOES NOT ENTITLE THE
ELIGIBLE CANDIDATE RECEIVING THE NEXT HIGHEST NUMBER OF
VOTES TO BE DECLARED ELECTED. — In the more recent cases
of Labo, Jr. v. Comelec (176 SCRA 1 [1989]); Abella v. Comelec (201
SCRA 253 [1991]); and Benito v. Comelec, (235 SCRA 436 [1994]),
this Court reiterated and upheld the ruling in Topacio v. Paredes,
and Geronimo v. Ramos to the effect that the ineligibility of a
candidate receiving the majority votes does not entitle the eligible
candidate receiving the next higher number of votes to be declared
elected, and that a minority or defeated candidate cannot be
declared elected to the office. In these cases, we put emphasis on
our pronouncement in Geronimo v. Ramos that: The fact that a
candidate who obtained the highest number of votes is later
declared to be disqualified or not eligible for the office to which he
was elected does not necessarily entitle the candidate who obtained
the second highest number of votes to be declared the winner of
the elective office. The votes cast for a dead, disqualified, or non-
eligible person may be valid to vote the winner into office or
maintain him there. However, in the absence of a statute which
clearly asserts a contrary political and legislative policy on the
matter, if the votes were cast in sincere belief that that candidate
was alive, qualified, or eligible; they should not be treated as stray,
void or meaningless.
PADILLA, J ., separate concurring opinion:
1. ELECTION LAW; QUALIFICATION OF CANDIDATES; RESIDENCY
REQUIREMENT; CANDIDATE MUST PROVE THAT HE HAD ACTUALLY
AND PHYSICALLY RESIDED IN THE PLACE TO BE VOTED UPON. — In
G.R. No. 119976, Marcos vs. Comelec, J . Padilla have maintained
that the phrase "a resident thereof for a period of not less than one
year" meansactual and physical presence in the legislative district of
the congressional candidate, and that said period of one year must
be satisfied regardless of whether or not a person's residence or
domicile coincides. To my mind, petitioner should be declared
disqualified to run as representative in the 2nd district of Makati
City in the 8 May 1995 elections not because he failed to prove his
residence therein as his domicile of choice, but because he failed
altogether to prove that he had actually and physically resided
therein for a period of not less than one (1) year immediately
preceding the 8 May 1995 elections. Petitioner evidently wants to
impress the Court that his other residences in Metro Manila could
never have become his domicile of choice because it never entered
his mind and suddenly, seemingly not contented with these
residences, he rents a condominium unit in Makati, and calls it his
domicile of choice — all these without adding clear and convincing
evidence that he did actually live and reside in Makati for at least
one year prior to 8 May 1995 — and that he no longer lived and
resided in his other residences during said one year period. It follows,
likewise, that the lease contract relied upon by petitioner, standing
alone, established only the alleged date (April 25, 1994) of its due
execution. Stated otherwise, the lease contract tells us that
petitioner had been leasing a condominium unit in Makati City for
more than a year prior to 8 May 1995, but it does not prove that
petitioner actually and physically resided therein for the same
period, in the light of his admission that he maintained other
residences in Metro Manila.
2. ID.; DISQUALIFICATION OF CANDIDATES; VOTES CAST IN FAVOR
OF SAID CANDIDATE SHALL NOT BE COUNTED. — J . Padilla agrees
with the proposition advanced by the Solicitor General that Sec. 6
of R.A. 6646 clearly provides that votes cast for a disqualified
candidate shall not be counted. There can be no dispute that if a
final judgment is rendered before the election, declaring a particular
candidate as disqualified, such disqualified candidate shall not be
voted for and votes cast for him shall not be counted, thus posing
no problem in proclaiming the candidate who receives the highest
number of votes among the qualified candidates. But what
about after the election? Sec. 6 appears categorical enough in
stating: "if for any reason" no final judgment of disqualification is
rendered before the elections, and the candidate facing
disqualification is voted for and receives the winning number of
votes, the Comelec or the Court is not ousted of its jurisdiction to
hear and try the case up to final judgment, hence, the power to
even suspend the proclamation of the erstwhile winning candidate
when evidence of guilt is strong. It thus appear clear that the law
does not dichotomize the effect of a final judgment of
disqualification in terms of time considerations. There is only one
natural and logical effect: the disqualified candidate shall not be
voted and, if voted, the votes case for him shall not be counted. Ubi
lex non ditinguit nec nos distinguere debemus (where the law does
not distinguish, we should not distinguish.)
3. ID.; ID.; ID.; CANDIDATE WHO RECEIVED THE HIGHEST NUMBER
OF VOTES SHOULD BE PROCLAIMED. — At this point, what J . Padilla
said in Marcos, supra, follows: "What happens then when after the
elections are over, one is declared disqualified? Then, votes cast for
him "shall not be counted" and in legal contemplation, he no longer
received the highest number of votes. It stands to reason that
Section 6 of RA 6646 does not make the second placer the winner
simply because a "winning candidate is disqualified," but that the
law considers him as the candidate who had obtained the highest
number of votes as a result of the votes cast for the disqualified
candidate not being counted or considered. As this law clearly
reflects the legislative policy on the matter, then there is no reason
why this Court should not re-examine and consequently abandon
the doctrine in the Jun Labo case. It has been stated that "the
qualifications prescribed for elective office cannot be erased by the
electorate alone. The will of the people as expressed through the
ballot cannot cure the vice of ineligibility, most especially when it is
mandated by no less than the Constitution." Therefore the
candidate who received the highest number of votes from among
the qualified candidates, should be proclaimed. cdasia
FRANCISCO, J ., concurring and dissenting opinion:
1. CONSTITUTIONAL LAW; LEGISLATIVE DEPARTMENT; HOUSE OF
REPRESENTATIVE ELECTORAL TRIBUNAL; PROCLAMATION OF
WINNER IN THE CONTESTED ELECTION AN ESSENTIAL REQUISITE TO
VEST JURISDICTION THEREON. — Section 17 of Article VI of the 1987
Constitution is clear and unambiguous that HRET jurisdiction applies
only to themembers of the House of Representatives. The operative
acts necessary for an electoral candidate's rightful assumption of
the office for which he ran are his proclamation and his taking an
oath of office. Petitioner cannot in anyway be considered as a
member of the House of Representatives for the purpose of
divesting the Commission on Elections of jurisdiction to declare his
disqualification and invoking instead HRET's jurisdiction, it
indubitably appearing that he has yet to be proclaimed, much less
has he taken an oath of office. That the jurisdiction conferred upon
HRET extends only to Congressional members is further established
by judicial notice of HRET Rules of Procedure, and HRET decisions
consistently holding that the proclamation of a winner in the
contested election is the essential requisite vesting jurisdiction on
the HRET.
2. ID.; ID.; HOUSE OF REPRESENTATIVES QUALIFICATION OF
MEMBERS; RESIDENCY REQUIREMENT; DECISION TO TRANSFER
LEGAL RESIDENCE MUST BE BONA FIDE AND UNEQUIVOCAL. —
Petitioner insists that domicile is a matter of personal intention.
Thus, petitioner asserts that if he decides to transfer his legal
residence so he can qualify for public office then he is entirely free
to do so. This argument to hold water, must be supported by clear
and convincing proofs that petitioner has effectively abandoned his
former domicile and that his intention is not doubtful. Indeed,
domicile once established is considered to continue and will not be
deemed lost until a new one is established (Co.v. Electoral Tribunal
of the House of Representatives, 199 SCRA 692, 711 [1991]).
Petitioner from childhood until his last election as senator has
consistently maintained Conception, Tarlac, as his domicile. He
moved to Amapola Street, Palm Village, Makati, and thereafter
claimed the same to be his new domicile. This claim, however, is
dismally unsupported by the records. The lease contract entered
into by petitioner for a period of two years on the third floor
condominium unit in Palm Village, Makati, in my view, does not
prove his intent to abandon his domicile of origin. The intention to
establish domicile must be an intention to remain indefinitely or
permanently in the new place. This element is lacking in this
instance. Worse, public respondent Commission even found that
"respondent Aquino himself testified that his intention was really for
only one (1) year because he has other 'residences' in Manila or in
Quezon City (citing TSN, May 2, 1995, p. 92)." Noting that petitioner
is already barred from running for senator due to the constitutional
consecutive two-term limit, his search for a place where he could
further and continue his political career and sudden transfer thereto
make his intent suspect. The best test of intention to establish legal
residence comes from one's acts and not by mere declarations
alone. To acquire, to effect a change of domicile, the intention must
bebona fide and unequivocal (28 C.J.S. 11). Petitioner, in my view,
miserably failed to show a bona fide and unequivocal intention to
effect the change of his domicile.
3. ID.; ID.; ID.; ID.; RULES PROVIDED BY THE CONSTITUTION NOT
BRUSHED ASIDE BY THE ENACTMENT OF R.A. No. 7854. — The
theory of legal impossibility is advanced to justify non-compliance
with the constitutional qualification on residency. Petitioner
explains his theory in this wise: ". . . THE COMELEC CRITICALLY
ERRED IN FAILING TO APPRECIATE THE LEGAL IMPOSSIBILITY OF
ENFORCING THE ONE YEAR RESIDENCY REQUIREMENT OF
CONGRESSIONAL CANDIDATES IN NEWLY CREATED POLITICAL
DISTRICTS WHICH WERE ONLY EXISTING FOR LESS THAN A YEAR AT
THE TIME OF THE ELECTION AND BARELY FOUR MONTHS IN THE
CASE OF PETITIONER'S DISTRICT IN MAKATI." Apparently, this theory
is an offshoot of Republic Act No. 7854, an act converting the
municipality of Makati into a highly urbanized city. This law enacted
on January 2, 1995, established a Second Congressional district in
Makati in which petitioner ran as a Congressional candidate. Since
the second district, according to petitioner, is barely four (4) months
old then the one (1) year residence qualification provided by
the Constitution is inapplicable. Petitioner's acts, however, as borne
by the records, belie his own theory. Originally, he placed in his
certificate of candidacy an entry of ten (10) months residence in
Makati. Petitioner then had it amended to one (1) year and thirteen
(13) days to correct what he claims as a mere inadvertent mistake. I
doubt the sincerity of this representation. If petitioner is indeed
persuaded by his own theory, the ten months residence he initially
wrote would have more than sufficiently qualified him to run in the
barely four-month old Makati district. The amendment only reveals
the true intent of petitioner to comply with the one year
constitutional requirement for residence, adding an extra thirteen
(13) days for full measure. Petitioner apparently wanted to argue
one way (theory of legal impossibility), but at the same time played
it safe in the other (the constitutional one year residence
requirement). And that is not all. If we were to adhere to
petitioner's theory of legal impossibility, then residents in that
district shorn of the constitutional six months residence
requirement for prospective voters (Article V, Section 1 of the 1987
Constitution) would have certainly qualified to vote. That would
have legitimized the entry and electoral exercise of flying voters —
one of the historic nemeses of a clean and honest election.
Furthermore, to subscribe to petitioner's contention that the
constitutional qualification of candidates should be brushed aside in
view of the enactment of R.A. No. 7854 will indubitably violate the
manner and procedure for the amendment or revision of
the constitution outlined under Article XVIII of the 1987
Constitution. A legislative enactment, it has to be emphasized,
cannot render nugatory the constitution. The constitution is
superior to a statute. It is the fundamental and organic law of the
land to which every state must conform and harmonize.
4. ELECTION LAW; COMMISSION ON ELECTIONS; JURISDICTION
THEREOF CANNOT BE QUESTIONED IF THE PARTY ACTIVELY
PARTICIPATED IN THE PROCEEDINGS THEREIN. — It is not right for a
party who has affirmed and invoked the jurisdiction of a court in a
particular matter to secure an affirmative relief to afterwards deny
that same jurisdiction to escape an adverse decision. Perforce,
petitioner's asseveration that the COMELEC has no jurisdiction to
rule on his qualification must fail.
5. ID.; DISQUALIFICATION OF CANDIDATE; VOTES CAST IN HIS FAVOR
SHALL NOT BE COUNTED. — It has been contended that a second
place candidate cannot be proclaimed a substitute winner. Justice
Francisco finds the proposition quite unacceptable. A disqualified
"candidate" is not a candidate and the votes which may have been
cast in his favor are nothing but stray votes of no legal consequence.
A disqualified person like the petitioner receives no vote or zero
vote. In short, no-candidate-no vote. Petitioner had therefore no
right, in fact and in law, to claim first place for he has nothing to
base his right. The legislative intent is clear as provided by R.A. 6646,
Section 6, in that votes cast for a disqualified candidate shall not be
counted as they are considered stray (Section 211, Rule 24, Omnibus
Election Code). It is only from the ranks of qualified candidates can
one be chosen as first placer and not from without. Necessarily,
petitioner, a disqualified candidate, cannot be a first placer as he
claims himself to be. To count the votes for a disqualified candidate
would, in my view, disenfranchise voters who voted for a qualified
candidate. Legitimate votes cast for a qualified candidate should not
be penalized alongside a disqualified candidate. With this in mind,
the other qualified candidate who garnered the highest number of
votes should be proclaimed the duly elected representative of the
district. Justice Francisco feels that the Labo doctrine ought to be
abandoned.
DAVIDE, JR., J ., dissenting opinion:
1. ELECTION LAWS; OMNIBUS ELECTION CODE (BATAS PAMBANSA
881); PETITION TO DENY DUE COURSE TO OR CANCEL A CERTIFICATE
OF CANDIDACY; RULE PROVIDED UNDER SECTION 78 THEREOF NOT
SUPERSEDED BY RULE 25 OF THE COMELEC RULES OF PROCEDURE.
— The petition to disqualify the petitioner in SPA No. 95-113 is not a
petition to deny due course to or cancel a certificate of candidacy
under Section 78. Nowhere in the petition in SPA No. 95-113 is it
alleged by the private respondents that a material representation
contained in the petitioner's certificate of candidacy is false. What is
being attacked therein is the petitioner's lack of the one-year
residence qualification in the new Second Legislative District of
Makati City where he sought to be elected for the office of
Congressman. The rule governing disqualification cases on the
ground of ineligibility, which is also invoked by the private
respondents, is Rule 25 of the COMELEC Rules of Procedure, as
amended on 15 February 1993. The amendment allows the filing of
a petition to disqualify a candidate on the ground that he does not
possess all the qualifications provided for by the Constitution or by
existing laws. In its original form, the rule only applied to petitions
for disqualification based on the commission of any act declared by
law to be a ground for disqualification. The rule as thus amended
now reads as follows: Rule 25 — Disqualification of Candidates
SECTION 1. Grounds for Disqualification. — Any candidate who does
not possess all the qualifications of a candidate as provided for by
the Constitution or by existing law or who commits any act declared
by law to be grounds for disqualification may be disqualified from
continuing as a candidate. The italicized portion is the amendment
to Rule 25, which the COMELEC must have deemed necessary to fill
up a procedural hiatus in cases of disqualifications based on other
grounds in the light of this Court's interpretation in Loong
vs. Commission on Elections (216 SCRA 760 [1992]) that Rule 25
refers only to disqualifications under Section 12 and 68 of
the Omnibus Election Code. This Court explicitly stated therein as
follows: We do not agree with private respondent Ututalum's
contention that the petition for disqualification, as in the case at
bar, may be filed at any time after the last day for filing a certificate
of candidacy but not later than the date of proclamation, applying
Section 3, Rule 25 of the Comelec Rules of Procedure. Rule 25 of the
Comelec Rules of Procedure refers to Disqualification of Candidates;
and Section 1 of said rule provides that any candidate who commits
any act declared by law to be ground for disqualification may be
disqualified from continuing as a candidate. The grounds for
disqualification is expressed in Sections 12 and 68 of the Code. The
petition filed by private respondent Ututalum with the respondent
Comelec to disqualify petitioner Loong on the ground that the latter
made a false representation in his certificate of candidacy as to his
age, clearly does not fall under the grounds of disqualification as
provided for in Rule 25 but is expressly covered by Rule 23 of the
Comelec Rules of Procedure governing petitions to cancel certificate
of candidacy. Moreover, Section 3, Rule 25 which allows the filing of
the petition at any time after the last day for the filing of certificates
of candidacy but not later than the date of proclamation, is merely a
procedural rule issued by respondent Commission which, although a
constitutional body, has no legislative powers. Thus, it can not
supersede Section 78 of the Omnibus Election Code which is a
legislative enactment. cdtai
2. ID.; ELECTORAL REFORMS LAW OF 1987 (R.A. 6646); PETITION TO
DENY DUE COURSE TO OR CANCEL A CERTIFICATE OF CANDIDATES;
"PROCEDURE HEREINABOVE PROVIDED" MENTIONED UNDER
SECTION 7 REFERS TO THE EFFECT OF DISQUALIFICATION CASES. —
Even if we assume for the sake of argument that the petition in SPA
No. 95-113 fall under Section 78 of the Omnibus Election Code, still
Section 6 of R.A. No. 6646 cannot be applied by virtue of Section 7
thereof. The "procedure hereinabove provided" mentioned in
Section 7 cannot be construed to refer to Section 6 which does not
provide for a procedure but for the EFFECTS of disqualification cases.
It can only refer to theprocedure provided in Section 5 of the said
Act on nuisance candidates and which is the only procedure that
precedes Section 7 of the said Act. Heretofore, no law provided for
the procedure to govern cases under Section 78. Applying to such
cases, through Section 7 of R.A. 6646, the procedure applicable to
cases of nuisance candidates is prudent and wise, for both cases
necessarily require that they be decided before the day of the
election; hence, only summary proceedings thereon can adequately
respond to the urgency of the matter.
3. ID.; ID.; EFFECTS OF DISQUALIFICATION; RULE PROVIDED UNDER
SECTION 6 MERELY SUPPLEMENTS SECTION 72 OF THE OMNIBUS
ELECTION CODE. — Section 6 merely supplements Section 72 of
the Omnibus Election Code by granting the COMELEC or the Court
the authority to continue hearing the case and to suspend the
proclamation if the evidence of guilt is strong. As observed by this
Court in its majority opinion "the phrase 'when the evidence of guilt
is strong' seems to suggest that the provisions of Section 6 ought to
be applicable only to disqualification cases under Section 68 of
the Omnibus Election Code."
4. ID.; ID.; ID.; COMELEC NOT AUTHORIZED TO CONTINUE HEARING
THE CASE AFTER THE ELECTION EVEN WITH THE AMENDMENT OF
RULE 25 OF THE COMELEC RULES OF PROCEDURE. — The amended
Rule 25 of the COMELEC Rules of Procedure, which is the only rule
governing petitions filed before election or proclamation for the
disqualification of a candidate on the ground that he lacks the
qualifications provided for by the Constitution or by law, does not,
as can be gathered from Section 5 thereof, authorize the COMELEC
to continue hearing the case after the election.
5. ID.; ID.; ID.; RULE CANNOT BE APPLIED TO A CASE WHICH DOES
NOT INVOLVE REGIONAL, PROVINCIAL AND CITY OFFICIALS AND
WHERE SUSPENSION OF PROCLAMATION IS NOT WARRANTED
BECAUSE OF ABSENCE OF STRONG EVIDENCE OF GUILT OR
INELIGIBILITY. — Even assuming that the second sentence of Section
6 of R.A. No. 6646 is applicable to disqualification cases based on
the ground of lack of qualification, it cannot be applied to a case
which does not involve elective regional, provincial, and city
officials, and where suspension of proclamation is not warranted
because of the absence of strong evidence of guilt or ineligibility. In
such a case, the candidate sought to be disqualified but who obtains
the highest number of votes has to be proclaimed. Once he is
proclaimed, the COMELEC cannot continue with the case, and the
remedy of the opponent is to contest the winning candidate's
eligibility within ten days from proclamation in a quo
warranto proceeding which is within the jurisdiction of the
metropolitan or municipal trial courts, in the case of barangay
officials; the regional trial courts, in the case of municipal officials
(Section 2[2], Article IX-C, Constitution; Section 253, paragraph
2,B.P. Blg. 881); the House of Representatives Electoral Tribunal, in
the case of Congressmen; the Senate Electoral Tribunal, in the case
of Senators (Section 17, Article VI, Constitution); and the Supreme
Court en banc, in the case of the President or Vice-President
(Section 4, Article VII, Constitution). If what is involved is an elective
regional, provincial, or city official, and the case cannot be decided
before the election, the COMELEC can, even after the proclamation
of the candidate sought to be disqualified, proceed with the case by
treating it as a petition for quo warranto, since such a case properly
pertains to the exclusive jurisdiction of the COMELEC (Section 2[2],
Article IX-C, Constitution; Section 253, B.P. Blg. 881). But even
granting for the sake of argument that Sections 6 and 7 of R.A. No.
6646, in relation to Section 78 of the Omnibus Election Code and the
amended Rule 25 of the COMELEC Rules of Procedure, are
applicable, the order of suspension of the petitioner's proclamation
issued on 15 May 1995 is null and void for having been issued with
grave abuse of discretion. What was before the COMELEC en banc at
that stage was the decision of the Second Division of 6 May
1995 dismissing the petition to disqualify the petitioner
and declaring him qualified for the position. That decision is a direct
and positive rejection of any claim that the evidence of the
petitioner's guilt is strong. Note that it was only on 2 June 1995,
when the COMELEC en banc reversed the decision of the Second
Division, that it was found that the evidence of the petitioner's
ineligibility is strong. It would have been otherwise if the Second
Division had disqualified the petitioner.
VITUG, J ., separate opinion:
1. CONSTITUTIONAL LAW; COMMISSION ON ELECTIONS; SCOPE OF
POWER TO ENFORCE AND ADMINISTER ALL LAWS AND
REGULATIONS RELATIVE TO THE CONDUCT OF ELECTION. — The
Commission on Elections (the "COMELEC") is constitutionally bound
to enforce and administer "all laws and regulations relative to the
conduct of election . . ." (Art. IX, C, Sec. 2, Constitution) that, there
being nothing said to the contrary, should include to its authority
pass upon the qualification and disqualification prescribed by law
ofcandidates to an elective office. Indeed, pre-proclamation
controversies are expressly placed under the COMELEC's jurisdiction
to hear and resolve (Art. IX, C, Sec. 3, Constitution).
2. ID.; ID.; FINDINGS AND JUDGMENT THEREOF NOT REVIEWABLE BY
THE COURT EXCEPT IN CASE OF GRAVE ABUSE OF DISCRETION. —
The matter before us specifically calls for the observance of the
constitutional one-year residency requirement. This issue (whether
or not there is here such compliance), to my mind, is basically a
question of fact or at least inextricably linked to such determination.
The findings and judgment of the COMELEC, in accordance with the
long established rule and subject only to a number of exceptions
under the basic heading of "grave abuse of discretion," are not
reviewable by this Court.
3. ELECTION LAWS; QUALIFICATION OF CANDIDATES; RESIDENCE;
SYNONYMOUS WITH DOMICILE. — Justice Vitug does not find much
need to do a complex exercise on what seems to him to be a plain
matter. Generally. the term "residence" has a broader connotation
that may mean permanent (domicile), official (place where one's
official duties may require him to stay) or temporary (the place
where he sojourns during a considerable length of time.) For civil
law purposes, i.e., as regards the exercise of civil rights and the
fulfillment of civil obligations, the domicile of a natural person is the
place of his habitual residence (see Article 50, Civil Code). In election
cases, the controlling rule is that heretofore announced by this
Court in Romualdez vs. Regional Trial Court, Branch 7, Tacloban
City (226 SCRA 408, 409); thus: "In election cases, the Court treats
domicile and residence as synonymous terms, thus: (t)he term
'residence' as used in the election law is synonymous with
'domicile,' which imports not only an intention to reside in a fixed
place but also personal presence in that place, coupled with conduct
indicative of such intention. 'Domicile' denotes a fixed permanent
residence to which when absent for business or pleasure, or for like
reasons, one intends to return. . . . Residence thus acquired,
however, may be lost by adopting another choice of domicile. In
order, in turn, to acquire a new domicile by choice, there must
concur (1) residence or bodily presence in the new locality, (2) an
intention to remain there, and (3) an intention to abandon the old
domicile. In other words, there must basically be animus
manendi coupled with animus non revertendi. The purpose to
remain in or at the domicile of choice must be for an indefinite
period of time; the change of residence must be voluntary; and the
residence at the place chosen for the new domicile must be actual."
4. ID.; COMMISSION ON ELECTIONS; PROCLAMATION OF
CANDIDATE, NOT MERELY A MINISTERIAL FUNCTION. — The
COMELEC's jurisdiction, in the case of congressional elections, ends
when the jurisdiction of the Electoral Tribunal concerned begins. It
signifies that the protestee must have theretofore been duly
proclaimed and has since become a "member" of the Senate or the
House of Representatives. The question can be asked on whether or
not the proclamation of a candidate is just a ministerial function of
the Commission on Elections dictated solely on the number of votes
cast in an election exercise. He believes, it is not. A ministerial duty
is an obligation the performance of which, being adequately
defined, does not allow the use of further judgment or discretion.
The COMELEC, in its particular case, is tasked with the full
responsibility of ascertaining all the facts and conditions such as
may be required by law before a proclamation is properly done.
5. ID.; DISQUALIFICATION OF CANDIDATE; DOES NOT ENTITLE THE
CANDIDATE WHO OBTAINED THE SECOND HIGHEST NUMBER OF
VOTES TO BE DECLARED WINNER. — There the Court held
in Geronimo v. Ramos, (136 SCRA 435): ". . . it would be extremely
repugnant to the basic concept of the constitutionally guaranteed
right to suffrage if a candidate who has not acquired the majority or
plurality of votes is proclaimed a winner and imposed as the
representative of a constituency, the majority of which have
positively declared through their ballots that they do not choose
him. 'Sound policy dictates that public elective offices are filled by
those who have received the highest number of votes cast in the
election for that office, and it is a fundamental idea in all republican
forms of government that no one can be declared elected and no
measure can be declared carried unless he or it receives a majority
or plurality of the legal votes cast in the election. (20 Corpus Juris
2nd, S 243, p. 676.) The fact that the candidate who obtained the
highest number of votes is later declared to be disqualified or not
eligible for the office to which he was elected does not necessarily
entitle the candidate who obtained the second highest number of
votes to be declared the winner of the elective office. The votes cast
for a dead, disqualified, or non-eligible person may not be valid to
vote the winner into office or maintain him there. However, in the
absence of a statute which clearly asserts a contrary political and
legislative policy on the matter, if the votes were cast in the sincere
belief that the candidate was alive, qualified, or eligible, they should
not be treated as stray, void or meaningless.'
MENDOZA, J ., separate opinion:
1. ELECTION LAW; ELECTORAL REFORM LAW OF 1987 (R.A. 6646)
EFFECT OF DISQUALIFICATION CASES; SUSPENSION OF
PROCLAMATION APPLIES TO THOSE WHO ARE GUILTY OF USING
"GUNS, GOONS OR GOLD" TO INFLUENCE THE OUTCOME OF
ELECTIONS. — The May 15, 1995 resolution of the COMELEC en
banc, suspending the proclamation of petitioner should he obtain
the highest number of votes for Representative of the Second
District of Makati, Metro Manila, purports to have been issued
pursuant to 6 of R.A. No. 6646. This provision authorizes the
COMELEC to order the suspension of the proclamation "whenever
the evidence of his guilt is strong." As explained in my separate
opinion in G.R. No. 119976, however, this provision refers to
proceedings under § 68 of the Omnibus Election Code which
provides for the disqualification of candidates found guilty of using
what in political parlance have been referred to as "guns, goons or
gold" to influence the outcome of elections. Since the
disqualification of petitioner in this case was not sought on this
ground, the application of 6 of R.A. No. 6646 is clearly a grave abuse
of discretion on the part of the COMELEC.
2. ID.; ID.; ID.; CANDIDATE OBTAINING THE NEXT HIGHEST NUMBER
OF VOTES, ENTITLED TO BE DECLARED THE WINNER. — In the event
the candidate who obtained the highest number of votes is declared
ineligible, the one who received the next highest number of votes is
entitled to be declared the winner.
3. ID.; OMNIBUS ELECTION LAW (BP 881); PETITION TO DENY DUE
COURSE TO OR CANCEL CERTIFICATE OF CANDIDACY; MAY BE FILED
EXCLUSIVELY ON THE GROUND THAT A MATERIAL REPRESENTATION
CONTAINED IN THE CERTIFICATE IS FALSE. — The petition to
disqualify petitioner in the COMELEC may not be justified under 78
of the OEC which authorizes the filing of a petition for the
cancellation of certificates of candidacy since such a petition may be
filed "exclusively on the ground that a material representation
contained [in the certificate] as required under Section 74 is false."
There was no allegation that in stating in his certificate of candidacy
that he is a resident of Ampola St., Palm Village, Guadalupe Viejo,
Makati, Metro Manila, petitioner made any false
representation. cdll
DECISION
KAPUNAN, J p:
The sanctity of the people's will must be observed at all times if our
nascent democracy is to be preserved. In any challenge having the
effect of reversing a democratic choice, expressed through the
ballot, this Court should be ever so vigilant in finding solutions which
would give effect to the will of the majority, for sound public policy
dictates that all elective offices are filled by those who have
received the highest number of votes cast in an election. When a
challenge to a winning candidate's qualifications however becomes
inevitable, the ineligibility ought to be so noxious to
the Constitution that giving effect to the apparent will of the people
would ultimately do harm to our democratic institutions.
On March 20, 1995, petitioner Agapito A. Aquino filed his Certificate
of Candidacy for the position of Representative for the new Second
Legislative District of Makati City. Among others, Aquino provided
the following information in his certificate of candidacy, viz.:
(7) RESIDENCE (Complete Address): 284
AMAPOLA COR. ADALLA STS., PALM VILLAGE,
MAKATI.
xxx xxx xxx
(8) RESIDENCE IN THE CONSTITUENCY WHERE I
SEEK TO BE ELECTED IMMEDIATELY PRECEDING
THE ELECTION: _____ Years and 10 Months.
xxx xxx xxx
THAT I AM ELIGIBLE for said Office; That I will
support and defend the Constitution of the
Republic of the Philippines and will maintain
true faith and allegiance thereto; That I will obey
the law, rules and decrees promulgated by the
duly constituted authorities; That the obligation
imposed to such is assumed voluntarily, without
mental reservation or purpose of evasion, and
that the facts therein are true to the best of my
knowledge. 1
On April 24, 1995, Move Makati, a duly registered
political party, and Mateo Bedon, Chairman of the LAKAS-
NUCD-UMDP of Barangay Cembo, Makati City, filed a petition
to disqualify Agapito A. Aquino 2 on the ground that the latter
lacked the residence qualification as a candidate for
congressman which, under Section 6, Art. VI of the 1987
theConstitution, should be for a period not less than one (1)
year immediately preceding the May 8, 1995 elections. The
petition was docketed as SPA No. 95-113 and was assigned to
the Second Division of the Commission on Elections (COMELEC).
On April 25, 1995, a day after said petition for disqualification was
filed, petitioner filed another certificate of candidacy amending the
certificate dated March 20, 1995. This time, petitioner stated in Item
8 of his certificate that he had resided in the constituency where he
sought to be elected for one (1) year and thirteen (13) days. 3
On May 2, 1995, petitioner filed his Answer dated April 29, 1995
praying for the dismissal of the disqualification case. 4
On the same day, May 2, 1995, a hearing was conducted by the
COMELEC wherein petitioner testified and presented in evidence,
among others, his Affidavit dated May 2, 1995, 5lease contract
between petitioner and Leonor Feliciano dated April 1,
1994, 6 Affidavit of Leonor Feliciano dated April 28, 1995 7 and
Affidavit of Daniel Galamay dated April 28, 1995. 8
After hearing of the petition for disqualification, the Second Division
of the COMELEC promulgated a Resolution dated May 6, 1995, the
decretal portion of which reads:
WHEREFORE, in view of the foregoing, this
Commission (Second Division) RESOLVES to
DISMISS the instant petition for Disqualification
against respondent AGAPITO AQUINO and
declares him ELIGIBLE to run for the Office of
Representative in the Second Legislative District
of Makati City.
SO ORDERED. 9
On May 7, 1995, Move Makati and Mateo Bedon filed
a Motion for Reconsideration of the May 6, 1995 resolution
with the COMELEC en banc.
Meanwhile, on May 8, 1995, elections were held. In
Makati City where three (3) candidates vied for the
congressional seat in the Second District, petitioner garnered
thirty eight thousand five hundred forty seven (38,547) votes as
against another candidate, Agusto Syjuco, who obtained thirty
five thousand nine hundred ten (35,910) votes. 10
On May 10, 1995, private respondents Move Makati
and Bedon filed an Urgent Motion Ad Cautelum to Suspend
Proclamation of petitioner. Thereafter, they filed an Omnibus
Motion for Reconsideration of the COMELEC's Second Division
resolution dated May 6, 1995 and a 2nd Urgent Motion Ad
Cautelum to Suspend Proclamation of petitioner.
On May 15, 1995, COMELEC en banc issued an Order
suspending petitioner's proclamation. The dispositive portion of
the order reads:
WHEREFORE, pursuant to the provisions of
Section 6 of Republic Act No. 6646, the Board of
Canvassers of the City of Makati is hereby
directed to complete the canvassing of election
returns of the Second District of Makati, but to
suspend the proclamation of respondent
Agapito A. Aquino should he obtain the winning
number of votes for the position of
Representative of the Second District of the City
of Makati, until the motion for reconsideration
filed by the petitioners on May 7, 1995, shall
have been resolved by the Commission.
The Executive Director, this Commission, is
directed to cause the immediate
implementation of this Order. The Clerk of Court
of the Commission is likewise directed to inform
the parties by the fastest means available of this
Order, and to calendar the hearing of the
Motion for Reconsideration on May 17, 1995, at
10:00 in the morning, PICC Press Center, Pasay
City.
SO ORDERED. 11
On May 16, 1995, petitioner filed his
Comment/Opposition with urgent motion to lift order of
suspension of proclamation.
On June 1, 1995, petitioner filed a "Motion to File Supplemental
Memorandum and Motion to Resolve Urgent Motion to Resolve
Motion to Lift Suspension of Proclamation" wherein he manifested
his intention to raise, among others, the issue of whether of not the
determination of the qualifications of petitioner after the elections
is lodged exclusively in the House of Representatives Electoral
Tribunal pursuant to Section 17, Article VI of the 1987 Constitution.
Resolving petitioner's motion to lift suspension of his proclamation,
the COMELEC en banc issued an Order on June 2, 1995, the decretal
portion thereof reading:
Pursuant to the said provisions and considering
the attendant circumstances of the case, the
 Commission RESOLVED to proceed with the
promulgation but to suspend its rules, to accept
the filing of the aforesaid motion, and to allow
the parties to be heard thereon because the
issue of jurisdiction now before the Commission
has to be studied with more reflection and
judiciousness. 12
On the same day, June 2, 1995, the COMELEC en
banc issued a Resolution reversing the resolution of the Second
Division dated May 6, 1995. The fallo reads as follows:
WHEREFORE, in view of the foregoing,
petitioners' Motion for Reconsideration of the
Resolution of the Second Division, promulgated
on May 6, 1995, is GRANTED. Respondent
Agapito A. Aquino is declared ineligible and thus
disqualified as a candidate for the Office of
Representative of the Second Legislative District
of Makati City in the May 8, 1995 elections, for
lack of the constitutional qualification of
residence. Consequently, the order of
suspension of proclamation of the respondent
should he obtain the winning number of votes,
issued by this Commission on May 15, 1995 is
now made permanent. LLcd
Upon the finality of this Resolution, the Board of
Canvassers of the City of Makati shall
immediately reconvene and, on the basis of the
completed canvass of election returns,
determine the winner out of the remaining
qualified candidates, who shall be immediately
be proclaimed.
SO ORDERED. 13
Hence, the instant Petition for Certiorari 14 assailing
the orders dated May 15, 1995 and June 2, 1995, as well as the
resolution dated June 2, 1995 issued by the COMELECen banc.
Petitioner raises the following errors for consideration, to wit:
A APPLICABLE LAWS AND JURISPRUDENCE
THE COMELEC HAS NO JURISDICTION TO
DETERMINE AND ADJUDGE THE
DISQUALIFICATION ISSUE INVOLVING
CONGRESSIONAL CANDIDATES AFTER THE MAY
8, 1995 ELECTIONS, SUCH DETERMINATION
BEING RESERVED TO AND LODGE EXCLUSIVELY
WITH THE HOUSE OF REPRESENTATIVES
ELECTORAL TRIBUNAL
B ELECTION AND BARELY FOUR MONTHS IN THE
ASSUMING ARGUENDO THAT THE
COMELEC HAS JURISDICTION, SAID
JURISDICTION CEASED IN THE INSTANT CASE
AFTER THE ELECTIONS, AND THE REMEDY/IES
AVAILABLE TO THE ADVERSE PARTIES LIE/S IN
ANOTHER FORUM WHICH, IT IS SUBMITTED, IS
THE HRET CONSISTENT WITH SECTION 17,
ARTICLE VI OF THE 1987 CONSTITUTION
C YOUR PETITIONER IN THAT SUCH DIRECTIVE IS
THE COMELEC COMMITTED GRAVE ABUSE OF
DISCRETION WHEN IT PROCEEDED TO
PROMULGATE ITS QUESTIONED DECISION
(ANNEX "C", PETITION) DESPITE IT OWN
RECOGNITION THAT A THRESHOLD ISSUE OF
JURISDICTION HAS TO BE JUDICIOUSLY
REVIEWED AGAIN, ASSUMING ARGUENDO THAT
THE COMELEC HAS JURISDICTION, THE
COMELEC COMMITTED GRAVE ABUSE OF
DISCRETION, AND SERIOUS ERROR IN DIRECTING
WITHOUT NOTICE THE SUSPENSION OF THE
PROCLAMATION OF THE PETITIONER AS THE
WINNING CONGRESSIONAL CANDIDATE AND
DESPITE THE MINISTERIAL NATURE OF SUCH
DUTY TO PROCLAIM (PENDING THE FINALITY OF
THE DISQUALIFICATION CASE AGAINST THE
PETITIONER) IF ONLY NOT TO THWART THE
PEOPLE'S WILL
D unproclaimed candidate to the House of Representatives and a
THE COMELEC'S FINDING OF NON-
COMPLIANCE WITH THE RESIDENCY
REQUIREMENT OF ONE YEAR AGAINST THE
PETITIONER IS CONTRARY TO EVIDENCE AND TO
E the sole judge of all contests relating to the
IN ANY CASE, THE COMELEC CRITICALLY
ERRED IN FAILING TO APPRECIATE THE LEGAL
IMPOSSIBILITY OF ENFORCING THE ONE YEAR
RESIDENCY REQUIREMENT OF CONGRESSIONAL
CANDIDATES IN NEWLY CREATED POLITICAL
DISTRICTS WHICH WERE ONLY EXISTING FOR
LESS THAN A YEAR AT THE TIME OF THE
CASE OF PETITIONER'S DISTRICT IN MAKATI
F
THE COMELEC COMMITTED SERIOUS ERROR
AMOUNTING TO LACK OF JURISDICTION WHEN
IT ORDERED THE BOARD OF CANVASSERS TO
"DETERMINE AND PROCLAIM THE WINNER OUT
OF THE REMAINING QUALIFIED CANDIDATES"
AFTER THE ERRONEOUS DISQUALIFICATION OF
IN TOTAL DISREGARD OF THE WELL SETTLED
DOCTRINE THAT A SECOND PLACE CANDIDATE
OR A PERSON WHO WAS REPUDIATED BY THE
ELECTORATE IS A LOSER AND CANNOT BE
PROCLAIMED AS SUBSTITUTE WINNER. 15
I
In his first three assignments of error, petitioner vigorously
contends that after the May 8, 1995 elections, the COMELEC lost its
jurisdiction over the question of petitioner's qualifications to run for
member of the House of Representative. He claims that jurisdiction
over the petition for disqualification is exclusively lodged with the
House of Representatives Electoral Tribunal (HRET). Given the yet —
unresolved question of jurisdiction, petitioner avers that the
COMELEC committed serious error and grave abuse of discretion in
directing the suspension of his proclamation as the winning
candidate in the Second Congressional District of Makati City. We
disagree.
Petitioner conveniently confuses the distinction between an
member of the same. Obtaining the highest number of votes in an
election does not automatically vest the position in the winning
candidate. Section 17 of Article VI of the 1987 Constitution reads:
The Senate and the House of Representatives
shall have an Electoral Tribunal which shall be
election, returns and qualifications of their
respective Members.
Under the above-stated provision, the electoral
tribunal clearly assumes jurisdiction over all contests relative to
 the election, returns and qualifications of candidates for either
the Senate or the House only when the latter
become members of either the Senate or the House of
Representatives. A candidate who has not been proclaimed 16
and who has not taken his oath of office cannot be said to be a
member of the House of Representatives subject to Section 17
of Article VI of the Constitution. While the proclamation of a
winning candidate in an election is ministerial, B.P. 881 in
conjunction with Sec. 6 of R.A. 6646 allows suspension of
proclamation under circumstances mentioned therein. Thus,
petitioner's contention that "after the conduct of the election
and (petitioner) has been established the winner of the
electoral exercise from the moment of election, the COMELEC is
automatically divested of authority to pass upon the question
of qualification" finds no basis in law, because even after the
elections the COMELEC is empowered by Section 6 (in relation
to Section 7) of R.A. 6646 to continue to hear and decide
questions relating to qualifications of candidates. Section 6
states:
SECTION 6. Effect of Disqualification Case. —
Any candidate who has been declared by final
judgment to be disqualified shall not be voted
for, and the votes cast for him shall not be
counted. If for any reason a candidate is not
declared by final judgment before an election to
be disqualified and he is voted for and receives
the winning number of votes in such election,
the Court or Commission shall continue with the
trial and hearing of the action, inquiry or protest
and, upon motion of the complainant or any
intervenor, may during the pendency thereof
order the suspension of the proclamation of
such candidate whenever the evidence of guilt is
strong.
Under the above-quoted provision, not only is a disqualification case
against a candidate allowed to continue after the election (and does
not oust the COMELEC of its jurisdiction), but his obtaining the
highest number of votes will not result in the suspension or
termination of the proceedings against him when the evidence of
guilt is strong. While the phrase "when the evidence of guilt is
strong" seems to suggest that the provisions of Section 6 ought to
be applicable only to disqualification cases under Section 68 of
the Omnibus Election Code, Section 7 of R.A. 6646 allows the
application of the provisions of Section 6 to cases involving
disqualification based on ineligibility under Section 78 ofB.P.
881. Section 7 states:
SECTION 7. Petition to Deny Due Course
or to Cancel a Certificate of Candidacy. — The
procedure hereinabove provided shall apply to
petition to deny due course to or cancel a
certificate of candidacy based on Sec. 78
of Batas Pambansa 881.
II
We agree with COMELEC's contention that in order that petitioner
could qualify as a candidate for Representative of the Second
District of Makati City the latter "must prove that he has established
not just residence but domicile of choice." 17
The Constitution requires that a person seeking election to the
House of Representatives should be a resident of the district in
which he seeks election for a period of not less than one (1) year
prior to the elections. 18 Residence, for election law purposes, has a
settled meaning in our jurisdiction.
In Co v. Electoral Tribunal of the House of Representatives 19 this
Court held that the term "residence" has always been understood as
synonymous with "domicile" not only under the previous
Constitutions but also under the 1987 Constitution. The Court there
held: 20
The deliberations of the Constitutional
Commission reveal that the meaning of
residence vis-a-vis the qualifications of a
candidate for Congress continues to remain the
same as that of domicile, to wit:
Mr. Nolledo: With respect to Section 5, I remember that in the 1971
Constitutional Convention, there was an attempt to require
residence in the place not less than one year immediately preceding
the day of elections. So my question is: What is the Committee's
concept of residence for the legislature? Is it actual residence or is it
the concept of domicile or constructive residence?
Mr. Davide: Madame President, insofar as the regular members of
the National Assembly are concerned, the proposed section merely
provides, among others, 'and a resident thereof,' that is, in the
district, for a period of not less than one year preceding the day of
the election. This was in effect lifted from the 1973 Constitution, the
interpretation given to it was domicile (emphasis ours) (Records of
the 1987 Constitutional Convention, Vol. II, July 22, 1986, p. 87).
xxx xxx xxx
Mrs. Rosario Braid: The next question is on Section 7, page 2. I think
Commissioner Nolledo has raised the same point that 'resident' has
been interpreted at times as a matter of intention rather than actual
residence.
Mr. De Los Reyes: Domicile.
Ms. Rosario Braid: Yes, So, would the gentlemen consider at the
proper time to go back to actual residence rather than mere
intention to reside?
Mr. De los Reyes: But we might encounter some difficulty especially
considering that the provision in the Constitution in the Article on
Suffrage says that Filipinos living abroad may vote as enacted by
law. So, we have to stick to the original concept that it should be by
domicile and not physical and actual residence. (Records of the 1987
Constitutional Commission, Vol. II, July 22, 1986, p. 110).
The framers of the Constitution adhered to the
earlier definition given to the word "residence"
which regarded it as having the same meaning
as domicile.
Clearly, the place "where a party actually or constructively has his
permanent home," 21 where he, no matter where he may be found
at any given time, eventually intends to return and remain, i.e., his
domicile, is that to which the Constitution refers when it speaks of
residence for the purposes of election law. The manifest purpose of
this deviation from the usual conceptions of residency in law as
explained in Gallego vs. Vera 22 is "to exclude strangers or
newcomers unfamiliar with the conditions and needs of the
community" from taking advantage of favorable circumstances
existing in that community for electoral gain. While there is nothing
wrong with the practice of establishing residence in a given area for
meeting election law requirements, this nonetheless defeats the
essence of representation, which is to place through the assent of
voters those most cognizant and sensitive to the needs of a
particular district, if a candidate falls short of the period of residency
mandated by law for him to qualify. That purpose could be
obviously best met by individuals who have either had actual
residence in the area for a given period or who have been domiciled
in the same area either by origin or by choice. It would, therefore,
be imperative for this Court to inquire into the threshold question as
to whether or not petitioner actually was a resident for a period of
one year in the area now encompassed by the Second Legislative
District of Makati at the time of his election or whether or not he
was domiciled in the same. Llibris
 As found by the COMELEC en banc petitioner in his
Certificate of Candidacy for the May 11, 1992 elections,
indicated not only that he was a resident of San Jose,
Concepcion, Tarlac in 1992 but that he was a resident of the
same for 52 years immediately preceding that election. 23 At
the time, his certificate indicated that he was also a registered
voter of the same district. 24 His birth certificate places
Concepcion, Tarlac as the birthplace of both of his parents
Benigno and Aurora. 25 Thus, from data furnished by petitioner
himself to the COMELEC at various times during his political
career, what stands consistently clear and unassailable is that
his domicile of origin of record up to the time of filing of his
most recent certificate of candidacy for the 1995 elections was
Concepcion, Tarlac.
Petitioner's alleged connection with the Second
District of Makati City is an alleged lease agreement of a
condominium unit in the area. As the COMELEC, in its disputed
Resolution noted:
The intention not to establish a permanent
home in Makati City is evident in his leasing a
condominium unit instead of buying one. While
a lease contract maybe indicative of
respondent's intention to reside in Makati City it
does not engender the kind of permanency
required to prove abandonment of one's
original domicile especially since, by its terms, it
is only for a period of two (2) years, and
respondent Aquino himself testified that his
intention was really for only one (1) year
because he has other "residences" in Manila or
Quezon City. 26
While property ownership is not and should never be
an indicia of the right to vote or to be voted upon, the fact that
petitioner himself claims that he has other residences in Metro
Manila coupled with the short length of time he claims to be a
resident of the condominium unit in Makati (and the fact of his
stated domicile in Tarlac) "indicate that the sole purpose of
(petitioner) in transferring his physical residence" 27 is not to
acquire a new residence or domicile "but only to qualify as a
candidate for Representative of the Second District of Makati
City." 28 The absence of clear and positive proof showing a
successful abandonment of domicile under the conditions
stated above, the lack of identification — sentimental, actual or
otherwise — with the area, and the suspicious circumstances
under which the lease agreement was effected all belie
petitioner's claim of residency for the period required by
the Constitution, in the Second District of Makati. As the
COMELEC en banc emphatically pointed out:
[T]he lease agreement was executed mainly to
support the one year residence requirement as
a qualification for a candidate of Representative,
by establishing a commencement date of his
residence. If a perfectly valid lease agreement
cannot, by itself establish a domicile of choice,
this particular lease agreement cannot do
better. 29
Moreover, his assertion that he has transferred his
domicile from Tarlac to Makati is a bare assertion which is
hardly supported by the facts in the case at bench. Domicile of
origin is not easily lost. To successfully effect a change of
domicile, petitioner must prove an actual removal or an actual
change of domicile, a bona fide intention of abandoning the
former place of residence and establishing a new one and
definite acts which correspond with the purpose. 30 These
requirements are hardly met by the evidence adduced in
support of petitioner's claims of a change of domicile from
Tarlac to the Second District of Makati. In the absence of clear
and positive proof, the domicile of origin should be deemed to
continue.
Finally, petitioner's submission that it would be legally
impossible to impose the one year residency requirement in a
newly created political district is specious and lacks basis in
logic. A new political district is not created out of thin air. It is
carved out from part of a real and existing geographic area, in
this case the old Municipality of Makati. That people actually
lived or were domiciled in the area encompassed by the new
Second District cannot be denied. Modern-day carpetbaggers
cannot be allowed take advantage of the creation of new
political districts by suddenly transplanting themselves in such
new districts, prejudicing their genuine residents in the process
of taking advantage of existing conditions in these areas. It will
be noted, as COMELEC did in its assailed resolution, that
petitioner was disqualified from running in the Senate because
of the constitutional two-term limit, and had to shop around for
a place where he could run for public office. Nothing wrong
with that, but he must first prove with reasonable certainty that
he has effected a change of residence for election law purposes
for the period required by law. This he has not effectively done.
III
The next issue here is whether or not the COMELEC
erred in issuing its Order instructing the Board of Canvassers of
Makati City to proclaim as winner the candidate receiving the
next higher number of votes. The answer must be in the
negative.
To contend that Syjuco should be proclaimed because
he was the "first" among the qualified candidates in the May 8,
1995 elections is to misconstrue the nature of the democratic
electoral process and the sociological and psychological
underpinnings behind voters' preferences. The result suggested
by private respondent would lead not only to our reversing the
doctrines firmly entrenched in the two cases of Labo
vs. Comelec 31 but also to a massive disenfranchisement of the
thousands of voters who cast their vote in favor of a candidate
they believed could be validly voted for during the elections.
Had petitioner been disqualified before the elections, the
choice, moreover, would have been different. The votes for
Aquino given the acrimony which attended the campaign,
would not have automatically gone to second placer Syjuco. The
nature of the playing field would have substantially changed. To
simplistically assume that the second placer would have
received the other votes would be to substitute our judgment
for the mind of the voter. The second placer is just that, a
second placer. He lost the elections. He was repudiated by
either a majority or plurality of voters. He could not be
considered the first among qualified candidates because in a
field which excludes the disqualified candidate, the conditions
would have substantially changed. We are not prepared to
extrapolate the results under such circumstances.
In these cases, the pendulum of judicial opinion in our
country has swung from one end to the other. In the early case
of Topacio v. Paredes 32 we declared as valid, votes cast in
favor of a disqualified, ineligible or dead candidate provided the
people who voted for such candidate believed in good faith that
at the time of the elections said candidate was either qualified,
eligible or alive. The votes cast in favor of a disqualified,
ineligible or dead candidate cannot be considered stray votes,
consequently, the candidate who obtained the next higher
number of votes cannot be proclaimed as winner. According to
this Court in the said case, "there is not, strictly speaking, a Comelec, 38 this Court reiterated and upheld the ruling could be proclaimed the fact
contest, that the wreath of victory cannot be transferred from in Topacio v. Paredes andGeronimo v. Ramos to the effect that remains that the local
an ineligible candidate to any other candidate when the sole the ineligibility of a candidate receiving the majority votes does elections of Feb. 1, 1988 in
question is the eligibility of the one receiving the plurality of the not entitle the eligible candidate receiving the next higher the province of
legally cast ballots." number of votes to be declared elected, and that a minority or Leyte proceeded with
Then in Ticson v. Comelec, 33 this Court held that votes defeated candidate cannot be declared elected to the office. In Larrazabal considered as a
cast in favor of a non-candidate in view of his unlawful change these cases, we put emphasis on our pronouncement bona fide candidate. The
of party affiliation (which was then a ground for inGeronimo v. Ramos that: voters of the province voted
disqualification) cannot be considered in the canvassing of The fact that a candidate who obtained the for her in the sincere belief
election returns and the votes fall into the category of invalid highest number of votes is later declared to be that she was a qualified
and nonexistent votes because a disqualified candidate is no disqualified or not eligible for the office to which candidate for the position of
candidate at all and is not a candidate in the eyes of the law. As he was elected does not necessarily entitle the governor. Her votes was
a result, this Court upheld the proclamation of the only candidate who obtained the second highest counted and she obtained
candidate left in the disputed position. number of votes to be declared the winner of the highest number of votes.
In Geronimo v. Ramos 34 we reiterated our ruling the elective office. The votes cast for a dead, The net effect is that
in Topacio v. Paredes that the candidate who lost in an election disqualified, or non-eligible person may be valid petitioner lost in the
cannot be proclaimed the winner in the event the candidate to vote the winner into office or maintain him election. He was repudiated
who ran for the position is ineligible. We held in Geronimo: there. However, in the absence of a statute by the electorate. . . . What
which clearly asserts a contrary political and matters is that in the event a
[I]t would be extremely repugnant to the basic
legislative policy on the matter, if the votes candidate for an elected
concept of the constitutionally guaranteed right
were cast in sincere belief that that candidate position who is voted for
to suffrage if a candidate who has not acquired and who obtains the highest
the majority or plurality of votes is proclaimed a was alive, qualified, or eligible, they should not
be treated as stray, void or meaningless. number of votes is
winner and imposed as the representative of a
Synthesizing these rulings we declared in the latest disqualified for not
constituency, the majority of which have possessing the
positively declared through their ballots that case of Labo, Jr. v. COMELEC that: 39
eligibility, requirements at
they do not choose him. While Ortega may have garnered the second
the time of the election as
Sound policy dictates that public elective offices highest number of votes for the office of city
provided by law,the
are filled by those who have received the mayor, the fact remains that he was not the candidate who obtains the
highest number of votes cast in the election for choice of the sovereign will. Petitioner Labo was
second highest number of
that office, and it is fundamental idea in all overwhelmingly voted by the electorate for the
votes for the same position
republican forms of government that no one can office of mayor in the belief that he was then cannot assume the vacated
be declared elected and no measure can be qualified to serve the people of Baguio City and
position (Emphasis
declared carried unless he or it receives a his subsequent disqualification does not make
supplied).
majority or plurality of the legal votes cast in the respondent Ortega the mayor-elect. This is the
import of the recent case of Abella Our ruling in Abella applies squarely to the case
elections. (20 Corpus Juris 2nd, S 243, p. 676.) at bar and we see no compelling reason to
However, in Santos v. Comelec 35 we made a v. Comelec (201 SCRA 253 [1991]), wherein we
held that: depart therefrom. Like Abella, petitioner Ortega
turnabout from our previous ruling in Geronimo v. Ramos and lost in the election. He was repudiated by the
pronounced that "votes cast for a disqualified candidate fall While it is true that SPC
electorate. He was obviously not the choice of
within the category of invalid or non-existent votes because a No. 88-546 was originally a the people of Baguio City.
disqualified candidate is no candidate at all in the eyes of the petition to deny due course
to the certificate of Thus, while respondent Ortega (G.R No. 105111)
law," reverting to our earlier ruling in Ticson v. Comelec.
candidacy of Larrazabal and originally filed a disqualification case with the
In the more recent cases of Labo, Jr. v. Comelec (docketed as SPA-92-029) seeking to
Comelec; 36 Abella v. Comelec; 37 and Benito v. was filed before Larrazabal
deny due course to petitioner's (Labo's)
candidacy, the same did not deter the people of
Baguio City from voting for petitioner Labo,
who, by then, was allowed by the respondent
Comelec to be voted upon, the resolution for his
disqualification having yet to attain the degree
of finality (Sec. 78, Omnibus Election Code).
And in the earlier case of Labo
v. Comelec (supra), We held:
Finally, there is the question
of whether or not the
private respondent, who
filed the quo
warranto petition, can
replace the petitioner as
mayor. He cannot. The
simple reason is that as he
obtained only the second
highest number of votes in
the election, he was
obviously not the choice of
the people of Baguio City.
The latest ruling of the Court
in this issue is Santos
v. Commission on
Elections, (137 SCRA 740)
decided in 1985. In that
case, the candidate who
placed second was
proclaimed elected after the
votes for his winning rival,
who was disqualified as a
turncoat and considered a
non-candidate, were all
disregarded as stray. In
effect, the second placer
won by default. That
decisions was supported by
eight members of the Court
then (Cuevas, J., ponente,
with Makasiar, Concepcion,
Jr., Escolin, Relova, De la
Fuente, Alampay, and
Aquino, JJ., concurring) with
three dissenting
(Teehankee, acting C.J.,
Abad Santos and Melencio-
Herrera) and another two
reserving their votes (Plana
and Gutierrez, Jr.). One was
on official leave
(Fernando, C.J.).
Re-examining that decision, the Court finds, and
so holds, that it should be reversed in favor of
the earlier case of Geronimo v. Santos (136 SCRA
435), which represents the more logical and
democratic rule. That case, which reiterated the
doctrine first announced in 1912 in Topacio
vs. Paredes (23 Phil. 238) was supported by ten
members of the Court. . . .
The rule, therefore, is: the ineligibility of a
candidate receiving majority votes does not
entitle the eligible candidate receiving the next
highest number of votes to be declared elected.
A minority or defeated candidate cannot be
deemed elected to the office. LexLibris
Indeed, this has been the rule in the United
States since 1849 (State ex rel. Dunning
v. Giles, 52 Am. Dec. 149).
It is therefore incorrect to argue that since a
candidate has been disqualified, the votes
intended for the disqualified candidate should,
in effect, be considered null and void. This
would amount to disenfranchising the
electorate in whom, sovereignty resides. At the
risk of being repetitious, the people of Baguio
City opted to elect petitioner Labo bona
fidewithout any intention to misapply their
franchise, and in the honest belief that Labo was
then qualified to be the person to whom they
would entrust the exercise of the powers of the
government. Unfortunately, petitioner Labo
turned out to be disqualified and cannot assume
the office.
Whether or not the candidate whom the
majority voted for can or cannot be installed,
under no circumstances can a minority or
defeated candidate be deemed elected to the
office. Surely, the 12,602 votes cast for
petitioner Ortega is not a larger number than
the 27,471 votes cast for petitioner Labo (as
certified by the Election Registrar of Baguio
City;rollo, p. 109; G.R No. 105111).
This, it bears repeating, expresses the more logical and
democratic view. We cannot, in another shift of the pendulum,
subscribe to the contention that the runner-up in an election in
which the winner has been disqualified is actually the winner
among the remaining qualified candidates because this clearly
represents a minority view supported only by a scattered
number of obscure American state and English court
decisions. 40 These decisions neglect the possibility that the
runner-up, though obviously qualified, could receive votes so
measly and insignificant in number that the votes they receive
would be tantamount to rejection. Theoretically, the "second
placer" could receive just one vote. In such a case, it is absurd
to proclaim the totally repudiated candidate as the voters'
"choice." Moreover, even in instances where the votes received
by the second placer may not be considered numerically
insignificant, voters' preferences are nonetheless so volatile and
unpredictable that the result among qualified candidates,
should the equation change because of the disqualification of
an ineligible candidate, would not be self-evident. Absence of
the apparent though ineligible winner among the choices could
lead to a shifting of votes to candidates other than the second
placer. By any mathematical formulation, the runner-up in an
election cannot be construed to have obtained a majority or
plurality of votes cast where an "ineligible" candidate has
garnered either a majority or plurality of the votes.
In fine, we are left with no choice but to affirm the
COMELEC's conclusion declaring herein petitioner ineligible for
the elective position of Representative of Makati City's Second
District on the basis of respondent commission's finding that
petitioner lacks the one year residence in the district mandated
by the 1987 Constitution. A democratic government is
necessarily a government of laws. In a republican government
those laws are themselves ordained by the people. Through
their representatives, they dictate the qualifications necessary
 for service in government positions. And as petitioner clearly
lacks one of the essential qualifications for running for
membership in the House of Representatives, not even the will
of a majority or plurality of the voters of the Second District of
Makati City would substitute for a requirement mandated by
the fundamental law itself.
WHEREFORE, premises considered, the instant petition
is hereby DISMISSED. Our Order restraining respondent
COMELEC from proclaiming the candidate garnering the next
highest number of votes in the congressional elections for the
Second District of Makati City is made PERMANENT.
SO ORDERED. CDta
Regalado, Melo, Puno and Hermosisima, Jr., JJ ., concur.
Feliciano, J ., is on official leave.
Separate Opinions
PADILLA, J ., concurring:
I agree with the conclusion reached by the majority that petitioner
Aquino has not shown by clear and convincing evidence that he had
established his residence in the second district of Makati City for a
period of not less than one (1) year prior to the 8 May 1995
elections. However, I do not fully subscribe to its proposition that
petitioner's residence (in Makati) should be his "domicile of choice."
Article VI, Section 6 of the Constitution provides that:
"No person shall be a member of the House of
Representatives unless he is a natural-born
citizen of the Philippines and on the day of the
election, is at least twenty-five years of age, able
to read and write, and, except the party list
representatives, a registered voter in the district
in which he shall be elected, and a resident
thereof for a period of not less than one year
immediately preceding the day of the
election." (Emphasis supplied)
In G.R No. 119976, Marcos vs. Comelec, I have maintained that the
phrase "a resident thereof for a period of not less than one year"
means actual and physical presence in the legislative district of the
congressional candidate, and that said period of one year must be
satisfied regardless of whether or not a person's residence or
domicile coincides. LLjur
To my mind, petitioner should be declared disqualified to run as
representative in the 2nd district of Makati City in the 8 May 1995
elections not because he failed to prove his residence therein as his
domicile of choice, but because he failed altogether to prove that he
had actually and physically resided therein for a period of not less
than one (1) year immediately preceding the 8 May 1995 elections.
Noteworthy is the established fact before the Comelec that
petitioner admits having maintained other residences in Metro
Manila apart from his leased condominium unit in Makati's 2nd
district. 1 This clear admission made by petitioner against his
interest weakens his argument that "where a party decides to
transfer his legal residence so he can qualify for public office, he is
free to do so." (see p. 20, Petition).
Petitioner evidently wants to impress the Court that his other
residences in Metro Manila could never have become his domicile
of choice because it never entered his mind and suddenly,
seemingly not contented with these other residences, he rents a
condominium unit in Makati, and calls it his domicile of choice — all
these without adding clear and convincing evidence that he
did actually live and reside in Makati for at least one year prior to 8
May 1995 — and that he no longer lived and resided in his other
residences during said one year period.
It follows, likewise, that the lease contract relied upon by petitioner,
standing alone, established only the alleged date (April 25, 1994) of
its due execution. Stated otherwise, the lease contract tells us that
petitioner had been leasing a condominium unit in Makati City for
more than a year prior to 8 May 1995, but it does not prove that
petitioner actually and physically resided therein for the same
period, in the light of his admission that he maintained other
residences in Metro Manila.
In light of petitioner's disqualification, the corollary issue to be
resolved is whether or not jurisdiction continued to be vested in the
Comelec to order the Makati Board of Canvassers "to determine and
proclaim the winner out of the remaining qualified candidates" after
petitioner had been declared post 8 May 1995 as disqualified.
I agree with the proposition advanced by the Solicitor General that
Sec. 6 of R.A. 6646 clearly provides that votes cast for a disqualified
candidate shall not be counted, thus:
"SECTION 6. Effect of Disqualification Case. —
Any candidate who has been declared by final
judgment to be disqualified shall not be voted
for, and the votes cast for him shall not be
counted. If for any reason a candidate is not
declared by final judgment before an election to
be disqualified and he is voted for and receives
the winning number of votes in such election,
the Court or Commission shall continue with the
trial and hearing of the action, inquiry or protest
and, upon motion of the complainant or any
intervenor, may during the pendency thereof
order the suspension of the proclamation of
such candidate whenever the evidence of his
guilt is strong."
There can be no dispute that if a final judgment is
rendered before the election, declaring a particular candidate as
disqualified, such disqualified candidate shall not be voted for and
votes cast for him shall not be counted, thus posing no problem in
proclaiming the candidate who receives the highest number of votes
among the qualified candidates.
But what about afterthe election? Sec. 6 appears categorical enough
in stating: "if for any reason" no final judgment of disqualification is
rendered before the elections, and the candidate facing
disqualification is voted for and receives the winning number of
votes, the Comelec or the Court is not ousted of its jurisdiction to
hear and try the case up to final judgment, hence, the power to
even suspend the proclamation of the erstwhile winning candidate
when evidence of his guilt is strong. dctai
It thus appears clear that the law does not dichotomize the effect of
a final judgment of disqualification in terms of time considerations.
There is only one natural and logical effect: the disqualified
candidate shall not be voted and, if voted, the votes cast for him
shall not be counted. Ubi lex non distinguit nec nos distinguere
debemus (where the law does not distinguish, we should not
distinguish.)
At this point, what I said in Marcos, supra, follows:
"What happens then when after the elections
are over, one is declared disqualified? Then,
votes cast for him "shall not be counted" and in
legal contemplation, he no longer received the
highest number of votes.
It stands to reason that Section 6 of R.A.
6646 does not make the second placer the
winner simply because a "winning candidate is
disqualified," but that the law consider him as
the candidate who had obtained the highest
number of votes as a result of the votes cast for
the disqualified candidate not being counted or
considered.
 As this law clearly reflects the legislative policy
on the matter, then there is no reason why this
Court should not re-examine and consequently
abandon the doctrine in the Jun Labo case. It
has been stated that "the qualifications
prescribed for elective office cannot be erased
by the electorate alone. The will of the people
as expressed through the ballot cannot cure the
vice of ineligibility" most especially when it is
mandated by no less than the Constitution."
Therefore the candidate who received the highest number of
votes from among the qualified candidates, should be proclaimed
ACCORDINGLY, I vote to DISMISS the petition. CDTInc
FRANCISCO, J ., concurring and dissenting:
I concur with the well written ponencia of my most
esteemed colleague, Mr. Justice Kapunan. I wish, however, to
express my views on some issues raised by the petitioner, viz.,
(1) jurisdiction over the disqualification suit, (2) domicile, (3)
theory of legal impossibility, and (4) "second placer rule."
Petitioner emphatically maintains that only the House
of Representatives Electoral Tribunal (HRET) can declare his
disqualification, especially after the elections. To bolster this
stand, the cases of Co v. HRET, 199 SCRA 692 (1991); Robles v.
HRET, 181 SCRA 780 (1990); Lazatin v. HRET, 168 SCRA 391
(1988); and Lachica v. Yap, 25 SCRA 140 (1968), have been cited
as supporting authorities. To my mind, this position is
untenable. Section 17 of Article VI of the 1987 Constitution is
clear and unambiguous that HRET jurisdiction applies only to
the members of the House of Representatives. The operative
acts necessary for an electoral candidate's rightful assumption
of the office for which he ran are his proclamation and his
taking an oath of office. Petitioner cannot in anyway be
considered as a member of the House of Representatives for
the purpose of divesting the Commission on Elections of
jurisdiction to declare his disqualification and invoking instead
HRET's jurisdiction, it indubitably appearing that he has yet to
be proclaimed, much less has he taken an oath of office. Clearly,
petitioner's reliance on the aforecited cases which when
perused involved Congressional members, is totally misplaced,
if not wholly inapplicable. That the jurisdiction conferred upon
HRET extends only to Congressional members is further
established by judicial notice of HRET Rules of Procedure, 1 and
HRET decisions 2 consistently holding that the proclamation of a
winner in the contested election is the essential requisite
vesting jurisdiction on the HRET.
Moreover, a perusal of the records shows that the
question on COMELEC's jurisdiction is now barred by estoppel.
It is to be noted that in his May 2, 1995 Answer, as well as in his
Memorandum and Supplemental Memorandum filed before
the COMELEC's Second Division, petitioner never assailed
COMELEC's lack of jurisdiction to rule on his qualification. On
the contrary, he asked that the disqualification suit against him
be dismissed on the following grounds: that it was filed outside
the reglementary period; that the one year residence
requirement of the 1987 Constitution is inapplicable due to the
recent conversion of the municipality of Makati into a city
under R.A. No. 7854; that he committed a simple inadvertence
in filling up his certificate of candidacy; that the proper
procedure to attack his qualification is by a quo
warranto proceeding; that he had actually and physically
resided in Makati for more than a year; and for lack of merit,
the case should be outrightly dismissed. In a hearing conducted
by the COMELEC on May 2, 1995, petitioner even submitted his
evidence (e.g. affidavits, amended certificate of candidacy, copy
of the lease contract) to prove that he is qualified for the
position. Subsequently, on May 16, 1995, in response to the
COMELEC En Banc's May 15, 1995 Order suspending the
proclamation of the winner, petitioner filed his
Comment/Opposition with Urgent Motion To Lift Order of
Suspension of Proclamation asking for the lifting of the
COMELEC's order of suspension. On May 19, 1995, petitioner
again filed a Memorandum and averred that the recent
conversion of Makati into a city made the one-year residence
requirement inapplicable; that he resided in Makati for more
than a year; that quo warranto is the right remedy to question
his qualification. In passing, petitioner also alleged that the
issue on his qualification should be "properly" ventilated in a
full-dress hearing before the HRET, albeit praying for the
dismissal of the motion for reconsideration for utter lack of
merit (and not for lack of jurisdiction), and for lifting the
suspension of his proclamation. It was only on June 01, 1995, in
his Motion to File Supplemental Memorandum and Urgent
Motion to Resolve Motion to Lift Suspension of Proclamation,
when the petitioner raised COMELEC's alleged lack of
jurisdiction to resolve the question on his qualification. Clearly
then, petitioner has actively participated in the proceedings
both before the COMELEC's Second Division and the
COMELEC En Banc asking therein affirmative reliefs. The settled
rule is that a party who objects to the jurisdiction of the court
and alleges at the same time any non-jurisdictional ground for
dismissing the action is deemed to have submitted himself to
the jurisdiction of the court. 3 Where a party voluntarily
submits to the jurisdiction of the court and thereafter loses on
the merits, he may not thereafter be heard to say that the court
had no jurisdiction. 4 In Jimenez v. Macaraig, 5 the Court,
citing Crisostomo v. Court of Appeals, 32 SCRA 54, 60 (1970),
elaborated on the rationale for this doctrine in this wise:
"The petitioners, to borrow the language of Mr.
Justice Bautista Angelo (People vs. Archilla, G.R.
No. L-15632, February 28, 1961, 1 SCRA 699,
700-701), cannot adopt a posture of double-
dealing without running afoul of the doctrine of
estoppel. The principle of estoppel is in the
interest of a sound administration of the laws. It
should deter those who are disposed to trifle
with the courts by taking inconsistent positions
contrary to the elementary principles of right
dealing and good faith (People v. Acierto, 92
Phil. 534, 541, [1953])." 6
It is not right for a party who has affirmed and invoked the
jurisdiction of a court in a particular matter to secure an
affirmative relief to afterwards deny that same jurisdiction to
escape an adverse decision. 7 Perforce, petitioner's
asseveration that the COMELEC has no jurisdiction to rule on his
qualification must fail. LLcd
Petitioner insists that domicile is a matter of personal
intention. Thus, petitioner asserts that if he decides to transfer
his legal residence so he can qualify for public office then he is
entirely free to do so. This argument to hold water, must be
supported by a clear and convincing proofs that petitioner has
effectively abandoned his former domicile and that his
intention is not doubtful. Indeed, domicile once established is
considered to continue and will not be deemed lost until a new
one is established (Co v. Electoral Tribunal of the House of
Representatives, 199 SCRA 692, 711 [1991]). Petitioner from
childhood until his last election as senator has consistently
maintained Concepcion, Tarlac, as his domicile. He moved to
Amapola Street, Palm Village, Makati, and thereafter claimed
the same to be his new domicile. This claim, however, is
dismally unsupported by the records. The lease contract
entered into by petitioner for a period of two years on the third
floor condominium unit in Palm Village, Makati, in my view,
does not prove his intent to abandon his domicile of origin. The
intention to establish domicile must be an intention to remain
indefinitely or permanently in the new place. 8 This element is
lacking in this instance. Worse, public respondent Commission
even found that "respondent Aquino himself testified that his
intention was really for only one (1) year because he has
other 'residences' in Manila or in Quezon City ([citing] TSN, May
2, 1995, p. 92)." 9 Noting that petitioner is already barred from
running for senator due to the constitutional consecutive two-
term limit, his search for a place where he could further and
continue his political career and sudden transfer thereto make
his intent suspect. The best test of intention to establish legal
residence comes from one's acts and not by mere declarations
alone. 10 To acquire, or effect a change of domicile, the
intention must be bona fide and unequivocal (28 C.J.S. 11).
Petitioner, in my view, miserably failed to show a bona fide and
unequivocal intention to effect the change of his domicile.
The theory of legal impossibility is advanced to justify
non-compliance with the constitutional qualification on
residency. Petitioner explains his theory in this wise:
". . . THE COMELEC CRITICALLY ERRED IN
FAILING TO APPRECIATE THE LEGAL
IMPOSSIBILITY OF ENFORCING THE ONE YEAR
RESIDENCY REQUIREMENT OF CONGRESSIONAL
CANDIDATES IN NEWLY CREATED POLITICAL
DISTRICTS WHICH WERE ONLY EXISTING FOR
LESS THAN A YEAR AT THE TIME OF THE
ELECTION AND BARELY FOUR MONTHS IN THE
CASE OF PETITIONER'S DISTRICT IN MAKATI." 11
Apparently, this theory is an offshoot of Republic Act No. 7854,
an act converting the municipality of Makati into a highly
urbanized city. This law enacted on January 2, 1995, established
a second Congressional district in Makati in which petitioner ran
as a Congressional candidate. Since the second district,
according to petitioner, is barely four (4) months old then the
one (1) year residence qualification provided by
the Constitution is inapplicable. Petitioner's acts, however, as
borne by the records, belie his own theory. Originally, he placed
in his certificate of candidacy an entry of ten (10) months
residence in Makati. Petitioner then had it amended to one (1)
year and thirteen (13) days to correct what he claims as a mere
inadvertent mistake. I doubt the sincerity of this
representation. If petitioner is indeed persuaded by his own
theory, the ten months residence he initially wrote would have
more than sufficiently qualified him to run in the barely four-
month old Makati district. The amendment only reveals the
true intent of petitioner to comply with one year constitutional
requirement for residence, adding an extra thirteen (13) days
for full measure. Petitioner apparently wanted to argue one
way (theory of legal impossibility), but at the same time played
it safe in the other (the constitutional one year residence
requirement). And that is not all. If we were to adhere to
petitioner's theory of legal impossibility, then residents in that
district shorn of the constitutional six months residence
requirement for prospective voters (Article V, Section 1 of the
1987 Constitution) would have certainly qualified to vote. That
would have legitimized the entry and electoral exercise of flying
voters — one of the historic nemeses of a clean and honest
election. Furthermore, to subscribe to petitioner's contention
that the constitutional qualification of candidates should be
brushed aside in view of the enactment of R.A. No. 7854 will
indubitably violate the manner and procedure for the
amendment or revision of the constitution outlined under
Article XVIII of the 1987 Constitution. A legislative enactment, it
has to be emphasized, cannot render nugatory the constitution.
The constitution is superior to a statute. It is the fundamental
and organic law of the land to which every statute must
conform and harmonize.
Finally, it has been contended that a second place candidate cannot
be proclaimed a substitute winner. I find the proposition quite
unacceptable. A disqualified "candidate" is not a candidate and the
votes which may have been cast in his favor are nothing but stray
votes of no legal consequence. A disqualified person like the
petitioner receives no vote or zero vote. In short, no-candidate-no
vote. Petitioner had therefore no right, in fact and in law, to claim
first place for he has nothing to base his right. The legislative intent
is clear as provided by R.A. 6646, Section 6, in that votes cast for a
disqualified candidate shall not be counted as they are
considered stray (Section 211, Rule 24, Omnibus Election Code). It is
only from the ranks of qualified candidates can one be chosen as
first placer and not from without. Necessarily, petitioner, a
disqualified candidate, cannot be a first placer as he claims himself
to be. To count the votes for disqualified candidate would, in my
view, disenfranchise voters who voted for a qualified candidate.
Legitimate votes cast for a qualified candidate should not be
penalized alongside a disqualified candidate. With this in mind, the
other qualified candidate who garnered the highest number of votes
should be proclaimed the duly elected representative of the district.
I feel that the Labo doctrine ought to be abandoned.
I therefore vote to deny the petition and to lift the
temporary restraining order issued by the Court dated June 6,
1995. cdll
DAVIDE, JR., J ., dissenting:
In sustaining the COMELEC's acts of suspending the proclamation of
petitioner Agapito A. Aquino and of proceeding to hear the
disqualification case against him, the majority opinion relies on
Section 6 of R.A. No. 6646 which it claims to be applicable by virtue
of Section 7 thereof to petitions to deny due course to or cancel a
certificate of candidacy under Section 78 of the Omnibus Election
Code (B.P. Blg. 881).
I disagree.
In the first place, the petition to disqualify the petitioner in SPA No.
95-113 is not a petition to deny due course to or cancel a certificate
of candidacy under Section 78, which reads:
SECTION 78. Petition to deny due course to or
cancel a certificate of candidacy. — A verified
petition seeking to deny due course or to cancel
a certificate of candidacy may be filed by any
person exclusively on the ground that any
material representation contained therein as
required under Section 74 hereof is false. The
petition may be filed at any time not later than
twenty-five days from the time of the filing of
the certificate of candidacy and shall be
decided, after due notice and hearing, not later
than fifteen days before the election. (Emphasis
supplied)
Nowhere in the petition in SPA No. 95-113 is it alleged
by the private respondents that a material representation
contained in the petitioner's certificate of candidacy is false.
What is being attacked therein is the petitioner's lack of the
one-year residence qualification in the new Second Legislative
District of Makati City where he sought to be elected for the
office of Congressman.
The rule governing disqualification cases on the ground
of ineligibility, which is also invoked by the private respondents,
is Rule 25 of the COMELEC Rules of Procedure, as amended on The underscored portion is the amendment to Rule 25, which SECTION 63
15 February 1993. The amendment allows the filing of a the COMELEC must have deemed necessary to fill up a [sic]. Disqualifications. —
petition to disqualify a candidate on the ground that he does procedural hiatus in cases of disqualifications based on other Any candidate who, in an
not possess all the qualifications provided for by grounds in the light of this Court's interpretation in Loong action or protest in which he
the Constitution or by existing laws. In its original form, the rule vs. Commission on Elections (216 SCRA 760 [1992]) that Rule 25 is a party is declared by final
only applied to petitions for disqualification based on the refers only to disqualifications under Sections 12 and 68 of decision of a competent
commission of any act declared by law to be a ground for the Omnibus Election Code. This Court explicitly stated therein court guilty of, or found by
disqualification. The rule as thus amended now reads as as follows: the Commission of having
follows: We do not agree with private respondent. (a) given money or other
Rule 25 — Disqualification of Candidates Ututalum's contention that the petition for material consideration to
SECTION 1. Grounds for Disqualification. — Any disqualification, as in the case at bar, may be influence, induce or corrupt
candidate who does not possess all the filed at any time after the last day for filing a the voters or public officials
qualifications of a candidate as provided for by certificate of candidacy but not later than the performing electoral
the Constitution or by existing law or who date of proclamation, applying Section 3, Rule functions; (b) committed
commits any act declared by law to be grounds 25 of the Comelec Rules of Procedure. acts of terrorism to enhance
for disqualification may be disqualified from Rule 25 of the Comelec Rules of Procedure his candidacy; (c) spent in
continuing as a candidate. refers to Disqualification of Candidates; and his election campaign an
Section 1 of said rule provides that any amount in excess of that
SECTION 2. Who May File Petition for
candidate who commits any act declared by law allowed by this Code; (d)
Disqualification. — Any citizen of voting age, or
to be a ground for disqualification may be solicited, received or made
duly registered political party, organization or
disqualified from continuing as a candidate. The any contribution prohibited
coalition of political parties may file with the under Sections 89, 95, 96,
Law Department of the Commission a petition grounds for disqualification as expressed in
Sections 12 and 68 of the Code, are the 97 and 104; or (e) violated
to disqualify a candidate on grounds provided
following: any of Sections 80, 83, 85,
by law. 86 and 261, paragraphs d, e,
SECTION 3. Period to File Petition. — SECTION
k, v, and cc, sub-paragraph
The petition shall be filed any day after the last 12. Disqualification. — Any
6, shall be disqualified from
day for filing of certificates of candidacy but not person who has been
continuing as a candidate,
later than the date of proclamation. declared by competent or if he has been elected,
SECTION 4. Summary Proceeding. — authority insane or
from holding the office. Any
The petition shall be heard summarily after due incompetent, or has been
person who is a permanent
notice. sentenced by final judgment resident of or an immigrant
for subversion, insurrection,
SECTION 5. Effect of Petition if to a foreign country shall
rebellion or for any offense
Unresolved Before Completion of Canvass. — If not be qualified to run for
for which he has been
the petition, for reasons beyond the control of any elective office under
sentenced to a penalty of this Code, unless said
the Commission, cannot be decided before the more than eighteen months
completion of the canvass, the votes cast for the person has waived his status
or for a crime involving
respondent may be included in the counting and as permanent resident or
moral turpitude, shall be
in the canvassing; however, if the evidence of immigrant of a foreign
disqualified to be a country in accordance with
guilt is strong, his proclamation shall be candidate and to hold any
suspended notwithstanding the fact that he the residence requirement
office, unless he has been
received the winning number of votes in such provided for in the election
given plenary pardon or laws.
election. granted amnesty. LLcd
 The petition filed by private respondent
Ututalum with the respondent Comelec to
disqualify petitioner Loong on the ground that
the latter made a false representation in his
certificate of candidacy as to his age, clearly
does not fall under the grounds of
disqualification as provided for in Rule 25 but is
expressly covered by Rule 23 of the Comelec
Rules of Procedure governing petitions to cancel
certificate of candidacy. Moreover, Section 3,
Rule 25 which allows the filing of the petition at
any time after the last day for the filing of
certificates of candidacy but not later than the
date of proclamation, is merely a procedural
rule issued by respondent Commission which,
although a constitutional body, has no
legislative powers. Thus, it can not supersede
Section 78 of the Omnibus Election Code which
is a legislative enactment.
Second, even if we assume for the sake of argument that the
petition in SPA No. 95-113 fall under Section 78 of the Omnibus
Election Code, still Section 6 of R.A. No. 6646 cannot be applied by
virtue of Section 7 thereof. Sections 6 and 7 reads:
SECTION 6. Effect of Disqualification Case. —
Any candidate who has been declared by final
judgment to be disqualified shall not be voted
for, and the votes cast for him shall not be
counted. If for any reason a candidate is not
declared by final judgment before an election to
be disqualified and he is voted for and receives
the winning number of votes in such elections,
the Court or Commission shall continue with the
trial and hearing of the action, inquiry or protest
and, upon motion of the complainant or any
intervenor, may during the pendency thereof
order the suspension of the proclamation of
such candidate whenever the evidence of his
guilt is strong.
SECTION 7. Petition to Deny Due Course
to or Cancel a Certificate of Candidacy. — The
procedure hereinabove provided shall apply to
petitions to deny due course to or cancel a
certificate of candidacy as provided in Section
78 of Batas Pambansa Blg. 881.
The "procedure hereinabove provided" mentioned in Section 7
cannot be construed to refer to Section 6 which does not provide for
a procedure but for the EFFECTS of disqualification cases. It can only
refer to the procedure provided in Section 5 of the said Act on
nuisance candidates which reads as follows:
SECTION 5. Procedure in Cases of Nuisance
Candidates. — (a) A verified petition to declare a
duly registered candidate as a nuisance
candidate under Section 69 of Batas Pambansa
Blg. 881 shall be filed personally or through duly
authorized representative with the Commission
by any registered candidate for the same office
within five (5) days from the last day for the
filing of certificates of candidacy. Filing by mail
shall not be allowed.
(b) Within three (3) days from the filing of the
petition, the Commission shall issue summons
to the respondent candidate together with a
copy of the petition and its enclosures, if any.
(c) The respondent shall be given three (3) days
from receipt of the summons within which to
file his verified answer (not a motion to dismiss)
to the petition, serving copy thereof upon the
petitioner. Grounds for a motion to dismiss may
be raised as affirmative defenses.
(d) The Commission may designate any of its
officials who are lawyers to hear the case and
receive evidence. The proceeding shall be
summary in nature. In lieu of oral testimonies,
the parties may be required to submit position
papers together with affidavits or counter-
affidavits and other documentary evidence. The
hearing officer shall immediately submit to the
Commission his findings, reports, and
recommendations within five (5) days from the
completion of such submission of evidence. The
Commission shall render its decision within five
(5) days from receipt thereof.
(e) The decision, order, or ruling of the
Commission shall, after five (5) days from
receipt of a copy thereof by the parties, be final
and executory unless stayed by the Supreme
Court.
(f) The Commission shall within twenty-four
hours, through the fastest available means,
disseminate its decision or the decision of the
Supreme Court or the city or municipal election
registrars, boards of election inspectors, and the
general public in the political subdivision
concerned.
and which is the only procedure that precedes Section 7 of the
said Act. Heretofore, no law provided for the procedure to
govern cases under Section 78. Applying to such cases, through
Section 7 of R.A. No. 6646, the procedure applicable to cases of
nuisance candidates is prudent and wise, for both cases
necessarily require that they be decided before the day of the
election; hence, only summary proceedings thereon can
adequately respond to the urgency of the matter.
Third, Section 6 merely supplements Section 72 of
the Omnibus Election Code providing as follows:
SECTION 72. Effects of disqualification cases and
priority. — The Commission and the courts shall
give priority to cases of disqualification by
reason of violation of this Act to the end that a
final decision shall be rendered not later than
seven days before the election in which the
disqualification is sought. dctai
Any candidate who has been declared by final
judgment to be disqualified shall not be voted
for, and the votes cast for him shall not be
counted. Nevertheless, if for any reason, a
candidate is not declared by final judgment
before an election to be disqualified and he is
voted for and receives the winning number of
votes in such election, his violation of the
provisions of the preceding sections shall not
prevent his proclamation and assumption to
office.
by granting the COMELEC or the Court the authority to continue
hearing the case and to suspend the proclamation if the
evidence of guilt is strong. As observed by this Court in its
majority opinion "the phrase 'when the evidence of guilt is
strong' seems to suggest that the provisions of Section 6 ought
 to be applicable only to disqualification cases under Section 68
of the Omnibus Election Code."
Fourth, the amended Rule 25 of the COMELEC Rules of Procedure,
which is the only rule governing petitions filed before election or
proclamation for the disqualification of a candidate on the ground
that he lacks the qualifications provided for by the Constitution or
by law, does not, as can be gathered from Section 5 thereof,
authorize the COMELEC to continue hearing the case after the
election.
Fifth, even assuming that the second sentence of Section 6 of R.A.
No. 6646 is applicable to disqualification cases based on the ground
of lack of qualification, it cannot be applied to a case which does not
involve elective regional, provincial, and city officials, and where
suspension of proclamation is not warranted because of the
absence of strong evidence of guilt or ineligibility. In such a case, the
candidate sought to be disqualified but who obtains the highest
number of votes has to be proclaimed. Once he is proclaimed, the
COMELEC cannot continue with the case, and the remedy of the
opponent is to contest the winning candidate's eligibility within ten
days from proclamation in a quo warranto proceeding which is
within the jurisdiction of the metropolitan or municipal trial courts,
in the case of barangay officials; the regional trial courts, in the case
of municipal officials (Section 2[2], Article IX-C, Constitution; Section
253, paragraph 2, B.P. Blg. 881); the House of Representatives
Electoral Tribunal, in the case of Congressmen; the Senate Electoral
Tribunal, in the case of Senators (Section 17, Article VI,
Constitution); and the Supreme Court en banc, in the case of the
President or Vice-President (Section 4, Article VII, Constitution).
If what is involved is an elective regional, provincial, or
city official, and the case cannot be decided before the election,
the COMELEC can, even after the proclamation of the candidate
sought to be disqualified, proceed with the case by treating it as
a petition for quo warranto, since such a case properly pertains
to the exclusive jurisdiction of the COMELEC (Section 2[2],
Article IX-C, Constitution; Section 253, B.P. Blg. 881).
But even granting for the sake of argument that
Sections 6 and 7 of R.A. No. 6646, in relation to Section 78 of
the Omnibus Election Code and the amended Rule 25 of the
COMELEC Rules of Procedure, are applicable, the order of
suspension of the petitioner's proclamation issued on 15 May
1995 is null and void for having been issued with grave abuse of
discretion. What was before the COMELEC en banc at that stage
was the decision of the Second Division of 6 May
1995 dismissing the petition to disqualify the petitioner
and declaring him qualified for the position. That decision is a
direct and positive rejection of any claim that the evidence of
the petitioner's guilt is strong. Note that it was only on 2 June
1995, when the COMELEC en banc reversed the decision of the
Second Division, that it was found that the evidence of the
petitioner's ineligibility is strong. It would have been otherwise
if the Second Division had disqualified the petitioner.
Besides, at the time the questioned order was issued,
there was no hearing yet on the private respondents' motions
for the suspension of the petitioner's proclamation. In fact, in
that order the COMELEC en banc admitted that the said
motions could not be resolved without hearing, thus:
Pending the resolution of the petitioners'
Motion for Reconsideration filed on May 7,
1995; Urgent Motion Ad Cautelam to Suspend
Proclamation of Respondent (May 10, 1995)
filed on May 10, 1995; and OMNIBUS MOTION
(For Reconsideration of the Honorable
Commission's [Second Division] Resolution
dated May 6, 1995, and 2nd Urgent Motion Ad
Cautelam to Suspend Proclamation of
Respondent Aquino, which cannot be resolved
without hearing, without violating the right of
the respondent to due process. . . .
For being void from the beginning; it is as if the order
of 15 May 1995 had not existed and could not, therefore, be
made permanent by the COMELEC en banc through its
resolution of 2 June 1995 whose dispositive portion reads in
part: "[c]onsequently, the order of suspension of the
respondent should he obtain the winning number of votes,
issued by this Commission on 15 May 1995 is now made
permanent."
Absent a valid finding before the election or after the
canvass of election returns that the evidence of the petitioner's
guilt or ineligibility is strong, the COMELEC should not have
suspended the proclamation of the petitioner. After the
completion of the canvass the petitioner should have been
proclaimed.
This case then must be distinguished from that
of Imelda Romualdez-Marcos vs. Commission on Elections, G.R.
No. 119976, where the COMELEC en banc affirmed before the
elections, or on 7 May 1995, the Second Division's resolution of
24 April 1995 disqualifying Mrs. Marcos.
Accordingly, the order of 15 May 1995 and the
resolution of 2 June 1995 of the COMELEC en banc must be
annulled and set aside, and the COMELEC, through its City
Board of Canvassers of Makati, must be ordered to immediately
proclaim the petitioner, without prejudice to the right of his
opponents to file a petition for quo warranto with the House of
Representatives Electoral Tribunal, which is the sole judge of all
contests relating to the election, returns and qualifications of
the Members of the House of Representatives (Section 17,
Article VI, Constitution).
In view of the foregoing, a disquisition on the merits of
the ground for the petitioner's disqualification will no longer be
proper. cdlex
I vote to GRANT the instant petition, to ANNUL and SET
ASIDE the challenged order and resolution of the Commission
on Elections en banc, and to DIRECT the Board of Canvassers of
Makati City to reconvene and proclaim the petitioner as the
winning candidate, without prejudice on the part of any
aggrieved party to file the appropriate action in the House of
Representatives Electoral Tribunal.
Romero andBellosillo, JJ ., concur. Llibris
VITUG, J ., separate opinion:
I find what I would consider as the relevant issues in this petition as
similar in almost all material respects to those obtaining in G.R. No.
119976 (Imelda Romualdez-Marcos vs.Commission on Elections and
Cirilo Roy Montejo). Let me then here just reiterate what I have
there said in my separate opinion.
The case at bench deals with explicit Constitutional mandates.
The Constitution is not a pliable instrument. It is a bedrock in our
legal system that sets up ideals and directions and render steady our
strides hence. It only looks back so as to ensure that mistakes in the
past are not repeated. A compliant transience of a constitution
belittles its basic function and weakens its goals. A constitution may
well become outdated by the realities of time. When it does, it must
be changed but while it remains, we owe it respect and allegiance.
Anarchy, open or subtle, has never been, nor must it ever be, the
answer to perceived transitory needs, let alone societal attitudes, or
the Constitution might lose its very essence.
Constitutional provisions must be taken to be
mandatory in character unless, either by express statement or
by necessary implication, a different intention is manifest
(see Marcelino vs. Cruz, 121 SCRA 51).
The two provisions initially brought to focus are
Section 6 and Section 17 of Article VI of the fundamental law.
These provisions read:
"SECTION 6. No person shall be a Member of the
House of Representatives unless he is a natural-
born citizen of the Philippines and, on the day of
the election, is at least twenty-five years of age,
able to read and write, and, except the party-list
representatives, a registered voter in the district
in which he shall be elected, and a resident
thereof for a period of not less than one year
immediately preceding the day of the election."
"SECTION 17. 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 the House of Representatives,
as the case may be, who shall be chosen on the
basis of proportional representation from the
political parties and the parties or organizations
registered under the party-list system
represented therein. The senior Justice in the
Electoral Tribunal shall be its Chairman."
The Commission on Elections (the "COMELEC") is
constitutionally bound to enforce and administer "all laws and
regulations relative to the conduct of election . . ." (Art. IX, C,
Sec. 2, Constitution) that, there being nothing said to the
contrary, should include its authority to pass upon the
qualification and disqualification prescribed by law
ofcandidates to an elective office. Indeed, pre-proclamation
controversies are expressly placed under the COMELEC's
jurisdiction to hear and resolve (Art. IX, C, Sec. 3, Constitution).
The matter before us specifically calls for the
observance of the constitutional one-year residency
requirement. This issue (whether or not there is here such
compliance), to my mind, is basically a question of fact or at
least inextricably linked to such determination. The findings and
judgment of the COMELEC, in accordance with the long
established rule and subject only to a number of exceptions
under the basic heading of "grave abuse of discretion," are not
reviewable by this Court.
I do not find much need to do a complex exercise on
what seems to me to be a plain matter. Generally, the term
"residence" has a broader connotation that
meanpermanent (domicile), official (place where one's official
duties may require him to stay) or temporary (the place where
he sojourns during a considerable length of time). For civil law
purposes, i.e., as regards the exercise of civil rights and the
fulfillment of civil obligations, the domicile of a natural person is
the place of his habitual residence (see Article 50, Civil Code). In
election cases, the controlling rule is that heretofore announced
by this Court in Romualdez vs. Regional Trial Court, Branch
7, Tacloban City (226 SCRA 408, 409); thus:
"In election cases, the Court treats domicile and
residence as synonymous terms, thus: '(t)he
term 'residence' as used in the election law is
synonymous with 'domicile,' which imports not
only an intention to reside in a fixed place but
also personal presence in that place, coupled
with conduct indicative of such intention.'
'Domicile' denotes a fixed permanent residence
to which when absent for business or pleasure,
or for like reasons, one intends to return. . . .
Residence thus acquired, however, may be lost
by adopting another choice of domicile. In
order, in turn, to acquire a new domicile by
choice, there must concur (1) residence or
bodily presence in the new locality, (2) an
intention to remain there, and (3) an intention
to abandon the old domicile. In other words,
there must basically be animus
manendi coupled with animus non revertendi.
The purpose to remain in or at the domicile of
choice must be for an indefinite period of time;
the change of residence must be voluntary; and
the residence at the place chosen for the new
domicile must be actual."
Using the above tests, I am not convinced that we can charge
the COMELEC with having committed grave abuse of discretion
in its assailed resolution.
The COMELEC's jurisdiction, in the case of congressional elections,
ends when the jurisdiction of the Electoral Tribunal concerned
begins. It signifies that the protestee must have theretofore been
duly proclaimed and has since become a "member" of the Senate or
the House of Representatives. The question can be asked on
whether or not the proclamation of a candidate is just a ministerial
function of the Commission on Elections dictated solely on the
number of votes cast in an election exercise. I believe, it is not. A
ministerial duty is an obligation the performance of which, being
adequately defined, does not allow the use of further judgment or
discretion. The COMELEC, in its particular case, is tasked with the
full responsibility of ascertaining all the facts and conditions such as
may be required by law before a proclamation is properly done. LLpr
The Court, on its part, should, in my view at least,
refrain from any undue encroachment on the ultimate exercise
of authority by the Electoral Tribunals on matters which, by no
less than a constitutional fiat, are explicitly within their
exclusive domain. The nagging question, if it were otherwise,
would be the effect of the Court's peremptory pronouncement
on the ability of the Electoral Tribunal to later come up with its
own judgment in a contest "relating to the election, returns and
qualification" of its members.
Prescinding from all the foregoing, I should like to next
touch base on the applicability to this case of Section 6
of Republic Act No. 6646, in relation to Section 72 of Batas
Pambansa Blg. 881, each providing thusly:
REPUBLIC ACT NO. 6646
"xxx xxx xxx
"SECTION 6. Effect of Disqualification Case. —
Any candidate who has been declared by final
judgment to be disqualified shall not be voted
for, and the votes cast for him shall not be
counted. If for any reason a candidate is not
declared by final judgment before an election to
be disqualified and he is voted for and receives
the winning number of votes in such election,
the Court or Commission shall continue with the
trial and hearing of the action, inquiry or protest
and, upon motion of the complainant or any
intervenor, may during the pendency thereof
 order the suspension of the proclamation of and Bellosillo were on official leave). For easy reference, let me "'. . . it would be extremely
such candidate whenever the evidence of his quote from the first Labo decision: repugnant to the basic
guilt is strong." "Finally, there is the question of whether or not concept of the
BATAS PAMBANSA BLG. 881 the private respondent, who filed the quo constitutionally guaranteed
"xxx xxx xxx warranto petition, can replace the petitioner as right to suffrage if a
mayor. He cannot. The simple reason is that as candidate who has not,
"SECTION 72. Effects of disqualification cases acquired the majority or
and priority. — The Commission and the courts he obtained only the second highest number of
votes in the election, he was obviously not the plurality of votes is
shall give priority to cases of disqualification by
choice of the people of Baguio City. proclaimed a winner and
reason of violation of this Act to the end that a
imposed as the
final decision shall be rendered not later than representative of a
seven days before the election in which the "The latest ruling of the Court on this
constituency, the majority
disqualification is sought. issue is Santos v. Commission on Elections, (137
of which have positively
"Any candidate who has been declared by final SCRA 740) decided in 1985. In that case, the declared through their
judgment to be disqualified shall not be voted candidate who placed second was proclaimed
ballots that they do not
for, and the votes cast for him shall not be elected after the votes for his winning rival, who
choose him.
counted. Nevertheless, if for any reason, a was disqualified as a turncoat and considered a
non-candidate, were all disregard as stray. In 'Sound policy dictates that
candidate is not declared by final judgment public elective offices are
before an election to be disqualified, and he is effect, the second placer won by default. That
decision was supported by eight members of filled by those who have
voted for and receives the winning number of
the Court then, (Cuevas, J., ponente, with received the highest
votes in such election, his violation of the
Makasiar, Concepcion, Jr., Escolin, Relova, De la number of votes cast in the
provisions of the preceding sections shall not election for that office, and
prevent his proclamation and assumption to Fuente, Alampay and Aquino, JJ., concurring.)
with three dissenting (Teehankee, Acting C.J., it is a fundamental idea in all
office."
Abad Santos and Melencio-Herrera, JJ.) and republican forms of
I realize that in considering the significance of the law, it may be government that no one can
preferable to look for not so much the specific instances they another two reserving their vote. (Plana and
Gutierrez, Jr., JJ.) One was on official leave. be declared elected and no
ostensibly would cover as the principle they clearly convey. Thus, I measure can be declared
will not scoff at the argument that it should be sound to say that (Fernando, C.J.)
carried unless he or it
votes cast in favor of the disqualified candidate, whenever "Re-examining that decision, the Court finds, receives a majority or
ultimately declared as such, should not be counted in his or her and so holds, that it should be reversed in favor
plurality of the legal votes
favor and must accordingly be considered to be stray votes. The of the earlier case of Geronimo v. Ramos, (136
cast in the election. (20
argument, nevertheless, is far outweighed by the rationale of the SCRA 435) which represents the more logical Corpus Juris 2nd, S 243, p.
now prevailing doctrine first enunciated in the case of Topacio and democratic rule. That case, which reiterated
676.)
vs. Paredes (23 Phil. 238 [1912]) which, although later abandoned the doctrine first announced in 1912 in Topacio
v. Paredes, (23 Phil. 238) was supported by ten 'The fact that the candidate
in Ticzon vs. Comelec (103 SCRA 687 [1981]),
members of the Court, (Gutierrez, Jr., ponente, who obtained the highest
and Santos vs.COMELEC (137 SCRA 740 [1985]), was restored, along number of votes is later
with the interim case of Geronimo vs. Ramos (136 SCRA 435 [1985]), with Teehankee, Abad Santos, Melencio-
Herrera, Plana, Escolin, Relova, De la Fuente, declared to be disqualified
by the Labo (176 SCRA 1 [1989]), Abella (201 SCRA 253
Cuevas and Alampay, JJ., concurring) without or not eligible for the office
[1991]), Labo (211 SCRA 297 [1992]) and, most recently, Benito (235
any dissent, although one reserved his vote, to which he was elected
SCRA 436 [1994]) rulings. Benito vs. Comelec was a unanimous does not necessarily entitle
decision penned by Justice Kapunan and concurred in by Chief (Makasiar, J.) another took no part, (Aquino, J.)
and two others were on leave. (Fernando, C.J. the candidate who obtained
Justice Narvasa, Justices Feliciano, Padilla, Bidin, Regalado, Davide,
and Concepcion, Jr., J.) There the Court held: the second highest number
Romero, Melo, Quiason, Puno, Vitug and Mendoza (Justices Cruz of votes to be declared the
 winner of the elective office.
The votes cast for a dead,
disqualified, or non-eligible
person may not be valid to
vote the winner into office
or maintain him there.
However, in the absence of
a statute which clearly
asserts a contrary political
and legislative policy on the
matter, if the votes were
cast in the sincere belief
that the candidate was alive,
qualified, or eligible, they
should not be treated as
stray, void or meaningless.'
(at pp. 20-21)"
Accordingly, I am constrained to vote for the dismissal of the
petition.
MENDOZA, J ., separate opinion:
For the reasons expressed in my separate opinion in
the companion case, G.R. No. 119976, Imelda Romualdez-
Marcos v. Commission on Elections, I am of the opinion that the
Commission on Elections has no jurisdiction over petitions for
disqualification of candidates based on alleged ineligibility for
the office to which they seek election.
The May 15, 1995 resolution of the COMELEC en banc,
suspending the proclamation of petitioner should he obtain the
highest number of votes for Representative of the Second
District of Makati, Metro Manila, purports to have been issued
pursuant to § 6 of R.A. No. 6646. This provision authorizes the
COMELEC to order the suspension of the proclamation
"whenever the evidence of his guilt is strong." As explained in
my separate opinion in G.R. No. 119976, however, this
provision refers to proceedings under § 68 of the Omnibus
Election Code which provides for the disqualification of
candidates found guilty of using what in political parlance have
been referred to as "guns, goons or gold" to influence the
outcome of elections. Since the disqualification of petitioner in
this case was not sought on this ground, the application of § 6
of R.A. No. 6646 is clearly a grave abuse of discretion on the
part of the COMELEC.
Nor may the petition to disqualify petitioner in the
COMELEC be justified under § 78 of the OEC which authorizes
the filing of a petition for the cancellation of certificates of
candidacy since such a petition may be filed "exclusively on the
ground that a material representation contained [in the
certificate] as required under Section 74 is false." There was no
allegation that in stating in his certificate of candidacy that he is
a resident of Amapola St., Palm Village, Guadalupe Viejo,
Makati, Metro Manila, petitioner made any false
representation.
For this reason, I am of the opinion that the COMELEC
had no jurisdiction over SPA No. 95-113; that its proceedings in
SPA No. 95-113, including the questioned orders, are void; and
that the qualifications of petitioner Agapito A. Aquino for the
position of Representative of the Second District of the City of
Makati may only be inquired into by the House of
Representatives Electoral Tribunal.
This conclusion makes it unnecessary for me to express
my view at this time on the question whether, in the event the
candidate who obtained the highest number of votes is
declared ineligible, the one who received the next highest
number of votes is entitled to be declared the winner.
ACCORDINGLY, I vote (1) to grant the petition in this
case and (2) to annul the proceedings of the Commission on
Elections in SPA No. 95-113, including the questioned orders,
dated May 6, 1995, May 15, 1995, and the two orders both
dated June 2, 1995, so far as they declare petitioner Agapito A.
Aquino to be ineligible for the position of Representative of the
Second District of the City of Makati and direct the City Board of
Canvassers of Makati to determine and proclaim the winner out
of the remaining qualified candidates.
Narvasa, C .J ., concurs.
||| (Aquino v. Commission on Elections, G.R. No. 120265,
[September 18, 1995], 318 PHIL 467-539)
[G.R. No. L-2821. March 4, 1949.]
JOSE AVELINO, petitioner, vs. MARIANO J.
CUENCO, respondent.
Vicente J. Francisco for petitioner.
Solicitor General Felix Angelo Bautista, Ramon
Diokno and Lorenzo M. Tañada for respondent.
Teehankee, Fernando, Sunico & Rodrigo; Vera,
Montesines & Navarro; Felixberto M. Serrano and Vicente del
Rosario as amici curiae.
SYLLABUS
1. CONSTITUTIONAL LAW; SEPARATION OF POWERS;
SUPREME COURT HAS NO JURISDICTION OVER SENATE
CONTROVERSY FOR SELECTION OF PRESIDING OFFICER. — The
subject matter of this quo warranto proceeding — to declare
petitioner the rightful President of the Philippines Senate and
oust respondent — is not within the jurisdiction of the Supreme
Court, in view of the separation of powers, the political nature
of the controversy (Alejandrino vs. Quezon 46 Phil., 83., 1) and
the constitutional grant to the Senate of the power to elect its
own president, which power should not be interfered with nor
taken over by the judiciary. The selection of the presiding
officer of the Philippine Senate affects only the senators
themselves who are at liberty at any time to choose their
officers, change or reinstate them.
2. ID.; ID.; ID.; CONSTITUTIONAL AND POLITICAL LAW;
SEPARATION OF POWERS; WHEN MAY SUPREME COURT
ASSUME JURISDICTION OVER SENATE CONTROVERSY FOR
SELECTION OF PRESIDING OFFICER. — The Supreme Court
assumed jurisdiction over this quo warranto proceeding, in the
light of events subsequent to the original resolution.
3. ID.; ID.; ID.; QUORUM OF PHILIPPINE SENATE. — The
Court held that there was a quorum in the session of the
Philippine Senate (composed of twenty-four Senators being in
the United States.
RESOLUTION
In G. R. No. L-2821, Avelino vs. Cuenco, the Court by a
vote of six justices against four resolved to deny the petition.
Without prejudice to the promulgation of a more
extended opinion, this is now written briefly to explain the
principal grounds for the denial.
The Court believes the following essential facts have
been established:
In the session of the Senate of February 18, 1949,
Senator Lorenzo M. Tañada requested that his right to speak on
the floor on the next session day, February 21, 1949, to
formulate charges against the then Senate President Jose
Avelino be reserved. His request was approved.
On February 21, 1949, hours before the opening of the
session Senator Tañada and Senator Prospero Sanidad filed
with the Secretary of the Senate a resolution enumerating
charges against the then Senate President and ordering the
investigation thereof.
Although a sufficient number of senators to constitute
a quorum were at the Senate session hall at the appointed time
(10:00 A. M.), and the petitioner was already in his office, said
petitioner delayed his appearance at the session hall until about
11:35 A. M. When he finally ascended the rostrum, he did not
immediately open the session, but instead requested from the
Secretary a copy of the resolution submitted by Senators
Tañada and Sanidad and in the presence of the public he read
slowly and carefully said resolution, after which he called and
conferred with his colleagues Senators Francisco and Tirona.
Shortly before 12:00 noon, due to the insistent
requests of Senators Sanidad and Cuenco that the session be
opened, the petitioner finally called the meeting to order.
Except Senator Sotto who was confined in a hospital and
Senator Confesor who is in the United States, all the Senators
were present.
Senator Sanidad, following a long established practice,
moved that the roll call be dispensed with, but Senator Tirona
opposed said motion, obviously in pursuance of a premeditated
plan of petitioner and his partisans to make use of dilatory
tactics to prevent Senator Tañada from delivering his privilege
speech. The roll was called.
Senator Sanidad next moved, as is the usual practice,
to dispense with the reading of the minutes, but this motion
was likewise opposed by Senators Tirona and David, evidently,
again, in pursuance of the above-mentioned conspiracy.
Before and after the roll call and before and after the
reading of the minutes, Senator Tañada repeatedly stood up to
claim his right to deliver his one-hour privilege speech but the
petitioner, then presiding, continuously ignored him; and when
after the reading of the minutes, Senator Tañada insisted on
being recognized by the Chair, the petitioner announced that he
would order the arrest of any senator who would speak without
being previously recognized by him, but all the while, tolerating
the actions of his follower, Senator Tirona, who was
continuously shouting at Senator Sanidad "Out of order!"
everytime the latter would ask for recognition of Senator
Tañada.
At this juncture, some disorderly conduct broke out in
the Senate gallery, as if by pre-arrangement. At about this same
time Senator Pablo Angeles David, one of the petitioner's
followers, was recognized by petitioner, and he moved for
adjournment of session, evidently, again, in pursuance of the
above-mentioned conspiracy to muzzle Senator Tañada.
Senator Sanidad registered his opposition to the
adjournment of the session and this opposition was seconded
by herein respondent who moved that the motion of
adjournment be submitted to a vote. Another commotion
ensued.
Senator David reiterated his motion for adjournment
and herein respondent also reiterated his opposition to the
adjournment and again moved that the motion of Senator
David be submitted to a vote.
Suddenly, the petitioner banged the gavel and
abandoning the Chair hurriedly walked out of the session hall
followed by Senators David, Tirona, Francisco, Torres, Magalona
and Clarin, while the rest of the senators remained. Whereupon
Senator Melecio Arranz, Senate President Pro-tempore, urged
by those senators present took the Chair and proceeded with
the session.
Senator Cabili stood up, and asked that it be made of
record — it was so made — that the deliberate abandonment
of the Chair by the petitioner, made it incumbent upon Senate
President Pro-tempore Arranz and the remaining members of
the Senate to continue the session in order not to paralyze the
functions of the Senate. Senate President Pro-tempore Arranz
then suggested that respondent be designated to preside over
the session, which suggestion was carried unanimously. The
respondent thereupon took the Chair.
Upon motion of Senator Arranz, which was approved,
Gregorio Abad was appointed Acting Secretary, because the
Assistant Secretary, who was then acting as Secretary, had
followed the petitioner when the latter abandoned the session.
 Senator Tañada, after being recognized by the Chair,
was then finally able to deliver his privilege speech. Thereafter
Senator Sanidad read aloud the complete text of said
Resolution (No. 68), and submitted his motion for approval
thereof and the same was unanimously approved.
With Senate President Pro-Tempore Arranz again
occupying the Chair, after the respondent had yielded it to him,
Senator Sanidad introduced Resolution No. 67, entitled
"Resolution declaring vacant the position of the President of the
Senate and designating the Honorable Mariano Jesus Cuenco
Acting President of the Senate." Put to a vote, the said
resolution was unanimously approved.
Senator Cuenco took the oath.
The next day the President of the Philippines
recognized the respondent as acting president of the Philippine
Senate.
By his petition in this quo warranto proceeding
petitioner asks the Court to declare him the rightful President of
the Philippine Senate and oust respondent.
The Court has examined all principal angles of the
controversy and believes that these are the crucial points:
a. Does the Court have jurisdiction over the subject-
matter?
b. If it has, were resolutions Nos. 68 and 67 validly
approved?
c. Should the petition be granted?
To the first question, the answer is in the negative, in
view of the separation of powers, the political nature of the
controversy (Alejandrino vs. Quezon, 46 Phil., 83; Vera vs.
Avelino, 77 Phil., 192; Mabanag vs. Lopez Vito, 78 Phil., 1) and
the constitutional grant to the Senate of the power to elect its
own president, which power should not be interfered with, nor
taken over, by the judiciary. We refused to take cognizance of
the Vera case even if the rights of the electors of the suspended
senators were allegedly affected without any immediate
remedy. A fortiori we should abstain in this case because the
selection of the presiding officer affects only the Senators
themselves who are at liberty at any time to choose their
officers, change or reinstate them. Anyway, if, as the petition
must imply to be acceptable, the majority of the Senators want
petitioner to preside, his remedy lies in the Senate Session Hall
— not in the Supreme Court.
The Court will not sally into the legitimate domain of
the Senate on the plea that our refusal to intercede might lead
into a crisis, even a revolution. No state of things has been
proved that might change the temper of the Filipino people as a
peaceful and law-abiding citizens. And we should not allow
ourselves to be stampeded into a rash action inconsistent with
the calm that should characterize judicial deliberations.
The precedent of Werts vs. Rogers does not apply,
because among other reasons, the situation is not where two
sets of senators have constituted themselves into two
senates actually functioning as such, (as in the said Werts case),
there being no question that there is presently one Philippine
Senate only. To their credit be it recorded that petitioner and
his partisans have not erected themselves into another Senate.
The petitioner's claim is merely that respondent has not been
duly elected in his place in the same one Philippine Senate.
It is furthermore believed that the recognition
accorded by the Chief Executive to the respondent makes it
adviseable, more than ever, to adopt the hands-off policy wisely
enunciated by this Court in matters of similar nature.
The second question depends upon these sub-
questions. (1) Was the session of the so-called rump Senate a
continuation of the session validly assembled with twenty two
Senators in the morning of February 21, 1949?; (2) Was there a
quorum in that session? Mr. Justice Montemayor and Mr.
Justice Reyes deem it useless, for the present to pass on these
questions once it is held, as they do, that the Court has no
jurisdiction over the case. What follows is the opinion of the
other four on those subquestions.
Supposing that the Court has jurisdiction, there is
unanimity in the view that the session under Senator Arranz
was a continuation of the morning session and that a minority
of ten senators may not, by leaving the Hall, prevent the other
twelve senators from passing a resolution that met with their
unanimous endorsement. The answer might be different had
the resolution been approved only by ten or less.
If the rump session was not a continuation of the
morning session, was it validly constituted? In other words, was
there the majority required by the Constitution for the
transaction of the business of the Senate? Justices Paras, Feria,
Pablo and Bengzon say there was, firstly because the minutes
say so, secondly, because at the beginning of such session there
were at least fourteen senators including Senators Pendatun
and Lopez, and thirdly because in view of the absence from the
country of Senator Tomas Confesor twelve senators constitute
a majority of the Senate of twenty three senators. When
the Constitution declares that a majority of "each House" shall
constitute a quorum, "the House" does not mean "all" the
members. Even a majority of all the members constitute "the
House". (Missouri Pac. vs. Kansas, 63 Law ed. [U. S.], p. 239).
There is a difference between a majority of "all the members of
the House" and a majority of "the House", the latter requiring
less number than the first. Therefore an absolute majority (12)
of all the members of the Senate less one (23), constitutes
constitutional majority of the Senate for the purpose of a
quorum. Mr. Justice Pablo believes furthermore that even if the
twelve did not constitute a quorum, they could have ordered
the arrest of one, at least, of the absent members; if one had
been so arrested, there would be no doubt Quorum then, and
Senator Cuenco would have been elected just the same
inasmuch as there would be eleven for Cuenco, one against and
one abstained.
In fine, all the four justices agree that the Court being
confronted with the practical situation that of the twenty three
senators who may participate in the Senate deliberations in the
days immediately after this decision, twelve senators will
support Senator Cuenco and, at most, eleven will side with
Senator Avelino, it would be most injudicious to declare the
latter as the rightful President of the Senate, that office being
essentially one that depends exclusively upon the will of the
majority of the senators, the rule of the Senate about tenure of
the President of that body being amendable at any time by that
majority. And at any session hereafter held with thirteen or
more senators, in order to avoid all controversy arising from the
divergence of opinion here about quorum and for the benefit of
all concerned, the said twelve senators who approved the
resolutions herein involved could ratify all their acts and
thereby place them beyond the shadow of a doubt.
As already stated, the six justices hereinabove
mentioned voted to dismiss the petition. Without costs.
Separate Opinions
MORAN, C. J., concurring in part and dissenting in part:
I believe that this Court has jurisdiction over the
case. 1 The present crisis in the Senate is one that imperatively
calls for the intervention of this Court.
 Respondent Cuenco cannot invoke the doctrine of
noninterference by the courts with the Senate because the legal
capacity of his group of twelve senators to act as a senate is
being challenged by petitioner on the ground of lack of quorum
(Attorney General ex rel. Werts vs. Rogers et al., 28 Atl. 726; 23
L. R. A., 354). If this group is found sufficient to constitute a
quorum under the Constitution, then its proceedings should be
free from interference. But if it is not possessed of a valid
quorum, then its proceedings should be voided.
The issue as to the legal capacity of the Cuenco group
to act as a senate cannot be considered a political question the
determination of which devolves exclusively upon the Senate.
That issue involves a constitutional question which cannot be
validly decided either by the Cuenco group or by the Avelino
group separately, for, if the Cuenco group has no quorum, the
Avelino group has decidedly less. And for obvious reasons, the
two groups cannot act together inasmuch as the members of
the Avelino group, possibly to avoid trouble, do not attend the
sessions presided by the respondent believing as they do that
the latter was illegally elected. Upon the other hand, the
Cuenco group believing itself as possessing the constitutional
quorum and not desiring to make any semblance of admission
to the contrary, does not find it convenient to compel the
attendance of any senator of the Avelino group. Then the
question arises — who will decide the conflict between the two
groups? This anomalous situation will continue while the
conflict remains unsettled, and the conflict will remain
unsettled while this Court refuses to intervene. In the
meantime, the validity of all the laws, resolutions and other
measures which may be passed by the Cuenco group will be
open to doubt because of an alleged lack of quorum in the body
which authored them. This doubt may extend, in diverse forms,
to the House of Representatives and to the other agencies of
the government such as the Auditor General's Office. Thus, a
general situation of uncertainty, pregnant with grave dangers, is
developing into confusion and chaos with severe harm to the
nation. This situation may, to a large extent, be stopped and
constitutional processes may be restored in the Senate if only
this Court, as the guardian of the Constitution, were to
pronounce the final word on the constitutional mandate
governing the existing conflict between the two groups. And, in
my opinion, under the present circumstances, this Court has no
other alternative but to meet the challenge of the situation
which demands the utmost of judicial temper and judicial
statesmanship. As hereinbefore stated, the present crisis in the
Senate is one that imperative]y calls for the intervention of this
Court.
As to the legality of respondent's election as acting
President of the Senate, 2 I firmly believe that although
petitioner's adjournment of the session of February 21, 1949,
was illegal, such illegality cannot be countered with another
illegality. The session wherein respondent was elected as acting
President of the Senate was illegal because when Senator
Mabanag raised the question of a quorum and the roll was
called, only twelve senators were present. In the Philippines
there are twenty-four senators, and therefore, the quorum
must be thirteen. The authorities on the matter are clear.
"The constitution of our state ordains
that a majority of each house shall constitute a
quorum. The house of representatives consists
of 125 members; 63 is a majority and a quorum.
When a majority or quorum are present, the
house can do business; not otherwise. A
quorum possessed all the powers of the whole
body, a majority of which quorum must, of
course, govern." (In re Gunn, 50 Kan., 155; 32 P.,
470, 476; 19 L. R. A., 519.)
"Quorum as used in U. S. C. A. Const.
Art. 4, sec. 8, providing that a majority of each
house shall constitute a quorum to do business,
is, for the purposes of the Assembly, not less
than the majority of the whole number of which
the house may be composed. Vacancies from
death, resignation or failure to elect cannot be
deducted in ascertaining the quorum." (Opinion
of Justices, 12 Fla. 653.)
"The general rule is that a quorum is a
majority of all the members and a majority of
this majority may legislate and do the work of
the whole." (State vs. Ellington 117 N. C., 158;
23 S. E., 250-252, 30 L. R. A., 532; 53 Am. SR.,
580.)
". . . a majority of each House is
necessary to transact business, and a minority
cannot transact business, this view being in
keeping with the provision of
the Constitutionpermitting a smaller number
than a quorum to adjourn from day to day
merely." (Earp vs. Riley, 40 Okl., 340; 138, P.
164; Ralls vs. Wyand, 40 Okl., 323; 138 P. 158.)
"The Constitution provides that 'a
majority of each (house) shall constitute a
quorum to do business.' In other words, when a
majority are present the House is in a position
to do business. Its capacity to transact business
is then established, created by the mere
presence of a majority, and does not depend
upon the disposition or assent or action of any
single member or faction of the majority
present. All that the Constitution requires is the
presence of a majority, and when that majority
are present, the power of the House arises." (U.
S. vs. Ballin, Joseph & Co., 36 Law ed. 321, 325.)
"If all the members of the select body or committee, or
if all the agents are assembled, or if all have been duly notified,
and the minority refuse, or neglect to meet with the others, a
majority of those present may act, provided those present
constitute a majority of the whole number. In other words, in
such case, a major part of the whole is necessary to constitute a
quorum, and a majority of the quorum may act. If the major
part withdraw so as to leave no quorum, the power of the
minority to act is, in general, considered to cease." (1 Dillon,
Mun. Corp. 4th ed., sec. 283.) 3 Therefore, without prejudice to
writing a more extensive opinion, if necessary, I believe that
respondent Mariano J. Cuenco has not been legally elected as
acting President of the Senate. It is true that respondent
Cuenco, in fact, must be the Senate President because he
represents the majority of the members now present in Manila,
and, at any new session with a quorum, upon the present
senatorial alignment, he will be elected to said office. But
precisely because he is now the master of the situation, he
must win his victory in accordance with the Constitution. It is
absolutely essential in the adolescent life of our Republic to
insist, strictly and uncompromisingly, on the democratic
principles consecrated in our Constitution. By such efforts alone
can we insure the future of our political life as a republican
form of government under the sovereignty of
a Constitution from being a mockery.
The situation now in this Court is this — there are four
members who believe that there was no quorum in
respondent's election as against four other members who
believe that there was such quorum. Two members declined to
render their opinion on the matter because of their refusal to
assume jurisdiction. And, one member is absent from the
Philippines. Thus, the question of whether or not respondent
has been legally elected is, to say the least, doubtful in this
Court under the present conditions. This doubt, which taints the
validity of all the laws, resolutions and other measures that the
Cuenco group has passed and may pass in the future, can easily
be dispelled by them by convening a session wherein thirteen
senators are present and by reiterating therein all that has been
previously done by them. This is a suggestion coming from a
humble citizen who is watching with a happy heart the
movements of this gallant group of prominent leaders
campaigning for a clean and honest government in this dear
country of ours.
PERFECTO, J., dissenting:
In these quo warranto proceedings the question as to
who among the parties is entitled to hold the position of
President of the Senate is in issue.
There is no question that up to Monday, February 21,
1949, at the time the controversial incidents took place,
petitioner Jose Avelino was the rightful occupant of the
position. The litigation has arisen because of the opposing
contentions as to petitioner's ouster and as to respondent's
election as acting President of the Senate, on February 21,
1949.
Petitioner contends that the proceedings in which a
resolution was passed declaring the position of President of the
Senate vacant and electing respondent Mariano J. Cuenco as
acting President of the Senate were illegal because, at the time,
the session for said day has been properly adjourned, and the
twelve Senators who remained in the session hall had no right
to convene in a rump session, and said rump session lacked
quorum, while respondent contends that the session which was
opened by petitioner had not been legally adjourned, the
Senators who remained in the session hall had only continued
the same session, and there was quorum when the position of
the President of the Senate was declared vacant and when
respondent was elected as acting President of the Senate, to fill
the vacated position.
Petitioner's version of the facts, as alleged in his
petition, is to the effect that on Monday, February 21, 1949, at
the time petitioner opened the session in the Senate session
hall, there were twenty two Senators present who answered
the roll call: Vicente J. Francisco, Fernando Lopez, Emiliano Tria
Tirona, Pablo Angeles David, Salipada Pendatum, Ramon Torres,
Enrique Magalona, Carlos Tan, Olegario Clarin, Melecio Arranz,
Mariano Cuenco, Prospero Sanidad, Lorenzo Tañada, Vicente
Madrigal, Geronima Pecson, Camilo Osias, Carlos Garcia, Ramon
Diokno, Jose Vera, Tomas Cabili, Alejo Mabanag, and the
petitioner Jose Avelino. While the minutes of the preceding
session was being read the crowd of more than 1,000 people
who entered the Senate hall to witness the session, became
unruly, the repeated efforts of petitioner as well as the
sergeant-at-arms and other peace officers to maintain peace
and order notwithstanding. Fights and commotions ensued and
several shots were fired among the audience. The Senators who
spoke could not be heard because the spectators would either
shout to drown their voices or would demand that some other
Senators should take the floor and be recognized by petitioner.
Pandemonium reigned and it was impossible for the Senate to
proceed with its deliberations free from undue pressure and
without grave danger to its integrity as a body and to the
personal safety of the members thereof. Senator Pablo Angeles
David moved for adjournment until Thursday, February 24,
1949. There being no objection, petitioner adjourned the
session until February 24, 1949. Thereupon petitioner and nine
other Senators, namely, Vicente J. Francisco, Fernando Lopez,
Emiliano Tria Tirona, Pablo Angeles David, Salipada Pendatun,
Ramon Torres, Enrique Magalona, Carlos Tan, and Olegario
Clarin left the session hall. Senator Melecio Arranz, President
Pro- Tempore of the Senate, went up the rostrum and,
assuming the presidency of the chamber, convened the
remaining twelve Senators into a rump session, in which a
resolution was passed declaring vacant the position of the
President of the Senate and electing respondent as President of
the Senate. Thereupon respondent pretended to assume the
office of President of the Senate and continues to pretend to
assume said office.
Petitioner alleges five grounds to claim that
respondent is usurping or illegally exercising the office of the
President of the Senate: 1. Petitioner had adjourned the session
of the Senate, the adjournment having been properly moved
and, without objection, favorably acted upon; 2. Petitioner had
full power to adjourn the session even without motion under
Chapter II, Section 8, paragraph (e) of the Rules of the Senate;
3. The ordinary daily session having been adjourned, no other
session could be called in the Senate on the same day; 4. The
President Pro-tempore had no authority to assume the
presidency except in the cases specified in Chapter I, section 4
of the Rules of the Senate, and none of the conditions therein
mentioned obtained at the time in question; and 5. The twelve
Senators that convened in the rump session did not constitute a
quorum to do business under the Constitution and the rules of
the Senate, being less than one-half plus one of the twenty four
members of the Senate.
Respondent's version of the events as follows:
"(a) Since Friday, February 18, 1949, when Senator
Lorenzo M. Tañada announced and reserved in open session of
the Senate that on Monday, February 21, 1949, he would make
use of his one-hour privilege, it was known that formal charges
would be filed against the then Senate President, petitioner in
this case, on said date. Hours before the opening of the session
on Monday, February 21, 1949, Senators Lorenzo M. Tañada
and Prospero Sanidad registered in the Office of the Secretary
of the Senate a resolution in which serious charges were
preferred against the herein petitioner. A certified copy of said
resolution, marked as Exhibit "1" is hereto attached and made
an integral part hereof:
"(b) Although a sufficient number of senators to
constitute a quorum were at the Senate session hall at and
before 10:00 A. M., scheduled time for the session to begin, and
in spite of the fact that the petitioner was already in his office,
said petitioner deliberately delayed his appearance at the
session hall until about 11:30 A. M.;
"(c) When finally the petitioner ascended the rostrum,
he did not immediately open the session, but instead requested
from the Secretary a copy of the resolution submitted by
Senators Tañada and Sanidad and in the presence of the public
the petitioner read slowly and carefully said resolution, after
which he called and conferred with his followers, Senators
Francisco and Tirona;
"(d) Shortly before 12:00 noon, due to the insistent
requests of Senators Sanidad and Cuenco that the session be
opened, the petitioner finally called the meeting to order;
"(e) Senator Sanidad, following a practice long
established in the Senate, moved that the roll call be dispensed
with as it was evident that with the presence of all the 22
senators who could discharge their functions, there could be no
question of a quorum, but Senator Tirona opposed said motion,
evidently in pursuance of a premeditated plan and conspiracy
of petitioner and his followers to make use of all sorts of
dilatory tactics to prevent Senator Tañada from delivering his
privilege speech on the charges filed against petitioner. The roll
call affirmatively showed the presence of the following 22
Senators; Vicente J. Francisco, Fernando Lopez, Emiliano Tria
Tirona, Pablo Angeles David, Salipada Pendatun, Ramon Torres,
Enrique Magalona, Carlos Tan, Olegario Clarin, Melecio Arranz,
M. Jesus Cuenco, Prospero Sanidad, Lorenzo M. Tañada,
Vicente Madrigal, Geronima Pecson, Camilo Osias, Carlos
Garcia, Ramon Diokno, Jose Vera, Tomas Cabili, Alejo Mabanag
and Jose Avelino;
"(f) Senator Sanidad next moved, as in the usual
practice, to dispense with the reading of the minutes, but this
motion was likewise opposed by Senators Tirona and David,
evidently, again, in pursuance of the above-mentioned
conspiracy;
"(g) Before and after the roll call and before and after
the reading of the minutes, Senator Tañada repeatedly took the
floor to claim his right to deliver his one-hour privilege speech
in support of the charges against petitioner, but the latter, then
presiding, continually ignored him; and when after the reading
of the minutes, Senator Tañada insisted on being recognized by
the Chair, the petitioner announced that he would order the
arrest of any senator who would speak without being previously
recognized by him, but all the while, tolerating the antics of his
follower, Senator Tirona, who was continuously and
vociferously shouting at Senator Sanidad "Out of order! Out of
order! Out of order! . . . " everytime the latter would ask the
petitioner to recognize the right of Senator Tañada to speak.
"(h) At this juncture, some disorderly conduct broke
out in the Senate gallery, as if by prearrangement, but the
police officers present were able to maintain order. No shots
were fired among the audience, as alleged in the petition. It
was at about this same time that Senator Pablo Angeles David,
one of petitioner's followers, was recognized by petitioner, and
he moved for adjournment of the session, evidently again, in
pursuance of the abovementioned conspiracy to prevent
Senator Tañada from speaking;
"(i) Senator Sanidad registered his opposition to the
adjournment of the session and this opposition was seconded
by herein respondent who moved that the motion of
adjournment be submitted to a vote;
"(j) Senator David reiterated his motion for
adjournment and herein respondent also reiterated his
opposition to the adjournment and again moved that the
motion of Senator David be submitted to a vote;
"(k) Suddenly, the petitioner abandoned the Chair and
hurriedly walked out of the session hall.
"(l) Without the session being adjourned, Senators
David, Tirona, Francisco, Torres, Magalona, and Clarin followed
the petitioner out of the session hall, while the rest of the
senators, as afore-named in sub-paragraph (e) hereof,
remained to continue the session abandoned by petitioner,
whereupon Senator Melecio Arranz, as Senate Pro- tempore,
took the Chair and proceeded with the session.
"(m) Senator Cabili took the floor and delivered a
speech, whereby he asked that it be made of record — as it was
in fact so made — that the deliberate abandonment of the
Chair by the petitioner, made it incumbent upon Senate
President Pro-Tempore Arranz and the remaining members of
the Senate to continue the session in order not to impede and
paralyze the functions of the Senate;
"(n) Senate President Pro-tempore Arranz then
suggested that respondent be designated to preside over the
session, which suggestion was carried unanimously. The
respondent thereupon took the Chair.
"(o) Upon motion of Senator Arranz, which was carried
unanimously, Gregorio Abad was appointed Acting Secretary, as
the Assistant Secretary, who was then acting as Secretary, had
followed the petitioner when the latter abandoned the session;
"(p) Senator Tañada, after being recognized by the
Chair, was then finally able to deliver his privilege speech, which
took more than two hours, on the charges against the
petitioner contained in the Resolution, attached hereto as
Exhibit "1", and moved for the immediate consideration and
approval of said Resolution. Senator Sanidad reiterated this
motion, after having first read aloud the complete text of said
Resolution, and thereafter the same was unanimously
approved;
"(q) With Senate President Pro-Tempore Arranz again
occupying the Chair, after the respondent had yielded it to him,
Senator Sanidad introduced Resolution No. 67, entitled
"Resolution declaring vacant the position of the President of the
Senate and designating the Honorable Mariano Jesus Cuenco
Acting President of the Senate," a copy of which is herewith
attached and made an integral part hereof as Exhibit "2". Put to
a vote, the said Resolution was unanimously approved,
respondent having abstained from voting;
"(r) The respondent having been duly elected as Acting
President of the Senate, immediately took is oath of Office in
open session, before Senate President Pro-Tempore Melecio
Arranz, and since then, has been discharging the duties and
exercising the rights and prerogatives appertaining to said
office;
"(s) From the allegations of the petition, it clearly
appears that the petitioner had only nine senators in his favor
and twelve, decidedly against him, which fact negates the
petitioner's assertion that there was no opposition to the
motion for adjournment submitted by Senator David;
"(t) From the beginning of the session of February 21,
1949, to the alleged adjournment, it was evidently and
manifestly the purpose of the petitioner to deprive Senator
Tañada of his right to take the floor and to speak on the charges
filed against said petitioner; that said petitioner resorted to all
means to deprive the Senate of its right and prerogative to
deliberate on Senate Resolution No. 68, Exhibit "I", and that
when the petitioner realized that a majority of the Senators
who were present in the said session was ready to approve said
resolution, the petitioner abandoned the session;
"(u) The minutes of the session held on February 21,
1949, a copy of which is hereto attached and made an integral
part hereof as Exhibit "3", show that the petitioner illegally
abandoned the Chair while the Senate was in session and that
the respondent has been duly elected Acting Senate President
in accordance with the provisions of the Constitution."
Respondent alleges further that Senator David's
motion for adjournment was objected to and was not
submitted to a vote and, therefore, could not have been
carried; that it is not true that petitioner had the power to
adjourn the session even without motion; that the session
presided over, first by petitioner and then by respondent, was
orderly, no Senator having been threatened or intimidated by
anybody, and after petitioner abandoned the session continued
peacefully until its adjournment at 4:40 P.M.; that there was
only one session held on said date; that petitioner's
abandonment of the Chair in the face of an impending ouster
therefrom constituted a temporary incapacity entitling the
Senate President Pro-tempore to assume the Chair; that there
was quorum as, with the absence of Senator Tomas Confesor,
who was in the U.S. and of Senator Vicente Sotto, who was
seriously ill and confined in the Lourdes Hospital, the presence
of at least twelve senators constitutes a quorum; that, despite
petitioner's claim that he adjourned the session to February 24,
1949, convinced that he did not count with the majority of the
Senators and not wanting to be investigated by the special
investigating committee regarding the grave charges preferred
against him, the petitioner deliberately did not appear at the
session hall on said date.
Three special defenses are advanced by respondent:
(a) Lack of jurisdiction of the Supreme Court; (b) No cause of
action as there are only nine Senators who had recognized
petitioner's claim against twelve Senators who have made
patent their loss of confidence in him by voting in favor of his
ouster; and (c) The object of the action is to make the Supreme
Court a mere tool of a minority group of ten Senators to impose
petitioner's will over and above that of the twelve other
members of the Senate, to entrench petitioner in power.
In impugning the jurisdiction of the Supreme Court,
respondent contends that the present case is not justiciable,
because it involves a purely political question, the
determination of which by the Senate is binding and conclusive
upon the courts (Alejandro vs. Quezon, 43 Phil., 83; Vera vs.
Avelino, 77 Phil., 192); respondent has been recognized as
acting President of the as acting President of the Senate by the
President of the Philippines and said recognition is binding and
conclusive on the courts (Barcelon vs. Baker, 5 Phil., 87;
Severino vs. Governor-General, 16 Phil., 366); the Senate is the
only body that can determine from time to time who shall be its
President and petitioner's only recourse lies in said body; and
this Court's action in entertaining the petition would constitute
an invasion and an encroachment upon the powers, rights and
prerogatives solely and exclusively appertaining to Congress, of
which the Senate is a branch.
Upon the conflicting claims of the parties as to the real
events, this Court authorized the reception of evidence. Before
passing to consider and to weigh said evidence so as to
determine the true events, it is only logical that we should first
pass upon the question of jurisdiction raised by respondent.
In attacking the jurisdiction of the Supreme Court
respondent alleges, as first ground, that the present
controversy is not justiciable in nature, involving, as it does, a
purely political question, the determination of which by the
political agency concerned, the Senate, is binding and
conclusive on the courts.
The contention is untenable. In the first place, it begs
question. It assumes as premise that the question has been
determined by the Senate, when the two opposing parties claim
that each one of them represents the will of the Senate, and if
the controversy should be allowed to remain unsettled, it
would be impossible to determine who is right and who is
wrong, and who really represents the Senate.
The questions raised in the petition, although political
in nature, are justiciable because they involve the enforcement
of legal precepts, such as the provisions of theConstitution and
of the rules of the Senate. The power and authority to decide
such questions of law form part of the jurisdiction, not only
expressly conferred on the Supreme Court, but of which, by
express prohibition of the Constitution, it cannot be divested.
"Sec 2. The Congress shall have the
power to define, prescribe and apportion the
jurisdiction of the various courts, but may not
deprive the supreme court of its original
jurisdiction over cases affecting ambassadors,
other public ministers, and consuls, nor of its
jurisdiction to review, revise, reverse, modify, or
affirm on appeal, certiorari, or writ of error, as
the law or the rules of court may provide, final;
Judgments and decrees of inferior courts in —
"(1) All cases in which the
constitutionality or validity of any treaty, law,
ordinance or executive order or regulations is in
question.
"(2) All cases involving the legality of
any tax, impost, assessment, or toll, or any
penalty imposed in relation thereto.
"(3) All cases in which the jurisdiction
of any trial court is in issue.
"(4) All criminal cases in which the
penalty imposed is death or life imprisonment.
"(5) All cases in which an error or
question of law is involved."
Because the legal questions raised in this case cannot
be decided without deciding also what is the truth on the
controversial facts, by the very nature of things, the jurisdiction
of the Supreme Court reached the settlement of the conflicting
claims as to the real events.
Respondent alleges that he has been recognized by the
President of the Philippines as acting President of the Senate
and that executive recognition is binding and conclusive on the
courts. The contention is erroneous. The actions of the
President of the Philippines cannot deprive the Supreme Court
of the jurisdiction vested in it by theConstitution. If the
Congress of the Philippines, in which the Legislative power is
vested, cannot deprive the Supreme Court of its jurisdiction to
decide questions Or law, much less can the President of the
Philippines, on whom is vested the Executive power, which in
the philosophical and political hierarchy is of subordinate
category to that of the Legislative power, do so. The power to
enact laws is higher than the power to execute them.
The third argument of respondent, although based on
truth, has nothing to do with the legal questions raised in this
case. It is true that the Senate is the only body that can
determine from time to time who is and shall be its President,
but when the legal questions are raised in a litigation like in the
present case, the proper court has the function, the province
and the responsibility to decide them. To shirk that
responsibility is to commit a dereliction of official duty.
Finally, it is alleged that for this Court to entertain the
petition, is to invade and encroach upon the powers, rights and
prerogatives solely and exclusively appertaining to the
Legislative Department, of which the Senate is a branch. The
contention is erroneous. The controversy as to the legality of
the adjournment declared by petitioner, of petitioner's ouster,
as a result of the resolution declaring vacant the position of
President of the Senate, of respondent's election as acting
President of the Senate, and as to whether or not the twelve
Senators who remained in the session hall could continue
holding session and if they constitute quorum, are all legal
questions upon which courts of justice have jurisdiction and the
Supreme Court is the final arbiter.
From the evidence, it appears that in the session of
Friday, February 18, 1949, at the time the resolution of
confidence in favor of petitioner, introduced by Senator Lopez,
was being put to vote, Senator Tañada voted in the negative,
alleging as ground damaging facts, supported by several checks,
highly detrimental to the personal and official honesty of
petitioner. At the same time, Senator Tañada announced his
intention of filing in the next session, to be held on Monday,
February 21, 1949, formal charges against petitioner and of
delivering during the so-called privilege hour a speech in
support of said charges.
On said Monday morning, hours before the opening of
the ordinary daily session, Senators Tañada and Sanidad
registered with the Secretary of the Senate a resolution for the
appointment of a Committee of Three, composed of Senators
Cuenco, Angeles David, and Mabanag, with instructions to
proceed immediately to investigate the serious charges against
petitioner embodied in the document. Said resolution, marked
as Exhibit 1 of respondent's answer, is as follows:
RESOLUTION ORDERING THE
INVESTIGATION OF CHARGES FILED AGAINST
THE SENATE PRESIDENT JOSE AVELINO.
WHEREAS, Senate President Jose
Avelino, in a caucus of high government officials
of the Philippine Government and leaders of the
Liberal Party held at Malacañan Palace on
January 15, 1949, delivered a speech, wherein
he advocated the protection, or, at least,
tolerance, of graft and corruption in the
government, and placed the interest of grafters
and corrupt officials as supreme and above the
welfare of the people, a doctrine under which it
is impossible for an honest and clean
government to exist;
WHEREAS, this speech of Senate
President Jose Avelino was given wide publicity
by the press, especially the Chronicle
Publications in their issues of January 16 and 18,
1949, as follows:
"The Senate President defended the
abuses perpetrated by Liberal Party men. He
called the investigations of the surplus property
commission irregularities and the immigration
quota scandal as acts of injustice. He described
the probe as 'criminal' and 'odious'. He flayed
the National Bureau of Investigation agents for
persecuting Liberal party leaders.
"'We are not angels', he said. 'When we
die we all go to hell. It is better to be in hell
because in that place there are no
investigations, no secretary of justice, no
secretary of interior to go after us.'
"Avelino, who is the present President
of the Liberal Party, censured the President for
his actuations which, he claimed, were mainly
responsible for the division of the party into two
hostile camps. "Avelino asked the President to
'tolerate' if he could not 'permit', the abuses of
the party in power, because why should we be
saints when in reality we are not?
"He stressed that the present
investigation being conducted by President
Quirino on the surplus property scandal and the
immigration quota racket has lowered the
prestige of the Liberal Party in the eyes of the
people, and is a desecration to the memory of
the late President Manuel Roxas. 'It is a crime
against the Liberal Party', Avelino said.
"Defining his attitude regarding rights
and privileges of those who are in power in the
government, Avelino maintained that the Liberal
Party men are entitled to more considerations
and should be given allowance to use power and
privileges. If they abuse their power as all
humans are prone to do, they will be given a
certain measure of tolerance, Avelino said,
adding, 'What are we in power for?'
"Avelino cited the surplus property
investigation as an attempt to besmear the
memory of President Roxas. As a result of these
investigations, the members of Congress are
subjected to unjust and embarrassing
questionings by NBI, Avelino said. And what is
worse is the fact that these senators and
representatives are being pilloried in public
without formal charges filed against
them."(Manila Chronicle issue of Jan. 16, 1949).
"At last Saturday night's
caucus Senate President Avelino for
two hours lectured to President Quirino
on Liberal Party discipline. At the same
time he demanded 'tolerance' on the
part of the Chief Executive by the party
in power.
"The investigations were
conducted on vague charges, Avelino
claimed. Nothing specific has been filed
against any top Liberal Party man. And
yet National Bureau of Investigation
agents have persecuted top leaders of
the Liberal Party. That is not justice.
That is injustice . . . It is odious . . . It is
criminal.
"Why did you have to order an
investigation Honorable Mr. President?
If you cannot permit abuses, you must
at least tolerate them. What are we in
power for? We are not hypocrites. Why
should we pretend to be saints when in
reality we are not? We are not angels.
And besides when we die we all go to
hell. Anyway, it is preferable to go to
hell where there are no investigations,
no Secretary of Justice, no Secretary of
Interior to go after us.
"When Jesus Christ died on
the Cross, He made a distinction
between a good crook and the bad
crooks. We can prepare to be good
crooks.
"Avelino related the story of
St. Francis of Assissi. A thief sought
sanctuary in St. Francis' convent. When
the soldiers came to the convent and
ordered St. Francis to produce the
wanted thief, St. Francis told the
soldiers that the hunted man had gone
the other way.
 "Avelino then pointed out that
even a saint had condoned the sins of a
thief.
xxx xxx xxx
"The investigations ordered by
President Quirino, Avelino said, was a
desecration of the memory of the late
President Roxas. The probe has
lowered, instead of enhanced, the
prestige of the Liberal Party and its
leaders in the eyes of the public.
"If the present administration
fails, it is Roxas and not Quirino that
suffers by it, because Quirino's
administration is only a continuation of
Roxas, Avelino said.
"Avelino compared all political
parties to business corporations, of
which all members are stockholders.
Every year the Liberal Party makes an
accounting of its loss and profit. The
Liberal Party, he said, has practically no
dividends at all. It has lost even its
original capital. Then he mentioned the
appointments to the government of
Nacionalistas like: Lino Castillejo, as
governor of the Reconstruction Finance
Corporation, Nicanor Carag, consul to
Madrid; and Vicente Formoso, General
Manager of the National Tobacco
Corporation." (Manila Chronicle issue
of Jan. 18, 1949.)
WHEREAS, after the first publication of
the said speech in the Manila Chronicle issue of
January 16, 1949, the Senate President, in a
letter to the Chronicle Publications dated
January 17, 1949, asserted that the said news
report was a "maliciously distorted presentation
of my remarks at that caucus, under a
tendentious headline", and threatened that
"unless the proper redress is given to me,
therefore, I shall feel compelled to take the
necessary steps to protect my reputation and
good name";
WHEREAS, the Chronicle Publications
not only refused to retract or make the
rectification demanded by the Senate President,
but on the contrary, in their issue of January 18,
1949, challenged him to take his threatened
action, stating that "in order to establish the
truth, we are inviting the Senate President to
file a libel suit against the Chronicle" and further
repeated the publications of their reports on the
Senate President's speech in the same issue of
January 18, 1949 as quoted above;
WHEREAS, notwithstanding in the
considerable length of time that has elapsed,
the Senate President has not carried out his
threat of filing action against the Chronicle
Publications, thereby confirming, in effect, his
doctrine of toleration of graft and corruption;
WHEREAS, in open and public session
of the Senate on February 18, 1949, there were
exhibited photostatic copies of four checks
totalling P566,405.60, which appear to have
come into the possession and control of the
Senate President, after he had assumed his
office;
WHEREAS, the first of the aforesaid
checks, which is Manager's Check No. M5375 of
the National City Bank of New York, drawn on
September 24, 1946, in favor of the Senate
President in the amount of P312,500.00, was
indorsed by him to his wife, Mrs. Enriqueta C.
Avelino, who deposited it in her current account
with the Philippine National Bank on October
26, 1946;
WHEREAS, the second of the aforesaid
checks, which is Manager's Check No. 49706 of
the Nederlandsch Indische Hardelsbank, drawn
on October 21, 1946, in favor of the Senate
President in the amount of P196,905.60, was
indorsed by him to his son, Mr. Jose Avelino, Jr.,
who cashed it ml October 22, 1946;
WHEREAS, the third of the aforesaid
checks, which is Check No. 37262 of the
Nederlandsch Indische Handelsbank, drawn on
October 23, 1946 by Chung Liu Ching Long &
Co., Ltd., a Chinese concern, in favor of "Cash",
in the amount of P10,000.00, was indorsed by
the Senate President to his wife, Mrs. Enriqueta
C. Avelino, who deposited it in her Savings
Account No. 63436 with the Philippine National
Bank on October 26, 1946;
WHEREAS, the fourth of the aforesaid
checks, which is Check No. 37268 of the
Nederlandsch Indische Handelsbank, drawn by
the aforementioned Chinese concern, Chiung
Liu Ching Long and Co, Ltd., in the amount of
P47,500.00 in favor of the Senate President, was
indorsed by him to his wife, Mrs. Enriqueta C.
Avelino, who deposited it in her current account
with the Philippine National Bank on October
26, 1946;
WHEREAS, of the four checks
aforementioned, the one for P196,905.60 was
cashed by the Senate President's son, Jose
Avelino, Jr., on October 22, 1946; while of the
three other checks totalling P370,000.00, which
was deposited by the Senate President's wife,
Mrs. Enriqueta C. Avelino, in her savings and
current accounts with the Philippine National
Bank on October 26, 1946, P325,000.00 were
withdrawn by her on the same day;
WHEREAS, in the course of the speech
delivered by the Senate President on the floor of
the Senate on February 18, 1946, in an attempt
to explain the foregoing checks, he refused to
be interpellated on the same, and his
explanation lacked such details and definiteness
that it has left many doubts unsettled;
WHEREAS, in the case of the check for
P312,500.00, the Senate President's explanation
that the same represented proceeds from the
sale of surplus beer to cover party obligations is
directly contradicted by the source of the same,
Ching Ban Yek, who declared under oath before
the Horilleno Investigating Committee that the
said sum of P312,500.00 had been loaned by
him to the Senate President, who repaid the
same within ten days;
WHEREAS, it appears that during the
period from December 29, 1945 to April 30,
1948, deposits totalling P803,865.45 were made
in the current account of the Senate President's
wife Mrs. Enriqueta C. Avelino, in the Philippine
National Bank, of which amoumt P6,204.86
were deposited before his election to office and
the sum of P797,660.59 was deposited after his
election;
WHEREAS, the tax returns of the
Senate President do not bear explanations made
in his speech of February 18, 1949 to the effect
that he and his wife had made substantial
amounts in commercial transactions in shoes
and liquor;
WHEREAS, in his said speech of
February 18, 1949, the Senate President said
that "en política todo vale", and that inasmuch
as the Nacionalistas were prone to commit
frauds, it was right for the Liberals to commit
frauds in the elections to even up with frauds
committed by the opposition;
WHEREAS, the said speech of February
18, 1949 delivered by the Senate President
justified the commission of electoral frauds,
which justification is a direct attack on the
sovereignty of the people and may be a cause of
unrest or revolution;
WHEREAS, the Senate President, as ex-
officio Chairman of the Commission on
Appointments which passes upon all
Presidential appointments, including those to
the judiciary, has abused the prerogatives of his
office by seeking in several instances to
interfere with and influence some judges in
deciding cases pending before them, thereby
imperiling the independence of the judiciary and
jeopardizing the impartial administration of
justice;
WHEREAS, the honor, dignity and
prestige of the people and of the members of
the Senate demand a thorough, impartial and
immediate investigation of all the foregoing;
Now, therefore,
1 Be it resolved, To appoint, as they are
hereby appointed
2 a Committee of three (3) members of
this Senate, to be com-
3 posed of Senators Cuenco, Angeles
David and Mabanag, who
4 shall immediately proceed to
investigate the charges mentioned
5 above, with full powers to compel the
attendance of witnesses
6 and the production of books of
account, documents, and other
7 evidence, and to utilize the facilities
and the services of such
8 personnel of this Senate as it may
deem necessary, with
9 instructions to render its report and
recommendations to the
10. Senate on or before Friday,
February 25, 1949.
Adopted, February 21, 1949.
Although a sufficient number of Senators to constitute
quorum were already present in said morning at and before
10:00 o'clock, the scheduled time for the daily session to begin,
the session was not then opened, because petitioner failed to
appear in the hall until about 11:35, the time petitioner
ascended the rostrum where, instead of calling the meeting to
order, he asked for a copy of the resolution introduced by
Senators Tañada and Sanidad and, after reading it slowly, he
called to his side Senators Angeles David and Tirona and
conferred with them.
Only after the insistent requests of Senators Sanidad
and Cuenco that the session be opened, that petitioner called
the meeting to order shortly before 12:00 o'clock noon.
Senator Sanidad moved that the roll call he dispensed
with. Senator Tirona opposed the motion and the roll call
showed the presence of the following twenty two Senators:
Vicente J. Francisco, Fernando Lopez, Emiliano Tria Tirona,
Pablo Angles David, Salipada Pendatun, Ramon Torres, Enrique
Magalona, Callos Tan, Olegario Clarin, Melecio Arranz, Mariano
Jesus Cuenco, Prospero Sanidad, Lorenzo Tañada, Vicente
Madrigal, Geronima Pecson, Camilo Osias, Carlos Garcia, Ramon
Diokno, Jose Vera, Tomas Cabili, Alejo Manag and Tose Avelino.
Senator Sanidad again moved that the reading of the
minutes be dispensed with, but the motion was again opposed
by Senator Tirona whose opposition was joined by Senator
Angeles David, and the reading of the minutes proceeded.
Senator Tañada repeatedly took the floor to claim his
right to deliver his one-hour privilege speech in support of the
charges against petitioner, pursuant to the announcement he
made in the session of February 18, 1949; he did it before and
after the roll call and the reading of the minutes. He was
ignored by the Chair and petitioner announced that he would
order the arrest of any Senator who would speak without
having been previously recognized by him. Senator Sanidad
requested the Chair to recognize the right of Senator Tañada to
speak, and every time he would make the request, Senator
Tirona would oppose him upon the ground that the requests
were out of order.
Meanwhile, commotion and disorder took place in the
Senate gallery. Shouts were heard from individuals of the
audience, where two fist fights took place. The detonation of a
gun shot was heard from outside. Senator Angeles David, after
being recognized by the Chair, moved for adjournment of the
session. The motion was objected by Senator Cuenco who, at
the same time, moved that the motion be submitted to vote.
Petitioner, instead of submitting to vote the motion to adjourn,
banged the gavel and declared the session adjourned until next
Thursday, February 24, 1949, and, thereupon, left the session
hall followed by the nine Senators (Vicente J. Francisco,
Fernando Lopez, Emiliano Tria Tirona, Pablo Angeles David,
Salipada Pendatun, Ramon Torres, Enrique Magalona, Carlos
Tan, and Olegario Clarin), supporting him. Twelve Senators,
respondent and his eleven supporters, remained in the session
hall. Senator Arranz, President Pro-tempore of the Senate,
ascended the rostrum, and called those Senators present to
order. Senator Mabanag raised the question of quorum and the
President Pro-tempore ordered a roll call, to which all the
twelve Senators remaining in the session hall answered.
 The President Pro-tempore declared the presence of
quorum and those present proceeded to continue transacting
business. Senator Cabili took the door and made it of record
that the deliberate abandonment of the Chair by petitioner
made it incumbent upon the Senate President Pro-tempore and
those remaining members of the Senate to continue the session
in order not to impede and paralyze the functions of the
Senate. Senator Arranz suggested that respondent be
designated to preside over the session and the suggestion was
carried unanimously and respondent took the Chair.
Senator Tañada delivered his privileged speech, which
took two hours on the charge against petitioner contained in
Resolution No. 68, Exhibit "1", and moved for the immediate
consideration and approval of said resolution, the complete
text of which was read. The motion was seconded by Senator
Sanidad, and the resolution was unanimously approved.
Respondent yielded the Chair to the President Pro-tempore and
Senator Sanidad introduced Resolution No. 67, Exhibit "2",
which read as follows:
RESOLUTION DECLARING VACANT THE
POSITION OF THE PRESIDENT OF THE SENATE
AND DESIGNATING THE HONORABLE MARIANO
JESUS CUENCO ACTING PRESIDENT OF THE
SENATE.
Resolved by the Senate in session
assembled, That a quorum exists; that the
Honorable Jose Avelino, President of the Senate,
having abandoned the chair, his position is
hereby declared vacant; and that, the Honorable
Mariano Jesus Cuenco of Cebu, be designated
Acting President of the Senate, until further
orders from this Body.
Adopted, February 21, 1949.
The resolution was unanimously approved, with
respondent abstaining from voting. Pursuant to said resolution,
respondent took his oath of office in open session before
President Pro-Tempore Arranz and has started, since then, to
discharge the duties, rights and privileges of acting President of
the Senate.
The above recital of facts is based on our findings on
the evidence on record. From the said facts we believe the
following conclusions are unavoidable.
1. The adjournment declared by petitioner was
arbitrary and illegal.
2. After petitioner and the 9 Senators supporting him
had walked out from the session hall, the Senate could not
continue holding session and transact business for lack of
quorum.
In the following discussion we will express the reasons
in support of the above conclusions.
ILLEGAL ADJOURNMENT
A motion to adjourn has the highest precedence when
a question is under debate and, with certain restrictions, it has
the highest privilege under all other conditions. Under
parliamentary practice, even questions of privilege and the
motion to reconsider yield to it. The motion to adjourn may be
made after the "yeas" and "nays" are ordered and before the
roll call has begun, before reading of the journal. The motion is
not debatable and, after the motion is made, neither another
motion nor an appeal may intervene before the taking of the
vote.
The power to adjourn is one of the exclusive
prerogatives of a legislative chamber. It cannot be exercised by
any single individual, without usurpation of the collective
prerogatives. It is too tremendous a power to be wielded by a
single individual. The functions of the Senate and its
opportunity to transact official business cannot be left to the
discretion of a single individual without jeopardizing the high
purposes for which a legislative deliberative body is established
in a democratic social order. Single-handed individual discretion
on the matter may not mean anything other than placing the
legislative chamber under a unipersonal tyranny.
There is no provision in the present rules of the Senate
which expressly or impliedly authorizes an adjournment
without the consent of the body or one which authorizes the
presiding officer to decree motu proprio said adjournment, and
the sound parliamentary practice and experience in this country
and in the United States of America, upon which ours is
patterned, would not authorize the existence of such a
provision.
Petitioner alleges that he ordered the adjournment
because the motion of Senator Angeles David to said effect was
properly made and met with no objection. If this version of the
facts is true, then it was right for petitioner to declare the
adjournment, because the absence of any objection, provided
the motion was properly made and the other Senators after
having been properly apprised of the motion, did not object to
it, was an evidence of an implied consent of all the members.
The evidence, however, fails to support petitioner's claim.
We are inclined to consider respondent's version to be
more in consonance with truth. We are of opinion that the
motion to adjourn was actually objected to. Senator Tañada
was bent on delivering a speech he had ready on the charges
embodied in a resolution fathered by himself and by Senator
Sanidad, which both filed early in the morning, long before the
session was opened. The formulation of said charges had been
announced days before, since the session of Friday, February
18, 1949, when he showed photostatic copies of some checks
as basis of a part of the charges to be filed. In said Friday
session respondent's group suffered defeat on the approval of
the resolution of confidence fathered by Senator Lopez. And it
is understandable that respondent's group of Senators,
believing themselves to constiute the majority, did not want to
waste any time to give a showing of said majority and must
have decided to depose petitioner as soon as possible to wrest
from him the Senate leadership that upon democratic principles
rightly belongs to them.
As a showing of eargerness to hurry up the unfolding
events that would give them the control of the Senate, Senator
Sanidad moved to dispense with the roll call and the reading of
the minutes, and had been requesting that Senator Tañada be
recognized to take the floor. Senator Tañada himself made
attempts to deliver his speech.
Evidently, petitioner and his supporters decided to
adopt a blocking strategy to obstruct the processes that would
give due course to the investigation of the serious charges
made in resolution No. 68, Exhibit 1, and would effect
petitioner's ouster as President of the Senate.
This strategy is evidenced by the belated appearance
of petitioner and his supporters at the session hall and
petitioner's procrastination in opening the session, by taking all
his time in reading first the Tañada and Sanidad resolution,
formulating charges against him, and conferring with Senators
Angeles David and Tirona and in not calling to order the
members of the Senate before Senators Cuenco and Sanidad
began urging that the session be opened.
 Petitioner's allegation that, even without motion from
any member, he could adjourn the session under the rules of
the Senate, is not well taken. There is nothing in the rules of the
Senate giving petitioner such authority. The provisions quoted
in the petition authorizes the Senate President to take
measures to stop disorder, but that power does not include the
one to adjourn.
The circumstances lead us to the conclusion that illegal
adjournment and the walk out of the petitioner and his
supporters from the session hall had the purpose of defeating
or, at least, delaying, action on the proposed investigation of
the charges against petitioner and of his impeding ouster, by
the decisive votes of respondent's group of Senators.
The adjournment decreed by petitioner was arbitrary
and illegal.
QUORUM
There is no controversy that at the session in question
there were present in the session hall only twelve Senators,
those composing respondent's group, and this fact had been
ascertained by the roll call ordered by President Pro-Tempore
Arranz, after Senator Mabanag had raised the question of
quorum.
The Constitution provides:
"A majority of each House shall
constitute a quorum to do business, but a
smaller number may adjourn from day to day
and may compel the attendance of absent
Members in such manner and under such
penalties as such House may provide." (Sec. 10,
Sub-sec. 2 Article VI.)
The majority mentioned in the above provision cannot
be other than the majority of the actual members of the
Senate. The words "each House" in the above provision refer to
the full membership of each chamber of Congress.
The Senate was and actually is composed of 24
Senators, and a majority of them cannot be less than thirteen.
Twelve is only half of twenty-four. Nowhere and at no time has
one-half ever been the majority. Majority necessarily has to be
more than one-half.
We have heard with interest the arguments advanced
by respondent's counsel, premised on the fact that the above
constitutional provision does not use the words "of the
members" and the theory of the amicus curiæ that the majority
mentioned in the Constitution refers only to the majority of the
members who can be reached by coercive processes. There is,
however, nothing in said arguments that can validly change the
natural interpretation of the unmistakable wordings of
the Constitution. "Majority of each House" can mean only
majority of the members of each House, and the number of said
members cannot be reduced upon any artificial or imaginary
basis not authorized by the context of the Constitution itself or
by the sound processes of reason.
For all the foregoing, we conclude that:
1. The legal and constitutional issues raised by the
petitioner in this case, notwithstanding their political nature
and implications, are justiciable and within the jurisdiction
expressly conferred to the Supreme Court, which cannot be
divested from it by express prohibition of the Constitution.
Should there be analogous controversy between two claimants
to the position of the President of the Philippines, according to
the Solicitor General, one of the attorneys for respondent, the
Supreme Court would have jurisdiction to decide the
controversy, because it would raise a constitutional question.
Whether there was a quorum or not in the meeting of twelve
Senators in which respondent was elected acting President of
the Senate, is a question that calls for the interpretation,
application and enforcement of an express and specific
provision of theConstitution. Should the two absent Senators
come and attend the session and side with the petitioner's
group, it is agreed that the Senate will be kept at a stand still,
because of the deadlock resulting from twelve Senators voting
against twelve other Senators, each group supporting
petitioner's and respondent's opposing claims to the position of
President of the Senate. Admitting that pressure of public
opinion may not break the impasse, it has been suggested from
respondent's side that it may invite revolution. Between the
two alternatives, jurisdiction of the Supreme Court and
revolution, there is only one choice possible, and that is the one
in consonance with theConstitution, which is complete enough
to offer orderly remedies for any wrong committed within the
framework of democracy it established in this country. Should
this Supreme Court refuse to exercise jurisdiction in this case,
such refusal can only be branded as judicial abdication, and
such shirking of official responsibility cannot expect acquittal in
the judgment of history. The gravity of the issues involved in
this case, affecting not only the upper branch of Congress, but
also the presidential succession as provided by Republic Act No.
181, is a challenge to our sense of duty which we should not fail
to meet.
2. The adjournment decreed by petitioner of the
Monday session, without the authority of the Senate, was illegal
and, therefore, null and void.
3. The rump session held by twelve Senators, the
respondent and his supporters, after petitioner and his nine
supporters had walked out from the session hall, had no
constitutional quorum to transact business.
4. The resolution declaring vacant the position of the
President of the Senate and choosing respondent as acting
President of the Senate, has been adopted in contravention of
the Constitution for lack of quorum. The fact that respondent
has been designated only as acting President of the Senate, a
position not contemplated by theConstitution or by Republic
Act No. 181 on presidential succession, so much so that his
position in acting capacity, according to his own counsel, would
not entitle respondent to succeed to the position of the
President of the Philippines, emphasizes the invalidity of
respondent's election.
Notwithstanding the importance of this case, the legal
issues involved are very simple, and it would not be hard to
reach a prompt conclusion if we could view the controversies
with the attitude of a mathematician tackling an algebraic
equation. Many considerations which, from the point of view of
the laymen, of the press, of public opinion in general and the
people at large, may appear of great importance, such as who
will wield the power to control the Senate and whether or not
petitioner is guilty of the serious charges filed against him, are
completely alien to the questions that this Court must answer.
The motives and motivations of petitioner and respondent of
their respective supporters in the Senate in taking the moves
upon which this case has arisen are their exclusive business and
should not be minded for the purposes of our decision.
The members of the Senate were and are free to
depose petitioner and to elect another Senator as President of
the Senate, and their freedom to make such change is subject
only to the dictates of their own conscience and to any verdict
that the people, through the electorate, may render at the
polls, and to the judgment of historians and posterity. But in
making such changes of leadership, the Senate and the
Senators are bound to follow the orderly processes set and
outlined by the Constitution and by the rules adopted by the
Senate as authorized by the fundamental law. Any step beyond
said legal bounds may create a legal issue which, once
submitted to the proper courts of justice, the latter cannot
simply wash their hands and ignore the issue upon the pretext
of lack of jurisdiction, adopting the indifferent attitude of a
passerby who does not care whether the lashing of the wind
may cause a live wire to ignite a neighboring house.
When a Senator or a number of Senators come to the
Supreme Court, complaining that the President of the Senate
has adjourned or is adjourning the daily sessions of the Senate
over and above objections voiced from the floor and without
obtaining first the approval or consent of the majority, we
cannot close our eyes to the complaint or bury our heads in the
sand in ostrich fashion. Otherwise, we would be disregarding
our sworn duty and, with our abstention or inaction, we would
be printing the stamp of our approval to the existence and
continuation of a unipersonal tyranny imposed upon the upper
chamber of Congress, a tyranny that may obstruct and defeat
the functioning and actuations of the Senate and, consequently,
of the whole Congress, thus depriving the country of the
benefits of legislation.
When a member of the Senate comes to us
complaining that he is being deprived of the powers and
prerogatives of the position of President of the Senate, to which
he has been duly elected because twelve Senators, without
constituting a quorum, have illegally convened and voted to
depose him and to elect another Senator in his place, he raises
a constitutional question of momentous importance which we
should not fail to answer without betraying the official trust
reposed on us. Such complaint constitutes, in effect, an
accusation of usurpation of authority by the twelve Senators, in
utter violation of the fundamental law. The situation would
demand remedy and no other agency of government can offer
that remedy than the Supreme Court itself with whom the
complaint has been filed.
The existence of a quorum in a collective body is an
indispensable condition for effective collective action. Because
a society or collective body is composed of separate and
independent individual units, it cannot exist without the moral
annectent of proper organization and can only act in organized
form. Every time it has to act, it has to convene its individual
units into an organic whole, and quorum here is the organizing
element without which the personality of the body cannot exist
or be recognized. The importance of such organizing element
has been recognized by the members of our Constitutional
Convention, and that is the reason why they inserted in
the Constitutionthe provision requiring the existence
of quorum for the former National Assembly to transact official
business and that requirement was also imposed by the
National Assembly when, amending the Constitution, it voted
itself out of existence, to be replaced by a bicameral Congress.
The requirement, both in the original text of
theConstitution and in the amendment, had been ratified by
the sovereign will of the people.
When we required a majority of a legislative chamber
to constitute a quorum we did it for mighty reasons, such as
that democracy is based on the rule of the majority and, to
allow a quorum of less than the majority of the members, one-
half of them for example, as in the present controversy, is to
allow the anomalous and anarchic existence of two
independent bodies where the Constitution provides for only
one. If the twelve Senators of respondent's group
constitute quorum to transact official business, what will
preclude the twelve remaining Senators from constituting
themselves into a quorum to transact official business? This is
not impossible, should Senator Sotto decide to attend the
session, even if carried in a stretcher, and Senator Confesor
returns from abroad and sides with petitioner's group. Then
there will be, in effect, two Senates and, according to
respondent's theory the Supreme Court will have no jurisdiction
to decide the conflict, and no one can decide it except public
opinion or, in its failure, revolution. Such absurd situation and
catastrophic result should be avoided.
Lack of jurisdiction is sometimes a refuge behind which
weak courts may take shelter when afraid to displease the
powerful.
Instead of disputing the jurisdiction of the Supreme
Court in this case, everybody must congratulate himself
because petitioner, instead of resorting to any high-handed
means to enforce his right to continue holding the position of
President of the Senate, has come to us for proper redress by
the orderly processes of judicial settlement. Notwithstanding
the fact that three years ago, he impugned the jurisdiction of
the Supreme Court and won his case on that ground — the
injustice then committed against the suspended Senators Vera,
Diokno and Romero now being more generally recognized —
petitioner came to this Court to submit his case to our
jurisdiction.
The action taken by petitioner in filing his complaint
with this Supreme Court is premised on this sharing the
conviction that said Tribunal is the last bulwark of the rights and
liberties of the people, the final arbiter on all constitutional
conflicts, and the ultimate redoubt of the majesty of the law.
That conviction and faith should not be betrayed, but rather
strengthened, and more imperatively nowadays when the
majesty of the law, the basic tenets of the Constitution, the
principles of humanity springing from the golden rule, which is
the law of laws, are being the subject of bold onslaughts from
many elements of society, bent on taking justice in their own
hands or on imposing their will through fraud or violence. The
malady is widespread enough to imperatively and urgently
demand a more complete respect and faith in the effectiveness
of our system of administration of justice.
For the Supreme Court to renounce its jurisdiction in
this case is to disappoint the believers in a philosophy and social
order based on constitutional processes and on legal juridical
settlement of all conflicts that may beset a democracy. It has
been said in the hearing of this case that for this Court to refuse
cognizance of it may not have other alternative, if the pressure
of public opinion may fail — and by experience we know that it
had suffered many failures — than revolution. This emphasizes
the immeasurable responsibility of this Supreme Court if it
should falter in the performance of its plain duty and should
dispose of this case with the indifference with which a beach
vacationist would dismiss a gust of wind.
The principle of separation of powers, so often
invoked, to bind the hands of the courts of justice into futility,
should not be understood as absolute. It is an apt rule of the tri-
partite division of government as ennunciated by Aristotle and
further developed by Montesquieu, as the best scheme to put
in practice the system of check and balance considered
necessary for a workable democracy. To make absolute that
principle is to open the doors to irretrievable absurdity and to
create three separate governments within a government and
three independent states within a state. Indeed, it is to avoid
such a teratologic creature that the Constitutional Convention
had not inserted among the principles embodied in the
fundamental law.
Judicial determination of all constitutional or legal
controversies is the inherent function of courts.
The Constitution of the United States of America, unlike our
ownConstitution, is silent as to the power of courts of justice to
nullify an unconstitutional act of Congress. Notwithstanding the
silence, when the proper case arose, the United States Supreme
Court, under the wise leadership of Chief Justice Marshall, had
not hesitated in declaring null and void a law enacted in
contravention of constitutional provisions. The Supreme Court
of the Republic of the Philippines should not fail to match such
an outstanding evidence of judicial statesmanship.
To bolster the stand against our assumption of
jurisdiction in this case the theory has been advanced that, the
President of the Philippines having recognized respondent as a
duly elected acting President of the Senate, that recognition is
final and should bind this Court. The theory sprouts from the
same ideology under which a former king of England tried to
order Lord Coke how the latter should dispose of a pending
litigation. Our answer is to paraphrase the great English judge
by saying that nothing should guide us except what in
conscience we believe is becoming of our official functions,
disregarding completely what the President of the Philippines
may say or feel about it.
As a matter of fact, two pretenders may dispute the
office. As in the present case, Congress may split into two
groups after a presidential election and each group may
proclaim a different candidate as the duly elected President of
the Philippines. Because of a mistaken ideas to the scope of the
principle of separation of powers, if the case is brought to us for
decision, shall we, as Pontious Pilate, wash our hands and let
the people bleed and be crucified in the Calvary of revolution?
There is absolutely no merit in invoking the
unfortunate decision in the case of Vera vs. Avelino, (77 Phil.,
192). No one now would regret more that such a decision had
been rendered than petitioner himself, the very one who won it
upon the pusillanimous judicial theory of lack of jurisdiction.
The more said decision is forgotten, the better, it being one of
the blemishes without which the scutcheon of the post-
liberation Supreme Court would be spotless.
We vote to render judgment granting the petition and
ordering respondent to relinquish the powers, prerogatives and
privileges of the position of the President of the Senate in favor
of petitioner who, on the other side, should be restrained from
putting any obstacle or obstruction by illegal adjournments or
otherwise, in the holding of the regular daily session of the
Senate. Said body should be allowed to continue transacting
official business unhampered by any procedure intended to
impede the free expression of the will of the majority.
BRIONES, M., disidente:
Sin perjuicio de redactar una opinión más extensa
sobre mi voto en este asunto, me permito adelantar las
siguientes observaciones:
(1) Esta Corte Suprema tiene jurisdiccion sobre el
asunto. — Reafirmo la posicion tomada por mi en los asuntos
de Vera contra Avelino (77 Phil., 192) y Mabanagcontra Lapez
Vito (78 Phil., 1). La cuestion constitutional y legal aqui debatida
no es de caracter puramente politico en el sentido de que esta
Corte deba inhibirse de enjuiciarla, sino que es
perfectamente justiciable. Se plantea la cuestion de si el grupo
de senadores que eligio al recurrido como presidente interino
del Senado tenia facultad para hacerlo. Se alega y se sostiene
que no existia dicha facultad, puesto que cuando dicho grupo se
reunio no habia un quorum presente de conformidad con los
terminos de la Constitucion y de los reglamentos del Senado.
Esta cuestion es justiciable y puede y debe ser enjuiciada,
determinada y resuelta por esta Corte, ya que la parte
agraviada ha venido a nosotros en demanda de remedio. Esta
Corte no puede lavarse las manos en un ademan de inhibicion
pilatista; no puede continuar con la politica de escondecabeza-
en-la-arena-del-desierto estilo avestruz. El issue constitucional y
legal discutido es importante, muy importante. Tiene
repercusiones directas y vitalisimas en la vida, libertad y
hacienda de los ciudadanos. Es el negocio supremo de legislar lo
que esta en debate. Es, por tanto, una de las esencias de la
misma república el tema de la controversia. La escaramuza
politica es lo de menos; el meollo juridico-constitucional es lo
esencial e importante.
Es tanto mas urgente que esta Corte asuma
jurisdiccion sobre el caso cuanto que el conflicto surgido en el
Senado entre los dos grupos politicos en guerra ha cobrado las
proporciones de una tremenda crisis nacional, preñada de
graves peligros para la estabilidad de nuestras instituciones
politicas, para el orden publico y para la integridad de la
existencia de la nacion.
Tenemos un precedente tipico en la jurisprudencia del
Estado de New Jersey, Estados Unidos de America. Es el caso de
Werts vs. Rogers, del año 1894, Atlantic Reporter, Vol. 28, p.
728, N. J. La analogia es completa. Tambien se disputaban la
presidencia del Senado dos Senadores, cada cual pretendiendo
ser el legitimo. Tambien hubo dos facciones, cada cual
reclamando ostentar la genuina representacion popular. Un
grupo se llamo "Adrian Senate" y el otro grupo "Rogers Senate",
por los nombres de los presidentes en disputa. Se arguyo
igualmente que la Corte Suprema de New Jersey no podia
asumir jurisdiccion sobre el caso por tratarse de una cuestion
eminentem ente politica, por tanto no justiciable. La Corte, sin
embargo, conocio del caso y, por boca de su Presidente el
eminente jurisconsulto Mr. Beasley, hizo el siguiente categorico
pronunciamiento:
". . . That this court has the legal right
to entertain jurisdiction in this case, displayed
by this record, we have no doubt; and we are
further of opinion that it is scarcely possible to
conceive of any crisis in public affairs that would
more imperatively than the present one call for
the intervention of such judicial authority."
(supra, p. 758.)
Ademas de la justiciabilidad de la materia en controversia, una
de las principales razones invocadas por la Corte Suprema de
New Jersey para asumir jurisdiccion sobre el caso fue la
extrema necesidad de resolver un dead lock que paralizaba la
maquinaria legislativa, afectaba a la estabilidad del gobierno y
ponia en grave peligro los intereses publicos. Pregunto: no
existe la misma razon de extrema necesidad en el presunto
caso? que duda cabe de que el conflicto entre las dos facciones
en nuestro Senado esta afectando seriamente a los intereses
publicos? que duda cabe de que la normalidad constitucional
esta rota, con grave preocupacion de todo el mundo y con
grave daño de la tranquilidad publica?
(2) El levantamiento de la sesion ordenado por el
presidente Avelino fue ilegal y arbitraiio. — Estimo que el
presidente Avelino obro ilegal y arbitrariamente al ordenar el
levantamiento de la sesion frente a la oposicion firme, energica
y tenaz de algunos senadores adversos a el. En vista de esta
oposicion, el deber de la Mesa era someter a votacion la
mocion de levantamiento de la sesion presentada por el
Senador Angeles David. Avelino no tenia el derecho, por si y
ante si, de declarar levantada la sesion. Solamente cuando no
se Formula ninguna objecion es cuando rutinariamente
el presiding officer puede dar por aprobada una mocion de
levantamiento de la sesion. Si la facultad de levantar la sesion
no estuviera sujeta a la expresa voluntad de la mayoria, seria un
arma sumamente peligrosa en manos de un presidente
despotico y arbitrario.
La pretension de que el Senador Avelino ordeno el
levantamiento de la sesion en uso de sus facultades inherentes,
en vista de que el mismo creia que habia un peligro inminente
de desorden y tumulto en la sala de sesiones, es
completamente insostenible. Las circunstancias del caso no
justifican semejante pretension, a tenor de las pruebas
obrantes en autos. Lo que debia haber hecho el Senador
Avelino era tratar de apaciguar al publico y prevenir todo
conato de desorden. Tenia medios para hacerlo. No lo hizo. En
cambio, dejo la silla presidencial juntamente con los senadores
de su grupo. Esto equivalia a una desercion y los senadores del
otro grupo tenian perfecto derecho a proceder como
procedieron, quedandose en el salon para continuar celebrando
la sesion. Esta sesion venia a ser una tacita reconduccion — una
simple prolongacion de la sesion que habia sido declarada
abierta por el presidente Avelino con un quorum presente de
22 miembros.
(3) Sin embargo, la sesion prolongada se convirtio en
ilegal por falta de quorum. — Es cosa establecida y admitida por
ambas partes que al reanudarse la sesion estaban presentes los
12 miembros del grupo llamado "Senado de Cuenco" mas tres
senadores del grupo llamado "Senado de Avelino". En esta
coyuntura el Senador Mabanag, del grupo de Cuenco, suscito la
cuestion del quorum, de cuyas resultas se ordeno por el
Senador Arranz, que entonces presidia la sesion, la lectura de la
lista. Tambien es cosa establecida en autos y admitida por
ambas partes que al comenzar el roll call o lectura de la lista, los
tres senadores del grupo de Avelino salieron del salon y
solamente respondieron al roll call los 12 senadores del grupo
de Cuenco.
Resulta evidente de estos hechos que no
habia quorum, por cuanto que componiendose el Senado de 24
miembros debidamente elegidos y cualificados, el quorumpara
celebrar sesion valida debe ser de 13 miembros. Tanto la
jurisprudencia federal como la de los estados de la Union
americana esta repleta de decisiones en las que se ha sentado
firmemente la doctrina de que la base para determinar
el quorum legislativo es el numero total de miembros elegidos y
debidamente cualificados de cada camara. 1 En el presente
caso, como se ha dieho, ese numero total es 24. Por tanto, el
grupo Cuenco no podia seguir celebrando validamente sesion,
en vista de la falta dequorum. De acuerdo con la Constitucion y
los reglamentos, el grupo Cuenco tenia ante si dos caminos para
actuar: (a) suspender la sesion de dia en dia hasta obtener el
necesario quorum; (b) o compeler la asistencia de suficientes
senadores del otro grupo para constituir
dicho quorum, pudiendo a dicho efecto ordenar inclusive el
arresto de los huelguistas. (Constitucion de Filipinas art. VI, sec.
10, ap. 2; 2 Reglamento del Senado, Cap. VI arts. 23 y 24. 3 ) Asi
que todos los procedimientos efectuados por el grupo Cuenco
en dicha sesion eran nulos e ilegales.
Se ha insinuado que el cambio de fraseologia en el
precepto constitucional sobre quorum es significativo
Efectivamente en el texto original de 1935 se decia lo siguiente:
"A majority of all the Members shall constitute a quorum to do
business" . . . , mientras que en el texto en mendado de 1940 se
dice: "A majority of each House shall constitute a quorum to do
business" . . . De esto se quiere deducir la consecuencia de que
esta reforma habra sido por algo, y este algo acaso sea la
posibilidad de una base menor de la totalidad de miembros
para determinar la existencia de un quorum. El argumento, a mi
juicio, es insostenible, por no llamarlo futil. Los autores de la
enmienda no han hecho mas que copiar literalmente la
fraseologia de la Constitucion federal americana; y ya hemos
visto que esta se ha interpretado en el sentido de que señala,
como base para determinar el quorum, la totalidad de
los miembros electos y cualificados de cada camara. Por tanto,
el cambio fraseologico, en vez de denotar cambio en el
significado, refuerza el sentido tradicional de que la base para la
determinacion del quorum la totalidad de los miembros electos
y cualificados de cada camara. A parte de que es elemental en
hermeneutica legal que una misma cosa puede expresarse en
terminos diferentes.
Tambien se ha insinuado, con bastante ingenio, que en
el caso que nos ocupa, la base mas racional para el quorum es
23, excluyendo al Senador Confessor que se halla en America,
pero incluyendo al Senador Sotto, que si bien no pudo estar
presente en la sesion de autos por estar gravemente enfermo,
hallabase, sin embargo, en Manila susceptible en cualquier
momento de ser llamado por el Senado. El fundamento de esta
opinion es que para la determinacion del quorum no debe ser
contado un miembro que esta fuera de la accion coercitiva de la
camara. La proposicion es igualmente inaceptable. No solo no
tiene ningun precedente en la jurisprudencia, sino que es
convencional, arbitraria, sometiendo el quorum, que debe ser
algo permanente, a ciertas eventualidades y contingencias. Hay
que tener en cuenta que el precepto constitucional y la regla
pertinente no establecen ninguna salvedad. Donde la ley no
distingue, no debemos distinguir.
(4) Cual es el remedio. — No cabe duda de que una
mayoria de Senadores tiene derecho a reorganizar el Senado en
la foima que les plazca, siempre que ello se sujete a las normas
prescritas por la Constitucion, las leyes y los reglamentos. En el
presente easo el grupo Cuenco que al parecer forma la mayoria,
por lo menos hasta la fecha, tiene en sus manos los
instrumentos constitucionales y legales para efectuar una
reorganizacicon. Puede convocar una sesion y compeler la
asistencia de un numero suficiente de Senadores para
formar quorum, ordenando el arresto si fuese necesario de
dichos senadores. Esto en el supuesto de que el Senador
Avelino y su grupo sigan boicoteando las sesiones del Senado
para impedir la existencia de un quorum. Pero si el grupo
Avelino acude voluntariamente al Senado, entonces los dos
grupos pueden buenamente restaurar la normalidad
constitucional, procediendo a efectuar la reorganizacion que
desee y dicte la mayoria.
Hasta que esto se haga, el Senador Avelino es
tecnicamente presidente del Senado. Es verdad que Avelino
cometio una grave arbitrariedad ordenando el levantamiento
de la sesion sin derecho y facultad para ello; pero una
arbitrariedad no justifica otra arbitrariedad; la de destituirle por
medios anticonstitucionales, ilegales y antireglamentarios. Los
motivos de la accion de Avelino y de la de sus adversarioe no
nos interesan para nada ni caen dentro de nuestra provincia; lo
unico que nos concierne son sus repercusiones juridicas.
Es de suma importancia, sobre todo en estos
momentos incipientes de la republica, el que mantengamos
rigida e implacablemente la integridad de la Constitucion y de
los procedimientos que prescribe. Solo de esta manera
podremos evitar el ciego desbordamiento de las pasiones
politicas y personales, con odas sus funestas consecuencias. A
toda costa hay que impedir la formacion de un clima politico,
social o moral que facilite las cuarteladas, los
pronunciamientos, los golpes de mano y de estado (coup
d'main, coup d'etat) — eso que caracteriza la historia azarosa
de las llamadas "banana republics". Un 19 Brumario solamente
se puede prevenir imponiendo con todo rigor, sin blandas
transigencias, la observancia de la Constitucion y de las leyes y
reglamentos que la implementan. Voto, por tanto, en favor de
la concesion del recurso interpuesto.
TUASON, J., dissenting:
I agree with Mr. Justice Briones' dissenting opinion,
that the twelve senators who elected Senator Cuenco Acting
President of the Senate did not constitute a quorumand,
consequently, that his election was illegal.
It appears to me that the basis for computing
a quorum of the Senate is the number of senators who have
been elected and duly qualified and who have not ceased to be
senators by death or legal disqualification. If this were not so,
what is the standard of computation? No satisfactory,
reasonable alternative has been or can be offered.
Absence abroad cannot be a disqualification unless by
such absence, under the Constitution, a member of the Senate
loses his office, emoluments, and other prerogatives,
temporarily or permanently. There is no claim that this happens
when a senator leaves the Philippines. If ready availability of the
senators' presence at the session be the criterion, then serious
illness or being in a remote island with which Manila has no
regular means of communication should operate to eliminate
the sick or absent members from the counting for the purpose
of determining the presence of a majority.
The distinction made between absentees from
legislative sessions who are in the Philippines and absentees
who are in a foreign country is, to my mind, arbitrary and
unreasonable. From both the theoretical and the practical
points of view, it has no reason for being. Trips abroad by
members of Congress are sometimes found necessary to fulfill
their missions. If we test the interpretation by its consequences,
its unsoundness and dangers become more apparent. The
interpretation would allow any number of legislators, no matter
how small, to transact business so long as it is a majority of the
legislators present in the country. Nothing in my opinion could
have been farther from the minds of the authors of
the Constitution than to permit, under circumstances, less than
a majority of the chosen and qualified representatives of the
people to approve measures that might vitally affect their lives,
their liberty, happiness and property. The necessity of arresting
absent members to complete a quorum is too insignificant,
compared with the necessity of the attendance of an absolute
majority, to make unamenability to arrest a factor for ruling out
absentees who are beyond the legislature's process. The
Congress is eminently a law-making body and is little concerned
with jurisdiction over its members. The power to order arrest is
an emergency measure and is rarely resorted to. Viewed in this
light, it is doubtful if the authority to arrest could always afford
a satisfactory remedy even in the cases of members who were
inside the Philippine territory. This is especially true in the
United States of America, after whose form of government ours
is patterned and whose territorial possessions extend to the
other side of the globe.
This case is easily distinguishable from Vera vs. Avelino,
(77 Phil., 192), and Mabanag vs. Lopez Vito, (78 Phil., 1)
In those cases the petitions were directed against an
action of a recognized Senate exercising authority within its
own domain. Here the process sought is to be issued against an
appointee of a senate that, it is alleged was not validly
constituted to do business because, among other reasons
alleged, there was no quorum. The Court is not asked to
interfere with an action of a coordinate branch of the
government so much as to test the legality of the appointment
of the respondent.
Section 1, Rule 68, of the Rules of Court
provides:
"An action for the usurpation of office
or franchise may be brought in the name of the
Republic of the Philippines against:
(a) A person who usurps, intrudes into,
or unlawfully holds or exercises a public office,
or a franchise, or an office in a corporation
created by authority of law;
xxx xxx xxx
This provision by its terms extends to every office. Its
scope does not exclude officers appointed by the legislative
branch of the government. Although this Court has no control
over either branch of the Congress, it does have the power to
ascertain whether or not one who pretends to be its officer is
holding his office according to law or theConstitution. Political
questions as a bar to jurisdiction can only be raised by the
supreme power, by the legislature, and not by one of its
creatures. (Luther vs. Border, 48 U. S. 7 How. 1, 12 Law ed.,
581.) If there were two lesser officers of the Senate appointed
by different factions thereof and contesting each other's right
to the office, it would not be the Senate but the Court which
would be called upon to decide the controversy. There is more
reason for the Court to intervene when the office of the
President of the Senate is at stake. The interests of the public
are being greatly imperiled by the conflicting claims, and a
speedy determination of the same is imperatively demanded, in
the interest of good government and public order.
Fundamentally this case is analogous to Attorney
General, ex rel. Werts vs. Rogers, 23 Lawyers' Reports,
annotated, 354, to which I am indebted for much of the
reasoning adduced in this dissent on the question of this Court's
jurisdiction.
March 14, 1949
RESOLUTION ON MOTION FOR RECONSIDERATION
Considering the motion for reconsideration filed by
petitioner in case G.R. No. L-2821, Jose Avelino vs. Mariano J.
Cuenco, the Court, without prejudice to writing later an
extended opinion, has resolved, by a majority of seven, to
assume jurisdiction over the case in the light of subsequent
events which justify its intervention; and, partly for the reasons
stated in the first resolution of this Court and partly upon the
grounds stated by Mr. Justice Feria, Mr. Justice Perfecto, and
Mr. Justice Briones in their to declare that there was a quorum
at the session where respondent Mariano J. Cuenco was elected
acting Senate President.
The Chief Justice agrees with the result of the
majority's pronouncement on the quorum upon the ground
that, under the peculiar circumstances of the case, the
constitutional requirement in that regard has become a mere
formalism, it appearing from the evidence that any new session
with a quorum would result in the respondent's election as
Senate President, and that the Cuenco group, taking cue from
the dissenting opinions, has been trying to satisfy such
formalism by issuing compulsory processes against senators of
the Avelino group, but to no avail, because of the latter's
persistent efforts to block all avenues to constitutional
processes. For this reason, he believes that the Cuenco group
has done enough to satisfy the requirements of
the Constitution and that the majority's ruling is in conformity
with substantial justice and with the requirements of public
interest.
The judgment of the Court is, therefore, that
respondent Mariano J. Cuenco has been legally elected as
Senate President and the petition is dismissed, with costs
against petitioner.
Mr. Justice Paras concurs in the result. Mr. Justice
Bengzon dissents on the question of jurisdiction but concurs on
the question of quorum.
Mr. Justice Tuason concurs on the question of
jurisdiction but dissents on that of quorum.
Mr. Justice Montemayor dissents on the question of
jurisdiction and reserves his vote on the question of quorum.
Mr. Justice Reyes reserves the right to express the
reasons for his vote.
FERIA, J., concurring:
In the case of Vera et al. vs. Avelino et al., (77 Phil.,
192), the principal question raised was whether this Supreme
Court had jurisdiction to set aside the Pendatun resolution
ordering that petitioners Vera, Diokno and Romero shall not be
sworn to nor seated as members of the Senate, and compel the
respondents to permit them to occupy their seat, on the ground
that the respondents had no power to pass said resolution,
because it was contrary to the provisions of Sec. 11, Article VI,
of the Constitution, which created the Electoral Tribunal for the
Senate as well as for the House of Representatives, and
provided that said Tribunal shall be sole judge of all contests
relating to the election returns and qualifications of their
respective members. Respondents Avelino et al., who were
represented by Senators Vicente Francisco and the Solicitor
General, impugned the jurisdiction of this Court to take
cognizance of said case on the ground that the question therein
involved was a political question, and petitioners Vera et al.,
who were represented by Attorney Jose W. Diokno, who is now
one of the attorneys for respondents, who now contends that
this Supreme Court has no jurisdiction over the present case,
then maintained that this Court had jurisdiction.
And in the case of Mabanag et al. vs. Jose Lopez Vito et
al., 78 Phil., 1, the question involved was whether it was within
the jurisdiction of this Court to take cognizance of the case and
prohibit the respondents from enforcing the "Congressional
Resolutions of both Houses proposing an amendment to
the Constitution of the Philippines to be appended as an
ordinance thereto", granting certain rights to the citizens of the
United States of America in the Philippines, on the ground that
it was null and void because it was not passed by the vote of
three-fourths of all the members of the Senate and House of
Representatives, voting separately, as required by Sec. 1, Art.
XV, of the Constitution, since if the Members of Congress who
were not allowed to take part had been counted, the
affirmative votes in favor of the proposed amendment would
have been short of the necessary three fourths vote in either
branch of Congress. Petitioners Mabanag et al. contended that
the Court had jurisdiction and the respondents maintained the
contrary on the ground that the question involved was a
political one and within the exclusive province of the
Legislature.
The theory of Separation of Powers as evolved by the
Courts of last resort from the State Constitutions of the United
States of America, after which our own is patterned, has given
rise to the distinction between justiceable questions which fall
within the province of the judiciary, and political questions
which are not within the jurisdiction of the judiciary and are to
be decided, under the Constitution, 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, except to the extent that the power
to deal with such question has been conferred upon the court
by express or statutory provision. Although it is difficult to
define a political question as contradistinguished from a
justiceable one, it has been generally held that the first involves
political rights which consist in the power to participate, directly
or indirectly, in the establishment or management of the
government, while justiceable questions are those which affect
civil, personal or property rights accorded to every member of
the community or nation.
Under such theory of Separation of Powers, the judicial
Supremacy is the power of judicial review in actual and
appropriate cases and controversies that present justiceable
issues, which fall within the jurisdiction or power allocated to
the judiciary; but when the issue is a political one which comes
within the exclusive sphere of the legislative or executive
department of the Government to decide, the judicial
department or Supreme Court has no power to determine
whether or not the act of the Legislature or Chief Executive is
against the Constitution. What determines the jurisdiction of
the courts is the issue involved, and not the law or
constitutional provision which may be applied. Divorced from
the remedy sought, the declaration of this Court on the matter
of constitutionality or unconstitutionality of a legislative or
executive act, would be a mere advisory opinion, without a
coercive force.
Relying on the ruling laid down in Severino vs.
Governor General, 16 Phil., 366; Abueva vs. Wood, 45 Phil., 612;
and Alejandrino vs. Quezon, 46 Phil., 83, the Supreme Court
upheld the contention of said respondents in both cases that
the question involved was a political question and therefore
this Court had no jurisdiction. I was one of the three Justices
who held that this Court had jurisdiction, and dissented from
the decision of the majority.
When the present case was first submitted to us, I
concurred with the majority, in view of the ruling of the Court in
said two cases, which constitutes a precedent which is
applicable a fortiori to the present case and must, therefore, be
followed by virtue of the doctrine or maxim of stare decisis, and
in order to escape the criticism voiced by Lord Bryce in
American Commonwealth when he said that "The Supreme
Court has changed its color i. e., its temper and tendencies,
from time to time according to the political proclivities of the
men who composed it . . . Their action flowed naturally from
the habits of thought they had formed before their accession to
the bench and from the sympathy they could not but feel for
the doctrine on whose behalf they had contended." (The
ANNALS of the American Academy of Political and Social
Science, May, 1936, p. 50)
Now that the petitioner, who obtained a ruling
favorable to his contention in the Vera-Avelino
case, supra, insists in his motion for reconsideration that this
Court assume jurisdiction and decide whether or not there was
quorum in the session of the Senate of February 21, 1949, and
is willing to abide by the decision of this Court (notwithstanding
the aforementioned precedent), and several of the Justices,
who have held before that this Supreme Court had no
jurisdiction, now uphold the jurisdiction of this Court, I gladly
change my vote and concur with the majority in that this Court
has jurisdiction over cases like the present in accordance with
my stand in the above mentioned cases, so as to establish in
this country the judicial supremacy, with the Supreme Court as
the final arbiter, to see that no one branch or agency of the
government transcends the Constitution, not only in justiceable
but political questions as well.
But I maintain my opinion and vote in the resolution
sought to be reconsidered, that there was a quorum in the
session of the Senate of February 21, 1949, for the following
reasons:
Art. 3 (4) Title VI of the Constitution of 1935 provided
that "the majority of all the members of the National Assembly
constitute a quorum to do business" and the fact that said
provision was amended in the Constitution of 1939, so as to
read "a majority of each House shall constitute a quorum to do
business," shows the intention of the framers of the
Constitution to base the majority, not on the number fixed or
provided for in the Constitution, but on actual members or
incumbents, and this must be limited to actual members who
are not incapacitated to discharge their duties by reason of
death, incapacity, or absence from the jurisdiction of the house
or for other causes which make attendance of the member
concerned impossible, even through coercive process which
each house is empowered to issue to compel its members to
attend the session in order to constitute a quorum. That the
amendment was intentional or made for some purpose, and
not a mere oversight, or for considering the use of the words
"of all the members" as unnecessary, is evidenced by the fact
that Sec. 5 (5) Title VI of the original Constitution which
required "concurrence of two-thirds of the members of the
National Assembly to expel a member" was amended by Sec. 10
(3) Article VI of the present Constitution, so as to require "the
concurrence of two-thirds of all the members of each House".
Therefore, as Senator Confesor was in the United States and
absent from the jurisdiction of the Senate, the actual members
of the Senate at its session of February 21, 1949, were twenty-
three (23) and therefore 12 constituted a majority.
This conclusion is in consonance with the legislative
and judicial precedents. In the Resolution of both Houses
proposing an amendment of the Constitution of the
Philippines to be appended to the Constitution, granting parity
rights to American citizens in the Philippines out of which the
case of Mabanag vs. Lopez, supra arose, both Houses of
Congress in computing the three-fourths of all the members of
the Senate and the House of Representative, voting separately,
required by Sec. 1, Article XV of theConstitution, the three-
fourths of all the members was based, not on the number fixed
or provided for in the Constitution, but on the actual members
who have qualified or were not disqualified. And in the case of
People vs. Fuentes, 46 Phil., 22, the provision of Sec. 1,
subsection 2, of Act No. 3104, which required unanimity of vote
of the Supreme Court in imposing death penalty excepted from
the count those members of the Court who were legally
disqualified from the case, this Court held that the absence of
Chief Justice Avanceña, authorized by resolution of the Court,
was a legal disqualification, and his vote was not necessary in
the determination of the unanimity of the decision imposing
death penalty.
PABLO, M., concurrente:
Aunque los Sres. Magistrados Paras, Feria, Bengzon y
yo, sosteniamos que este Tribunal no tenia jurisdiccion sobre el
asunto porque era de naturaleza eminentemente politico,
emitimos, sin embargo, nuestra opinion de que los doce
senadores constituian quorum legal para tomar resoluciones.
Desde luego, la opinion no puede considerarse como una
sentencia judicial, sino como una simple indicacion de un
arbitro para que los interesados puedan hacer su composicion
de lugar. La indicacion no surtio el efecto deseado. La huelga en
el Senado continua. Los recientes acontecimientos pueden
trascender a peores, con sus inevitables repercusiones dentro y
fuera del pais. Cuando las pasiones politicas no van por el cauce
de la prudencia pueden desbordarse y causar fatales
consecuencias. Es un sano estadismo judicial evitarlo y, si es
necesario, impedirlo.
El recurrente pide que se reconsiderase nuestra
dividida opinion, alegando que las divisiones civiles en varias
naciones han producido sangrientas luchas fratricidas. Si no
tuviera en cuenta mas que la solicitud original y los hechos
probados, la mocion de reconsideracion debe ser denegada en
cuanto a mi voto sobre la falta de jurisdiccion. La jurisdiccion no
se confiere por la simple solicitud de una parte, ni por la
anuencia de ambas, sino por la ley o por la Constitucion.
La apelacion del recurrente de que este Tribunal
asuma jurisdiccion para evitar derramamiento de sangre llega al
corazon. Como magistrado, no deben importarme las
consecuencias de mi opinion, emitida despues de un estudio
concienzudo; pero como ciudadano, me duele ver una lucha
enconada entre dos grupos en el Senado sin fin practico. Al
pueblo interesa que la Legislatura reanude su funcionamiento
normal. Fuerza es transigir, pues, para que haya seis votos que
sostengan que este Tribunal tiene jurisdiccion. Si insisto en mi
opinion anterior, fracasara todo esfuerzo de reajuste de
nuestras opiniones para dar fin a la crisis en el Senado.
El Sr. Presidente del Tribunal y los Sres. Magistrados
Perfecto y Briones opinan hoy que hubo quorum en la
continuacion de la sesion despues de la marcha del Senador
Avelino y compañeros. Con ellos, ya hay siete votos que
sostienen que las resoluciones votadas por los doce senadores
son legales y validas. Pero para dar fuerza legal a esta
conclusion, es indispensable que el Tribunal la declare con
jurisdiccion. Contribuyo mi grano de arena a la feliz conclusion
de un conflicto que esta minando el interes publico: voto hoy
por que el Tribunal asuma jurisdiccion para dar fuerza a mi
opinion anterior de que los doce senadores formaban quorum.
PERFECTO, J., concurring:
The problem of democracy must be faced not in the
abstract but as practical questions, as part of the infinitely
motley aspects of human life. They cannot be considered as
scientific propositions or hypothesis independently from the
actual workings of the unpredictable flights of the spirit which
seem to elude the known laws of the external world.
Experience appears to be the only reliable guide in judging
human conduct. Birth and death rates and incidence of illness
are compiled in statistics for the study and determination of
human behavior, and statistics are one of the means by which
the teaching of experience may render their quota of
contribution in finding the courses leading to the individual
well-being and collective happiness.
The way this case has been disposed of by the
Supreme Court, upon the evidence coming from many quarters
and sectors, is provenly far from being conducive to
democratic eudaemonia. We intended to settle the controversy
between petitioner and respondent, but actually we left
hanging in the air the important and, indeed, vital questions.
They posed before us in quest of enlightenment and reasonable
and just decision. We left the people confused and the country
in a quandary.
We can take judicial notice that legislative work has
been at a standstill; the normal and ordinary functioning of the
Senate has been hampered by the non-attendance to sessions
of about one-half of the members; warrants of arrest have been
issued, openly defied, and remained unexecuted like mere
scraps of paper, notwithstanding the fact that the persons to be
arrested are prominent persons with well- known addresses
and residences and have been in daily contact with news
reporters and photographers. Farce and mockery have been
interspersed with actions and movements provoking conflicts
which invite bloodshed.
It is highly complimentary to our Republic and to our
people that, notwithstanding the overflow of political passions
and the irreconcilable attitude of warring factions, enough self-
restraint has been shown to avoid any clash of forces. Indeed
there is no denying that the situation, as obtaining in the upper
chamber of Congress, is highly explosive. It had echoed in the
House of Representatives. It has already involved the President
of the Philippines. The situation has created a veritable national
crisis, and it is apparent that solution cannot be expected from
any quarter other than this Supreme Court, upon which the
hopes of the people for an effective settlement are pinned.
The Avelino group, composed of eleven senators,
almost one-half of the entire body, are unanimous in belief that
this Court should take jurisdiction of the matter and decide the
merits of the case one way or another, and they are committed
to abide by the decision regardless of whether they believe it to
be right or mistaken. Among the members of the so-called
Cuenco group, there are several Senators who in a not remote
past (See Vera vs. Avelino, 77 Phil., 192 and Mabanag vs. Lopez
Vito, 78 Phil., 1) have shown their conviction that in cases
analogous to the present the Supreme Court has and should
exercise jurisdiction. If we include the former attitude of the
senator who is at present abroad, we will find out that they are
in all eighteen (18) senators who at one time or another
recognized the jurisdiction of the Supreme Court and have
pinned and are pinning their hopes on the Supreme Court for
the settlement of such momentous controversies as the one
now challenging our judicial statesmanship, our patriotism, our
faith in democracy, the role of this Court as the last bulwark of
the Constitution.
In the House of Representatives unmistakable
statements have been made supporting the stand of the
eighteen (18) senators, or of three- fourths (3/4) of the entire
Upper Chamber, in support of the jurisdiction of the Supreme
Court and of the contention that we should decide this case on
the merits.
Judicial "hands-off" policy is, in effect, a showing of
official inferiority complex. Consequently like its parallel in the
psychological field, it is premised on notions of reality
fundamentally wrong. It is an upshot of distorted past
experience, warping the mind so as to become unable to have a
healthy appraisal of reality in its true form.
It is futile to invoke precedents in support of such an
abnormal judicial abdication. The decision in the Alejandrino vs.
Quezon, 46 Phil., 83, is absolutely devoid of any authority. It
was rendered by a colonial Supreme Court to suit the
imperialistic policies of the masters. That explains its glaring
inconsistencies.
Also frivolous is to invoke the decisions in Vera vs.
Avelino, (77 Phil., 192), and Mabanag vs. Lopez Vito, (78 Phil.,
1), both patterned after the colonial philosophy pervading the
decision in Alejandrino vs. Quezon, (46 Phil., 83.) Judicial
emancipation must not lag behind the political emancipation of
our Republic. The judiciary ought to ripen into maturity if it has
to be true to its role as spokesman of the collective conscience,
of the conscience of humanity.
For the Supreme Court to refuse to assume jurisdiction
in this case is to violate the Constitution. Refusal to exercise the
judicial power vested in it is to transgress the fundamental law.
This case raises vital constitutional questions which no one can
settle or decide if this Court should refuse to decide them. It
would be the saddest commentary to the wisdom, foresight and
statesmanship of our Constitutional Convention to have drafted
a document leaving such a glaring hiatus in the organization of
Philippine democracy if it failed to entrust to the Supreme Court
the authority to decide such constitutional questions.
Our refusal to exercise jurisdiction in this case is as
unjustifiable as the refusal of senators on strike to attend the
sessions of the Senate and to perform their duties. A senatorial
walkout defeats the legislative power vested by
the Constitution in Congress. Judicial walkouts are even more
harmful than a laborers' strike or a legislative impasse. Society
may go on normally while laborers temporarily stop to work.
Society may not be disrupted by delay in the legislative
machinery. But society is menaced with dissolution in the
absence of an effective administration of justice. Anarchy and
chaos are its alternatives.
There is nothing so subversive as official abdication or
walkout by the highest organs and officers of government. If
they should fail to perform their functions and duties, what is
the use for minor officials and employees to perform theirs?
The constitutional question of quorum should not be left
unanswered.
Respondent's theory that twelve ( 12) senators
constitute the majority required for the Senate quorum is
absolutely unacceptable. The verbal changes made in the
constitutional amendment, upon the creation of Congress to
replace the National Assembly, have not affected the substance
of the constitutional concept of quorum in both the original and
amended contexts. The words "all the members" used in the
original, for the determination of the quorum of the National
Assembly, have been eliminated in the amendment, as regards
the houses of Congress, because they were a mere surplusage.
The writer of this opinion, as Member of the Second National
Assembly and in his capacity as Chairman of the Committee on
Third Reading, was the one who proposed the elimination of
said surplusage, because "majority of each House" can mean
only the majority of the members thereof, without excluding
anyone, that is, of all the members.
The word majority is a mathematical word. It has, as
such, a precise and exact mathematical meaning. A majority
means more than one-half (1/2). It can never be identified with
one-half (1/2) or less than one-half (1/2). It involves a
comparative idea in which the antithesis between more and
less is etched in the background of reality as a metaphysical
absolute as much as the antithesis of all opposites, and in the
same way that the affirmative cannot be confused with the
negative, the creation with nothingness, existence with non-
existence, truth with falsehood.
The Senate is composed of twenty four (24) senators.
The majority of said senators cannot be less than thirteen (13).
Twelve (12) do not constitute the majority in a group composed
of twenty four (24) units. This is so evident that it is not
necessary to have the mathematical genius of Pythagoras,
Euclid, Newton and Pascal to see it. Any elementary school
student may immediately perceive it.
No amount of mental gymnastics or juristic
logodaedaly will convince anyone that one of two equal
numbers constitute a majority part of the two numbers
combined. The five (5) fingers of one hand cannot be the
majority of the combined ten (10) fingers of the two hands.
Majority is incompatible with equality. It implies the idea of
superiority.
Majority is a derivative of major which, in its turn, is a
derivative of the latin "magnus," meaning great. Majority
means the greater of two numbers that are regarded as parts of
a total: the number greater than half. It implies a whole of
which constitutes the greater part or portion. It presupposes
the existence of a total and, in the present case, the total
number of twenty four (24) senators composing the Senate.
The above pronouncements notwithstanding, we are
now inclined to conclude that for the purpose of choosing
respondent merely as Acting President of the Senate, as an
emergency measure to fill the vacuum created by petitioner's
desertion of the office of presiding officer by his walkout in the
session of February 21, 1949, the presence of the twelve (12)
senators was enough quorum.
The Constitution provides:
"(2) A majority of each House shall
constitute a quorum to do business, but a
smaller number may ajourn from day to day and
may compel the attendance of absent Members
in such manner and under such penalties as
such House may provide." (Sec. 10, Article VI.)
The "smaller number" referred to in the above
provision has to act collectively and cannot act as collective
body to perform the functions specifically vested in it by
theConstitution unless presided by one among their number.
The collective body constituted by said "smaller number" has to
take measure to "compel the attendance of absent members in
such manner and under such penalties as such House may
provide," so as to avoid disruption in the functions of the
respective legislative chamber. Said "smaller number" may be
twelve or even less than twelve senators to constitute a
quorum for the election of a temporary or acting president,
who will have to act until normalcy is restored.
As events have developed after the decision in this
case has been rendered on March 4, 1949, the picture of
petitioner's attitude has acquired clearer and more definite
form, and that picture brings us to the conclusion that this case
turned into a moot one.
At the hearing of this case for the reception of
evidence before Mr. Justice Bengzon, Senator Mariano J.
Cuenco, the respondent, on cross-examination by Senator
Vicente J. Francisco, counsel for petitioner, manifested that he
was looking for an opportunity to renounce the position of
Acting President of the Senate, and that if Senator Jose Avelino,
the petitioner, should attend the sessions of the Senate and
insist on claiming the presidency thereof, he, the respondent,
would allow petitioner to preside over the sessions. He would
only make of record his protest, and never resort to force or
violence to stop petitioner from presiding over said sessions.
The last statement as to allowing petitioner to preside
over the sessions was made by respondent under oath twice,
and petitioner, although he refused to attend the hearing of
this case, so much so that, instead of testifying, he just signed
an affidavit which, under the rules of procedure, is inadmissible
as incompetent and is as valueless as an empty gesture, could
not fail to learn about respondent's testimony, because it was
given publicly, it is recorded in the transcript, and petitioner's
counsel, Senator Francisco, would certainly not have failed to
inform him about it.
Notwithstanding respondent's testimony, petitioner
failed to take advantage of it and continues to refuse to attend
the sessions of the Senate since he and his group of senators
have walked out from the historic Monday session of February
21, 1949.
If petitioner is sincere in his desire of presiding over
the sessions of the Senate, for which reason he has sought the
help of the Supreme Court, why has he failed to take advantage
of the commitment made under oath by respondent since
February 26, 1949? Why has he, since then, been not only
failing but refusing to attend the sessions and preside over
them? Why is it that petitioner and his group of Senators have
given occasion, in fact, compelled the senators of the Cuenco
group to issue warrants of arrest to remedy the lack of quorum
that has been hampering the sessions of the Senate? Why is it
that the Senate sergeant-at-arms, his subordinates and the
peace officers helping him, have to be hunting for the senators
of the Avelino group in a, so far, fruitless if not farcical endeavor
to compel them to attend the sessions?
The events that have been unfolding before our eyes,
played up everyday in screaming headlines in all newspapers
and of which, by their very nature, we cannot fail to take
judicial notice, considered, weighed and analyzed in relation
with the happenings in the Friday and Monday sessions,
February 18 and 21, 1949, have driven into our mind the
conviction that, although petitioner would hold fast to the
authority, powers and prestige which command the position of
President of the Senate, he actually has no earnest desire to
preside over the sessions of the Senate, the most characteristic
and important function of President of the Senate.
His refusal to attend the sessions, notwithstanding
respondent's commitment to allow him to preside over them,
can and should logically be interpreted as an abandonment
which entails forfeiture of office. (Santiago vs. Agustin, 46 Phil.,
14; Ortiz vs. De Guzman, 49 Phil., 371; 46 Corpus Juris p. 980-
981; Wilkinson vs. City of Birmingham, 68 So. 999; 43 American
Jurisprudence p. 27).
What are petitioner's reasons for refusing to attend
the Senate sessions? What are his group's reasons? They say
that they want a square decision on the merits of this case, for
which reason the motion for reconsideration has been filed.
Although we believe that the Supreme Court failed to perform
its official duty in refusing, by majority vote, to exercise
jurisdiction in this case, and the inconsistency in the position
taken by some Members of the majority has only increased
public bewilderment, there are strong grounds to conclude that
there are other stronger reasons for petitioner and his group to
sabotage the sessions of the Senate.
If this Court had decided this case as the four
dissenters would have it, there cannot be any doubt that the
Senate impasse would have been settled many days ago and,
with it, the present national crisis hampering and armstringing
the legislative machinery.
The gravity of the situation cannot be gainsaid. The
showings of open defiance to warrants of arrest are highly
demoralizing. People are asking and wondering if senators are
placed above the law that they can simply ignore warrants of
arrests and despise the authority of the officers entrusted with
the execution. Threats of violence pervade the air. Congress is
neglecting the public interests that demand remedial
legislation. The present state of confusion, of alarm, of
bewilderment, of strife would have ended if, for the reasons we
have stated in our dissenting opinion, the Supreme Court would
have ordered petitioner's reposition.
Once petitioner had been recognized to continue to be
the President of the Senate, he would certainly have attended
the Senate sessions to preside over them. Then the sessions
 with senators of the Avelino group attending, would have been
held with the constitutional quorum. The twelve senators of the
Cuenco group would have the opportunity of voting solidly to
ratify or to reenact all the disputed actuations of the rump
session of February 21, 1949, and there is no doubt that they
would have succeeded in ousting petitioner and electing
respondent to the position of President of the Senate.
Everything then would have followed the normal
course. With the presence of a clear and unquestionable
quorum, petitioner and his followers would have no ground for
any complaint, and respondent could have assumed the
Senate's presidency without any hitch.
Of course, petitioner and the senators of his group
might have resorted again to the same strategy, by staging the
same walkout with which they divested of quorum the rump
session of February 21, 1949, but it is not probable that they
would have taken the same course of action after this Court,
almost unanimously declared that petitioner's action in
adjourning the session of February 21, 1949, was arbitrary and
illegal. At any rate, the Senators of the Cuenco group would
have been by then well prepared to have orders of arrest ready
for immediate execution before the striking senators could
leave the building housing the session hall.
The abnormal situation in the Senate must be stopped
at once. Legislation must go on. The serious charges filed or
may be filed against petitioner, respondent and other senators
demand imperatively investigation and action to acquit the
innocent and to punish the guilty ones. Public interest cannot
demand less.
Under such circumstances, petitioner has lost all title
to claim the position in controversy. This result will not legally
or practically close any door for him to again seek the position
by attending the sessions of the Senate and by securing a
majority that would support him in his bid.
||| (Avelino v. Cuenco, G.R. No. L-2821 (Resolution), [March 4,
1949], 83 PHIL 17-84)
FIRST DIVISION
[G.R. No. L-17144. October 28, 1960.]
SERGIO OSMEÑA, JR., petitioner, vs. SALIPADA
K. PENDATUN, LEON Z. GUINTO, JR., VICENTE L.
PERALTA, FAUSTINO TOBIA, LORENZO G.
TEVES, JOSE J. ROY, FAUSTO DUGENIO,
ANTONIO Y. DE PIO, BENJAMIN T. LIGOT,
PEDRO G. TRONO, FELIPE ABRIGO, FELIPE S.
ABELEDA, TECLA SAN ANDRES ZIGA, ANGEL B.
FERNANDEZ, and EUGENIO S. BALTAO, in their
capacity as members of the Special Committee
created by House Resolution No.
59, respondents.
A. Padilla, F. A. Rodrigo and T. T. Quiazon, Jr., for
petitioner.
Antonio Y. de Pio in his own behalf.
F. S. Abeleda, A. B. Fernandez, E. S. Baltao and Tecla
San Andres Ziga in their own behalf.
C. T. Villareal and R. D. Bagatsing as amici curiae.
SYLLABUS
1. CONSTITUTIONAL LAW; CONGRESS;
PARLIAMENTARY IMMUNITY OF MEMBERS, NOT ABSOLUTE. —
While parliamentary immunity guarantees the legislator
complete freedom of expression without fear of being made
responsible in criminal or civil actions before the courts or any
other forum outside of the Congressional Hall, however, it does
not protect him from responsibility before the legislative body
itself whenever his words and conduct are considered by the
latter disorderly or unbecoming a member thereof. For
unparliamentary conduct, members of Congress can be
censured, committed to prison, suspended, even expelled by
the votes of their colleagues.
2. ID.; ID.; PARLIAMENTARY RULES; FAILURE TO
CONFORM TO RULES, EFFECT OF. — Parliamentary rules are
the pertinent portions of which read as follows:
merely procedural, and with their observance, the courts have
no concern. They may be waived or disregarded by the
legislative body. Consequently, mere failure to conform to
parliamentary usage will not invalidate the action taken by a
deliberate body when the requisite number of members have
agreed to a particular measure.
3. ID.; ID.; POWER OF CONGRESS TO DETERMINE
DISORDERLY BEHAVIOR OF MEMBERS; SEPARATION OF
POWERS. — The House of Representatives is the judge of what
constitutes disorderly behavior. The courts will not resume a
jurisdiction in any case which will amount to an interference by
the judicial department with the legislature.
4. ID.; ID.; ID.; PERSONAL ATTACK UPON CHIEF
EXECUTIVE CONSTITUTES DISORDERLY BEHAVIOUR. — The
House of Representatives of the United States has taken the
position that personal attacks upon the Chief Executive
constitutes unparliamentary conduct or breach of order. And in
several instances, it took action against offenders, even after
other business had been considered.
5. ID.; ID.; POWER OF CONGRESS TO SUSPEND ITS
MEMBERS. — While under the Jones Law, the Senate had no
power to suspend appointive member (Alejandrino vs. Quezon,
46 Phil., 83), at present Congress has the inherent legislative
prerogative of suspension which the Constitution did not
impair.
DECISION
BENGZON, J p:
On July 14, 1960, Congressman Sergio Osmeña, Jr.,
submitted to this Court a verified petition for "declaratory
relief, certiorari and prohibition with preliminary injunction"
against Congressman Salipada K. Pendatun and fourteen other
congressmen in their capacity as members of the Special
Committee created by House Resolution No. 59. He asked for
annulment of such Resolution on the ground of infringement of
his parliamentary immunity; he also asked, principally, that said
members of the special committee be enjoined from
proceeding in accordance with it, particularly the portion
authorizing them to require him to substantiate his charges
against the President, with the admonition that if he failed to
do so, he must show cause why the House should not punish
him.
The petition attached a copy of House Resolution No. 59,
"WHEREAS, on the 23rd day of June,
1960, the Honorable Sergio Osmeña, Jr.,
Member of the House of Representatives from
the Second District of the province of Cebu, took
the floor of this Chamber on the one hour
privilege to deliver a speech, entitled 'A
Message to Garcia;'
WHEREAS, in the course of said speech,
the Congressman from the Second District of
Cebu stated the following:
xxx xxx xxx
"The people, Mr. President, have been
hearing of ugly reports that under your
unpopular administration the free things they
used to get from the government are now for
sale at premium prices. They say that even
pardons are for sale, and that regardless of the
gravity or seriousness of a criminal case, the
culprit can always be bailed out forever from jail
as long as he can come across with a handsome
dole. I am afraid, such an anomalous situation
would reflect badly on the kind of justice that
your administration is dispensing. . . ."
WHEREAS, the charges of the
gentleman from the Second District of Cebu, if
made maliciously or recklessly and without basic
in truth and in fact, would constitute a serious
assault upon the dignity and prestige of the
Office of the President, which is the one visible
symbol of the sovereignty of the Filipino people,
and would expose said office to contempt and
disrepute; . . .
Resolved by the House of
Representatives, that a special committee of
fifteen Members to be appointed by the
Speaker be, and the same hereby is, created to
investigate the truth of the charges against the
President of the Philippines made by Honorable
Sergio Osmeña, Jr., in his privileges speech of
June 23, 1960, and for such purpose it is
authorized to summon Honorable Sergio
Osmeña, Jr., to appear before it to substantiate
his charges, as well as to
issue subpoena and/or subpoena duces tecum to
require the attendance of witnesses and/or the
production of pertinent papers before it, and if
Honorable Sergio Osmeña, Jr., fails to do so to
require him to show cause why he should not be
punished by the House. The special committee
shall submit to the House a report of its findings
 and recommendations before the adjournment
of the present special session of the Congress of
the Philippines."
In support of his request, Congressman Osmeña alleged:
first, the Resolution violated his constitutional absolute
parliamentary immunity for speeches delivered in the House;
second, his words constituted no actionable conduct; and third,
after his allegedly objectionable speech and words, the House took
up other business, and Rule XVII, sec. 7 of the Rules of the House
provides that if other business has intervened after the Member had
uttered obnoxious words in debate, he shall not be held to answer
therefor nor be subject to censure by the House.
Although some members of the court expressed doubts of
petitioner's cause of action and the Court's jurisdiction, the majority
decided to hear the matter further, and required respondents to
answer, without issuing any preliminary injunction. Evidently aware
of such circumstance with its implications, and pressed for time in
view of the imminent adjournment of the legislative session, the
special committee continued to perform its task, and after giving
Congressman Osmeña a chance to defend himself, submitted its
report on July 18, 1960, finding said congressman guilty of serious
disorderly behavior; and acting on such report, the House approved
on the same day — before closing its session — House Resolution
No. 175, declaring him guilty as recommended, and suspending him
from office for fifteen months.
Thereafter, on July 19, 1960, the respondents (with the
exception of Congressmen De Pio, Abeleda, San Andres Ziga,
Fernandez and Baltao) 1 filed their answer, challenged the
jurisdiction of this Court to entertain the petition, defended the
power of Congress to discipline its members with suspension,
upheld House Resolution No. 175 and then invited attention to the
fact that Congress having ended its session on July 18, 1960, the
Committee — whose members are the sole respondents — had
thereby ceased to exist.
There is no question that Congressman Osmeña, in a
privilege speech delivered before the House, made the serious
imputations of bribery against the President which are quoted in
Resolution No. 59, and that he refused to produce before the House
Committee created for the purpose, evidence to substantiate such
imputations. There is also no question that for having made the
imputations and for failing to produce evidence in support thereof,
he was, by resolution of the House, suspended from office for a
period of fifteen months, for serious disorderly behaviour.
Resolution No. 175 states in part:
"WHEREAS, the Special Committee
created under and by virtue of Resolution No.
59, adopted on July 8, 1960, found
Representative Sergio Osmeña, Jr., guilty of
serious disorderly behaviour for making without
basis in truth and in fact, scurrilous, malicious,
reckless and irresponsible charges against the
President of the Philippines in his privilege
speech of June 23, 1960; and
WHEREAS, the said charges are so vile
in character that they affronted and degraded
the dignity of the House of Representatives:
Now, Therefore, be it.
RESOLVED by the House of
Representatives, That Representative Sergio
Osmeña, Jr., be, as he hereby is, declared guilty
of serious disorderly behaviour; and . . ."
As previously stated, Osmeña contended in his petition
that: (1) the Constitution gave him complete parliamentary
immunity, and so, for words spoken in the House, he ought not to
be questioned; (2) that his speech constituted no disorderly
behaviour for which he could be punished; and (3) supposing he
could be questioned and disciplined therefor, the House had lost the
power to do so because it had taken up other business before
approving House Resolution No. 59. Now, he takes the additional
position (4) that the House has no power, under the Constitution, to
suspend one of its members.
Section 15, Article VI of our Constitution provides that "for
any speech or debate" in Congress, the Senators or Members of the
House of Representatives "shall not be questioned in any other
place." This section was taken or is a copy of sec. 6, clause 1 of Art. 1
of the Constitution of the United States. In that country, the
provision has always been understood to mean that although
exempt from prosecution or civil actions for their words uttered in
Congress, the members of Congress may, nevertheless, be
questioned in Congress itself. Observe that "they shall not be
questioned in any other place" than Congress.
Furthermore, the Rules of the House which petitioner
himself has invoked (Rule XVII, sec. 7), recognize the House's power
to hold a member responsible "for words spoken in debate."
Our Constitution enshrines parliamentary immunity which
is a fundamental privilege cherished in every legislative assembly of
the democratic world. As old as the English Parliament, its purpose
"is to enable and encourage a representative of the public to
discharge his public trust with firmness and success" for "it is
indispensably necessary that he should enjoy the fullest liberty of
speech, and that he should be protected from the resentment of
every one, however powerful, to whom the exercise of that liberty
may occasion offense." 2 Such immunity has come to this country
from the practices of Parliament as construed and applied by the
Congress of the United States. Its extent and application remain no
longer in doubt in so far as related to the question before us. It
guarantees the legislator complete freedom of expression without
fear of being made responsible in criminal or civil actions before the
courts or any other forum outside of the Congressional Hall. But it
does not protect him from responsibility before the legislative body
itself whenever his words and conduct are considered by the latter
disorderly or unbecoming a member thereof. In the United States
Congress, Congressman Fernando Wood of New York was censured
for using the following language on the floor of the House: "A
monstrosity, a measure the most infamous of the many infamous
acts of the infamous Congress." (Hinds' Precedents, Vol. 2, pp. 798-
799). Two other congressmen were censured for employing
insulting words during debate. (2 Hinds' Precedents, 799-801). In
one case, a member of Congress was summoned to testify on a
statement made by him in debate, but invoked his parliamentary
privilege. The Committee rejected his plea. (3 Hinds' Precedents
123-124.)
For unparliamentary conduct, members of Parliament or of
Congress have been, or could be censured, committed to
prison, 3 suspended, even expelled by the votes of their colleagues.
The appendix to this decision amply attests to the consensus of
informed opinion regarding the practice and the traditional power
of legislative assemblies to take disciplinary action against its
members, including imprisonment, suspension or expulsion. It
mentions one instance of suspension of a legislator in a foreign
country.
And to cite a local illustration, the Philippine Senate, in
April 1949, suspended a senator for one year.
Needless to add, the Rules of Philippine House of
Representatives provide that the parliamentary practices of the
Congress of the United States shall apply in a supplementary
manner to its proceedings.
 This brings up the third point of petitioner: the House may
no longer take action against me, he argues, because after my
speech, and before approving Resolution No. 59, it had taken up
other business. Respondents answer that Resolution No. 59 was
unanimously approved by the House, that such approval amounted
to a suspension of the House Rules, which according to standard
parliamentary practice may be done by unanimous consent.
Granted, counters the petitioner, that the House may
suspend the operation of its Rules, it may not, however, affect past
acts or renew its right to take action which had already lapsed.
The situation might thus be compared to laws 4 extending
the period of limitation of actions and making them applicable to
actions that had lapsed. The Supreme Court of the United States has
upheld such laws as against the contention that they impaired
vested rights in violation of the Fourteenth Amendment
(Campbell vs. Holt, 115 U. S. 620). The states hold divergent views.
At any rate, courts have declared that "the rules adopted by
deliberative bodies are subject to revocation modification or waiver
at the pleasure of the body adopting them." 5 And it has been said
that "Parliamentary rules are merely procedural, and with their
observance, the courts have no concern. They may be waived or
disregarded by the legislative body." Consequently, "mere failure to
conform to parliamentary usage will not invalidate the action (taken
by a deliberative body) when the requisite number of members
have agreed to a particular measure." 6
The following is quoted from a reported decision of the
Supreme Court of Tennessee:
"The rule here invoked is one of
parliamentary procedure, and it is uniformly
held that it is within the power of all
deliberative bodies to abolish, modify, or waive
their own rules of procedure, adopted for the
orderly conduct of business, and as security
against hasty action." (Bennet vs. New Bedford,
110 Mass, 433; Holt vs. Somerville, 127 Mass.
408, 411; City of Sadalia vs. Scott, 104 Mo. App.
595, 78 S. W. 276; Ex parte Mayor, etc., of
Albany, 23 Wend. [N.Y.] 277, 280; Wheelock vs.
City of Lowell, 196 Mass. 220, 230. 81 N. E. 977,
124 Am. St. Rep. 543, 12 Ann. Cas. 1109; City of
Corinth vs. Sharp, 107 Miss. 696, 65 So. 888;
McGraw vs. Whitson, 69 Iowa, 348, 28 N. W.
632; Tuell vs. Meacham contracting Co. 145 Ky.
181, 186, 140 S. W. 159, Ann. Cas. 1913B, 802.)
[Taken from the case of Rutherford vs. City of
Nashville, 78 South Western Reporter, p. 534.]
It may be noted in this connection, that in the case of
Congressman Stanbery of Ohio, who insulted the Speaker, for which
Act a resolution of censure was presented, the House approved the
resolution, despite the argument that other business had intervened
after the objectionable remarks. (2 Hinds' Precedents pp. 799-800.)
On the question whether delivery of speeches attacking the
Chief Executive constitutes disorderly conduct for which Osmeña
may be disciplined, many arguments pro and con have been
advanced. We believe, however, that the House is the judge of what
constitutes disorderly behaviour, not only because
the Constitution has conferred jurisdiction upon it, but also because
the matter depends mainly on factual circumstances of which the
House knows best but which can not be depicted in black and white
for presentation to, and adjudication by the Courts. For one thing, if
this Court assumed the power to determine whether Osmeña's
conduct constituted disorderly behaviour, it would thereby have
assumed appellate jurisdiction, which the Constitution never
intended to confer upon a coordinate branch of the Government.
The theory of separation of powers fastidiously observed by this
Court, demands in such situation a prudent refusal to interfere. Each
department, it has been said, has exclusive cognizance of matters
within its jurisdiction and is supreme within its own sphere. (Angara
vs. Electoral Commission, 63 Phil., 139.)
"SEC. 200. Judicial Interference with
Legislature. — The principle is well established
that the courts will not assume a jurisdiction in
any case which will amount to an interference
by the judicial department with the legislature
since each department is equally independent
within the powers conferred upon it by
the Constitution. . . ."
"The general rule has been applied in
other cases to cause the courts to refuse to
intervene in what are exclusively legislative
functions. Thus, where the state Senate is given
the power to expel a member, the courts will
not review its action or revise even a most
arbitrary or unfair decision." (11 Am. Jur., Const.
Law, sec. 200, p. 902.) [Italics Ours.]
The above statement of American law merely abridged the
landmark case of Clifford vs. French. 7 In 1905, several senators who
had been expelled by the State Senate of California for having taken
a bribe, filed mandamus proceedings to compel reinstatement,
alleging the Senate had given them no hearing, nor a chance to
make defense, besides falsity of the charges of bribery. The
Supreme Court of California declined to interfere, explaining in
orthodox juristic language:
"Under our form of government, the
judicial department has no power to revise even
the most arbitrary and unfair action of the
legislative department, or of either house
thereof, taking in pursuance of the power
committed exclusively to that department by
the Constitution. It had been held by high
authority that, even in the absence of an
express provision conferring the power, every
legislative body in which is vested the general
legislative power of the state has the implied
power to expel a member for any cause which it
may deem sufficient. In Hiss vs. Barlett. 3 Gray
473. 63 Am. Dec. 768, the supreme court of
Mass. says, in substance, that this power is
inherent in every legislative body; that it is
necessary to enable the body 'to perform its high
functions, and is necessary to the safety of the
state;' 'That it is a power of self-protection, and
that the legislative body must necessarily be the
sole judge of the exigency which may justify and
require its exercise. '. . . There is no provision
authorizing courts to control, direct, supervise,
or forbid the exercise by either house of the
power to expel a member. These powers are
functions of the legislative department and
therefore, in the exercise of the power thus
committed to it, the senate is supreme. An
attempt by this court to direct or control the
legislature, or either house thereof, in the
exercise of the power, would be an attempt to
exercise legislative functions, which it is
expressly forbidden to do."
We have underscored in the above quotation these lines
which in our opinion emphasize the principles controlling this
litigation. Although referring to expulsion, they may as well be
applied to other disciplinary action. Their gist as applied to the case
at bar: the House has exclusive power; the courts have no
jurisdiction to interfere.
Our refusal to intervene might impress some readers as
subconscious hesitation due to discovery of impermissible course of
action in the legislative chamber. Nothing of that sort: we merely
refuse to disregard the allocation of constitutional functions which it
is our special duty to maintain. Indeed, in the interest of comity, we
feel bound to state that in a conscientious survey of governing
principles and/or episodic illustrations, we found the House of
Representatives of the United States taking the position on at least
two occasions, that personal attacks upon the Chief
Executive constitute unparliamentary conduct or breach of
order. 8 And in several instances, it took action against
offenders, even after other business had been considered. 9
Petitioner's principal argument against the House's power
to suspend is the Alejandrino precedent. In 1924, Senator
Alejandrino was, by resolution of the Senate, suspended from office
for 12 months because he had assaulted another member of that
Body for certain phrases the latter had uttered in the course of a
debate. The Senator applied to this Court for reinstatement,
challenging the validity of the resolution. Although this Court held
that in view of the separation of powers, it had no jurisdiction to
compel the Senate to reinstate petitioner, it nevertheless went on
to say the Senate had no power to adopt the resolution because
suspension for 12 months amounted to removal, and the Jones
Law (under which the Senate was then functioning) gave the
Senate no power to remove on appointive member, like Senator
Alejandrino. The Jones Lawspecifically provided that "each house
may punish its members for disorderly behaviour, and, with the
concurrence of two-thirds votes, expel an elective member (sec. 18).
Note particularly the word "elective."
The Jones Law, it must be observed, empowered the
Governor General to appoint "without consent of the Senate and
without restriction as to residence senators . . . who will, in his
opinion, best represent the Twelfth District." Alejandrino was one
appointive Senator.
It is true, the opinion in that case contained an obiter
dictum that "suspension deprives the electoral district of
representation without that district being afforded any means by
which to fill that vacancy." But that remark should be understood to
refer particularly to the appointive senator who was then the
affected party and who was by the same Jones Law charged with
the duty to represent the Twelfth District and maybe the views of
the Government of the United States or of the Governor-General,
who had appointed him.
It must be observed, however, that at that time the
Legislature had only those powers which were granted to it by
the Jones Law; 10 whereas now the Congress has the full legislative
powers and prerogatives of a sovereign nation, except as restricted
by the Constitution. In other words, in the Alejandrino case, the
Court reached the conclusion that the Jones Law did not give the
Senate the power it then exercised — the power of suspension for
one year. Whereas now, as we find, the Congress has the inherent
legislative prerogative of suspension 11 which the Constitution did
not impair. In fact, as already pointed out, the Philippine Senate
suspended a Senator for 12 months in 1949.
"The Legislative power of the Philippine
Congress is plenary, subject only to such
limitations as are found in the
Republic's Constitution. So that any power
deemed to be legislative by usage or tradition, is
necessarily possessed by the Philippine
Congress, unless the Constitution provides
otherwise." (Vera vs. Avelino, 77 Phil., 192, 212.)
In any event, petitioner's argument as to the deprivation of
the district's representation can not be more weighty in the matter
of suspension than in the case of imprisonment of a legislator; yet
deliberative bodies have the power in proper cases, to commit one
of their members to jail. 12
Now come questions of procedure and jurisdiction. The
petition intended to prevent the Special Committee from acting in
pursuance of House Resolution No. 59. Because no preliminary
injunction had been issued, the Committee performed its task,
reported to the House, and the latter approved the suspension
order. The House has closed its session, and the Committee has
ceased to exist as such. It would seem, therefore, the case should be
dismissed for having become moot or academic. 13 Of course, there
is nothing to prevent petitioner from filing new pleadings to include
all members of the House as respondents, ask for reinstatement and
thereby to present a justiciable cause. Most probable outcome of
such reformed suit, however, will be a pronouncement of lack of
jurisdiction, as in Vera vs. Avelino 14 and Alejandrino vs. Quezon.
At any rate, having perceived suitable solutions to the
important questions of political law, the Court thought it proper to
express at this time its conclusions on such issues as were deemed
relevant and decisive.
Accordingly, the petition has to be, and is hereby
dismissed. So ordered.
Parás, C.J., Bautista Angelo, Concepción, Barrera, Gutierrez
David, Paredes, and Dizon, JJ., concur.
Separate Opinions
REYES, J.B.L., J., dissenting:
I concur with the majority that the petition filed by
Congressman Osmeña, Jr. does not make out a case either for
declaratory judgment or certiorari, since this Court has no
original jurisdiction over declaratory judgment proceedings, and
certiorari is available only against bodies exercising judicial or
quasi-judicial powers. The respondent committee, being merely
fact finding, was not properly subject to certiorari.
I submit, however, that Congressman Osmeña was entitled
to invoke the Court's jurisdiction on his petition for a writ of
prohibition against the committee, in so far as House Resolution No.
59 (and its sequel, Resolution No. 175) constituted an unlawful
attempt to divest him of an immunity from censure or punishment,
an immunity vested under the very Rules of the House of
Representatives.
House Rule XVII, on Decorum and Debates, in its section V,
provides as follows:
"If it is requested that a Member be
called to order for words spoken in debate, the
Member making such request shall indicate the
words excepted to, and they shall be taken
down in writing by the Secretary and read aloud
to the House; but the Member who uttered
them shall not be held to answer, nor be subject
to the censure of the House therefor, if further
debate or other business has intervened."
Now, it is not disputed that after Congressman Osmeña
had delivered his speech and before the House adopted, fifteen
days later, the resolution (No. 59) creating the respondent
Committee and empowering it to investigate and recommend
proper action in the case, the House had acted on other matters and
debated them. That being the case, the Congressman, even before
the resolution was adopted, had ceased to be answerable for the
words uttered by him in his privilege speech. By the express wording
of the Rules, he was no longer subject to censure or disciplinary
action by the House. Hence, the resolution, in so far as it attempts
to divest him of the immunity so acquired and subject him to
discipline and punishment, when he was previously not so subject,
violates the constitutional inhibition against ex post facto legislation,
and Resolutions Nos. 59 and 175 are legally obnoxious and invalid
on that score. The rule is well established that a law which deprives
an accused person of any substantial right or immunity possessed by
him before its passage is ex post facto as to prior offenses (Cor. Jur.
Vol. 16-A, section 144, p. 153; People vs. McDonnell, 11 Fed. Supp.
1015; People vs. Talkington, 47 Pac. 2d 368; U. S. vs. Garfinkel, 69 F.
Supp., 849).
The foregoing also answers the contention that since the
immunity was but an effect of section 7 of House Rule XVII, the
House could, at any time, remove it by amending those Rules, and
Resolutions Nos. 59 and 175 effected such an amendment by
implication. The right of the House to amend its Rules does not carry
with it the right to retroactively divest the petitioner of an immunity
he had already acquired. The Bill of Rights is against it.
It is contended that as the liability for his speech attached
when the Congressman delivered it, the subsequent action of the
House only affected the procedure for dealing with that liability. But
whatever liability Congressman Sergio Osmeña, Jr. then incurred
was extinguished when the House thereafter considered other
business; and this extinction is a substantive right that can not be
subsequently torn away to his disadvantage. On an analogous issue,
this Court, in People vs. Parel, 44 Phil., 437, has ruled:
"In regard to the point that the subject
of prescription of penalties and of penal actions
pertains to remedial and not substantive law, it
is to be observed that in the Spanish legal
system, provisions for limitation or prescription
of actions are invariably classified as substantive
and not as remedial law; we thus find the
provisions for the prescription of criminal
actions in the Penal Code and not in the 'Ley de
Enjuiciamiento Criminal.' This is in reality a more
logical law. In criminal cases prescription is not,
strictly speaking, a matter of procedure; it bars
or cuts off the right to punish the crime and
consequently, goes directly to the substance of
the action. . . (Italics supplied.)
I see no substantial difference, from the standpoint of the
constitutional prohibition against ex post facto laws, that the
objectionable measures happen to be House Resolutions and not
statutes. In so far as the position of petitioner Osmeña is concerned,
the essential point is that he is being subjected to a punishment to
which he was formerly not amenable. And while he was only meted
out a suspension of privileges, that suspension is as much a penalty
as imprisonment or a fine, which the House could have inflicted
upon him had it been so minded. Such punitive action is violative of
the spirit, if not of the letter, of the constitutional provision
against ex post facto legislation. Nor is it material that the
punishment was inflicted in the exercise of disciplinary power.
"The ex post facto effect of a law," the Federal Supreme Court has
ruled, "can not be evaded by giving civil form to that which is
essentially criminal" (Burgess vs. Salmon, 97 L. Ed. [U.S.] 1104, 1106;
Cummings vs. Missouri, 18 L. Ed. 276).
The plain purpose of the immunity provided by the House
rules is to protect the freedom of action of its members and to
relieve them from the fear of disciplinary action taken upon second
thought, as a result of political convenience, vindictiveness, or
pressures. It is unrealistic to overlook that, without the immunity so
provided, no member of Congress can remain free from the hunting
fear that his most innocuous expressions may at any time
afterwards place him in jeopardy of punishment whenever a
majority, however transient, should feel that the shifting sands of
political expediency so demand. A rule designed to assure that
members of the House may freely act as their conscience and sense
of duty should dictate complements the parliamentary immunity
from outside pressure enshrined in our Constitution, and is certainly
deserving of liberal interpretation and application.
The various precedents, cited in the majority opinion, as
instances of disciplinary action taken notwithstanding intervening
business, are not truly applicable. Of the five instances cited by
Deschler (in his edition of Jefferson's Manual), the case of
Congressman Watson of Georgia involved also printed disparaging
remarks by the respondent (III Hinds' Precedents, sec. 2637), so that
the debate immunity rule afforded no defense; that of Congressmen
Weaver and Sparks was one of censure for actual disorderly conduct
(II Hinds, sec. 1657); while the cases of Congressmen Stanbery of
Ohio, Alex Long of Ohio, and of Lovell Rousseau of Kentucky (II
Hinds, secs. 1248, 1252 and 1655) were decided under Rule 62 of
the U. S. House of Representatives as it stood before the 1880
amendments, and was differently worded. Thus, in the Rousseau
case, the ruling of Speaker Colfax was to the following effect (II
Hinds' Precedents, page 1131):
"This sixty-second rule is divided in the
middle by a semicolon, and the Chair asks the
attention of the gentlemen from Iowa (Mr.
Wilson) to the language of that rule, as it settles
the whole question:
"62. If a Member be called to order for
words spoken in debate, the person calling him
to older shall repeat the words excepted to" —
That is, the "calling to order" is
"excepting" to words spoken in debate "and
they shall be taken down in writing at the Clerk's
table; and no Member shall be held to answer,
or be subject to the censure of the House, for
words spoken in debate, if any other Member
has spoken, or other business has intervened,
after the words spoken, and before exception to
them shall have been taken."
The first part of this rule declares that
"calling to order" is "excepting to words spoken
in debate." The second part of the rule declares
that a Member shall not be held subject to
censure for words spoken in debate if other
business has intervened after the words have
been spoken and before "exception" to them
has been taken. Exception to the words of the
gentleman from Iowa (Mr. Grinnell) was taken
by the gentlemen from Illinois (Mr. Harding), the
gentleman from Massachusetts (Mr. Banks), the
gentleman from Kentucky (Mr. Rousseau), and
also by the Speaker of the House, as the records
of the Congressional Globe will show. The
distinction is obvious between the two parts of
the rule. In the first part it speaks of a Member
excepting to language of another and having the
words taken down. In the last part of the rule it
says he shall not be censured thereafter unless
exception to his words were taken; but it omits
to add as an essential condition that the words
must also have been taken down. The
substantial point, indeed the only point,
required in the latter part of the rule is, that
exception to the objectionable words must have
been taken."
 The difference between the Rules as invoked in these cases
and the Rules of our House of Representatives is easily apparent. As
Rule 62 of the United States House of Representatives stood before
1880, all that was required to preserve the disciplinary power of the
House was that exception should have been taken to the remarks on
the floor before further debate or other business intervened. Under
the rules of the Philippine House of Representatives, however, the
immunity becomes absolute if other debate or business has taken
place before the motion for censure is made, whether or not
exceptions or point of order have been made to the remarks
complained of at the time they were uttered.
While it is clear that the parliamentary immunity
established in Article VI, section 15 of our Constitution does not bar
the members being questioned and disciplined by Congress itself for
remarks made on the floor, that disciplinary power does not, as I
have noted, include the right to retroactively amend the rules so as
to divest a member of an immunity already gained. And if Courts
can shield an ordinary citizen from the effects of ex post
facto legislation, I see no reason why a member of Congress should
be deprived of the same protection. Surely membership in the
Legislature does not mean forfeiture of the liberties enjoyed by the
individual citizen.
"The Constitution empowers each
house to determine its rules of proceedings. It
may not by its rules ignore constitutional
restraint or violate fundamental rights and there
should be a reasonable relation between the
mode or method of proceeding established by
the rule and the result which is sought to be
attained. But within these limitations all matters
of method are open to the determination of the
House, and it is no impeachment of the rule to
say that some other way would be better, more
accurate or even more just." (U. S. vs. Ballin,
Joseph & Co., 36 Law Ed., 324-325.)
"Courts will not Interfere with the
action of the state senate in reconsidering its
vote on a resolution submitting an amendment
to the Constitution, where its action was in
compliance with its own rules, and there was no
constitutional provision to the contrary."
(Crawford vs. Gilchrist, 64 Fla. 41, 59 So. 963)
(Italics supplied.)
Finally, that this Court possesses no power to direct or
compel the Legislature to act in any specified manner, should not
deter it from recognizing and declaring the unconstitutionality and
nullity of the questioned resolutions and of all action that has been
taken up in pursuance thereof. Although the respondent committee
has been disbanded after the case was filed, the basic issues remain
so important as to require adjudication by this Court.
LABRADOR, J., dissenting:
I fully concur in the above dissent of Mr. Justice J. B. L.
Reyes, and I venture to add:
Within a constitutional government and in a regime which
purports to be one of law, where law is supreme, even the Congress
in the exercise of the power conferred upon it to discipline its
members, must follow the rules and regulations that it had itself
promulgated for its guidance and for that of its members. The rules
in force at the time Congressman Osmeña delivered the speech
declared by the House to constitute a disorderly conduct provides:
". . . but the Member who uttered
them shall not be held to answer, nor be subject
to the censure of the House therefor, if further
debate or other business has intervened." (Rule
XVII, Sec. 7, Rules, House of Representatives.)
Congressman Osmeña delivered the speech in question on
June 23, 1960. It was only on July 8, or 15 days after June 23, 1960
when the House created the committee that would investigate him.
For fully 15 days the House took up other matters. All that was
done, while the speech was being delivered, was to have certain
portions thereof deleted. I hold that pursuant to its own Rules the
House may no longer punish Congressman Osmeña for the speech
delivered fifteen days before.
The fact that no action was promptly taken to punish
Congressman Osmeña immediately after its delivery, except to have
some parts of the speech deleted, shows that the members of the
House did not then consider Osmeña's speech a disorderly conduct.
The idea to punish Congressman Osmeña, which came 15 days after,
was, therefore, an afterthought. It is, therefore, clear that
Congressman Osmeña is being made to answer for an act, after the
time during which he could be punished therefor had lapsed.
The majority opinion holds that the House can amend its
rules any time. We do not dispute this principle, but we hold that
the House may not do so in utter disregard of the fundamental
principle of law that an amendment takes place only after its
approval, or, as in this case, to the extent of punishing an offense
after the time to punish had elapsed. Since the rule, that a member
can be punished only before other proceedings have intervened,
was in force at the time Congressman Osmeña delivered his speech,
the House may not ignore said rule. It is said in the majority opinion
that the rule limiting the period for imposition of a penalty for a
speech to the day it was made, is merely one of procedure. With
due respect to the opinion of the majority, we do not think that it is
merely a rule of procedure; we believe it actually is a limitation of
the time in which the House may take punitive action against an
offending member; it is a limitation (in reference to time) on the
liability to punishment. As Mr. Justice J. B. L. Reyes points out, the
rule is substantive, not merely a procedural principle, and may not
be ignored when invoked.
If this Government is a Government of laws and not of-
men, then the House should observe its own rule and not violate it
by punishing a member after the period for indictment and
punishment had already passed. Not because the subject of the
Philippic is no less than the Chief Magistrate of the nation should
the rule of the House be ignored by itself. It is true that our
Government is based on the principle of separation of powers
between the three branches thereof. I also agree to the corollary
proposition that this Court should not interfere with the legislature
in the manner it performs its functions; but I also hold that the
Court cannot abandon its duty to pronounce what the law is when
any of its (the House) members, or any humble citizen, invokes the
law.
Congressman Osmeña has invoked the protection of a rule
of the House. I believe it is our bounden duty to state what the rule
being invoked by him is, to point out the fact that the rule is being
violated in meting out punishment for his speech; we should not
shirk our responsibility to declare his rights under the rule simply on
the broad excuse of separation of powers. Even the legislature may
not ignore the rule it has promulgated for the government of the
conduct of its members, and the fact that a coordinate branch of
the Government is involved, should not deter us from performing
our duty. We may not possess the power to enforce our opinion if
the House chooses to disregard the same. In such case the members
thereof stand before the bar of public opinion to answer for their
act in ignoring what they themselves have approved as their norm
of conduct.
Let it be clearly understood that the writer of this dissent
personally believes that vituperous attacks against the Chief
Executive, or any official or citizen for that matter, should be
condemned. But where the Rules, promulgated by the House itself,
fix the period during which punishment may be meted out, said
Rules should be enforced regardless of who may be prejudiced
thereby. Only in that way may the supremacy of the law be
maintained.
APPENDIX — SUSPENSION OF MEMBER OF LEGISLATIVE
BODY.
I. Whatever is spoken in the house is subject to the censure
of the house; and offenses of this kind have been severely punished
by calling the person to the bar to make submission, committing him
to prison, expelling him from the house or inflicting other
punishment. (Mason, Manual of Legislative Procedure, pp. 402-403.)
II. 171. — (1) If a Member is named by the Speaker, or by
the chairman of a committee of the whole House, immediately after
the commission of the offense of disregarding the authority of the
chair, or of persistently and wilfully obstructing the business of the
House, by abusing the rules of the House, then —
(i) If the offense has been committed by a Member in the
House, the Speaker forthwith puts the question, on a motion being
made, no amendment, adjournment or debate being allowed, that
the Member (naming him) be suspended from the service of the
House; and . . .
(2) The suspension of a Member on the first occasion
continues until the fifth day, and on the second occasion until
the twentieth day on which the House sits after the day on which he
was suspended, but on and subsequent occasion it continues until
the House resolves that such suspension be terminated. A Member
suspended under this rule must forthwith quit the precincts of the
House. (House of Commons, Manual of Procedure in the Public
Business, p. 114.)
III. In the course of the debate, Mr. Nelson W. Aldrich, of
Rhode Island, read the following from Cushing:
"The power to expel also includes in it a
power to discharge a Member, for good cause,
without inflicting upon him the censure and
disgrace implied in the term "expulsion", and
this has accordingly been done, in some
instances by the House of Commons.
Analogous to the right of expulsion
is that of suspending a Member from the
exercise of his functions as such, for a longer or
shorter period; which is a sentence of milder
character than the former, though attended
with somewhat different effects; for during the
suspension the electors are deprived of the
services of their representative, without power
to supply his place; but the rights of the electors
are no more infringed by this proceeding than
by an exercise of the power to expression."
(Hinds Precedents II, Sec. 1665.
IV. The suspension of members from the service of the
House is another form of punishment. (May's Parliamentary
Practice, p. 53, cited by Hinds, p. 1141, Vol. II.)
V. The Leader of the House then moves that the
Member be suspended from the service of the House, and the
motion must be put to the question 'without amendment,
adjournment or debate.'
If the member is named in Committee of the whose House
by the Chairman, the latter immediately suspends the proceedings
and reports the circumstances to the House when the Speaker has
resumed the Chair. From this point matters proceed as described
above.
If the House agrees to the suspension, the Speaker again
directs the member to withdraw and, if he still persists in refusing to
do so, even when summoned under the Speaker's orders by the
Sergeant-at-Arms, force is resorted to. If this is necessary, the
Speaker calls the attention of the House to the fact, and in such a
case the suspension of the member is for the remainder of the
session. The normal period of suspension is now fixed at five sitting
days for the first offense and twenty for the second, the
uncompleted portion of the sitting during which the offense was
committed counting as one day. The first offense is taken to mean
the first during that session.
A member who is suspended is not exempt from serving on
a Private Bill Committee but, apart from this exception, suspension
from the service of the House of Commons means exclusion from
the precincts of the Palace of Westminster.
A member guilty of a breach of privilege or contempt may
be suspended without being named, but in such a case the motion
for his suspension would be subject to debate. The practice of
'naming' a member was first introduced by Speaker Lenthal (q.v.) in
1941. (An Encyclopedia of Parliament by Wilding and Laundy, p.
366.)
VI. Offenses which are not sufficiently grave to warrant
imprisonment are punished by admonition to reprimand, the latter
being the more serious punishment of the two. . . . Members of
Parliament who commit offenses are liable to two further
penalties: suspension from the service of the House and expulsion.
(An Encyclopedia of Parliament by Wilding and Laundy, p. 456.)VII. A
portion of the majority, Messrs. L. E. McComas of Maryland, Albert
J. Beverridge of Indiana, and J. C. Pritchard of North Carolina,
submitted views in favor of suspension of the two senators. After
discussing the power to punish generally, they submitted:
". . . Like Parliament, it may imprison or
expel a member for offenses. The suspension of
members from the service of the House is
another form of punishment. (May's
Parliamentary Practice 53). This author
gives instances of suspension in the seventeenth
century and shows the frequent suspension of
members under a standing order of the House
of Commons, passed February 23, 1880."
Says Cushing, section 280: "Members may also be
suspended by way of punishment from their functions as such,
either in whole or in part or for a limited time. This is a sentence of a
milder character than expulsion."
During the suspension, says Cushing, section 627, the
electors are deprived of the services of their representatives
without power to supply his place, but the rights of the electors are
no more infringed by this proceeding than by an exercise of the
power to imprison. (Vol. II, Hinds' Precedents of the House of
Representatives, p. 1141.)
VIII. Suspension from the service of the House was a
punishment employed by the House of Commons under its power of
enforcing discipline among its Members, long before it was
prescribed by standing order for particular offenses, such as
disregard of authority of the Chair, or obstruction, and it can still be
imposed at the discretion of the House, although, of course, not
under the summary procedure authorized by that standing order
(see p. 471).
In 1641, Mr. Gervaise Hollis was suspended by the House
during the session.
In 1643, Sir Norton Knatchbull was suspended by the House
during the pleasure of the House.
 For nearly two centuries this form of punishment had been
in abeyance, no cause of suspension having occurred since 1692.
But at the discretion of the House on 25 of July 1877, as a result of
persistent obstruction by Members who supported Parnell, Mr.
Speaker Brand gave the following ruling:
"The House is perfectly well aware that
any Member persistently and wilfully
obstructing public business without just and
reasonable cause is guilty of a contempt of this
House, and is liable to punishment whether by
censure, suspension from the service of the
House, or commitment, according to the
judgment of the House" (Parl. Deb. [1877]235, c.
1814).
On 20 February 1911, Mr. Ginnell, a Member was
suspended for one week as a punishment for a breach of privilege in
publishing a letter reflecting on the Speaker's conduct in the Chair.
C. J. (1911) 37.
In February 1880, the procedure for suspending a Member
for particular offenses was laid down by Standing Order No. 22 (see
p. 471), and suspension under this Standing Order not infrequent.
(The Law, Privileges Proceedings Usage of Parliament, 6th Ed. pp.
48-53, Fellows and Cocks.)
IX. Resp. having entered the Chamber of the New South
Wales Assembly, of which he was a member, within a week after it
had passed a resolution that he be "suspended from the service of
the House," he was removed therefrom and prevented from re-
entering it: — Held: the resolution must not be construed as
operating beyond the sitting during which the resolution was
passed. — Burton vs. Taylor (1886), 11 App. Cas. 197, P. C. — AUS
(Copied from English and Empire Digest (1927) Vol. 36, p. 295.)
||| (Osmeña, Jr. v. Pendatun, G.R. No. L-17144, [October 28, 1960],
109 PHIL 863-888)
 EN BANC
[G.R. No. 105323. July 3, 1992.]
FRANCISCO I.
CHAVEZ, petitioner, vs. COMMISSION ON
ELECTIONS, respondent.
SYLLABUS
1. POLITICAL LAW; JUDICIAL DEPARTMENT; POWER OF JUDICIAL
REVIEW OVER OTHER BRANCHES OF GOVERNMENT; RULE; CASE AT
BAR. — The alleged inaction of respondent Comelec in ordering the
deletion of Melchor Chavez's name in the list of qualified candidates
does not call for the exercise of the Court's function of judicial
review. This Court can review the decisions or orders of the Comelec
only in cases of grave abuse of discretion committed by it in the
discharge of its quasi-judicial powers and not those arising from the
exercise of its administrative functions. Respondent Commission's
alleged failure to implement its own resolution is undoubtedly
administrative in nature, hence, beyond judicial interference (see
Filipinas Engineering Co. v. Ferrer, 135 SCRA 25 [1985]; Aratuc v.
Commission on Elections, 88 SCRA 251 [1979]; see also Pungutan v.
Abubakar, 43 SCRA 1 [1972]). As aptly observed by the Solicitor
General, respondent Comelec can administratively undo what it has
administratively left undone (Manifestation, p. 2). Moreover,
respondent Comelec has in fact, on May 6, 1992 to be exact,
ordered the deletion of Melchor Chavez's name not only on the
official list of candidates, but also on the election returns, tally sheet
and certificate of canvass (Comment, p. 7). Hence, petitioner's
allegation that respondent Comelec failed to implement Res. No.
92-132 does not hold water.
2. ID.; LEGISLATIVE DEPARTMENT; HOUSE ELECTORAL TRIBUNAL;
SHALL BE THE SOLE JUDGE OF ALL CONTEST RELATING TO THE
ELECTION, RETURNS AND QUALIFICATIONS OF THEIR RESPECTIVE
MEMBERS. — Thus, Sec. 17, Art. VI of the Constitution provides that
"(t)he 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. . . ." (emphasis supplied). The word "sole"underscores the
exclusivity of the Tribunals' jurisdiction over election contests
relating to their respective Members (Co v. Electoral Tribunal of the
House of Representatives, 199 SCRA 692 [1991]; Lazatin v. House of
Representatives Electoral Tribunal, 168 SCRA 391 [1988]; Angara v.
Electoral Commission, 63 Phil. 139 [1936]). It is therefore crystal
clear that this Court has no jurisdiction to entertain the instant
petition. It is the Senate Electoral Tribunal which has exclusive
jurisdiction to act on the complaint of petitioner involving, as it
does, contest relating to the election of a member of the Senate. As
aforesaid, petitioner's proper recourse is to file a regular election
protest before the Senate Electoral Tribunal after the winning
senatorial candidates have been proclaimed.
3. ELECTION LAW; ELECTION CONTEST ; PRE-PROCLAMATION
CONTROVERSY; NOT ALLOWED IN ELECTIONS FOR PRESIDENT, VICE-
PRESIDENT, SENATORS AND MEMBERS OF HOUSE OF
REPRESENTATIVE. — While the Commission has exclusive
jurisdiction over pre-proclamation controversies involving local
elective officials (Sec. 242, Omnibus Election Code), nevertheless,
pre-proclamation cases are not allowed in elections for President,
Vice-President, Senator and Member of the House of
Representatives as provided in Sec. 15 of Republic Act 7166.
4. ID.; ID.; ID.; NOT A PROPER RECOURSE IN CASE OF ERRORS IN THE
APPRECIATION OF BALLOT; REASON THEREFOR. — The function of
ballots appreciation is performed by the boards of election
inspectors at the precinct level. 3."The scope of pre-proclamation
controversy is limited to the issues enumerated under Sec. 243 of
the Omnibus Election Code. The enumeration therein of the issues
that may be raised in pre-proclamation controversy is restrictive and
exclusive. In the absence of any clear showing or proof that the
election returns canvassed are incomplete or contain material
defects (sec. 234), appear to have been tampered with, falsified or
prepared under duress (sec. 235) and/or contain discrepancies in
the votes credited to any candidate, the difference of which affects
the result of the election (sec. 236), which are the only instances
where a pre-proclamation recount may be resorted to, granted the
preservation of the integrity of the ballot box and its contents,
Sanchez' petition must fail. The complete election returns whose
authenticity is not in question, must be prima facie considered valid
for the purpose of canvassing the same and proclamation of the
winning candidates. . . . "7. The ground for recount relied upon by
Sanchez is clearly not among the issues that may be raised in pre-
proclamation controversy. His allegation of invalidation of "Sanchez"
votes intended for him bear no relation to the correctness and
authenticity of the election returns canvassed. Neither
the Constitution nor statute has granted the Comelec or the board
of canvassers the power in the canvass of election returns to look
beyond the face thereof, once satisfied of their authenticity (Abes v.
Comelec, 21 SCRA 1252, 1256)."
5. ID.; ID.; CORRECTION OF MANIFEST ERROR IN THE CERTIFICATE
OF CANVASS OR ELECTION RETURNS; MAY BE ALLOWED IN
ELECTION FOR PRESIDENT, VICE PRESIDENT, SENATORS AND
MEMBERS OF THE HOUSE OF REPRESENTATIVE. — It is clear from
the above-quoted provision of the law that "pre-proclamation cases
(are) not allowed in elections for President, Vice-President, Senator
and Member of the House of Representatives." What is allowed is
the correction of "manifest errors in the certificate of canvass or
election returns." To be manifest, the errors must appear on the
face of the certificates of canvass or election returns sought to be
corrected and/or objections thereto must have been made before
the board of canvassers and specifically noted in the minutes of
their respective proceedings.
6. ID.; ID.; ID.; ID.; NOT SATISFIED IN CASE AT BAR. — It is quite
obvious that petitioner's prayer does not call for the correction of
"manifest error's in the certificate of canvass or election returns"
before the Comelec but for the re-opening of the ballot boxes and
appreciation of the ballots contained therein. Indeed, petitioner has
not even pointed to any "manifest error" in the certificates of
canvass or election returns he desires to be rectified. There being
none, petitioner's proper recourse is to file a regular election
protest which, under the Constitution and the Omnibus Election
Code, exclusively pertains to the Senate Electoral Tribunal. In the
case at bar, petitioner's allegation that "Chavez" votes were either
invalidated or declared stray has no relation to the correctness or
authenticity of the election returns canvassed. Otherwise stated,
petitioner has not demonstrated any manifest error in the
certificates of canvass or election returns before the Comelec which
would warrant their correction. As the authenticity of the
certificates of canvass or election returns are not questioned, they
must be prima facie considered valid for purposes of canvassing the
same and proclamation of the winning candidates (Sanchez v.
Comelec, supra)
RESOLUTION
BIDIN, J p:
This case was originally on urgent petition ad cautelam praying,
among others, for the issuance of a temporary restraining order
enjoining respondent Commission on Elections (Comelec) from
proclaiming the 24th highest senatorial candidate.
The antecedents facts are as follows:
On May 5, 1992, this Court issued a Resolution in GR No. 104704,
entitled "Francisco Chavez v. Comelec, et al.," disqualifying Melchor
Chavez, private respondent therein, from running for the Office of
Senator in the May 11, 1992 elections.
The above-mentioned resolution was received by respondent
Comelec on May 6, 1992. On the same day, petitioner filed an
urgent motion with the Comelec praying that it (1) disseminate
through the fastest available means this Court's Resolution dated
May 5, 1992 to all regional election directors, provincial election
supervisors, city and municipal election registrars, boards of election
inspectors, the six (6) accredited political parties and the general
public; and (2) order said election officials to delete the name of
Melchor Chavez as printed in the certified list of candidates tally
sheets, election returns and "to count all votes cast for the
disqualified Melchor, Chavez in favor of Francisco I. Chavez . . . ."
On May 8, 1992, the Comelec issued Res. No. 92-1322 which
resolved to delete the name of Melchor Chavez from the list of
qualified candidates. However, it failed to order the crediting of all
"Chavez" votes in favor of petitioner as well as the cancellation of
Melchor Chavez' name in the list of qualified candidates.
According to petitioner, the Comelec failed to perform its
mandatory function under Sec. 7, RA 7166 which states that if a
candidate has been disqualified, it shall be the duty of the
Commission to instruct without delay the deletion of the name of
said candidate.
Thus, the name of Melchor Chavez remained undeleted in the list of
qualified candidates on election day. cdrep
Confusion arose, allegedly nationwide, as the "Chavez" votes were
either declared stray or invalidated by the Boards of Election
Inspectors (BEIs).
On May 11, 1992, Commissioner Rama of respondent Comelec
issued a directive over radio and TV ordering all "Chavez" votes to
be credited in favor of petitioner. Petitioner contends that the radio
and TV announcements did not reach the BEI at the 170,354
precincts nationwide. As a result, "Chavez" votes were not credited
in favor of petitioner.
On May 12, 1992, Comelec issued another Resolution directing all
municipal and city election registrars throughout the country to
examine the minutes of voting submitted by the BEIs and to credit
all the "Chavez" votes, which have been declared stray or
invalidated by the BEIs, in favor of petitioner.
Petitioner maintains that the said resolution proved futile because it
did not reach all the various BEIs of the 170,354 election precincts
throughout the country on time for implementation and that the
minutes of voting did not indicate the number of "Chavez" votes
which were declared stray or invalidated.
On May 14, 1992, petitioner sent a letter to the Comelec requesting
the latter to devise ways and means in crediting "Chavez" votes in
his favor but the respondent Commission failed to act on said
letter/complaint.
On May 23, 1992, petitioner filed an urgent petition before the
respondent Comelec praying the latter to (1) implement its May 12,
1992 resolution with costs de officio; (2) to re-open the ballot boxes
in 13 provinces including the National Capital Region involving some
80,348 precincts (p. 9 of petition) and to scan for the "Chavez" votes
for purposes of crediting the same in his favor; (3) make the
appropriate entries in the election returns/certificates of canvass;
and (4) to suspend the proclamation of the 24 winning candidates.
Dissatisfied with the failure of respondent Comelec to act on his
petition, petitioner filed, as aforesaid, this urgent petition for
prohibition and mandamus, with prayer for the issuance of a
temporary restraining order, enjoining the Comelec from
proclaiming the 24th highest senatorial candidate, without first
implementing respondent Comelec's resolution of May 12, 1992 and
acting upon petitioner's letter/complaint dated May 14, 1992 and
urgent petition dated May 22, 1992. LLjur
It is the submission of petitioner that assuming only ten (10)
"Chavez" votes were invalidated per precinct, he would have lost at
least 1.7 million votes (considering that there are more than
170,000 precincts nationwide); the result of which will affect the 24
ranking senatorial candidates.
Petitioner alleges that respondent Comelec acted capriciously and
whimsically and with grave abuse of discretion and therefore prays
that the Comelec be enjoined from proclaiming the 24th winning
senatorial candidate until after his petition before the Commission is
resolved.
On June 4, 1992, the Court issued a Temporary Restraining Order
enjoining respondent Comelec from proclaiming the 24th winning
senatorial candidate and set the case for hearing on June 9, 1992.
On the same day (June 4, 1992), petitioner filed a manifestation
stating that on May 30, 1992, his urgent petition dated May 22,
1992 was dismissed by respondent Comelec and prayed that the
petition ad cautelam at bar be considered a regular petition.
On June 8, 1992, Senator Agapito Aquino ** filed a Motion for Leave
to Intervene with Comment in Intervention praying for the dismissal
of the instant petition on the ground that the law does not allow
pre-proclamation controversy involving the election of members of
the Senate.
After hearing the arguments of the parties on June 9, 1992, the
Court resolved to lift the temporary restraining order in the
afternoon of the same day (June 9, 1992).
Coming now to the merits, We find the petition devoid of any.
As stated earlier, petitioner's urgent petition dated May 22, 1992
was dismissed by respondent Comelec on May 30, 1992. Had it not
been prayed that the proclamation of the 24th winning senatorial
candidate be suspended, which this Court granted on June 4, 1992,
the instant petition would have been dismissed outright for having
become moot and academic. But even then, this Court could have
acted favorably on petitioner's plaint.
The alleged inaction of respondent Comelec in ordering the deletion
of Melchor Chavez's name in the list of qualified candidates does
not call for the exercise of the Court's function of judicial review.
This Court can review the decisions or orders of the Comelec only in
cases of grave abuse of discretion committed by it in the discharge
of its quasi-judicial powers and not those arising from the exercise
of its administrative functions. Respondent Commission's alleged
failure to implement its own resolution is undoubtedly
administrative in nature, hence, beyond judicial interference
(See Filipinas Engineering Co. v. Ferrer, 135 SCRA 25 [1985]; Aratuc
v. Commission on Elections, 88 SCRA 251 (1979); see also Pungutan
v. Abubakar, 43 SCRA 1 [1972]). As aptly observed by the Solicitor
General, respondent Comelec can administratively undo what it has
administratively left undone (Manifestation, p. 2). Moreover,
respondent Comelec has in fact, on May 6, 1992 to be exact,
ordered the deletion of Melchor Chavez's name not only on the
official list of candidates, but also on the election returns, tally sheet
and certificate of canvass (Comment, p. 7). Hence, petitioner's
allegation that respondent Comelec failed to implement Res. No.
92-132 does not hold water.
Be that as it may, there are other compelling reasons why the
instant petition is bound to fail.
A simple reading of the petition would readily show that petitioner
has no cause of action, the controversy presented being one in the
nature of a pre-proclamation. **
While the Commission has exclusive jurisdiction over pre-
proclamation controversies involving local elective officials (Sec.
242, Omnibus Election Code), nevertheless, pre-proclamation cases
are not allowed in elections for President, Vice-President, Senator
and Member of the House of Representatives. llcd
Sec. 15 of Republic Act 7166 provides:
"Sec. 15. Pre-proclamation Cases Not Allowed in
Elections for President, Vice-President, Senator,
and Member of the House of Representatives. —
For purposes of the elections for President,
Vice-President, Senator and Member of the
House of Representatives, no pre-proclamation
cases shall be allowed on matters relating to the
preparation, transmission, receipt, custody and
appreciation of the election returns or the
certificate of canvass, as the case may be.
However, this does not preclude the authority of
the appropriate canvassing body motu propio or
upon written complaint of an interested
person to correct manifest errors in the
certificate of canvass or election returns before
it. (emphasis supplied)
xxx xxx xxx
"Any objection on the election returns before
the city or municipal board of canvassers, or on
the municipal certificates of canvass before the
provincial boards of canvassers or district board
of canvassers in Metro Manila Area, shall be
specifically noted in the minutes of their
respective proceedings."
It is clear from the above-quoted provision of the law that "pre-
proclamation cases (are) not allowed in elections for President, Vice-
President, Senator and Member of the House of Representatives."
What is allowed is the correction of "manifest errors in the
certificate of canvass or election returns." To be manifest, the errors
must appear on the face of the certificates of canvass or election
returns sought to be corrected and/or objections thereto must have
been made before the board of canvassers and specifically noted in
the minutes of their respective proceedings.
In the case at bar, however, petitioner prays not only for a
restraining order enjoining "the proclamation of the 24th highest
ranking senatorial candidate without first acting upon petitioner's
letter/complaint dated May 14, 1992 and urgent petition dated May
22, 1992" but also prays that judgment be rendered requiring the
Comelec to re-open the ballot boxes in 80,348 precincts in 13
provinces therein enumerated (Petition, p. 9) including Metro
Manila, scan the ballots for "Chavez" votes which were invalidated
or declared stray and credit said scanned "Chavez" votes in favor of
petitioner.
It is quite obvious that petitioner's prayer does not call for the
correction of "manifest error's in the certificates of canvass or
election returns" before the Comelec but for the re-opening of the
ballot boxes and appreciation of the ballots contained therein.
Indeed, petitioner has not even pointed to any "manifest error" in
the certificates of canvass or election returns he desires to be
rectified. There being none, petitioner's proper recourse is to file a
regular election protest which, under the Constitution and
the Omnibus Election Code, exclusively pertains to the Senate
Electoral Tribunal.
Thus, Sec. 17, Art. VI of the Constitution provides that "(t)he 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. . .
." (emphasis supplied). The word "sole" underscores the exclusivity
of the Tribunals' jurisdiction over election contests relating to their
respective Members (Co v. Electoral Tribunal of the House of
Representatives, 199 SCRA 692 [1991]; Lazatin v. House of
Representatives Electoral Tribunal, 168 SCRA 391 [1988]; Angara v.
Electoral Commission, 63 Phil. 139 [1936]). It is therefore crystal
clear that this Court has no jurisdiction to entertain the instant
petition. It is the Senate Electoral Tribunal which has exclusive
jurisdiction to act on the complaint of petitioner involving, as it
does, contest relating to the election of a member of the Senate. As
aforesaid, petitioner's proper recourse is to file a regular election
protest before the Senate Electoral Tribunal after the winning
senatorial candidates have been proclaimed.
Petitioner argues, on the other hand, that a recount before the
Senate Electoral Tribunal where he would be forced to shell out the
expenses imposes not only a property requirement for the
enjoyment of the right to be voted upon but also a price on the right
of suffrage which would ultimately stifle the sovereign will.
The argument, however, is beside the point. The law is very clear on
the matter and it is not right for petitioner to ask this Court to
abandon settled jurisprudence, engage in judicial legislation, amend
the Constitution and alter the Omnibus Election Code. The
mandatory procedures laid down by the existing law in cases like
the one at bar must be faithfully followed lest we allow anarchy to
reign. The proper recourse is for petitioner to ask not this Court but
the Legislature to enact remedial measures. LexLib
Finally, the instant petition falls squarely with the case of Sanchez v.
Commission on Elections (153 SCRA 67 [1987]) and the disposition
arrived therein finds application in the case at bar, mutatis
mutandis:
"Sanchez anchors his petition for recount and/or
reappreciation on Section 243, paragraph (b) of
the Omnibus Election Code in relation to Section
234 thereof with regard to material defects in
canvassed election returns. He contends that
the canvassed returns discarding "Sanchez"
votes as stray were "incomplete" and therefore
warrant a recount or reappreciation of the
ballots under Section 234. . . .
". . . The fact that some votes written solely as
Sanchez" were declared stray votes because of
the inspectors' erroneous belief that Gil Sanchez
had not been disqualified as a candidate,
involves an erroneous appreciation of the
ballots. It is established by the law as well as
jurisprudence . . . that errors in the appreciation
of ballots by the board of inspectors are proper
subject for election protest and not for recount
or reappreciation of ballots.
"2. The appreciation of the ballots cast in the
precincts is not a 'proceeding of the board of
canvassers' for purposes of pre-proclamation
proceedings under Section 241,Omnibus Election
Code, but of the boards of election inspectors
who are called upon to count and appreciate the
votes in accordance with the rules of
appreciation provided in Section 211, Omnibus
Election Code. Otherwise stated, the
appreciation of ballots is not part of the
proceedings of the board of canvassers. The
functions of ballots appreciation is performed by
the boards election inspectors at the precinct
level. (Emphasis supplied)
"3. The scope of pre-proclamation controversy is
limited to the issues enumerated under Sec. 243
of the Omnibus Election Code. The enumeration
therein of the issues that may be raised in pre-
proclamation controversy is restrictive and
 exclusive. In the absence of any clear showing or ||| (Chavez v. Commission on Elections, G.R. No. 105323
proof that the election returns canvassed are (Resolution), [July 3, 1992], 286 PHIL 419-430)
incomplete or contain material defects (sec.
234), appear to have been tampered with,
falsified or prepared under duress (sec. 235)
and/or contain discrepancies in the votes
credited to any candidate, the difference of
which affects the result of the election (sec.
236), which are the only instances where a pre-
proclamation recount may be resorted to,
granted the preservation of the integrity of the
ballot box and its contents, Sanchez' petition
must fail. The complete election returns whose
authenticity is not in question, must be prima
facie considered valid for the purpose of
canvassing the same and proclamation of the
winning candidates.
xxx xxx xxx
"7. The ground for recount relied upon by
Sanchez is clearly not among the issues that may
be raised in pre-proclamation controversy. His
allegation of invalidation of "Sanchez" votes
intended for him bear no relation to the
correctness and authenticity of the election
returns canvassed. Neither the Constitution nor
statute has granted the Comelec or the board of
canvassers the power in the canvass of election
returns to look beyond the face thereof, once
satisfied of their authenticity (Abes v. Comelec,
21 SCRA 1252, 1256)."
In the case at bar, petitioner's allegation that "Chavez" votes were
either invalidated or declared stray has no relation to the
correctness or authenticity of the election returns canvassed.
Otherwise stated, petitioner has not demonstrated any manifest
error in the certificates of canvass or election returns before the
Comelec which would warrant their correction. As the authenticity
of the certificates of canvass or election returns are not questioned,
they must be prima facie considered valid for purposes of
canvassing the same and proclamation of the winning candidates
(Sanchez v. Comelec, supra).
Premises considered, the Court Resolved to DISMISS the instant
petition for lack of merit.
SO ORDERED.
 EN BANC
[G.R. No. 86344. December 21, 1989.]
REP. RAUL A. DAZA, petitioner, vs. REP. LUIS C.
SINGSON and HON. RAOUL V. VICTORINO IN
THE LATTER'S CAPACITY AS SECRETARY OF THE
COMMISSION ON APPOINTMENTS, respondent.
DECISION
CRUZ, J p:
After the congressional elections of May 11, 1987, the House of
Representatives proportionally apportioned its twelve seats in the
Commission on Appointments among the several political parties
represented in that chamber, including the Lakas ng Bansa, the PDP-
Laban, the NP-Unido, the Liberal Party, and the KBL, in accordance
with Article VI, Section 18, of the Constitution. Petitioner Raul A.
Daza was among those chosen and was listed as a representative of
the Liberal Party. 1
On September 16, 1988, the Laban ng Demokratikong Pilipino was
reorganized, resulting in a political realignment in the House of
Representatives. Twenty four members of the Liberal Party formally
resigned from that party and joined the LDP, thereby swelling its
number to 159 and correspondingly reducing their former party to
only 17 members. 2
On the basis of this development, the House of Representatives
revised its representation in the Commission on Appointments by
withdrawing the seat occupied by the petitioner and giving this to
the newly-formed LDP. On December 5, 1988, the chamber elected
a new set of representatives consisting of the original members
except the petitioner and including therein respondent Luis C.
Singson as the additional member from the LDP. 3
The petitioner came to this Court on January 13, 1989, to challenge
his removal from the Commission on Appointments and the
assumption of his seat by the respondent. Acting initially on his
petition for prohibition and injunction with preliminary injunction,
we issued a temporary restraining order that same day to prevent
both the petitioner and the respondent from serving in the
Commission on Appointments. 4
Briefly stated, the contention of the petitioner is that he cannot be
removed from the Commission on Appointments because his
election thereto is permanent under the doctrine announced
in Cunanan v. Tan. 5 His claim is that the reorganization of the
House representation in the said body is not based on a permanent
political realignment because the LDP is not a duly registered
political party and has not yet attained political stability.
For his part, the respondent argues that the question raised by the
petitioner is political in nature and so beyond the jurisdiction of this
Court. He also maintains that he has been improperly impleaded,
the real party respondent being the House of Representatives which
changed its representation in the Commission on Appointments and
removed the petitioner. Finally, he stresses that nowhere in
the Constitution is it required that the political party be registered
to be entitled to proportional representation in the Commission on
Appointments. cdll
In addition to the pleadings filed by the parties, a Comment was
submitted by the Solicitor General as amicus curiae in compliance
with an order from the Court.
At the core of this controversy is Article VI, Section 18, of
the Constitution providing as follows:
Sec. 18. There shall be a Commission on
Appointments consisting of the President of the
Senate, as ex officio Chairman, twelve Senators
and twelve Members of the House of
Representatives, elected by each House on the
basis of proportional representation from the
political parties and parties or organizations
registered under the party-list system
represented therein. The Chairman of the
Commission shall not vote, except in case of a
tie. The Commission shall act on all
appointments submitted to it within thirty
session days of the Congress from their
submission. The Commission shall rule by a
majority vote of all the Members.
Ruling first on the jurisdictional issue, we hold that, contrary to the
respondent's assertion, the Court has the competence to act on the
matter at bar. Our finding is that what is before us is not a
discretionary act of the House of Representatives that may not be
reviewed by us because it is political in nature. What is involved
here is the legality, not the wisdom, of the act of that chamber in
removing the petitioner from the Commission on Appointments.
That is not a political question because, as Chief Justice Concepcion
explained in Tañada v. Cuenco: 6
. . . the term "political question" connotes, in
legal parlance, what it means in ordinary
parlance, namely, a question of policy. In other
words, . . . it refers "to those questions which,
under the Constitution, are to be decided by the
people in their sovereign capacity, or in regard
to which full discretionary authority has been
delegated to the Legislature or executive branch
of the Government." It is concerned with issues
dependent upon the wisdom, not legality, of a
particular measure.
In the aforementioned case, the Court was asked by the petitioners
therein to annul the election of two members of the Senate
Electoral Tribunal of that chamber, on the ground that they had not
been validly nominated. The Senate then consisted of 23 members
from the Nacionalista Party and the petitioner as the lone member
of the Citizens Party. Senator Lorenzo M. Tañada nominated only
himself as the minority representative in the Tribunal, whereupon
the majority elected Senators Mariano J. Cuenco and Francisco
Delgado, from its own ranks, to complete the nine-man composition
of the Tribunal as provided for in the 1935 Constitution. The
petitioner came to this Court, contending that under Article VI,
Section 11, of that Charter, the six legislative members of the
Tribunal were to be chosen by the Senate, "three upon nomination
of the party having the largest number of votes and three of the
party having the second largest number of votes therein." As the
majority party in the Senate, the Nacionalista Party could nominate
only three members and could not also fill the other two seats
pertaining to the minority. LibLex
By way of special and affirmative defenses, the respondents
contended inter alia that the subject of the petition was an internal
matter that only the Senate could resolve. The Court rejected this
argument, holding that what was involved was not the wisdom of
the Senate in choosing the respondents but the legality of the
choice in light of the requirement of the Constitution. The
petitioners were questioning the manner of filling the Tribunal, not
the discretion of the Senate in doing so. The Court held that this was
a justiciable and not a political question, thus:
Such is not the nature of the question for
determination in the present case. Here, we are
called upon to decide whether the election of
Senators Cuenco and Delgado by the Senate, as
members of the Senate Electoral Tribunal, upon
nomination by Senator Primicias — a member
and spokesman of the party having the largest
number of votes in the Senate — on behalf of its
 Committee on Rules, contravenes the
constitutional mandate that said members of
the Senate Electoral Tribunal shall be chosen
"upon nomination . . . of the party having the
second largest number of votes" in the Senate
and hence, is null and void. The Senate is not
clothed with "full discretionary authority" in the
choice of members of the Senate Electoral
Tribunal. The exercise of its power thereon is
subject to constitutional limitations which are
claimed to be mandatory in nature. It is clearly
within the legitimate province of the judicial
department to pass upon the validity of the
proceeding in connection therewith.
'. . . whether an election of public
officers has been in accordance with
law is for the judiciary. Moreover,
where the legislative department has
by statute prescribed election
procedure in a given situation, the
judiciary may determine whether a
particular election has been in
conformity with such statute, and
particularly, whether such statute has
been applied in a way to deny or
transgress on constitutional or
statutory rights . . . .' (16 C.J.S., 439;
emphasis supplied).
It is, therefore, our opinion that we have, not
only jurisdiction but also the duty, to consider
and determine the principal issue raised by the
parties herein."
Although not specifically discussed, the same disposition was made
in Cunanan v. Tan as it likewise involved the manner or legality of
the organization of the Commission on Appointments, not the
wisdom or discretion of the House in the choice of its
representatives.
In the case now before us, the jurisdictional objection becomes even
less tenable and decisive. The reason is that, even if we were to
assume that the issue presented before us was political in nature,
we would still not be precluded from resolving it under the
expanded jurisdiction conferred upon us that now covers, in proper
cases, even the political question. Article VII, Section 1, of
the Constitution clearly provides:
Section 1. The judicial power shall be vested in
one Supreme Court and in such lower courts as
may be established by law.
Judicial power includes the duty of the courts of
justice to settle actual controversies involving
rights which are legally demandable and
enforceable, and to determine whether or not
there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on
the part of any branch or instrumentality of the
Government.
The respondent's contention that he has been improperly
impleaded is even less persuasive. While he may be technically
correct in arguing that it is not he who caused the petitioner's
removal, we feel that this objection is also not an insuperable
obstacle to the resolution of this controversy. We may, for one
thing, treat this proceeding as a petition for quo warranto as the
petitioner is actually questioning the respondent's right to sit as a
member of the Commission on Appointments. For another, we have
held as early as in the Emergency Powers Cases 7 that where serious
constitutional questions are involved, "the transcendental
importance to the public of these cases demands that they be
settled promptly and definitely, brushing aside, if we must,
technicalities of procedure." The same policy has since then been
consistently followed by the Court, as in Gonzales v. Commission on
Elections, 8 where we held through Chief Justice Fernando: LexLib
In the course of the deliberations, a serious
procedural objection was raised by five
members of the Court. It is their view that
respondent Commission on Elections not being
sought to be restrained from performing any
specific act, this suit cannot be characterized as
other than a mere request for an advisory
opinion. Such a view, from the remedial law
standpoint, has much to recommend it.
Nonetheless, a majority would affirm the
original stand that under the circumstances, it
could still rightfully be treated as a petition for
prohibition.
The language of Justice Laurel fits the case: "All
await the decision of this Court on the
constitutional question. Considering, therefore,
the importance which the instant case has
assumed and to prevent multiplicity of suits,
strong reasons of public policy demand that [its]
constitutionality . . . be now resolved." It may
likewise be added that the exceptional character
of the situation that confronts us, the
paramount public interest, and the undeniable
necessity for ruling, the national elections being
barely six months away, reinforce our stand.
It would appear undeniable, therefore, that
before us is an appropriate invocation of our
jurisdiction to prevent the enforcement of an
alleged unconstitutional statute. We are left
with no choice then; we must act on the matter.
Coming now to the more crucial question, the Court notes that both
the petitioner and the respondent are invoking the case of Cunanan
v. Tan to support their respective positions. It is best, therefore, to
make a quick review of that case for a proper disposition of this one.
In the election for the House of Representatives held in 1961, 72
seats were won by the Nacionalista Party, 29 by the Liberal Party
and 1 by an independent. Accordingly, the representation of the
chamber in the Commission on Appointments was apportioned to 8
members from the Nacionalista Party and 4 from the Liberal Party.
Subsequently, 25 members of the Nacionalista Party, professing
discontent over the House leadership, made common cause with
the Liberal Party and formed what was called the Allied Majority to
install a new Speaker and reorganize the chamber. Included in this
reorganization was the House representation in the Commission on
Appointments where three of the Nacionalista congressmen
originally chosen were displaced by three of their party colleagues
who had joined the Allied Majority. prcd
Petitioner Carlos Cunanan's ad interim appointment as Deputy
Administrator of the Reforestration Administration was rejected by
the Commission on Appointments as thus reorganized and
respondent Jorge Tan, Jr. was thereafter designated in his place.
Cunanan then came to this Court, contending that the rejection of
his appointment was null and void because the Commission itself
was invalidly constituted.
The Court agreed. It noted that the Allied Majority was a merely
temporary combination as the Nacionalista defectors had not
disaffiliated from their party and permanently joined the new
political group. Officially, they were still members of the
Nacionalista Party. The reorganization of the Commission on
Appointments was invalid because it was not based on the
proportional representation of the political parties in the House of
Representatives as required by the Constitution. The Court held:
. . . In other words, a shifting of votes at a given
time, even if due to arrangements of a more or
less temporary nature, like the one that has led
to the formation of the so-called "Allied
Majority," does not suffice to authorize are
organization of the membership of the
Commission for said House. Otherwise the
Commission on Appointments may have to be
reorganized as often as votes shift from one side
to another in the House. The framers of
our Constitution could not have intended to
thus place a constitutional organ, like the
Commission on Appointments, at the mercy of
each House of Congress.
The petitioner vigorously argues that the LDP is not the permanent
political party contemplated in the Constitution because it has not
been registered in accordance with Article IX-B, Section 2(5), in
relation to the other provisions of the Constitution. He stresses that
the so-called party has not yet achieved stability and suggests it
might be no different from several other political groups that have
died "a-bornin'," like the UNA, or have subsequently floundered, like
the UNIDO.
The respondent also cites Cunanan but from a different viewpoint.
According to him, that case expressly allows reorganization at any
time to reflect changes in the political alignments in Congress,
provided only that such changes are permanent. The creation of the
LDP constituting the bulk of the former PDP Laban and to which no
less than 24 Liberal congressmen had transferred was a permanent
change. That change fully justified his designation to the
Commission on Appointments after the reduction of the LP
representation therein. Thus, the Court held:
Upon the other hand, the constitutional
provision to the effect that "there shall be a
Commission on Appointments consisting of
twelve (12) Senators and twelve (12) members
of the House of Representatives elected by each
House, respectively, on the basis of proportional
REPRESENTATION OF THE POLITICAL PARTIES
THEREIN," necessarily connotes the authority of
each House of Congress to see to it that this
requirement is duly complied with. As a
consequence, it may take appropriate measures,
not only upon the initial organization of the
Commission, but also, subsequently thereto. If
by reason of successful election protests against
members of a House, or of their expulsion from
the political party to which they belonged
and/or of their affiliation with another political
party, the ratio in the representation of the
political parties in the House is materially
changed, the House is clothed with authority to
declare vacant the necessary number of seats in
the Commission on Appointments held by
members of said House belonging to the
political party adversely affected by the change
and then fill said vacancies in conformity with
the Constitution.
In the course of the spirited debate on this matter between the
petitioner and the respondent (who was supported by the Solicitor
General) an important development has supervened to considerable
simplify the present controversy.
The petitioner, to repeat, bases his argument heavily on the non-
registration of the LDP which, he claims has not provided the
permanent political realignment to justify the questioned
reorganization. As he insists:
(c) Assuming that the so-called new coalesced
majority is actually the LDP itself, then the
proposed reorganization is likewise illegal and
ineffectual, because the LDP, not being a duly
registered political party, is not entitled to the
"rights and privileges granted by law to political
parties" (Sec. 160, BP No. 881), and
therefore cannot legally claim the right to be
considered in determining the required
proportional representation of political parties in
the House of Representatives. 9
xxx xxx xxx
. . . the clear constitutional intent behind Section
18, Article VI, of the 1987 Constitution, is to give
the right of representation in the Commission
on Appointment only to political parties who are
duly registered with the Comelec. 10
On November 23, 1989, however, that argument boomeranged
against the petitioner. On that date, the Commission on Elections in
an en banc resolution affirmed the resolution of its First Division
dated August 28, 1989, granting the petition of the LDP for
registration as a political party. 11 This has taken the wind out of the
sails of the petitioner, so to speak, and he must now limp to shore
as best he can. LLpr
The petitioner's contention that, even if registered, the party must
still pass the test of time to prove its permanence is not acceptable.
Under this theory, a registered party obtaining the majority of the
seats in the House of Representatives (or the Senate) would still not
be entitled to representation in the Commission on Appointments
as long as it was organized only recently and has not yet "aged." The
Liberal Party itself would fall in such a category. That party was
created in December 1945 by a faction of the Nacionalista Party that
seceded therefrom to support Manuel A. Roxas's bid for the
Presidency of the Philippines in the election held on April 23,
1946 12 The Liberal Party won. At that time it was only four months
old. Yet no question was raised as to its right to be represented in
the Commission on Appointments and in the Electoral Tribunals by
virtue of its status as the majority party in both chambers of the
Congress.
The LDP has been in existence for more than one year now. It now
has 157 members in the House of Representatives and 6 members
in the Senate. Its titular head is no less than the President of the
Philippines and its President is Senator Neptali A. Gonzales, who
took over recently from Speaker Ramon V. Mitra. It is true that
there have been, and there still are, some internal disagreements
among its members, but these are to be expected in any political
organization, especially if it is democratic in structure. In fact, even
the monolithic Communist Party in a number of socialist states has
undergone similar dissension, and even upheavals. But it surely
cannot be considered still temporary because of such discord.
If the petitioner's argument were to be pursued, the 157 members
of the LDP in the House of Representatives would have to be denied
representation in the Commission on Appointments and, for that
matter, also the Electoral Tribunal. By the same token, the KBL,
which the petitioner says is now "history only," should also be
written off. The independents also cannot be represented because
they belong to no political party. That would virtually leave the
Liberal Party only-with all of its seventeen members — to claim all
the twelve seats of the House of Representatives in the Commission constitutional stalemate had to be resolved, there was no
on Appointments and the six legislative seats in the House Electoral alternative for us except to act, and to act decisively. In doing so, of
Tribunal. course, we are not imposing our will upon the said agencies, or
substituting our discretion for theirs, but merely discharging our
It is noteworthy that when with 41 members the Liberal Party was sworn responsibility to interpret and apply the Constitution. That is
alloted two of the seats in the Commission on Appointments, it did a duty we do not evade, lest we ourselves betray our oath.
not express any objection. 13 Inconsistently, the petitioner is now WHEREFORE, the petition is DISMISSED. The temporary restraining
opposed to the withdrawal from it of one seat although its original order dated January 13, 1989, is LIFTED. The Court holds that the
number has been cut by more than half. respondent has been validly elected as a member of the
As for the other condition suggested by the petitioner, to wit, that Commission on Appointments and is entitled to assume his seat in
the party must survive in a general congressional election, the LDP that body pursuant to Article VI, Section 18, of the Constitution. No
has doubtless also passed that test, if only vicariously. It may even pronouncement as to costs.
be said that as it now commands the biggest following in the House SO ORDERED.
of Representatives, the party has not only survived but in fact ||| (Daza v. Singson, G.R. No. 86344, [December 21, 1989], 259 PHIL
prevailed. At any rate, that test was never laid down in 980-992)
Cunanan. Cdpr
To summarize, then, we hold, in view of the foregoing
considerations, that the issue presented to us is justiciable rather
political, involving as it does the legality and not the wisdom of the
act complained of, or the manner of filling the Commission on
Appointments as prescribed by the Constitution. Even if the
question were political in nature, it would still come within our
powers of review under the expanded jurisdiction conferred upon
us by Article VIII, Section 1, of the Constitution, which includes the
authority to determine whether grave abuse of discretion
amounting to excess or lack of jurisdiction has been committed by
any branch or instrumentality of the government. As for the alleged
technical flaw in the designation of the party respondent, assuming
the existence of such a defect, the same may be brushed aside,
conformably to existing doctrine, so that the important
constitutional issue raised may be addressed. Lastly, we resolve that
issue in favor of the authority of the House of Representatives to
change its representation in the Commission on Appointments to
reflect at any time the changes that may transpire in the political
alignments of its membership. It is understood that such changes
must be permanent and do not include the temporary alliances or
factional divisions not involving severance of political loyalties or
formal disaffiliation and permanent shifts of allegiance from one
political party to another. llcd
The Court would have preferred not to intervene in this matter,
leaving it to be settled by the House of Representatives or the
Commission on Appointments as the bodies directly involved. But as
our jurisdiction has been invoked and, more importantly, because a