Republic of the Philippines Not being agreeable to the two new conditions thus incorporated in its existing
SUPREME COURT certificates, the petitioner filed on October 9, 1939 a motion for reconsideration which
Manila
EN BANC
G.R. No. 47065 June 26, 1940
PANGASINAN TRANSPORTATION CO., INC., petitioner,
vs.
THE PUBLIC SERVICE COMMISSION, respondent.
C. de G. Alvear for petitioner.
Evaristo R. Sandoval for respondent.
LAUREL, J.:
The petitioner has been engaged for the past twenty years in the business of
transporting passengers in the Province of Pangasinan and Tarlac and, to a certain
extent, in the Province of Nueva Ecija and Zambales, by means of motor vehicles
commonly known as TPU buses, in accordance with the terms and conditions of the
certificates of public convenience issued in its favor by the former Public Utility
Commission in cases Nos. 24948, 30973, 36830, 32014 and 53090. On August 26,
1939, the petitioner filed with the Public Service Commission an application for
authorization to operate ten additional new Brockway trucks (case No. 56641), on the
ground that they were needed to comply with the terms and conditions of its existing
certificates and as a result of the application of the Eight Hour Labor Law. In the
decision of September 26, 1939, granting the petitioner's application for increase of
equipment, the Public Service Commission ordered:
Y de acuerdo con que se provee por el articulo 15 de la ley No. 146 del
Commonwealth, tal como ha sido enmendada por el articulo 1 de la Ley No.
454, por la presente se enmienda las condiciones de los certificados de
convenciencia publica expedidos en los expedientes Nos. 24948, 30973,
36831, 32014 y la authorizacion el el expediente No. 53090, asi que se
consideran incorporadas en los mismos las dos siguientes condiciones:
Que los certificados de conveniencia publica y authorizacion arriba
mencionados seran validos y subsistentes solamente durante de veinticinco
(25) anos, contados desde la fecha de la promulgacion de esta decision.
Que la empresa de la solicitante porda ser adquirida por el Commonwealth
de Filipinas o por alguna dependencia del mismo en cualquier tiempo que lo
deseare previo pago del precio d costo de su equipo util, menos una
depreciacion razonable que se ha fijar por la Comision al tiempo de su
adquisicion.
was denied by the Public Service Commission on November 14, 1939. Whereupon,
on November 20, 1939, the present petition for a writ of certiorari was instituted in this
court praying that an order be issued directing the secretary of the Public Service
Commission to certify forthwith to this court the records of all proceedings in case No.
56641; that this court, after hearing, render a decision declaring section 1 of
Commonwealth Act No. 454 unconstitutional and void; that, if this court should be of
the opinion that section 1 of Commonwealth Act No. 454 is constitutional, a decision
be rendered declaring that the provisions thereof are not applicable to valid and
subsisting certificates issued prior to June 8, 1939. Stated in the language of the
petitioner, it is contended:
1. That the legislative powers granted to the Public Service Commission by
section 1 of Commonwealth Act No. 454, without limitation, guide or rule
except the unfettered discretion and judgment of the Commission, constitute
a complete and total abdication by the Legislature of its functions in the
premises, and for that reason, the Act, in so far as those powers are
concerned, is unconstitutional and void.
2. That even if it be assumed that section 1 of Commonwealth Act No. 454,
is valid delegation of legislative powers, the Public Service Commission has
exceeded its authority because: (a) The Act applies only to future certificates
and not to valid and subsisting certificates issued prior to June 8, 1939,
when said Act took effect, and (b) the Act, as applied by the Commission,
violates constitutional guarantees.
Section 15 of Commonwealth Act No. 146, as amended by section 1 of
Commonwealth Act No. 454, invoked by the respondent Public Service Commission
in the decision complained of in the present proceedings, reads as follows:
With the exception to those enumerated in the preceding section, no public
service shall operate in the Philippines without possessing a valid and
subsisting certificate from the Public Service Commission, known as
"certificate of public convenience," or "certificate of convenience and public
necessity," as the case may be, to the effect that the operation of said
service and the authorization to do business will promote the public interests
in a proper and suitable manner.
The Commission may prescribed as a condition for the issuance of the
certificate provided in the preceding paragraph that the service can be
acquired by the Commonwealth of the Philippines or by any instrumentality
thereof upon payment of the cost price of its useful equipment, less
reasonable depreciation; and likewise, that the certificate shall valid only for
a definite period of time; and that the violation of any of these conditions
shall produce the immediate cancellation of the certificate without the
necessity of any express action on the part of the Commission.
 In estimating the depreciation, the effect of the use of the equipment, its
actual condition, the age of the model, or other circumstances affecting its
value in the market shall be taken into consideration.
The foregoing is likewise applicable to any extension or amendment of
certificates actually force and to those which may hereafter be issued, to
permits to modify itineraries and time schedules of public services and to
authorization to renew and increase equipment and properties.
Under the first paragraph of the aforequoted section 15 of Act No. 146, as amended,
no public service can operate without a certificate of public convenience or certificate
of convenience and public necessity to the effect that the operation of said service
and the authorization to do business will "public interests in a proper and suitable
manner." Under the second paragraph, one of the conditions which the Public Service
Commission may prescribed the issuance of the certificate provided for in the first
paragraph is that "the service can be acquired by the Commonwealth of the
Philippines or by any instrumental thereof upon payment of the cost price of its useful
equipment, less reasonable depreciation," a condition which is virtually a restatement
of the principle already embodied in the Constitution, section 6 of Article XII, which
provides that "the State may, in the interest of national welfare and defense, establish
and operate industries and means of transportation and communication, and, upon
payment of just compensation, transfer to public ownership utilities and other private
enterprises to be operated by the Government. "Another condition which the
Commission may prescribed, and which is assailed by the petitioner, is that the
certificate "shall be valid only for a definite period of time." As there is a relation
between the first and second paragraphs of said section 15, the two provisions must
be read and interpreted together. That is to say, in issuing a certificate, the
Commission must necessarily be satisfied that the operation of the service under said
certificate during a definite period fixed therein "will promote the public interests in a
proper and suitable manner." Under section 16 (a) of Commonwealth Act. No. 146
which is a complement of section 15, the Commission is empowered to issue
certificates of public convenience whenever it "finds that the operation of the public
service proposed and the authorization to do business will promote the public
interests in a proper and suitable manner." Inasmuch as the period to be fixed by the
Commission under section 15 is inseparable from the certificate itself, said period
cannot be disregarded by the Commission in determining the question whether the
issuance of the certificate will promote the public interests in a proper and suitable
manner. Conversely, in determining "a definite period of time," the Commission will be
guided by "public interests," the only limitation to its power being that said period shall
not exceed fifty years (sec. 16 (a), Commonwealth Act No. 146; Constitution, Art. XIII,
sec. 8.) We have already ruled that "public interest" furnishes a sufficient standard.
(People vs. Fernandez and Trinidad, G. R. No. 45655, promulgated June 15, 1938;
People vs. Rosenthal and Osmeña, G. R. Nos. 46076 and 46077, promulgated June
12, 1939, citing New York Central Securities Corporation vs. U.S.A., 287 U.S. 12, 24,
25, 77 Law. ed. 138, 145, 146; Schenchter Poultry Corporation vs. I.S., 295, 540, 79
Law. ed. 1570, 1585; Ferrazzini vs. Gsell, 34 Phil., 697, 711-712.)
Section 8 of Article XIII of the Constitution provides, among other things, that no
franchise, certificate, or any other form of authorization for the operation of a public
utility shall be "for a longer period than fifty years," and when it was ordained, in
section 15 of Commonwealth Act No. 146, as amended by Commonwealth Act No.
454, that the Public Service Commission may prescribed as a condition for the
issuance of a certificate that it "shall be valid only for a definite period of time" and, in
section 16 (a) that "no such certificates shall be issued for a period of more than fifty
years," the National Assembly meant to give effect to the aforesaid constitutional
mandate. More than this, it has thereby also declared its will that the period to be
fixed by the Public Service Commission shall not be longer than fifty years. All that
has been delegated to the Commission, therefore, is the administrative function,
involving the use discretion, to carry out the will of the National Assembly having in
view, in addition, the promotion of "public interests in a proper and suitable manner."
The fact that the National Assembly may itself exercise the function and authority thus
conferred upon the Public Service Commission does not make the provision in
question constitutionally objectionable.
The theory of the separation of powers is designed by its originators to secure action
and at the same time to forestall overaction which necessarily results from undue
concentration of powers, and thereby obtain efficiency and prevent deposition.
Thereby, the "rule of law" was established which narrows the range of governmental
action and makes it subject to control by certain devices. As a corollary, we find the
rule prohibiting delegation of legislative authority, and from the earliest time American
legal authorities have proceeded on the theory that legislative power must be
exercised by the legislature alone. It is frankness, however, to confess that as one
delves into the mass of judicial pronouncement, he finds a great deal of confusion.
One thing, however, is apparent in the development of the principle of separation of
powers and that is that the maxim of delegatus non potest delegari or delegata
potestas non potest delegari, attributed to Bracton (De Legius et Consuetedinious
Angliae, edited by G. E. Woodbine, Yale University Press, 1922, vol. 2, p. 167) but
which is also recognized in principle in the Roman Law (D. 17.18.3), has been made
to adapt itself to the complexities of modern governments, giving rise to the adoption,
within certain limits, of the principle of "subordinate legislation," not only in the United
States and England but in practically all modern governments. (People vs. Rosenthal
and Osmeña, G. R. Nos. 46076 and 46077, promulgated June 12, 1939.)
Accordingly, with the growing complexity of modern life, the multiplication of the
subjects of governmental regulation, and the increased difficulty of administering the
laws, there is a constantly growing tendency toward the delegation of greater powers
by the legislature, and toward the approval of the practice by the court. (Dillon Catfish
Drainage Dist, v. Bank of Dillon, 141 S. E. 274, 275, 143 S. Ct. 178; State vs. Knox
County, 54 S. W. 2d. 973, 976, 165 Tenn. 319.) In harmony with such growing
tendency, this Court, since the decision in the case of Compañia General de Tabacos
de Filipinas vs. Board of Public Utility Commissioner (34 Phil., 136), relied upon by
the petitioner, has, in instances, extended its seal of approval to the "delegation of
greater powers by the legislature." (Inchausti Steamship Co. vs. Public Utility
Commissioner, 44 Phil., Autobus Co. vs. De Jesus, 56 Phil., 446;
People vs. Fernandez & Trinidad, G. R. No. 45655, promulgated June 15, 1938;
People vs. Rosenthal & Osmeña, G. R. Nos. 46076, 46077, promulgated June 12,
1939; and Robb and Hilscher vs. People, G. R. No. 45866, promulgated June 12,
1939.).
Under the fourth paragraph of section 15 of Commonwealth Act No. 146, as amended
by Commonwealth Act No. 454, the power of the Public Service Commission to
prescribed the conditions "that the service can be acquired by the Commonwealth of
the Philippines or by any instrumentality thereof upon payment of the cost price of its
useful equipment, less reasonable," and "that the certificate shall be valid only for a
definite period of time" is expressly made applicable "to any extension or amendment
of certificates actually in force" and "to authorizations to renew and increase
equipment and properties." We have examined the legislative proceedings on the
subject and have found that these conditions were purposely made applicable to
existing certificates of public convenience. The history of Commonwealth Act No. 454
reveals that there was an attempt to suppress, by way of amendment, the sentence
"and likewise, that the certificate shall be valid only for a definite period of time," but
the attempt failed:
xxx xxx xxx
Sr. CUENCO. Señor Presidente, para otra enmienda. En la misma pagina,
lineas 23 y 24, pido que se supriman las palabras 'and likewise, that the
certificate shall be valid only for a definite period time.' Esta disposicion del
proyecto autoriza a la Comision de Servicios Publicos a fijar un plazo de
vigencia certificado de conveniencia publica. Todo el mundo sabe que bo se
puede determinar cuando los intereses del servicio publico requiren la
explotacion de un servicio publico y ha de saber la Comision de Servisios, si
en un tiempo determinado, la explotacion de algunos buses en cierta ruta ya
no tiene de ser, sobre todo, si tiene en cuenta; que la explotacion de los
servicios publicos depende de condiciones flutuantes, asi como del volumen
como trafico y de otras condiciones. Ademas, el servicio publico se concede
por la Comision de Servicios Publicos el interes publico asi lo exige. El
interes publico no tiene duracion fija, no es permanente; es un proceso mas
o menos indefinido en cuanto al tiempo. Se ha acordado eso en el caucus
de anoche.
EL PRESIDENTE PRO TEMPORE. ¿Que dice el Comite?
Sr. ALANO. El Comite siente tener que rechazar esa enmienda, en vista de
que esto certificados de conveniencia publica es igual que la franquicia:
sepuede extender. Si los servicios presentados por la compañia durante el
tiempo de su certificado lo require, puede pedir la extension y se le
extendera; pero no creo conveniente el que nosotros demos un certificado
de conveniencia publica de una manera que podria pasar de cincuenta
anos, porque seria anticonstitucional.
xxx xxx xxx
By a majority vote the proposed amendment was defeated. (Sesion de 17 de mayo
de 1939, Asamblea Nacional.)
The petitioner is mistaken in the suggestion that, simply because its existing
certificates had been granted before June 8, 1939, the date when Commonwealth Act
No. 454, amendatory of section 15 of Commonwealth Act No. 146, was approved, it
must be deemed to have the right of holding them in perpetuity. Section 74 of the
Philippine Bill provided that "no franchise, privilege, or concession shall be granted to
any corporation except under the conditions that it shall be subject to amendment,
alteration, or repeal by the Congress of the United States." The Jones Law,
incorporating a similar mandate, provided, in section 28, that "no franchise or right
shall be granted to any individual, firm, or corporation except under the conditions that
it shall be subject to amendment, alteration, or repeal by the Congress of the United
States." Lastly, the Constitution of the Philippines provided, in section 8 of Article XIII,
that "no franchise or right shall be granted to any individual, firm, or corporation,
except under the condition that it shall be subject to amendment, alteration, or repeal
by the National Assembly when the public interest so requires." The National
Assembly, by virtue of the Constitution, logically succeeded to the Congress of the
United States in the power to amend, alter or repeal any franchise or right granted
prior to or after the approval of the Constitution; and when Commonwealth Acts Nos.
146 and 454 were enacted, the National Assembly, to the extent therein provided,
has declared its will and purpose to amend or alter existing certificates of public
convenience.
Upon the other hand, statutes enacted for the regulation of public utilities, being a
proper exercise by the state of its police power, are applicable not only to those public
utilities coming into existence after its passage, but likewise to those already
established and in operation.
Nor is there any merit in petitioner's contention, that, because of the
establishment of petitioner's operations prior to May 1, 1917, they are not
subject to the regulations of the Commission. Statutes for the regulation of
public utilities are a proper exercise by the state of its police power. As soon
as the power is exercised, all phases of operation of established utilities,
become at once subject to the police power thus called into operation.
Procedures' Transportation Co. v. Railroad Commission, 251 U. S. 228, 40
Sup. Ct. 131, 64 Law. ed. 239, Law v. Railroad Commission, 184 Cal. 737,
195 Pac. 423, 14 A. L. R. 249. The statute is applicable not only to those
public utilities coming into existence after its passage, but likewise to those
already established and in operation. The 'Auto Stage and Truck
Transportation Act' (Stats. 1917, c. 213) is a statute passed in pursuance of
the police power. The only distinction recognized in the statute between
those established before and those established after the passage of the act
is in the method of the creation of their operative rights. A certificate of public
convenience and necessity it required for any new operation, but no such
certificate is required of any transportation company for the operation which
was actually carried on in good faith on May 1, 1917, This distinction in the
creation of their operative rights in no way affects the power of the
Commission to supervise and regulate them. Obviously the power of the
Commission to hear and dispose of complaints is as effective against
companies securing their operative rights prior to May 1, 1917, as against
those subsequently securing such right under a certificate of public
convenience and necessity. (Motor Transit Co. et al. v. Railroad Commission
of California et al., 209 Pac. 586.)
Moreover, Commonwealth Acts Nos. 146 and 454 are not only the organic acts of the
Public Service Commission but are "a part of the charter of every utility company
operating or seeking to operate a franchise" in the Philippines. (Streator Aqueduct Co.
v. et al., 295 Fed. 385.) The business of a common carrier holds such a peculiar
relation to the public interest that there is superinduced upon it the right of public
regulation. When private property is "affected with a public interest it ceased to
be juris privati only." When, therefore, one devotes his property to a use in which the
public has an interest, he, in effect, grants to the public an interest in that use, and
must submit to be controlled by the public for the common good, to the extent of the
interest he has thus created. He may withdraw his grant by discounting the use, but
so long as he maintains the use he must submit to control. Indeed, this right of
regulation is so far beyond question that it is well settled that the power of the state to
exercise legislative control over public utilities may be exercised through boards of
commissioners. (Fisher vs. Yangco Steamship Company, 31 Phil., 1, citing
Munn vs. Illinois, 94 U.S. 113; Georgia R. & Bkg. Co. vs. Smith, 128 U.S. 174;
Budd vs. New York, 143 U.S. 517; New York etc. R. Co. vs. Bristol 151 U.S. 556,
571; Connecticut etc. R. Co. vs. Woodruff, 153 U.S. 689; Louisville etc. Ry
Co. vs. Kentucky, 161 U.S. 677, 695.) This right of the state to regulate public utilities
is founded upon the police power, and statutes for the control and regulation of
utilities are a legitimate exercise thereof, for the protection of the public as well as of
the utilities themselves. Such statutes are, therefore, not unconstitutional, either
impairing the obligation of contracts, taking property without due process, or denying
the equal protection of the laws, especially inasmuch as the question whether or not
private property shall be devoted to a public and the consequent burdens assumed is
ordinarily for the owner to decide; and if he voluntarily places his property in public
service he cannot complain that it becomes subject to the regulatory powers of the
state. (51 C. J., sec. 21, pp. 9-10.) in the light of authorities which hold that a
certificate of public convenience constitutes neither a franchise nor contract, confers
no property right, and is mere license or privilege. (Burgess vs. Mayor & Alderman of
Brockton, 235 Mass. 95, 100, 126 N. E. 456; Roberto vs. Commisioners of
Department of Public Utilities, 262 Mass. 583, 160 N. E. 321; Scheible vs. Hogan,
113 Ohio St. 83, 148 N. E. 581; Martz vs. Curtis [J. L.] Cartage Co. [1937], 132 Ohio
St. 271, 7 N. E. [d] 220; Manila Yellow Taxicab Co. vs. Sabellano, 59 Phil., 773.)
his case and to adduce evidence tending to establish the rights which he asserts but
the tribunal must consider the evidence presented. (Chief Justice Hughes in
Morgan vs. U.S., 298 U.S. 468, 56 S. Ct. 906, 80 :Law. ed. 1288.) In the language of
this Court in Edwards vs. McCoy (22 Phil., 598), "the right to adduce evidence,
without the corresponding duty on the part of the board to consider it, is vain. Such
right is conspicuously futile if the person or persons to whom the evidence is
presented can thrust it aside without or consideration." While the duty to deliberate
does not impose the obligation to decide right, it does imply a necessity which cannot
be disregarded, namely, that of having something to support its decision. A decision
with absolutely nothing to support it is a nullity, at least when directly attacked.
(Edwards vs. McCoy, supra.) This principle emanates from the more fundamental
principle that the genius of constitutional government is contrary to the vesting of
unlimited power anywhere. Law is both a grant and a limitation upon power.
The decision appealed from is hereby reversed and the case remanded to the Public
Service Commission for further proceedings in accordance with law and this decision,
without any pronouncement regarding costs. So ordered.
Avanceña, C.J., Imperial, Diaz, Concepcion and Moran, JJ., concur.

Whilst the challenged provisions of Commonwealth Act No. 454 are valid and
constitutional, we are, however, of the opinion that the decision of the Public Service
Commission should be reversed and the case remanded thereto for further
proceedings for the reason now to be stated. The Public Service Commission has
power, upon proper notice and hearing, "to amend, modify or revoke at any time any
certificate issued under the provisions of this Act, whenever the facts and
circumstances on the strength of which said certificate was issued have been
misrepresented or materially changed." (Section 16, par. [m], Commonwealth Act No.
146.) The petitioner's application here was for an increase of its equipment to enable
it to comply with the conditions of its certificates of public convenience. On the matter
of limitation to twenty five (25) years of the life of its certificates of public convenience,
there had been neither notice nor opportunity given the petitioner to be heard or
present evidence. The Commission appears to have taken advantage of the petitioner
to augment petitioner's equipment in imposing the limitation of twenty-five (25) years
which might as well be twenty or fifteen or any number of years. This is, to say the
least, irregular and should not be sanctioned. There are cardinal primary rights which
must be respected even in proceedings of this character. The first of these rights is
the right to a hearing, which includes the right of the party interested or affected to
present his own case and submit evidence in support thereof. In the language of
Chief Justice Hughes, in Morgan v. U.S., (304 U.S. 1, 58 S. Ct. 773, 999, 82 Law. ed.
1129), "the liberty and property of the citizen shall be protected by the rudimentary
requirements of fair play." Not only must the party be given an opportunity to present
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 102781. April 22, 1993.
BONIFACIO SANZ MACEDA, Presiding Judge, Branch 12, Regional Trial Court,
Antique, petitioner,
vs.
HON. OMBUDSMAN CONRADO M. VASQUEZ AND ATTY. NAPOLEON A.
ABIERA, respondents.
Bonifacio Sanz Maceda for and in his own behalf.
Public Attorney's Office for private respondent.
SYLLABUS
1. REMEDIAL LAW; JURISDICTION; OFFICE OF THE OMBUDSMAN HAS
JURISDICTION TO INVESTIGATE OFFENSE COMMITTED BY JUDGE WHETHER
OR NOT OFFENSE RELATES TO OFFICIAL DUTIES; REASON. — Petitioner also
contends that the Ombudsman has no jurisdiction over said cases despite this Court's
ruling in Orap vs. Sandiganbayan, since the offense charged arose from the judge's
performance of his official duties, which is under the control and supervision of the
Supreme Court . . . The Court disagrees with the first part of petitioner's basic
argument. There is nothing in the decision in Orap that would restrict it only to
offenses committed by a judge unrelated to his official duties. A judge who falsifies his
certificate of service is administratively liable to the Supreme Court for serious
misconduct and inefficiency under Section 1, Rule 140 of the Rules of Court, and
criminally liable to the State under the Revised Penal Code for his felonious act.
2. ID.; ID.; ID.; JURISDICTION TO INVESTIGATE OFFENSE RELATED TO
OFFICIAL DUTIES SUBJECT TO PRIOR ADMINISTRATIVE ACTION TAKEN
AGAINST JUDGE BY SUPREME COURT; REASON. — However, We agree with
petitioner that in the absence of any administrative action taken against him by this
Court with regard to his certificates of service, the investigation being conducted by
the Ombudsman encroaches into the Court's power of administrative supervision over
all courts and its personnel, in violation of the doctrine of separation of powers.
3. ID.; ID.; ID.; ID.; PROCEDURE TO BE OBSERVED BY OMBUDSMAN
REGARDING COMPLAINT AGAINST JUDGE OR OTHER COURT EMPLOYEE;
PURPOSE. — Thus, the Ombudsman should first refer the matter of petitioner's
certificates of service to this Court for determination of whether said certificates
reflected the true status of his pending case load, as the Court has the necessary
records to make such a determination . . . In fine, where a criminal complaint against
a judge or other court employee arises from their administrative duties, the
Ombudsman must defer action on said complaint and refer the same to this Court for
determination whether said judge or court employee had acted within the scope of
their administrative duties.
4. ID.; ID.; ID.; ID.; OMBUDSMAN CANNOT SUBPOENA SUPREME COURT AND
ITS PERSONNEL; REASON. — The Ombudsman cannot compel this Court, as one
of the three branches of government, to submit its records, or to allow its personnel to
testify on this matter, as suggested by public respondent Abiera in his affidavit-
complaint. The rationale for the foregoing pronouncement is evident in this case.
Administratively, the question before Us is this: should a judge, having been granted
by this Court an extension of time to decide cases before him, report these cases in
his certificate of service? As this question had not yet been raised with, much less
resolved by, this Court, how could the Ombudsman resolve the present criminal
complaint that requires the resolution of said question?
DECISION
NOCON, J p:
The issue in this petition for certiorari with prayer for preliminary mandatory injunction
and/or restraining order is whether the Office of the Ombudsman could entertain a
criminal complaint for the alleged falsification of a judge's certification submitted to the
Supreme Court, and assuming that it can, whether a referral should be made first to
the Supreme Court.
Petitioner Bonifacio Sanz Maceda, Presiding Judge of Branch 12 of the Regional Trial
Court of Antique, seeks the review of the following orders of the Office of the
Ombudsman: (1) the Order dated September 18, 1991 denying the ex-parte motion to
refer to the Supreme Court filed by petitioner; and (2) the Order dated November 22,
1951 denying petitioner's motion for reconsideration and directing petitioner to file his
counter-affidavit and other controverting evidences.
In his affidavit-complaint dated April 18, 1991 filed before the Office of the
Ombudsman, respondent Napoleon A. Abiera of the Public Attorney's Office alleged
that petitioner had falsified his Certificate of Service 1 dated February 6, 1989, by
certifying "that all civil and criminal cases which have been submitted for decision or
determination for a period of 90 days have been determined and decided on or before
January 31, 1998," when in truth and in fact, petitioner knew that no decision had
been rendered in five (5) civil and ten (10) criminal cases that have been submitted
for decision. Respondent Abiera further alleged that petitioner similarly falsified his
certificates of service for the months of February, April, May, June, July and August,
all in 1989; and the months beginning January up to September 1990, or for a total of
seventeen (17) months.
On the other hand, petitioner contends that he had been granted by this Court an
extension of ninety (90) days to decide the aforementioned cases.
Petitioner also contends that the Ombudsman has no jurisdiction over said case
despite this Court's ruling in Orap vs. Sandiganbayan, 2 since the offense charged
arose from the judge's performance of his official duties, which is under the control
and supervision of the Supreme Court. Furthermore, the investigation of the
Ombudsman constitutes an encroachment into the Supreme Court's constitutional
duty of supervision over all inferior courts.
The Court disagrees with the first Part of petitioner's basic argument. There is nothing
in the decision in Orap that would restrict it only to offenses committed by a judge
unrelated to his official duties. A judge who falsifies his certificate of service is
administratively liable to the Supreme Court for serious misconduct and inefficiency
under Section 1, Rule 140 of the Rules of Court, and criminally liable to the State
under the Revised Penal Code for his felonious act.
However, We agree with petitioner that in the absence of any administrative action
taken against him by this Court with regard to his certificates of service, the
investigation being conducted by the Ombudsman encroaches into the Court's power
of administrative supervision over all courts and its personnel, in violation of the
doctrine of separation of powers.
The rationale for the foregoing pronouncement is evident in this case.
Administratively. the question before Us is this: should a judge, having been granted
by this Court an extension of time to decide cases before him, report these cases in
his certificate of service? As this question had not yet been raised with, much less
resolved by, this Court. how could the Ombudsman resolve the present criminal
complaint that requires the resolution of said question?
In fine, where a criminal complaint against a Judge or other court employee arises
from their administrative duties, the Ombudsman must defer action on said complaint
and refer the same to this Court for determination whether said Judge or court
employee had acted within the scope of their administrative duties.
WHEREFORE, the instant petition is hereby GRANTED. The Ombudsman is hereby
directed to dismiss the complaint filed by public respondent Atty. Napoleon A. Abiera
and to refer the same to this Court for appropriate action.
SO ORDERED.
Narvasa, C .J ., Cruz, Feliciano, Padilla, Bidin, Griño-Aquino, Regalado, Davide, Jr.,
Romero, Bellosillo, Melo and Quiason, JJ ., concur.

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

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

Thus, the Ombudsman should first refer the matter of petitioner's certificates of
service to this Court for determination of whether said certificates reflected the true
status of his pending case load, as the Court has the necessary records to make such
a determination. The Ombudsman cannot compel this Court, as one of the three
branches of government, to submit its records, or to allow its personnel to testify on
this matter, as suggested by public respondent Abiera in his affidavit-complaint. 4
Republic of the Philippines Se resuelve: Que las actas de eleccion de los Diputados contra quienes no se
SUPREME COURT hubiere presentado debidamente una protesta antes de la adopcion de la presente
Manila resolucion sean, como por la presente, son aprobadas y confirmadas.

EN BANC Adoptada, 3 de diciembre, 1935.

G.R. No. L-45081 July 15, 1936 (5) That on December 8, 1935, the herein respondent Pedro Ynsua filed before the
Electoral Commission a "Motion of Protest" against the election of the herein
JOSE A. ANGARA, petitioner, petitioner, Jose A. Angara, being the only protest filed after the passage of
vs. Resolutions No. 8 aforequoted, and praying, among other-things, that said
THE ELECTORAL COMMISSION, PEDRO YNSUA, MIGUEL CASTILLO, and respondent be declared elected member of the National Assembly for the first district
DIONISIO C. MAYOR,respondents. of Tayabas, or that the election of said position be nullified;

Godofredo Reyes for petitioner.
Office of the Solicitor General Hilado for respondent Electoral Commission.
Pedro Ynsua in his own behalf.
No appearance for other respondents.
LAUREL, J.:
This is an original action instituted in this court by the petitioner, Jose A. Angara, for
the issuance of a writ of prohibition to restrain and prohibit the Electoral Commission,
one of the respondents, from taking further cognizance of the protest filed by Pedro
Ynsua, another respondent, against the election of said petitioner as member of the
National Assembly for the first assembly district of the Province of Tayabas.
The facts of this case as they appear in the petition and as admitted by the
respondents are as follows:
(1) That in the elections of September 17, 1935, the petitioner, Jose A. Angara, and
the respondents, Pedro Ynsua, Miguel Castillo and Dionisio Mayor, were candidates
voted for the position of member of the National Assembly for the first district of the
Province of Tayabas;
(2) That on October 7, 1935, the provincial board of canvassers, proclaimed the
petitioner as member-elect of the National Assembly for the said district, for having
received the most number of votes;
(3) That on November 15, 1935, the petitioner took his oath of office;
(6) That on December 9, 1935, the Electoral Commission adopted a resolution,
paragraph 6 of which provides:
6. La Comision no considerara ninguna protesta que no se haya presentado en o
antes de este dia.
(7) That on December 20, 1935, the herein petitioner, Jose A. Angara, one of the
respondents in the aforesaid protest, filed before the Electoral Commission a "Motion
to Dismiss the Protest", alleging (a) that Resolution No. 8 of Dismiss the Protest",
alleging (a) that Resolution No. 8 of the National Assembly was adopted in the
legitimate exercise of its constitutional prerogative to prescribe the period during
which protests against the election of its members should be presented; (b) that the
aforesaid resolution has for its object, and is the accepted formula for, the limitation of
said period; and (c) that the protest in question was filed out of the prescribed period;
(8) That on December 27, 1935, the herein respondent, Pedro Ynsua, filed an
"Answer to the Motion of Dismissal" alleging that there is no legal or constitutional
provision barring the presentation of a protest against the election of a member of the
National Assembly after confirmation;
(9) That on December 31, 1935, the herein petitioner, Jose A. Angara, filed a "Reply"
to the aforesaid "Answer to the Motion of Dismissal";
(10) That the case being submitted for decision, the Electoral Commission
promulgated a resolution on January 23, 1936, denying herein petitioner's "Motion to
Dismiss the Protest."

(4) That on December 3, 1935, the National Assembly in session assembled, passed The application of the petitioner sets forth the following grounds for the issuance of
the following resolution: the writ prayed for:

[No. 8] (a) That the Constitution confers exclusive jurisdiction upon the electoral Commission
solely as regards the merits of contested elections to the National Assembly;
RESOLUCION CONFIRMANDO LAS ACTAS DE AQUELLOS DIPUTADOS
CONTRA QUIENES NO SE HA PRESENTADO PROTESTA.
(b) That the Constitution excludes from said jurisdiction the power to regulate the
proceedings of said election contests, which power has been reserved to the
Legislative Department of the Government or the National Assembly;
(c) That like the Supreme Court and other courts created in pursuance of the
Constitution, whose exclusive jurisdiction relates solely to deciding the merits of
controversies submitted to them for decision and to matters involving their internal
organization, the Electoral Commission can regulate its proceedings only if the
National Assembly has not availed of its primary power to so regulate such
proceedings;
(d) That Resolution No. 8 of the National Assembly is, therefore, valid and should be
respected and obeyed;
(e) That under paragraph 13 of section 1 of the ordinance appended to the
Constitution and paragraph 6 of article 7 of the Tydings-McDuffie Law (No. 127 of the
73rd Congress of the United States) as well as under section 1 and 3 (should be
sections 1 and 2) of article VIII of the Constitution, this Supreme Court has jurisdiction
to pass upon the fundamental question herein raised because it involves an
interpretation of the Constitution of the Philippines.
On February 25, 1936, the Solicitor-General appeared and filed an answer in behalf
of the respondent Electoral Commission interposing the following special defenses:
(a) That the Electoral Commission has been created by the Constitution as an
instrumentality of the Legislative Department invested with the jurisdiction to decide
"all contests relating to the election, returns, and qualifications of the members of the
National Assembly"; that in adopting its resolution of December 9, 1935, fixing this
date as the last day for the presentation of protests against the election of any
member of the National Assembly, it acted within its jurisdiction and in the legitimate
exercise of the implied powers granted it by the Constitution to adopt the rules and
regulations essential to carry out the power and functions conferred upon the same
by the fundamental law; that in adopting its resolution of January 23, 1936, overruling
the motion of the petitioner to dismiss the election protest in question, and declaring
itself with jurisdiction to take cognizance of said protest, it acted in the legitimate
exercise of its quasi-judicial functions a an instrumentality of the Legislative
Department of the Commonwealth Government, and hence said act is beyond the
judicial cognizance or control of the Supreme Court;
(b) That the resolution of the National Assembly of December 3, 1935, confirming the
election of the members of the National Assembly against whom no protest had thus
far been filed, could not and did not deprive the electoral Commission of its
jurisdiction to take cognizance of election protests filed within the time that might be
set by its own rules:
(c) That the Electoral Commission is a body invested with quasi-judicial functions,
created by the Constitution as an instrumentality of the Legislative Department, and is
not an "inferior tribunal, or corporation, or board, or person" within the purview of
section 226 and 516 of the Code of Civil Procedure, against which prohibition would
lie.
The respondent Pedro Ynsua, in his turn, appeared and filed an answer in his own
behalf on March 2, 1936, setting forth the following as his special defense:
(a) That at the time of the approval of the rules of the Electoral Commission on
December 9, 1935, there was no existing law fixing the period within which protests
against the election of members of the National Assembly should be filed; that in
fixing December 9, 1935, as the last day for the filing of protests against the election
of members of the National Assembly, the Electoral Commission was exercising a
power impliedly conferred upon it by the Constitution, by reason of its quasi-judicial
attributes;
(b) That said respondent presented his motion of protest before the Electoral
Commission on December 9, 1935, the last day fixed by paragraph 6 of the rules of
the said Electoral Commission;
(c) That therefore the Electoral Commission acquired jurisdiction over the protest filed
by said respondent and over the parties thereto, and the resolution of the Electoral
Commission of January 23, 1936, denying petitioner's motion to dismiss said protest
was an act within the jurisdiction of the said commission, and is not reviewable by
means of a writ of prohibition;
(d) That neither the law nor the Constitution requires confirmation by the National
Assembly of the election of its members, and that such confirmation does not operate
to limit the period within which protests should be filed as to deprive the Electoral
Commission of jurisdiction over protest filed subsequent thereto;
(e) That the Electoral Commission is an independent entity created by the
Constitution, endowed with quasi-judicial functions, whose decision are final and
unappealable;
( f ) That the electoral Commission, as a constitutional creation, is not an inferior
tribunal, corporation, board or person, within the terms of sections 226 and 516 of the
Code of Civil Procedure; and that neither under the provisions of sections 1 and 2 of
article II (should be article VIII) of the Constitution and paragraph 13 of section 1 of
the Ordinance appended thereto could it be subject in the exercise of its quasi-judicial
functions to a writ of prohibition from the Supreme Court;
(g) That paragraph 6 of article 7 of the Tydings-McDuffie Law (No. 127 of the 73rd
Congress of the united States) has no application to the case at bar.
The case was argued before us on March 13, 1936. Before it was submitted for
decision, the petitioner prayed for the issuance of a preliminary writ of injunction
against the respondent Electoral Commission which petition was denied "without
passing upon the merits of the case" by resolution of this court of March 21, 1936.
There was no appearance for the other respondents.
The issues to be decided in the case at bar may be reduced to the following two
principal propositions:
1. Has the Supreme Court jurisdiction over the Electoral Commission and the subject
matter of the controversy upon the foregoing related facts, and in the affirmative,
2. Has the said Electoral Commission acted without or in excess of its jurisdiction in
assuming to the cognizance of the protest filed the election of the herein petitioner
notwithstanding the previous confirmation of such election by resolution of the
National Assembly?
We could perhaps dispose of this case by passing directly upon the merits of the
controversy. However, the question of jurisdiction having been presented, we do not
feel justified in evading the issue. Being a case primæ impressionis, it would hardly
be consistent with our sense of duty to overlook the broader aspect of the question
and leave it undecided. Neither would we be doing justice to the industry and
vehemence of counsel were we not to pass upon the question of jurisdiction squarely
presented to our consideration.
The separation of powers is a fundamental principle in our system of government. It
obtains not through express provision but by actual division in our Constitution. Each
department of the government has exclusive cognizance of matters within its
jurisdiction, and is supreme within its own sphere. But it does not follow from the fact
that the three powers are to be kept separate and distinct that the Constitution
intended them to be absolutely unrestrained and independent of each other. The
Constitution has provided for an elaborate system of checks and balances to secure
coordination in the workings of the various departments of the government. For
example, the Chief Executive under our Constitution is so far made a check on the
legislative power that this assent is required in the enactment of laws. This, however,
is subject to the further check that a bill may become a law notwithstanding the
refusal of the President to approve it, by a vote of two-thirds or three-fourths, as the
case may be, of the National Assembly. The President has also the right to convene
the Assembly in special session whenever he chooses. On the other hand, the
National Assembly operates as a check on the Executive in the sense that its consent
through its Commission on Appointments is necessary in the appointments of certain
officers; and the concurrence of a majority of all its members is essential to the
conclusion of treaties. Furthermore, in its power to determine what courts other than
the Supreme Court shall be established, to define their jurisdiction and to appropriate
funds for their support, the National Assembly controls the judicial department to a
certain extent. The Assembly also exercises the judicial power of trying
impeachments. And the judiciary in turn, with the Supreme Court as the final arbiter,
effectively checks the other departments in the exercise of its power to determine the
law, and hence to declare executive and legislative acts void if violative of the
Constitution.
But in the main, the Constitution has blocked out with deft strokes and in bold lines,
allotment of power to the executive, the legislative and the judicial departments of the
government. The overlapping and interlacing of functions and duties between the
several departments, however, sometimes makes it hard to say just where the one
leaves off and the other begins. In times of social disquietude or political excitement,
the great landmarks of the Constitution are apt to be forgotten or marred, if not
entirely obliterated. In cases of conflict, the judicial department is the only
constitutional organ which can be called upon to determine the proper allocation of
powers between the several departments and among the integral or constituent units
thereof.
As any human production, our Constitution is of course lacking perfection and
perfectibility, but as much as it was within the power of our people, acting through
their delegates to so provide, that instrument which is the expression of their
sovereignty however limited, has established a republican government intended to
operate and function as a harmonious whole, under a system of checks and
balances, and subject to specific limitations and restrictions provided in the said
instrument. The Constitution sets forth in no uncertain language the restrictions and
limitations upon governmental powers and agencies. If these restrictions and
limitations are transcended it would be inconceivable if the Constitution had not
provided for a mechanism by which to direct the course of government along
constitutional channels, for then the distribution of powers would be mere verbiage,
the bill of rights mere expressions of sentiment, and the principles of good
government mere political apothegms. Certainly, the limitation and restrictions
embodied in our Constitution are real as they should be in any living constitution. In
the United States where no express constitutional grant is found in their constitution,
the possession of this moderating power of the courts, not to speak of its historical
origin and development there, has been set at rest by popular acquiescence for a
period of more than one and a half centuries. In our case, this moderating power is
granted, if not expressly, by clear implication from section 2 of article VIII of our
constitution.
The Constitution is a definition of the powers of government. Who is to determine the
nature, scope and extent of such powers? The Constitution itself has provided for the
instrumentality of the judiciary as the rational way. And when the judiciary mediates to
allocate constitutional boundaries, it does not assert any superiority over the other
departments; it does not in reality nullify or invalidate an act of the legislature, but only
asserts the solemn and sacred obligation assigned to it by the Constitution to
determine conflicting claims of authority under the Constitution and to establish for the
parties in an actual controversy the rights which that instrument secures and
guarantees to them. This is in truth all that is involved in what is termed "judicial
supremacy" which properly is the power of judicial review under the Constitution.
Even then, this power of judicial review is limited to actual cases and controversies to
be exercised after full opportunity of argument by the parties, and limited further to the
constitutional question raised or the very lis mota presented. Any attempt at
abstraction could only lead to dialectics and barren legal questions and to sterile
conclusions unrelated to actualities. Narrowed as its function is in this manner, the
judiciary does not pass upon questions of wisdom, justice or expediency of
legislation. More than that, courts accord the presumption of constitutionality to
legislative enactments, not only because the legislature is presumed to abide by the
Constitution but also because the judiciary in the determination of actual cases and
controversies must reflect the wisdom and justice of the people as expressed through
their representatives in the executive and legislative departments of the governments
of the government.
But much as we might postulate on the internal checks of power provided in our
Constitution, it ought not the less to be remembered that, in the language of James
Madison, the system itself is not "the chief palladium of constitutional liberty . . . the
people who are authors of this blessing must also be its guardians . . . their eyes must
be ever ready to mark, their voice to pronounce . . . aggression on the authority of
their constitution." In the Last and ultimate analysis, then, must the success of our
government in the unfolding years to come be tested in the crucible of Filipino minds
and hearts than in consultation rooms and court chambers.
In the case at bar, the national Assembly has by resolution (No. 8) of December 3,
1935, confirmed the election of the herein petitioner to the said body. On the other
hand, the Electoral Commission has by resolution adopted on December 9, 1935,
fixed said date as the last day for the filing of protests against the election, returns
and qualifications of members of the National Assembly, notwithstanding the previous
confirmation made by the National Assembly as aforesaid. If, as contended by the
petitioner, the resolution of the National Assembly has the effect of cutting off the
power of the Electoral Commission to entertain protests against the election, returns
and qualifications of members of the National Assembly, submitted after December 3,
1935, then the resolution of the Electoral Commission of December 9, 1935, is mere
surplusage and had no effect. But, if, as contended by the respondents, the Electoral
Commission has the sole power of regulating its proceedings to the exclusion of the
National Assembly, then the resolution of December 9, 1935, by which the Electoral
Commission fixed said date as the last day for filing protests against the election,
returns and qualifications of members of the National Assembly, should be upheld.
Here is then presented an actual controversy involving as it does a conflict of a grave
constitutional nature between the National Assembly on the one hand, and the
Electoral Commission on the other. From the very nature of the republican
government established in our country in the light of American experience and of our
own, upon the judicial department is thrown the solemn and inescapable obligation of
interpreting the Constitution and defining constitutional boundaries. The Electoral
Commission, as we shall have occasion to refer hereafter, is a constitutional organ,
created for a specific purpose, namely to determine all contests relating to the
election, returns and qualifications of the members of the National Assembly.
Although the Electoral Commission may not be interfered with, when and while acting
within the limits of its authority, it does not follow that it is beyond the reach of the
constitutional mechanism adopted by the people and that it is not subject to
constitutional restrictions. The Electoral Commission is not a separate department of
the government, and even if it were, conflicting claims of authority under the
fundamental law between department powers and agencies of the government are
necessarily determined by the judiciary in justifiable and appropriate cases.
Discarding the English type and other European types of constitutional government,
the framers of our constitution adopted the American type where the written
constitution is interpreted and given effect by the judicial department. In some
countries which have declined to follow the American example, provisions have been
inserted in their constitutions prohibiting the courts from exercising the power to
interpret the fundamental law. This is taken as a recognition of what otherwise would
be the rule that in the absence of direct prohibition courts are bound to assume what
is logically their function. For instance, the Constitution of Poland of 1921, expressly
provides that courts shall have no power to examine the validity of statutes (art. 81,
chap. IV). The former Austrian Constitution contained a similar declaration. In
countries whose constitutions are silent in this respect, courts have assumed this
power. This is true in Norway, Greece, Australia and South Africa. Whereas, in
Czechoslovakia (arts. 2 and 3, Preliminary Law to constitutional Charter of the
Czechoslovak Republic, February 29, 1920) and Spain (arts. 121-123, Title IX,
Constitutional of the Republic of 1931) especial constitutional courts are established
to pass upon the validity of ordinary laws. In our case, the nature of the present
controversy shows the necessity of a final constitutional arbiter to determine the
conflict of authority between two agencies created by the Constitution. Were we to
decline to take cognizance of the controversy, who will determine the conflict? And if
the conflict were left undecided and undetermined, would not a void be thus created
in our constitutional system which may be in the long run prove destructive of the
entire framework? To ask these questions is to answer them. Natura vacuum
abhorret, so must we avoid exhaustion in our constitutional system. Upon principle,
reason and authority, we are clearly of the opinion that upon the admitted facts of the
present case, this court has jurisdiction over the Electoral Commission and the
subject mater of the present controversy for the purpose of determining the character,
scope and extent of the constitutional grant to the Electoral Commission as "the sole
judge of all contests relating to the election, returns and qualifications of the members
of the National Assembly."
Having disposed of the question of jurisdiction, we shall now proceed to pass upon
the second proposition and determine whether the Electoral Commission has acted
without or in excess of its jurisdiction in adopting its resolution of December 9, 1935,
and in assuming to take cognizance of the protest filed against the election of the
herein petitioner notwithstanding the previous confirmation thereof by the National
Assembly on December 3, 1935. As able counsel for the petitioner has pointed out,
the issue hinges on the interpretation of section 4 of Article VI of the Constitution
which provides:
"SEC. 4. There shall be an Electoral Commission composed of three Justice of the
Supreme Court designated by the Chief Justice, and of six Members chosen by the
National Assembly, three of whom shall be nominated by the party having the largest
number of votes, and three by the party having the second largest number of votes
therein. The senior Justice in the Commission shall be its Chairman. The Electoral
Commission shall be the sole judge of all contests relating to the election, returns and
qualifications of the members of the National Assembly." It is imperative, therefore,
that we delve into the origin and history of this constitutional provision and inquire into
the intention of its framers and the people who adopted it so that we may properly
appreciate its full meaning, import and significance.
The original provision regarding this subject in the Act of Congress of July 1, 1902
(sec. 7, par. 5) laying down the rule that "the assembly shall be the judge of the
elections, returns, and qualifications of its members", was taken from clause 1 of
section 5, Article I of the Constitution of the United States providing that "Each House
shall be the Judge of the Elections, Returns, and Qualifications of its own Members, .
. . ." The Act of Congress of August 29, 1916 (sec. 18, par. 1) modified this provision
by the insertion of the word "sole" as follows: "That the Senate and House of
Representatives, respectively, shall be the sole judges of the elections, returns, and
qualifications of their elective members . . ." apparently in order to emphasize the
exclusive the Legislative over the particular case s therein specified. This court has
had occasion to characterize this grant of power to the Philippine Senate and House
of Representatives, respectively, as "full, clear and complete" (Veloso vs. Boards of
Canvassers of Leyte and Samar [1919], 39 Phil., 886, 888.)
The first step towards the creation of an independent tribunal for the purpose of
deciding contested elections to the legislature was taken by the sub-committee of five
appointed by the Committee on Constitutional Guarantees of the Constitutional
Convention, which sub-committee submitted a report on August 30, 1934,
recommending the creation of a Tribunal of Constitutional Security empowered to
hear legislature but also against the election of executive officers for whose election
the vote of the whole nation is required, as well as to initiate impeachment
proceedings against specified executive and judicial officer. For the purpose of
hearing legislative protests, the tribunal was to be composed of three justices
designated by the Supreme Court and six members of the house of the legislature to
which the contest corresponds, three members to be designed by the majority party
and three by the minority, to be presided over by the Senior Justice unless the Chief
Justice is also a member in which case the latter shall preside. The foregoing
proposal was submitted by the Committee on Constitutional Guarantees to the
Convention on September 15, 1934, with slight modifications consisting in the
reduction of the legislative representation to four members, that is, two senators to be
designated one each from the two major parties in the Senate and two
representatives to be designated one each from the two major parties in the House of
Representatives, and in awarding representation to the executive department in the
persons of two representatives to be designated by the President.
Meanwhile, the Committee on Legislative Power was also preparing its report. As
submitted to the Convention on September 24, 1934 subsection 5, section 5, of the
proposed Article on the Legislative Department, reads as follows:
The elections, returns and qualifications of the members of either house and all cases
contesting the election of any of their members shall be judged by an Electoral
Commission, constituted, as to each House, by three members elected by the
members of the party having the largest number of votes therein, three elected by the
members of the party having the second largest number of votes, and as to its
Chairman, one Justice of the Supreme Court designated by the Chief Justice.
The idea of creating a Tribunal of Constitutional Security with comprehensive
jurisdiction as proposed by the Committee on Constitutional Guarantees which was
probably inspired by the Spanish plan (art. 121, Constitution of the Spanish Republic
of 1931), was soon abandoned in favor of the proposition of the Committee on
Legislative Power to create a similar body with reduced powers and with specific and
limited jurisdiction, to be designated as a Electoral Commission. The Sponsorship
Committee modified the proposal of the Committee on Legislative Power with respect
to the composition of the Electoral Commission and made further changes in
phraseology to suit the project of adopting a unicameral instead of a bicameral
legislature. The draft as finally submitted to the Convention on October 26, 1934,
reads as follows:
(6) The elections, returns and qualifications of the Members of the National Assembly
and all cases contesting the election of any of its Members shall be judged by an
Electoral Commission, composed of three members elected by the party having the
largest number of votes in the National Assembly, three elected by the members of
the party having the second largest number of votes, and three justices of the
Supreme Court designated by the Chief Justice, the Commission to be presided over
by one of said justices.
During the discussion of the amendment introduced by Delegates Labrador, Abordo,
and others, proposing to strike out the whole subsection of the foregoing draft and
inserting in lieu thereof the following: "The National Assembly shall be the soled and
exclusive judge of the elections, returns, and qualifications of the Members", the
following illuminating remarks were made on the floor of the Convention in its session
of December 4, 1934, as to the scope of the said draft:
xxx xxx xxx
Mr. VENTURA. Mr. President, we have a doubt here as to the scope of the meaning
of the first four lines, paragraph 6, page 11 of the draft, reading: "The elections,
returns and qualifications of the Members of the National Assembly and all cases
contesting the election of any of its Members shall be judged by an Electoral
Commission, . . ." I should like to ask from the gentleman from Capiz whether the
election and qualification of the member whose elections is not contested shall also
be judged by the Electoral Commission.
Mr. ROXAS. If there is no question about the election of the members, there is
nothing to be judged; that is why the word "judge" is used to indicate a controversy. If
there is no question about the election of a member, there is nothing to be submitted
to the Electoral Commission and there is nothing to be determined.
Mr. VENTURA. But does that carry the idea also that the Electoral Commission shall
confirm also the election of those whose election is not contested?
Mr. ROXAS. There is no need of confirmation. As the gentleman knows, the action of
the House of Representatives confirming the election of its members is just a matter
of the rules of the assembly. It is not constitutional. It is not necessary. After a man
files his credentials that he has been elected, that is sufficient, unless his election is
contested.
Mr. VENTURA. But I do not believe that that is sufficient, as we have observed that
for purposes of the auditor, in the matter of election of a member to a legislative body,
because he will not authorize his pay.
Mr. ROXAS. Well, what is the case with regards to the municipal president who is
elected? What happens with regards to the councilors of a municipality? Does
anybody confirm their election? The municipal council does this: it makes a canvass
and proclaims — in this case the municipal council proclaims who has been elected,
and it ends there, unless there is a contest. It is the same case; there is no need on
the part of the Electoral Commission unless there is a contest. The first clause refers
to the case referred to by the gentleman from Cavite where one person tries to be
elected in place of another who was declared elected. From example, in a case when
the residence of the man who has been elected is in question, or in case the
citizenship of the man who has been elected is in question.
However, if the assembly desires to annul the power of the commission, it may do so
by certain maneuvers upon its first meeting when the returns are submitted to the
assembly. The purpose is to give to the Electoral Commission all the powers
exercised by the assembly referring to the elections, returns and qualifications of the
members. When there is no contest, there is nothing to be judged.
Mr. VENTURA. Then it should be eliminated.
Mr. ROXAS. But that is a different matter, I think Mr. Delegate.
Mr. CINCO. Mr. President, I have a similar question as that propounded by the
gentleman from Ilocos Norte when I arose a while ago. However I want to ask more
questions from the delegate from Capiz. This paragraph 6 on page 11 of the draft
cites cases contesting the election as separate from the first part of the sections
which refers to elections, returns and qualifications.
Mr. ROXAS. That is merely for the sake of clarity. In fact the cases of contested
elections are already included in the phrase "the elections, returns and qualifications."
This phrase "and contested elections" was inserted merely for the sake of clarity.
Mr. CINCO. Under this paragraph, may not the Electoral Commission, at its own
instance, refuse to confirm the elections of the members."
Mr. ROXAS. I do not think so, unless there is a protest.
Mr. LABRADOR. Mr. President, will the gentleman yield?
THE PRESIDENT. The gentleman may yield, if he so desires.
Mr. ROXAS. Willingly.
Mr. LABRADOR. Does not the gentleman from Capiz believe that unless this power is
granted to the assembly, the assembly on its own motion does not have the right to
contest the election and qualification of its members?
Mr. ROXAS. I have no doubt but that the gentleman is right. If this draft is retained as
it is, even if two-thirds of the assembly believe that a member has not the
qualifications provided by law, they cannot remove him for that reason.
Mr. LABRADOR. So that the right to remove shall only be retained by the Electoral
Commission.
Mr. ROXAS. By the assembly for misconduct.
Mr. LABRADOR. I mean with respect to the qualifications of the members.
Mr. ROXAS. Yes, by the Electoral Commission.
Mr. LABRADOR. So that under this draft, no member of the assembly has the right to
question the eligibility of its members?
Mr. ROXAS. Before a member can question the eligibility, he must go to the Electoral
Commission and make the question before the Electoral Commission.
Mr. LABRADOR. So that the Electoral Commission shall decide whether the election
is contested or not contested.
Mr. ROXAS. Yes, sir: that is the purpose.
Mr. PELAYO. Mr. President, I would like to be informed if the Electoral Commission
has power and authority to pass upon the qualifications of the members of the
National Assembly even though that question has not been raised.
Mr. ROXAS. I have just said that they have no power, because they can only judge.
In the same session, the first clause of the aforesaid draft reading "The election,
returns and qualifications of the members of the National Assembly and" was
eliminated by the Sponsorship Committee in response to an amendment introduced
by Delegates Francisco, Ventura, Vinzons, Rafols, Lim, Mumar and others. In
explaining the difference between the original draft and the draft as amended,
Delegate Roxas speaking for the Sponsorship Committee said:
xxx xxx xxx
Sr. ROXAS. La diferencia, señor Presidente, consiste solamente en obviar la
objecion apuntada por varios Delegados al efecto de que la primera clausula
del draft que dice: "The elections, returns and qualifications of the members of the
National Assembly" parece que da a la Comision Electoral la facultad de determinar
tambien la eleccion de los miembros que no ha sido protestados y para obviar esa
dificultad, creemos que la enmienda tien razon en ese sentido, si enmendamos
el draft, de tal modo que se lea como sigue: "All cases contesting the election", de
modo que los jueces de la Comision Electoral se limitaran solamente a los casos en
que haya habido protesta contra las actas." Before the amendment of Delegate
Labrador was voted upon the following interpellation also took place:
El Sr. CONEJERO. Antes de votarse la enmienda, quisiera
El Sr. PRESIDENTE. ¿Que dice el Comite?
El Sr. ROXAS. Con mucho gusto.
El Sr. CONEJERO. Tal como esta el draft, dando tres miembros a la mayoria, y otros
tres a la minoria y tres a la Corte Suprema, ¿no cree Su Señoria que esto equivale
practicamente a dejar el asunto a los miembros del Tribunal Supremo?
El Sr. ROXAS. Si y no. Creemos que si el tribunal o la Commission esta constituido
en esa forma, tanto los miembros de la mayoria como los de la minoria asi como los
miembros de la Corte Suprema consideraran la cuestion sobre la base de sus
meritos, sabiendo que el partidismo no es suficiente para dar el triunfo.
El Sr. CONEJERO. ¿Cree Su Señoria que en un caso como ese, podriamos hacer
que tanto los de la mayoria como los de la minoria prescindieran del partidismo?
El Sr. ROXAS. Creo que si, porque el partidismo no les daria el triunfo.
xxx xxx xxx
The amendment introduced by Delegates Labrador, Abordo and others seeking to
restore the power to decide contests relating to the election, returns and qualifications
of members of the National Assembly to the National Assembly itself, was defeated
by a vote of ninety-eight (98) against fifty-six (56).
In the same session of December 4, 1934, Delegate Cruz (C.) sought to amend the
draft by reducing the representation of the minority party and the Supreme Court in
the Electoral Commission to two members each, so as to accord more representation
to the majority party. The Convention rejected this amendment by a vote of seventy-
six (76) against forty-six (46), thus maintaining the non-partisan character of the
commission.
As approved on January 31, 1935, the draft was made to read as follows:
(6) All cases contesting the elections, returns and qualifications of the Members of the
National Assembly shall be judged by an Electoral Commission, composed of three
members elected by the party having the largest number of votes in the National
Assembly, three elected by the members of the party having the second largest
number of votes, and three justices of the Supreme Court designated by the Chief
Justice, the Commission to be presided over by one of said justices.
The Style Committee to which the draft was submitted revised it as follows:
SEC. 4. There shall be an Electoral Commission composed of three Justices of the
Supreme Court designated by the Chief Justice, and of six Members chosen by the
National Assembly, three of whom shall be nominated by the party having the largest
number of votes, and three by the party having the second largest number of votes
therein. The senior Justice in the Commission shall be its chairman. The Electoral
Commission shall be the sole judge of the election, returns, and qualifications of the
Members of the National Assembly.
When the foregoing draft was submitted for approval on February 8, 1935, the Style
Committee, through President Recto, to effectuate the original intention of the
Convention, agreed to insert the phrase "All contests relating to" between the phrase
"judge of" and the words "the elections", which was accordingly accepted by the
Convention.
The transfer of the power of determining the election, returns and qualifications of the
members of the legislature long lodged in the legislative body, to an independent,
impartial and non-partisan tribunal, is by no means a mere experiment in the science
of government.
Cushing, in his Law and Practice of Legislative Assemblies (ninth edition, chapter VI,
pages 57, 58), gives a vivid account of the "scandalously notorious" canvassing of
votes by political parties in the disposition of contests by the House of Commons in
the following passages which are partly quoted by the petitioner in his printed
memorandum of March 14, 1936:
153. From the time when the commons established their right to be the exclusive
judges of the elections, returns, and qualifications of their members, until the year
1770, two modes of proceeding prevailed, in the determination of controverted
elections, and rights of membership. One of the standing committees appointed at the
commencement of each session, was denominated the committee of privileges and
elections, whose functions was to hear and investigate all questions of this
description which might be referred to them, and to report their proceedings, with their
opinion thereupon, to the house, from time to time. When an election petition was
referred to this committee they heard the parties and their witnesses and other
evidence, and made a report of all the evidence, together with their opinion
thereupon, in the form of resolutions, which were considered and agreed or disagreed
to by the house. The other mode of proceeding was by a hearing at the bar of the
house itself. When this court was adopted, the case was heard and decided by the
house, in substantially the same manner as by a committee. The committee of
privileges and elections although a select committee. The committee of privileges and
elections although a select committee was usually what is called an open one; that is
to say, in order to constitute the committee, a quorum of the members named was
required to be present, but all the members of the house were at liberty to attend the
committee and vote if they pleased.
154. With the growth of political parties in parliament questions relating to the right of
membership gradually assumed a political character; so that for many years previous
to the year 1770, controverted elections had been tried and determined by the house
of commons, as mere party questions, upon which the strength of contending factions
might be tested. Thus, for Example, in 1741, Sir Robert Walpole, after repeated
attacks upon his government, resigned his office in consequence of an adverse vote
upon the Chippenham election. Mr. Hatsell remarks, of the trial of election cases, as
conducted under this system, that "Every principle of decency and justice were
notoriously and openly prostituted, from whence the younger part of the house were
insensibly, but too successfully, induced to adopt the same licentious conduct in more
serious matters, and in questions of higher importance to the public welfare." Mr.
George Grenville, a distinguished member of the house of commons, undertook to
propose a remedy for the evil, and, on the 7th of March, 1770, obtained the
unanimous leave of the house to bring in a bill, "to regulate the trial of controverted
elections, or returns of members to serve in parliament." In his speech to explain his
plan, on the motion for leave, Mr. Grenville alluded to the existing practice in the
following terms: "Instead of trusting to the merits of their respective causes, the
principal dependence of both parties is their private interest among us; and it is
scandalously notorious that we are as earnestly canvassed to attend in favor of the
opposite sides, as if we were wholly self-elective, and not bound to act by the
principles of justice, but by the discretionary impulse of our own inclinations; nay, it is
well known, that in every contested election, many members of this house, who are
ultimately to judge in a kind of judicial capacity between the competitors, enlist
themselves as parties in the contention, and take upon themselves the partial
management of the very business, upon which they should determine with the
strictest impartiality."
155. It was to put an end to the practices thus described, that Mr. Grenville brought in
a bill which met with the approbation of both houses, and received the royal assent on
the 12th of April, 1770. This was the celebrated law since known by the name of the
Grenville Act; of which Mr. Hatsell declares, that it "was one of the nobles works, for
the honor of the house of commons, and the security of the constitution, that was ever
devised by any minister or statesman." It is probable, that the magnitude of the evil, or
the apparent success of the remedy, may have led many of the contemporaries of the
measure to the information of a judgement, which was not acquiesced in by some of
the leading statesmen of the day, and has not been entirely confirmed by subsequent
experience. The bill was objected to by Lord North, Mr. De Grey, afterwards chief
justice of the common pleas, Mr. Ellis, Mr. Dyson, who had been clerk of the house,
and Mr. Charles James Fox, chiefly on the ground, that the introduction of the new
system was an essential alteration of the constitution of parliament, and a total
abrogation of one of the most important rights and jurisdictions of the house of
commons.
As early as 1868, the House of Commons in England solved the problem of insuring
the non-partisan settlement of the controverted elections of its members by abdicating
its prerogative to two judges of the King's Bench of the High Court of Justice selected
from a rota in accordance with rules of court made for the purpose. Having proved
successful, the practice has become imbedded in English jurisprudence
(Parliamentary Elections Act, 1868 [31 & 32 Vict. c. 125] as amended by
Parliamentary Elections and Corrupt Practices Act. 1879 [42 & 43 Vict. c. 75], s. 2;
Corrupt and Illegal Practices Preventions Act, 1883 [46 & 47 Vict. c. 51;, s. 70;
Expiring Laws Continuance Act, 1911 [1 & 2 Geo. 5, c. 22]; Laws of England, vol. XII,
p. 408, vol. XXI, p. 787). In the Dominion of Canada, election contests which were
originally heard by the Committee of the House of Commons, are since 1922 tried in
the courts. Likewise, in the Commonwealth of Australia, election contests which were
originally determined by each house, are since 1922 tried in the High Court. In
Hungary, the organic law provides that all protests against the election of members of
the Upper House of the Diet are to be resolved by the Supreme Administrative Court
(Law 22 of 1916, chap. 2, art. 37, par. 6). The Constitution of Poland of March 17,
1921 (art. 19) and the Constitution of the Free City of Danzig of May 13, 1922 (art.
10) vest the authority to decide contested elections to the Diet or National Assembly
in the Supreme Court. For the purpose of deciding legislative contests, the
Constitution of the German Reich of July 1, 1919 (art. 31), the Constitution of the
Czechoslovak Republic of February 29, 1920 (art. 19) and the Constitution of the
Grecian Republic of June 2, 1927 (art. 43), all provide for an Electoral Commission.
The creation of an Electoral Commission whose membership is recruited both from
the legislature and the judiciary is by no means unknown in the United States. In the
presidential elections of 1876 there was a dispute as to the number of electoral votes
received by each of the two opposing candidates. As the Constitution made no
adequate provision for such a contingency, Congress passed a law on January 29,
1877 (United States Statutes at Large, vol. 19, chap. 37, pp. 227-229), creating a
special Electoral Commission composed of five members elected by the Senate, five
members elected by the House of Representatives, and five justices of the Supreme
Court, the fifth justice to be selected by the four designated in the Act. The decision of
the commission was to be binding unless rejected by the two houses voting
separately. Although there is not much of a moral lesson to be derived from the
experience of America in this regard, judging from the observations of Justice Field,
who was a member of that body on the part of the Supreme Court (Countryman, the
Supreme Court of the United States and its Appellate Power under the Constitution
[Albany, 1913] — Relentless Partisanship of Electoral Commission, p. 25 et seq.), the
experiment has at least abiding historical interest.
The members of the Constitutional Convention who framed our fundamental law were
in their majority men mature in years and experience. To be sure, many of them were
familiar with the history and political development of other countries of the world.
When , therefore, they deemed it wise to create an Electoral Commission as a
constitutional organ and invested it with the exclusive function of passing upon and
determining the election, returns and qualifications of the members of the National
Assembly, they must have done so not only in the light of their own experience but
also having in view the experience of other enlightened peoples of the world. The
creation of the Electoral Commission was designed to remedy certain evils of which
the framers of our Constitution were cognizant. Notwithstanding the vigorous
opposition of some members of the Convention to its creation, the plan, as
hereinabove stated, was approved by that body by a vote of 98 against 58. All that
can be said now is that, upon the approval of the constitutional the creation of the
Electoral Commission is the expression of the wisdom and "ultimate justice of the
people". (Abraham Lincoln, First Inaugural Address, March 4, 1861.)
From the deliberations of our Constitutional Convention it is evident that the purpose
was to transfer in its totality all the powers previously exercised by the legislature in
matters pertaining to contested elections of its members, to an independent and
impartial tribunal. It was not so much the knowledge and appreciation of
contemporary constitutional precedents, however, as the long-felt need of
determining legislative contests devoid of partisan considerations which prompted the
people, acting through their delegates to the Convention, to provide for this body
known as the Electoral Commission. With this end in view, a composite body in which
both the majority and minority parties are equally represented to off-set partisan
influence in its deliberations was created, and further endowed with judicial temper by
including in its membership three justices of the Supreme Court.
The Electoral Commission is a constitutional creation, invested with the necessary
authority in the performance and execution of the limited and specific function
assigned to it by the Constitution. Although it is not a power in our tripartite scheme of
government, it is, to all intents and purposes, when acting within the limits of its
authority, an independent organ. It is, to be sure, closer to the legislative department
than to any other. The location of the provision (section 4) creating the Electoral
Commission under Article VI entitled "Legislative Department" of our Constitution is
very indicative. Its compositions is also significant in that it is constituted by a majority
of members of the legislature. But it is a body separate from and independent of the
legislature.
The grant of power to the Electoral Commission to judge all contests relating to the
election, returns and qualifications of members of the National Assembly, is intended
to be as complete and unimpaired as if it had remained originally in the legislature.
The express lodging of that power in the Electoral Commission is an implied denial of
the exercise of that power by the National Assembly. And this is as effective a
restriction upon the legislative power as an express prohibition in the Constitution (Ex
parte Lewis, 45 Tex. Crim. Rep., 1; State vs.Whisman, 36 S.D., 260; L.R.A., 1917B,
1). If we concede the power claimed in behalf of the National Assembly that said body
may regulate the proceedings of the Electoral Commission and cut off the power of
the commission to lay down the period within which protests should be filed, the grant
of power to the commission would be ineffective. The Electoral Commission in such
case would be invested with the power to determine contested cases involving the
election, returns and qualifications of the members of the National Assembly but
subject at all times to the regulative power of the National Assembly. Not only would
the purpose of the framers of our Constitution of totally transferring this authority from
the legislative body be frustrated, but a dual authority would be created with the
resultant inevitable clash of powers from time to time. A sad spectacle would then be
presented of the Electoral Commission retaining the bare authority of taking
cognizance of cases referred to, but in reality without the necessary means to render
that authority effective whenever and whenever the National Assembly has chosen to
act, a situation worse than that intended to be remedied by the framers of our
Constitution. The power to regulate on the part of the National Assembly in
procedural matters will inevitably lead to the ultimate control by the Assembly of the
entire proceedings of the Electoral Commission, and, by indirection, to the entire
abrogation of the constitutional grant. It is obvious that this result should not be
permitted.
We are not insensible to the impassioned argument or the learned counsel for the
petitioner regarding the importance and necessity of respecting the dignity and
independence of the national Assembly as a coordinate department of the
government and of according validity to its acts, to avoid what he characterized would
be practically an unlimited power of the commission in the admission of protests
against members of the National Assembly. But as we have pointed out hereinabove,
the creation of the Electoral Commission carried with it ex necesitate rei the power
regulative in character to limit the time with which protests intrusted to its cognizance
should be filed. It is a settled rule of construction that where a general power is
conferred or duty enjoined, every particular power necessary for the exercise of the
one or the performance of the other is also conferred (Cooley, Constitutional
Limitations, eight ed., vol. I, pp. 138, 139). In the absence of any further constitutional
provision relating to the procedure to be followed in filing protests before the Electoral
Commission, therefore, the incidental power to promulgate such rules necessary for
the proper exercise of its exclusive power to judge all contests relating to the election,
returns and qualifications of members of the National Assembly, must be deemed by
necessary implication to have been lodged also in the Electoral Commission.
It is, indeed, possible that, as suggested by counsel for the petitioner, the Electoral
Commission may abuse its regulative authority by admitting protests beyond any
reasonable time, to the disturbance of the tranquillity and peace of mind of the
members of the National Assembly. But the possibility of abuse is not argument
against the concession of the power as there is no power that is not susceptible of
abuse. In the second place, if any mistake has been committed in the creation of an
Electoral Commission and in investing it with exclusive jurisdiction in all cases relating
to the election, returns, and qualifications of members of the National Assembly, the
remedy is political, not judicial, and must be sought through the ordinary processes of
democracy. All the possible abuses of the government are not intended to be
corrected by the judiciary. We believe, however, that the people in creating the
Electoral Commission reposed as much confidence in this body in the exclusive
determination of the specified cases assigned to it, as they have given to the
Supreme Court in the proper cases entrusted to it for decision. All the agencies of the
government were designed by the Constitution to achieve specific purposes, and
each constitutional organ working within its own particular sphere of discretionary
action must be deemed to be animated with the same zeal and honesty in
accomplishing the great ends for which they were created by the sovereign will. That
the actuations of these constitutional agencies might leave much to be desired in
given instances, is inherent in the perfection of human institutions. In the third place,
from the fact that the Electoral Commission may not be interfered with in the exercise
of its legitimate power, it does not follow that its acts, however illegal or
unconstitutional, may not be challenge in appropriate cases over which the courts
may exercise jurisdiction.
But independently of the legal and constitutional aspects of the present case, there
are considerations of equitable character that should not be overlooked in the
appreciation of the intrinsic merits of the controversy. The Commonwealth
Government was inaugurated on November 15, 1935, on which date the Constitution,
except as to the provisions mentioned in section 6 of Article XV thereof, went into
effect. The new National Assembly convened on November 25th of that year, and the
resolution confirming the election of the petitioner, Jose A. Angara was approved by
that body on December 3, 1935. The protest by the herein respondent Pedro Ynsua
against the election of the petitioner was filed on December 9 of the same year. The
pleadings do not show when the Electoral Commission was formally organized but it
does appear that on December 9, 1935, the Electoral Commission met for the first
time and approved a resolution fixing said date as the last day for the filing of election
protest. When, therefore, the National Assembly passed its resolution of December 3,
1935, confirming the election of the petitioner to the National Assembly, the Electoral
Commission had not yet met; neither does it appear that said body had actually been
organized. As a mater of fact, according to certified copies of official records on file in
the archives division of the National Assembly attached to the record of this case
upon the petition of the petitioner, the three justices of the Supreme Court the six
members of the National Assembly constituting the Electoral Commission were
respectively designated only on December 4 and 6, 1935. If Resolution No. 8 of the
National Assembly confirming non-protested elections of members of the National
Assembly had the effect of limiting or tolling the time for the presentation of protests,
the result would be that the National Assembly — on the hypothesis that it still
retained the incidental power of regulation in such cases — had already barred the
presentation of protests before the Electoral Commission had had time to organize
itself and deliberate on the mode and method to be followed in a matter entrusted to
its exclusive jurisdiction by the Constitution. This result was not and could not have
been contemplated, and should be avoided.
From another angle, Resolution No. 8 of the National Assembly confirming the
election of members against whom no protests had been filed at the time of its
passage on December 3, 1935, can not be construed as a limitation upon the time for
the initiation of election contests. While there might have been good reason for the
legislative practice of confirmation of the election of members of the legislature at the
time when the power to decide election contests was still lodged in the legislature,
confirmation alone by the legislature cannot be construed as depriving the Electoral
Commission of the authority incidental to its constitutional power to be "the sole judge
of all contest relating to the election, returns, and qualifications of the members of the
National Assembly", to fix the time for the filing of said election protests. Confirmation
by the National Assembly of the returns of its members against whose election no
protests have been filed is, to all legal purposes, unnecessary. As contended by the
Electoral Commission in its resolution of January 23, 1936, overruling the motion of
the herein petitioner to dismiss the protest filed by the respondent Pedro Ynsua,
confirmation of the election of any member is not required by the Constitution before
he can discharge his duties as such member. As a matter of fact, certification by the
proper provincial board of canvassers is sufficient to entitle a member-elect to a seat
in the national Assembly and to render him eligible to any office in said body (No. 1,
par. 1, Rules of the National Assembly, adopted December 6, 1935).
Under the practice prevailing both in the English House of Commons and in the
Congress of the United States, confirmation is neither necessary in order to entitle a
member-elect to take his seat. The return of the proper election officers is sufficient,
and the member-elect presenting such return begins to enjoy the privileges of a
member from the time that he takes his oath of office (Laws of England, vol. 12, pp.
331. 332; vol. 21, pp. 694, 695; U. S. C. A., Title 2, secs. 21, 25, 26). Confirmation is
in order only in cases of contested elections where the decision is adverse to the
claims of the protestant. In England, the judges' decision or report in controverted
elections is certified to the Speaker of the House of Commons, and the House, upon
being informed of such certificate or report by the Speaker, is required to enter the
same upon the Journals, and to give such directions for confirming or altering the
return, or for the issue of a writ for a new election, or for carrying into execution the
determination as circumstances may require (31 & 32 Vict., c. 125, sec. 13). In the
United States, it is believed, the order or decision of the particular house itself is
generally regarded as sufficient, without any actual alternation or amendment of the
return (Cushing, Law and Practice of Legislative Assemblies, 9th ed., sec. 166).
Under the practice prevailing when the Jones Law was still in force, each house of the
Philippine Legislature fixed the time when protests against the election of any of its
members should be filed. This was expressly authorized by section 18 of the Jones
Law making each house the sole judge of the election, return and qualifications of its
members, as well as by a law (sec. 478, Act No. 3387) empowering each house to
respectively prescribe by resolution the time and manner of filing contest in the
election of member of said bodies. As a matter of formality, after the time fixed by its
rules for the filing of protests had already expired, each house passed a resolution
confirming or approving the returns of such members against whose election no
protests had been filed within the prescribed time. This was interpreted as cutting off
the filing of further protests against the election of those members not theretofore
contested (Amistad vs. Claravall [Isabela], Second Philippine Legislature, Record —
First Period, p. 89; Urguello vs. Rama [Third District, Cebu], Sixth Philippine
Legislature; Fetalvero vs. Festin [Romblon], Sixth Philippine Legislature, Record —
First Period, pp. 637-640; Kintanar vs. Aldanese [Fourth District, Cebu], Sixth
Philippine Legislature, Record — First Period, pp. 1121, 1122; Aguilar vs. Corpus
[Masbate], Eighth Philippine Legislature, Record — First Period, vol. III, No. 56, pp.
892, 893). The Constitution has repealed section 18 of the Jones Law. Act No. 3387,
section 478, must be deemed to have been impliedly abrogated also, for the reason
that with the power to determine all contest relating to the election, returns and
qualifications of members of the National Assembly, is inseparably linked the
authority to prescribe regulations for the exercise of that power. There was thus no
law nor constitutional provisions which authorized the National Assembly to fix, as it is
alleged to have fixed on December 3, 1935, the time for the filing of contests against
the election of its members. And what the National Assembly could not do directly, it
could not do by indirection through the medium of confirmation.
Summarizing, we conclude:
(a) That the government established by the Constitution follows fundamentally the
theory of separation of power into the legislative, the executive and the judicial.
(b) That the system of checks and balances and the overlapping of functions and
duties often makes difficult the delimitation of the powers granted.
(c) That in cases of conflict between the several departments and among the
agencies thereof, the judiciary, with the Supreme Court as the final arbiter, is the only
constitutional mechanism devised finally to resolve the conflict and allocate
constitutional boundaries.
(d) That judicial supremacy is but the power of judicial review in actual and
appropriate cases and controversies, and is the power and duty to see that no one
branch or agency of the government transcends the Constitution, which is the source
of all authority.
(e) That the Electoral Commission is an independent constitutional creation with
specific powers and functions to execute and perform, closer for purposes of
classification to the legislative than to any of the other two departments of the
governments.
(f ) That the Electoral Commission is the sole judge of all contests relating to the
election, returns and qualifications of members of the National Assembly.
(g) That under the organic law prevailing before the present Constitution went into
effect, each house of the legislature was respectively the sole judge of the elections,
returns, and qualifications of their elective members.
(h) That the present Constitution has transferred all the powers previously exercised
by the legislature with respect to contests relating to the elections, returns and
qualifications of its members, to the Electoral Commission.
(i) That such transfer of power from the legislature to the Electoral Commission was
full, clear and complete, and carried with it ex necesitate rei the implied power inter
alia to prescribe the rules and regulations as to the time and manner of filing protests.
( j) That the avowed purpose in creating the Electoral Commission was to have an
independent constitutional organ pass upon all contests relating to the election,
returns and qualifications of members of the National Assembly, devoid of partisan
influence or consideration, which object would be frustrated if the National Assembly
were to retain the power to prescribe rules and regulations regarding the manner of
conducting said contests.
(k) That section 4 of article VI of the Constitution repealed not only section 18 of the
Jones Law making each house of the Philippine Legislature respectively the sole
judge of the elections, returns and qualifications of its elective members, but also
section 478 of Act No. 3387 empowering each house to prescribe by resolution the
time and manner of filing contests against the election of its members, the time and
manner of notifying the adverse party, and bond or bonds, to be required, if any, and
to fix the costs and expenses of contest.
(l) That confirmation by the National Assembly of the election is contested or not, is
not essential before such member-elect may discharge the duties and enjoy the
privileges of a member of the National Assembly.

(m) That confirmation by the National Assembly of the election of any member
against whom no protest had been filed prior to said confirmation, does not and
cannot deprive the Electoral Commission of its incidental power to prescribe the time
within which protests against the election of any member of the National Assembly
should be filed.

We hold, therefore, that the Electoral Commission was acting within the legitimate
exercise of its constitutional prerogative in assuming to take cognizance of the protest
filed by the respondent Pedro Ynsua against the election of the herein petitioner Jose
A. Angara, and that the resolution of the National Assembly of December 3, 1935 can
not in any manner toll the time for filing protests against the elections, returns and
qualifications of members of the National Assembly, nor prevent the filing of a protest
within such time as the rules of the Electoral Commission might prescribe.

In view of the conclusion reached by us relative to the character of the Electoral

Commission as a constitutional creation and as to the scope and extent of its
authority under the facts of the present controversy, we deem it unnecessary to
determine whether the Electoral Commission is an inferior tribunal, corporation, board
or person within the purview of sections 226 and 516 of the Code of Civil Procedure.

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

Avanceña, C. J., Diaz, Concepcion, and Horrilleno, JJ., concur.

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-3820 July 18, 1950
JEAN L. ARNAULT, petitioner,
vs.
LEON NAZARENO, Sergeant-at-arms, Philippine Senate, and EUSTAQUIO
BALAGTAS, Director of Prisons,respondents.
J.C. Orendain, Augusto Revilla, and Eduardo Arboleda for petitioner.
Office of the Solicitor General Felix Bautista Angelo, Lorenzo Sumulong, Lorenzo
Tañada, and Vicente J. Francisco for respondents.
OZAETA, J.:
This is an original petition for habeas corpus to relieve the petitioner from his
confinement in the New Bilibid Prison to which he has been committed by virtue of a
resolution adopted by the Senate on May 15, 1950, which reads as follows:
Whereas, Jean L. Arnault refused to reveal the name of the person to whom he gave
the P440,000, as well as answer other pertinent questions related to the said amount;
Now, therefore, be it.
Resolved, that for his refusal to reveal the name of the person to whom he gave the
P440,000 Jean L. Arnault be committed to the custody of the Sergeant-at-Arms and
imprisoned in the New Bilibid Prison, Muntinlupa, Rizal, until discharged by further
order of the Senate or by the special committee created by Senate Resolution No. 8,
such discharge to be ordered when he shall have purged the contempt by revealing
to the Senate or to the said special committee the name of the person to whom he
gave the P440,000, as well as answer other pertinent questions in connection
therewith.
The facts that gave rise to the adoption of said resolution, insofar as pertinent here,
may be briefly stated as follows:
In the latter part of October, 1949, the Philippine Government, through the Rural
Progress Administration, bought two estates known as Buenavista and Tambobong
for the sums of P4,500,000 and P500,000, respectively. Of the first sum, P1,000,000
was paid to Ernest H. Burt, a nonresident American, thru his attorney-in-fact in the
Philippines, the Associated Estates, Inc., represented by Jean L. Arnault, for alleged
interest of the said Burt in the Buenavista Estate. The second sum of P500,000 was
all paid to the same Ernest H. Burt through his other attorney-in-fact, the North Manila
Development Co., Inc., also represented by Jean L. Arnault, for the alleged interest of
the said Burt in the Tambobong Estate.
The original owner of the Buenavista Estate was the San Juan de Dios Hospital. The
Philippine Government held a 25-year lease contract on said estate, with an option to
purchase it for P3,000,000 within the same period of 25 years counted from January
1, 1939. The occupation Republic of the Philippines purported to exercise that option
by tendering to the owner the sum of P3,000,000 and, upon its rejection, by
depositing it in court on June 21, 1944, together with the accrued rentals amounting
to P3224,000. Since 1939 the Government has remained in possession of the estate.
On June 29, 1946, the San Juan de Dios Hospital sold the Buenavista Estate for
P5,000,000 to Ernest H. Burt, who made a down payment of P10,000 only and
agreed to pay P5000,000 within one year and the remainder in annual installments of
P500,000 each, with the stipulation that failure on his part to make any of said
payments would cause the forfeiture of his down payment of P10,000 and would
entitle the Hospital to rescind to sale to him. Aside from the down payment of
P10,000, Burt has made no other payment on account of the purchase price of said
estate.
The original owner of the Tambobong Estate was the Philippine Trust Company. On
May 14, 1946, the Philippine Trust Company sold estate for the sum of P1,200,000 to
Ernest H. Burt, who paid P10,000 down and promise to pay P90,000 within nine
months and the balance of P1,100,000 in ten successive installments of P110,000
each. The nine-month period within which to pay the first installment of P90,000
expired on February 14, 1947, without Burt's having paid the said or any other
amount then or afterwards. On September 4, 1947, the Philippine Trust Company
sold, conveyed, and delivered the Tambobong Estate to the Rural Progress
Administration by an absolute deed of sale in consideration of the sum of P750,000.
On February 5, 1948, the Rural Progress Administration made, under article 1504 of
the Civil Code, a notarial demand upon Burt for the resolution and cancellation of his
contract of purchase with the Philippine Trust Company due to his failure to pay the
installment of P90,000 within the period of nine months. Subsequently the Court of
First Instance of Rizal ordered the cancellation of Burt's certificate of title and the
issuance of a new one in the name of the Rural Progress Administration, from which
order he appealed to the Supreme Court.1
It was in the face of the antecedents sketched in the last three preceding paragraphs
that the Philippine Government, through the Secretary of Justice as Chairman of the
Board of Directors of the Rural Progress Administration and as Chairman of the
Board of Directors of the Philippine National Bank, from which the money was
borrowed, accomplished the purchase of the two estates in the latter part of October,
1949, as stated at the outset.
On February 27, 1950, the Senate adopted its Resolution No. 8, which reads as
follows:
RESOLUTION CREATING A SPECIAL COMMITTEE TO INVESTIGATE THE
BUENAVISTA AND THE TAMBOBONG ESTATES DEAL.
WHEREAS, it is reported that the Philippine government, through the Rural Progress
Administration, has bought the Buenavista and the Tambobong Estates for the
aggregate sum of five million pesos;
WHEREAS, it is reported that under the decision of the Supreme Court dated October
31, 1949, the Buenavista Estate could have been bought for three million pesos by
virtue of a contract entered into between the San Juan de Dios Hospital and
Philippine Government in 1939;
WHEREAS, it is even alleged that the Philippine Government did not have to
purchase the Buenavista Estate because the occupation government had made
tender of payment in the amount of three million pesos, Japanese currency, which
fact is believed sufficient to vest title of Ownership in the Republic of the Philippines
pursuant to decisions of the Supreme Court sustaining the validity of payments made
in Japanese military notes during the occupation;
WHEREAS, it is reported that the Philippine Government did not have to pay a single
centavo for the Tambobong Estate as it was already practically owned by virtue of a
deed of sale from the Philippine Trust Company dated September 3, 194, for seven
hundred and fifty thousand pesos, and by virtue of the recission of the contract
through which Ernest H. Burt had an interest in the estate; Now, therefore, be it.
RESOLVED, That a Special Committee, be, as it hereby is, created, composed of five
members to be appointed by the President of the Senate to investigate the
Buenavista and Tambobong Estate deals. It shall be the duty of the said Committee
to determine whether the said purchase was honest, valid, and proper and whether
the price involved in the deal was fair and just, the parties responsible therefor, and
any other facts the Committee may deem proper in the premises. Said Committee
shall have the power to conduct public hearings; issue subpoena or subpoena duces
tecum to compel the attendance of witnesses or the production of documents before
it; and may require any official or employee of any bureau, office, branch, subdivision,
agency, or instrumentality of the Government to assist or otherwise cooperate with
the Special Committee in the performance of its functions and duties. Said Committee
shall submit its report of findings and recommendations within two weeks from the
adoption of this Resolution.
The special committee created by the above resolution called and examined various
witnesses, among the most important of whom was the herein petitioner, Jean L.
Arnault. An intriguing question which the committee sought to resolve was that
involved in the apparent unnecessariness and irregularity of the Government's paying
to Burt the total sum of P1,500,000 for his alleged interest of only P20,000 in the two
estates, which he seemed to have forfeited anyway long before October, 1949. The
committee sought to determine who were responsible for and who benefited from the
transaction at the expense of the Government.
Arnault testified that two checks payable to Burt aggregating P1,500,000 were
delivered to him on the afternoon of October 29, 1949; that on the same date he
opened a new account in the name of Ernest H. Burt with the Philippine National
Bank in which he deposited the two checks aggregating P1,500,000; and that on the
same occasion he draw on said account two checks; one for P500,000, which he
transferred to the account of the Associated Agencies, Inc., with the Philippine
National Bank, and another for P440,000 payable to cash, which he himself cashed. It
was the desire of the committee to determine the ultimate recipient of this sum of
P440,000 that gave rise to the present case.
At first the petitioner claimed before the Committee:
Mr. ARNAULT (reading from a note). Mr. Chairman, for questions involving the
disposition of funds, I take the position that the transactions were legal, that no laws
were being violated, and that all requisites had been complied with. Here also I acted
in a purely functional capacity of representative. I beg to be excused from making
answer which might later be used against me. I have been assured that it is my
constitutional right to refuse to incriminate myself, and I am certain that the Honorable
Members of this Committee, who, I understand, are lawyers, will see the justness of
my position.
At as subsequent session of the committee (March 16) Senator De Vera, a member
of the committee, interrogated him as follows:
Senator DE VERA. Now these transactions, according to your own typewritten
statement, were legal?
Mr. ARNAULT. I believe so.
Senator DE VERA. And the disposition of that fund involved, according to your own
statement, did not violate any law?
Mr. ARNAULT. I believe so.
xxx xxx xxx
Senator DE VERA. So that if the funds were disposed of in such a manner that no
laws were violated, how is it that when you were asked by the Committee to tell what
steps you took to have this money delivered to Burt, you refused to answer the
questions, saying that it would incriminate you?
Mr. ARNAULT. Because it violates the rights of a citizen to privacy in his dealings with
other people.
xxx xxx xxx Mr. ARNAULT. Because I have instructions to that effect.

Senator DE VERA. Are you afraid to state how the money was disposed of because The CHAIRMAN. Who gave you the instruction?
you would be incriminated, or you would be incriminating somebody?
Mr. ARNAULT. Burt.
Mr. ARNAULT. I am not afraid; I simply stand on the privilege to dispose of the money
that has been paid to me as a result of a legal transaction without having to account The CHAIRMAN. Where is the instruction; was that in writing?
for any use of it.
Mr. ARNAULT. No.
But when in the same session the chairman of the committee, Senator Sumulong,
interrogated the petitioner, the latter testified as follows: The CHAIRMAN. By cable?

The CHAIRMAN. The other check of P440,000 which you also made on October 29, Mr. ARNAULT. No.
1949, is payable to cash; and upon cashing this P440,000 on October 29, 1949, what
The CHAIRMAN. In what form did you receive that instruction?
did you do with that amount?
Mr. ARNAULT. Verbal instruction.
Mr. ARNAULT. I turned it over to a certain person.
The CHAIRMAN. When did you receive this verbal instruction from Burt to deliver
The CHAIRMAN. The whole amount of P440,000?
these P440,000 to a certain person whose name you do not like to reveal?
Mr. ARNAULT. Yes.
Mr. ARNAULT. I have instruction to comply with the request of the person.
The CHAIRMAN. Who was that certain person to whom you delivered these
The CHAIRMAN. Now, you said that instruction given to you by Burt was verbal?
P440,000 which you cashed on October 29, 1949?
Mr. ARNAULT. Yes.
Mr. ARNAULT. I don't remember the name; he was a representative of Burt.
The CHAIRMAN. When was that instruction given to you by Burt?
The CHAIRMAN. That representative of Burt to whom you delivered the P440,000
was a Filipino? Mr. ARNAULT. Long time ago.
Mr. ARNAULT. I don't know. The CHAIRMAN. In what year did Burt give you that verbal instruction; when Burt was
still here in the Philippines?
The CHAIRMAN. You do not remember the name of that representative of Burt to
whom you delivered this big amount of P440,000? Mr. ARNAULT. Yes.
Mr. ARNAULT. I am not sure; I do not remember the name. The CHAIRMAN. But at that time Burt already knew that he would receive the
money?
The CHAIRMAN. That certain person who represented Burt to whom you delivered
the big amount on October 29, 1949, gave you a receipt for the amount? Mr. ARNAULT. No.
Mr. ARNAULT. No. The CHAIRMAN. In what year was that when Burt while he was here in the
Philippines gave you the verbal instruction?
The CHAIRMAN. Neither did you ask a receipt?
Mr. ARNAULT. In 1946.
Mr. ARNAULT. I didn't ask.
The CHAIRMAN. And what has that certain person done for Burt to merit receiving
The CHAIRMAN. And why did you give that certain person, representative of Burt,
these P440,000?
this big amount of P440,000 which forms part of the P1-½ million paid to Burt?
Mr. ARNAULT. I absolutely do not know.
The CHAIRMAN. You do not know?
Mr. ARNAULT. I do not know.
The CHAIRMAN. Burt did not tell you when he gave you the verbal instruction why
that certain person should receive these P440,000?
Mr. ARNAULT. He did not tell me.
The CHAIRMAN. And Burt also authorized you to give this big amount to that certain
person without receipt?
Mr. ARNAULT. He told me that a certain person would represent him and where
could I meet him.
The CHAIRMAN. Did Burt know already that certain person as early as 1946?
Mr. ARNAULT. I presume much before that.
The CHAIRMAN. Did that certain person have any intervention in the prosecution of
the two cases involving the Buenavista and Tambobong estates?
Mr. ARNAULT. Not that I know of.
The CHAIRMAN. Is that certain person related to any high government official?
Mr. ARNAULT. No, I do not know.
The CHAIRMAN. Why can you not tell us the name of that certain person?
Mr. ARNAULT. Because I am not sure of his name; I cannot remember the name.
The CHAIRMAN. When gave that certain person that P440,000 on October 29, 1949,
you knew already that person?
Mr. ARNAULT. Yes, I have seen him several times.
The CHAIRMAN. And the name of that certain person is a Filipino name?
Mr. ARNAULT. I would say Spanish name.
The CHAIRMAN. And how about his Christian name; is it also a Spanish name?
Mr. ARNAULT. I am not sure; I think the initial is J.
The CHAIRMAN. Did he have a middle name?
Mr. ARNAULT. I never knew it.
The CHAIRMAN. And how about his family name which according to your recollection
is Spanish; can you remember the first letter with which that family name begins?
Mr. ARNAULT. S, D or F.
The CHAIRMAN. And what was the last letter of the family name?
Mr. ARNAULT. I do not know.
The CHAIRMAN. Have you seen that person again after you have delivered this
P440,000?
Mr. ARNAULT. Yes.
The CHAIRMAN. Several times?
Mr. ARNAULT. Two or three times.
The CHAIRMAN. Here in Manila?
Mr. ARNAULT. Yes.
The CHAIRMAN. And in spite of the fact that you met that person two or three times,
you never were able to find out what was his name?
Mr. ARNAULT. If I knew, I would [have] taken it down. Mr. Peralta knows my name; of
course, we have not done business. Lots of people in Manila know me, but they don't
know my name, and I don't know them. They sa{ I am "chiflado" because I don't know
their names.
The CHAIRMAN. That certain person is a male or female?
Mr. ARNAULT. He is a male.
The CHAIRMAN. You are sure that he is a male at least?
Mr. ARNAULT. Let us say 38 or 40 years, more or less.
The CHAIRMAN. Can you give us, more or less, a description of that certain person?
What is his complexion: light, dark or light brown?
Mr. ARNAULT. He is like the gentleman there (pointing to Senator Cabili), but
smaller. He walks very straight, with military bearing.
The CHAIRMAN. Do you know the residence of that certain person to whom you
gave the P440,000?
Mr. ARNAULT. No.
The CHAIRMAN. During these frequent times that you met that certain person, you
never came to know his residence?
Mr. ARNAULT. No, because he was coming to the office.
The CHAIRMAN. How tall is that certain person?
Mr. ARNAULT. Between 5-2 and 5-6.
On May 15, 1950, the petitioner was haled before the bar of the Senate, which
approved and read to him the following resolution:
Be it resolved by the Senate of the Philippines in Session assembled:
That Jean L. Arnault, now at the bar of the Senate, be arraigned for contempt
consisting of contumacious acts committed by him during the investigation conducted
by the Special Committee created by Senate Resolution No. 8 to probe the
Tambobong and Buenavista estates deal of October 21, 1949, and that the President
of the Senate propounded to him the following interrogatories:
1. What excuse have you for persistently refusing to reveal the name of the person to
whom you gave the P440,000 on October 29, 1949, a person whose name it is
impossible for you not to remember not only because of the big amount of money you
gave to him without receipt, but also by your own statements you knew him as early
as 1946 when General Ernest H. Burt was still in the Philippines, you made two other
deliveries of money to him without receipt, and the last time you saw him was in
December 1949?
Thereupon petitioner's attorney, Mr. Orendain, submitted for him a written answer
alleging that the questions were incriminatory in nature and begging leave to be
allowed to stand on his constitutional right not to be compelled to be a witness against
himself. Not satisfied with that written answer Senator Sumulong, over the objection
of counsel for the petitioner, propounded to the latter the following question:
Sen. SUMULONG. During the investigation, when the Committee asked you for the
name of that person to whom you gave the P440,000, you said that you can [could]
not remember his name. That was the reason then for refusing to reveal the name of
the person. Now, in the answer that you have just cited, you are refusing to reveal the
name of that person to whom you gave the P440,000 on the ground that your answer
will be self-incriminating. Now, do I understand from you that you are abandoning
your former claim that you cannot remember the name of that person, and that your
reason now for your refusal to reveal the name of that person is that your answer
might be self-incriminating? In other words, the question is this: What is your real
reason for refusing to reveal the name of that person to whom you gave the
P440,000: that you do not remember his name or that your answer would be self-
incriminating?
xxx xxx xxx
Mr. ORENDAIN. Mr. President, we are begging for the rules of procedure that the
accused should not be required to testify unless he so desires.
The PRESIDENT. It is the duty of the respondent to answer the question. The
question is very clear. It does not incriminate him.
xxx xxx xxx
Mr. ARNAULT. I stand by every statement that I have made before the Senate
Committee on the first, second, and third hearings to which I was made in my letter to
this Senate of May 2, 1950, in which I gave all the reasons that were in my powers to
give, as requested. I cannot change anything in those statements that I made
because they represent the best that I can do , to the best of my ability.
The PRESIDENT. You are not answering the question. The answer has nothing to do
with the question.
Sen. SUMULONG. I would like to remind you , Mr. Arnault, that the reason that you
gave during the investigation for not revealing the name of the person to whom you
gave the P440,000 is not the same reason that you are now alleging because during
the investigation you told us: "I do not remember his name." But, now, you are now
saying: "My answer might incriminate me." What is your real position?
Mr. ARNAULT. I have just stated that I stand by my statements that I made at the
first, second, and third hearings. I said that I wanted to be excused from answering
the question. I beg to be excused from making any answer that might be incriminating
in nature. However, in this answer, if the detail of not remembering the name of the
person has not been included, it is an oversight.
Sen. SUMULONG. Mr. Arnault, will you kindly answer a simple question: Do you
remember or not the name of the person to whom you gave the P440,000?
Mr. ARNAULT. I do not remember .
Sen. SUMULONG. Now, if you do not remember the name of that person, how can
you say that your answer might be incriminating? If you do not remember his name,
you cannot answer the question; so how could your answer be self-incriminating?
What do you say to that?
Mr. ARNAULT. This is too complicated for me to explain. Please, I do not see how to
answer those questions. That is why I asked for a lawyer, so he can help me. I have
no means of knowing what the situation is about. I have been in jail 13 days without
communication with the outside. How could I answer the question? I have no
knowledge of legal procedure or rule, of which I am completely ignorant.
xxx xxx xxx
Sen. SUMULONG. Mr. President, I ask that the question be answered.
The PRESIDENT. The witness is ordered to answer the question. It is very clear. It
does not incriminate the witness.
xxx xxx xxx
Mr. ARNAULT. I do not remember. I stand on my constitutional rights. I beg to be
excused from making further answer, please.
Sen. SUMULONG. In that mimeographed letter that you sent addressed to the
President of the Senate, dated May 2, 1950, you stated there that you cannot reveal
the name of the person to whom you gave the P440,000 because if he is a public
official you might render yourself liable for prosecution for bribery, and that if he is a
private individual you might render yourself liable for prosecution for slander. Why did
you make those statements when you cannot even tell us whether that person to
whom you gave the P440,000 is a public official or a private individual ? We are
giving you this chance to convince the Senate that all these allegations of yours that
your answers might incriminate you are given by you honestly or you are just trying to
make a pretext for not revealing the information desired by the Senate.
The PRESIDENT. You are ordered to answer the question.
Mr. ARNAULT. I do not even understand the question. (The question is restated and
explained.)
Mr. ARNAULT. That letter of May 2, was prepared by a lawyer for me and signed it.
That is all I can say how I stand about this letter. I have no knowledge myself enough
to write such a letter, so I had to secure the help of a lawyer to help me in my period
of distress.
In that same session of the Senate before which the petitioner was called to show
cause why he should not be adjudged guilty of contempt of the Senate, Senator
Sumulong propounded to the petitioner questions tending to elicit information from
him as to the identity of the person to whom he delivered the P440,000; but the
petitioner refused to reveal it by saying that he did not remember. The President of
the Senate then propounded to him various questions concerning his past activities
dating as far back as when witness was seven years of age and ending as recently as
the post liberation period, all of which questions the witness answered satisfactorily.
In view thereof, the President of the Senate also made an attempt to illicit the desired
information from the witness, as follows:
The PRESIDENT. Now I am convinced that you have a good memory. Answer: Did
you deliver the P440,000 as a gift, or of any consideration?
Mr. ARNAULT. I have said that I had instructions to deliver it to that person, that is all.
The PRESIDENT. Was it the first time you saw that person?
Mr. ARNAULT. I saw him various times, I have already said.
The PRESIDENT. In spite of that, you do not have the least remembrance of the
name of that person?
Mr. ARNAULT. I cannot remember.
The PRESIDENT. How is it that you do not remember events that happened a short
time ago and, on the other hand, you remember events that occurred during your
childhood?
Mr. ARNAULT. I cannot explain.
The Senate then deliberated and adopted the resolution of May 15 hereinabove
quoted whereby the petitioner was committed to the custody of the Sergeant-at-Arms
and imprisoned until "he shall have purged the contempt by revealing to the Senate or
to the aforesaid Special Committee the name of the person to whom he gave the
P440,000, as well as answer other pertinent questions in connection therewith."
The Senate also adopted on the same date another resolution (No. 16) , to wit:
That the Special Committee created by Senate Resolution No. 8 be empowered and
directed to continue its investigation of the Tambobong and Buenavista Estates deal
of October 21, 1949, more particularly to continue the examination of Jean L. Arnault
regarding the name of the person to whom he gave the P440,000 and other matters
related therewith.
The first session of the Second Congress was adjourned at midnight on May 18,
1950.
The case was argued twice before us. We have given its earnest and prolonged
consideration because it is the first of its kind to arise since the Constitution of the
Republic of the Philippines was adopted. For the first time this Court is called upon to
define the power of either House of Congress to punish a person not a member for
contempt; and we are fully conscious that our pronouncements here will set an
important precedent for the future guidance of all concerned.
Before discussing the specific issues raised by the parties, we deem it necessary to
lay down the general principles of law which form the background of those issues.
Patterned after the American system, our Constitution vests the powers of the
Government in three independent but coordinate Departments — Legislative,
Executive, and Judicial. The legislative power is vested in the Congress, which
consists of the Senate and the House of Representatives. (Section 1, Article VI.)
Each house may determine the rules of its proceedings, punish its Members for
disorderly behavior, and, with the concurrence of two-thirds of all its Members, expel
a Member. (Section 10, Article VI.) The judicial power is vested in the Supreme Court
and in such inferior courts as may be established by law. (Section 1, Article VIII.) Like
the Constitution of the United States, ours does not contain an express provision
empowering either of the two Houses of Congress to punish nonmembers for
contempt. It may also be noted that whereas in the United States the legislative
power is shared by and between the Congress of the United States, on the one hand,
and the respective legislatures of the different States, on the other — the powers not
delegated to the United States by the Constitution nor prohibited by it to States being
reserved to the States, respectively, or to the people — in the Philippines, the
legislative power is vested in the Congress of the Philippines alone. It may therefore
be said that the Congress of the Philippines has a wider range of legislative field than
the Congress of the United States or any State Legislature. Our form of Government
being patterned after the American system — the framers of our Constitution having
drawn largely from American institutions and practices — we can, in this case,
properly draw also from American precedents in interpreting analogous provisions of
our Constitution, as we have done in other cases in the past. Although there is no
provision in the Constitution expressly investing either House of Congress with power
to make investigations and exact testimony to the end that it may exercise its
legislative functions as to be implied. In other words, the power of inquiry — with
process to enforce it — is an essential and appropriate auxiliary to the legislative
function. A legislative body cannot legislate wisely or effectively in the absence of
information respecting the conditions which the legislation is intended to effect or
change; and where the legislative body does not itself possess the requisite
information — which is not infrequently true — recourse must be had to others who
do possess it. Experience has shown that mere requests for such information are
often unavailing, and also that information which is volunteered is not always accurate
or complete; so some means of compulsion is essential to obtain what is needed.
(McGrain vs.Daugherty, 273 U.S., 135; 71 L. ed., 580; 50 A.L R., 1.) The fact that the
Constitution expressly gives to Congress the power to punish its Members for
disorderly behavior, does not by necessary implication exclude the power to punish
for contempt any other person. (Anderson vs. Dunn, 6, Wheaton, 204; 5 L. ed., 242.)
But no person can be punished for contumacy as a witness before either House,
unless his testimony is required in a matter into which that House has jurisdiction to
inquire. (Kilbourn vs. Thompson, 26 L. ed., 377.).
Since, as we have noted, the Congress of the Philippines has a wider range of
legislative field than either the Congress of the United States or a State Legislature,
we think it is correct to say that the field of inquiry into which it may enter is also
wider. It would be difficult to define any limits by which the subject matter of its inquiry
can be bounded. It is not necessary to do so in this case. Suffice it to say that it must
be coextensive with the range of the legislative power.
In the present case the jurisdiction of the Senate, thru the Special Committee created
by it, to investigate the Buenavista and Tambobong Estates deal is not challenged by
the petitioner; and we entertain no doubt as to the Senate's authority to do so and as
to the validity of Resolution No. 8 hereinabove quoted. The transaction involved a
questionable and allegedly unnecessary and irregular expenditure of no less than
P5,000,000 of public funds, of which Congress is the constitutional guardian. It also
involved government agencies created by Congress to regulate or even abolish. As a
result of the yet uncompleted investigation, the investigating committee has
recommended and the Senate approved three bills (1) prohibiting the Secretary of
Justice or any other department head from discharging functions and exercising
powers other than those attached to his own office, without ]previous congressional
authorization; (2) prohibiting brothers and near relatives of any President of the
Philippines from intervening directly or indirectly and in whatever capacity in
transactions in which the Government is a party, more particularly where the decision
lies in the hands of executive or administrative officers who are appointees of the
President; and (3) providing that purchases of the Rural Progress Administration of
big landed estates at a price of P100,000 or more, shall not become effective without
previous congressional confirmation.2
We shall now consider and pass upon each of the questions raised by the petitioner
in support of his contention that his commitment is unlawful.
First He contends that the Senate has no power to punish him for contempt for
refusing to reveal the name of the person to whom he gave the P440,000, because
such information is immaterial to, and will not serve, any intended or purported
legislation and his refusal to answer the question has not embarrassed, obstructed, or
impeded the legislative process. It is argued that since the investigating committee
has already rendered its report and has made all its recommendations as to what
legislative measures should be taken pursuant to its findings, there is no necessity to
force the petitioner to give the information desired other than that mentioned in its
report, to wit: "In justice to Judge Quirino and to Secretary Nepomuceno, this
atmosphere of suspicion that now pervades the public mind must be dissipated, and it
can only be done if appropriate steps are taken by the Senate to compel Arnault to
stop pretending that he cannot remember the name of the person to whom he gave
the P440,000 and answer the questions which will definitely establish the identity of
that person . . ." Senator Sumulong, Chairman of the Committee, who appeared and
argued the case for the respondents, denied that that was the only purpose of the
Senate in seeking the information from the witness. He said that the investigation had
not been completed, because, due to the contumacy of the witness, his committee
had not yet determined the parties responsible for the anomalous transaction as
required by Resolution No. 8; that, by Resolution No. 16, his committee was
empowered and directed to continue its investigation, more particularly to continue its
examination of the witness regarding the name of the person to whom he gave the
P440,000 and other matters related therewith; that the bills recommended by his
committee had not been approved by the House and might not be approved pending
the completion of the investigation; and that those bills were not necessarily all the
measures that Congress might deem it necessary to pass after the investigation is
finished.
Once an inquiry is admitted or established to be within the jurisdiction of a legislative
body to make, we think the investigating committee has the power to require a
witness to answer any question pertinent to that inquiry, subject of course to his
constitutional right against self-incrimination. The inquiry, to be within the jurisdiction
of the legislative body to make, must be material or necessary to the exercise of a
power in it vested by the Constitution, such as to legislate, or to expel a Member; and
every question which the investigator is empowered to coerce a witness to answer
must be material or pertinent to the subject of the inquiry or investigation. So a
witness may not be coerced to answer a question that obviously has no relation to the
subject of the inquiry. But from this it does not follow that every question that may be
propounded to a witness must be material to any proposed or possible legislation. In
other words, the materiality of the question must be determined by its direct relation to
any proposed or possible legislation. The reason is, that the necessity or lack of
necessity for legislative action and the form and character of the action itself are
determined by the sum total of the information to be gathered as a result of the
investigation, and not by a fraction of such information elicited from a single question.
In this connection, it is suggested by counsel for the respondents that the power of
the Court is limited to determining whether the legislative body has jurisdiction to
institute the inquiry or investigation; that once that jurisdiction is conceded, this Court
cannot control the exercise of that jurisdiction; and it is insinuated, that the ruling of
the Senate on the materiality of the question propounded to the witness is not subject
to review by this Court under the principle of the separation of powers. We have to
qualify this proposition. As was said by the Court of Appeals of New York: "We are
bound to presume that the action of the legislative body was with a legitimate object if
it is capable of being so construed, and we have no right to assume that the contrary
was intended." (People ex rel.McDonald vs. Keeler, 99 N.Y., 463; 52 Am. Rep., 49; 2
N.E., 615, quoted with approval by the Supreme Court of the United States in the said
case of McGrain vs. Daugherty, it is necessary deduction from the decision in Re
Chapman, 41 L. ed., 1154, that where the questions are not pertinent to the matter
under inquiry a witness rightfully may refuse to answer. So we are of the opinion that
where the alleged immateriality of the information sought by the legislative body from
a witness is relied upon to contest its jurisdiction, the court is in duty bound to pass
upon the contention. The fact that the legislative body has jurisdiction or the power to
make the inquiry would not preclude judicial intervention to correct a clear abuse of
discretion in the exercise of that power.
Applying the criterion laid down in the last two preceding paragraphs to the resolution
of the issue under consideration, we find that the question for the refusal to answer
which the petitioner was held in contempt by the Senate is pertinent to the matter
under inquiry. In fact, this is not and cannot be disputed. Senate Resolution No. 8, the
validity of which is not challenged by the petitioner, requires the Special Committee,
among other things, to determine the parties responsible for the Buenavista and
Tambobong estates deal, and it is obvious that the name of the person to whom the
witness gave the P440,000 involved in said deal is pertinent to that determination — it
is in fact the very thing sought to be determined. The contention is not that the
question is impertinent to the subject of the inquiry but that it has no relation or
materiality to any proposed legislation. We have already indicated that it is not
necessary for the legislative body to show that every question propounded to a
witness is material to any proposed or possible legislation; what is required is that is
that it be pertinent to the matter under inquiry.
It is said that the Senate has already approved the three bills recommended by the
Committee as a result of the uncompleted investigation and that there is no need for it
to know the name of the person to whom the witness gave the P440,000. But aside
from the fact that those bills have not yet been approved by the lower house and by
the President and that they may be withdrawn or modified if after the inquiry is
completed they should be found unnecessary or inadequate, there is nothing to
prevent the Congress from approving other measures it may deem necessary after
completing the investigation. We are not called upon, nor is it within our province, to
determine or imagine what those measures may be. And our inability to do so is no
reason for overruling the question propounded by the Senate to the witness.
The case of Re Chapman , 166 U.S., 661; 41 L. ed., 1154, is in point here. The
inquiry there in question was conducted under a resolution of the Senate and related
to charges, published in the press, that senators were yielding to corrupt influences in
considering a tariff bill then before the Senate and were speculating in stocks the
value of which would be affected by pending amendments to the bill. Chapman, a
member of a firm of stock brokers dealing in the stock of the American Sugar Refining
Company, appeared before the committee in response to a subpoena and asked,
among others, the following questions:
Had the firm, during the month of March, 1894, bought or sold any stock or securities,
known as sugar stocks, for or in the interest, directly or indirectly, of any United
Senate senator?
Was the said firm at that time carrying any sugar stock for the benefit of, or in the
interest, directly or indirectly, of any United Senate senator?
He refused to answer the questions and was prosecuted under an Act of Congress
for contempt of the Senate. Upon being convicted and sent to jail he petitioned the
Supreme Court of the United States for a writ of habeas corpus. One of the questions
decided by the Supreme Court of the United States in that case was whether the
committee had the right to compel the witness to answer said questions, and the
Court held that the committee did have such right, saying:
The questions were undoubtedly pertinent to the subject-matter of the inquiry. The
resolution directed the committee to inquire whether any senator has been, or is,
speculating in what are known as sugar stocks during the consideration of the tariff
bill now before the Senate." What the Senate might or might not do upon the facts
when ascertained, we cannot say, nor are we called upon to inquire whether such
ventures might be defensible, as contended in argument, but is plain that negative
answers would have cleared that body of what the Senate regarded as offensive
imputations, while affirmative answers might have led to further action on the part of
the Senate within its constitutional powers. (Emphasis supplied.)
It may be contended that the determination of the parties responsible for the deal is
incumbent upon the judicial rather than upon the legislative branch. But we think there
is no basis in fact or in law for such assumption. The petitioner has not challenged the
validity of Senate Resolution No. 8, and that resolution expressly requires the
committee to determine the parties responsible for the deal. We are bound to
presume that the Senate has acted in the due performance of its constitutional
function in instituting the inquiry, if the act is capable of being so construed. On the
other hand, there is no suggestion that the judiciary has instituted an inquiry to
determine the parties responsible for the deal. Under the circumstances of the case, it
appearing that the questioned transaction was affected by the head of the
Department of Justice himself, it is not reasonable to expect that the Fiscal or the
Court of First Instance of Manila will take the initiative to investigate and prosecute
the parties responsible for the deal until and unless the Senate shall determined
those parties are and shall taken such measures as may be within its competence to
take the redress the wrong that may have been committed against the people as a
result of the transaction. As we have said, the transaction involved no less than
P5,000,000 of public funds. That certainly is a matter of a public concern which it is
the duty of the constitutional guardian of the treasury to investigate.
If the subject of investigation before the committee is within the range of legitimate
legislative inquiry and the proposed testimony of the witness called relates to that
subject, obedience, to its process may be enforced by the committee by
imprisonment. (Sullivan vs. Hill, 73 W. Va., 49; 79 S.E., 670; 40 Ann. Cas. [1916 B.],
1115.)
The decision in the case of Kilbourn vs. Thompson, 26 L. ed., 377, relied upon by the
petitioner, is not applicable here. In that case the inquiry instituted by the House of
Representatives of the United States related to a private real-estate pool or
partnership in the District of Columbia. Jay Cook and Company had had an interest in
the pool but become bankrupts, and their estate was in course of administration in a
federal bankruptcy court in Pennsylvania. The United States was one of their
creditors. The trustee in the bankruptcy proceeding had effected a settlement of the
bankrupts' interest in the pool, and of course his action was subject to examination
and approval or disapproval by the bankruptcy court. Some of the creditors, including
the United States, were dissatisfied with the settlement. The resolution of the House
directed the Committee "to inquire into the nature and history of said real-estate pool
and the character of said settlement, with the amount of property involve, in which Jay
Cooke and Co. were interested, and the amount paid or to be paid in said settlement,
with power to send for persons and papers, and report to this House." The Supreme
Court of the United States, speaking thru Mr. Justice Miller, pointed out that the
resolution contained no suggestion of contemplated legislation; that the matter was
one in respect of which no valid legislation could be had; that the bankrupts' estate
and the trustee's settlement were still pending in the bankruptcy court; and that the
United States and other creditors were free to press their claims in that proceeding.
And on these grounds the court held that in undertaking the investigation "the House
of Representatives not only exceeded the limit of its own authority, but assumed a
power which could only be properly exercised by another branch of the government,
because the power was in its nature clearly judicial." The principles announced and
applied in that case are: that neither House of Congress possesses a "general power
of making inquiry into the private affairs of the citizen"; that the power actually
possessed is limited to inquires relating to matters of which the particular House has
jurisdiction, and in respect of which it rightfully may take other action; that if the
inquiry relates to a matter wherein relief or redress could be had only by judicial
proceeding, it is not within the range of this power , but must be left to the court,
conformably to the constitutional separation of government powers.
That case differs from the present case in two important respects: (1) There the court
found that the subject of the inquiry, which related to a private real-estate pool or
partnership, was not within the jurisdiction of either House of Congress; while here if it
is not disputed that the subject of the inquiry, which relates to a transaction involving
a questionable expenditure by the Government of P5,000,000 of public funds, is
within the jurisdiction of the Senate, (2) There the claim of the Government as a
creditor of Jay Cooke and Company, which had had an interest in the pool, was
pending adjudication by the court; while here the interposition of the judicial power on
the subject of the inquiry cannot be expected, as we have pointed out above, until
after the Senate shall have determined who the parties responsible are and shall
have taken such measures as may be within its competence to take to redress the
wrong that may have been committed against the people as a result of the
transaction.
It is interesting to note that the decision in the case of Killbourn vs. Thompson has
evoked strong criticisms from legal scholars. (See Potts, Power of Legislative Bodies
to Punish for Contempt [1926], 74 U. Pa. L. Rev., 692-699; James L. Land
is, Constitutional Limitations on the Congressional Power of Investigation [1926], 40
Harvard L. Rev., 153, 154, 214-220.) We quoted the following from Professor Land is'
criticism: "Mr. Justice Miller saw the case purely as an attempt by the House to
secure to the Government certain priority rights as creditor of the bankrupt concern.
To him it assumed the character of a lawsuit between the Government and Jay
Cooke and Co., with the Government, acting through the House, attempting to
override the orderliness of established procedure and thereby prefer a creditors' bill
not before the courts but before Congress. That bankruptcy proceedings had already
been instituted against Jay Cooke and Co., in a federal court gave added impetus to
such a conception. The House was seeking to oust a court of prior acquired
jurisdiction by an extraordinary and unwarranted assumption of "judicial power"! The
broader aspect of the investigation had not been disclosed to the Court. That Jay
Cooke and Co.'s indebtedness and the particular funds in question were only part of
the great administrative problem connected with the use and disposition of public
monies, that the particular failure was of consequence mainly in relation to the
security demanded for all government deposits, that the facts connected with one
such default revealed the possibility of other and greater maladministration, such
considerations had not been put before the Court. Nor had it been acquainted with
the every-day nature of the particular investigation and the powers there exerted by
the House, powers whose exercise was customary and familiar in legislative practice.
Instead of assuming the character of an extraordinary judicial proceeding, the inquiry,
place in its proper background, should have been regarded as a normal and
customary part of the legislative process. Detailed definiteness of legislative purpose
was thus made the demand of the court in Killbourn vs. Thompson. But investigators
cannot foretell the results that may be achieved. The power of Congress to exercise
control over a real-estate pool is not a matter for abstract speculation but one to be
determined only after an exhaustive examination of the problem. Relationship, and
not their possibilities, determine the extent of congressional power. Constitutionality
depends upon such disclosures. Their presence, whether determinative of legislative
or judicial power, cannot be relegated to guesswork. Neither Congress nor the Court
can predict, prior to the event, the result of the investigation."
The other case relied upon by the petitioner is Marshall vs. Gordon, 243 U.S., 521;
61. ed., 881. The question there was whether the House of Representatives
exceeded its power in punishing, as for contempt of its authority, the District Attorney
of the Southern District of New York, who had written, published, and sent to the
chairman of one of its committees an ill-tempered and irritating letter respecting the
action and purposes of the committee in interfering with the investigation by the grand
jury of alleged illegal activities of a member of the House of Representatives. Power
to make inquires and obtain evidence by compulsory process was not involved. The
court recognized distinctly that the House of Representatives had implied power to
punish a person not a member for contempt, but held that its action in this instance
was without constitutional justification. The decision was put on the ground that the
letter, while offensive and vexatious, was not calculated or likely to affect the House in
any of its proceedings or in the exercise of any of its functions. This brief statement of
the facts and the issues decided in that case is sufficient to show the inapplicability
thereof to the present case. There the contempt involved consisted in the district
attorney's writing to the chairman of the committee an offensive and vexatious letter,
while here the contempt involved consists in the refusal of the witness to answer
questions pertinent to the subject of an inquiry which the Senate has the power and
jurisdiction to make . But in that case, it was recognized that the House of
Representatives has implied power to punish a person not a member of contempt. In
that respect the case is applicable here in favor of the Senate's (and not of the
Petitioner's ) contention.
Second. It is next contended for the petitioner that the Senate lacks authority to
commit him for contempt for a term beyond its period of legislative session, which
ended on May 18, 1950. This contention is based on the opinion of Mr. Justice
Malcolm, concurred in by Justices Street and Villa-Real, in the case of Lopez vs. De
los Reyes (1930), 55 Phil., 170. In that case it appears that on October 23, 1929,
Candido Lopez assaulted a member of the House of Representatives while the latter
was going to the hall of the House of Representatives to attend the session which
was then about to begin, as a result of which assault said representative was unable
to attend the sessions on that day and those of the two days next following by reason
of the threats which Candido Lopez made against him. By the resolution of the House
adopted November 6, 1929, Lopez was declared guilty of contempt of the House of
Representatives and ordered punished by confinement in Bilibid Prison for a period of
twenty-four hours. That resolution was not complied with because the session of the
House of Representatives adjourned at midnight on November 8, 1929, and was
reiterated at the next session on September 16, 1930. Lopez was subsequently
arrested, whereupon he applied for the writ of habeas corpus in the Court of First
Instance of Manila, which denied the application. Upon appeal to the Supreme Court,
six justices voted to grant the writ: Justice Malcolm, Street, and Villa-real, on the
ground that the term of imprisonment meted out to the petitioner could not legally be
extended beyond the session of the body in which the contempt occurred; and
Justices Johns, Villamor, and Ostrand, on the ground that the Philippine Legislature
had no power to punish for contempt because it was a creature merely of an Act of
the Congress of the United States and not of a Constitution adopted by the people.
Chief Justice Avanceña, Justice Johnson, and Justice Romualdez wrote separate
opinions, concurring with Justice Malcolm, Street, and Villa-Real, that the Legislature
had inherent power to punish for contempt but dissenting from the opinion that the
order of commitment could only be executed during the particular session in which
the act of contempt was committed.
Thus, on the question under consideration, the Court was equally divided and no
decisive pronouncement was made. The opinion of Mr. Justice Malcolm is based
mainly on the following passage in the case of Anderson vs.Dunn, supra:
And although the legislative power continues perpetual, the legislative body ceases to
exist on the moment of its adjournment or periodical dissolution. It follows that
imprisonment must terminate with that adjournment.
as well as on the following quotation from Marshall vs. Gordon, supra:
And the essential nature of the power also makes clear the cogency and application
of the two limitations which were expressly pointed out in Anderson vs. Dunn, supra,
that is, that the power even when applied to subjects which justified its exercise is
limited to imprisonment and such imprisonment may not be extended beyond the
session of the body in which the contempt occurred.
Interpreting the above quotations, Chief Justice Avanceña held:
From this doctrine it follows, in my judgement, that the imposition of the penalty is
limited to the existence of the legislative body, which ceases to function upon its final
periodical dissolution. The doctrine refers to its existence and not to any particular
session thereof. This must be so, inasmuch as the basis of the power to impose such
penalty is the right which the Legislature has to self-preservation, and which right is
enforceable during the existence of the legislative body. Many causes might be
conceived to constitute contempt to the Legislature, which would continue to be a
menace to its preservation during the existence of the legislative body against which
contempt was committed.
If the basis of the power of the legislature to punish for contempt exists while the
legislative body exercising it is in session, then that power and the exercise thereof
must perforce continue until the final adjournment and the election of its successor.
Mr. Justice Johnson's more elaborate opinion, supported by quotations from
Cooley's Constitutional Limitations and from Jefferson's Manual, is to the same effect.
Mr. Justice Romualdez said: "In my opinion, where as in the case before us, the
members composing the legislative body against which the contempt was committed
have not yet completed their three-year term, the House may take action against the
petitioner herein."
We note that the quotations from Anderson vs. Dunn and Marshall vs. Gordon relied
upon by Justice Malcolm are obiter dicta. Anderson vs. Dunn was an action of
trespass against the Sergeant-at-Arms of the House of Representatives of the United
States for assault and battery and false imprisonment. The plaintiff had been arrested
for contempt of the House, brought before the bar of the House, and reprimanded by
the Speaker, and then discharged from custody. The question as to the duration of
the penalty was not involved in that case. The question there was "whether the House
of Representatives can take cognizance of contempt committed against themselves,
under any circumstances." The court there held that the House of Representatives
had the power to punish for contempt, and affirmed the judgment of the lower court in
favor of the defendant. In Marshall vs. Gordon, the question presented was whether
the House had the power under the Constitution to deal with the conduct of the district
attorney in writing a vexatious letter as a contempt of its authority, and to inflict
punishment upon the writer for such contempt as a matter of legislative power. The
court held that the House had no such power because the writing of the letter did not
obstruct the performance of legislative duty and did not endanger the preservation of
the power of the House to carry out its legislative authority. Upon that ground alone,
and not because the House had adjourned, the court ordered the discharge of the
petitioner from custody.
The case where the question was squarely decided is McGrain vs. Daugherty, supra.
There it appears that the Senate had adopted a resolution authorizing and directing a
select committee of five senators to investigate various charges of misfeasance and
nonfeasance in the Department of Justice after Attorney General Harry M. Daugherty
became its supervising head. In the course of the investigation the committee caused
to be served on Mally S. Daugherty, brother of Harry M. Daugherty and president of
the Midland National Bank of Washington Court House, Ohio, a subpoena
commanding him to appear before it for the purpose of giving testimony relating to the
subject under consideration. The witness failed to appear without offering any excuse
for his failure. The committee reported the matter to the Senate and the latter adopted
a resolution, "That the President of the Senate pro tempore issue his warrant
commanding the Sergeant-at-Arms or his deputy to take into custody the body of the
said M.S. Daugherty wherever found, and to bring the said M.S. Daugherty before the
bar of the Senate, then and there to answer such questions pertinent to the matter
under inquiry as the Senate may order the President of the Senate pro tempore to
propound; and to keep the said M.S. Daugherty in custody to await the further order
of the Senate." Upon being arrested, the witness petitioned the federal court in
Cincinnati for a writ of habeas corpus. The federal court granted the writ and
discharged the witness on the ground that the Senate, in directing the investigation
and in ordering the arrest, exceeded its power under the Constitution. Upon appeal to
the Supreme Court of the United States, one of the contentions of the witness was
that the case ha become moot because the investigation was ordered and the
committee was appointed during the Sixty-eighth Congress, which expired on March
4, 1926. In overruling the contention, the court said:
. . . The resolution ordering the investigation in terms limited the committee's authority
to the period of the Sixty-eighth Congress; but this apparently was changed by a later
and amendatory resolution authorizing the committee to sit at such times and places
as it might deem advisable or necessary. It is said in Jefferson's Manual: "Neither
House can continue any portion of itself in any parliamentary function beyond the end
of the session without the consent of the other two branches. When done, it is by a
bill constituting them commissioners for the particular purpose." But the context
shows that the reference is to the two houses of Parliament when adjourned by
prorogation or dissolution by the King. The rule may be the same with the House of
Representatives whose members are all elected for the period of a single Congress:
but it cannot well be the same with the Senate, which is a continuing body whose
members are elected for a term of six years and so divided into classes that the seats
of one third only become vacant at the end of each Congress, two thirds always
continuing into the next Congress, save as vacancies may occur through death or
resignation.
Mr. Hinds in his collection of precedents, says: "The Senate, as a continuing body,
may continue its committees through the recess following the expiration of a
Congress;" and, after quoting the above statement from Jefferson's Manual, he says:
"The Senate, however being a continuing body, gives authority to its committees
during the recess after the expiration of a Congress." So far as we are advised the
select committee having this investigation in charge has neither made a final report
nor been discharged; nor has been continued by an affirmative order. Apparently its
activities have been suspended pending the decision of this case. But, be this as it
may, it is certain that the committee may be continued or revived now by motion to
that effect, and if, continued or revived, will have all its original powers. This being so,
and the Senate being a continuing body, the case cannot be said to have become
moot in the ordinary sense. The situation is measurably like that in Southern P.
Terminal Co. vs. Interstate Commerce Commission, 219 U. S., 498, 514-516; 55 L.
ed., 310, 315, 316; 31 Sup. Ct. Rep., 279, where it was held that a suit to enjoin the
enforcement of an order of the Interstate Commerce Commission did not become
moot through the expiration of the order where it was capable of repetition by the
Commission and was a matter of public interest. Our judgment may yet be carried
into effect and the investigation proceeded with from the point at which it apparently
was interrupted by reason of the habeas corpus proceedings. In these circumstances
we think a judgment should be rendered as was done in the case cited.
What has been said requires that the final order in the District Court discharging the
witness from custody be reversed.
Like the Senate of the United States , the Senate of the Philippines is a continuing
body whose members are elected for a term of six years and so divided that the seats
of only one-third become vacant every two years, two-thirds always continuing into
the next Congress save as vacancies may occur thru death or resignation. Members
of the House of Representatives are all elected for a term of four years; so that the
term of every Congress is four years. The Second Congress of the Philippines was
constituted on December 30, 1949, and will expire on December 30, 1953. The
resolution of the Senate committing the Petitioner was adopted during the first
session of the Second Congress, which began on the fourth Monday of January and
ended in May 18, 1950.
Had said resolution of commitment been adopted by the House of Representatives,
we think it could be enforced until the final adjournment of the last session of the
Second Congress in 1953. We find no sound reason to limit the power of the
legislative body to punish for contempt to the end of every session and not to the end
of the last session terminating the existence of that body. The very reason for the
exercise of the power to punish for contempt is to enable the legislative body to
perform its constitutional function without impediment or obstruction. Legislative
functions may be and in practice are performed during recess by duly constituted
committees charged with the duty of performing investigations or conducting hearing
relative to any proposed legislation. To deny to such committees the power of inquiry
with process to enforce it would be to defeat the very purpose for which that the
power is recognized in the legislative body as an essential and appropriate auxiliary
to is legislative function. It is but logical to say that the power of self-preservation is
coexistent with the life to be preserved.
But the resolution of commitment here in question was adopted by the Senate, which
is a continuing body and which does not cease exist upon the periodical dissolution of
the Congress or of the House of Representatives. There is no limit as to time to the
Senate's power to punish for contempt in cases where that power may constitutionally
be exerted as in the present case.
Mere reflection upon the situation at hand convinces us of the soundness of this
proposition. The Senate has ordered an investigation of the Buenavista and
Tambobong estates deal, which we have found it is within its competence to make.
That investigation has not been completed because of the refusal of the petitioner as
a witness to answer certain questions pertinent to the subject of the inquiry. The
Senate has empowered the committee to continue the investigation during the
recess. By refusing to answer the questions, the witness has obstructed the
performance by the Senate of its legislative function, and the Senate has the power to
remove the obstruction by compelling the witness to answer the questions thru
restraint of his liberty until he shall have answered them. That power subsists as long
as the Senate, which is a continuing body, persists in performing the particular
legislative function involved. To hold that it may punish the witness for contempt only
during the session in which investigation was begun, would be to recognize the right
of the Senate to perform its function but at the same time to deny to it an essential
and appropriate means for its performance. Aside from this, if we should hold that the
power to punish for contempt terminates upon the adjournment of the session, the
Senate would have to resume the investigation at the next and succeeding sessions
and repeat the contempt proceedings against the witness until the investigation is
completed-an absurd, unnecessary, and vexatious procedure, which should be
avoided.
As against the foregoing conclusion it is argued for the petitioner that the power may
be abusively and oppressively exerted by the Senate which might keep the witness in
prison for life. But we must assume that the Senate will not be disposed to exert the
power beyond its proper bounds. And if, contrary to this assumption, proper
limitations are disregarded, the portals of this Court are always open to those whose
rights might thus be transgressed.
Third. Lastly, the petitioner invokes the privilege against self-incrimination. He
contends that he would incriminate himself if he should reveal the name of the person
to whom he gave the P440,000 if that person be a public official be (witness) might be
accused of bribery, and if that person be a private individual the latter might accuse
him of oral defamation.
The ground upon which the witness' claim is based is too shaky, in firm, and slippery
to afford him safety. At first he told the Committee that the transactions were legal,
that no laws were violated, and that all requisites had been replied with; but at the
time he begged to be excused from making answers "which might later be used
against me." A little later he explained that although the transactions were legal he
refused to answer questions concerning them "because it violates the right of a citizen
to privacy in his dealings with other people . . . I simply stand on my privilege to
dispose of the money that has been paid to me as a result of a legal transaction
without having to account for the use of it." But after being apparently convinced by
the Committee that his position was untenable, the witness testified that, without
securing any receipt, he turned over the P440,000 to a certain person, a
representative of Burt, in compliance with Burt's verbal instruction made in 1946; that
as far as he know, that certain person had nothing to do with the negotiations for the
settlement of the Buenavista and Tambobong cases; that he had seen that person
several times before he gave him the P440,000 on October 29, 1949, and that since
then he had seen him again two or three times, the last time being in December,
1949, in Manila; that the person was a male, 39 to 40 years of age, between 5 feet, 2
inches and 5 feet, 6 inches in height. Butt the witness would not reveal the name of
that person on these pretexts: " I don't remember the name; he was a representative
of Burt." "I am not sure; I don't remember the name."
We are satisfied that those answers of the witness to the important question, what is
the name of that person to whom you gave the P440,000? were obviously false. His
insistent claim before the bar of the Senate that if he should reveal the name he
would incriminate himself, necessarily implied that he knew the name. Moreover, it is
unbelievable that he gave the P440,000 to a person to him unknown.
"Testimony which is obviously false or evasive is equivalent to a refusal to testify and
is punishable as contempt, assuming that a refusal to testify would be so punishable."
(12 Am. Jur., sec. 15, Contempt, pp. 399-400.) In the case of Mason vs. U.S., 61 L.
ed., 1198, it appears that Mason was called to testify before a grand jury engaged in
investigating a charge of gambling against six other men. After stating that he was
sitting at a table with said men when they were arrested, he refused to answer two
questions, claiming so to do might tend to incriminate him: (1) "Was there a game of
cards being played on this particular evening at the table at which you are sitting?" (2)
"Was there a game of cards being played at another table at this time?" The foreman
of the grand jury reported the matter to the judge, who ruled "that each and all of said
questions are proper and that the answers thereto would not tend to incriminate the
witness." Mason was again called and refused to answer the first question
propounded to him, but, half yielding to frustration, he said in response to the second
question: "I don't know." In affirming the conviction for contempt, the Supreme Court
of the United States among other things said:
In the present case, the witness certainly were not relieved from answering merely
because they declared that so to do might incriminate them. The wisdom of the rule in
this regard is well illustrated by the enforced answer, "I don't know ," given by Mason
to the second question, after he had refused to reply under a claim of constitutional
privilege.
Since according to the witness himself the transaction was legal, and that he gave the
P440,000 to a representative of Burt in compliance with the latter's verbal instruction,
we find no basis upon which to sustain his claim that to reveal the name of that
person might incriminate him. There is no conflict of authorities on the applicable rule,
to wit:
Generally, the question whether testimony is privileged is for the determination of the
Court. At least, it is not enough for the witness to say that the answer will incriminate
him. as he is not the sole judge of his liability. The danger of self-incrimination must
appear reasonable and real to the court, from all the circumstances, and from the
whole case, as well as from his general conception of the relations of the witness.
Upon the facts thus developed, it is the province of the court to determine whether a
direct answer to a question may criminate or not. . . . The fact that the testimony of a
witness may tend to show that he has violated the law is not sufficient to entitle him to
claim the protection of the constitutional provision against self-incrimination, unless he
is at the same time liable to prosecution and punishment for such violation. The
witness cannot assert his privilege by reason of some fanciful excuse, for protection
against an imaginary danger, or to secure immunity to a third person. ( 3
Wharton's Criminal Evidence, 11th ed., secs. 1135,1136.)
It is the province of the trial judge to determine from all the facts and circumstances of
the case whether the witness is justified in refusing to answer. (People vs. Gonzo, 23
N.E. [2d], 210 [Ill. App., 1939].) A witness is not relieved from answering merely on
his own declaration that an answer might incriminate him, but rather it is for the trial
judge to decide that question. (Mason vs. U.S., 244 U. S., 362; 61 L. ed., 1193,
1200.)
As against witness's inconsistent and unjustified claim to a constitutional right, is his
clear duty as a citizen to give frank, sincere, and truthful testimony before a
competent authority. The state has the right to exact fulfillment of a citizen's
obligation, consistent of course with his right under the Constitution. The witness in
this case has been vociferous and militant in claiming constitutional rights and
privileges but patently recreant to his duties and obligations to the Government which
protects those rights under the law. When a specific right and a specific obligation
conflict with each other, and one is doubtful or uncertain while the other is clear and
imperative, the former must give way to the latter. The right to life is one of the most
sacred that the citizen may claim, and yet the state may deprive him of it if he violates
his corresponding obligation to respect the life of others. As Mr. Justice Johnson said
in Anderson vs. Dunn: "The wretch beneath the gallows may repine at the fate which
awaits him, and yet it is not certain that the laws under which he suffers were made
for the security." Paraphrasing and applying that pronouncement here, the petitioner
may not relish the restraint of his liberty pending the fulfillment by him of his duty, but
it is no less certain that the laws under which his liberty is restrained were made for
his welfare.
From all the foregoing, it follows that the petition must be denied, and it is so ordered,
with costs.
Paras, Pablo, Bengzon, Montemayor, and Reyes, JJ., concur.

Separate Opinions
TUASON, J., dissenting:
The estates deal which gave the petitioner's examination by a committee of the
Senate was one that aroused popular indignation as few cases of graft and corruption
have. The investigation was greeted with spontaneous outburst of applause by an
outraged citizenry, and the Senate was rightly commended for making the lead in
getting at the bottom of an infamous transaction.
All the more necessary it is that we should approach the consideration of this case
with circumspection, lest the influence of strong public passions should get the batter
of our judgment. It is trite to say that public sentiment fades into insignificance before
a proper observance of constitutional processes, the maintenance of the
constitutional structure, and the protection of individual rights. Only thus can a
government of laws, the foundation stone of human liberty, be strengthened and
made secure for that very public.
It is with these thoughts in mind that, with sincere regret, I am constrained to dissent.
The power of the legislative bodies under the American system of government to
punish for contempt was at the beginning totally denied by some courts and students
of constitutional law, on the ground that this power is judicial in nature and belongs to
the judiciary branch of the government under the constitutional scheme. The point
however is now settled in favor of the existence of the power. This rule is based on
the necessity for the attainment of the ends for which legislative body is created. Nor
can the legitimacy of the purpose of the investigation which the Senate ordered in this
case be disputed. As a corollary, it was likewise legitimate and necessary for the
committee to summon the petitioner with a command to produce his books and
documents, and to commit him to prison for his refusal or failure to obey the
subpoena. And, finally, there is no question that the arresting officers were fully
justified in using necessary bodily force to bring him before the bar of the Senate
when he feigned illness and stalled for time in the mistaken belief that after the
closing of the then current session of Congress he could go scot-free.
At the same time, there is also universal agreement that the power is not absolute.
The disagreement lies in the extent of the power, and such disagreement is to be
found even between decisions of the same court. Anderson vs.Dunn, 6 Wheat., No.
204, may be said to have taken the most liberal view of the legislature's authority and
Kilbourn vs. Thompson, 103 U.S. 168, which partly overruled and qualified the former,
the strictest. By the most liberal standard the power is restricted "by considerations as
to the nature of the inquiry, occasion, or action in connection with which the
contemptuous conduct has occurred." Punishment must be resorted to for the
efficient exercise of the legislative function. Even Anderson vs. Dunn speaks of the
power as "the least possible power adequate to the end proposed."
Judged by any test, the question propounded to the witness does not, in my opinion,
meet the constitutional requirement. It is obvious, I think, that the query has nothing to
do with any matter within the cognizance of the Congress. There is, on the contrary,
positive suggestion that the question has no relation to the contemplated legislation.
The statement of the committee in its report that the information sought to be
obtained would clear the names of the persons suspected of having received the
money, is, on the surface, the most or only plausible reason that can be advanced.
Assuming this to be the motive behind the question, yet little reflection will show that
the same is beyond the scope of legislative authority and prerogatives. It is outside
the concern of the Congress to protect the honor of particular citizens except that of
its own members' as a means of preserving respect and confidence in that body.
Moreover, the purported good intention must assume, if it is to materialize, that the
persons under suspicion are really innocent; for if they are not and the witness will tell
the truth, the result will be to augment their disgrace rather than vindicate their honor.
This is all the more likely to happen because one of those persons, is judged from the
committee's findings, the most likely one, to say the least, who got the money.
If the process of deduction is pressed further, the reasonable conclusion seems to be
that the object of the question is, to mention only one, to prepare the way for a court
action. The majority, decision indirectly admits or insinuates this to be the case. It
says, "It appearing that the questioned transaction was affected by the head of the
Department of Justice himself, it is not reasonable to expect the fiscal or the Court of
First Instance of Manila will take the initiative to investigate and prosecute the parties
responsible for the deal until and unless the Senate shall have determined who those
parties are and shall have taken such measures as may be within its competence to
take, to redress the wrong that may have been committed against the people as a
result of the transaction." So here is an admission, implied if not express, that the
Senate wants the witness to give names because the fiscal or the courts will not
initiate an action against parties who should be prosecuted. It is needless to say that
the institution of a criminal or civil suit is a matter that devolves upon other
departments of the government, alien to the duties of the Congress to look after.
The Congress is at full liberty, of course, to make any investigation for the purpose of
aiding the fiscal or the courts, but this liberty does not carry with it the authority to
imprison persons who refuse to testify.
In the intricacy and complexity of an investigation it is often impossible to foretell
before its close what relation certain facts may bear on the final results, and
experience has shown that investigators and courts would do well to veer on the
liberal side in the resolution of doubtful questions. But the Senate is not now in the
midst of an inquiry with the situation still in a fluid or tentative state. Now the facts are
no longer confused. The committee has finished its investigation and submitted its
final report and the Senate has approved a bill on the bases of the facts found. All the
pertinent facts having been gathered, as is to be inferred from that the report and the
nature of the Senate's action, every question, every fact, every bit of testimony has
taken a distinct meaning susceptible of concrete and definite evaluation; the task has
been reduced to the simple process of sifting the grain from the chaffs.
In the light of the committee's report and of the bill introduced and approved in the
Senate, it seems quite plain that the express naming of the recipient or recipients of
the money is entirely unessential to anything the Senate has a right or duty to do in
premises. Names may be necessary for the purpose of criminal prosecution,
impeachment or civil suit. In such proceedings, identities are essential. In some
legislative investigations it is important to know the names of public officials involved.
But the particular disclosure sought of the petitioner here is immaterial to the
proposed law. It is enough for the Senate, for its own legitimate object, to learn how
the Department of Justice had in the purchase, and to have a moral conviction as to
the identity of the person who benefited thereby. The need for such legislation and
translated into the bill approved by the Senate is met by an insight into a broad outline
of the deal. To paraphrase the U.S. Supreme Court in Anderson vs. Dunn, although
the passage was used in another connection, legislation is a science of experiment
and the relation between the legislator and the end does not have to be so direct as
to strike the eye of the former.
One of the proposed laws have prohibits brothers and near relatives of any president
of the Philippines from intervening directly or indirectly in transactions in which the
Government is a party. It is stated that this is subject to change depending on the
answer Arnault may give. This statement is wide open to challenge.
If Arnault should Antonio Quirino it must be admitted that the bill would not be altered.
But let us suppose that the witness will point to another man. Will the result be any
different? Will the Senate recall the bill? I can not perceive the slightest possibility of
such eventuality. The pending bill was framed on the assumption that Antonio Quirino
was a party to the deal in question. As has been said, the committee entertains a
moral conviction that this brother of the President was the recipient of a share of the
proceeds of sale. No amount of assurance by Arnault to the contrary would be
believed for truth. And, I repeat, the proposed legislation does not need for its
justification legal evidence of Antonio Quirino's intervention in the transaction.
All this in the first place. In the second place, it is not to be assumed that the present
bill is aimed solely against Antonio Quirino whose relation to the Administration is but
temporary. It is more reasonable to presume that the proposed enactment is intended
for all time and for all brothers of future presidents, for in reality it is no more than an
extension or enlargement of laws already found in the statute book which guard
against temptations to exploit official positions or influence to the prejudice of public
interests.
The disputed question is, in fact, not only irrelevant but moot. This is decisive of the
irrelevancy of this question. As has been noticed, the committee has submitted its
final report and recommendation, and a bill has been approved by the Senate
calculated to prevent recurrence of the anomalies exposed. For the purpose for which
it was instituted the inquiry is over and the committee's mission accomplished.
It is true that the committee continues to sit during the recess of Congress, but it is
obvious from all the circumstances that the sole and real object of the extension of
the committee's sittings is to receive the witness' answer in the event he capitulates. I
am unable to see any new phase of the deal which the Senate could legitimately wish
to know, and the respondents and this Court have not pointed out any. That the
committee has not sat and nothing has been done so far except to wait for Arnault's
answer is a convincing manifestation of the above conclusion.
The order "to continue its investigation" contained in Senate Resolution No. 16 cannot
disguise the realities revealed by the Senate's actions already referred to and by the
emphasis given to the instruction "to continue its (committee's) examination of Jean L.
Arnault regarding the name of the person to whom he gave the P440,000." The
instruction 'to continue the investigation' is not entitled to the blind presumption that it
embraces matters other than the revelation by the witness of the name of the person
who got the money. Jurisdiction to deprive a citizen of liberty outside the usual
process is not acquired by innuendoes or vague assertions of the facts on which
jurisdiction is made to depend. If the judgment of the court of law of limited jurisdiction
does not enjoy the presumption of legality, much less can the presumption of
regularity be invoked for a resolution of a deliberative body whose power to inflict
punishment upon private citizens is wholly derived by implication and vehemently
contested by some judges. At any rate, "the stronger presumption of innocence
attends accused at the trial", "and it is incumbent" upon the respondents "to show that
the question pertains to some matter under investigation." (Sinclair vs. U. S., 73 L.
ed., 693.) This rule stems from the fact that the power is in derogation of the
constitutional guarantee that no person shall be deprived of life, liberty, or property
without due process of law, which presupposes " a trial in which the rights of the
parties shall be decided by a tribunal appointed by law, which tribunal is to governed
by rules of law previously established." Powers so dangerous to the liberty of a citizen
can not be allowed except where the pertinence is clear. A Judge who abuses such
power may be impeached and he acts at all times under the sense of this
accountability and responsibility. His victims may be reached by the pardoning power.
But if the Congress be allowed this unbounded jurisdiction of discretion, there is no
redress, The Congress may dispoil of a citizen's life, liberty or property and there is no
power on earth to stop its hand. There is, there can be, no such unlimited power in
any department of the government of the Republic. (Loan Association vs. Topeka, 20
Wall, Nos. 662, 663; Taylor vs.Porter, 4 Hill No. N.Y. 140.)
The above rule and discussion apply with equal force to the instruction to the
committee in the original resolution, "to determine the parties responsible for the
deal." It goes without saying that the congress cannot authorize a committee to do
what it itself cannot do. In other words, the` Senate could not insist on the disclosure
of Arnault's accomplice in the present state of the investigation if the Senate were
conducting the inquiry itself instead of through a committee.
Our attention is called to the fact that "in the Philippines, the legislative power is
vested in the Congress of the Philippines alone, and therefore that the Congress of
the Philippines has a wider range of legislative field than the Congress of the United
States or any state legislature." From this premise the inference is drawn that " the
field of inquiry into it (Philippine Congress) may enter is also wider."
This argument overlooks the important fact that congressional or legislative
committees both here and in the Unived States, do not embark upon fishing
expeditions in search of information which by chance may be useful to legislation.
Inquiries entrusted to congressional committee, whether here or in the United States,
are necessarily for specific objects within the competence of the Congress to look
into. I do not believe any reason, rule or principle could be found which would sustain
the theory that just because the United States Congress or a state legislature could
legislate on, say, only ten subjects and the Philippine Congress on twenty, the latter's
power to commit to prison for contempt is proportionately as great as that of the
former. In the consideration of the legality of an imprisonment for the contempt by
each House, the power is gauged not be the greater or lesser number of subject
matters that fall within its sphere of action, but by the answer to the question, has it
jurisdiction over the matter under investigation? Bearing this distinction in mind, it is
apparent that the power of a legislature to punish for contempt can be no greater nor
less than that of any other. Were it possible for the Philippine Senate and the United
States Senate to undertake an investigation of exactly identical anomalies in their
respective departments of justice, could it be asserted with any support of logic that
one Senate has a wider authority to imprison for contempt in such investigation
simply because it has a "wider range of legislative field?"
It is said that the Senate bill has not been acted upon by the lower house and that
even if it should pass in that chamber it would still have the President's veto to hurdle.
It has been expressly stated at the oral argument, and there is insinuation in this
Court's decision, that the revelation of the name or names of the person or persons
who received the money may help in convincing the House of Representatives or the
President of the wisdom of the pending measure. Entirely apart from the discussion
that the House of Representatives and the Chief Executive have their own idea of
what they need to guide them in the discharge of their respective duties, and they
have the facilities of their own for obtaining the requisite data.
There is another objection, more fundamental, to the Senate invoking the interest or
convenience of the other House or the President as ground of jurisdiction. The House
of Representatives and the President are absolutely independent of the Senate, in the
conduct of legislative and administrative inquiries, and the power of each House to
imprison for contempt does not go beyond the necessity for its own self-preservation
or for making its express powers effective. Each House exercises this power to
protect or accomplish its own authority and not that of the other House or the
President. Each House and the President are supposed to take care of their
respective affairs. The two Houses and the Chief Executive act separately although
the concurrence of the three is required in the passage of legislation and of both
Houses in the approval of resolutions. As the U.S. Supreme Court in
Kilbourn vs.Thompson, said, "No general power of inflicting punishment by the
Congress (as distinct from a House is found in the Constitution." "An act of Congress
— it said — which proposed to adjudge a man guilty of a crime and inflict the
punishment, will be considered by all thinking men to be unauthorized by the
Constitution."
Kilbourn vs. Thompson, supra, it is said can not be relied on in this case as a
precedent because, so it is also said, "the subject of the inquiry, which related to a
private real-estate pool or partnership, was not within the jurisdiction of either House
of Congress; while here it is not disputed that the subject of the inquiry, which relates
to a transaction involving a questionable expenditure by the Government of
P5,000,000 of public funds, is within the Jurisdiction of the Senate." Yet the remarks
of Judge Land is which are quoted in the majority decision point out that the inquiry
"was a normal and customary part of the legislative process." Moreover,
Kilbourn vs. Thompson is important, not for the matter it treated but for the principles
it enunciated.
It is also said that Kilbourn vs. Thompson did not meet with universal approval as
Judge Land is' article above mentioned shows. The jurist who delivered the opinion in
that case, Mr. Justice Miller, was one of the "giants" who have ever sat on the
Supreme Federal Bench, venerated and eminent for the width and depth of his
learning. Subsequent decisions, as far as I have been able to ascertain, have not
rejected or criticized but have followed it, and it still stands as a landmark in this
branch of constitutional law.
If we can lean on private opinions and magazine articles for comfort, the petitioner
can cite one by a legal scholar and author no less reknown and respected than Judge
Land is. I refer to Judge Wigmore who, referring to an investigation of the U.S.
Department of Justice said in an article published in 19 (1925) Illinois Law Review,
452:
The senatorial debauch of investigations — poking into political garbage cans and
dragging the sewers of political intrigue — filled the winter of 1923-24 with a stench
which has not yet passed away. Instead of employing the constitutional, manly, fair
procedure of impeachment, the Senate flung self-respect and fairness to the winds.
As a prosecutor, the Senate presented a spectacle which cannot even be dignified by
a comparison with the persecutive scoldings of Coke and Scroggs and Jeffreys, but
fell rather in popular estimate to the level of professional searchers of the municipal
dunghills.
It is far from my thought to subscribe to this vituperation as applied to our Senate.
Certainly, this august body said not only do the right thing but is entitled to the lasting
gratitude of the people for taking the courageous stand it did in probing into an
anomaly that robbed a depleted treasury of a huge amount. I have tried to make it
clear that my disagreement with the majority lies not in the propriety or
constitutionality of the investigation but in the pertinence to that investigation of a
single question. The investigation, as had been said, was legal and commendable.
My objection is that the Senate having started within the bounds of its authority, has,
in entire good faith, overstepped those bounds and trespassed on a territory reserved
to other branches of the government, when it imprisoned a witness for contumacy on
a point that is unimportant, useless, impertinent and irrelevant, let alone moot.

Thus understood, this humble opinion does not conflict with the views of Judge Land
is and all other advocates of wide latitude for congressional investigations. All are
agreed, and the majority accept the proposition, that there is a limit to the legislative
power to punish for contempt. The limit is set in Anderson vs. Dunn which Judge
Land is approved — "the least possible power adequate to the end proposed."
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
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, JOPSE J. ROY, FAUSTINO DUGENIO,
ANTONIO Y. DE PIO, BENJAMIN T. LIGOT, PEDRO G. TRONO, FELIPE ABRIGO,
FELIPE S. ABELEDA, TECLA SAN ANDRES ZIGA, ANGEL B. FERNADEZ, and
EUGENIO S. BALTAO, in their capacity as members of the Special Committee
created by House Resolution No. 59,respondents.
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.
BENGZON, J.:
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 Salapida 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 infringenment 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, the pertinent portions of
which reads as follows:
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 basis in truth and in fact, would constitute a
serious assault upon the dignity and prestige of the Office of 37 3 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 Representative, 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 privilege speech of June 223, 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 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 talk, and after giving Congressman Osmeña a chance to defend himself,
submitted its reports on July 18, 1960, finding said congressman guilty of serious
disorderly behaviour; 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 Balatao) 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 a 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 Representative: 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; (20 that his speech constituted no disorderly behaviour
for which he could be punished; and (3) supposing he could be questioned and
discipline 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 Representative "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 exercise of
that liberty may occasion offense."2 Such immunity has come to this country from the
practices of Parliamentary 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 is 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 prison3, even expelled by the votes of their
colleagues. The appendix to this decision amply attest 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 done by unanimous consent.
Granted, counters the petitioner, that the House may suspended the operation of its
Rules, it may not, however, affect past acts or renew its rights to take action which
had already lapsed.
The situation might thus be compared to laws4 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, court 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
observancem, 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 requisited
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 con duct 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. Ann.
Cas. 1913B, 802.) [Takenfrom the case of Rutherford vs. City of Nashville, 78 south
Western Reporter, p. 584.]
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 discipline, 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 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, had
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 amount to an interference by
the judicial department with the legislature since each department is equally
independent within the power 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 stated Senate
is given the power to example a member, the court will not review its action or
revise even a most arbitrary or unfair decision. (11 Am. Jur., Const. Law, sec. p. 902.)
[Emphasis 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 proceeding 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 has 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 the 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
authority 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 this 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 those 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 upon at least two occasions, that personal attacks upon the Chief
Executive constitute unparliamentary conduct or breach of orders. 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 Senate,
suspended from office for 12 months because he had assaulted another member of
the that Body or 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 an appointive member, like Senator
Alejandrino. The Jones Law specifically 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 mist 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 view 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 power
which were granted to it by the Jones Law10; whereas now the Congress has the full
legislative powers and preprogatives 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 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 weightly 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 tin 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
had closed it 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. Avelino14 and Alejandrino vs.
Qeuaon.15
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.
Paras, C. J., Bautista Angelo, Concepcion, 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 Resolution 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. Mc
Donnell, 11 Fed. Supp. 1015; People vs. Talklington, 47 Pac. 2d 368; U.
S. vs.Garfinkel, 69 F. Supp. 849).
The foregoing also answer 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
retroactive 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 regards 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. . .
. (Emphasis 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 haunting 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 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
taken notwithstanding intervening business, are not truly applicable. Of the five
instances cited by Deschkler (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,
sec. 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 a semicolon, and the Chair asks the
attention of the gentleman from Iowa (Mr. Wilson) top 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 be order shall repeat the words excerpted to —
That is, the "calling to order" is "excepting" to words spoken in debate "and they shall
be taken done 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, 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
gentleman from Illinois (Mr. Harding), the gentleman from Massachusetts (Mr.
Banks), the gentleman from Kentucky (Mr. Rosseau), 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 condition that 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 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 Hose 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 Philippines 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 fro 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. If 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
limitation 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.)
Court will not interfere with the action of the state senate in reconsideration 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) (Emphasis 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 nullify of the questioned resolutions and of all action that 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 Mr. Justice J. B. L. Reyes, 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 regulation 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
constitutes 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, 1060 when the House created the committee
that would investigated him. For fully 15 days the House took up other matters. All
that was done, while the speech was being delivered, was to have certains portions
thereof deleted. I hold that pursuant to its own Rules the House may no longer punish
Congressman Osmeña for the delivered fifteen days before.
The fact that no action was promptly taken to punish Congressman Osmeña
immediately after its delivery, except to have some part of the speech deleted, show
that the members of the House did not 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.
coordinate branches 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 believe that
vitreous 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 prejudicated thereby. Only in that way may the supermacy
of the law be maintained.

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
punishing an 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 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 alienation (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 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 had 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 board
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
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-543 August 31, 1946
JOSE O. VERA, ET AL., petitioners,
vs.
JOSE A. AVELINO, ET AL., respondents.
Jose W. Diokno and Antonio Barredo for petitioners.
Vicente J. Francisco and Solicitor General Tañada for respondents.
J. Antonio Araneta of the Lawyers' Guild as amicus curiae.
BENGZON, J.:
Pursuant to a constitutional provision (section 4, Article X), the Commission on
elections submitted, last May, to the President and the Congress of the Philippines,
its report on the national elections held the preceding month, and, among other
things, stated that, by reason of certain specified acts of terrorism and violence in the
Provinces of Pampanga, Nueva Ecija, Bulacan and Tarlac, the voting in said region
did not reflect the true and free expression of the popular will.
When the Senate convened on May 25, 1946, it proceeded with the selection of its
officers. Thereafter, in the course of the session, a resolution was approved referring
to the report and ordering that, pending the termination of the protest lodged against
their election, the herein petitioners, Jose O. Vera, Ramon Diokno and Jose E.
Romero — who had been included among the sixteen candidates for senator
receiving the highest number of votes, proclaimed by the Commission on Elections —
shall not be sworn, nor seated, as members of the chamber.
Pertinent parts of the resolution — called Pendatun — are these:
WHEREAS the Commission on Elections, charged under the Constitution with the
duty of insuring free, orderly, and honest elections in the Philippines, reported to the
President of the Philippines on May 23, 1946, that
". . . Reports also reached this Commission to the effect that in the Provinces of
Bulacan, Pampanga, Tarlac and Nueva Ecija, the secrecy of the ballot was actually
violated; the armed bands saw to it that their candidates were voted for; and that the
great majority of the voters, thus coerced or intimadated, suffered from a paralysis of
judgement in the matter of exercising the right of suffrage; considering all those acts
of terrorism, violence and intimidation in connection with elections which are more or
less general in the Provinces of Pampanga, Tarlac, Bulacan and Nueva Ecija, this
Commission believes that the election in the provinces aforesaid did not reflect the
true and free expression of the popular will. It should be stated, however, that the
Commission is without jurisdiction, to determine whether or not the votes cast in the
said provinces which, according to these reports have been cast under the influence
of threats or violence, are valid or invalid. . . ."
WHEREAS, the minority report of the Hon. Vicente de Vera, member of the
Commission on Elections, says among other things, that "we know that as a result of
this chaotic condition, many residents of the four provinces have voluntarily banished
themselves from their home towns in order not to be subjected to the prevailing
oppression and to avoid being victimized or losing their lives"; and that after the
election dead bodies had been found with notes attached to their necks, reading,
"Bomoto kami kay Roxas" (we voted for Roxas);
WHEREAS the same Judge De Vera says in his minority report that in the four
Provinces of Pampanga, Tarlac, Bulacan and Nueva Ecija, the worst terrorism
reigned during and after the election, and that if the elections held in the aforesaid
provinces were annulled as demanded by the circumstances mentioned in the report
of the Commission, Jose O. Vera, Ramon Diokno, and Jose Romero, would not and
could not have been declared elected;
xxx xxx xxx
WHEREAS the terrorism resorted to by the lawless elements in the four provinces
mentioned above in order to insure the election of the candidates of the Conservative
wing of the Nationalist Party is of public knowledge and that such terrorism continues
to this day; that before the elections Jose O. Vera himself declared as campaign
Manager of the Osmeña faction that he was sorry if Presidential Candidate Manuel A.
Roxas could not campaign in the Huk provinces because his life would be
endangered; and that because of the constant murders of his candidates and leaders,
Presidential Candidate Roxas found it necessary to appeal to American High
Commissioner Paul V. McNutt for protection, which appeal American High
Commissioner personallyreferred to President Sergio Osme_¤_a for appropriate
action, and the Presidentin turn ordered the Secretary of the existence and reign of
such terrorism;
WHEREAS the Philippines, a Republic State, embracing the principles ofdemocracy,
must condem all acts that seek to defeat the popular will;
WHEREAS it is essential, in order to maintain alive the respect fordemocratic
institutions among our people, that no man or group of men be permitted to profit from
the results of an election held under coercion, in violation of law, and contrary to the
principle of freedom of choice which should underlie all elections under the
Constitution;
WHEREAS protests against the election of Jose O. Vega, Ramon Diokno, and Jose
Romero, have been filed with the electoral Tribunal of the Senate of the Philippines
on the basis of the findings of the Commission on Elections above quoted;
NOW, THEREFORE, be it resolved by the Senate of the Philippines in session
assembled, as it hereby resolves, to defer the administration of oath and the sitting of
Jose O. Vera, Ramon Diokno, and Jose Romero, pending the hearing and decision
on the protests lodged against their elections, wherein the terrorism averred in the
report of the Commission on Elections and in the report of the Provost Marshal
constitutes the ground of said protests and will therefore be the subject of
investigation and determination.
Petitioners immediately instituted this action against their colleagues responsible for
the resolution. They pray for an order annulling it, and compelling respondents to
permit them to occupy their seats, and to exercise their senatorial prerogatives.
In their pleadings, respondents traverse the jurisdiction of this court, and assert the
validity of the Pendatun Resolution.
The issues, few and clear-cut, were thoroughly discussed at the extended oral
argument and in comprehensive memoranda submitted by both sides.
A.—NO JURISDICTION
Way back in 1924, Senator Jose Alejandrino assaulted a fellow-member in the
Philippine Senate. That body, after investigation, adopted a resolution, suspending
him from office for one year. He applied here for mandamus and injunction to nullify
the suspension and to require his colleagues to reinstate him. This court believed the
suspension was legally wrong, because, as senator appointed by the Governor-
General, he could not be disciplined by the Philippine Senate; but it denied the prayer
for relief, mainly upon the theory of the separation of the three powers, Executive,
Legislative and Judicial. (Alejandrino vs. Quezon, 46 Phil., 81.) Said the decision:
. . . Mandamus will not lie against the legislative body, its members, or its officers, to
compel the performance of duties purely legislative in their character which therefore
pertain to their legislative functions and over which they have exclusive control. The
courts cannot dictate action in this respect without a gross usurpation of power. So it
has been held that where a member has been expelled by the legislative body, the
courts have no power, irrespective of whether the expulsion was right or wrong, to
issue a mandate to compel his reinstatement. (Code of civil Procedure, section 222,
515; 18 R.C. L., 186, 187; Cooley, Constitutional Limitations, 190; French vs. Senate
[1905], 146 Cal; Hiss vs. Bartlett [1855], 69 Mass., 468; Ex parte Echols [1886], 39
Ala., 698; State vs. Bolte [1889], 151 Mo., 362; De Diego vs. House of Delegates
[1904], 5 Porto Rico, 235; Greenwood Cemetery Land Co. vs. Routt [1892], 17 Colo.,
156; State ex rel. Crammer vs. Thorson [1896], 33 L. R. A., ex rel. Bruce vs. Dunne
[1913], 258 Ill., 441; People ex rel. La Chicote vs. Best [1907], 187 N. Y., 1;
Abueva vs. Wood [1924], 45 Phil., 612.) (Supra, pp. 88, 89.)
. . . 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, taken in pursuance of the power committed exclusively to that
department by the constitution. (Supra, p. 93)
No court has ever held and we apprehend no court will ever hold that it possesses the
power to direct the Chief Executive or the Legislature or a branch thereof to take any
particular action. If a court should ever be so rash as to thus trench on the domain of
either of the other departments, it will be the end of popular government as we know it
in democracies. (Supra, p. 94.)
Conceding therefore that the power of the Senate to punish its members for
disorderly behavior does not authorize it to suspend an appointive member from the
exercise of his office for one year, conceding what has been so well stated by the
learned counsel for the petitioner, conceding all this and more, yet the writ prayed for
cannot issue, for the all-conclusive reason that the Supreme Court does not possess
the power of coercion to make the Philippine Senate take any particular action. . . .
(Supra, p. 97.)
The same hands-off policy had been previously followed in Severino vs. Governor-
General and Provincial Board of Occidental Negros (16 Phil., 366) and Abueva vs.
Wood (45 Phil., 612)
At this point we could pretend to erudition by tracing the origin, development and
various applications of theory of separation of powers, transcribing herein whole
paragraphs from adjudicated cases to swell the pages of judicial output. Yet the
temptation must be resisted, and the parties spared a stiff dose of juris prudential lore
about a principle, which, after all, is the first fundamental imparted to every student of
Constitutional Law.
Not that a passable excuse would be lacking for such a dissertation. The advent of
the Republic, and the consequent finality of our views on constitutional issues, may
call for a definition of concepts and attitudes. But surely, there will be time enough, as
cases come up for adjudication.
Returning to the instant litigation, it presents no more than the questions, whether the
Alejandro doctrine still obtains, and whether the admitted facts disclose any features
justifying departure therefrom.
When the Commonwealth Constitution was approved in 1935, the existence of three
coordinate, co-equal and co-important branches of the government was ratified and
confirmed. That Organic Act contained some innovations which established additional
exceptions to the well-known separation of powers; for instance, the creation of the
Electoral Tribunal wherein Justices of the Supreme Court participate in the decision of
congressional election protests, the grant of rule-making power to the Supreme Court,
etc.; but in the main, the independence of one power from the other was maintained.
And the Convention — composed mostly of lawyers (143 out of a total of 202
members), fully acquainted with the Abueva, Alejandrino and Severino precedents —
did not choose to modify their constitutional doctrine, even as it altered some
fundamental tenets theretofore well established.1
However, it is alleged that, in 1936, Angara vs. Electoral Commission (63 Phil., 139),
modified the aforesaid ruling. We do not agree. There is no pronouncement in the
latter decision, making specific reference to the Alejandrino incident regarding our
power — or lack of it — to interfere with the functions of the Senate. And three years
later, in 1939, the same Justice Laurel, who had penned it, cited Alejandrino vs.
Quezon as a binding authority of the separation of powers. (Planas vs. Gil, 67 Phil.,
62.) It must be stressed that, in the Angara controversy, no legislative body or person
was a litigant before the court, and whatever obiter dicta, or general expressions, may
therein found can not change the ultimate circumstance that no directive was issued
against a branch of the Legislature or any member thereof.2 This Court, in that case,
did not require the National Assembly or any assemblyman to do any particular act. It
only found it "has jurisdiction over the Electoral Commission." (Supra, 63 Phil., 161.)
That this court in the Angara litigation made declarations, nullifying a resolution of the
National Assembly, is not decisive. In proper cases this court may annul any
Legislative enactment that fails to observe the constitutional limitations. That is a
power conceded to the judiciary since Chief Justice Marshall penned Marbury vs.
Madison in 1803. Its foundation is explained by Justice Sutherland in the Minimum
Wage Case (261 U. S., 544).Said the Court:
. . . The Constitution, by its own terms, is the supreme law of the land, emanating
from the people, the repository of ultimate sovereignty under our form of government.
A congressional statute, on the other hand, is the act of an agency of this sovereign
authority, and if it conflicts with the Constitution, must fall; for that which is not
supreme must yield to that which is. To hold it invalid (if it be invalid) is a plain
exercise of the judicial power, — that power vested in courts to enable them to
administer justice according to law. From the authority to ascertain and determine the
law in a given case there necessa ruly results, in case of conflict, the duty to declare
and enforce the rule of the supreme law and reject that of an inferior act of legislation
which, transcending the Constitution, is no effect, and binding on no one. This is not
the exercise of a substantive power to review and nullify acts of Congress, for such
no substantive power exists. It is simply a necessary concomitant of the power to
hear and dispose of a case or controversy properly before the court, to the
determination of which must be brought the test and measure of the law.
And the power is now expressly recognized by our Organic Act. (See sections 2 and
10. Article VIII.)
But we must emphasize, the power is to be exercised in proper cases, with the
appropriate parties.
It must be conceded that the acts of the Chief executive performed within the limits of
his jurisdiction are his official acts and courts will neither direct nor restrain executive
action in such cases. The rule is non-interference. But from this legal premise, it does
not necessarily follow that we are precluded from making an inquiry into the validity or
constitutionality of his acts when these are properly challenged in an appropriate legal
proceeding. . . . In the present case, the President is not a party to the proceeding. He
is neither compelled nor restrained to actin a particular way. . . . This court,
therefore, has jurisdiction over the instant proceedings and will accordingly proceed to
determine the merits of the present controversy." (Planas vs. Gil., 67 Phil., 62, 73, 74,
76.) (Emphasis ours.) (See also Lopez vs. De los Reyes, 55 Phil., 170.)
More about the Angara precedent: The defendant there was only the Electoral
Commission which was "not a separate department of the Government" (Vol. 63,p.
160), and exercised powers "judicial in nature." (Supra, p. 184) Hence, against our
authority, there was no objection based on the independence and separation of the
three co-equal departments of Government. Besides, this court said no more than
that, there being a conflict of jurisdiction between two constitutional bodies, it could
not decline to take cognizance of the controversy to determine the "character, scope
and extent" of their respective constitutional spheres of action. Here, there is actually
no antagonism between the Electoral Tribunal of the Senate and the Senate itself, for
it is not suggested has adopted a rule contradicting the Pendatun Resolution.
Consequently, there is no occasion for our intervention. Such conflict of jurisdiction,
plus the participation of the Senate Electoral Tribunal are essential ingredients to
make the facts of this case fit the mold of the Angara doctrine.
Now, under the principles enunciated in the Alejandrino case, may this petition be
entertained? The answer must naturally be in the negative. Granting that the
postponement of the administration of the oath amounts to suspension of the
petitioners from their office, and conceding arguendo that such suspension is beyond
the power of the respondents, who in effect are and acted as the Philippine Senate
(Alejandrino vs. Quezon, 46 Phil., 83, 88),this petition should be denied. As was
explained in the Alejandrino case, we could not order one branch of the Legislature to
reinstate a member thereof. To do so would be to establish judicial predominance,
and to upset the classic pattern of checks and balances wisely woven into our
institutional setup.
Adherence to established principle should generally be our guiding criterion, if we are
to escape the criticism voiced once by Bryce in American Commonwealth thus:
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 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.)
Needless to add, any order we may issue in this case should, according to the rules,
be enforceable by contempt proceedings. If the respondents should disobey our
order, can we punish them for contempt? If we do, are we not thereby destroying the
independence, and the equal importance to which legislative bodies are entitled
under the Constitution?
Let us not be overly influenced by the plea that for every wrong there is are medy,
and that the judiciary should stand ready to afford relief. There are undoubtedly many
wrongs the judicature may not correct, for instance, those involving political
questions. Numerous decisions are quoted and summarized under this heading in 16
Corpus Juris Secundum, section 145.
Let us likewise disabuse our minds from the notion that the judiciary is the repository
of remedies for all political and social ills. We should not forget that the Constitution
had judiciously allocated the powers of government to three distinct and separate
compartments; and that judicial interpretation has tended to the preservation of the
dependence of the three, and a zealous regard of the prerogatives of each, knowing
full well that one is not the guardian of the others and that, for official wrong-doing,
each may be brought to account, either by impeachment, trial or by the ballot box.
The extreme case has been described wherein a legislative chamber, without any
reason whatsoever, decrees by resolution the incarceration, for years, of a citizen.
And the rhetorical question is confidently formulated. Will this man be denied relief by
the courts?
Of course not: He may successfully apply for habeas corpus, alleging the nullity of the
resolution and claiming for release. But then, the defendant shall be the officer or
person, holding him in custody, and the question therein will be the validity or
invalidity of resolution. That was done in Lopez vs. De los Reyes, supra. (See
also Kilbourn vs. Thompson, 103 U.S. 168; 26 Law. ed., 377, p. 391.) Courts will
interfere, because the question is not a political one, the "liberty of citizen" being
involved (Kilbourn vs. Thompson, supra) and the act will clearly beyond the bounds of
the legislative power, amounting to usurpation of the privileges of the courts, the
usurpation being clear, palpable and oppressive and the infringement of the
Constitution truly real. (See 16 C.J.S., p. 44.)
Nevertheless, suppose for the moment that we have jurisdiction:
B.—PROHIBITION DOES NOT LIE
Petitioners pray for a writ of prohibition. Under the law, prohibition refers only to
proceedings of any tribunal, corporation, board, or person, exercising
functions judicial or ministerial. (Rule 67, section 2, Rules of Court.) As the
respondents do not exercise such kind of functions, theirs being legislative, it is clear
the dispute falls beyond the scope of such special remedy.
C.—SENATE HAS NOT EXCEEDED POWERS
Again let us suppose the question lies within the limits of prohibition and of our
jurisdiction.
Before the organization of the Commonwealth and the promulgation of the
Constitution, each House of the Philippine Legislature exercised the power to defer
oath-taking of any member against whom a protest had been lodged, whenever in its
discretion such suspension was necessary, before the final decision of the contest.
The cases of Senator Fuentebella and Representative Rafols are known instances of
such suspension. The discussions in the constitutional Convention showed that
instead of transferring to the Electoral Commission all the powers of the House or
Senate as "the sole judge of the election, returns, and qualifications of the members
of the National Assembly," it was given only jurisdiction over "all contests" relating to
the election, etc. (Aruego, The Framing of the Philippine Constitution, Vol. I, p. 271.)
The proceedings in the Constitutional Convention on this subject are illuminating:
It became gradually apparent in the course of the debates that the Convention was
evenly divided on the proposition of creating the Electoral Commission with the
membership and powers set forth in the draft. It was growing evident, too, that the
opposition to the Electoral Commission was due to rather inclusive power of that body
to judge not only of cases contesting the election of the members of the National
Assembly, but also of their elections, returns, and qualifications.
Many of the delegates wanted to be definitely informed of the scope of the powers of
the Electoral Commission as defined in the draft before determining their final
decision; for if the draft meant to confer upon the Electoral Commission the inclusive
power to pass upon the elections, returns, and qualifications — contested or not — of
the members of the National Assembly, they were more inclined to vote against the
Electoral Commission. In an attempt to seek this clarification, the following
interpretations took place:
xxx xxx xxx
Delegate Labrador.—Does not the gentleman from Capiz believe that unless this
power is granted to the assembly, the assembly on its own motion does not have the
right to contest the election and qualification of its members?
Delegate Roxas.—I have no doubt that the gentleman is right. If this right is retained,
as it is, even if two-thirds of the assembly believe that a member has not the
qualifications provided by law, they cannot remove him from that reason.
xxx xxx xxx
In the course of the heated debates, with the growing restlessness on the part of the
Convention, President Recto suspended the session in order to find out if it was
possible to arrive at a compromise plan to meet the objection.
When the session was resumed, a compromise plan was submitted in the form of an
amendment presented by Delegates Francisco, Ventura, Lim, Vinzons, Rafols,
Mumar, and others, limiting the power of the Electoral Commission to the judging
of all cases contesting elections, returns, and qualifications of members of the
National Assembly. Explaining the difference between the amendment thus proposed
and the provision of the draft, Delegate Roxas, upon the request of President Recto,
said:
The difference, Mr. President, consists only in obviating the objection pointed out by
various delegates to the effect that the first clause of the draft which states "The
election, returns, and qualifications of members of the National Assembly" seems to
give to the Electoral commission the power to determine also the election of the
members who have not been protested. And in order to obviate that difficulty, we
believe that the amendment is right in that sense . . . that is, if we amend the draft so
that it should read as follows: "All cases contesting the election, etc.", so that the
judges of the Electoral Commission will limit themselves only to cases in which there
has been a protest against the returns.
The limitation to the powers of the Electoral Commission proposed in the compromise
amendment did much to win in favor of the Electoral Commission many of its
opponents; so that when the amendment presented by Delegate Labrador and others
to retain in the Constitution the power of the lawmaking body to be the sole judge of
the elections, returns, and qualifications of its members was put to a nominal vote, it
was defeated by 98 negative votes against 56 affirmative votes.
With the defeat of the Labrador amendment, the provision of the draft creating the
Electoral Commission, as modified by the compromise amendment, was
consequently approved.
"All cases contesting the elections, returns and qualifications of the members of the
National Assembly shall be judged by an electoral commission, composed of three
members elected by the party having the largest number of votes in the National
Assembly, three elected by the members of the party having the second largest
number of votes, and three justices of the Supreme Court designated by the Chief,
the Commission to be presided over by one of said justices."
In the special committee on style, the provision was amended so that the Chairman of
the Commission should be the senior Justice in the Commission, and so that the
Commission was to be the sole judge of the election, returns, and qualifications of the
members of the National Assembly. As it was then amended, the provision read:
"There shall be an Electoral Commission composed of three Justices of the Supreme
court designated by the Chief Justice, and of six Members chosen by the National
Assembly, three of whom shall be nominated by the party having the largest number
of votes, and three by the party having the second largest number of votes therein.
The senior Justice in the Commission shall be its Chairman. The Electoral
Commission shall be the sole judge of the election, returns, and qualifications of the
Members of the National Assembly."
The report of the special committee on style on the power of the Commission was
opposed on the floor of the Convention by Delegate Confesor, who insisted that the
Electoral Commission should limit itself to judging only of all contests relating to the
elections, returns, and qualifications of the members of the National Assembly. The
draft was amended accordingly by the Convention.
As it was finally adopted by the Convention, the provision read:
There shall be an Electoral Commission . . . The Electoral Commission shall be the
sole judge of all contests relating to the election, returns, and qualifications of the
Members of the National Assembly. (Aruego, The Framing of the Philippine
Constitution, Vol. I, pp. 267, 269, 270, 271 and 272.).
Delegate Roxas rightly opined that "if this draft is retained" the Assembly would have
no power over election and qualifications of its members; because all the powers are
by the draft vested in the Commission.
The Convention, however, bent on circumscribing the latter's authority to "contests"
relating to the election, etc. altered the draft. The Convention did not intend to give
it all the functions of the Assembly on the subject of election and qualifications of its
members. The distinction is not without a difference. "As used in constitutional
provisions", election contest "relates only to statutory contests in which the contestant
seeks not only to oust the intruder, but also to have himself inducted into the
office."(Laurel on Elections, Second Edition, p. 250; 20 C.J., 58.)
One concrete example will serve to illustrate the remaining power in either House of
Congress: A man is elected by a congressional district who had previously served ten
years in Bilibid Prison for estafa. As he had no opponent, no protest is filed. And the
Electoral Tribunal has no jurisdiction, because there is no election contest. (20 C.J.,
58, supra.) When informed of the fact, may not the House, motu propio postpone his
induction? May not the House suspend, investigate and thereafter exclude him? 3 It
must be observed that when a member of the House raises a question as to the
qualifications of another, an "election contest" does not thereby ensue, because the
former does not seek to be substituted for the latter.
So that, if not all the powers regarding the election, returns, and qualifications of
members was withdrawn by the Constitution from the Congress; and if, as admitted
by petitioners themselves at the oral argument, the power to defer the oath-taking,
until the contests is adjudged, does not belong to the corresponding Electoral
Tribunal, then it must be held that the House or Senate still retains such authority, for
it has not been transferred to, nor assumed by, the Electoral Tribunal. And this result
flows, whether we believe that such power (to delay induction) stemmed from the
(former) privilege of either House to be judge of the election, returns, and
qualifications of the members thereof, or whether we hold it to be inherent to every
legislative body as a measure of self-preservation.
It is customary that when a number of persons come together to form a legislative
body, ". . . the first organization must be temporary, and if the law does not designate
the person who shall preside over such temporary organization, the persons
assembled and claiming to be members may select one of their number for that
purpose. The next step is to ascertain in some convenient way the names of the
person who are, by reason of holding the proper credentials, prima facie entitled to
seats, and therefore entitled to take part in permanent organization of the body. In the
absence of any statutory or other regulation upon this subject, a committee on
credentials is usually appointed, to whom all credentials to be entitled to seats. . . .
(Laurel on Elections, Second Edition, pp. 356, 357, quoting McCrary on Elections.)
Therefore, independently of constitutional or statutory grant, the Senate has, under
parliamentary practice, the power to inquire into the credentials of any member and
the latter's right to participate in its deliberations. As we have seen, the assignment by
the constitution of the Electoral Tribunal does not actually negative that power —
provided the Senate does not cross the boundary line, deciding an election contest
against the member. Which the respondents at bar never attempted to do. Precisely,
their resolution recognized, and did not impair, the jurisdiction of the Electoral
Tribunal to decide the contest. To test whether the resolution trenched on the territory
of the last named agency let ask the question: May the Electoral Tribunal of the
Senate order that Body to defer the admission of any member whose election has
been contested? Obviously not. Then it must be conceded that the passage of the
disputed resolution meant no invasion of the former's realm.
At this juncture the error will be shown of the contention that the Senate has not this
privilege "as a residuary power". Such contention is premised on the proposition that
the Houses of the Philippine Congress possess only such powers as are expressly or
impliedly granted by the Constitution. And an American decision is quoted on the
powers of the United States Congress. The mistake is due to the failure to
differentiate between the nature of legislative power under the Constitution of the
United States, and legislative power under the State Constitutions and the
Constitution of the Commonwealth (now the Republic). It must be observed that the
Constitution of the United States contains only a grant or delegation of legislative
powers to the Federal Government, whereas, the other Constitutions, like the
Constitution of the Commonwealth (now the Republic), are limits upon the plenary
powers of legislation of the Government. The legislative power of the United States
Congress is confined to the subject on which it is permitted to act by the Federal
constitution. (Dorr vs. United States, 195 U. S., 140; Martin vs. Hunter, 1 Wheat., 326;
McCullock vs. Maryland, 4 Wheat., 405; United States vs. Cruikshank, 92 U.S., 551.)
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 and tradition, is necessarily possessed by the Philippine
Congress, unless the Organic Act has lodged it elsewhere.
Another line of approach. The Senate, as a branch of the legislative department, had
the constitutional power to adopt rules for its proceedings(section 10 [3], Article VI of
the Constitution), and by legislative practice it is conceded the power to promulgate
such orders as may be necessary to maintain its prestige and to preserve its
dignity.4 We are advised by the respondents that, after weighing the propriety or
impropriety of the step, the Senate, in the exercise of its authority and discretion and
of its inherent power of self-preservation, resolved to defer the administration of oath
and the sitting of the petitioners pending determination of the contest. It is not clear
that the measure had no reasonable connection with the ends in view, and neither
does it palpably transcend the powers of the public deliverative body. On the contrary,
there are reasons to believe it was prompted by the dictates of ordinary caution, or of
public policy. For, if, as reported by the corresponding constitutional agency,
concededly well-posted on the matter by reason of its official duties, the elections
held in the Provinces of Pampanga, Bulacan, Tarlac, and Nueva Ecija were so tainted
with acts of violence and intimidation, that the result was not the legitimate expression
of the voters' choice, the Senate made no grievous mistake in foreseeing the
probability that, upon proof of such widespread lawlessness, the Electoral Tribunal
would annull the returns in that region (see Gardiner vs. Romulo, 26 Phil., 521;
Laurel, Elections [2d ed.], p. 488 et seq.), and declare herein petitioners not entitled to
seats in the Senate. Consequently, to avoid the undesirable result flowing from the
participation of disqualified members in its deliberations, it was prudent for it to defer
the sitting of the respondents. True, they may have no direct connection with the acts
of intimidation; yet the votes may be annulled just the same, and if that happens,
petitioners would not among the sixteen senators elected. Nor was it far-fetched for
the Senate to consider that "in order to maintain alive the respect for democratic
institutions among our people, no man or group of men (should) be permitted to profit
from the results of an election held under coercion, in violation of law and contrary to
the principle of freedom of choice which should underlie all elections under the
Constitution." (Exhibit A of petitioners' complaint.)
a. Justices in the Electoral Tribunals
During our deliberations, it was remarked that several justices subscribing the
majority opinion, belong to the electoral tribunals wherein protests connected with the
Central Luzon polls await investigation. Mulling over this, we experience no qualmish
feelings about the coincidence. Their designation to the electoral tribunals deducted
not a whit from their functions as members of this Supreme Court, and did not
disqualify them in this litigation. Nor will their deliverances here at on a given question
operate to prevent them from voting in the electoral forum on identical questions;
because the Constitution, establishing no incompatibility between the two roles,
naturally did not contemplate, nor want, justices opining one way here, and thereafter
holding otherwise, pari materia, in the electoral tribunals, or vice-versa.
Anyhow, these should be no diversity of thought in a democratic country, at least, on
the legal effects of the alleged rampant lawlessness, root and basis of the Pendatun
Resolution.
However, it must be observed and emphasized, herein is no definite pronouncement
that terrorism and violence actually prevailed in the district to such extent that the
result was not the expression of the free will of the electorate. Such issue was not
tendered in these proceedings. It hinges upon proof to be produced by protestants
and protestees at the hearing of the respective contests.
b. Doubt and presumption.
After all is said or written, the most that may be conceded to the industry of
petitioners' counsel is that the Senate power, or lack of power, to approve the
resolution is not entirely clear. We should, therefore, indulge the presumption that
official duty has been performed regularly, (Rule 123, section 69, Rule of Court), and
in the right manner:
It is a general principle to presume that public officers act correctly until the contrary is
shown. United States vs. Weed, 5 Wall., 62.
It will be presumed, unless the contrary be shown, that a public officer acted in
accordance with the law and his instructions. Moral y Gonzales vs. Ross
(Gonzales vs. Ross), 120 U.S., 605; 7 Sup. Ct. Rep., 705.
Officers charged with the performance of a public duty are presumed to perform it
correctly. Quinlan vs. Greene Country, 205 U.S., 410; 27 Sup. Ct. Rep., 505. (United
State Supreme Court Reports Digest, Vol. 5, p. 3188.)
It is presumed that the legislature has acted within its constitutional powers. (See
cases cited at p. 257, 16 C.J.S., note 1.)
And should there be further doubt, by all the maxims of prudence, left alone comity,
we should heed the off-limits sign at the Congressional Hall, and check the impulse to
rush in to set matters aright — firm in the belief that if a political fraud has been
accomplished, as petitioners aver, the sovereign people, ultimately the offended
party, will render the fitting verdict — at the polling precints.
c. Membership in the Constitutional Convention
The theory has been proposed — modesty aside — that the dissenting members of
this Court who were delegates to the Constitutional Convention and were "co-authors
of the Constitution" "are in a better position to interpret" that same Constitution in this
particular litigation.
There is no doubt that their properly recorded utterances during the debates and
proceedings of the Convention deserve weight, like those of any other delegate
therein. Note, however, that the proceedings of the Convention "are less conclusive of
the power construction of the instrument than are legislative proceedings of the
proper construction of a statute; since in the latter case it is the intent of the
legislature we seek, while in the former we are endeavoring to arrive at the intent of
the people through the discussions and deliberations of their representatives.
(Willoughby on the Constitution, Vol. I, pp. 54, 55.)
Their writings (of the delegates) commenting or explaining that instrument, published
shortly thereafter, may, like those of Hamilton, Madison and Jayin The Federalist —
here in the Philippines, the book of Delegate Aruego, supra, and of others — have
persuasive force. (Op. cit., p. 55.)
But their personal opinion on the matter at issue expressed during our deliberations
stand on a different footing: If based on a "fact" known to them, but not duly
established or judicially cognizable, it is immaterial, and their brethren are not
expected to take their word for it, to the prejudice of the party adversely affected, who
had no chance of rebuttal. If on a matter of legal hermeneutics, their conclusions may
not, simply on account of membership in the Convention, be a shade better, in the
eyes of the law. There is the word "deference" to be sure. But deference is a
compliment spontaneously to be paid — never a tribute to be demanded.
And if we should (without intending any disparagement) compare the Constitution's
enactment to a drama on the stage or in actual life, we would realize that intelligent
spectators or readres often know as much, if not more, about the real meanings,
effects or tendency is of the event, or incidents thereof, as some of the actors
themselves, who sometimes become so absorbed in fulfilling their emotional roles
that they fail to watch the other scenes or to meditate on the larger aspects of the
whole performance, or what is worse, become so infatuated with their lines as to
construe the entire story according to their prejudices or frustrations. Perspective and
disinterestedness help certainly a lot in examining actions and occurrences.
Come to think of it, under the theory thus proposed, Marshall and Holmes (names
venerated by those who have devoted a sizable portion of their professionals lives to
analyzing or solving constitutional problems and developments) were not so
authoritative after all in expounding the United States Constitution — because they
were not members of the Federal Convention that framed it!
D.—ALLEGED DUTY OF RESPONDENTS
Quoting section 12 of Commonwealth Act No. 725, counsel for petitioners assert that power, of the power, for the simple reason that every official authority is susceptible of
it was respondents' duty legally inescapable, to permit petitioners to assume office misuse. And everybody knows that when any people will discover the methods to
and take part in the current regular session. The section reads partly: curb it.

The candidates for Member of the House of Representatives and those for Senators Perhaps it is necessary to explain that this decision goes no further than to recognize
who have been proclaimed elected by the respective Board of Canvassers and the the existence of Congressional power. It is settled that the point whether such power
Commission on Elections shall assume office and shall hold regular session for the has been wisely or correctly exercised, is usually beyond the ken of judicial
year nineteen hundred and forty-six on May twenty-five, nineteen hundred and forty- determination.
six. (Section 12, Commonwealth Act. No. 725.)
E.—PARLIAMENTARY PRIVILEGES
We have carefully considered the argument. We opine that, as contended by the
Solicitor-General, this provision is addressed to the individual member of Congress, One final consideration.
imposing on him the obligation to come to Manila, and join his colleagues in regular
session. However, it does not imply that if, for any reason, he is disqualified, the The Constitution provides (Article VI, section 15) that "for any speech or debate" in
House is powerless to postpone his admission. Suppose that after elections a congress, Senators and congressmen "shall not be questioned in any other place."
member is finally convicted of treason. May not the House refuse him outright The Supreme Court of the United States has interpreted this privilege to include the
admission, pending an investigation (by it or the Electoral Tribunal as the case may giving of a vote or the presentation of a resolution.
be) as to his privilege to sit there? Granting the right to admission as the counterpart
. . . It would be a narrow view of the constitutional provision to limit it towards spoken
of the duty to assume office by virtue of said section 12; we must nevertheless allow
in debate. The reason of the rule is as forcible in its application to written reports
that such rights would not be peremptory whenever it contacts other rights of equal or
presented in that body by its committees, to resolutions offered, which, though in
superior force. To illustrate: if the law provided that all children, seven years or more
writing, must be reproduced in speech, and to the act of voting, . . . (Kilbourn vs.
"shall go to school", it can not reasonably be inferred that school authorities are
thompson, 103 U.S., 204; 26 Law. ed., 377, p. 391.)
bound to accept every seven-year boy, even if he refuses to pay fees, or to present
the certificates required by school regulations. In the above case, Kilbourn, for refusing to answer questions put to him by the House
of Representatives of the United States Congress, concerning the business of a real
Furthermore, it would not be erroneous to maintain that any right spelled out of
estate partnership, was imprisoned for contempt by resolution of the house. He sued
section 12 must logically be limited to those candidates whose proclamation is clear,
to recover damages from the sergeant at arms and the congressional members of the
unconditional and unclouded, and that such standard is not met by the petitioners,
committee, who had caused him to be brought before the house, where he was
because in the very document attesting to their election one member of the
adjudged to be in contempt. The Supreme Court of the United States found that the
Commission on Elections demurred to the non-exclusion of the votes in Central
resolution of the House was void for want of jurisdiction in that body, but the
Luzon, calling attention to the reported reign of terror and violence in that region, and
action was dismissed as to the members of the committee upon the strength of the
virtually objecting to the certification of herein petitioners. To be sure, it was the
herein above-mentioned congressional immunity. The court cited with approval the
beclouded condition of petitioner's credential (certificate of canvass) that partly
following excerpts from an earlier decision of the Supreme Court of Massachusetts:
prompted the Senate to enact the precautionary measure herein complained of. And
finding no phrase or sentence in the Constitution expressly or impliedly outlawing the These privileges are thus secured, not with the intention of protecting the members
step taken by that legislative body, we should be, and we are, reluctant to intervene. against prosecutions for their own benefit, but to support the rights of the people, by
enabling their representatives to execute the functions of their office without fear of
Indeed, had the Senate been officially informed that the inclusion of petitioners' name
prosecutions, civil or criminal. I, therefore, think that the article ought not to be
in the Commission's certificate had been made at the point of a gangster's automatic,
construed strictly, but liberally, that the full design of it may be answered. . . (103
none will deny the appositeness of the postponement of their induction, pending an
U.S., 203.) (Emphasis ours.)
inquiry by the corresponding authorities. Yet the difference between such situation
and the instant litigation is one of degree, broad and wide perhaps, but not altering Commenting on this Congressional privilege, Willoughby relates apparently as
the dominant legal principle. controlling, the following incident:
In answer to the suggestions as to abuse of the power it should be stated that the
mere possibility of abuse is no conclusive argument against the existence of the
In 1910, several Members of Congress having been served with a writ
of mandamus in a civil action brought against them as members of the Joint
Committee on Printing and growing out a refusal of a bid of the Valley Paper
Company, for the furnishing of paper, the Senate resolved that the Justice issuing the
writ had "unlawfully invaded the constitutional privileges and prerogatives of the
Senate of the United States and of three Senators; and was without jurisdiction to
grant the rule, and Senators are directed to make no appearance in response
thereto." (Willoughby on the Constitution of the United States, Vol. I, Second Edition,
p. 616.)

Respondents are, by this proceeding, called to account for their votes in approving
the Pendatum Resolution. Having sworn to uphold the Constitution, we must enforce
the constitutional directive. We must not question, nor permit respondents to be
questioned here in connection with their votes. (Kilbourn vs. Thompson, supra.)

Case dismissed. No costs.

Moran, C J., Paras, Pablo, and Padilla, JJ., concur.

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-6749 July 30, 1955
JEAN L. ARNAULT, petitioner-appellee,
vs.
EUSTAQUIO BALAGTAS, as Director of Prisons, respondent-appellant.
Office of the Solicitor General Ambrosio Padilla, Assistant Solicitor General Guillermo
E. Torres and Solicitor Jaime De Los Angeles for appellant.
Estanislao A. Fernandez and Roman B. Antonio for appellee.
LABRADOR, J.:
This an appeal from judgment of the Court of First Instance of Rizal, Pasay City
Branch, Honorable Jose F. Flores presiding, in habeas corpus proceeding, declaring
that the continued detention and confinement of Jean L. Arnault in the new Bilibid
Prison, in pursuance of Senate Resolution No. 114, dated November 8, 1952, is
illegal, for the reason that the Senate of the Philippines committed a clear abuse of
discretion in considering his answer naming one Jess D. Santos as the person to
whom delivery of the sum of P440,000 was made in the sale of the Buenavista and
Tambobong Estate, as a refusal to answer the question directed by the Senate
committee to him, and on the further ground that said Jean L. Arnault, by his answer
has purged himself of contempt and is consequently entitled to be released and
discharged.
Petitioner-appellee was an attorney in-fact or Ernest H. Burt in the negotiations for the
purchase of the Buenavista and Tambobong Estates by the Government of the
Philippines. The purchase was effected on October 21, 1949 and the price paid for
both estates was P5,000,000. On February 27, 1950, the Senate of the Philippines
adopted Resolution No. 8, whereby it created a Special Committee to determine
"whether the said purchase was honest, valid and proper, and whether the price
involved in the deal was fair and just, the parties responsible therefor, any other facts
the Committee may deem proper in the premises." In the investigation conducted by
the Committee in pursuance of said Resolution, petitioner-appellee was asked to
whom a part of the purchase price, or P440,000, was delivered. Petitioner-appellee
refused to answer this question, whereupon the Committee resolved on May 15,
1950, to order his commitment to the custody of the Sergeant at-arms of the
Philippines Senate and imprisoned in the new Bilibid Prison in Rizal until such time
when he shall reveal to the Senate or to the Special Committee the name of the
person who received the P440,000 and to answer questions pertinent thereto. In G.R.
No. L-3820, petitioner-appellee herein questioned the validity of the confinement so
ordered, by a petition for certiorari filed in this Court. He contended that the Senate of
the Philippines has no power to punish him for contempt for refusing to reveal the
name of the person to whom he delivered P440,000., that the Legislature lacks
authority to punish him for contempt beyond the term of the legislative session, and
that the question of the Senate which he refused to answer is an incriminating
question which the appellee is not bound to answer. All the abovementioned
contentions were adversely passed upon by the decision of this Court, so his petition
for release was denied.
In the month of December, 1951, while still in confinement in Bilibid, petitioner-
appellee executed an affidavit, Exhibit A, wherein he gives in detail the history of his
life, the events surrounding acquisition of the Buenavista and Tambobong Estates by
Gen. Burt, the supposed circumstances under which he met one by the name of Jess
D. Santos. Upon the presentation of the said affidavit to the said Senate Special
Committee, the latter subjected petitioner to questioning regarding the identity of Jess
D. Santos, and after said investigation and questioning the Committee adopted
Resolution No. 114 on November 8, 1952. This Resolution reads as follows:
RESOLUTION APPROVING THE REPORT OF THE SPECIAL COMMITTEE TO
INVESTIGATE THE BUENAVISTA AND TAMBOBONG ESTATES DEAL, AND
ORDERING THE DIRECTOR OF PRISON TO CONTINUE HOLDING JEAN L.
ARNAULT IN HIS CUSTODY, AND IN CONFINEMENT AND DETENTION AT THE
NEW BILIBID PRISON AT MUNTINLUPA, RIZAL, UNTIL THE SAID ARNAULT
SHALL HAVE PURGED HIMSELF OF CONTEMPT OF THE SENATE.
WHEREAS, on the 15th May 1950 the Senate of the Philippines, transcending
divisions of party and faction in the national interest, adopted a Resolution ordering
the detention and confinement of Jean L. Arnault at the New Bilibid Prison in
Muntinlupa, Rizal, until he should have purged himself of contempt of the Senate by
revealing the person to whom he gave the sum of P440,000 in connection with the
Buenavista and Tambobong Estates deal, and by answering other pertinent questions
in connection therewith;
WHEREAS, after considering the lengthy testimony offered by the said Jean L.
Arnault, and the report thereon rendered by the Senate Special Committee on the
said deal, the Senate holds and finds that, despite numerous and generous
opportunities offered to him at his own instance and solicitation, the said Jean L.
Arnault has failed and refused, and continues to fail and refuse, to reveal the person
to whom he gave the said amount of P440,000, and to answer other pertinent
questions in connection with the Buenavista and Tambobong estates deal;
WHEREAS, the Senate holds and finds that the situation of the said Jean L. Arnault
has not materially changed since he was committed to prison for contempt of the
Senate, and since the Supreme Court of the Philippines, in a judgment long since
become final, upheld the power and authority of the Senate to hold the said Jean L.
Arnault in custody, detention, and confinement, said power and authority having been
held to be coercive rather than punitive, and fully justified until the said Jean L.
Arnault should have given the information which he had withheld and continues
contumaciously to withhold;
WHEREAS, the insolent and manifest untruthful statements made by the said Jean L.
Arnault on the occasions above referred to constitute a continuing contempt of the
Senate, and an added affront to its dignity and authority, such that , were they to be
condoned or overlooked, the power and authority of the Senate to conduct
investigations would become futile and ineffectual because they could be defied by
any person of sufficient stubbornness and malice;
WHEREAS, the Senate holds and finds that the identity of the person to whom the
said Jean L. Arnault gave the amount of P440,000 in connection with the Buenavista
and Tambobong estates deal, and the further information which the Senate requires
and which the said Jean L. Arnault arrogantly and contumaciously withholds, is
required for the discharge of its legislative functions, particularly so that adequate
measures can be taken to prevent the repetition of similar frauds upon the
Government and the People of the Philippines and to recover said amount; and
WHEREAS, while not insensible to the appeal of understanding and mercy, the
Senate holds and finds that the said Jean L. Arnault, by his insolent and
contumacious defiance of the legitimate authority of the Senate, is trifling with its
proceedings, renders himself unworthy of mercy, and, in the language of the
Supreme Court, is his own jailer, because he could open the doors of his prison at
any time by revealing the truth; now therefore, be it
Resolved by the Senate of the Philippines, That the Senate hold and find, as it hereby
holds and finds, that Juan L. Arnault has not purged himself of contempt of the
Senate, and has in no way altered his situation since he has committed to coercive
not punitive, imprisonment for such contempt on the 15th day of May, 1950; and that
Senate order, as it hereby orders, the Director of Prisons to hold the said Jean L.
Arnault, in his custody, and in confinement and detention at the New Bilibid Prison in
Muntinlupa, Rizal, in coercive imprisonment, until he should have purged himself of
the aforesaid contempt to the satisfaction, and until order to that effect, of the Senate
of the Philippines or of its Special Committee to investigate the Buenavista and
Tambobong Estates deal.
Adopted, November 8, 1952 . (Exhibit 0)
In his petition for the writ of habeas corpus in the Court of First Instance, petitioner-
appellee alleges: (1) That the acquisition by the Government, through the Rural
Progress Administration, of the Buenavista and Tambobong Estates was not illegal
nor irregular nor scandalous nor malodorous, but was in fact beneficial to the
Government; (2) that the decision of this Court in G. R. No. L-3820 declared that the
Senate did not imprison Arnault "beyond proper limitations", i.e., beyond the period
longer than arresto mayor, as this is the maximum penalty that can be imposed under
the provisions of Article 150 of the Revised Penal Code; (3) that petitioner-appellee
purged himself of the contempt charges when he disclosed the fact that the one to
whom he gave the P440,000 was Jess D. Santos, and submitted evidence in
corroboration thereof; (4) that the Senate is not justified in finding that the petitioner-
appellee did tell the truth when he mentioned Jess D. Santos as the person to whom
he gave the P440,000, specially on the basis of the evidence submitted to it; (5) that
the legislative purpose or intention, for which the Senate ordered the confinement
may be considered as having been accomplished, and, therefore, there is no reason
for petitioner-appellee's continued confinement.
The claim that the purchase of the Buenavista and Tambobong Estates is beneficial
to the government and is neither illegal nor irregular is beside the point. To our minds,
two questions are decisive of this case. The first is: Did the Senate Special
Committee believe the statement of the petitioner-appellee that the person to whom
he gave the P440,000 is one by the name of Jess D. Santos and if it did not, may the
court review said finding? And the second is: If the Senate did not believe the
statement, is the continued confinement and detention of the petitioner-appellee, as
ordered in Senate Resolution of November 8, 1952, valid?
On the first question, the Senate found as a fact that petitioner "has failed and
refused, and continues to fail and refuse, to reveal the person to whom he gave the
amount of P440,000" and that the situation of petitioner "has not materially charged
since he was committed to prison." In the first resolution of the Senate Special
Committee of May 15, 1950, it found that petitioner "refused to reveal the name of the
persons to whom he gave the P440,000, as well as to answer other pertinent
questions related to said amount." It is clear and evident that the Senate Committee
did not believe petitioner's statement that the person to whom he delivered the
abovementioned amount is one by the name of Jess D. Santos. The court a
quo, however, arrogating unto itself the power to review such finding, held that the
"petitioner has satisfactorily shown that the person of Jess D. Santos actually and
physically existed in the human flesh," that the opinion or conclusion of the Senate
Committee is not borne to out by the evidence produced at the investigation, that the
Senate abused its discretion in making its conclusion and that under these
circumstances the only thing that could in justice be done to petitioner is to order his
release and have his case endorsed to the prosecution branch of the judicial
department for investigation and prosecution as the circumstances warrant.
There is an inherent fundamental error in the course of action that the lower court
followed. It assumed that courts have the right to review the findings of legislative
bodies in the exercise of the prerogative of legislation, or interfere with their
proceedings or their discretion in what is known as the legislative process.
The courts avoid encroachment upon the legislature in its exercise of departmental
discretion in the means used to accomplish legitimate legislative ends. Since the
legislature is given a large discretion in reference to the means it may employ to
promote the general welfare, and alone may judge what means are necessary and
appropriate to accomplish an end which the Constitution makes legitimate, the courts
cannot undertake to decide whether the means adopted by the legislature are the
only means or even the best means possible to attain the end sought, for such course
would best the exercise of the police power of the state in the judicial department. It
has been said that the methods, regulations, and restrictions to be imposed to attain
results consistent with the public welfare are purely of legislative cognizance, and the
determination of the legislature is final, except when so arbitrary as to be violative of
the constitutional rights of the citizen. Furthermore, in the absence of a clear violation
of a constitutional inhibition, the courts should assume that legislative discretion has
been properly exercised. (11 Am. Jur., pp. 901-902).
These the judicial department of the government has no right or power or authority to
do, much in the same manner that the legislative department may not invade the
judicial realm in the ascertainment of truth and in the application and interpretation of
the law, in what is known as the judicial process, because that would be in direct
conflict with the fundamental principle of separation of powers established by the
Constitution. The only instances when judicial intervention may lawfully be invoke are
when there has been a violation of a constitutional inhibition, or when there has been
an arbitrary exercise of the legislative discretion.
Under our constitutional system, the powers of government are distributed among
three coordinate and substantially independent organs: the legislative, the executive
and the judicial. Each of these departments of the government derives its authority
from the Constitution which, in turn, is the highest expression of the popular will. Each
has exclusive cognizance of the matters within its jurisdiction, and is supreme within
its own sphere. (People of the Philippine Islands, et al. vs. Vera, et al 65 Phil., 56;
See also Angara vs. Electoral Commission, 63 Phil., 139)
All that the courts may do, in relation to the proceedings taken against petitioner prior
to his incarceration, is to determine if the constitutional guarantee of due process has
been accorded him before his incarceration by legislative order, and this because of
the mandate of the Supreme Law of the land that no man shall be deprived life, liberty
or property without due process of law. In the case at bar such right has fully been
extended the petitioner, he having been given the opportunity to be heard personally
and by counsel in all the proceedings prior to the approval of the Resolution ordering
his continued confinement.
The second question involves in turn the following propositions: Does the Philippine
Senate have the power and authority to pass its resolution ordering the continued
confinement of the petitioner? In the supposition that such power and authority exist,
was such power legitimately exercised after the petitioner had given the name Jess
D. Santos? A study of the text of the resolution readily shows that the Senate found
that the petitioner-appellee did not disclose, by the mere giving of the name Jess D.
Santos, the identity of the person to whom the sum of P440, 000 was delivered, and,
in addition thereto that petitioner withheld said identity arrogantly and contumaciously
in continued affront of the Senate's authority and dignity. Although the resolution
studiously avoids saying that the confinement is a punishment, but merely seeks to
coerce the petitioner into telling the truth, the intention is evident that the continuation
of the imprisonment ordered is in fact partly unitive. This may be inferred from the
confining made in the resolution that petitioner-appellee's acts were arrogant and
contumacious and constituted an affront to the Senate's dignity and authority. In a
way, therefore, the petitioner's assumption that the imprisonment is punitive is
justified by the language of the resolution, wherefore the issue now before Us in
whether the Senate has the power to punish the contempt committed against it under
the circumstances of the case. This question is thus squarely presented before Us for
determination.
In the previous case of this same petitioner decided by this Court, G. R. No. L-38201,
Arnault vs. Nazareno, et al. (46 Off. Gaz., No. 7, 3100), it was admitted and we had
ruled that the Senate has the authority to commit a witness if he refuses to answer a
question pertinent to a legislative inquiry, to compel him to give the information, i.e.,
by reason of its coercive power, not its punitive power. It is now contended by
petitioner that if he committed an offense of contempt or perjury against the legislative
body, because he refused to reveal the identity of the person in accordance with the
demands of the Senate Committee, the legislature may not punish him, for the
punishment for his refusal should be sought through the ordinary processes of the
law, i. e., by the institution of a criminal action in a court of justice.
American legislative bodies, after which our own is patterned, have the power to
punish for contempt if the contempt has had the effect of obstructing the exercise by
the legislature of, or deterring or preventing it from exercising, its legitimate functions
(Annotation to Jurney vs. MacCraken, 79 L. ed. 814). While the power of the United
States Senate to punish for contempt was not clearly recognized in its earlier decision
(See Marshal vs. Gordon, 61 L. ed. 881), the Supreme Court of the United States two
decades ago held that such power and authority exist. In the case of Jurney vs.
MacCraken (294 U. S. 123, 79 L. ed. 802), the question before it was whether or not
the Senate could order the confinement of a private citizen because of the destruction
and removal by him of certain papers required to be produced. The court said:
First, The main contention of MacCracken is that the so-called power to punish for
contempt may never be exerted, in the case of a private citizen,
solely qua punishment. The argument is that the power may be used by the
legislative body merely as a means of removing an existing obstruction to the
performance of its duties; that the power to punish ceases as soon as the obstruction
has been removed, or its removal has become impossible; and hence that there is no
power to punish a witness who, having been requested to produce papers, destroys
them after service of the subpoena. The contention rests upon a misconception of the
limitations upon the power of the Houses of Congress to punish for contempt. It is
true that the scope of the power is narrow. No act is so punishable unless it is of a
nature to obstruct the performance of the duties of the legislature. This may be lack of
power, because, as in Kilbourn vs. Thompson, 103 U. S. 168, 26 L. ed. 377, there
was no legislative duty to be performed; or because, as in Marshall vs. Gordon, 243
U. S. 521, 61 L. ed. 881, 37 S. Ct. 448, L. R. A. 1917F, 279, Ann. Cas. 1918B, 371,
the act complained of is deemed not to be of a character to obstruct the legislative
process. But, where the offending act was of a nature to obstruct the legislative
process, the fact that the obstruction has since been removed, or that its removal has
become impossible is without legal significance.
The power to punish a private citizen for a past and completed act was exerted by
Congress as early as 1795; and since then it has been exercised on several
occasions. It was asserted, before the Revolution, by the colonial assemblies, in
intimation of the British House of Commons; and afterwards by the Continental
Congress and by state legislative bodies. In Anderson vs. Dunn, 6 Wheat, 204, 5 L.
ed. 242, decided in 1821, it was held that the House had power to punish a private
citizen for an attempt to bribe a member. No case has been found in which an
exertion of the power to punish for contempt has been successfully challenged on the
ground that, before punishment, the offending act had been consummated or that the
obstruction suffered was irremediable. The statement in the opinion in
Marshall vs. Gordon, 243 U. S. 521, 61 L. ed. 881, 37 S. Ct. 448, L. R. A. 1917F. 279
Ann. Cas. 1918B, 371, supra, upon which MacCracken relies, must be read in the
light of the particular facts. It was there recognized that the only jurisdictional test to
be applied by the court is the character of the offense; and that the continuance of the
obstruction, or the likelihood of its repetition, are considerations for the discretion of
the legislators in meting out the punishment.
Here, we are concerned not with an extention of congressional privilege, but with
vindication of the established and essential privilege of requiring the production of
evidence. For this purpose, the power to punish for a past contempt is an appropriate
means. Compare Ex parte Nugent (C. C.) 1 Brunner, Col. Cas. 296, Fed. Cas No.
10375; Steward vs. Bleine, 1 MacArth. 453. The apprehensions expressed from time
to time in congressional debates, in opposition to particular exercise of the contempt
power concerned, not the power to punish, as such, but the broad, undefined
privileges which it was believed might find sanction in that power. The ground for
such fears has since been effectively removed by the decisions of this Court which
hold that assertions of congressional privilege are subject to judicial review.
Melbourn vs. Thompson, 103 U. S. 168, 26 L. ed. 377, supra; and that the power to
punish for contempt may not be extended to slanderous attacks which presents no
immediate obstruction to legislative processes. Marshall vs. Gordon, 243 U. S. 521,
61 L. ed. 881, 37 S. Ct. 448, L.R. A. 1917F, Ann. Cas. 1918B, 731 supra.
The principle that Congress or any of its bodies has the power to punish recalcitrant
witnesses is founded upon reason and policy. Said power must be considered implied
or incidental to the exercise of legislative power, or necessary to effectuate said
power. How could a legislative body obtain the knowledge and information on which
to base intended legislation if it cannot require and compel the disclosure of such
knowledge and information, if it is impotent to punish a defiance of its power and
authority? When the framers of the Constitution adopted the principle of separation of
powers, making each branch supreme within the realm of its respective authority, it
must have intended each department's authority to be full and complete,
independently of the other's authority and power. And how could the authority and
power become complete if for every act of refusal, every act of defiance, every act of
contumacy against it, the legislative body must resort to the judicial department for
the appropriate remedy, because it is impotent by itself to punish or deal therewith,
with the affronts committed against its authority or dignity. The process by which a
contumacious witness is dealt with by the legislature in order to enable it to exercise
its legislative power or authority must be distinguished from the judicial process by
which offenders are brought to the courts of justice for the meting of the punishment
which the criminal law imposes upon them. The former falls exclusively within the
legislative authority, the latter within the domain of the courts; because the former is a
necessary concommitant of the legislative power or process, while the latter has to do
with the enforcement and application of the criminal law.
We must also and that provided the contempt is related to the exercise of the
legislative power and is committed in the course of the legislative process, the
legislature's authority to deal with the defiant and contumacious witness should be
supreme, and unless there is a manifest and absolute disregard of discretion and a
mere exertion of arbitrary power coming within the reach of constitutional limitations,
the exercise of the authority is not subject to judicial interference. (Marshall vs.
Gordon, supra).
The next question concerns the claim that the petitioner has purged himself of
contempt, because he says he has already answered the original question which he
had previously been required to answer. In order that the petitioner may be
considered as having purged himself of the contempt, it is necessary that he should
have testified truthfully, disclosing the real identity of the person subject of the inquiry.
No person guilty of contempt may purge himself by another lie or falsehood; this
would be repetition of the offense. It is true that he gave a name, Jess D. Santos, as
that of the person to whom delivery of the sum of P440,000 was made. The Senate
Committee refused to believe, and justly, that is the real name of the person whose
identity is being the subject of the inquiry. The Senate, therefore, held that the act of
the petitioner continued the original contempt, or reiterated it. Furthermore, the act
further interpreted as an affront to its dignity. It may well be taken as insult to the
intelligence of the honorable members of the body that conducted the investigation.
The act of defiance and contempt could not have been clearer and more evident.
Certainly, the Senate resolution declaring the petitioner in contempt may not be
claimed as an exertion of an arbitrary power.
One last contention of petitioner remains to be considered. It is the claim that as the
period of imprisonment has lasted for a period which exceeded that provided by law
punishment for contempt, i. e., 6 months of arresto mayor, the petitioner is now
entitled to be released. This claim is not justified by the record. Petitioner was
originally confined by Resolution No. 17 on May 15, 1950. On December 13, 1951, he
executed his affidavit and thereafter he was called to testify again before the Senate
Committee. The latter passed its Resolution No. 114 on November 6, 1952, and he
presented the petition for habeas corpus in this case on March 3, 1953, i. e., five
months after the last resolution when the Senate found that the petitioner committed
another contempt. It is not true, therefore, that the petitioner's punishment is beyond
the full period prescribed in the criminal law.

Besides, the last resolution of November 8, 1952 is also of a coersive nature, in the
sense that the Senate Committee still demands and requires the disclosure of the fact
which the petitioner had obstinately refused to divulge. While the Philippine Senate
has not given up hope that the petitioner may ultimately disclose the record, it is
improper for the courts to declare that the continued confinement is an abuse of the
legislative power and thereby interfere in the exercise of the legislative discretion.

The judgment appealed from should be, as it hereby is, reversed, and the petition for
the issuance of the writ ofhabeas corpus denied. The order of the court allowing the
petitioner to give bail is declared null and void and the petitioner is hereby ordered to
be recommitted to the custody of the respondent. With cost against the petitioner-
appellee.

Bengzon, Acting C. J., Padilla, and Reyes, A., JJ., concur.

Bautista Angelo, Concepcion, and Reyes, J. B. L., JJ., concur in the result.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-2821 March 4, 1949
JOSE AVELINO, petitioner,
vs.
MARIANO J. CUENCO, respondent.
Vicente J. Francisco for petitioner.
Office of the Solicitor General Felix Angelo Bautista, Ramon Diokno and Lorenzo M.
Tañada for respondent.
Teehankee, Fernando, Sunico & Rodrigo; Vera, Montesines & Navarro; Felixberto M.
Serrano and Vicente del Rosario as amici curiae.
RESOLUTION
In G.R. No. L-2821, Avelino vs. Cuenco, the Court by a vote of six justices against
four resolved to deny the petition.
Without prejudice to the promulgation of a more extended opinion, this is now written
briefly to explain the principal grounds for the denial.
The Court believes the following essential facts have been established:
In the session of the Senate of February 18, 1949, Senator Lorenzo M. Tañadare
quested that his right to speak on the next session day, February 21, 1949, to
formulate charges against the then Senate President Jose Avelino be reserved. His
request was approved.
On February 21, 1949, hours before the opening of the session Senator Tañada and
Senator Tañada and Senator Prospero Sanidad filed with the Secretary of the Senate
a resolution enumerating charges against the then Senate President and ordering the
investigation thereof.
Although a sufficient number of senators to constitute a quorum were at the Senate
session hall at the appointed time (10:00 A.M.), and the petitioner was already in his
office, said petitioner delayed his appearance at the session hall until about 11:35
A.M. When he finally ascended the rostrum, he did not immediately open the session,
but instead requested from the Secretary a copy of the resolution submitted by
Senators Tañada and Sanidad and in the presence of the public he read slowly and
carefully said resolution, after which he called and conferred with his colleagues
Senator Francisco and Tirona.
Shortly before 12:00 noon, due to the session be opened, the petitioner finally called
the meeting to order. Except Senator Sotto who was confined in a hospital and
Senator Confesor who is in the United States, all the Senator were present.
Senator Sanidad, following a long established practice, moved that the roll call be
dispensed with, but Senator Tirona opposed said motion, obviously in pursuance of a
premeditated plan of petitioner and his partisans to make use of dilatory tactics to
prevent Senator Tañada from delivering his privilege speech. The roll was called.
Senator Sanidad next moved, as is the usual practice, to dispense with the reading of
the minutes, but this motion was likewise opposed by Senator Tirona and David,
evidently, again, in pursuance of the above-mentioned conspiracy.
Before and after the roll call and before and after the reading of the minutes, Senator
Tañada repeatedly stood up to claim his right to deliver his one-hour privilege speech
but the petitioner, then presiding, continuosly ignored him; and when after the reading
of the minutes, Senator Tañada instead on being recognized by the Chair, the
petitioner announced that he would order the arrest of any senator who would speak
without being previously recognized by him, but all the while, tolerating the actions of
his follower, Senator Tirona, who was continuously shouting at Senator Sanidad "Out
of order!" everytime the latter would ask for recognition of Senator Tañada.
At this juncture, some disorderly conduct broke out in the Senate gallery, as if by pre-
arrangement. At about this same time Senator Pablo Angeles David, one of the
petitioner's followers, was recognized by petitioner, and he moved for adjournment of
session, evidently, again, in pursuance of the above-mentioned conspiracy to muzzle
Senator Tañada.
Senator Sanidad registered his opposition to the adjournment of the session and this
opposition was seconded by herein respondent who moved that the motion of
adjournment be submitted to a vote. Another commotion ensued.
Senator David reiterated his motion for adjournment and herein respondent also
reiterated his opposition to the adjournment and again moved that the motion of
Senator David be submitted to a vote.
Suddenly, the petitioner banged the gavel and abandoning the Chair hurriedly walked
out of the session hall followed by Senator David, Tirona, Francisco, Torres,
Magalona and Clarin, while the rest of the senators remained. Whereupon Senator
Melencio 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
appointedActing Secretary, because the Assistance Secretary, who was then acting
as Secretary, had followed the petitioner when the latter abandoned the session.
Senator Tañada, after being recognized by the Chair, was then finally able to deliver
his privilege speech. Thereafter Senator Sanidad read aloud the complete text of said
Resolution (No. 68), and submitted his motion for approval thereof and the same was
unanimously approved.
With Senate President Pro-tempore Arranz again occupying the Chair, after the
respondent had yielded it to him, Senator Sanidad introduced Resolution No. 67,
entitled "Resolution declaring vacant the position of the President of the Senate and
designated the Honorable Mariano Jesus Cuenco Acting President of the Senate."
Put to a vote, the said resolution was unanimously approved.
Senator Cuenco took the oath.
The next day the President of the Philippines recognized the respondent as acting
president of the Philippines Senate.
By his petition in this quo warranto proceeding petitioners asked the Court to declare
him the rightful President of the Philippines senate and oust respondent.
The Court has examined all principal angles of the controversy and believes that
these are the crucial points:
a. Does the Court have jurisdiction over the subject-matter?
b. If it is has, were resolution 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 alleged affected without any immediate remedy. A fortiori we should
abstain in this case because the selection of the presiding officer affect only the
Senators themselves who are at liberty at any time to choose their officers, change or
reinstate them. Anyway, if, as the petition must imply to be acceptable, the majority of
the Senators want petitioner to preside, his remedy lies in the Senate Session Hall —
not in the Supreme Court.
The Court will not sally into the legitimate domain of the Senate on the plea that our
refusal to intercede might lead into a crisis, even a resolution. No state of things has
been proved that might change the temper of the Filipino people as a peaceful and
law-abiding citizens. And we should not allow ourselves to be stampeded into a rash
action inconsistent with the calm that should characterized judicial deliberations.
The precedent of Werts vs. Roger does not apply, because among other reasons, the
situation is not where two sets of senators have constituted themselves into two
senates actually functioning as such, (as in said Werts case), there being no question
that there is presently one Philippines Senate only. To their credit be it recorded that
petitioner and his partisans have not erected themselves into another Senate. The
petitioner's claim is merely that respondent has not been duly elected in his place in
the same one Philippines Senate.
It is furthermore believed that the recognition accorded by the Chief Executive to the
respondent makes it advisable, more than ever, to adopt the hands-off policy wisely
enunciated by this Court in matters of similar nature.
The second question depends upon these sub-questions. (1) Was the session of the
so-called rump Senate a continuation of the session validly assembled with twenty
two Senators in the morning of February 21, 1949?; (2) Was there a quorum in that
session? Mr. Justice Montemayor and Mr. Justice Reyes deem it useless, for the
present to pass on these questions once it is held, as they do, that the Court has no
jurisdiction over the case. What follows is the opinion of the other four on those four
on those sub-questions.
Supposing that the Court has jurisdiction, there is unanimity in the view that the
session under Senator Arranz was a continuation of the morning session and that a
minority of ten senators may not, by leaving the Hall, prevent the other twelve
senators from passing a resolution that met with their unanimous endorsement. The
answer might be different had the resolution been approved only by ten or less.
If the rump session was not a continuation of the morning session, was it validly
constituted? In other words, was there the majority required by the Constitution for the
transaction of the business of the Senate? Justice Paras, Feria, Pablo and Bengzon
say there was, firstly because the minute say so, secondly, because at the beginning
of such session there were at least fourteen senators including Senators Pendatun
and Lopez, and thirdly because in view of the absence from the country of Senator
Tomas Confesor twelve senators constitute a majority of the Senate of twelve three
senators. When the Constitution declares that a majority of "each House" shall
constitute a quorum, "the House: does not mean "all" the members. Even a majority
of all the members constitute "the House". (Missouri Pac. vs. Kansas, 63 Law ed. [U.
S.], p. 239). There is a difference between a majority of "the House", the latter
requiring less number than the first. Therefore an absolute majority (12) of all the
members of the Senate less one (23), constitutes constitutional majority of the Senate
for the purpose of a quorum. Mr. Justice Pablo believes furthermore than even if the
twelve did not constitute a quorum, they could have ordered the arrest of one, at
least, of the absent members; if one had been so arrested, there would be no doubt
Quorum then, and Senator Cuenco would have been elected just the same inasmuch
as there would be eleven for Cuenco, one against and one abstained.

In fine, all the four justice agree that the Court being confronted with the practical
situation that of the twenty three senators who may participate in the Senate
deliberations in the days immediately after this decision, twelve senators will support
Senator Cuenco and, at most, eleven will side with Senator Avelino, it would be most
injudicious to declare the latter as the rightful President of the Senate, that office
being essentially one that depends exclusively upon the will of the majority of the
senators, the rule of the Senate about tenure of the President of that body being
amenable at any time by that majority. And at any session hereafter held with thirteen
or more senators, in order to avoid all controversy arising from the divergence of
opinion here about quorum and for the benefit of all concerned,the said twelve
senators who approved the resolutions herein involved could ratify all their acts and
thereby place them beyond the shadow of a doubt.

As already stated, the six justices hereinabove mentioned voted to dismiss the
petition. Without costs.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 88211 October 27, 1989
FERDINAND E. MARCOS, IMELDA R. MARCOS, FERDINAND R. MARCOS. JR.,
IRENE M. ARANETA, IMEE M. MANOTOC, TOMAS MANOTOC, GREGORIO
ARANETA, PACIFICO E. MARCOS, NICANOR YÑIGUEZ and PHILIPPINE
CONSTITUTION ASSOCIATION (PHILCONSA), represented by its President,
CONRADO F. ESTRELLA, petitioners,
vs.
HONORABLE RAUL MANGLAPUS, CATALINO MACARAIG, SEDFREY
ORDOÑEZ, MIRIAM DEFENSOR SANTIAGO, FIDEL RAMOS, RENATO DE VILLA,
in their capacity as Secretary of Foreign Affairs, Executive Secretary, Secretary
of Justice, Immigration Commissioner, Secretary of National Defense and Chief
of Staff, respectively, respondents.
RESOLUTION
EN BANC:
In its decision dated September 15,1989, the Court, by a vote of eight (8) to seven
(7), dismissed the petition, after finding that the President did not act arbitrarily or with
grave abuse of discretion in determining that the return of former President Marcos
and his family at the present time and under present circumstances pose a threat to
national interest and welfare and in prohibiting their return to the Philippines. On
September 28, 1989, former President Marcos died in Honolulu, Hawaii. In a
statement, President Aquino said:
In the interest of the safety of those who will take the death of Mr. Marcos in widely
and passionately conflicting ways, and for the tranquility of the state and order of
society, the remains of Ferdinand E. Marcos will not be allowed to be brought to our
country until such time as the government, be it under this administration or the
succeeding one, shall otherwise decide. [Motion for Reconsideration, p. 1; Rollo, p,
443.]
On October 2, 1989, a Motion for Reconsideration was filed by petitioners, raising the
following major arguments:
1. to bar former President Marcos and his family from returning to the Philippines is to
deny them not only the inherent right of citizens to return to their country of birth but
also the protection of the Constitution and all of the rights guaranteed to Filipinos
under the Constitution;
2. the President has no power to bar a Filipino from his own country; if she has, she
had exercised it arbitrarily; and
3. there is no basis for barring the return of the family of former President Marcos.
Thus, petitioners prayed that the Court reconsider its decision, order respondents to
issue the necessary travel documents to enable Mrs. Imelda R. Marcos, Ferdinand R.
Marcos, Jr., Irene M. Araneta, Imee M. Manotoc, Tommy Manotoc and Gregorio
Araneta to return to the Philippines, and enjoin respondents from implementing
President Aquino's decision to bar the return of the remains of Mr. Marcos, and the
other petitioners, to the Philippines.
Commenting on the motion for reconsideration, the Solicitor General argued that the
motion for reconsideration is moot and academic as to the deceased Mr. Marcos.
Moreover, he asserts that "the 'formal' rights being invoked by the Marcoses under
the label 'right to return', including the label 'return of Marcos' remains, is in reality or
substance a 'right' to destabilize the country, a 'right' to hide the Marcoses' incessant
shadowy orchestrated efforts at destabilization." [Comment, p. 29.] Thus, he prays
that the Motion for Reconsideration be denied for lack of merit.
We deny the motion for reconsideration.
1. It must be emphasized that as in all motions for reconsideration, the burden is upon
the movants, petitioner herein, to show that there are compelling reasons to
reconsider the decision of the Court.
2. After a thorough consideration of the matters raised in the motion for
reconsideration, the Court is of the view that no compelling reasons have been
established by petitioners to warrant a reconsideration of the Court's decision.
The death of Mr. Marcos, although it may be viewed as a supervening event, has not
changed the factual scenario under which the Court's decision was rendered. The
threats to the government, to which the return of the Marcoses has been viewed to
provide a catalytic effect, have not been shown to have ceased. On the contrary,
instead of erasing fears as to the destabilization that will be caused by the return of
the Marcoses, Mrs. Marcos reinforced the basis for the decision to bar their return
when she called President Aquino "illegal," claiming that it is Mr. Marcos, not Mrs.
Aquino, who is the "legal" President of the Philippines, and declared that the matter
"should be brought to all the courts of the world." [Comment, p. 1; Philippine Star,
October 4, 1989.]
3. Contrary to petitioners' view, it cannot be denied that the President, upon whom
executive power is vested, has unstated residual powers which are implied from the
grant of executive power and which are necessary for her to comply with her duties
under the Constitution. The powers of the President are not limited to what are
expressly enumerated in the article on the Executive Department and in scattered
provisions of the Constitution. This is so, notwithstanding the avowed intent of the
members of the Constitutional Commission of 1986 to limit the powers of the
President as a reaction to the abuses under the regime of Mr. Marcos, for the result
was a limitation of specific power of the President, particularly those relating to the
commander-in-chief clause, but not a diminution of the general grant of executive
power.
That the President has powers other than those expressly stated in the Constitution is
nothing new. This is recognized under the U.S. Constitution from which we have
patterned the distribution of governmental powers among three (3) separate
branches.
Article II, [section] 1, provides that "The Executive Power shall be vested in a
President of the United States of America." In Alexander Hamilton's widely accepted
view, this statement cannot be read as mere shorthand for the specific executive
authorizations that follow it in [sections] 2 and 3. Hamilton stressed the difference
between the sweeping language of article II, section 1, and the conditional language
of article I, [section] 1: "All legislative Powers herein granted shall be vested in a
Congress of the United States . . ." Hamilton submitted that "[t]he [article III
enumeration [in sections 2 and 31 ought therefore to be considered, as intended
merely to specify the principal articles implied in the definition of execution power;
leaving the rest to flow from the general grant of that power, interpreted in confomity
with other parts of the Constitution...
In Myers v. United States, the Supreme Court — accepted Hamilton's proposition,
concluding that the federal executive, unlike the Congress, could exercise power from
sources not enumerated, so long as not forbidden by the constitutional text: the
executive power was given in general terms, strengthened by specific terms where
emphasis was regarded as appropriate, and was limited by direct expressions where
limitation was needed. . ." The language of Chief Justice Taft in Myers makes clear
that the constitutional concept of inherent power is not a synonym for power without
limit; rather, the concept suggests only that not all powers granted in the Constitution
are themselves exhausted by internal enumeration, so that, within a sphere properly
regarded as one of "executive' power, authority is implied unless there or elsewhere
expressly limited. [TRIBE, AMERICAN CONSTITUTIONAL LAW 158-159 (1978).]
And neither can we subscribe to the view that a recognition of the President's implied
or residual powers is tantamount to setting the stage for another dictatorship. Despite
petitioners' strained analogy, the residual powers of the President under the
Constitution should not be confused with the power of the President under the 1973
Constitution to legislate pursuant to Amendment No. 6 which provides:
Whenever in the judgment of the President (Prime Minister), there exists a grave
emergency or a threat or imminence thereof, or whenever the interim Batasang
Pambansa or the regular National Assembly fails or is unable to act adequately on
any matter for any reason that in his judgment requires immediate action, he may, in
order to meet the exigency, issue the necessary decrees, orders, or letters of
instruction, which shall form part of the law of the land,
There is no similarity between the residual powers of the President under the 1987
Constitution and the power of the President under the 1973 Constitution pursuant to
Amendment No. 6. First of all, Amendment No. 6 refers to an express grant of power.
It is not implied. Then, Amendment No. 6 refers to a grant to the President of
the specific power of legislation.
4. Among the duties of the President under the Constitution, in compliance with his
(or her) oath of office, is to protect and promote the interest and welfare of the people.
Her decision to bar the return of the Marcoses and subsequently, the remains of Mr.
Marcos at the present time and under present circumstances is in compliance with
this bounden duty. In the absence of a clear showing that she had acted with
arbitrariness or with grave abuse of discretion in arriving at this decision, the Court
will not enjoin the implementation of this decision.
ACCORDINGLY, the Court resolved to DENY the Motion for Reconsideration for lack
of merit."
Separate Opinions
CRUZ, J., dissenting:
Nothing important has happened to change my vote for granting the petition. The
death of Marcos has not plunged the nation into paroxysms of grief as the so-called
"loyalists" had hoped. By and large, it has been met with only passing interest if not
outright indifference from the people. Clearly, the discredited dictator is in death no El
Cid. Marcos dead is only an unpleasant memory, not a bolt of lightning to whip the
blood.
This only shows that if he was at all a threat to the national security when he was
already moribund that feeble threat has died with him. As the government stresses,
he has been reduced to a non-person (which makes me wonder why it is still afraid of
him). His cadaver is not even regarded as a symbol of this or that or whatever except
by his fanatical followers. It is only a dead body waiting to be interred in this country.
This is a tempest in a teapot. We have more important things to do than debating
over a corpse that deserves no kinder fate than dissolution and oblivion. I say let it be
brought home and buried deep and let us be done with it forever.
PARAS, J., dissenting on the Motion for Reconsideration:
I find no reason to deviate from the dissenting opinion I have already expressed.
Firstly, the former President, although already dead, is still entitled to certain rights. It
is not correct to say that a dead man, since he is no longer a human being, has
ceased to have rights. For instance, our Revised Penal Code prohibits the
commission of libel against a deceased individual. And even if we were to assume the
non- existence anymore of his human rights what about the human rights of his
widow and the other members of his family?
Secondly, up to now, the alleged threats to national security have remained unproved
and consequently, unpersuasive. Our Armed Forces can easily control any possible
uprising or political and military destabilization. In fact, the converse appears to be
nearer the truth, that is, if we do not allow the remains to come, more trouble may be
expected.
Thirdly, reconciliation can proceed at a much faster pace if the petition for the return
is granted. To refuse the request can mean a hardening of resistance against the
well-intentioned aim of the administration. Upon the other hand, to grant the petition
may well soften the hearts of the oppositionists; paving the way for a united citizenry.
Finally, the entire world will surely applaud our government's act of mercy. As
Shakespeare once wrote "the quality of mercy is not strained." Surely, compassion is
the better part of government. Remove mercy, and you remove the best reason
against civil strife, which if not abated can turn our country into a mainstream of fiery
dissent and in the end, as one great man has put it, the question will no longer be
what is right, but what is left.
PADILLA, J., dissenting:
The death of former President Ferdinand E. Marcos, which supervened after decision
in this case had been rendered, was pre-empted and foreseen in my original
dissenting opinion. There I said that the first cogent and decisive proposition in this
case is that "Mr. Marcos is a Filipino and, as such, entitled to return to, die and be
buriedin this country." I have only to add a few statements to that dissenting opinion.
Respondents have succeeded in denying Mr. Marcos the first two (2) rights, i.e. to
return to and die in this country, The remaining right of this Filipino that cries out for
vindication at this late hour is the right to be buried in this country. Will the
respondents be allowed to complete the circle of denying the constitutional and
human right of Mr. Marcos to travel which, as stated in my dissenting opinion,
includes the right to return to, die and be buried in this country? The answer should
be in the negative if the Constitution is to still prevail; the answer should be in the
negative if we are to avoid the completely indefensible act of denying a Filipino the
last right to blend his mortal remains with a few square feet of earth in the treasured
land of his birth.
Those who would deny this Filipino the only constitutional and human right that can
be accorded him now say that the constitutional and human right to be buried in this
country would apply to any Filipino, except Mr. Marcos, because he was a dictator
and he plundered the country. This is the most irrelevant argument that can be raised
at this time. For, our democracy is built on the fundamental assumption (so we
believe) that the Constitution and all its guarantees apply to all Filipinos, whether
dictator or pauper, learned or ignorant, religious or agnostic as long as he is a
Filipino.
It is said that to accord this Filipino the right to be buried in this country would pose a
serious threat to national security and public safety. What threat? As pointed out in
my dissenting opinion, the second cogent and decisive proposition in this case is that
respondents have not presented any "hard evidence" (factual bases) or convincing
proof of such threat. "All we have are general conclusions of national security and
public safety' in avoidance of a specific, demandable and enforceable constitutional
and basic human right to return." Recent events have, to my mind, served to confirm
the validity of such dissenting statement.
If a live Marcos returning to this country did not pose a serious threat to national
security, the situation cannot be any worse with a dead Marcos returning. For, a dead
Marcos will return to be buried into mother earth, where there are no protests,
"demos", or even dissents, where the rule that reigns, in the language of Mr. Justice
Jackson in Barnette is the "unanimity of the graveyard."
It is said that, while a dead Marcos has been rendered impotent to threaten national
security, his supporters would pose that threat to national security. This argument is
untenable as it is without merit. As I see it, Marcos' supporters pose a greater
threat to peace and order, with Marcos deprived of his right to burial in this country.
On the other hand, if the remains of Mr. Marcos are brought to the country and
allowed the burial to which he is constitutionally and humanly entitled, Marcos'
supporters would be deprived of an otherwise potent argument—so conducive to
mass protests and even violence—that their Idol has been cruelly denied the right to
be buried in his homeland.
It is also said that Mr. Marcos, in cadaver form, has no constitutional or human rights,
to speak of. This contention entirely begs the issue. In the first place, one cannot
overlook that the right of Mr. Marcos, as a Filipino, to be buried in this country, is
asserted not for the first time after his death. It was vigorously asserted long before
his death. But, more importantly, the right of every Filipino to be buried in his country,
is part of a continuing right that starts from birth and ends only on the day he is finally
laid to rest in his country.
This dissenting opinion does not pretend to deny the Philippine government the right
to lay down conditions for the burial of Mr. Marcos in this country, but I submit that
these conditions must, as a fundamental postulate, recognize the right of the man, as
a Filipino, to be buried in this country NOW.
The majority resolution, in effect, bans Mr. Marcos' burial in this country now. Without
in any way affecting my respect and regard for my brethren and sisters in the
majority, I am deeply concerned and greatly disturbed that, with their decision
banning a dead Marcos from burial in this country, they have passed an opportunity
to defuse a constitutional crisis that, in my humble assessment, threatens to ignite an
already divided nation, Regrettably, they have ignored the constitutional dimension of
the problem rooted in the ageless and finest tradition of our people for respect and
deference to the dead. What predictably follows will be a continuing strife, among our
people, of unending hatred, recriminations and retaliations. God save this country!
My vote is for this Court to ORDER the respondents to allow the immediate return
and burial in the Republic of the Philippines of former President Ferdinand E. Marcos,
subject to such conditions as the Philippine government may impose in the interest of
peace and order.
SARMIENTO, J., Dissenting:
The case has curious trappings of a deja vu, the shoe being on the other foot, yet, as
I stated before, I can not allow personal emotions to soften my "hardened impartiality"
and deny, as a consequence, the rights of the ex-President's bereaved to bury his
remains in his homeland, and for them to return from exile. As I had, then, voted to
grant the petition, so do I vote to grant reconsideration.
I have gone to lengths to locate in the four comers of the Constitution, by direct grant
or by implication, the President's supposed "residual" power to forbid citizens from
entering the motherland reiterated in the resolution of the majority. I have found none.
I am not agreed, that:
3. Contrary to petitioners view, it cannot be denied that the President, upon whom
executive power is vested, has unstated residual powers which are implied from the
grant of executive power and which are necessary for her to comply with her duties
under the Constitution. The powers of the President are not limited to what are
expressly enumerated in the article on the Executive Department and in scattered
provisions of the Constitution. This, notwithstanding the avowed intent of the
members of the Constitutional Commission of 1986 to limit the powers of the
President as a reaction to the abuses under the regime of Mr. Marcos, for the result
was a limitation of specific powers of the President, particularly those relating to the
commander-in-chief clause, but not a diminution of the general grant of executive
power.
It is a nice word game, but it is nothing else. For, if the Constitution has imposed
limitations on specific powers of the President, it has, a fortiori, prescribed a
diminution of executive power. The Charter says that the right may only be restricted
by: (1) a court order; or (2) by fiat of law. Had the fundamental law intended a
presidential imprimatur, it would have said so. It would have also completed the
symmetry: judicial, congressional, and executive restraints on the right. No amount of
presumed residual executive power can amend the Charter.
It is well to note that the Bill of Rights stands primarily, a limitation not only against
legislative encroachments on individual liberties, but more so, against presidential
intrusions. And especially so, because the President is the caretaker of the military
establishment that has, several times over, been unkind to part of the population it
has also sworn to protect.
That "[t]he threats to the government, to which the return of the Marcoses has been
viewed to provide a catalytic effect, have not been shown to have ceased" (Res., 3) is
the realm of conjecture, speculation, and imagination. The military has shown no hard
evidence that "the return of the Marcoses" would indeed interpose a threat to national
security. And apparently, the majority itself is not convinced ("has been viewed...").
That Mrs. Marcos has referred to President Corazon Aquino as an illegitimate
President, does not, so I submit, reinforce alleged fears of a massive destabilization
awaiting the nation. The military has said over and over that Marcos followers are not
capable of successful destabilization effort. And only this morning (October 27, 1989),
media reported the assurances given to foreign investors by no less than the
President, of the political and economic stability of the nation, as well as the
Government's capability to quell forces that menace the gains of EDSA.
I have no eulogies to say on the passing of Mr. Marcos. My personal impressions,
however, are beside the point. I reiterate that the President has no power to deny
requests of Marcos relatives to bury Marcos in his homeland. As for the former, let
them get their just deserts here too. And let the matter rest.
Separate Opinions
CRUZ, J., dissenting:
Nothing important has happened to change my vote for granting the petition. The
death of Marcos has not plunged the nation into paroxysms of grief as the so-called
"loyalists" had hoped. By and large, it has been met with only passing interest if not
outright indifference from the people. Clearly, the discredited dictator is in death no El
Cid. Marcos dead is only an unpleasant memory, not a bolt of lightning to whip the
blood.
This only shows that if he was at all a threat to the national security when he was
already moribund that feeble threat has died with him. As the government stresses,
he has been reduced to a non-person (which makes me wonder why it is still afraid of
him). His cadaver is not even regarded as a symbol of this or that or whatever except
by his fanatical followers. It is only a dead body waiting to be interred in this country.
This is a tempest in a teapot. We have more important things to do than debating
over a corpse that deserves no kinder fate than dissolution and oblivion. I say let it be
brought home and buried deep and let us be done with it forever.
PARAS, J., dissenting on the Motion for Reconsideration:
I find no reason to deviate from the dissenting opinion I have already expressed.
Firstly, the former President, although already dead, is still entitled to certain rights. It
is not correct to say that a dead man, since he is no longer a human being, has
ceased to have rights. For instance, our Revised Penal Code prohibits the
commission of libel against a deceased individual. And even if we were to assume the
non- existence anymore of his human rights what about the human rights of his
widow and the other members of his family?
Secondly, up to now, the alleged threats to national security have remained unproved
and consequently, unpersuasive. Our Armed Forces can easily control any possible
uprising or political and military destabilization. In fact, the converse appears to be
nearer the truth, that is, if we do not allow the remains to come, more trouble may be
expected.
Thirdly, reconciliation can proceed at a much faster pace if the petition for the return
is granted. To refuse the request can mean a hardening of resistance against the
well-intentioned aim of the administration. Upon the other hand, to grant the petition
may well soften the hearts of the oppositionists; paving the way for a united citizenry.
Finally, the entire world will surely applaud our government's act of mercy. As
Shakespeare once wrote "the quality of mercy is not strained." Surely, compassion is
the better part of government. Remove mercy, and you remove the best reason
against civil strife, which if not abated can turn our country into a mainstream of fiery
dissent and in the end, as one great man has put it, the question will no longer be
what is right, but what is left.
PADILLA, J., dissenting:
The death of former President Ferdinand E. Marcos, which supervened after decision
in this case had been rendered, was pre-empted and foreseen in my original
dissenting opinion. There I said that the first cogent and decisive proposition in this
case is that "Mr. Marcos is a Filipino and, as such, entitled to return to, die and be
buriedin this country." I have only to add a few statements to that dissenting opinion.
Respondents have succeeded in denying Mr. Marcos the first two (2) rights, i.e. to
return to and die in this country, The remaining right of this Filipino that cries out for
vindication at this late hour is the right to be buried in this country. Will the
respondents be allowed to complete the circle of denying the constitutional and
human right of Mr. Marcos to travel which, as stated in my dissenting opinion,
includes the right to return to, die and be buried in this country? The answer should
be in the negative if the Constitution is to still prevail; the answer should be in the
negative if we are to avoid the completely indefensible act of denying a Filipino the
last right to blend his mortal remains with a few square feet of earth in the treasured
land of his birth.
Those who would deny this Filipino the only constitutional and human right that can
be accorded him now say that the constitutional and human right to be buried in this
country would apply to any Filipino, except Mr. Marcos, because he was a dictator
and he plundered the country. This is the most irrelevant argument that can be raised
at this time. For, our democracy is built on the fundamental assumption (so we
believe) that the Constitution and all its guarantees apply to all Filipinos, whether
dictator or pauper, learned or ignorant, religious or agnostic as long as he is a
Filipino.
It is said that to accord this Filipino the right to be buried in this country would pose a
serious threat to national security and public safety. What threat? As pointed out in
my dissenting opinion, the second cogent and decisive proposition in this case is that
respondents have not presented any "hard evidence" (factual bases) or convincing
proof of such threat. "All we have are general conclusions of national security and
public safety' in avoidance of a specific, demandable and enforceable constitutional
and basic human right to return." Recent events have, to my mind, served to confirm
the validity of such dissenting statement.
If a live Marcos returning to this country did not pose a serious threat to national
security, the situation cannot be any worse with a dead Marcos returning. For, a dead
Marcos will return to be buried into mother earth, where there are no protests,
"demos", or even dissents, where the rule that reigns, in the language of Mr. Justice
Jackson in Barnette is the "unanimity of the graveyard."
It is said that, while a dead Marcos has been rendered impotent to threaten national
security, his supporters would pose that threat to national security. This argument is
untenable as it is without merit. As I see it, Marcos' supporters pose a greater
threat to peace and order, with Marcos deprived of his right to burial in this country.
On the other hand, if the remains of Mr. Marcos are brought to the country and
allowed the burial to which he is constitutionally and humanly entitled, Marcos'
supporters would be deprived of an otherwise potent argument—so conducive to
mass protests and even violence—that their Idol has been cruelly denied the right to
be buried in his homeland.
It is also said that Mr. Marcos, in cadaver form, has no constitutional or human rights,
to speak of. This contention entirely begs the issue. In the first place, one cannot
overlook that the right of Mr. Marcos, as a Filipino, to be buried in this country, is
asserted not for the first time after his death. It was vigorously asserted long before
his death. But, more importantly, the right of every Filipino to be buried in his country,
is part of a continuing right that starts from birth and ends only on the day he is finally
laid to rest in his country.
This dissenting opinion does not pretend to deny the Philippine government the right
to lay down conditions for the burial of Mr. Marcos in this country, but I submit that
these conditions must, as a fundamental postulate, recognize the right of the man, as
a Filipino, to be buried in this country NOW.
The majority resolution, in effect, bans Mr. Marcos' burial in this country now. Without
in any way affecting my respect and regard for my brethren and sisters in the
majority, I am deeply concerned and greatly disturbed that, with their decision
banning a dead Marcos from burial in this country, they have passed an opportunity
to defuse a constitutional crisis that, in my humble assessment, threatens to ignite an
already divided nation, Regrettably, they have ignored the constitutional dimension of
the problem rooted in the ageless and finest tradition of our people for respect and
deference to the dead. What predictably follows will be a continuing strife, among our
people, of unending hatred, recriminations and retaliations. God save this country!
My vote is for this Court to ORDER the respondents to allow the immediate return
and burial in the Republic of the Philippines of former President Ferdinand E. Marcos,
subject to such conditions as the Philippine government may impose in the interest of
peace and order.
SARMIENTO, J., Dissenting:
The case has curious trappings of a deja vu, the shoe being on the other foot, yet, as
I stated before, I can not allow personal emotions to soften my "hardened impartiality"
and deny, as a consequence, the rights of the ex-President's bereaved to bury his
remains in his homeland, and for them to return from exile. As I had, then, voted to
grant the petition, so do I vote to grant reconsideration.
I have gone to lengths to locate in the four comers of the Constitution, by direct grant
or by implication, the President's supposed "residual" power to forbid citizens from
entering the motherland reiterated in the resolution of the majority. I have found none.
I am not agreed, that:
3. Contrary to petitioners view, it cannot be denied that the President, upon whom
executive power is vested, has unstated residual powers which are implied from the
grant of executive power and which are necessary for her to comply with her duties
under the Constitution. The powers of the President are not limited to what are
expressly enumerated in the article on the Executive Department and in scattered
provisions of the Constitution. This, notwithstanding the avowed intent of the
members of the Constitutional Commission of 1986 to limit the powers of the
President as a reaction to the abuses under the regime of Mr. Marcos, for the result
was a limitation of specific powers of the President, particularly those relating to the
commander-in-chief clause, but not a diminution of the general grant of executive
power.
It is a nice word game, but it is nothing else. For, if the Constitution has imposed
limitations on specific powers of the President, it has, a fortiori, prescribed a
diminution of executive power. The Charter says that the right may only be restricted
by: (1) a court order; or (2) by fiat of law. Had the fundamental law intended a
presidential imprimatur, it would have said so. It would have also completed the
symmetry: judicial, congressional, and executive restraints on the right. No amount of
presumed residual executive power can amend the Charter.
It is well to note that the Bill of Rights stands primarily, a limitation not only against
legislative encroachments on individual liberties, but more so, against presidential
intrusions. And especially so, because the President is the caretaker of the military
establishment that has, several times over, been unkind to part of the population it
has also sworn to protect.
That "[t]he threats to the government, to which the return of the Marcoses has been
viewed to provide a catalytic effect, have not been shown to have ceased" (Res., 3) is
the realm of conjecture, speculation, and imagination. The military has shown no hard
evidence that "the return of the Marcoses" would indeed interpose a threat to national
security. And apparently, the majority itself is not convinced ("has been viewed...").
That Mrs. Marcos has referred to President Corazon Aquino as an illegitimate
President, does not, so I submit, reinforce alleged fears of a massive destabilization
awaiting the nation. The military has said over and over that Marcos followers are not
capable of successful destabilization effort. And only this morning (October 27, 1989),
media reported the assurances given to foreign investors by no less than the
President, of the political and economic stability of the nation, as well as the
Government's capability to quell forces that menace the gains of EDSA.
I have no eulogies to say on the passing of Mr. Marcos. My personal impressions,
however, are beside the point. I reiterate that the President has no power to deny
requests of Marcos relatives to bury Marcos in his homeland. As for the former, let
them get their just deserts here too. And let the matter rest.
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-38025 August 20, 1979
DANTE O. CASIBANG, petitioner,
vs.
HONORABLE NARCISO A. AQUINO, Judge of the Court of First Instance of
Pangasinan, Branch XIV, and REMEGIO P. YU, respondents.
Nicanor & Bautista and Agaton D. Yaranon for petitioner.
Bince, Sevilleja, Agsalud & Associates for respondents.
MAKASIAR, J.:
Respondent Remigio P. Yu was proclaimed on November 9, 1971 as the elected
Mayor of Rosales, Pangasinan in the 1971 local elections, by a plurality of 501 votes
over his only rival, herein petitioner, who seasonably filed on November 24, 1971 a
protest against the election of the former with the Court of First Instance of
Pangasinan, on the grounds of (1) anomalies and irregularities in the appreciation,
counting and consideration of votes in specified electoral precincts; (2) terrorism; (3)
rampant vote buying; (4) open voting or balloting; and (5) excessive campaign
expenditures and other violations of the 1971 Election Code.
Respondent Yu filed on November 29, 1971 his answer and counter-protest which
petitioner answered on December 10, 1971. However, respondent Yu withdrew his
counter-protest after waiving the opening and revision of the ballot boxes specified
therein.
Proceedings therein continued with respect to the election protest of petitioner before
the Court of First Instance of Pangasinan, Branch XIV, presided by respondent
Judge, who initially took cognizance of the same as it is unquestionably a justiciable
controversy.
In the meantime or on September 21, 1972, the incumbent President of the Republic
of the Philippines issued Proclamation No. 1081, placing the entire country under
Martial Law; and two months thereafter, more or less, or specifically on November 29,
1972, the 1971 Constitutional Convention passed and approved a Constitution to
supplant the 1935 Constitution; and the same was thereafter overwhelmingly ratified
by the sovereign people of the Republic of the Philippines on January 17, 1973; and
on March 31, 1973, this Court declared that "there is no further judicial obstacle to the
new Constitution being considered in force and effect" (Javellana vs. Executive
Secretary, 50 SCRA 30 [1973]).
Thereafter or on October 10, 1973, at which time petitioner had already completed
presenting his evidence and in fact had rested his case, respondent Yu moved to
dismiss the election protest of petitioner on the ground that the trial court had lost
jurisdiction over the same in view of the effectivity of the 1973 Constitution by reason
of which — principally) Section 9 of Article XVII [Transitory Provisions] and Section 2
of Article XI — a political question has intervened in the case. Respondent Yu
contended that "... the provisions in the 1935 Constitution relative to all local
governments have been superseded by the 1973 Constitution. Therefore, all local
government should adhere to our parliamentary form of government. This is clear in
the New Constitution under its Article XI." He further submitted that local elective
officials (including mayors) have no more four-year term of office. They are only in
office at the pleasure of the appointing power embodied in the New Constitution, and
under Section 9 of Article XVII.
Petitioner vigorously opposed the motion to dismiss, and, relying mainly on Sections
7 and 8 of Article XVII (Transitory Provisions) of the New Constitution and G.O. No. 3,
contended that the New Constitution did not divest the Court of First Instance of its
jurisdiction to hear and decide election protests pending before them at the time of its
ratification and effectivity; that the ratification of the New Constitution and its effectivity
did not automatically abolish the office and position of municipal mayor nor has it
automatically cut short the tenure of the office, so as to render the issue as to who is
the lawfully elected candidate to said office or position moot and academic; that
election protests involve public interest such that the same must be heard until
terminated and may not be dismissed on mere speculation that the office involved
may have been abolished, modified or reorganized; and that the motion to dismiss
was filed manifestly for delay.
Respondent Yu replied pointing out, among others, that petitioner failed to refute the
issue of political question; and reiterated his stand, expanding his arguments on the
political question, thus:
It is an undeniable fact that this case has its source from the 1971 elections for
municipal mayoralty. Unsatisfied with the counting of votes held by the Board of
Canvassers, the herein protestant filed this present case. And before the termination
of the same and pending trial, the Filipino people in the exercise of their free will and
sovereign capacity approved a NEW CONSTITUTION, thus a NEW FORM OF
GOVERNMENT-PARLIAMENTARY IN FORM was enforced. We find this provision
under Article XI of the New Constitution, which provides:
SEC. 2. The National Assembly shall enact a local government code which may not
thereafter be amended except by a majority vote of all its members, defining a more
responsive and accountable local government structure with an effective system of
recall, allocating among the different local government units their powers,
responsibilities, and resources, and providing for the qualifications, election and
removal, term, salaries, powers, functions, and duties of local officials, and all other
matters relating to the organization and operation of the local units. However, any
change in the existing form of local government shall not take effect until ratified by a
majority of the votes cast in a plebiscite called for the purpose.
It is respectfully submitted that the contention of the protestant to the effect that the
New Constitution "shows that the office of the Municipal Mayor has not been
abolished ... ," is not ACCURATE. Otherwise, the provisions of Section 9 of Article
XVII, is meaningless.
All officials and employees in the existing Government of the Republic shall continue
in office until otherwise provided by law or decreed by the incumbent President of the
Philippines, ...
In the above-quoted provision is the protection of the officials and employees working
in our government, otherwise, by the force of the New Constitution they are all out of
the government offices. In fact, in the case above-cited (Javellana) we are all
performing our duties in accordance with the New Constitution.
Therefore, election cases of the 1935 Constitution being interwoven in the political
complexion of our new Constitution should be dismissed because only those
incumbent official and employees existing in the new government are protected by
the transitional provisions of the New Fundamental Law of the Land. The protestant,
we respectfully submit, is not covered by the provisions of Section 9 Article XVII of the
Constitution. And in case he will win in this present case he has no right to hold the
position of mayor of the town of Rosales, Pangasinan, because he was not then an
official of the government at the time the New Constitution was approved by the
Filipino People. His right if proclaimed a winner is derived from the 1935 Constitution
which is changed by the Filipino people.
On December 18, 1973, the trial court, presided by respondent Judge, sustained the
political question theory of respondent Yu and ordered the dismissal of the electoral
protest. Thus:
There is no dispute that the Filipino people have accepted and submitted to a new
Constitution to replace the 1935 Constitution, and that we are now living under its
aegis and protection. ...
xxx xxx xxx
Under Section 9, Article XVII, of the new Constitution, above-quoted, only those
officials and employees of the existing Government of the Republic of the Philippines
like the protestee herein, are given protection and are authorized to continue in office
at the pleasure of the incumbent President of the Philippines, while under Section 2 of
Article XI of the new Constitution, also above-quoted, the intention of completely
revamp the whole local government structure, providing for different qualifications,
election and removal, term, salaries, powers, functions, and duties, is very clear.
These present questions of policy, the necessity and expediency of which are outside
the range of judicial review. With respect to the fate of incumbent oficials and
employees in the existing Government of the Republic of the Philippines, as well as to
the qualifications, election and removal, term of office, salaries, and powers of all
local officials under the parliamentary form of government — these have been
entrusted or delegated by the sovereign people or has reserved it to be settled by the
incumbent Chief Executive or by the National Assembly with full discretionary
authority therefor. As if to supplement these delegated powers, the people have also
decreed in a referendum the suspension of all elections. Thus, in the United States,
questions relating to what persons or organizations constituted the lawful government
of a state of the Union (Luther vs. Borden, 7 How. 1, 12, L. Ed 58), and those relating
to the political status of a state (Highland Farms Dairy vs. Agnew, 57 S. et 549, 300
U.S. 608, 81 L.ed 835), have been held to be political and for the judiciary to
determine.
To the mind of the Court, therefore, the ratification and effectivity of the new
Constitution has tainted this case with a political complexion above and beyond the
power of judicial review. As fittingly commented by Mr. Justice Antonio in a separate
opinion in the Javellana, et al. cases, 69 0. G. No. 36, September 3, 1973, p. 8008:
The essentially political nature of the question is at once manifest by understanding
that in the final analysis, what is assailed is not merely the validity of Proclamation
No. 1102 of the President, which is merely declaratory of the fact of the approval or
ratification, but the legitimacy of the government. It is addressed more to the frame-
work and political character of this government which now functions under the new
Charter. It seeks to nullify a Constitution that is already effective. In other words,
where a complete change in the fundamental law has been effected through political
action, the Court whose existence is affected by such a change is, in the words of Mr.
Meville Fuller Weston "precluded from passing upon the fact of change by a logical
difficulty which is not to be surmounted as the change relates to the existence of a
prior point in the Court's "chain of title" to its authority and "does not relate merely to a
question of the horizontal distribution of powers." It involves a matter which 'the
sovereign has entrusted to the so-called political departments or has reserved to be
settled by its own extra-governmental action." The present Government functions
under the new Constitution which has become effective through political action.
Judicial power presupposes an established government and an effective constitution.
If it decides at all as a court, it necessarily affirms the existence and authority of the
Government under which it is exercising judicial power.
The Court is not unaware of provisions of the new Constitution, particularly Sections 7
and 8, Article XVII (Transitory Provisions) decreeing that all existing laws not
inconsistent with the new Constitution shall remain operative until amended, modified,
or repealed by the National Assembly, and that all courts existing at the time of the
ratification of the said new Constitution shall continue and exercise their jurisdiction
until otherwise provided by law in accordance with the new Constitution, and all cases
pending in said courts shall be heard, tried and determined under the laws then in
force. Again, to the mind of the Court, these refer to matters raised in the enforcement
of existing laws or in the invocation of a court's jurisdiction which have not been
"entrusted to the so-called political department or has reserved to be settled by its
own extra governmental action.
Hence, this petition.
We reverse.
The thrust of the aforesaid political question theory of respondent Yu is that the 1973
Constitution, through Section 9 of Article XVII thereof, protected only those
incumbents, like him, at the time of its ratification and effectivity and are the only ones
authorized to continue in office and their term of office as extended now depends on
the pleasure of, as the same has been entrusted or committed to, the incumbent
President of the Philippines or the Legislative Department; and that Section 2 of
Article XI thereof entrusted to the National Assembly the revamp of the entire local
government structure by the enactment of a local government code, thus presenting a
question of policy, the necessity and expediency of which are outside the range of
judicial review. In short, for the respondent Judge to still continue assuming
jurisdiction over the pending election protest of petitioner is for him to take cognizance
of a question or policy "in regard to which full discretionary authority has been
delegated to the Legislative or Executive branch of the government."
I him the electoral protest, respondent (protestee) would cease to be mayor even
There is an imperative need to re-state pronouncements of this Court on the new
Constitution which are decisive in the resolution of the political question theory of
respondent Yu.
WE ruled:
1. That Section 9 of Article XVII of the 1973 Constitution did not render moot and
academic pending election protest cases (Santos vs. Castañeda, 65 SCRA 114
[1975]; Euipilag vs. Araula, 60 SCRA 211 [1974]; Nunez vs. Averia, 57 SCRA 726
[1974]; Parades vs. Abad, L-36927, Sunga vs. Mosueda, L-37715, Valley vs. Caro, L-
38331, 56 SCRA 522, [1974]).
2. That "the constitutional grant of privilege to continue in office, made by the new
Constitution for the benefit of persons who were incumbent officials or employees of
the Government when the new Constitution took effect, cannot be fairly construed as
indiscriminately encompassing every person who at the time happened to be
performing the duties of an elective office, albeit under protest or contest" and that
"subject to the constraints specifically mentioned in Section 9, Article XVII of the
Transitory Provisions, it neither was, nor could have been the intention of the framers
of our new fundamental law to disregard and shunt aside the statutory right of a
condidate for elective position who, within the time-frame prescribed in the Election
Code of 1971, commenced proceedings beamed mainly at the proper determination
in a judicial forum of a proclaimed candidate-elect's right to the contested office."'
(Santos vs. Castañeda, supra); and We rationalized that "the Constitutional
Convention could not have intended, as in fact it .did not intend, to shielf or protect
those who had been unduly elected. To hold that the right of the herein private
respondents to the respective offices which they are now holding, may no longer be
subject to question, would be tantamount to giving a stamp of approval to what could
have been an election victory characterized by fraud, threats, intimidation, vote
buying, or other forms of irregularities prohibited by the Election Code to preserve
inviolate the sanctity of the ballot." (Parades, Sunga and Valley cases, supra).
3. That "the right of the private respondents (protestees) to continue in office
indefinitely arose not only by virtue of Section 9 of Article XVII of the New Constitution
but principally from their having been proclaimed elected to their respective positions
as a result of the November 8, 1971 elections. Therefore, if in fact and in law, they
were not duly elected to their respective positions and consequently, have no right to
hold the same, perform their functions, enjoy their privileges and emoluments, then
certainly, they should not be allowed to enjoy the indefinite term of office given to
them by said constitutional provision" (Parades, Sunga and Valley cases, supra).
4. That "until a subsequent law or presidential decree provides otherwise, the right of
respondent (protestee) to continue as mayor rests on the legality of his election which
has been protested by herein petitioner. Should the court decide adversely against
before a law or presidential decree terminates his tenure of office pursuant to said
Section 9 of Article XVII of the 1973 Constitution" (Euipilag, supra).
5. That "there is a difference between the 'term' of office and the 'right' to hold an
office. A 'term' of office is the period during winch an elected officer or appointee is
entitled to hold office, perform its functions and enjoy its privileges and emoluments.
A 'right' to hold a public office is the just and legal claim to hold and enjoy the powers
and responsibilities of the office. In other words, the 'term' refers to the period,
duration of length of time during which the occupant of an office is .entitled to stay
therein whether such period be definite or indefinite. Hence, although Section 9,
Article XVII of the New Constitution made the term of the petitioners indefinite, it did
not foreclose any challenge by the herein petitioners, in an election protest, of the
'right' of the private respondents to continue holding their respective office. What has
been directly affected by said constitutional provision is the 'term' to the office,
although the 'right' of the incumbent to an office which he is legally holding is co-
extensive with the 'term' thereof," and that "it is erroneous to conclude that under
Section 9, Article XVII of the New Constitution, the term of office of the private
respondents expired, and that they are now holding their respective offices under a
new term. We are of the opinion that they hold their respective offices still under the
term to which they have been elected, although the same is now indefinite" (Parades,
Sunga and Valley cases, supra).
6. That the New Constitution recognized the continuing jurisdiction of courts of first
instance to hear, try and decide election protests: "Section 7 of Article XVII of the New
Constitution provides that 'all existing laws not inconsistent with this Constitution shall
remain operative until amended, modified or repealed by the National Assembly. 'And
there has been no amendment, modification or repeal of Section 220 of the Election
Code of 1971 which gave the herein petitioners the right to file an election contest
against those proclaimed elected," and "according to Section 8, Article XVII of the
New Constitution 'all courts existing at the time of the ratification of this Constitution
shall continue and exercise their jurisdiction until otherwise provided by law in
accordance with this Constitution, and all cases pending in said courts shall be heard,
tried and determined under the laws then in force.' Consequently, the Courts of First
Instance presided over by the respondent-Judges should continue and exercise their
jurisdiction to hear, try and decide the election protests filed by herein petitioners"
(Santos, Euipilag, Nunez, Parades, Sunga and Valley cases, supra).
While under the New Constitution the Commission on Elections is now the sole judge
of all contests relating to the elections, returns, and qualifications of members of the
National Assembly as well as elective provincial and city officials (par. 2 of Sec. 2,
Article XII-C of the 1973 Constitution), such power does not extend to electoral
contests concerning municipal elective positions.
7. That General Order No. 3, issued by the President of the Philippines merely
reiterated his powers under Section 9 of Article XVII of the New Constitution. The
President did not intend thereby to modify the aforesaid constitutional provision
(Euipilag, supra).
General Order No. 3, as amended by General Order No. 3-A, does not expressly
include electoral contests of municipal elective positions as among those removed
from the jurisdiction of the courts; for said General Order, after affirming the
jurisdiction of the Judiciary to decide in accordance with the existing laws on criminal
and civil cases, simply removes from the jurisdiction of the Civil Court certain crimes
specified therein as well as the validity, legality or constitutionality of any decree,
order or acts issued by the President or his duly designated representative or by
public servants pursuant to his decrees and orders issued under Proclamation No.
1081.
8. That General Order No. 3 may not be invoked by the courts to avoid exercise of
their jurisdiction because to do co "is nothing short of unwarranted abdication of
judicial', authority, which no judge duly imbued with the implications of the paramount
principle of independence of the judiciary should ever think of doing. It is unfortunate
indeed that respondent Judge is apparently unaware that it is a matter of highly
significant historical fact that this Court has always deemed General Order No. 3
including its amendment by General Order No. 3-A as practically inoperative even in
the light of Proclamation No. 1081 of September 21, 1972 and Proclamation No. 1104
of January 17, 1973, placing the whole Philippines under martial law. While the
members of the Court are not agreed on whether or not particular instances of attack
against the validity of certain Presidential decrees raise political questions which the
Judiciary would not interfere with, there is unanimity among Us in the view that it is for
the Court rather than the Executive to determine whether or not We may take
cognizance of any given case involving the validity of acts of the Executive
Department purportedly under the authority of the martial law proclamations" (Lina vs.
Purisima, 3 PHILAJUR 605, 610-611, 82 SCRA 344 [1978]).
II
1. In the light of the foregoing pronouncements, We hold that the electoral protest
case herein involved has remained a justiciable controversy. No political question has
ever been interwoven into this case. Nor is there any act of the incumbent President
or the Legislative Department to be indirectly reviewed or interfered with if the
respondent Judge decides the election protest. The term "political question" connotes
what it means in ordinary parlance, namely, a question of policy. It refers to those
questions which under the Constitution, are to be decided by the people in their
sovereign capacity; or in regard to which full discretionary authority has been
delegated to the legislative or executive branch of the government. It is concerned
with issues dependent upon the wisdom, not legality, of a particular measure"
(Tañada vs. Cuenco, L-1052, Feb. 28, 1957). A broader definition was advanced by
U.S. Supreme Court Justice Brennan in Baker vs. Carr (369 U.S. 186 [1962]):
"Prominent on the surface of any case held to involve a political question is found a
textually demonstrable constitutional commitment of the issue to a coordinate political
department; or a lack of judicially discoverable and manageable standards for
resolving it; or the impossibility of deciding without an initial policy determination of a
kind clearly for non-judicial discretion; or the impossibility of a court's undertaking
independent resolution without expressing lack of respect due coordinate branches of
the government; or an unusual need for unquestioning adherence to a political
decision already made; or the potentiality of embarrassment from multifarious
pronouncements by various departments on one question" (p. 217). And Chief Justice
Enrique M. Fernando, then an Associate Justice, of this Court fixed the limits of the
term, thus: "The term has been made applicable to controversies clearly non-judicial
and therefore beyond its jurisdiction or to an issue involved in a case appropriately
subject to its cognizance, as to which there has been a prior legislative or executive
determination to which deference must be paid (Cf. Vera vs. Avelino, 77 Phil. 192
[1946]; Lopez vs. Roxas, L-25716, July 28, 1966, 17 SCRA 756; Gonzales vs.
Commission on Elections, L-28196, Nov. 9, 1967, 21 SCRA 774). It 'has likewise
been employed loosely to characterize a suit where the party proceeded against is
the President or Congress, or any branch thereof (Cf. Planas vs. Gil, 67 Phil. 62
[1937]; Vera vs. Avelino, 77 Phil. 192 [1946]). If to be delimited with accuracy;
'political questions' should refer to such as would under the Constitution be decided
by the people in their sovereign capacity or in regard to which full discretionary
authority is vested either in the President or Congress. It is thus beyond the
competence of the judiciary to pass upon. ..." (Lansang vs. Garcia, 42 SCRA 448,
504-505 [1971]).
2. The only issue in the electoral protest case dismissed by respondent Judge on the
ground of political question is who between protestant — herein petitioner — and
protestee — herein respondent Yu — was the duly elected mayor of Rosales,
Pangasinan, and legally entitled to enjoy the rights, privileges and emoluments
appurtenant thereto and to discharge the functions, duties and obligations of the
position. If the protestee's election is upheld by the respondent Judge, then he
continues in office; otherwise, it is the protestant, herein petitioner. That is the only
consequence of a resolution of the issue therein involved — a purely justiciable
question or controversy as it implies a given right, legally demandable and
enforceable, an act or ommission violative of said right, and a remedy, granted or
sanctioned by law, for said breach of right (Tan vs. Republic, 107 Phil. 632-633
[1960]). Before and after the ratification and effectivity of the New Constitution, the
nature of the aforesaid issue as well as the consequences of its resolution by the
Court, remains the same as above-stated.
3. Any judgment to be made on that issue will not in any way collide or interfere with
the mandate of Section 9 of Article XVII of the New Constitution, as it will merely
resolve who as between protestant and protestee is the duly elected mayor of
Rosales, Pangasinan; hence, entitled to enjoy the extended term as mandated by
said provision of the New Constitution. As construed by this Court, the elective
officials referred to in Section 9 of Article XVII are limited to those duly elected as the
right to said extended term was not personal to whosoever was incumbent at the time
of the ratification and effectivity of the New Constitution. Nor would such judgment
preempt, collide or interfere with the power or discretion entrusted by the New
Constitution to the incumbent President or the Legislative Department, with respect to
the extended term of the duly elected incumbents; because whoever between
protestant and protestee is declared the duly elected mayor will be subject always to
whatever action the President or the Legislative Department will take pursuant
thereto.
apparent at once that such power committed by the New Constitution to the National
Assembly will not be usurped or preempted by whatever ruling or judgment the
respondent Judge will render in the electoral protest case. Whoever will prevail in that
contest will enjoy the indefinite term of the disputed office of mayor of Rosales,
Pangasinan in the existing set-up of local government in this country; subject always
to whatever change or modification the National Assembly will introduce when it will
enact the local government code.
III
The construction made by respondent Judge of Sections 7 and 8 of Article XVII of the
New Constitution "... that these refer to matters raised in the enforcement of existing
laws or in the invocation of a court's jurisdiction which have not been 'entrusted to the
so-called political department or reserved to be settled by its own extra-governmental
action,"' strained as it is, cannot be sustained in view of the result herein reached on
the issue of political question as well as Our previous pronouncements as above
restated on the same Sections 7 and 8 of the New Constitution.
WHEREFORE, RESPONDENT COURT'S ORDER OF DISMISSAL IS HEREBY SET
ASIDE AND THE RESPONDENT COURT IS DIRECTED TO IMMEDIATELY
PROCEED WITH THE TRIAL AND DETERMINATION OF THE ELECTION
PROTEST BEFORE IT ON THE MERITS. THIS DECISION SHALL BE
IMMEDIATELY EXECUTORY UPON PROMULGATION HEREOF. NO COSTS.
Teehankee (Chairman), Fernandez, Guerrero, De Castro and Melencio-Herrera, JJ,,
concur.

4. Neither does Section 2 of Article XI stigmatize the issue in that electoral protest
case with a political color. For simply, that section allocated unto the National
Assembly the power to enact a local government code "which may not thereafter be
amended except by a majority of all its Members, defining a more responsive and
accountable local government allocating among the different local government units
their powers, responsibilities, and resources, and providing for their qualifications,
election and removal, term, salaries, powers, functions and duties of local officials,
and all other matters relating to the organization and operation of the local units" but
"... any change in the existing form of local government shall not take effect until
ratified by a majority of the votes cast in a plebiscite called for the purpose." It is
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-10520 February 28, 1957
LORENZO M. TAÑADA and DIOSDADO MACAPAGAL, petitioners,
vs.
MARIANO JESUS CUENCO, FRANCISCO A. DELGADO, ALFREDO CRUZ,
CATALINA CAYETANO, MANUEL SERAPIO, PLACIDO REYES, and FERNANDO
HIPOLITO in his capacity as cashier and disbursing officer,respondents.
Tañada, Teehankee and Macapagal for petitioners.
Office of the Solicitor General Ambrosio Padilla and Solicitor Troadio T. Quiazon, Jr.
for respondents.
CONCEPCION, J.:
Petitioner Lorenzo M. Tañada is a member of the Senate of the Philippines, and
President of the Citizens Party, whereas petitioner Diosdado Macapagal, a member
of the House of Representatives of the Philippines, was one of the official candidates
of the Liberal Party for the Senate, at the General elections held in November, 1955,
in which Pacita Madrigal Warns, Lorenzo Sumulong, Quintin Paredes, Francisco
Rodrigo, Pedro Sabido, Claro M. Recto, Domocao Alonto and Decoroso Rosales,
were proclaimed elected. Subsequently, the elections of this Senators-elect-who
eventually assumed their respective seats in the Senate-was contested by petitioner
Macapagal, together with Camilo Osias, Geronima Pecson, Macario Peralta, Enrique
Magalona, Pio Pedrosa and William Chiongbian-who had, also, run for the Senate, in
said election-in Senate Electoral Case No. 4, now pending before the Senate
Electoral Tribunal. .
The Senate, in its session of February 22, 1956, upon nomination of Senator Cipriano
Primicias, on behalf of the Nacionalista Party, chose Senators Jose P. Laurel,
Fernando Lopez and Cipriano Primicias, as members of the Senate Electoral
Tribunal. Upon nomination of petitioner Senator Tañada, on behalf of the Citizens
Party, said petitioner was next chosen by the Senate as member of said Tribunal.
Then, upon nomination of Senator Primicias on behalf of the Committee on Rules of
the Senate, and over the objections of Senators Tañada and Sumulong, the Senate
choose respondents Senators Mariano J. Cuenco and Francisco A. Delgado as
members of the same Electoral Tribunal. Subsequently, the Chairman of the latter
appointed: (1) Alfredo Cruz and Catalina Cayetano, as technical assistant and private
secretary, respectively, to Senator Cuenco, as supposed member of the Senate
Electoral Tribunal, upon his recommendation of said respondent; and (2) Manuel
Serapio and Placido Reyes, as technical assistant and private secretary, respectively
to Senator Delgado, as supposed member of said Electoral Tribunal, and upon his
recommendation.
Soon, thereafter, Senator Lorenzo M. Tañada and Congressman Diosdado
Macapagal instituted the case at bar against Senators Cuenco and Delgado, and said
Alfredo Cruz, Catalina Cayetano, Manuel Serapio and Placido Reyes, as well as
Fernando Hipolito, in his capacity as Cashier and Disbursing Officer of the Senate
Electoral Tribunal. Petitioners allege that on February 22, 1956, as well as at present,
the Senate consists of 23 Senators who belong to the Nacionalista Party, and one (1)
Senator-namely, petitioner, Lorenzo M. Tañada-belonging to the Citizens Party; that
the Committee on Rules for the Senate, in nominating Senators Cuenco and
Delgado, and the Senate, in choosing these respondents, as members of the Senate
Electoral Tribunal, had "acted absolutely without power or color of authority and in
clear violation .. of Article VI, Section 11 of the Constitution"; that "in assuming
membership in the Senate Electoral Tribunal, by taking the corresponding oath of
office therefor", said respondents had "acted absolutely without color of appointment
or authority and are unlawfully, and in violation of the Constitution, usurping, intruding
into and exercising the powers of members of the Senate Electoral Tribunal"; that,
consequently, the appointments of respondents, Cruz, Cayetano, Serapio and Reyes,
as technical assistants and private secretaries to Senators Cuenco and Delgado-who
caused said appointments to be made-as members of the Senate Electoral Tribunal,
are unlawful and void; and that Senators Cuenco and Delgado "are threatening and
are about to take cognizance of Electoral Case No. 4 of the Senate Electoral Tribunal,
as alleged members thereof, in nullification of the rights of petitioner Lorenzo M.
Tañada, both as a Senator belonging to the Citizens Party and as representative of
the Citizens Party in the Senate Electoral Tribunal, and in deprivation of the
constitutional rights of petitioner Diosdado Macapagal and his co-protestants to have
their election protest tried and decided-by an Electoral Tribunal composed of not
more than three (3) senators chosen by the Senate upon nomination of the party
having the largest number of votes in the Senate and not more than the (3) Senators
upon nomination of the Party having the second largest number of votes therein,
together, three (3) Justice of the Supreme Court to be designated by the Chief
Justice, instead of by an Electoral Tribunal packed with five members belonging to
the Nacionalista Party, which is the rival party of the Liberal Party, to which the
Petitioner Diosdado Macapagal and his co-protestants in Electoral Case No. 4
belong, the said five (5) Nacionalista Senators having been nominated and chosen in
the manner alleged.. hereinabove.".
Petitioners pray that:.
"1. Upon petitioners' filing of bond in such amount as may be determined by this
Honorable Court, a writ of preliminary injunction be immediately issued directed to
respondents Mariano J. Cuenco, Francisco A. Delgado, Alfredo Cruz, Catalina
Cayetano, Manuel Serapio and Placido Reyes, restraining them from continuing to
usurp, intrude into and/ or hold or exercise the said public offices respectively being
occupied by them in the Senate Electoral Tribunal, and to respondent Fernando
Hipolito restraining him from paying the salaries of respondent Alfredo Cruz, Catalina
Cayetano, Manuel Serapio and Placido Reyes, pending this action.
"2. After hearing, judgment be rendered ousting respondent Mariano J. Cuenco
Francisco A. Delgado, Alfredo Cruz, Catalina Cayetano, Manuel Serapio and Placido
Reyes from the aforementioned public offices in the Senate Electoral Tribunal and
that they be altogether excluded therefrom and making the Preliminary injunction
permanent, with costs against the respondents.".
Respondents have admitted the main allegations of fact in the petition, except insofar
as it questions the legality, and validity of the election of respondents Senators
Cuenco and Delgado, as members of the Senate Electoral Tribunal, and of the
appointment of respondent Alfredo Cruz, Catalina Cayetano, Manuel Serapio and
Placido Reyes as technical assistants and private secretaries to said respondents
Senators. Respondents, likewise, allege, by way of special and affirmative defenses,
that: (a) this Court is without power, authority of jurisdiction to direct or control the
action of the Senate in choosing the members of the Electoral Tribunal; and (b) that
the petition states no cause of action, because "petitioner Tañada has exhausted his
right to nominate after he nominated himself and refused to nominate two (2) more
Senators", because said petitioner is in estoppel, and because the present action is
not the proper remedy. .
I. Respondents assail our jurisdiction to entertain the petition, upon the ground that
the power to choose six (6) Senators as members of the Senate Electoral Tribunal
has been expressly conferred by the Constitution upon the Senate, despite the fact
that the draft submitted to the constitutional convention gave to the respective political
parties the right to elect their respective representatives in the Electoral Commission
provided for in the original Constitution of the Philippines, and that the only remedy
available to petitioners herein "is not in the judicial forum", but "to bring the matter to
the bar of public opinion.".
We cannot agree with the conclusion drawn by respondents from the foregoing facts.
To begin with, unlike the cases of Alejandrino vs. Quezon (46 Phil., 83) and Vera vs.
Avelino (77 Phil., 192)-relied upon by the respondents this is not an action against the
Senate, and it does not seek to compel the latter, either directly or indirectly, to allow
the petitioners to perform their duties as members of said House. Although the
Constitution provides that the Senate shall choose six (6) Senators to be members of
the Senate Electoral Tribunal, the latter is part neither of Congress nor of the Senate.
(Angara vs. Electoral Commission, 63 Phil., 139, Suanes vs. Chief Accountant, 81
Phil., 818; 46 Off. Gaz., 462.).
Secondly, although the Senate has, under the Constitution, the exclusive power to
choose the Senators who shall form part of the Senate Electoral Tribunal, the
fundamental law has prescribed the manner in which the authority shall be exercised.
As the author of a very enlightening study on judicial self-limitation has aptly put it:.
"The courts are called upon to say, on the one hand, by whom certain powers shall be
exercised, and on the other hand, to determine whether the powers possessed have
been validly exercised. In performing the latter function, they do not encroach upon
the powers of a coordinate branch of the, government, since the determination of the
validity of an act is not the same, thing as the performance of the act. In the one case
we are seeking to ascertain upon whom devolves the duty of the particular service. In
the other case we are merely seeking to determine whether the Constitution has been
violated by anything done or attented by either an executive official or the legislative."
(Judicial Self-Limitation by Finkelstein, pp. 221, 224, 244, Harvard Law Review, Vol.
39; emphasis supplied,).
The case of Suanes vs. Chief Accountant (supra) cited by respondent refutes their
own pretense. This Court exercised its jurisdiction over said case and decided the
same on the merits thereof, despite the fact that it involved an inquiry into the powers
of the Senate and its President over the Senate Electoral Tribunal and the personnel
thereof. .
Again, under the Constitution, "the legislative power" is vested exclusively in the
Congress of the Philippines. Yet, this does not detract from the power of the courts to
pass upon the constitutionality of acts of Congress 1 And, since judicial power
includes the authority to inquire into the legality of statutes enacted by the two
Houses of Congress, and approved by the Executive, there can be no reason why the
validity of an act of one of said Houses, like that of any other branch of the
Government, may not be determined in the proper actions. Thus, in the exercise of
the so-called "judicial supremacy", this Court declared that a resolution of the defunct
National Assembly could not bar the exercise of the powers of the former Electoral
Commission under the original Constitution. 2 (Angara vs. Electoral Commission,
supra), and annulled certain acts of the Executive 3 as incompatible with the
fundamental law.
In fact, whenever the conflicting claims of the parties to a litigation cannot properly be
settled without inquiring into the validity of an act of Congress or of either House
thereof, the courts have, not only jurisdiction to pass upon said issue, but, also, the
duty to do so, which cannot be evaded without violating the fundamental law and
paving the way to its eventual destruction. 4.
Neither are the cases of Mabanag vs. Lopez Vito (78 Phil., 1) and Cabili vs. Francisco
(88 Phil., 654), likewise, invoked by respondents, in point. In the Mabanag case, it
was held that the courts could not review the finding of the Senate to the effect that
the members thereof who had been suspended by said House should not be
considered in determining whether the votes cast therein, in favor of a resolution
proposing an amendment to the Constitution, sufficed to satisfy the requirements of
the latter, such question being a political one. The weight of this decision, as a
precedent, has been weakened, however, by our resolutions in Avelino vs. Cuenco
(83 Phil., 17), in which this Court proceeded to determine the number essential to
constitute a quorum in the Senate. Besides, the case at bar does not hinge on the
number of votes needed for a particular act of said body. The issue before us is
whether the Senate-after acknowledging that the Citizens Party is the party, having
the second largest number of votes in the Senate, to which party the Constitution
gives the right to nominate three (3) Senators for the Senate electoral Tribunal-could
validly choose therefor two (2) Nacionalista Senators, upon nomination by the floor
leader of the Nacionalista Party in the Senate, Senator Primicias claiming to act on
behalf of the Committee on Rules for the Senate.
The issue in the Cabili case was whether we could review a resolution of the Senate
reorganizing its representation in the Commission on Appointments. This was
decided in the negative, upon the authority of Alejandrino vs. Quezon (supra) and
Vera vs. Avelino (supra), the main purpose of the petition being "to force upon the
Senate the reinstatement of Senator Magalona in the Commission on Appointments,"
one-half (1/2) of the members of which is to be elected by each House on the basis of
proportional representation of the political parties therein. Hence, the issue depended
mainly on the determination of the political alignment of the members of the Senate at
the time of said reorganization and of the necessity or advisability of effecting said
reorganization, which is a political question. We are not called upon, in the case at
bar, to pass upon an identical or similar question, it being conceded, impliedly, but
clearly, that the Citizens Party is the party with the second largest number of votes in
the Senate. The issue, therefore, is whether a right vested by the Constitution in the
Citizens Party may validly be exercised, either by the Nacionalista Party, or by the
Committee on Rules for the Senate, over the objection of said Citizens Party.
xxx xxx xxx
The only ground upon which respondents' objection to the jurisdiction of this Court
and their theory to the effect that the proper remedy for petitioners herein is, not the
present action, but an appeal to public opinion, could possibly be entertained is,
therefore, whether the case at bar raises merely a political question, not one
justiciable in nature.
In this connection, respondents assert in their answer that "the remedy of petitioners
is not in the judicial forum, but, to use petitioner, Tañada's own words, to bring the
matter to the bar of public opinion' (p. 81, Discussion on the Creation of the Senate
Electoral Tribunal, February 21, 1956)." This allegation may give the impression that
said petitioner had declared, on the floor of the Senate, that his only relief against the
acts complained of in the petition is to take up the issue before the people- which is
not a fact. During the discussions in the Senate, in the course of the organization of
the Senate Electoral Tribunal, on February 21, 1956, Senator Tañada was asked
what remedies he would suggest if he nominated two (2) Nacionialista Senators and
the latter declined the, nomination. Senator Tañada replied:.
"There are two remedies that occur to my mind right now, Mr. Senator; one is the
remedy open to all of us that if we feel aggrieved and there is no recourse in the court
of justice, we can appeal to public opinion. Another remedy is an action in the
Supreme Court. Of course, as Senator Rodriguez, our President here, has said one
day; "If you take this matter to the Supreme Court, you will lose, because until now
the Supreme Court has always ruled against any action that would constitute
interference in the business of anybody pertaining to the Senate. The theory of
separation of powers will be upheld by the Supreme Court." But that learned opinion
of Senator Rodriguez, our President, notwithstanding, I may take the case to the
Supreme Court if my right herein is not respected. I may lose, Mr. President, but who
has not lost in the Supreme Court? I may lose because of the theory of the separation
of powers, but that does not mean, Mr. President, that what has been done here is
pursuant to the provision of the Constitution." (Congressional Record, Vol. III, p. 339;
emphasis supplied.).
This statement did not refer to the nomination, by Senator Primicias, and the election,
by the Senate, of Senators Cuenco and Delgado as members of said Tribunal.
Indeed, said nomination and election took place the day after the aforementioned
statement of Senator Tañada was made. At any rate, the latter announced that he
might "take the case to the Supreme Court if my right here is not respected.".
As already adverted to, the objection to our jurisdiction hinges on the question
whether the issue before us is political or not. In this connection, Willoughby lucidly
states:.
"Elsewhere in this treatise the well-known and well-established principle is considered
that it is not within the province of the courts to pass judgment upon the policy of
legislative or executive action. Where, therefore, discretionary powers are granted by
the Constitution or by statute, the manner in which those powers are exercised is not
subject to judicial review. The courts, therefore, concern themselves only with the
question as to the existence and extent of these discretionary powers.
"As distinguished from the judicial, the legislative and executive departments are
spoken of as the political departments of government because in very many cases
their action is necessarily dictated by considerations of public or political policy. These
considerations of public or political policy of course will not permit the legislature to
violate constitutional provisions, or the executive to exercise authority not granted him
by the Constitution or by, statute, but, within these limits, they do permit the
departments, separately or together, to recognize that a certain set of facts exists or
that a given status exists, and these determinations, together with the consequences
that flow therefrom, may not be traversed in the courts." (Willoughby on the
Constitution of the United States, Vol. 3, p. 1326; emphasis supplied.).
To the same effect is the language used in Corpus Juris Secundum, from which we
quote:.
"It is well-settled doctrine that political questions are not within the province of the
judiciary, except to the extent that power to deal with such questions has been
conferred upon the courts by express constitutional or statutory provisions.
"It is not easy, however, to define the phrase `political question', nor to determine
what matters, fall within its scope. It is frequently used to designate all questions that
lie outside the scope of the judicial questions, which under the constitution, are to be
decided by the people in their sovereign capacity, or in regard to which full
discretionary authority has been delegated to the legislative or executive branch of
the government." (16 C.J.S., 413; see, also Geauga Lake Improvement Ass'n. vs.
Lozier, 182 N. E. 491, 125 Ohio St. 565; Sevilla vs, Elizalde, 112 F. 2d 29, 72 App. D.
C., 108; emphasis supplied.).
Thus, it has been repeatedly held that the question whether certain amendments to
the Constitution are invalid for non-compliance with the procedure therein prescribed,
is not a political one and may be settled by the Courts. 5 .
In the case of In re McConaughy (119 N.W. 408), the nature of political question was
considered carefully. The Court said:.
"At the threshold of the case we are met with the assertion that the questions involved
are political, and not judicial. If this is correct, the court has no jurisdiction as the
certificate of the state canvassing board would then be final, regardless of the actual
vote upon the amendment. The question thus raised is a fundamental one; but it has
been so often decided contrary to the view contended for by the Attorney General that
it would seem to be finally settled.
xxx xxx x x x.
" .. What is generally meant, when it is, said that a question is political, and not
judicial, is that it is a matter which, is to be exercised by the people in their primary
political capacity, or that it has been specifically delegated to some other department
or particular officer of the government, with discretionary power to act. See State vs.
Cunningham, 81 Wis. 497, 51 L. R. A. 561; In Re Gunn, 50 Kan. 155; 32 Pac. 470,
948, 19 L. R. A. 519; Green vs. Mills, 69 Fed. 852, 16, C. C. A. 516, 30 L. R. A. 90;
Fletcher vs. Tuttle, 151 Ill. 41, 37 N. E. 683, 25 L. R. A. 143, 42 Am. St. Rep. 220.
Thus the Legislature may in its discretion determine whether it will pass a law or
submit a proposed constitutional amendment to the people. The courts have no
judicial control over such matters, not merely because they involve political question,
but because they are matters which the people have by the Constitution delegated to
the Legislature. The Governor may exercise the powers delegated to him, free from
judicial control, so long as he observes the laws and acts within the limits of the
power conferred. His discretionary acts cannot be controllable, not primarily because
they are of a political nature, but because the Constitution and laws have placed the
particular matter under his control. But every officer under a constitutional
government must act according to law and subject him to the restraining and
controlling power of the people, acting through the courts, as well as through the
executive or the Legislature. One department is just as representative as the other,
and the judiciary is the department which is charged with the special duty of
determining the limitations which the law places upon all official action. The
recognition of this principle, unknown except in Great Britain and America, is
necessary, to the end that the government may be one of laws and not men'-words
which Webster said were the greatest contained in any written constitutional
document." (pp. 411, 417; emphasis supplied.).
In short, the term "political question" connotes, in legal parlance, what it means in
ordinary parlance, namely, a question of policy. In other words, in the language of
Corpus Juris Secundum (supra), it refers to "those questions which, under the
Constitution, are to be decided by the people in their sovereign capacity, or in regard
to which full discretionary authority has been delegated to the Legislature or executive
branch of the Government." It is concerned with issues dependent upon the wisdom,
not legality, of a particular measure.
Such is not the nature of the question for determination in the present case. Here, we
are called upon to decide whether the election of Senators Cuenco and Delgado, by
the Senate, as members of the Senate Electoral Tribunal, upon nomination by
Senator Primicias-a member and spokesman of the party having the largest number
of votes in the Senate-on behalf of its Committee on Rules, contravenes the
constitutional mandate that said members of the Senate Electoral Tribunal shall be
chosen "upon nomination .. of the party having the second largest number of votes" in
the Senate, and hence, is null and void. This is not a political question. The Senate is
not clothed with "full discretionary authority" in the choice of members of the Senate
Electoral Tribunal. The exercise of its power thereon is subject to constitutional
limitations which are claimed to be mandatory in nature. It is clearly within the
legitimate prove of the judicial department to pass upon the validity the proceedings in
connection therewith.
".. whether an election of public officers has been in accordance with law is for the
judiciary. Moreover, where the legislative department has by statute prescribed
election procedure in a given situation, the judiciary may determine whether a
particular election has been in conformity with such statute, and, particularly, whether
such statute has been applied in a way to deny or transgress on the constitutional or
statutory rights .." (16 C.J.S., 439; emphasis supplied.).
It is, therefore, our opinion that we have, not only jurisdiction, but, also, the duty, to
consider and determine the principal issue raised by the parties herein.
II. Is the election of Senators Cuenco and Delgado, by the Senate, as members of the
Electoral Tribunal, valid and lawful?.
Section 11 of Article VI of the Constitution, reads:.
"The Senate and the House of Representatives shall each have an Electoral Tribunal
which shall be the sole judge of all contests relating to the election, returns, and
qualifications of their respective Members. Each Electoral Tribunal shall be composed
of nine Members, three of whom shall be Justices of the Supreme Court to be
designated by the Chief Justice, and the remaining six shall be Members of the
Senate or of the House of Representatives, as the case may be, who shall be chosen
by each House, three upon nomination of the party having the largest number of
votes and three of the party having the second largest number of votes therein. The
Senior Justice in each Electoral Tribunal shall be its Chairman." (Emphasis supplied.).
It appears that on February 22, 1956, as well as at present, the Senate of the
Philippines consists of twenty three (23) members of the Nacionalista Party and one
(1) member of the Citizens Party, namely, Senator Tañada, who is, also, the
president of said party. In the session of the Senate held on February 21, 1956,
Senator Sabido moved that Senator Tañada, "the President of the Citizens Party, be
given the privilege to nominate .. three (3) members" of the Senate Electoral Tribunal
(Congressional Record for the Senate, Vol. III, pp. 328-329), referring to those who,
according to the provision above-quoted, should be nominated by "the party having
the second largest number of votes" in the Senate. Senator Tañada objected formally
to this motion upon the-ground: (a) that the right to nominate said members of the
Senate Electoral Tribunal belongs, not to the Nacionalista Party of which Senator
Sabido and the other Senators are members-but to the Citizens Party, as the one
having the second largest number of votes in the Senate, so that, being devoid of
authority to nominate the aforementioned members of said Tribunal, the Nacionalista
Party cannot give it to the Citizens Party, which, already, has such authority, pursuant
to the Constitution; and (b) that Senator Sabido's motion would compel Senator
Tañada to nominate three (3) Senators to said Tribunal, although as representative of
the minority party in the Senate he has "the right to nominate one, two or three to the
Electoral Tribunal," in his discretion. Senator Tañada further stated that he reserved
the right to determine how many he would nominate, after hearing the reasons of
Senator Sabido in support of his motion. After some discussion, in which Senators
Primicias, Cea, Lim, Sumulong, Zulueta, and Rodrigo took part, the Senate adjourned
until the next morning, February 22, 1956 (Do., do, pp. 329, 330, 332-333, 336, 338,
339, 343).
Then, said issues were debated upon more extensively, with Senator Sumulong, not
only seconding the opposition of Senator Tañada, but, also, maintaining that "Senator
Tañada should nominate only one" member of the Senate, namely, himself, he being
the only Senator who belongs to the minority party in said House (Do., do., pp. 360-
364, 369). Thus, a new issue was raised - whether or not one who does not belong to
said party may be nominated by its spokesman, Senator Tañada - on which Senators
Paredes, Pelaez, Rosales and Laurel, as well as the other Senators already
mentioned, expressed their views (Do., do., pp. 345, 349, 350, 354, 358, 364, 375).
Although the deliberations of the Senate consumed the whole morning and afternoon
of February 22, 1956, a satisfactory solution of the question before the Senate
appeared to be remote. So, at 7:40 p.m., the meeting was suspended, on motion of
Senator Laurel, with a view to seeking a compromise formula (Do., do., pp. 377).
When session was resumed at 8:10 p.m., Senator Sabido withdrew his motion above
referred to. Thereupon, Senator Primicias, on behalf of the Nacionalista Party,
nominated, and the Senate elected, Senators Laurel, Lopez and Primicias, as
members of the Senate Electoral Tribunal. Subsequently, Senator Tañada stated:.
"On behalf of the Citizens Party, the minority party in this Body, I nominate the only
Citizens Party member in this Body, and that is Senator Lorenzo M. Tañada.".
Without an objection, this nomination was approved by the House. Then, Senator
Primicias stood up and said:.
"Now, Mr. President, in order to comply with the provision in the Constitution, the
Committee on Rules of the Senate-and I am now making this proposal not on behalf
of the Nacionalista Party but on behalf of the Committee on Rules of the Senate-I
nominate two other members to complete the membership of the Tribunal: Senators
Delgado and Cuenco.".
What took place thereafter appears in the following quotations from the
Congressional Record for the Senate.
"SENATOR TAÑADA. Mr. President.
"EL PRESIDENTE INTERINO. Caballero de Quezon.
"SENATOR TAÑADA. I would like to record my opposition to the nominations of the
last two named gentlemen, Senators Delgado and Cuenco, not because I don't
believe that they do not deserve to be appointed to the tribunal but because of my
sincere and firm conviction that these additional nominations are not sanctioned by
the Constitution. The Constitution only permits the Nacionalista Party or the party
having the largest number of votes to nominate three.
"SENATOR SUMULONG. Mr. President.
"EL PRESIDENTE INTERINO. Caballero de Rizal.
"SENATOR SUMULONG. For the reasons that I have stated a few moments ago
when I took the floor, I also wish to record my objection to the last nominations, to the
nomination of two additional NP's to the Electoral Tribunal.
"EL PRESIDENTE INTERINO. Esta dispuesto el Senado a votar? (Varios Senadores:
Si.) Los que esten conformes con la nominacion hecha por el Presidente del Comite
de Reglamentos a favor de los Senadores Delgado y Cuenco para ser miembros del
Tribunal Electoral, digan, si. (Varios Senadores: Si.) Los que no lo esten digan, no
(Silencio.) Queda aprobada." (Congressional Record for the Senate, Vol. III, p. 377;
emphasis supplied.).
Petitioners maintain that said nomination and election of Senators Cuenco and
Delgado-who belong to the Nacionalista Party-as members of the Senate Electoral
Tribunal, are null and void and have been made without power or color of authority,
for, after the nomination by said party, and the election by the Senate, of Senators
Laurel, Lopez and Primicias, as members of said Tribunal, the other Senators, who
shall be members thereof, must necessarily be nominated by the party having the
second largest number of votes in the Senate, and such party is, admittedly, the
Citizens Party, to which Senator Tañada belongs and which he represents.
Respondents allege, however, that the constitutional mandate to the effect that "each
Electoral Tribunal shall be compose of nine (9) members," six (6) of whom "shall be
members of the Senate or of the House of Representatives, as the case may be", is
mandatory; that when-after the nomination of three (3) Senators by the majority party,
and their election by the Senate, as members of the Senate Electoral Tribunal-
Senator Tañada nominated himself only, on behalf of the minority party, he thereby
"waived his right to no two more Senators;" that, when Senator Primicias nominated
Senators Cuenco and Delgado, and these respondents were chosen by the Senate,
as members of the Senate Electoral Tribunal, Said Senator Primicias and the Senate
merely complied with the aforementioned provision of the fundamental law, relative to
the number of members of the Senate Electoral Tribunal; and, that, accordingly,
Senators Cuenco and Delgado are de jure members of said body, and the
appointment of their co-respondents, Alfredo Cruz, Catalina Cayetano, Manuel
Serapio and Placido Reyes is valid and lawful.
At the outset, it will be recalled that the proceedings the organization of the Senate
Electoral Tribunal began with a motion of Senator Sabido to the effect that "the
distinguished gentleman from Quezon, the President of the Citizens Party, be given
the privilege to nominate the three Members" of said Tribunal. Senator Primicias
inquired why the movant had used the word "privilege". Senator Sabido explained
that the present composition of the Senate had created a condition or situation which
was not anticipated by the framers of our Constitution; that although Senator Tañada
formed part of the Nacionalista Party before the end of 1955, he subsequently parted
ways with" said party; and that Senator Tañada "is the distinguished president of the
Citizens Party," which "approximates the situation desired by the framers of the
Constitution" (Congressional Record for the Senate Vol. III, pp. 329-330). Then
Senator Lim intervened, stating:.
"At present Senator Tañada is considered as forming the only minority or the one that
has the second largest number of votes in the existing Senate, is not that right? And if
this is so, he should be given this as a matter of right, not as a matter of privilege. .. I
don't believe that we should be allowed to grant this authority to Senator Tañada only
as a privilege but we must grant it as a matter of right." (Id., id., p. 32; emphasis
supplied.).
Similarly, Senator Sumulong maintained that "Senator Tañada, as Citizens Party
Senator, has the right and not a mere privilege to nominate," adding that:.
".. the question is whether we have a party here having the second largest number of
votes, and it is clear in my mind that there is such a party, and that is the Citizens
Party to which the gentleman from Quezon belongs. .. We have to bear in mind, ..
that when Senator Tañada was included in the Nacionalista Party ticket in 1953, it
was by virtue of a coalition or an alliance between the Citizens Party and the
Nacionalista Party at that time, and I maintain that when Senator Tañada as head of
the Citizens Party entered into a coalition with the Nacionalista Party, he did not
thereby become a Nacionalista because that was a mere coalition, not a fusion.
When the Citizens Party entered into a mere coalition, that party did not lose its
personality as a party separate and distinct from the, Nacionalista Party. And we
should also remember that the certificate of candidacy filed by Senator Tañada in the
1953 election was one to the effect that he belonged to the Citizens Party .." (Id., id.,
p. 360; emphasis supplied.).
The debate was closed by Senator Laurel, who remarked, referring to Senator
Tañada:.
"..there is no doubt that he does not belong to the majority in the first place, and that,
therefore, he belongs to the minority. And whether we like it or not, that is the reality
of the actual situation-that he is not a Nacionalista now, that he is the head and the
representative of the Citizens Party. I think that on equitable ground and from the
point of view of public opinion, his situation .. approximates or approaches what is
within the spirit of that Constitution. .. and from the point of view of the spirit of the
Constitution it would be a good thing if we grant the opportunity to Senator Tañada to
help us in the organization of this Electoral Tribunal (Id., id., p. 376; emphasis
supplied.).
The foregoing statements and the fact that, thereafter, Senator Sabido withdrew his
motion to grant Senator Tañada the "privilege" to nominate, and said petitioner
actually nominated himself "on behalf of the Citizens Party, the minority party in this
Body"-not only without any, objection whatsoever, but, also, with the approval of the
Senate-leave no room for doubt that the Senate-leave no room for doubt that the
Senate has regarded the Citizens Party, represented by Senator Tañada, as the party
having the second largest number of votes in said House.
Referring, now, to the contention of respondents herein, their main argument in
support of the mandatory character of the constitutional provision relative to the
number of members of the Senate Electoral Tribunal is that the word "shall", therein
used, is imperative in nature and that this is borne out by an opinion of the Secretary
of Justice dated February 1, 1939, pertinent parts of which are quoted at the footnote.
6.
Regardless of the respect due its author, as a distinguished citizen and public official,
said opinion has little, if any, weight in the solution of the question before this Court,
for the practical construction of a Constitution is of little, if any, unless it has been
uniform .." 6a Again, "as a general rule, it is only in cases of substantial doubt and
ambiguity that the doctrine of contemporaneous or practical construction has any
application". As a consequence, "where the meaning of a constitutional provision is
clear, a contemporaneous or practical executive interpretation thereof is entitled to no
weight, and will not be allowed to distort or in any way change its natural meaning."
The reason is that "the application of the doctrine of contemporaneous construction is
more restricted as applied to the interpretation of constitutional provisions than when
applied to statutory provisions", and that, "except as to matters committed by the
Constitution, itself to the discretion of some other department, contemporary or
practical construction is not necessarily binding upon the courts, even in a doubtful
case." Hence, "if in the judgment of the court, such construction is erroneous and its
further application is not made imperative by any paramount considerations of public
policy, it may he rejected." (16 C. J. S., 71-72; emphasis supplied.) 6b.
The aforemention opinion of the Secretary of Justice is not backed up by a, "uniform"
application of the view therein adopted, so essential to give thereto the weight
accorded by the rules on contemporaneous constructions. Moreover, said opinion
tends to change the natural meaning of section 11 of Article VI of the Constitution,
which is clear. What is more, there is not the slightest doubt in our mind that the
purpose and spirit of said provisions do not warrant said change and that the rejection
of the latter is demanded by paramount considerations of public policy. .
The flaw in the position taken in said opinion and by respondent herein is that, while,
it relies upon the compulsory nature of the word "shall", as regards the number of
members of the Electoral Tribunals, it ignores the fact that the same term is used with
respect to the method prescribed for their election, and that both form part of a single
sentence and must be considered, therefore, as integral portions of one and the same
thought. Indeed, respondents have not even tried to show and we cannot conceive-
why "shall" must be deemed mandatory insofar as the number of members of each
Electoral Tribunal, and should be considered directory as regards the procedure for
their selection. More important still, the history of section 11 of Article VI of the
Constitution and the records of the Convention, refute respondents' pretense, and
back up the theory of petitioners herein.
Commenting on the frame of mind of the delegates to the Constitutional Convention,
when they faced the task of providing for the adjudication of contests relating to the
election, returns and qualifications of members of the Legislative Department, Dr.
Jose M. Aruego, a member of said Convention, says:.
"The experience of the Filipino people under the provisions of the organic laws which
left to the lawmaking body the determination of the elections, returns, and
qualifications of its members was not altogether satisfactory. There were many
complaints against the lack of political justice in this determination; for in a great
number of cases, party interests controlled and dictated the decisions. The undue
delay in the dispatch of election contests for legislative seats, the irregularities that
characterized the proceedings in some of them, and the very apparent injection of
partisanship in the determination of a great number of the cases were decried by a
great number of the people as well as by the organs of public opinion.
"The faith of the people in the uprightness of the lawmaking body in the performance
of this function assigned to it in the organic laws was by no means great. In fact so
blatant was the lack of political justice in the decisions that there was, gradually built
up a camp of thought in the Philippines inclined to leave to the courts the
determination of election contests, following the practice in some countries, like
England and Canada.
"Such were the conditions of things at the time of the meeting of the convention."
(The Framing of the Philippine Constitution by Aruego, Vol. 1, pp. 257-258; emphasis
supplied.).
This view is shared by distinguished members of the Senate. Thus, in its session of
February 22, 1956, Senator Sumulong declared:.
".. when you leave it to either House to decide election protests involving its own
members, that is virtually placing the majority party in a position to dictate the
decision in those election cases, because each House will be composed of a majority
and a minority, and when you make each House the judge of every election protest
involving any member of that House, you place the majority in a position to dominate
and dictate the decision in the case and result was, there were so many abuses,
there were so main injustices: committed by the majority at the expense and to the
prejudice of the minority protestants. Statements have been made here that justice
was done even under the old system, like that case involving Senator Mabanag,
when he almost became a victim of the majority when he had an election case, and it
was only through the intervention of President Quezon that he was saved from
becoming the victim of majority injustices.
"It is true that justice had sometimes prevailed under the old system, but the record
will show that those cases were few and they were the rare exceptions. The
overwhelming majority of election protests decided under the old system was that the
majority being then in a position to dictate the, decision in the election protest, was
tempted to commit as it did commit many abuses and injustices." (Congressional
Record for the Senate, Vol. 111, p. 361; emphasis supplied.).
Senator Paredes, a veteran legislator and former Speaker of the House of
Representatives, said:.
".. what was intended in the creation of the electoral tribunal was to create a sort of
collegiate court composed of nine members: Three of them belonging to the party
having the largest number of votes, and three from the party having the second
largest number votes so that these members may represent the party, and the
members of said party who will sit before the electoral tribunal as protestees. For
when it comes to a party, Mr. President, there ground to believe that decisions will be
made along party lines." (Congressional Record for the Senate, Vol. III, p. 351;
emphasis supplied.).
Senator Laurel, who played an important role in the framing of our Constitution,
expressed himself as follows:.
"Now, with reference to the protests or contests, relating to the election, the returns
and the qualifications of the members of the legislative bodies, I heard it said here
correctly that there was a time when that was given to the corresponding chamber of
the legislative department. So the election, returns and qualifications of the members,
of the Congress or legislative body was entrusted to that body itself as the exclusive
body to determine the election, returns and qualifications of its members. There was
some doubt also expressed as to whether that should continue or not, and the
greatest argument in favor of the retention of that provision was the fact that was,
among other things, the system obtaining in the United States under the Federal
Constitution of the United States, and there was no reason why that power or that
right vested in the legislative body should not be retained. But it was thought that
would make the determination of this contest, of this election protest, purely political
as has been observed in the past." (Congressional Record for the Senate, Vol. III, p.
376; emphasis supplied.).
It is interesting to note that not one of the members of the Senate contested the
accuracy of the views thus expressed.
Referring particularly to the philosophy underlying the constitutional provision quoted
above, Dr. Aruego states:.
"The defense of the Electoral Commission was based primarily upon the hope and
belief that the abolition of Party line because of the equal representation in this body
of the majority and the minority parties of the National Assembly and the intervention
of some members of the Supreme Court who, under the proposed constitutional
provision, would also be members of the same, would insure greater political justice
in the determination of election contests for seats in the National Assembly than there
would be if the power had been lodged in the lawmaking body itself. Delegate
Francisco summarized the arguments for the creation of the Electoral Commission in
the following words:.
"I understand that from the time that this question is placed in the hands of members
not only of the majority party but also of the minority party, there is already a
condition, a factor which would make protests decided in a non-partisan manner. We
know from experience that many times in the many protests tried in the House or in
the Senate, it was impossible to prevent the factor of party from getting in. From the
moment that it is required that not only the majority but also the minority should
intervene in these questions, we have already enough guarantee that there would be
no tyranny on the part of the majority.
`But there is another more detail which is the one which satisfies me most, and that is
the intervention of three justices. So that with this intervention of three justices if there
would be any question as to the justice applied by the majority or the minority, if there
would be any fundamental disagreement, or if there would be nothing but questions
purely of party in which the members of the majority as well as those of the minority
should wish to take lightly a protest because the protestant belongs to one of said
parties, we have in this case, as a check upon the two parties, the actuations of the
three justices. In the last analysis, what is really applied in the determination of
electoral cases brought before the tribunals of justice or before the House of
Representatives or the Senate? Well, it is nothing more than the law and the doctrine
of the Supreme Court. If that is the case, there will be greater skill in the application of
the laws and in the application of doctrines to electoral matters having as we shall
have three justices who will act impartially in these electoral questions.
`I wish to call the attention of my distinguished colleagues to the fact that in electoral
protests it is impossible to set aside party interests. Hence, the best guarantee, I
repeat, for the administration of justice to the parties, for the fact that the laws will not
be applied rightfully or incorrectly as well as for the fact that the doctrines of the
Supreme Court will be applied rightfully, the best guarantee which we shall have, I
repeat, is the intervention of the three justices. And with the formation of the Electoral
Commission, I say again, the protestants as well as the protestees could remain
tranquil in the certainty that they will receive the justice that they really deserve. If we
eliminate from this precept the intervention of the party of the minority and that of the
three justices, then we shall be placing protests exclusively in the hands of the party
in power. And I understand, gentlemen, that in practice that has not given good
results. Many have criticized, many have complained against, the tyranny of the
majority in electoral cases .. I repeat that the best guarantee the fact that these
questions will be judged not only by three members of the majority but also by three
members of the minority, with the additional guarantee of the impartial judgment of
three justices of the Supreme Court." (The Framing of the Philippine Constitution by
Aruego, Vol. I, pp. 261-263; emphasis supplied.).
The foregoing was corroborated by Senator Laurel. Speaking for this Court, in Angara
vs. Electoral Commission (63 Phil., 139), he asserted:.
"The members of the Constitutional Convention who framed our fundamental law
were in their majority-men mature in years and experience. To be sure, many of them
were familiar with the history and political development of other countries of the world.
When, therefore they deemed it wise to create an Electoral Commission as a
constitutional organ and invested with the exclusive function of passing upon and
determining the election, returns and qualifications of the members of the National
Assembly, they must have done so not only in the light of their own experience but
also having in view the experience of other enlightened peoples of the world. The
creation of the Electoral Commission was designed to remedy certain evils of which
the framers of our Constitution were cognizant. Notwithstanding the vigorous
opposition of some members of the Convention to its creation, the plan, as
hereinabove stated, was approved by that body by a vote of 98 against 58. All that
can be said now is that, upon the approval of the Constitution, the creation of the
Electoral Commission is the expression of the wisdom `ultimate justice of the people'.
(Abraham Lincoln, First Inaugural Address, March 4, 1861.).
"From the deliberations of our Constitutional Convention it is evident that the purpose
was to transfer in its totality all the powers previously exercised by the legislature in
matters pertaining to contested elections of its members, to an independent and
impartial tribunal. It was not so much the knowledge and appreciation of
contemporary constitutional precedents, however, as the long felt need of determining
legislative contests devoid of partisan considerations which prompted the people
acting through their delegates to the Convention, to provide for this body known as
the Electoral Commission. With this end in view, a composite body in which both the
majority and minority parties are equally represented to off-set partisan influence in its
deliberations was created, and further endowed with judicial temper by including in its
membership three justices of the Supreme Court," (Pp. 174-175.) 7.
As a matter of fact, during the deliberations of the convention, Delegates Conejero
and Roxas said:.
"El Sr. CONEJERO. Antes de votarse la enmienda, quisiera pedir informacion del
Subcomite de Siete.
"El Sr. PRESIDENTE. Que dice el Comite?" El Sr. ROXAS. Con mucho gusto. "El Sr.
CONEJERO. Tal como esta el draft., dando tres miembrosala mayoria, y otros t?-es
a la minyoryia y atros a la Corte Suprerma, no cree su Senoria que este equivale
pricticamente a dejar el asunto a los miembros del Tribunal Supremo?.
"El Sr. ROXAS. Si y no. Creemos que si el tribunal a la Comision esta cotistuido en
esa forma, tanto los miembros de la mayoria como los de la minoria asi como los
miembros de la Corte Saprema consideration la cuestion sobre la base de sus
meritos, sabiendo que el partidismo no es suficiente para dar el triunbo.
"El Sr. CONEJERO. Cree Su Senoria que en un caso como ese, podriamos hacer
que tanto los de la mayoria como los de la minoria prescindieran del partidisrno?.
"El Sr. ROXAS. Creo que si, porque el partidismo no les daria el triunfo." (Angara vs.
Electoral Commission, supra, pp. 168-169; emphasis supplied.).
It is clear from the foregoing that the main objective of the framers of our Constitution
in providing for the establishment, first, of an Electoral Commission, 8 and then 9 of
one Electoral Tribunal for each House of Congress, was to insure the exercise of
judicial impartiality in the disposition of election contests affecting members of the
lawmaking body. To achieve this purpose, two devices were resorted to, namely: (a)
the party having the largest number of votes, and the party having the second largest
number of votes, in the National Assembly or in each House of Congress, were given
the same number of representatives in the Electoral Commission or Tribunal, so that
they may realize that partisan considerations could not control the adjudication of said
cases, and thus be induced to act with greater impartiality; and (b) the Supreme Court
was given in said body the same number of representatives as each one of said
political parties, so that the influence of the former may be decisive and endow said
Commission or Tribunal with judicial temper.
This is obvious from the very language of the constitutional provision under
consideration. In fact, Senator Sabido-who had moved to grant to Senator Tañada the
privilege" to make the nominations on behalf of party having the second largest
number of votes in the Senate-agrees with it. As Senator Sumulong inquired:.
"..I suppose Your Honor will agree with me that the framers of the Constitution
precisely thought of creating this Electoral Tribunal so as to prevent the majority from
ever having a preponderant majority in the Tribunal." (Congressional Record for the
Senate, Vol. III, p. 330; emphasis supplied.).
Senator Sabido replied:.
"That is so, .." (Id., p. 330.).
Upon further interpretation, Senator Sabido said:.
".. the purpose of the creation of the Electoral Tribunal and of its composition is to
maintain a balance between the two parties and make the members of the Supreme
Court the controlling power so to speak of the Electoral Tribunal or hold the balance
of power. That is the ideal situation." (Congressional Record for the Senate, Vol. III, p.
349; emphasis supplied.).
Senator Sumulong opined along the same line. His words were: .
"..The intention is that when the three from the majority and the three from the
minority become members of the Tribunal it is hoped that they will become aware of
their judicial functions, not to protect the protestants or the protegees. It is hoped that
they will act as judges because to decide election cases is a judicial function. But the
framers of, the Constitution besides being learned were men of experience. They
knew that even Senators like us are not angels, that we are human beings, that if we
should be chosen to go to the Electoral Tribunal no one can say that we will entirely
be free from partisan influence to favor our party, so that in, case that hope that the
three from the majority and the three from the minority who will act as Judges should
result in disappointment, in case they do not act as judges but they go there and vote
along party liner, still there is the guarantee that they will offset each other and the
result will be that the deciding vote will reside in the hands of the three Justices who
have no partisan motives to favor either the protestees or the protestants. In other
words, the whole idea is to prevent the majority from controlling and dictating the
decisions of the Tribunal and to make sure that the decisive vote will be wielded by
the Congressmen or Senators who are members the Tribunal but will be wielded by
the Justices who, by virtue of their judicial offices, will have no partisan motives to
serve, either protestants, or protestees. That is my understanding of the intention of
the framers of the Constitution when they decided to create the Electoral Tribunal.
xxx xxx x x x.
"My idea is that the intention of the framers of the constitution in creating the Electoral
Tribunal is to insure impartially and independence in its decision, and that is sought to
be done by never allowing the majority party to control the Tribunal, and secondly by
seeing to it that the decisive vote in the Tribunal will be left in the hands of persons
who have no partisan interest or motive to favor either protestant or protestee."
(Congressional Record for the Senate, Vol. III, pp. 362-363, 365-366; emphasis
supplied.).
So important in the "balance of powers" between the two political parties in the
Electoral Tribunals, that several members of the Senate questioned the right of the
party having the second largest number of votes in the Senate and, hence, of Senator
Tañada, as representative of the Citizens Party-to nominate for the Senate Electoral
Tribunal any Senator not belonging to said party. Senators Lim, Sabido, Cea and
Paredes maintained that the spirit of the Constitution would be violated if the
nominees to the Electoral Tribunals did not belong to the parties respectively making
the nominations. 10.
It is not necessary, for the purpose of this decision, to determine whether the parties
having the largest, and the second largest, number of votes in each House may
nominate, to the Electoral Tribunals, those members of Congress who do not belong
to the party nominating them. It is patent, however, that the most vital feature of the
Electoral Tribunals is the equal representation of said parties therein, and the
resulting equilibrium to be maintained by the Justices of the Supreme Court as
members of said Tribunals. In the words of the members of the present Senate, said
feature reflects the "intent" "purpose", and "spirit of the Constitution", pursuant to
which the Senate Electoral Tribunal should be organized (Congressional Record for
the Senate, pp. 330, 337, 348-9, 350, 351, 355, 358, 362-3, 364, 370, 376).
Now then, it is well settled that "the purpose of all rules or maxims as to the
construction or interpretation of statutes is to discover the true intention of the law"
(82 C. J. S., 526) and that.
"As a general rule of statutory construction, the spirit or intention of a statute prevails
over the letter thereof, and whatever is within the spirit of statute is within the statute
although it is not within the letter, while that which is within the letter, but not within
the spirit of a statute, is not within the statute; but, where the law is free and clear
from ambiguity, the letter of it is not to be disregarded on the pretext of pursuing its
spirit." (82 C. J. S., 613.).
"There is no universal rule or absolute test by which directory provisions in a statute
may in all circumstances be distinguished from those which are mandatory. However,
in the determination of this question, as of every other question of statutory
construction, the prime object is to ascertain the legislative intent. The legislative
intent must be obtained front all the surrounding circumstances, and the
determination does not depend on the form of the statute. Consideration must be
given to the entire statute, its nature, its object, and the consequences which would
result from construing it one way or the other, and the statute must be construed in
connection with other related statutes. Words of permissive character may be given a
mandatory significance in order to effect the legislative intent, and, when the terms of
a statute are such that they cannot be made effective to the extent of giving each and
all of them some reasonable operation, without construing the statute as mandatory,
such construction should be given; .. On the other hand, the language of a statute,
however mandatory in form, may be deemed directory whenever legislative purpose
can best be carried out by such construction, and the legislative intent does not
require a mandatory construction; but the construction of mandatory words as
directory should not be lightly adopted and never where it would in fact make a new
law instead of that passed by the legislature. .. Whether a statute is mandatory or
directory depends on whether the thing directed to be done is of the essence of the
thing required, or is a mere matter of form, and what is a matter of essence can often
be determined only by judicial construction. Accordingly, when a particular provision
of a statute relates to some immaterial matter, as to which compliance with the statute
is a matter of convenience rather than substance, or where the directions of a statute
are given merely with a view to the proper, orderly, and prompt conduct of business, it
is generally regarded as directory, unless followed by words of absolute prohibition;
and a statute is regarded as directory were no substantial rights depend on it, no
injury can result from ignoring it, and the purpose of the legislative can be
accomplished in a manner other than that prescribed, with substantially the same
result. On the other hand, a provision relating to the essence of the thing to be done,
that is, to matters of substance, is mandatory, and when a fair interpretation of a
statute, which directs acts or proceedings to be done in a certain way shows that the
legislature intended a compliance with such provision to be essential to the validity of
the act or proceeding, or when same antecedent and pre-requisite conditions must
exist prior to the exercise of power, or must be performed before certain other powers
can be exercise, the statute must be regarded as mandatory. (Id., pp. 869-874.) (See
also, Words and Phrases, Vol. 26, pp. 463-467; emphasis supplied.).
What has been said above, relative to the conditions antecedent to, and concomitant
with, the adoption of section 11 of Article VI of the Constitution, reveals clearly that its
framers intended to prevent the majority party from controlling the Electoral Tribunals,
and that the structure thereof is founded upon the equilibrium between the majority
and the minority parties therein, with the Justices of the Supreme Court, who are
members of said Tribunals, holding the resulting balance of power. The procedure
prescribed in said provision for the selection of members of the Electoral Tribunals is
vital to the role they are called upon to play. it constitutes the essence of said
Tribunals. Hence, compliance with said procedure is mandatory, and acts performed
in violation thereof are null and void. 11.
It is true that the application of the foregoing criterion would limit the membership of
the Senate Electoral Tribunal, in the case at bar, to seven (7), instead of nine (9),
members; but, it is conceded that the present composition of the Senate was not
foreseen by the framers of our Constitution (Congressional Record for the Senate,
Vol. III, pp. 329, 342, 349, 354, 359, 375). Furthermore, the spirit of the law prevails
over its letter, and the solution herein adopted maintains the spirit of the Constitution,
for partisan considerations can not be decisive in a tribunal consisting of three (3)
Justices of the Supreme Court, three (3) members nominated by the majority party
and either one (1) or two (2) members nominated by the party having the second
largest number of votes in the House concerned.
Upon the other hand, what would be the result of respondents' contention if upheld?
Owing to the fact that the Citizens Party 12 has only one member in the Upper
House, Senator Tañada felt he should nominate, for the Senate Electoral Tribunal,
only said member of the Citizens Party. The same is, thus, numerically handicapped,
vis-a-vis the majority party, in said Tribunal. Obviously, Senator Tañada did not
nominate other two Senators, because, otherwise, he would worsen the already
disadvantageous position, therein, of the Citizens Party. Indeed, by the
aforementioned nomination and election of Senators Cuenco and Delgado, if the
same were sanctioned, the Nacionalista Party would have five (5) members in the
Senate Electoral Tribunal, as against one (1) member of the Citizens Party and three
members of the Supreme Court. With the absolute majority thereby attained by the
majority party in said Tribunal, the philosophy underlying the same would be entirely
upset. The equilibrium between the political parties therein would be destroyed. What
is worst, the decisive moderating role of the Justices of the Supreme Court would be
wiped out, and, in lieu thereof, the door would be thrown wide open for the
predominance of political considerations in the determination of election protests
pending before said Tribunal, which is precisely what the fathers of our Constitution
earnestly strove to forestall. 13.
This does not imply that the honesty, integrity or impartiality of Senators Cuenco and
Delgado are being questioned. As a matter of fact, when Senator Tañada objected to
their nomination, he explicitly made of record that his opposition was based, not upon
their character, but upon the principle involved. When the election of members of
Congress to the Electoral Tribunal is made dependent upon the nomination of the
political parties above referred to, the Constitution thereby indicates its reliance upon
the method of selection thus established, regardless of the individual qualities of
those chosen therefor. Considering the wealth of experience of the delegatesto the
Convention, as lawyers of great note, as veteran politicians and as leaders in other
fields of endeavor, they could not, and did not, ignore the fact that the Constitution
must limit itself to giving general patterns or norms of action. In connection,
particularly, with the composition of the Electoral Tribunals, they believed that, even
the most well meaning individuals often find it difficult to shake off the bias and
prejudice created by political antagonisms and to resist the demands of political
exigencies, the pressure of which is bound to increase in proportion to the degree of
predominance of the party from which it comes. As above stated, this was confirmed
by distinguished members of the present Senate. (See pp. 25-28, 33, 34, supra.).
In connection with the argument of the former Secretary of Justice to the effect that
when "there is no minority party represented in the Assembly, the necessity for such a
check by the minority disappears", the following observations of the petitioners herein
are worthy of notice:.
" Under the interpretation espoused by the respondents, the very frauds or terrorism
committed by a party would establish the legal basis for the final destruction of
minority parties in the Congress at least. Let us suppose, for example, that in the
Senate, the 15 or 16 senators with unexpired terms belong to the party A. In the
senatorial elections to fill the remaining 8 seats, all the 8 candidates of party A are
proclaimed elected through alleged fraud and/or terrorism. (The ouster of not less
than 3 senators-elect in the elections held since liberation attests to the reality of
election frauds and terrorism in our country.) There being no senator or only one
senator belonging to the minority, who would sit in judgment on the election
candidates of the minority parties? According to the contention of the respondents, it
would be a Senate Electoral Tribunal made up of three Supreme Court Justices and 5
or 6 members of the same party A accused of fraud and terrorism. Most respectfully,
we pray this Honorable Court to reject an interpretation that would make of a
democratic constitution the very instrument by which a corrupt and ruthless party
could entrench itself in power the legislature and thus destroy democracy in the
Philippines.
xxx xxx x x x.
".. When there are no electoral protests filed by the Minority party, or when the only
electoral protests filed are by candidates of the majority against members-elect of the
same majority party, there might be no objection to the statement. But if electoral
protests are filed by candidates of the minority party, it is at this point that a need for a
check on the majority party is greatest, and contrary to the observation made in the
above-quoted opinion, such a cheek is a function that cannot be successfully
exercised by the 3 Justices of the Supreme Court, for the obvious and simple reason
that they could easily be outvoted by the 6 members of the majority party in the
Tribunal.
xxx xxx x x x.
"In the case of the cited opinion of Secretary Abad Santos rendered in 1939, it, did
not appear that there were minority party candidates who were adversely affected by
the ruling of the Secretary of Justice and who could have brought a test case to
court." (Emphasis supplied.).
The defenses of waiver and estoppel set up against petitioner Tañada are untenable.
Although "an individual may waive constitutional provisions intended for his benefit",
particularly those meant for the protection of his property, and, sometimes, even
those tending "to secure his personal liberty", the power to waive does not exist when
"public policy or public morals" are involved. (11 Am. Jur. 765; I Cooley's
Constitutional Limitations, pp. 368-371). The procedure outlined in the Constitution for
the organization, of the Electoral Tribunals was adopted in response to the demands
of the common weal, and it has been held that where a statute is founded on public
policy, those to whom it applies should not be permitted to waive its provisions" (82 C.
J. S., 874). Besides, there can be no waiver without an intent to such effect, which
Senator Tañada did not have. Again, the alleged waiver or exhaustion of his rights
does not justify the exercise thereof by a person or party, other than that to which it is
vested exclusively by the Constitution.
The rule estoppel is that "whenever a party has, by his declaration, act or omissions,
intentionally and deliberately led another to believe a particular thing true, and to act
upon such belief, he cannot, in a litigation arising out of such declaration, act or
omission, be permitted to falsify it" (Rule 69, sec. 68 [a], Rules of Court). In the case
at bar, petitioner Senator Tañada did not lead the Senate to believe that Senator
Primicias could nominate Senators Cuenco and Delgado. On the contrary, said
petitioner repeatedly asserted that his was the exclusive right to make the nomination.
He, likewise, specifically contested said nomination of Senators Cuenco and Delgado.
Again, the rule on estoppel applies to questions of fact, not of law, about the truth of
which the other party is ignorant (see Moran's Comments on the Rules of Court, Vol.
3, pp. 490, 495). Such is not the nature of the situation that confronted Senator
Tañada and the other members of the Senate. Lastly, the case of Zandueta vs. De la
Costa (66 Phil., 615), cited by respondents, is not in point. Judge Zandueta assumed
office by virtue of an appointment, the legality of which he later on assailed. In the
case at bar, the nomination and election of Senator Tañada as member of the Senate
Electoral Tribunal was separate, distinct and independent from the nomination and
election of Senators Cuenco and Delgado.
In view of the foregoing, we hold that the Senate may not elect, as members of the
Senate Electoral Tribunal, those Senators who have not been nominated by the
political parties specified in the Constitution; that the party having the largest number
of votes in the Senate may nominate not more than three (3) members thereof to said
Electoral Tribunal; that the party having the second largest number of votes in the
Senate has the exclusive right to nominate the other three (3) Senators who shall sit
as members in the Electoral Tribunal; that neither these three (3) Senators, nor any of
them, may be nominated by a person or party other than the one having the second
largest number of votes in the Senate or its representative therein; that the
Committee on Rules for the Senate has no standing to validly make such nomination
and that the nomination of Senators Cuenco and Delgado by Senator Primicias, and
the election of said respondents by the Senate, as members of said Tribunal, are null
and void ab initio.
As regards respondents Alfredo Cruz, Catalina Cayetano, Manuel Serapio and
Placido Reyes, we are not prepared to hold, however, that their appointments were
null and void. Although recommended by Senators Cuenco and Delgado, who are not
lawful members of the Senate Electoral Tribunal, they were appointed by its
Chairman, presumably, with the consent of the majority of the de jure members of
said body 14 or, pursuant to the Rules thereof. At any rate, as held in Suanes vs.
Chief Accountant (supra), the election of its personnel is an internal matter falling
within the jurisdiction and control of said body, and there is every reason to believe
that it will, hereafter take appropriate measures, in relation to the four (4) respondents
abovementioned, conformably with the spirit of the Constitution and of, the decision in
the case at bar.
Wherefore, judgment is hereby rendered declaring that, respondents Senators
Mariano Jesus Cuenco and Francisco A. Delgado have not been duly elected as
Members of the Senate Electoral Tribunal, that they are not entitled to act as such
and that they should be, as they are hereby, enjoined from exercising the powers and
duties of Members of said Electoral Tribunal and from acting in such capacity in
connection with Senate Electoral Case No. 4 thereof. With the qualification stated
above, the petition is dismissed, as regards respondents Alfredo Cruz, Catalina
Cayetano, Manuel Serapio and Placido Reyes. Without special pronouncement as to
costs. It is so ordered.
Bengzon, Padilla, Montemayor, Reyes, A., Bautista Angelo, Reyes, J.B.L., and Felix,
JJ., concur.
Paras, C.J., dissenting:.
In 1939, Section (4) of Article VI of the Philippine Constitution provided that "There
shall be an Electoral Commission composed of three Justices of the Supreme Court
designated by the Chief Justice, and of six members chosen by the National
Assembly, three of whom shall be nominated by the party having the largest number
of votes, and three by the party having the second largest number of votes therein."
As all the members of the National Assembly then belonged to the Nacionalista Party
and a belief arose that it was impossible to comply with the constitutional requirement
that three members of the Electoral Commission should be nominated by the party
having the second largest number of votes, the opinion of the Secretary of Justice
was sought on the proper interpretation of the constitutional provision involved.
Secretary of Justice Jose A. Santos accordingly rendered the following opinion:.
"Sir:.
"I have the honor to acknowledge the receipt of your letter of January 24, 1939, thru
the office of His Excellency, the President, in which you request my opinion as `to the
proper interpretation of the following provision of Section (4) of Article VI of the
Philippine Constitution':.
`There shall be an Electoral Commission composed of three Justices of the Supreme
Court designated by the Chief Justice, and of six members chosen by the National
Assembly, three of whom shall be nominated by the party having the largest number
of votes, and three by the party having the second largest number of votes therein.'.
"You state that `as all the members of the present National Assembly belong to the
Nacionalista Party, it is impossible to comply with the last part of the provision which
requires that three members shall be nominated by the party having the second
largest number of votes in the Assembly.'.
"The main features of the constitutional provision in question are: (1) that there shall
be an Electoral Commission composed of three Justices of the Supreme Court
designated by the Chief Justice, and of six members chosen by the National
Assembly; and that (2) of the six members to be chosen by the National Assembly,
three shall be nominated by the party having the largest number of votes and three by
the party having the second largest number of votes.
"Examining the history of the constitutional provision, I find that in the first two drafts it
was provided that the Electoral Commission shall be composed of `three members
elected by the members of the party having the largest number of vote three elected
by the members of the party having the second largest number of votes, and three
justices of the Supreme Court ..(Aruego, The Framing of the Phil. Const., pp. 260-
261). But as finally adopted by the Convention, the Constitution explicitly states that
there shall be `six members chosen by the National Assembly, three of whom shall be
nominated by the party having the largest number of votes, an and three by the party
having the second largest number of votes' (Aruego, The Framing of the Phil. Const.,
pp. 271-272).
"From the foregoing changes in the phraseology of the provision, it is evident that the
intention of the framers of our Constitution was that there should invariably be six
members from the National Assembly. It was also intended to create a non-partisan
body to decide any partisan contest that may be brought before the Commission. The
primary object was to avoid decision based chiefly if not exclusively on partisan
considerations.
"The procedure or manner of nomination cannot possibly affect the constitutional
mandate that the Assembly is entitled to six members in the Electoral Commission.
When for lack of a minority representation in the Assembly the power to nominate
three minority members cannot be exercised, it logically follows that the only party the
Assembly may nominate three others, otherwise the explicit mandate of the
Constitution that there shall be six members from the National Assembly would be
nullified.
"In other words, fluctuations in the total membership of the Commission were not and
could not have been intended. We cannot say that the Commission should have nine
members during one legislative term and six members during the next. Constitutional
provisions must always have a consistent application. The membership of the
Commission is intended to be fixed and not variable and is not dependent upon the
existence or non-existence of one or more parties in the Assembly.
"`A cardinal rule in dealing with Constitutions is that they should receive a consistent
and uniform interpretation, so they shall not be taken to mean one thing at one time
and another thing at another time, even though the circumstances may have so
changed as to make a different rule after desirable (11 Am. Jur. 659).
"It is undisputed of course that the primary purpose of the Convention in giving
representation to the minority party in the Electoral Commission was to safeguard the
rights of the minority party and to protect their interests, especially when the election
of any member of the minority party is protested. The basic philosophy behind the
constitutional provision was to enable the minority party to act as a check on the
majority in the Electoral Commission, with the members of the Supreme Court as the
balancing factor. Inasmuch, however, as there is no minority party represented in the
Assembly, the necessity for such a check by the minority party disappears. It is a
function that is expected to be exercised by the three Justices of the Supreme Court.
"To summarize, considering the plain terms of the constitutional provision in question,
the changes that it has undergone since it was first introduced until finally adopted by
the convertion, as well as, the considerations that must have inspired the
Constitutional Convention in adopting it as it is, I have come to the conclusion that the
Electoral Commission should be composed of nine members, three from the
Supreme Court and six chosen by the National Assembly to be nominated by the
party in power, there being no other party entitled to such nomination.".
Pursuant to the foregoing opinion of February 1, 1939, the Electoral Commission was
formally organized, with six members of the National Assembly all belonging to the
same party and three Justices of the Supreme Court. Constitutional amendments
were introduced and duly adopted in 1940, and the Electoral Commission was
replaced by an Electoral Tribunal for each house of Congress. It is now provided that
"Each Electoral Tribunal shall be composed of nine Members, three of whom shall be
Justices of the Supreme Court to be designated by the Chief Justice, and the
remaining six shall be Members of the Senate or of the House of Representatives, as
the case may be, who shall be chosen by each house, three upon nomination of the
party having the largest number of votes and three of the party having the second
largest number of votes therein. The senior Justice in each Electoral Tribunal shall be
its Chairman." (Article VI, Section 11, of the Constitution.).
If there was any doubt on the matter, the same was removed by the amendment of
1940 the framers of which may be assumed to have been fully aware of the one-party
composition of the former National Assembly which gave rise to the abovequoted
opinion of the Secretary of Justice. When instead of wording the amendment in such
a form as to nullify said opinion, Section 11 of Article VI of the Constitution not only
did not substantially depart from the original constitutional provision but also positively
and expressly ordains that "Each Electoral Tribunal shall be composed of nine
Members," the intent has become clear and mandatory that at all times the Electoral
Tribunal shall have nine Members regardless of whether or not two parties make up
each house of Congress.

It is very significant that while the party having the second largest number of votes is
allowed to nominate three Members of the Senate or of the House of
Representatives, it is not required that the nominees should belong to the same party.
Considering further that the six Members are chosen by each house, and not by the
party or parties, the conclusion is inescapable that party affiliation is neither
controlling nor necessary.

Under the theory of the petitioners, even if there were sufficient Members belonging
to the party having the second largest of votes, the latter may nominate less than
three or none at all; and the Chief Justice may similarly designate less than three
Justices. If not absurd, would frustrate the purpose of having an ideal number in the
composition of the Electoral Tribunal and guarding against the possibility of
deadlocks. It would not be accurate to argue that the Members of the Electoral
Tribunal other than the Justices of the Supreme Court would naturally vote along
purely partisan lines, checked or fiscalized only by the votes of the Justices;
otherwise membership in the Tribunal may well be limited to the Justices of the
Supreme Court and so others who are not Members of the Senate or of the House of
Representatives. Upon the other hand, he framers of the Constitution-not insensitive
to some such argument-still had reposed their faith and confidence in the
independence, integrity and uprightness of the Members of each House who are to sit
in the Electoral Tribunals and thereby expected them, as does everybody, to decide
jointly with the Justices of the Supreme Court election contests exclusively upon their
merits.

In view of the failure or unwillingness of Senator Lorenzo M. Tañada of the Citizens

Party, the party having the second largest number of votes in the Senate, to nominate
two other Members of the Electoral Tribunal, the Senate was justified, in obedience to
the constitutional mandate, to choose-as it did-said two Members.

I vote to dismiss the petition.

Endencia, J., concurs.

EN BANC
[G.R. No. 134577. November 18, 1998]
SEN. MIRIAM DEFENSOR SANTIAGO and SEN. FRANCISCO S.
TATAD, petitioners, vs. SEN. TEOFISTO T. GUINGONA, JR. and SEN. MARCELO
B. FERNAN, respondents.
DECISION
PANGANIBAN, J.:
The principle of separation of powers ordains that each of the three great branches of
government has exclusive cognizance of and is supreme in matters falling within its
own constitutionally allocated sphere.
Constitutional respect and a becoming regard for the sovereign acts of a coequal
branch prevents this Court from prying into the internal workings of the
Senate. Where no provision of the Constitution or the laws or even the Rules of the
Senate is clearly shown to have been violated, disregarded or overlooked, grave
abuse of discretion cannot be imputed to Senate officials for acts done within their
competence and authority. This Court will be neither a tyrant nor a wimp; rather, it will
remain steadfast and judicious in upholding the rule and majesty of the law.
The Case
On July 31, 1998, Senators Miriam Defensor Santiago and Francisco S. Tatad
instituted an original petition for quo warranto under Rule 66, Section 5, Rules of
Court, seeking the ouster of Senator Teofisto T. Guingona Jr. as minority leader of
the Senate and the declaration of Senator Tatad as the rightful minority leader.
On August 4, 1998, the Court, upon receipt of the Petition, required the respondents
and the solicitor general to file COMMENT thereon within a non-extendible period of
fifteen (15) days from notice.On August 25, 1998, both respondents and the solicitor
general submitted their respective Comments. In compliance with a Resolution of the
Court dated September 1, 1998, petitioners filed their Consolidated Reply on
September 23, 1998. Noting said pleading, this Court gave due course to the petition
and deemed the controversy submitted for decision, without need of memoranda, on
September 29, 1998.
In the regular course, the regional trial courts and this Court have concurrent
jurisdiction[1] to hear and decide petitions for quo warranto (as well as certiorari,
prohibition and mandamus), and a basic deference to the hierarchy of courts impels a
filing of such petitions in the lower tribunals.[2] However, for special and important
reasons or for exceptional and compelling circumstances, as in the present case, this
Court has allowed exceptions to this doctrine.[3] In fact, original petitions for certiorari,
prohibition, mandamus and quo warranto assailing acts of legislative officers like the
Senate President[4] and the Speaker of the House[5] have been recognized as
exceptions to this rule.
The Facts
The Senate of the Philippines, with Sen. John Henry R. Osmea as presiding officer,
convened on July 27, 1998 for the first regular session of the eleventh Congress. At
the time, in terms of party affiliation, the composition of the Senate was as follows:[6]
10 members -Laban ng Masang Pilipino (LAMP)
7 members - Lakas-National Union of Christian Democrats-United Muslim Democrats
of the Philippines (Lakas-NUCD-UMDP)
1 member - Liberal Party (LP)
1 member - Aksyon Demokrasya
1 member - Peoples Reform Party (PRP)
1 member - Gabay Bayan
2 members - Independent
----------
23 - total number of senators[7] (The last six members are all classified by petitioners
as independent.)
On the agenda for the day was the election of officers. Nominated by Sen. Blas F.
Ople to the position of Senate President was Sen. Marcelo B. Fernan. Sen. Francisco
S. Tatad was also nominated to the same position by Sen. Miriam Defensor
Santiago. By a vote of 20 to 2,[8] Senator Fernan was declared the duly elected
President of the Senate.
The following were likewise elected: Senator Ople as president pro tempore, and
Sen. Franklin M. Drilon as majority leader.
Senator Tatad thereafter manifested that, with the agreement of Senator Santiago,
allegedly the only other member of the minority, he was assuming the position of
minority leader. He explained that those who
had voted for Senator Fernan comprised the majority, while only those who had voted
for him, the losing nominee, belonged to the minority.
During the discussion on who should constitute the Senate minority, Sen. Juan M.
Flavier manifested that the senators belonging to the Lakas-NUCD-UMDP Party --
numbering seven (7) and, thus, also a minority -- had chosen Senator Guingona as
the minority leader. No consensus on the matter was arrived at. The
following session day, the debate on the question continued, with Senators Santiago
and Tatad delivering privilege speeches. On the third session day, the Senate met in
caucus, but still failed to resolve the issue.
On July 30, 1998, the majority leader informed the body that he was in receipt of a
letter signed by the seven Lakas-NUCD-UMDP senators,[9] stating that they had
elected Senator Guingona as the minority leader. By virtue thereof, the Senate
President formally recognized Senator Guingona as the minority leader of the Senate.
The following day, Senators Santiago and Tatad filed before this Court the subject
petition for quo warranto, alleging in the main that Senator Guingona had been
usurping, unlawfully holding and exercising the position of Senate minority leader, a
position that, according to them, rightfully belonged to Senator Tatad.
Issues
From the parties pleadings, the Court formulated the following issues for resolution:
1. Does the Court have jurisdiction over the petition?
2. Was there an actual violation of the Constitution?
3. Was Respondent Guingona usurping, unlawfully holding and exercising the
position of Senate minority leader?
4. Did Respondent Fernan act with grave abuse of discretion in recognizing
Respondent Guingona as the minority leader?
The Courts Ruling
After a close perusal of the pleadings[10] and a careful deliberation on the
arguments, pro and con, the Court finds that no constitutional or legal infirmity or
grave abuse of discretion attended the recognition of and the assumption into office
by Respondent Guingona as the Senate minority leader.
First Issue: The Courts Jurisdiction
Petitioners principally invoke Avelino v. Cuenco[11] in arguing that this Court has
jurisdiction to settle the issue of who is the lawful Senate minority leader. They submit
that the definitions of majority and minority involve an interpretation of the
Constitution, specifically Section 16 (1), Article VI thereof, stating that [t]he Senate
shall elect its President and the House of Representatives its Speaker, by a majority
vote of all its respective Members.
Respondents and the solicitor general, in their separate Comments, contend in
common that the issue of who is the lawful Senate minority leader is an internal
matter pertaining exclusively to the domain of the legislature, over which the Court
cannot exercise jurisdiction without transgressing the principle of separation of
powers. Allegedly, no constitutional issue is involved, as the fundamental law does
not provide for the office of a minority leader in the Senate. The legislature alone has
the full discretion to provide for such office and, in that event, to determine the
procedure of selecting its occupant.
Respondents also maintain that Avelino cannot apply, because there exists no
question involving an interpretation or application of the Constitution, the laws or even
the Rules of the Senate; neither are there peculiar circumstances impelling the Court
to assume jurisdiction over the petition. The solicitor general adds that there is not
even any legislative practice to support the petitioners theory that a senator who
votes for the winning Senate President is precluded from becoming the minority
leader.
To resolve the issue of jurisdiction, this Court carefully reviewed and deliberated on
the various important cases involving this very important and basic question, which it
has ruled upon in the past.
The early case Avelino v. Cuenco cautiously tackled the scope of the Courts power of
judicial review; that is, questions involving an interpretation or application of a
provision of the Constitution or the law, including the rules of either house of
Congress. Within this scope falls the jurisdiction of the Court over questions on the
validity of legislative or executive acts that are political in nature, whenever the
tribunal finds constitutionally imposed limits on powers or functions conferred upon
political bodies.[12]
In the aforementioned case, the Court initially declined to resolve the question of who
was the rightful Senate President, since it was deemed a political controversy falling
exclusively within the domain of the Senate. Upon a motion for reconsideration,
however, the Court ultimately assumed jurisdiction (1) in the light of subsequent
events which justify its intervention; and (2) because the resolution of the issue
hinged on the interpretation of the constitutional provision on the presence of a
quorum to hold a session[13] and therein elect a Senate President.
Justice Feria elucidated in his Concurring Opinion: [I] concur with
the majority that this Court has jurisdiction over cases like the present x x x 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. [14]
Justice Perfecto, also concurring, said in part:
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.[15]
x x x This case raises vital constitutional questions which no one can settle or decide
if this Court should refuse to decide them.[16]
x x x The constitutional question of quorum should not be left unanswered. [17]
In Taada v. Cuenco,[18] this Court endeavored to define political question. And we
said that it refers to those questions which, under the Constitution, are to be decided
by the people in their sovereign capacity, or in regard to which full discretionary
authority has been delegated to the legislative or executive branch of the
government. It is concerned with issues dependent upon the wisdom, not [the]
legality, of a particular measure.[19]
The Court ruled that the validity of the selection of members of the Senate Electoral
Tribunal by the senators was not a political question. The choice of these members
did not depend on the Senates full discretionary authority, but was subject to
mandatory constitutional limitations.[20] Thus, the Court held that not only was it
clearly within its jurisdiction to pass upon the validity of the selection proceedings, but
it was also its duty to consider and determine the issue.
In another landmark case, Lansang v. Garcia,[21] Chief Justice Roberto Concepcion
wrote that the Court had authority to and should inquire into the existence of the
factual bases required by the Constitution for the suspension of the privilege of the
writ [of habeas corpus]. This ruling was made in spite of the previous
pronouncements in Barcelon v. Baker[22] and Montenegro v. Castaeda[23] that the
authority to decide whether the exigency has arisen requiring suspension (of the
privilege x x x) belongs to the President and his decision is final and conclusive upon
the courts and upon all other persons. But the Chief Justice cautioned: the function of
the Court is merely to check -- not to supplant --- the Executive, or to
ascertain merely whether he has gone beyond the constitutional limits of his
jurisdiction, notto exercise the power vested in him or to determine the wisdom of his
act.
The eminent Chief Justice aptly explained later in Javellana v. Executive Secretary:[24]
The reason why the issue under consideration and other issues of similar character
are justiciable, not political, is plain and simple. One of the principal bases of the non-
justiciability of so-called political questions is the principle of separation of powers --
characteristic of the presidential system of government -- the functions of which are
classified or divided, by reason of their nature, into three (3) categories, namely, 1)
those involving the making of laws, which are allocated to the legislative department;
2) those concerning mainly with the enforcement of such laws and of judicial
decisions applying and/or interpreting the same, which belong to the executive
department; and 3) those dealing with the settlement of disputes, controversies or
conflicts involving rights, duties or prerogatives that are legally demandable and
enforceable, which are apportioned to courts of justice. Within its own sphere -- but
only within such sphere each department is supreme and independent of the others,
and each is devoid of authority not only to encroach upon the powers or field of action
assigned to any of the other departments, but also to inquire into or pass upon
the advisability or wisdom of the acts performed, measures taken or decisions made
by the other departments -- provided that such acts, measures or decision
are within the area allocated thereto by the Constitution."
Accordingly, when the grant of power is qualified, conditional or subject to limitations,
the issue of whether or not the prescribed qualifications or conditions have been met,
or the limitations respected is justiciable or non-political, the crux of the problem being
one of legality or validity of the contested act, not its wisdom. Otherwise, said
qualifications, conditions or limitations -- particularly those prescribed by the
Constitution -- would be set at naught. What is more, the judicial inquiry into such
issue and the settlement thereof are the main functions of the courts of justice under
the presidential form of government adopted in our 1935 Constitution, and the system
of checks and balances, one of its basic predicates. As a consequence, we have
neither the authority nor the discretion to decline passing upon said issue, but
are under the ineluctable obligation -- made particularly more exacting and
peremptory by our oath, as members of the highest Court of the land, to support and
defend the Constitution -- to settle it. This explains why, in Miller v. Johnson [92 Ky.
589, 18 SW 522, 523], it was held that courts have a duty, rather than a power, to
determine whether another branch of the government has kept within constitutional
limits.
Unlike our previous constitutions, the 1987 Constitution is explicit in defining the
scope of judicial power. The present Constitution now fortifies the authority of the
courts to determine in an appropriate action the validity of the acts of the political
departments. It speaks of judicial prerogative in terms of duty, viz.:
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.[25]
This express definition has resulted in clearer and more resolute pronouncements of
the Court. Daza v. Singson,[26] Coseteng v. Mitra Jr.[27] and Guingona Jr. v.
Gonzales[28] similarly resolved issues assailing the acts of the leaders of both houses
of Congress in apportioning among political parties the seats to which each chamber
was entitled in the Commission on Appointments. The Court held that the issue was
justiciable, even if the question were political in nature, since it involved the legality,
not the wisdom, of the manner of filling the Commission on Appointments as
prescribed by [Section 18, Article VI of] the Constitution.
The same question of jurisdiction was raised in Taada v. Angara,[29] wherein the
petitioners sought to nullify the Senates concurrence in the ratification of the World
Trade Organization (WTO) Agreement. The Court ruled: Where an action of the
legislative branch is seriously alleged to have infringed the Constitution, it becomes
not only the right but in fact the duty of the judiciary to settle the dispute. The Court en
banc unanimously stressed that in taking jurisdiction over petitions questioning an act
of the political departments of government, it will not review the wisdom, merits or
propriety of such action, and will strike it down only on either of two grounds: (1)
unconstitutionality or illegality and (2) grave abuse of discretion.
Earlier in Co v. Electoral Tribunal of the House of Representatives [30] (HRET), the
Court refused to reverse a decision of the HRET, in the absence of a showing that
said tribunal had committed grave abuse of discretion amounting to lack of
jurisdiction. The Court ruled that full authority had been conferred upon the electoral
tribunals of the House of Representatives and of the Senate as sole judges of all
contests relating to
the election, the returns, and the qualifications of their respective members. Such
jurisdiction is original and exclusive.[31] The Court may inquire into a decision or
resolution of said tribunals only if such decision or resolution was rendered without or
in excess of jurisdiction, or with grave abuse of discretion. [32]
Recently, the Court, in Arroyo v. De Venecia,[33] was asked to reexamine the enrolled
bill doctrine and to look beyond the certification of the Speaker of the House of
Representatives that the bill, which was later enacted as Republic Act 8240, was
properly approved by the legislative body. Petitioners claimed that certain procedural
rules of the House had been breached in the passage of the bill. They averred further
that a violation of the constitutionally mandated House rules was a violation of the
Constitution itself.
The Court, however, dismissed the petition, because the matter complained of
concerned the internal procedures of the House, with which the Court had no
concern. It enucleated:[34]
It would be an unwarranted invasion of the prerogative of a coequal department for
this Court either to set aside a legislative action as void because the Court thinks the
House has disregarded its own rules of procedure, or to allow those defeated in the
political arena to seek a rematch in the judicial forum when petitioners can find their
remedy in that department itself. The Court has not been invested with a roving
commission to inquire into complaints, real or imagined, of legislative skullduggery. It
would be acting in excess of its power and would itself be guilty of grave abuse of
discretion were it to do so. x x x In the absence of anything to the contrary, the Court
must assume that Congress or any House thereof acted in the good faith belief that
its conduct was permitted by its rules, and deference rather than disrespect is due the
judgment of that body.
In the instant controversy, the petitioners -- one of whom is Senator Santiago, a well-
known constitutionalist -- try to hew closely to these jurisprudential parameters. They
claim that Section 16 (1), Article VI of the Constitution, has not been observed in the
selection of the Senate minority leader. They also invoke the Courts expanded judicial
power to determine whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of respondents.
Dissenting in part, Mr. Justice Vicente V. Mendoza submits that the Court has no
jurisdiction over the petition. Well-settled is the doctrine, however, that jurisdiction
over the subject matter of a case is determined by the allegations of the complaint or
petition, regardless of whether the plaintiff or petitioner is entitled to the relief
asserted.[35] In light of the aforesaid allegations of petitioners, it is clear that this Court
has jurisdiction over the petition. It is well within the power and jurisdiction of the
Court to inquire whether indeed the Senate or its officials committed a violation of the
Constitution or gravely abused their discretion in the exercise of their functions and
prerogatives.
Second Issue: Violation of the Constitution
Having assumed jurisdiction over the petition, we now go to the next crucial
question: In recognizing Respondent Guingona as the Senate minority leader, did the
Senate or its officials, particularly Senate President Fernan, violate the Constitution or
the laws?
Petitioners answer the above question in the affirmative. They contend that the
constitutional provision requiring the election of the Senate President by majority vote
of all its members carries with it a judicial duty to determine the concepts of majority
and minority, as well as who may elect a minority leader. They argue that majority in
the aforequoted constitutional provision refers to that group of senators who (1) voted
for the winning Senate President and (2) accepted committee
chairmanships. Accordingly, those who voted for the losing nominee and accepted no
such chairmanships comprise the minority, to whom the right to determine the
minority leader belongs. As a result, petitioners assert, Respondent Guingona cannot
be the legitimate minority leader, since he voted for Respondent Fernan as Senate
President. Furthermore, the members of the Lakas-NUCD-UMDP cannot choose the
minority leader, because they did not belong to the minority, having voted for Fernan
and accepted committee chairmanships.
We believe, however, that the interpretation proposed by petitioners finds no clear
support from the Constitution, the laws, the Rules of the Senate or even from
practices of the Upper House.
The term majority has been judicially defined a number of times. When referring to a
certain number out of a total or aggregate, it simply means the number greater than
half or more than half of any total.[36] The plain and unambiguous words of the subject
constitutional clause simply mean that the Senate President must obtain the votes of
more than one half of all the senators. Not by any construal does it thereby
delineate who comprise the majority, much less the minority, in the said body. And
there is no showing that the framers of our Constitution had in mind other than the
usual meanings of these terms.
In effect, while the Constitution mandates that the President of the Senate must be
elected by a number constituting more than one half of all the members thereof, it
does not provide that the members who will not vote for him shall ipso facto constitute
the minority, who could thereby elect the minority leader. Verily, no law or regulation
states that the defeated candidate shall automatically become the minority leader.
The Comment[37] of Respondent Guingona furnishes some relevant precedents,
which were not contested in petitioners Reply. During the eighth Congress, which was
the first to convene after the ratification of the 1987 Constitution, the nomination of
Sen. Jovito R. Salonga as Senate President was seconded by a member of the
minority, then Sen. Joseph E. Estrada.[38] During the ninth regular session, when Sen.
Edgardo J. Angara assumed the Senate presidency in 1993, a consensus was
reached to assign committee chairmanships to all senators, including those belonging
to the minority.[39] This practice continued during the tenth Congress, where even the
minority leader was allowed to chair a committee.[40] History would also show that the
majority in either house of Congress has referred to the political party to which the
most number of lawmakers belonged, while the minority normally referred to a party
with a lesser number of members.
Let us go back to the definitions of the terms majority and minority. Majority may also
refer to the group, party, or faction with the larger number of votes,[41] not necessarily
more than one half. This is sometimes referred to as plurality. In contrast, minority is a
group, party, or faction with a smaller number of votes or adherents than the
majority.[42] Between two unequal parts or numbers comprising a whole or totality, the
greater number would obviously be the majority, while the lesser would be the
minority. But where there are more than two unequal groupings, it is not as easy to
say which is theminority entitled to select the leader representing all the minorities. In
a government with a multi-party system such as in the Philippines (as pointed out by
petitioners themselves), there could be several minority parties, one of which has to
be identified by the Comelec as the dominant minority party for purposes of the
general elections. In the prevailing composition of the present Senate, members
either belong to different political parties or are independent. No constitutional or
statutory provision prescribe which of the many minority groups or the independents
or a combination thereof has the right to select the minority leader.
While the Constitution is explicit on the manner of electing a Senate President and a
House Speaker, it is, however, dead silent on the manner of selecting the other
officers in both chambers of Congress.All that the Charter says is that [e]ach House
shall choose such other officers as it may deem necessary. [43] To our mind,
the method of choosing who will be such other officers is merely a derivative of
the exercise of the prerogative conferred by the aforequoted constitutional
provision. Therefore, such method must be prescribed by the Senate itself, not
by this Court.
In this regard, the Constitution vests in each house of Congress the power to
determine the rules of its proceedings.[44] Pursuant thereto, the Senate formulated
and adopted a set of rules to govern its internal affairs.[45] Pertinent to the instant case
are Rules I and II thereof, which provide:
Rule I
ELECTIVE OFFICERS
SECTION 1. The Senate shall elect, in the manner hereinafter provided, a President,
a President Pro Tempore, a Secretary, and a Sergeant-at-Arms.
These officers shall take their oath of office before entering into the discharge of their
duties.
Rule II
ELECTION OF OFFICERS
SEC. 2. The officers of the Senate shall be elected by the majority vote of all its
Members. Should there be more than one candidate for the same office, a nominal
vote shall be taken; otherwise, the elections shall be by viva voce or by resolution.
Notably, the Rules of the Senate do not provide for the positions of majority and
minority leaders. Neither is there an open clause providing specifically for such offices
and prescribing the manner of creating them or of choosing the holders thereof. At
any rate, such offices, by tradition and long practice, are actually extant. But, in the
absence of constitutional or statutory guidelines or specific rules, this Court is devoid
of any basis upon which to determine the legality of the acts of the Senate relative
thereto. On grounds of respect for the basic concept of separation of powers, courts
may not intervene in the internal affairs of the legislature; it is not within the province
of courts to direct Congress how to do its work.[46] Paraphrasing the words of Justice
Florentino P. Feliciano, this Court is of the opinion that where no specific, operable
norms and standards are shown to exist, then the legislature must be given a real and
effective opportunity to fashion and promulgate as well as to implement them, before
the courts may intervene.[47]
Needless to state, legislative rules, unlike statutory laws, do not have the imprints of
permanence and obligatoriness during their effectivity. In fact, they are subject to
revocation, modification or waiver atthe pleasure of the body adopting
them.[48] Being merely matters of procedure, their observance are of no concern to
the courts, for said rules may be waived or disregarded by the legislative body [49] at
will, upon the concurrence of a majority.
In view of the foregoing, Congress verily has the power and prerogative to provide for
such officers as it may deem. And it is certainly within its own jurisdiction and
discretion to prescribe the parameters for the exercise of this prerogative. This Court
has no authority to interfere and unilaterally intrude into that exclusive realm,
without running afoul of constitutional principles that it is bound to protect and
uphold -- the very duty that justifies the Courts being. Constitutional respect
and a becoming regard for the sovereign acts of a coequal branch prevents this
Court from prying into the internal workings of the Senate. To repeat, this Court
will be neither a tyrant nor a wimp; rather, it will remain steadfast and judicious
in upholding the rule and majesty of the law.
To accede, then, to the interpretation of petitioners would practically amount to
judicial legislation, a clear breach of the constitutional doctrine of separation of
powers. If for this argument alone, the petition would easily fail.
While no provision of the Constitution or the laws or the rules and even the practice of
the Senate was violated, and while the judiciary is without power to decide matters
over which full discretionary authority has been lodged in the legislative department,
this Court may still inquire whether an act of Congress or its officials has been made
with grave abuse of discretion.[50] This is the plain implication of Section 1, Article VIII
of the Constitution, which expressly confers upon the judiciary the power and the duty
not only to settle actual controversies involving rights which are legally demandable
and enforceable, but likewise 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.
Explaining the above-quoted clause, former Chief Justice Concepcion, who was a
member of the 1986 Constitutional Commission, said in part: [51]
xxx the powers of government are generally considered divided into three
branches: the Legislative, the Executive and the Judiciary. Each one is supreme
within its own sphere and independent of the others.Because of that supremacy[, the]
power to determine whether a given law is valid or not is vested in courts of justice.
Briefly stated, courts of justice determine the limits of power of the agencies and
offices of the government as well as those of its officers. In other words, the judiciary
is the final arbiter on the question whether or not a branch of government or any of its
officials has acted without jurisdiction or in excess of jurisdiction, or so capriciously as
to constitute an abuse of discretion amounting to excess of jurisdiction or lack of
jurisdiction. This is not only a judicial power but a duty to pass judgment on matters of
this nature.
This is the background of paragraph 2 of Section 1, which means that the courts
cannot hereafter evade the duty to settle matters of this nature, by claiming that such
matters constitute a political question.
With this paradigm, we now examine the two other issues challenging the actions,
first, of Respondent Guingona and, second, of Respondent Fernan.
Third Issue: Usurpation of Office
Usurpation generally refers to unauthorized arbitrary assumption and exercise of
power[52] by one without color of title or who is not entitled by law thereto.[53] A quo
warranto proceeding is the proper legal remedy to determine the right or title to the
contested public office and to oust the holder from its enjoyment.[54] The action may
be brought by the solicitor general or a public prosecutor [55] or any person claiming to
be entitled to the public office or position usurped or unlawfully held or exercised by
another.[56] The action shall be brought against the person who allegedly usurped,
intruded into or is unlawfully holding or exercising such office. [57]
In order for a quo warranto proceeding to be successful, the person suing must show
that he or she has a clear right to the contested office or to use or exercise the
functions of the office allegedly usurped or unlawfully held by the respondent. [58] In
this case, petitioners present no sufficient proof of a clear and indubitable franchise to
the office of the Senate minority leader.
As discussed earlier, the specific norms or standards that may be used in determining
who may lawfully occupy the disputed position has not been laid down by the
Constitution, the statutes, or the Senate itself in which the power has been
vested. Absent any clear-cut guideline, in no way can it be said that illegality or
irregularity tainted Respondent Guingonas assumption and exercise of the powers of
the office of Senate minority leader. Furthermore, no grave abuse of discretion has
been shown to characterize any of his specific acts as minority leader.
Fourth Issue: Fernans Recognition of Guingona
The all-embracing and plenary power and duty of the Court 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 is restricted
only by the definition and confines of the term grave abuse of discretion.
By grave abuse of discretion is meant such capricious or whimsical exercise of
judgment as is equivalent to lack of jurisdiction. The abuse of discretion must be
patent and gross as to amount to an evasion of positive duty or a virtual refusal to
perform a duty enjoined by law, or to act at all in contemplation of law as where the
power is exercised in an arbitrary and despotic manner by reason of passion and
hostility.[59]
By the above standard, we hold that Respondent Fernan did not gravely abuse his
discretion as Senate President in recognizing Respondent Guingona as the minority
leader. Let us recall that the latter belongs to one of the minority parties in the Senate,
the Lakas-NUCD-UMDP. By unanimous resolution of the members of this party that
he be the minority leader, he was recognized as such by the Senate President. Such
formal recognition by Respondent Fernan came only after at least two Senate
sessions and a caucus, wherein both sides were liberally allowed to articulate their
standpoints.

Under these circumstances, we believe that the Senate President cannot be accused
of capricious or whimsical exercise of judgment or of an arbitrary and despotic
manner by reason of passion or hostility.Where no provision of the Constitution,
the laws or even the rules of the Senate has been clearly shown to have been
violated, disregarded or overlooked, grave abuse of discretion cannot be
imputed to Senate officials for acts done within their competence and authority.

WHEREFORE, for the above reasons, the petition is hereby DISMISSED.

SO ORDERED.
Republic of the Philippines GULAPA, TEODORA M. HERNANDEZ, NACHURA,

Supreme Court FERMIN B. DELA PEA, MARIA DELA LEONARDO-DE CASTRO,

Manila PAZ B. CULALA, ESPERANZA BRION,

MANAPOL, JUANITA M. BRIONES, PERALTA,

EN BANC VERGINIA M. GUEVARRA, MAXIMA BERSAMIN,

ANGULO, EMILIA SANGIL, TEOFILA DEL CASTILLO,

ISABELITA C. VINUYA, VICTORIA G.R. No. 162230 R. PUNZALAN, JANUARIA G. GARCIA, ABAD,

C. DELA PEA, HERMINIHILDA PERLA B. BALINGIT, BELEN A. VILLARAMA, JR.,

MANIMBO, LEONOR H. SUMAWANG, CULALA, PILAR Q. GALANG, PEREZ, and

CANDELARIA L. SOLIMAN, MARIA ROSARIO C. BUCO, GAUDENCIA C. MENDOZA, JJ.

L. QUILANTANG, MARIA L. MAGISA, DELA PEA, RUFINA Q. CATACUTAN,

NATALIA M. ALONZO, LOURDES M. FRANCIA A. BUCO, PASTORA C.

NAVARO, FRANCISCA M. ATENCIO, GUEVARRA, VICTORIA M. DELA

ERLINDA MANALASTAS, TARCILA CRUZ, PETRONILA O. DELA CRUZ,

M. SAMPANG, ESTER M. PALACIO, ZENAIDA P. DELA CRUZ, CORAZON

MAXIMA R. DELA CRUZ, BELEN A. M. SUBA, EMERINCIANA A. VINUYA,

SAGUM, FELICIDAD TURLA, LYDIA A. SANCHEZ, ROSALINA M.

FLORENCIA M. DELA PEA, Present: BUCO, PATRICIA A. BERNARDO,

EUGENIA M. LALU, JULIANA G. LUCILA H. PAYAWAL, MAGDALENA

MAGAT, CECILIA SANGUYO, ANA PUNO, C. J., LIWAG, ESTER C. BALINGIT, JOVITA

ALONZO, RUFINA P. MALLARI, CARPIO, A. DAVID, EMILIA C. MANGILIT,

ROSARIO M. ALARCON, RUFINA C. CORONA, VERGINIA M. BANGIT, GUILLERMA

GULAPA, ZOILA B. MANALUS, CARPIO MORALES, S. BALINGIT, TERECITA PANGILINAN,

CORAZON C. CALMA, MARTA A. VELASCO, JR., MAMERTA C. PUNO, CRISENCIANA

C. GULAPA, SEFERINA S. TURLA, Promulgated:

MAXIMA B. TURLA, LEONICIA G. April 28, 2010 DEL CASTILLO, J.:

GUEVARRA, ROSALINA M. CULALA,

CATALINA Y. MANIO, MAMERTA T. The Treaty of Peace with Japan, insofar as it barred future claims such as those
asserted by plaintiffs in these actions, exchanged full compensation of plaintiffs for a
SAGUM, CARIDAD L. TURLA, et al. future peace. History has vindicated the wisdom of that bargain. And while full
compensation for plaintiffs' hardships, in the purely economic sense, has been denied
In their capacity and as members of the these former prisoners and countless other survivors of the war, the immeasurable
bounty of life for themselves and their posterity in a free society and in a more
Malaya Lolas Organization,
peaceful world services the debt.[1]
Petitioners,
There is a broad range of vitally important areas that must be regularly decided by the
Executive Department without either challenge or interference by the Judiciary. One
such area involves the delicate arena of foreign relations. It would be strange indeed
- versus - if the courts and the executive spoke with different voices in the realm of foreign
policy. Precisely because of the nature of the questions presented, and the lapse of
more than 60 years since the conduct complained of, we make no attempt to lay
down general guidelines covering other situations not involved here, and confine the
THE HONORABLE EXECUTIVE opinion only to the very questions necessary to reach a decision on this matter.

SECRETARY ALBERTO G. Factual Antecedents

ROMULO, THE HONORABLE This is an original Petition for Certiorari under Rule 65 of the Rules of Court with an
application for the issuance of a writ of preliminary mandatory injunction against the
SECRETARY OF FOREIGN Office of the Executive Secretary, the Secretary of the Department of Foreign Affairs
(DFA), the Secretary of the Department of Justice (DOJ), and the Office of the
AFFAIRS DELIA DOMINGO-
Solicitor General (OSG).
ALBERT, THE HONORABLE
Petitioners are all members of the MALAYA LOLAS, a non-stock, non-profit
organization registered with the Securities and Exchange Commission, established
SECRETARY OF JUSTICE
for the purpose of providing aid to the victims of rape by Japanese military forces in
MERCEDITAS N. GUTIERREZ, the Philippines during the Second World War.

and THE HONORABLE SOLICITOR Petitioners narrate that during the Second World War, the Japanese army attacked
villages and systematically raped the women as part of the destruction of the village.
GENERAL ALFREDO L. BENIPAYO, Their communities were bombed, houses were looted and burned, and civilians were
publicly tortured, mutilated, and slaughtered. Japanese soldiers forcibly seized the
Respondents. women and held them in houses or cells, where they were repeatedly raped, beaten,
and abused by Japanese soldiers. As a result of the actions of their Japanese
x--------------------------------------------------------x tormentors, the petitioners have spent their lives in misery, having endured physical
injuries, pain and disability, and mental and emotional suffering. [2]

DECISION
Petitioners claim that since 1998, they have approached the Executive Department
through the DOJ, DFA, and OSG, requesting assistance in filing a claim against the
Japanese officials and military officers who ordered the establishment of the comfort
women stations in the Philippines. However, officials of the Executive Department
declined to assist the petitioners, and took the position that the individual claims of the
comfort women for compensation had already been fully satisfied by Japans
compliance with the Peace Treaty between the Philippines and Japan.
Issues
Hence, this petition where petitioners pray for this court to (a) declare that
respondents committed grave abuse of discretion amounting to lack or excess of
discretion in refusing to espouse their claims for the crimes against humanity and war
crimes committed against them; and (b) compel the respondents to espouse their
claims for official apology and other forms of reparations against Japan before the
International Court of Justice (ICJ) and other international tribunals.
Petitioners arguments
Petitioners argue that the general waiver of claims made by the Philippine
government in the Treaty of Peace with Japan is void. They claim that the comfort
women system established by Japan, and the brutal rape and enslavement of
petitioners constituted a crime against humanity,[3] sexual slavery,[4] and
torture.[5] They allege that the prohibition against these international crimes is jus
cogens norms from which no derogation is possible; as such, in waiving the claims of
Filipina comfort women and failing to espouse their complaints against Japan, the
Philippine government is in breach of its legal obligation not to afford impunity for
crimes against humanity. Finally, petitioners assert that the Philippine governments
acceptance of the apologies made by Japan as well as funds from the Asian Womens
Fund (AWF) were contrary to international law.
Respondents Arguments
Respondents maintain that all claims of the Philippines and its nationals relative to the
war were dealt with in the San Francisco Peace Treaty of 1951 and the bilateral
Reparations Agreement of 1956.[6]
Article 14 of the Treaty of Peace[7] provides:
Article 14. Claims and Property
a) It is recognized that Japan should pay reparations to the Allied Powers for the
damage and suffering caused by it during the war. Nevertheless it is also recognized
that the resources of Japan are not presently sufficient, if it is to maintain a viable
economy, to make complete reparation for all such damage and suffering and at the
present time meet its other obligations.
b) Except as otherwise provided in the present Treaty, the Allied Powers
waive all reparations claims of the Allied Powers, other claims of the Allied Powers
and their nationals arising out of any actions taken by Japan and its nationals in the
course of the prosecution of the war, and claims of the Allied Powers for direct military
costs of occupation.
In addition, respondents argue that the apologies made by Japan[8] have been
satisfactory, and that Japan had addressed the individual claims of the women
through the atonement money paid by the Asian Womens Fund.
Historical Background
The comfort women system was the tragic legacy of the Rape of Nanking. In
December 1937, Japanese military forces captured the city of Nanking in China and
began a barbaric campaign of terror known as the Rape of Nanking, which included
the rapes and murders of an estimated 20,000 to 80,000 Chinese women, including
young girls, pregnant mothers, and elderly women.[9]
In reaction to international outcry over the incident, the Japanese government sought
ways to end international condemnation[10] by establishing the comfort women
system. Under this system, the military could simultaneously appease soldiers' sexual
appetites and contain soldiers' activities within a regulated environment.[11] Comfort
stations would also prevent the spread of venereal disease among soldiers and
discourage soldiers from raping inhabitants of occupied territories.[12]
Daily life as a comfort woman was unmitigated misery.[13] The military forced
victims into barracks-style stations divided into tiny cubicles where they were forced to
live, sleep, and have sex with as many 30 soldiers per day. [14] The 30 minutes allotted
for sexual relations with each soldier were 30-minute increments of unimaginable
horror for the women.[15] Disease was rampant.[16] Military doctors regularly examined
the women, but these checks were carried out to prevent the spread of venereal
diseases; little notice was taken of the frequent cigarette burns, bruises, bayonet
stabs and even broken bones inflicted on the women by soldiers.
Fewer than 30% of the women survived the war.[17] Their agony continued in having
to suffer with the residual physical, psychological, and emotional scars from their
former lives. Some returned home and were ostracized by their families. Some
committed suicide. Others, out of shame, never returned home.[18]
Efforts to Secure Reparation
The most prominent attempts to compel the Japanese government to accept legal
responsibility and pay compensatory damages for the comfort women system were
through a series of lawsuits, discussion at the United Nations (UN), resolutions by
various nations, and the Womens International Criminal Tribunal. The Japanese
government, in turn, responded through a series of public apologies and the creation
of the AWF.[19]
Lawsuits
In December 1991, Kim Hak-Sun and two other survivors filed the first lawsuit
in Japan by former comfort women against the Japanese government. The Tokyo
District Court however dismissed their case.[20] Other suits followed,[21] but the
Japanese government has, thus far, successfully caused the dismissal of every
case.[22]
Undoubtedly frustrated by the failure of litigation before Japanese courts, victims of
the comfort women system brought their claims before the United States (US). On
September 18, 2000, 15 comfort women filed a class action lawsuit in the US District
Court for the District of Columbia[23] "seeking money damages for [allegedly] having
been subjected to sexual slavery and torture before and during World War II," in
violation of "both positive and customary international law." The case was filed
pursuant to the Alien Tort Claims Act (ATCA),[24] which allowed the plaintiffs to sue
the Japanese government in a US federal district court.[25] On October 4, 2001, the
district court dismissed the lawsuit due to lack of jurisdiction over Japan, stating that
[t]here is no question that this court is not the appropriate forum in which plaintiffs
may seek to reopen x x x discussions nearly half a century later x x x [E]ven if Japan
did not enjoy sovereign immunity, plaintiffs' claims are non-justiciable and must be
dismissed.
The District of Columbia Court of Appeals affirmed the lower court's dismissal of the
case.[26] On appeal, the US Supreme Court granted the womens petition for writ of
certiorari, vacated the judgment of the District of Columbia Court of Appeals, and
remanded the case.[27] On remand, the Court of Appeals affirmed its prior decision,
noting that much as we may feel for the plight of the appellants, the courts of
the US simply are not authorized to hear their case.[28] The women again brought
their case to the US Supreme Court which denied their petition for writ of certiorari
on February 21, 2006.
Efforts at the United Nations
In 1992, the Korean Council for the Women Drafted for Military Sexual Slavery by
Japan (KCWS), submitted a petition to the UN Human Rights Commission (UNHRC),
asking for assistance in investigating crimes committed by Japan against Korean
women and seeking reparations for former comfort women.[29] The UNHRC placed
the issue on its agenda and appointed Radhika Coomaraswamy as the issue's
special investigator. In 1996, Coomaraswamy issued a Report reaffirming Japan's
responsibility in forcing Korean women to act as sex slaves for the imperial army, and
made the following recommendations:
A. At the national level
137. The Government of Japan should:
(a) Acknowledge that the system of comfort stations set up by the Japanese Imperial
Army during the Second World War was a violation of its obligations under
international law and accept legal responsibility for that violation;
(b) Pay compensation to individual victims of Japanese military sexual slavery
according to principles outlined by the Special Rapporteur of the Sub-Commission on
Prevention of Discrimination and Protection of Minorities on the right to restitution,
compensation and rehabilitation for victims of grave violations of human rights and
fundamental freedoms. A special administrative tribunal for this purpose should be set
up with a limited time-frame since many of the victims are of a very advanced age;
(c) Make a full disclosure of documents and materials in its possession with regard to
comfort stations and other related activities of the Japanese Imperial Army during the
Second World War;
(d) Make a public apology in writing to individual women who have come forward and
can be substantiated as women victims of Japanese military sexual slavery;
(e) Raise awareness of these issues by amending educational curricula to reflect
historical realities;
(f) Identify and punish, as far as possible, perpetrators involved in the recruitment and
institutionalization of comfort stations during the Second World War.
Gay J. McDougal, the Special Rapporteur for the UN Sub-Commission on Prevention
of Discrimination and Protection of Minorities, also presented a report to the Sub-
Committee on June 22, 1998 entitled Contemporary Forms of Slavery: Systematic
Rape, Sexual Slavery and Slavery-like Practices During Armed Conflict. The report
included an appendix entitled An Analysis of the Legal Liability of the Government
of Japan for 'Comfort Women Stations' established during the Second World
War,[30] which contained the following findings:
68. The present report concludes that the Japanese Government remains liable for
grave violations of human rights and humanitarian law, violations that amount in their
totality to crimes against humanity. The Japanese Governments arguments to the
contrary, including arguments that seek to attack the underlying humanitarian law
prohibition of enslavement and rape, remain as unpersuasive today as they were
when they were first raised before the Nuremberg war crimes tribunal more than 50
years ago. In addition, the Japanese Governments argument that Japan has already
settled all claims from the Second World War through peace treaties and reparations
agreements following the war remains equally unpersuasive. This is due, in large
part, to the failure until very recently of the Japanese Government to admit the extent
of the Japanese militarys direct involvement in the establishment and maintenance of
these rape centres. The Japanese Governments silence on this point during the
period in which peace and reparations agreements between Japan and other Asian
Governments were being negotiated following the end of the war must, as a matter of
law and justice, preclude Japan from relying today on these peace treaties to
extinguish liability in these cases.
69. The failure to settle these claims more than half a century after the cessation of
hostilities is a testament to the degree to which the lives of women continue to be
undervalued. Sadly, this failure to address crimes of a sexual nature committed on a
massive scale during the Second World War has added to the level of impunity with
which similar crimes are committed today. The Government of Japan has taken some
steps to apologize and atone for the rape and enslavement of over 200,000 women
and girls who were brutalized in comfort stations during the Second World
War. However, anything less than full and unqualified acceptance by the Government
of Japan of legal liability and the consequences that flow from such liability is wholly
inadequate. It must now fall to the Government of Japan to take the necessary final
steps to provide adequate redress.
The UN, since then, has not taken any official action directing Japan to provide the
reparations sought.
Women's International War Crimes
Tribunal
The Women's International War Crimes Tribunal (WIWCT) was a people's tribunal
established by a number of Asian women and human rights organizations, supported
by an international coalition of non-governmental organizations.[31] First proposed in
1998, the WIWCT convened in Tokyo in 2000 in order to adjudicate Japan's military
sexual violence, in particular the enslavement of comfort women, to bring those
responsible for it to justice, and to end the ongoing cycle of impunity for wartime
sexual violence against women.
After examining the evidence for more than a year, the tribunal issued its verdict
on December 4, 2001, finding the former Emperor Hirohito and the State of Japan
guilty of crimes against humanity for the rape and sexual slavery of women.[32] It
bears stressing, however, that although the tribunal included prosecutors, witnesses,
and judges, its judgment was not legally binding since the tribunal itself was
organized by private citizens.
Action by Individual Governments
On January 31, 2007, US Representative Michael Honda of California, along with six
co-sponsor representatives, introduced House Resolution 121 which called for
Japanese action in light of the ongoing struggle for closure by former comfort
women. The Resolution was formally passed on July 30, 2007,[33] and made four
distinct demands:
[I]t is the sense of the House of Representatives that the Government of Japan (1)
should formally acknowledge, apologize, and accept historical responsibility in a clear
and unequivocal manner for its Imperial Armed Forces' coercion of young women into
sexual slavery, known to the world as comfort women, during its colonial and wartime
occupation of Asia and the Pacific Islands from the 1930s through the duration of
World War II; (2) would help to resolve recurring questions about the sincerity and
status of prior statements if the Prime Minister of Japan were to make such an
apology as a public statement in his official capacity; (3) should clearly and publicly
refute any claims that the sexual enslavement and trafficking of the comfort women
for the Japanese Imperial Army never occurred; and (4) should educate current and
future generations about this horrible crime while following the recommendations of
the international community with respect to the comfort women.[34]
In December 2007, the European Parliament, the governing body of the European
Union, drafted a resolution similar to House Resolution 121.[35] Entitled, Justice for
Comfort Women, the resolution demanded: (1) a formal acknowledgment of
responsibility by the Japanese government; (2) a removal of the legal obstacles
preventing compensation; and (3) unabridged education of the past. The resolution
also stressed the urgency with which Japan should act on these issues, stating: the
right of individuals to claim reparations against the government should be expressly
recognized in national law, and cases for reparations for the survivors of sexual
slavery, as a crime under international law, should be prioritized, taking into account
the age of the survivors.
The Canadian and Dutch parliaments have each followed suit in drafting resolutions
against Japan. Canada's resolution demands the Japanese government to issue a
formal apology, to admit that its Imperial Military coerced or forced hundreds of
thousands of women into sexual slavery, and to restore references in Japanese
textbooks to its war crimes.[36] The Dutch parliament's resolution calls for the
Japanese government to uphold the 1993 declaration of remorse made by Chief
Cabinet Secretary Yohei Kono.
The Foreign Affairs Committee of the United Kingdoms Parliament also produced a
report in November, 2008 entitled, "Global Security: Japan and Korea" which
concluded that Japan should acknowledge the pain caused by the issue of comfort
women in order to ensure cooperation between Japan and Korea.
Statements of Remorse made by representatives of the Japanese government
Various officials of the Government of Japan have issued the following public
statements concerning the comfort system:
a) Statement by the Chief Cabinet Secretary Yohei Kono in 1993:
The Government of Japan has been conducting a study on the issue of wartime
"comfort women" since December 1991. I wish to announce the findings as a result of
that study.
As a result of the study which indicates that comfort stations were operated in
extensive areas for long periods, it is apparent that there existed a great number of
comfort women. Comfort stations were operated in response to the request of the
military authorities of the day. The then Japanese military was, directly or indirectly,
involved in the establishment and management of the comfort stations and the
transfer of comfort women. The recruitment of the comfort women was conducted
mainly by private recruiters who acted in response to the request of the military. The
Government study has revealed that in many cases they were recruited against their
own will, through coaxing coercion, etc., and that, at times, administrative/military
personnel directly took part in the recruitments. They lived in misery at comfort
stations under a coercive atmosphere.
As to the origin of those comfort women who were transferred to the war areas,
excluding those from Japan, those from the Korean Peninsula accounted for a large
part. The Korean Peninsula was under Japanese rule in those days, and their
recruitment, transfer, control, etc., were conducted generally against their will, through
coaxing, coercion, etc.
Undeniably, this was an act, with the involvement of the military authorities of the
day, that severely injured the honor and dignity of many women. The Government of
Japan would like to take this opportunity once again to extend its sincere apologies
and remorse to all those, irrespective of place of origin, who suffered immeasurable
pain and incurable physical and psychological wounds as comfort women.
It is incumbent upon us, the Government of Japan, to continue to consider seriously,
while listening to the views of learned circles, how best we can express this
sentiment.
We shall face squarely the historical facts as described above instead of evading
them, and take them to heart as lessons of history. We hereby reiterated our firm
determination never to repeat the same mistake by forever engraving such issues in
our memories through the study and teaching of history.
As actions have been brought to court in Japan and interests have been shown in this
issue outside Japan, the Government of Japan shall continue to pay full attention to
this matter, including private researched related thereto.
b) Prime Minister Tomiichi Murayamas Statement in 1994
On the issue of wartime comfort women, which seriously stained the honor and
dignity of many women, I would like to take this opportunity once again to express my
profound and sincere remorse and apologies
c) Letters from the Prime Minister of Japan to Individual Comfort Women
The issue of comfort women, with the involvement of the Japanese military authorities
at that time, was a grave affront to the honor and dignity of a large number of women.
As Prime Minister of Japan, I thus extend anew my most sincere apologies and
remorse to all the women who endured immeasurable and painful experiences and
suffered incurable physical and psychological wounds as comfort women.
I believe that our country, painfully aware of its moral responsibilities, with feelings of
apology and remorse, should face up squarely to its past history and accurately
convey it to future generations.
d) The Diet (Japanese Parliament) passed resolutions in 1995 and 2005
Solemnly reflecting upon the many instances of colonial rule and acts of aggression
that occurred in modern world history, and recognizing that Japan carried out such
acts in the past and inflicted suffering on the people of other countries, especially
in Asia, the Members of this House hereby express deep remorse. (Resolution of the
House of Representatives adopted on June 9, 1995)
e) Various Public Statements by Japanese Prime Minister Shinzo Abe
I have talked about this matter in the Diet sessions last year, and recently as well,
and to the press. I have been consistent. I will stand by the Kono Statement. This is
our consistent position. Further, we have been apologizing sincerely to those who
suffered immeasurable pain and incurable psychological wounds as comfort women.
Former Prime Ministers, including Prime Ministers Koizumi and Hashimoto, have
issued letters to the comfort women. I would like to be clear that I carry the same
feeling. This has not changed even slightly. (Excerpt from Remarks by Prime Minister
Abe at an Interview by NHK, March 11, 2007).
I am apologizing here and now. I am apologizing as the Prime Minister and it is as
stated in the statement by the Chief Cabinet Secretary Kono. (Excerpt from Remarks
by Prime Minister Abe at the Budget Committee, the House of Councilors, the Diet
of Japan, March 26, 2007).
I am deeply sympathetic to the former comfort women who suffered hardships, and I
have expressed my apologies for the extremely agonizing circumstances into which
they were placed. (Excerpt from Telephone Conference by Prime Minister Abe to
President George W. Bush, April 3, 2007).
I have to express sympathy from the bottom of my heart to those people who were
taken as wartime comfort women. As a human being, I would like to express my
sympathies, and also as prime minister of Japan I need to apologize to them. My
administration has been saying all along that we continue to stand by the Kono
Statement. We feel responsible for having forced these women to go through that
hardship and pain as comfort women under the circumstances at the time. (Excerpt
from an interview article "A Conversation with Shinzo Abe" by the Washington
Post, April 22, 2007).
x x x both personally and as Prime Minister of Japan, my heart goes out in sympathy
to all those who suffered extreme hardships as comfort women; and I expressed my
apologies for the fact that they were forced to endure such extreme and harsh
conditions. Human rights are violated in many parts of the world during the 20th
Century; therefore we must work to make the 21st Century a wonderful century in
which no human rights are violated. And the Government of Japan and I wish to make
significant contributions to that end. (Excerpt from Prime Minister Abe's remarks at
the Joint Press Availability after the summit meeting at Camp David between Prime
Minister Abe and President Bush, April 27, 2007).
The Asian Women's Fund
Established by the Japanese government in 1995, the AWF represented the
government's concrete attempt to address its moral responsibility by offering
monetary compensation to victims of the comfort women system.[37] The purpose of
the AWF was to show atonement of the Japanese people through expressions of
apology and remorse to the former wartime comfort women, to restore their honor,
and to demonstrate Japans strong respect for women.[38]
The AWF announced three programs for former comfort women who applied for
assistance: (1) an atonement fund paying 2 million (approximately $20,000) to each
woman; (2) medical and welfare support programs, paying 2.5-3 million ($25,000-
$30,000) for each woman; and (3) a letter of apology from the Japanese Prime
Minister to each woman. Funding for the program came from the Japanese
government and private donations from the Japanese people. As of March 2006, the
AWF provided 700 million (approximately $7 million) for these programs in South
Korea, Taiwan, and the Philippines; 380 million (approximately $3.8 million)
in Indonesia; and 242 million (approximately $2.4 million) in the Netherlands.
On January 15, 1997, the AWF and the Philippine government signed a
Memorandum of Understanding for medical and welfare support programs for former
comfort women. Over the next five years, these were implemented by the Department
of Social Welfare and Development.
Our Ruling
Stripped down to its essentials, the issue in this case is whether the Executive
Department committed grave abuse of discretion in not espousing petitioners claims
for official apology and other forms of reparations against Japan.
The petition lacks merit.
From a Domestic Law Perspective, the Executive Department has the exclusive
prerogative to determine whether to espouse petitioners claims against Japan.
Baker v. Carr[39] remains the starting point for analysis under the political question
doctrine. There the US Supreme Court explained that:
x x x Prominent on the surface of any case held to involve a political question is found
a textually demonstrable constitutional commitment of the issue to a coordinate
political department or a lack of judicially discoverable and manageable standards for
resolving it, or the impossibility of deciding without an initial policy determination of a
kind clearly for non-judicial discretion; or the impossibility of a court's undertaking
independent resolution without expressing lack of the respect due coordinate
branches of government; or an unusual need for unquestioning adherence to a
political decision already made; or the potentiality of embarrassment from multifarious
pronouncements by various departments on question.
In Taada v. Cuenco,[40] we held that political questions refer "to those questions
which, under the Constitution, are to be decided by the people in their sovereign
capacity, or in regard to which full discretionary authority has been delegated to the
legislative or executive branch of the government. It is concerned with issues
dependent upon the wisdom, not legality of a particular measure."
Certain types of cases often have been found to present political questions. [41] One
such category involves questions of foreign relations. It is well-established that "[t]he
conduct of the foreign relations of our government is committed by the Constitution to
the executive and legislative--'the political'--departments of the government, and the
propriety of what may be done in the exercise of this political power is not subject to
judicial inquiry or decision."[42] The US Supreme Court has further cautioned that
decisions relating to foreign policy are delicate, complex, and involve large elements
of prophecy. They are and should be undertaken only by those directly responsible to
the people whose welfare they advance or imperil. They are decisions of a kind for
which the Judiciary has neither aptitude, facilities nor responsibility.[43]
 To be sure, not all cases implicating foreign relations present political questions, and
courts certainly possess the authority to construe or invalidate treaties and executive
agreements.[44]However, the question whether the Philippine government should
espouse claims of its nationals against a foreign government is a foreign relations
matter, the authority for which is demonstrably committed by our Constitution not to
the courts but to the political branches. In this case, the Executive Department has
already decided that it is to the best interest of the country to waive all claims of its
nationals for reparations against Japan in the Treaty of Peace of 1951. The wisdom of
such decision is not for the courts to question. Neither could petitioners herein assail
the said determination by the Executive Department via the instant petition
for certiorari.
In the seminal case of US v. Curtiss-Wright Export Corp.,[45] the US Supreme Court
held that [t]he President is the sole organ of the nation in its external relations, and its
sole representative with foreign relations.
It is quite apparent that if, in the maintenance of our international relations,
embarrassment -- perhaps serious embarrassment -- is to be avoided and success
for our aims achieved, congressional legislation which is to be made effective through
negotiation and inquiry within the international field must often accord to the President
a degree of discretion and freedom from statutory restriction which would not be
admissible where domestic affairs alone involved. Moreover, he, not Congress, has
the better opportunity of knowing the conditions which prevail in foreign countries, and
especially is this true in time of war. He has his confidential sources of information.
He has his agents in the form of diplomatic, consular and other officials. x x x
This ruling has been incorporated in our jurisprudence through Bayan v.
Executive Secretary[46] and Pimentel v. Executive Secretary;[47] its overreaching
principle was, perhaps, best articulated in (now Chief) Justice Punos dissent
in Secretary of Justice v. Lantion:[48]
x x x The conduct of foreign relations is full of complexities and consequences,
sometimes with life and death significance to the nation especially in times of war. It
can only be entrusted to that department of government which can act on the basis of
the best available information and can decide with decisiveness. x x x It is also the
President who possesses the most comprehensive and the most confidential
information about foreign countries for our diplomatic and consular officials regularly
brief him on meaningful events all over the world. He has also unlimited access to
ultra-sensitive military intelligence data.In fine, the presidential role in foreign affairs is
dominant and the President is traditionally accorded a wider degree of discretion in
the conduct of foreign affairs. The regularity, nay, validity of his actions are adjudged
under less stringent standards, lest their judicial repudiation lead to breach of an
international obligation, rupture of state relations, forfeiture of confidence, national
embarrassment and a plethora of other problems with equally undesirable
consequences.
The Executive Department has determined that taking up petitioners cause would be
inimical to our countrys foreign policy interests, and could disrupt our relations
with Japan, thereby creating serious implications for stability in this region. For us to
overturn the Executive Departments determination would mean an assessment of the
foreign policy judgments by a coordinate political branch to which authority to make
that judgment has been constitutionally committed.
In any event, it cannot reasonably be maintained that the Philippine government was
without authority to negotiate the Treaty of Peace with Japan. And it is equally true
that, since time immemorial, when negotiating peace accords and settling
international claims:
x x x [g]overnments have dealt with x x x private claims as their own, treating them as
national assets, and as counters, `chips', in international bargaining. Settlement
agreements have lumped, or linked, claims deriving from private debts with others
that were intergovernmental in origin, and concessions in regard to one category of
claims might be set off against concessions in the other, or against larger political
considerations unrelated to debts.[49]
Indeed, except as an agreement might otherwise provide, international settlements
generally wipe out the underlying private claims, thereby terminating any recourse
under domestic law. In Ware v. Hylton,[50] a case brought by a British subject to
recover a debt confiscated by the Commonwealth of Virginia during the war, Justice
Chase wrote:
I apprehend that the treaty of peace abolishes the subject of the war, and that after
peace is concluded, neither the matter in dispute, nor the conduct of either party,
during the war, can ever be revived, or brought into contest again. All violences,
injuries, or damages sustained by the government, or people of either, during the war,
are buried in oblivion; and all those things are implied by the very treaty of peace; and
therefore not necessary to be expressed. Hence it follows, that the restitution of, or
compensation for, British property confiscated, or extinguished, during the war, by
any of the United States, could only be provided for by the treaty of peace; and if
there had been no provision, respecting these subjects, in the treaty, they could not
be agitated after the treaty, by the British government, much less by her subjects in
courts of justice. (Emphasis supplied).
This practice of settling claims by means of a peace treaty is certainly
nothing new. For instance, in Dames & Moore v. Regan,[51] the US Supreme Court
held:
Not infrequently in affairs between nations, outstanding claims by nationals of one
country against the government of another country are sources of friction between the
two sovereigns. United States v. Pink, 315 U.S. 203, 225, 62 S.Ct. 552, 563, 86 L.Ed.
796 (1942). To resolve these difficulties, nations have often entered into agreements
settling the claims of their respective nationals. As one treatise writer puts it,
international agreements settling claims by nationals of one state against the
government of another are established international practice reflecting traditional
international theory. L. Henkin, Foreign Affairs and the Constitution 262 (1972).
Consistent with that principle, the United States has repeatedly exercised its
sovereign authority to settle the claims of its nationals against foreign countries. x x
x Under such agreements, the President has agreed to renounce or extinguish claims
of United States nationals against foreign governments in return for lump-sum
payments or the establishment of arbitration procedures. To be sure, many of these
settlements were encouraged by the United States claimants themselves, since a
claimant's only hope of obtaining any payment at all might lie in having his
Government negotiate a diplomatic settlement on his behalf. But it is also
undisputed that the United States has sometimes disposed of the claims of its citizens
without their consent, or even without consultation with them, usually without
exclusive regard for their interests, as distinguished from those of the nation as a
whole. Henkin, supra, at 262-263. Accord, Restatement (Second) of Foreign
Relations Law of the United States 213 (1965) (President may waive or settle a claim
against a foreign state x x x [even] without the consent of the [injured] national). It is
clear that the practice of settling claims continues today.
Respondents explain that the Allied Powers concluded the Peace Treaty
with Japan not necessarily for the complete atonement of the suffering caused by
Japanese aggression during the war, not for the payment of adequate reparations,
but for security purposes. The treaty sought to prevent the spread of communism
in Japan, which occupied a strategic position in the Far East. Thus, the Peace Treaty
compromised individual claims in the collective interest of the free world.
This was also the finding in a similar case involving American victims of Japanese
slave labor during the war.[52] In a consolidated case in the Northern District of
California,[53] the court dismissed the lawsuits filed, relying on the 1951 peace treaty
with Japan,[54] because of the following policy considerations:
The official record of treaty negotiations establishes that a fundamental goal of the
agreement was to settle the reparations issue once and for all. As the statement of
the chief United States negotiator, John Foster Dulles, makes clear, it was well
understood that leaving open the possibility of future claims would be an
unacceptable impediment to a lasting peace:
Reparation is usually the most controversial aspect of peacemaking. The present
peace is no exception.
On the one hand, there are claims both vast and just. Japan's aggression caused
tremendous cost, losses and suffering.
On the other hand, to meet these claims, there stands a Japan presently reduced to
four home islands which are unable to produce the food its people need to live, or the
raw materials they need to work. x x x
The policy of the United States that Japanese liability for reparations should be
sharply limited was informed by the experience of six years of United States-led
occupation of Japan. During the occupation the Supreme Commander of the Allied
Powers (SCAP) for the region, General Douglas MacArthur, confiscated Japanese
assets in conjunction with the task of managing the economic affairs of the
vanquished nation and with a view to reparations payments. It soon became clear
that Japan's financial condition would render any aggressive reparations plan
an exercise in futility. Meanwhile, the importance of a stable,
democratic Japan as a bulwark to communism in the region increased. At the
end of 1948, MacArthur expressed the view that [t]he use of reparations as a weapon
to retard the reconstruction of a viable economy in Japan should be combated with all
possible means and recommended that the reparations issue be settled finally and
without delay.
That this policy was embodied in the treaty is clear not only from the negotiations
history but also from the Senate Foreign Relations Committee report recommending
approval of the treaty by the Senate. The committee noted, for example:
Obviously insistence upon the payment of reparations in any proportion
commensurate with the claims of the injured countries and their nationals would
wreck Japan's economy, dissipate any credit that it may possess at present, destroy
the initiative of its people, and create misery and chaos in which the seeds of
discontent and communism would flourish. In short, [it] would be contrary to the basic
purposes and policy of x x x the United States x x x.
We thus hold that, from a municipal law perspective, that certiorari will not lie. As a
general principle and particularly here, where such an extraordinary length of time
has lapsed between the treatys conclusion and our consideration the Executive must
be given ample discretion to assess the foreign policy considerations of espousing a
claim against Japan, from the standpoint of both the interests of the petitioners and
those of the Republic, and decide on that basis if apologies are sufficient,
and whether further steps are appropriate or necessary.
The Philippines is not under any international obligation to espouse petitioners
claims.
In the international sphere, traditionally, the only means available for individuals to
bring a claim within the international legal system has been when the individual is
able to persuade a government to bring a claim on the individuals behalf.[55] Even
then, it is not the individuals rights that are being asserted, but rather, the states own
rights. Nowhere is this position more clearly reflected than in the dictum of the
Permanent Court of International Justice (PCIJ) in the 1924 Mavrommatis Palestine
Concessions Case:
By taking up the case of one of its subjects and by resorting to diplomatic action or
international judicial proceedings on his behalf, a State is in reality asserting its own
right to ensure, in the person of its subjects, respect for the rules of international law.
The question, therefore, whether the present dispute originates in an injury to a
private interest, which in point of fact is the case in many international disputes, is
irrelevant from this standpoint. Once a State has taken up a case on behalf of one of
its subjects before an international tribunal, in the eyes of the latter the State is sole
claimant.[56]
Since the exercise of diplomatic protection is the right of the State, reliance on the
right is within the absolute discretion of states, and the decision whether to exercise
the discretion may invariably be influenced by political considerations other than the
legal merits of the particular claim.[57] As clearly stated by the ICJ in
Barcelona Traction:
The Court would here observe that, within the limits prescribed by international law, a
State may exercise diplomatic protection by whatever means and to whatever
extent it thinks fit, for it is its own right that the State is asserting. Should the
natural or legal person on whose behalf it is acting consider that their rights are
not adequately protected, they have no remedy in international law. All they can
do is resort to national law, if means are available, with a view to furthering their
cause or obtaining redress. The municipal legislator may lay upon the State an
obligation to protect its citizens abroad, and may also confer upon the national a right
to demand the performance of that obligation, and clothe the right with corresponding
sanctions. However, all these questions remain within the province of municipal law
and do not affect the position internationally.[58] (Emphasis supplied)
The State, therefore, is the sole judge to decide whether its protection will be granted,
to what extent it is granted, and when will it cease. It retains, in this respect, a
discretionary power the exercise of which may be determined by considerations of a
political or other nature, unrelated to the particular case.
The International Law Commissions (ILCs) Draft Articles on Diplomatic Protection
fully support this traditional view. They (i) state that "the right of diplomatic protection
belongs to or vests in the State,[59] (ii) affirm its discretionary nature by clarifying that
diplomatic protection is a "sovereign prerogative" of the State;[60] and (iii) stress that
the state "has the right to exercise diplomatic protection on behalf of a national. It is
under no duty or obligation to do so."[61]
It has been argued, as petitioners argue now, that the State has a duty to protect its
nationals and act on his/her behalf when rights are injured.[62] However, at present,
there is no sufficient evidence to establish a general international obligation for States
to exercise diplomatic protection of their own nationals abroad.[63] Though, perhaps
desirable, neither state practice nor opinio juris has evolved in such a direction. If it is
a duty internationally, it is only a moral and not a legal duty, and there is no means of
enforcing its fulfillment.[64]
We fully agree that rape, sexual slavery, torture, and sexual violence are morally
reprehensible as well as legally prohibited under contemporary international
law.[65] However, petitioners take quite a theoretical leap in claiming that these
proscriptions automatically imply that that the Philippines is under a non-derogable
obligation to prosecute international crimes, particularly since petitioners do not
demand the imputation of individual criminal liability, but seek to recover monetary
reparations from the state of Japan. Absent the consent of states, an applicable treaty
regime, or a directive by the Security Council, there is no non-derogable duty to
institute proceedings against Japan. Indeed, precisely because of states reluctance to
directly prosecute claims against another state, recent developments support the
modern trend to empower individuals to directly participate in suits against
perpetrators of international crimes.[66]Nonetheless, notwithstanding an array of
General Assembly resolutions calling for the prosecution of crimes against humanity
and the strong policy arguments warranting such a rule, the practice of states does
not yet support the present existence of an obligation to prosecute international
crimes.[67] Of course a customary duty of prosecution is ideal, but we cannot find
enough evidence to reasonably assert its existence. To the extent that any state
practice in this area is widespread, it is in the practice of granting amnesties,
immunity, selective prosecution, or de facto impunity to those who commit crimes
against humanity.[68
Even the invocation of jus cogens norms and erga omnes obligations will not alter this
analysis. Even if we sidestep the question of whether jus cogens norms existed in
1951, petitioners have not deigned to show that the crimes committed by the
Japanese army violated jus cogens prohibitions at the time the Treaty of Peace was
signed, or that the duty to prosecute perpetrators of international crimes is an erga
omnes obligation or has attained the status of jus cogens.
The term erga omnes (Latin: in relation to everyone) in international law has been
used as a legal term describing obligations owed by States towards the community of
states as a whole. The concept was recognized by the ICJ in Barcelona Traction:
x x x an essential distinction should be drawn between the obligations of a State
towards the international community as a whole, and those arising vis--vis another
State in the field of diplomatic protection. By their very nature, the former are the
concern of all States. In view of the importance of the rights involved, all States can
be held to have a legal interest in their protection; they are obligations erga omnes.
 Such obligations derive, for example, in contemporary international law, from the Executive Department to take up the petitioners cause. Ours is only the power
outlawing of acts of aggression, and of genocide, as also from the principles and rules to urge and exhort the Executive Department to take up petitioners cause.
concerning the basic rights of the human person, including protection from slavery
and racial discrimination. Some of the corresponding rights of protection have entered
into the body of general international law others are conferred by international
instruments of a universal or quasi-universal character. WHEREFORE, the Petition is hereby DISMISSED.

The Latin phrase, erga omnes, has since become one of the rallying cries of those SO ORDERED.
sharing a belief in the emergence of a value-based international public order.
However, as is so often the case, the reality is neither so clear nor so bright.
Whatever the relevance of obligations erga omnes as a legal concept, its full potential
remains to be realized in practice.[69]

The term is closely connected with the international law concept of jus cogens. In
international law, the term jus cogens (literally, compelling law) refers to norms that
command peremptory authority, superseding conflicting treaties and custom. Jus
cogens norms are considered peremptory in the sense that they are mandatory, do
not admit derogation, and can be modified only by general international norms of
equivalent authority.[70]

Early strains of the jus cogens doctrine have existed since the 1700s,[71] but
peremptory norms began to attract greater scholarly attention with the publication of
Alfred von Verdross's influential 1937 article, Forbidden Treaties in International
Law.[72] The recognition of jus cogens gained even more force in the 1950s and
1960s with the ILCs preparation of the Vienna Convention on the Law of Treaties
(VCLT).[73] Though there was a consensus that certain international norms had
attained the status of jus cogens,[74] the ILC was unable to reach a consensus on the
proper criteria for identifying peremptory norms.

After an extended debate over these and other theories of jus cogens, the ILC
concluded ruefully in 1963 that there is not as yet any generally accepted criterion by
which to identify a general rule of international law as having the character of jus
cogens.[75] In a commentary accompanying the draft convention, the ILC indicated
that the prudent course seems to be to x x x leave the full content of this rule to be
worked out in State practice and in the jurisprudence of international
tribunals.[76] Thus, while the existence of jus cogens in international law is undisputed,
no consensus exists on its substance,[77] beyond a tiny core of principles and rules.[78]

Of course, we greatly sympathize with the cause of petitioners, and we cannot begin
to comprehend the unimaginable horror they underwent at the hands of the Japanese
soldiers. We are also deeply concerned that, in apparent contravention of
fundamental principles of law, the petitioners appear to be without a remedy to
challenge those that have offended them before appropriate fora. Needless to say,
our government should take the lead in protecting its citizens against violation of their
fundamental human rights. Regrettably, it is not within our power to order the
Republic of the Philippines Before the Court are consolidated petitions2 taken under Rule 65 of the Rules of
SUPREME COURT Court, all of which assail the constitutionality of the Pork Barrel System. Due to the
Manila complexity of the subject matter, the Court shall heretofore discuss the system‘s
conceptual underpinnings before detailing the particulars of the constitutional
EN BANC challenge.

G.R. No. 208566 November 19, 2013 The Facts

GRECO ANTONIOUS BEDA B. BELGICA JOSE M. VILLEGAS JR. JOSE L.
GONZALEZ REUBEN M. ABANTE and QUINTIN PAREDES SAN
DIEGO, Petitioners,
vs.
HONORABLE EXECUTIVE SECRETARY PAQUITO N. OCHOA JR. SECRETARY
OF BUDGET AND MANAGEMENT FLORENCIO B. ABAD, NATIONAL
TREASURER ROSALIA V. DE LEON SENATE OF THE PHILIPPINES represented
by FRANKLIN M. DRILON m his capacity as SENATE PRESIDENT and HOUSE
OF REPRESENTATIVES represented by FELICIANO S. BELMONTE, JR. in his
capacity as SPEAKER OF THE HOUSE, Respondents.
x-----------------------x
G.R. No. 208493
SOCIAL JUSTICE SOCIETY (SJS) PRESIDENT SAMSON S.
ALCANTARA, Petitioner,
vs.
HONORABLE FRANKLIN M. DRILON in his capacity as SENATE PRESIDENT
and HONORABLE FELICIANO S. BELMONTE, JR., in his capacity as SPEAKER
OF THE HOUSE OF REPRESENTATIVES, Respondents.
x-----------------------x
G.R. No. 209251
PEDRITO M. NEPOMUCENO, Former Mayor-Boac, Marinduque Former
Provincial Board Member -Province of Marinduque, Petitioner,
vs.
PRESIDENT BENIGNO SIMEON C. AQUINO III* and SECRETARY FLORENCIO
BUTCH ABAD, DEPARTMENT OF BUDGET AND MANAGEMENT, Respondents.
DECISION
PERLAS-BERNABE, J.:
"Experience is the oracle of truth."1
-James Madison
I. Pork Barrel: General Concept.
"Pork Barrel" is political parlance of American -English origin.3 Historically, its usage
may be traced to the degrading ritual of rolling out a barrel stuffed with pork to a
multitude of black slaves who would cast their famished bodies into the porcine feast
to assuage their hunger with morsels coming from the generosity of their well-fed
master.4 This practice was later compared to the actions of American legislators in
trying to direct federal budgets in favor of their districts.5 While the advent of
refrigeration has made the actual pork barrel obsolete, it persists in reference to
political bills that "bring home the bacon" to a legislator‘s district and constituents. 6 In
a more technical sense, "Pork Barrel" refers to an appropriation of government
spending meant for localized projects and secured solely or primarily to bring money
to a representative's district.7Some scholars on the subject further use it to refer to
legislative control of local appropriations.8
In the Philippines, "Pork Barrel" has been commonly referred to as lump-sum,
discretionary funds of Members of the Legislature,9 although, as will be later
discussed, its usage would evolve in reference to certain funds of the Executive.
II. History of Congressional Pork Barrel in the Philippines.
A. Pre-Martial Law Era (1922-1972).
Act 3044,10 or the Public Works Act of 1922, is considered11 as the earliest form of
"Congressional Pork Barrel" in the Philippines since the utilization of the funds
appropriated therein were subjected to post-enactment legislator approval.
Particularly, in the area of fund release, Section 3 12 provides that the sums
appropriated for certain public works projects13 "shall be distributed x x x subject to
the approval of a joint committee elected by the Senate and the House of
Representatives. "The committee from each House may also authorize one of its
members to approve the distribution made by the Secretary of Commerce and
Communications."14 Also, in the area of fund realignment, the same section provides
that the said secretary, "with the approval of said joint committee, or of the authorized
members thereof, may, for the purposes of said distribution, transfer unexpended
portions of any item of appropriation under this Act to any other item hereunder."
In 1950, it has been documented15 that post-enactment legislator participation
broadened from the areas of fund release and realignment to the area of project
identification. During that year, the mechanics of the public works act was modified to
the extent that the discretion of choosing projects was transferred from the Secretary
of Commerce and Communications to legislators. "For the first time, the law carried a
list of projects selected by Members of Congress, they ‘being the representatives of
the people, either on their own account or by consultation with local officials or civil
leaders.‘"16 During this period, the pork barrel process commenced with local
government councils, civil groups, and individuals appealing to Congressmen or
Senators for projects. Petitions that were accommodated formed part of a legislator‘s
allocation, and the amount each legislator would eventually get is determined in a
caucus convened by the majority. The amount was then integrated into the
administration bill prepared by the Department of Public Works and Communications.
Thereafter, the Senate and the House of Representatives added their own provisions
to the bill until it was signed into law by the President – the Public Works Act.17 In the
1960‘s, however, pork barrel legislation reportedly ceased in view of the stalemate
between the House of Representatives and the Senate.18
B. Martial Law Era (1972-1986).
While the previous" Congressional Pork Barrel" was apparently discontinued in 1972
after Martial Law was declared, an era when "one man controlled the
legislature,"19 the reprieve was only temporary. By 1982, the Batasang Pambansa
had already introduced a new item in the General Appropriations Act (GAA) called
the" Support for Local Development Projects" (SLDP) under the article on "National
Aid to Local Government Units". Based on reports,20 it was under the SLDP that the
practice of giving lump-sum allocations to individual legislators began, with each
assemblyman receiving ₱500,000.00. Thereafter, assemblymen would communicate
their project preferences to the Ministry of Budget and Management for approval.
Then, the said ministry would release the allocation papers to the Ministry of Local
Governments, which would, in turn, issue the checks to the city or municipal
treasurers in the assemblyman‘s locality. It has been further reported that
"Congressional Pork Barrel" projects under the SLDP also began to cover not only
public works projects, or so- called "hard projects", but also "soft projects",21 or non-
public works projects such as those which would fall under the categories of, among
others, education, health and livelihood.22
C. Post-Martial Law Era:
Corazon Cojuangco Aquino Administration (1986-1992).
After the EDSA People Power Revolution in 1986 and the restoration of Philippine
democracy, "Congressional Pork Barrel" was revived in the form of the "Mindanao
Development Fund" and the "Visayas Development Fund" which were created with
lump-sum appropriations of ₱480 Million and ₱240 Million, respectively, for the
funding of development projects in the Mindanao and Visayas areas in 1989. It has
been documented23 that the clamor raised by the Senators and the Luzon legislators
for a similar funding, prompted the creation of the "Countrywide Development Fund"
(CDF) which was integrated into the 1990 GAA24 with an initial funding of ₱2.3 Billion
to cover "small local infrastructure and other priority community projects."
Under the GAAs for the years 1991 and 1992,25 CDF funds were, with the approval of
the President, to be released directly to the implementing agencies but "subject to the
submission of the required list of projects and activities."Although the GAAs from
1990 to 1992 were silent as to the amounts of allocations of the individual legislators,
as well as their participation in the identification of projects, it has been reported 26 that
by 1992, Representatives were receiving ₱12.5 Million each in CDF funds, while
Senators were receiving ₱18 Million each, without any limitation or qualification, and
that they could identify any kind of project, from hard or infrastructure projects such as
roads, bridges, and buildings to "soft projects" such as textbooks, medicines, and
scholarships.27
D. Fidel Valdez Ramos (Ramos) Administration (1992-1998).
The following year, or in 1993,28 the GAA explicitly stated that the release of CDF
funds was to be made upon the submission of the list of projects and activities
identified by, among others, individual legislators. For the first time, the 1993 CDF
Article included an allocation for the Vice-President.29 As such, Representatives were
allocated ₱12.5 Million each in CDF funds, Senators, ₱18 Million each, and the Vice-
President, ₱20 Million.
In 1994,30 1995,31 and 1996,32 the GAAs contained the same provisions on project
identification and fund release as found in the 1993 CDF Article. In addition, however,
the Department of Budget and Management (DBM) was directed to submit reports to
the Senate Committee on Finance and the House Committee on Appropriations on
the releases made from the funds.33
Under the 199734 CDF Article, Members of Congress and the Vice-President, in
consultation with the implementing agency concerned, were directed to submit to the
DBM the list of 50% of projects to be funded from their respective CDF allocations
which shall be duly endorsed by (a) the Senate President and the Chairman of the
Committee on Finance, in the case of the Senate, and (b) the Speaker of the House
of Representatives and the Chairman of the Committee on Appropriations, in the case
of the House of Representatives; while the list for the remaining 50% was to be
submitted within six (6) months thereafter. The same article also stated that the
project list, which would be published by the DBM,35 "shall be the basis for the
release of funds" and that "no funds appropriated herein shall be disbursed for
projects not included in the list herein required."
The following year, or in 1998,36 the foregoing provisions regarding the required lists
and endorsements were reproduced, except that the publication of the project list was
no longer required as the list itself sufficed for the release of CDF Funds.
The CDF was not, however, the lone form of "Congressional Pork Barrel" at that time.
Other forms of "Congressional Pork Barrel" were reportedly fashioned and inserted
into the GAA (called "Congressional Insertions" or "CIs") in order to perpetuate the ad
ministration‘s political agenda.37 It has been articulated that since CIs "formed part
and parcel of the budgets of executive departments, they were not easily identifiable
and were thus harder to monitor." Nonetheless, the lawmakers themselves as well as
the finance and budget officials of the implementing agencies, as well as the DBM,
purportedly knew about the insertions.38 Examples of these CIs are the Department of
Education (DepEd) School Building Fund, the Congressional Initiative Allocations, the
Public Works Fund, the El Niño Fund, and the Poverty Alleviation Fund.39 The
allocations for the School Building Fund, particularly, ―shall be made upon prior
consultation with the representative of the legislative district concerned.”40 Similarly,
the legislators had the power to direct how, where and when these appropriations
were to be spent.41
E. Joseph Ejercito Estrada (Estrada) Administration (1998-2001).
In 1999,42 the CDF was removed in the GAA and replaced by three (3) separate
forms of CIs, namely, the "Food Security Program Fund," 43 the "Lingap Para Sa
Mahihirap Program Fund,"44and the "Rural/Urban Development Infrastructure
Program Fund,"45 all of which contained a special provision requiring "prior
consultation" with the Member s of Congress for the release of the funds.
It was in the year 200046 that the "Priority Development Assistance Fund" (PDAF)
appeared in the GAA. The requirement of "prior consultation with the respective
Representative of the District" before PDAF funds were directly released to the
implementing agency concerned was explicitly stated in the 2000 PDAF Article.
Moreover, realignment of funds to any expense category was expressly allowed, with
the sole condition that no amount shall be used to fund personal services and other
personnel benefits.47 The succeeding PDAF provisions remained the same in view of
the re-enactment48 of the 2000 GAA for the year 2001.
F. Gloria Macapagal-Arroyo (Arroyo) Administration (2001-2010).
The 200249 PDAF Article was brief and straightforward as it merely contained a single
special provision ordering the release of the funds directly to the implementing
agency or local government unit concerned, without further qualifications. The
following year, 2003,50 the same single provision was present, with simply an
expansion of purpose and express authority to realign. Nevertheless, the provisions in
the 2003 budgets of the Department of Public Works and Highways 51 (DPWH) and
the DepEd52 required prior consultation with Members of Congress on the aspects of
implementation delegation and project list submission, respectively. In 2004, the 2003
GAA was re-enacted.53
In 2005,54 the PDAF Article provided that the PDAF shall be used "to fund priority
programs and projects under the ten point agenda of the national government and
shall be released directly to the implementing agencies." It also introduced the
program menu concept,55 which is essentially a list of general programs and
implementing agencies from which a particular PDAF project may be subsequently
chosen by the identifying authority. The 2005 GAA was re-enacted56 in 2006 and
hence, operated on the same bases. In similar regard, the program menu concept
was consistently integrated into the 2007,57 2008,58 2009,59 and 201060 GAAs.
Textually, the PDAF Articles from 2002 to 2010 were silent with respect to the specific
amounts allocated for the individual legislators, as well as their participation in the
proposal and identification of PDAF projects to be funded. In contrast to the PDAF
Articles, however, the provisions under the DepEd School Building Program and the
DPWH budget, similar to its predecessors, explicitly required prior consultation with
the concerned Member of Congress61anent certain aspects of project implementation.
Significantly, it was during this era that provisions which allowed formal participation
of non-governmental organizations (NGO) in the implementation of government
projects were introduced. In the Supplemental Budget for 2006, with respect to the
appropriation for school buildings, NGOs were, by law, encouraged to participate. For
such purpose, the law stated that "the amount of at least ₱250 Million of the ₱500
Million allotted for the construction and completion of school buildings shall be made
available to NGOs including the Federation of Filipino-Chinese Chambers of
Commerce and Industry, Inc. for its "Operation Barrio School" program, with
capability and proven track records in the construction of public school buildings x x
x."62 The same allocation was made available to NGOs in the 2007 and 2009 GAAs
under the DepEd Budget.63 Also, it was in 2007 that the Government Procurement
Policy Board64 (GPPB) issued Resolution No. 12-2007 dated June 29, 2007 (GPPB
Resolution 12-2007), amending the implementing rules and regulations 65 of RA
9184,66 the Government Procurement Reform Act, to include, as a form of negotiated
procurement,67 the procedure whereby the Procuring Entity68(the implementing
agency) may enter into a memorandum of agreement with an NGO, provided that "an
appropriation law or ordinance earmarks an amount to be specifically contracted out
to NGOs."69
G. Present Administration (2010-Present).
Differing from previous PDAF Articles but similar to the CDF Articles, the
201170 PDAF Article included an express statement on lump-sum amounts allocated
for individual legislators and the Vice-President: Representatives were given ₱70
Million each, broken down into ₱40 Million for "hard projects" and ₱30 Million for "soft
projects"; while ₱200 Million was given to each Senator as well as the Vice-President,
with a ₱100 Million allocation each for "hard" and "soft projects." Likewise, a provision
on realignment of funds was included, but with the qualification that it may be allowed
only once. The same provision also allowed the Secretaries of Education, Health,
Social Welfare and Development, Interior and Local Government, Environment and
Natural Resources, Energy, and Public Works and Highways to realign PDAF Funds,
with the further conditions that: (a) realignment is within the same implementing unit
and same project category as the original project, for infrastructure projects; (b)
allotment released has not yet been obligated for the original scope of work, and (c)
the request for realignment is with the concurrence of the legislator concerned. 71
In the 201272 and 201373 PDAF Articles, it is stated that the "identification of projects
and/or designation of beneficiaries shall conform to the priority list, standard or design
prepared by each implementing agency (priority list requirement) x x x." However, as
practiced, it would still be the individual legislator who would choose and identify the
project from the said priority list.74
Provisions on legislator allocations75 as well as fund realignment76 were included in
the 2012 and 2013 PDAF Articles; but the allocation for the Vice-President, which
was pegged at ₱200 Million in the 2011 GAA, had been deleted. In addition, the 2013
PDAF Article now allowed LGUs to be identified as implementing agencies if they
have the technical capability to implement the projects. 77 Legislators were also
allowed to identify programs/projects, except for assistance to indigent patients and
scholarships, outside of his legislative district provided that he secures the written
concurrence of the legislator of the intended outside-district, endorsed by the Speaker
of the House.78 Finally, any realignment of PDAF funds, modification and revision of
project identification, as well as requests for release of funds, were all required to be
favorably endorsed by the House Committee on Appropriations and the Senate
Committee on Finance, as the case may be.79
III. History of Presidential Pork Barrel in the Philippines.
While the term "Pork Barrel" has been typically associated with lump-sum,
discretionary funds of Members of Congress, the present cases and the recent
controversies on the matter have, however, shown that the term‘s usage has
expanded to include certain funds of the President such as the Malampaya Funds
and the Presidential Social Fund.
On the one hand, the Malampaya Funds was created as a special fund under Section
880 of Presidential Decree No. (PD) 910,81 issued by then President Ferdinand E.
Marcos (Marcos) on March 22, 1976. In enacting the said law, Marcos recognized the
need to set up a special fund to help intensify, strengthen, and consolidate
government efforts relating to the exploration, exploitation, and development of
indigenous energy resources vital to economic growth. 82 Due to the energy-related
activities of the government in the Malampaya natural gas field in Palawan, or the
"Malampaya Deep Water Gas-to-Power Project",83 the special fund created under PD
910 has been currently labeled as Malampaya Funds.
On the other hand the Presidential Social Fund was created under Section 12, Title
IV84 of PD 1869,85 or the Charter of the Philippine Amusement and Gaming
Corporation (PAGCOR). PD 1869 was similarly issued by Marcos on July 11, 1983.
More than two (2) years after, he amended PD 1869 and accordingly issued PD 1993
on October 31, 1985,86 amending Section 1287 of the former law. As it stands, the
Presidential Social Fund has been described as a special funding facility managed
and administered by the Presidential Management Staff through which the President
provides direct assistance to priority programs and projects not funded under the
regular budget. It is sourced from the share of the government in the aggregate gross
earnings of PAGCOR.88
IV. Controversies in the Philippines.
Over the decades, "pork" funds in the Philippines have increased
tremendously,89 owing in no small part to previous Presidents who reportedly used
the "Pork Barrel" in order to gain congressional support. 90 It was in 1996 when the
first controversy surrounding the "Pork Barrel" erupted. Former Marikina City
Representative Romeo Candazo (Candazo), then an anonymous source, "blew the lid
on the huge sums of government money that regularly went into the pockets of
legislators in the form of kickbacks."91 He said that "the kickbacks were ‘SOP‘
(standard operating procedure) among legislators and ranged from a low 19 percent
to a high 52 percent of the cost of each project, which could be anything from
dredging, rip rapping, sphalting, concreting, and construction of school
buildings."92 "Other sources of kickbacks that Candazo identified were public funds
intended for medicines and textbooks. A few days later, the tale of the money trail
became the banner story of the Philippine Daily Inquirer issue of August 13, 1996,
accompanied by an illustration of a roasted pig." 93 "The publication of the stories,
including those about congressional initiative allocations of certain lawmakers,
including ₱3.6 Billion for a Congressman, sparked public outrage." 94
Thereafter, or in 2004, several concerned citizens sought the nullification of the PDAF
as enacted in the 2004 GAA for being unconstitutional. Unfortunately, for lack of "any
pertinent evidentiary support that illegal misuse of PDAF in the form of kickbacks has
become a common exercise of unscrupulous Members of Congress," the petition was
dismissed.95
Recently, or in July of the present year, the National Bureau of Investigation (NBI)
began its probe into allegations that "the government has been defrauded of some
₱10 Billion over the past 10 years by a syndicate using funds from the pork barrel of
lawmakers and various government agencies for scores of ghost projects." 96 The
investigation was spawned by sworn affidavits of six (6) whistle-blowers who declared
that JLN Corporation – "JLN" standing for Janet Lim Napoles (Napoles) – had
swindled billions of pesos from the public coffers for "ghost projects" using no fewer
than 20 dummy NGOs for an entire decade. While the NGOs were supposedly the
ultimate recipients of PDAF funds, the whistle-blowers declared that the money was
diverted into Napoles‘ private accounts.97 Thus, after its investigation on the Napoles
controversy, criminal complaints were filed before the Office of the Ombudsman,
charging five (5) lawmakers for Plunder, and three (3) other lawmakers for
Malversation, Direct Bribery, and Violation of the Anti-Graft and Corrupt Practices Act.
Also recommended to be charged in the complaints are some of the lawmakers‘
chiefs -of-staff or representatives, the heads and other officials of three (3)
implementing agencies, and the several presidents of the NGOs set up by Napoles.98
On August 16, 2013, the Commission on Audit (CoA) released the results of a three-
year audit investigation99covering the use of legislators' PDAF from 2007 to 2009, or
during the last three (3) years of the Arroyo administration. The purpose of the audit
was to determine the propriety of releases of funds under PDAF and the Various
Infrastructures including Local Projects (VILP)100 by the DBM, the application of these
funds and the implementation of projects by the appropriate implementing agencies
and several government-owned-and-controlled corporations (GOCCs).101 The total
releases covered by the audit amounted to ₱8.374 Billion in PDAF and ₱32.664
Billion in VILP, representing 58% and 32%, respectively, of the total PDAF and VILP
releases that were found to have been made nationwide during the audit
period.102 Accordingly, the Co A‘s findings contained in its Report No. 2012-03 (CoA
Report), entitled "Priority Development Assistance Fund (PDAF) and Various
Infrastructures including Local Projects (VILP)," were made public, the highlights of
which are as follows:103
● Amounts released for projects identified by a considerable number of legislators
significantly exceeded their respective allocations.
● Amounts were released for projects outside of legislative districts of sponsoring
members of the Lower House.
● Total VILP releases for the period exceeded the total amount appropriated under
the 2007 to 2009 GAAs.
● Infrastructure projects were constructed on private lots without these having been
turned over to the government.
● Significant amounts were released to implementing agencies without the latter‘s
endorsement and without considering their mandated functions, administrative and
technical capabilities to implement projects.
● Implementation of most livelihood projects was not undertaken by the implementing
agencies themselves but by NGOs endorsed by the proponent legislators to which
the Funds were transferred.
● The funds were transferred to the NGOs in spite of the absence of any
appropriation law or ordinance.
● Selection of the NGOs were not compliant with law and regulations.
● Eighty-Two (82) NGOs entrusted with implementation of seven hundred seventy
two (772) projects amount to ₱6.156 Billion were either found questionable, or
submitted questionable/spurious documents, or failed to liquidate in whole or in part
their utilization of the Funds.
● Procurement by the NGOs, as well as some implementing agencies, of goods and
services reportedly used in the projects were not compliant with law.
As for the "Presidential Pork Barrel", whistle-blowers alleged that" at least ₱900
Million from royalties in the operation of the Malampaya gas project off Palawan
province intended for agrarian reform beneficiaries has gone into a dummy
NGO."104 According to incumbent CoA Chairperson Maria Gracia Pulido Tan (CoA
Chairperson), the CoA is, as of this writing, in the process of preparing "one
consolidated report" on the Malampaya Funds.105
V. The Procedural Antecedents.
Spurred in large part by the findings contained in the CoA Report and the Napoles
controversy, several petitions were lodged before the Court similarly seeking that the
"Pork Barrel System" be declared unconstitutional. To recount, the relevant
procedural antecedents in these cases are as follows:
On August 28, 2013, petitioner Samson S. Alcantara (Alcantara), President of the
Social Justice Society, filed a Petition for Prohibition of even date under Rule 65 of
the Rules of Court (Alcantara Petition), seeking that the "Pork Barrel System" be
declared unconstitutional, and a writ of prohibition be issued permanently restraining
respondents Franklin M. Drilon and Feliciano S. Belmonte, Jr., in their respective
capacities as the incumbent Senate President and Speaker of the House of
Representatives, from further taking any steps to enact legislation appropriating funds
for the "Pork Barrel System," in whatever form and by whatever name it may be
called, and from approving further releases pursuant thereto.106 The Alcantara
Petition was docketed as G.R. No. 208493.
On September 3, 2013, petitioners Greco Antonious Beda B. Belgica, Jose L.
Gonzalez, Reuben M. Abante, Quintin Paredes San Diego (Belgica, et al.), and Jose
M. Villegas, Jr. (Villegas) filed an Urgent Petition For Certiorari and Prohibition With
Prayer For The Immediate Issuance of Temporary Restraining Order (TRO) and/or
Writ of Preliminary Injunction dated August 27, 2013 under Rule 65 of the Rules of
Court (Belgica Petition), seeking that the annual "Pork Barrel System," presently
embodied in the provisions of the GAA of 2013 which provided for the 2013 PDAF,
and the Executive‘s lump-sum, discretionary funds, such as the Malampaya Funds
and the Presidential Social Fund,107 be declared unconstitutional and null and void for
being acts constituting grave abuse of discretion. Also, they pray that the Court issue
a TRO against respondents Paquito N. Ochoa, Jr., Florencio B. Abad (Secretary
Abad) and Rosalia V. De Leon, in their respective capacities as the incumbent
Executive Secretary, Secretary of the Department of Budget and Management
(DBM), and National Treasurer, or their agents, for them to immediately cease any
expenditure under the aforesaid funds. Further, they pray that the Court order the
foregoing respondents to release to the CoA and to the public: (a) "the complete
schedule/list of legislators who have availed of their PDAF and VILP from the years
2003 to 2013, specifying the use of the funds, the project or activity and the recipient
entities or individuals, and all pertinent data thereto"; and (b) "the use of the
Executive‘s lump-sum, discretionary funds, including the proceeds from the x x x
Malampaya Funds and remittances from the PAGCOR x x x from 2003 to 2013,
specifying the x x x project or activity and the recipient entities or individuals, and all
pertinent data thereto."108 Also, they pray for the "inclusion in budgetary deliberations
with the Congress of all presently off-budget, lump-sum, discretionary funds including,
but not limited to, proceeds from the Malampaya Funds and remittances from the
PAGCOR."109 The Belgica Petition was docketed as G.R. No. 208566.110
Lastly, on September 5, 2013, petitioner Pedrito M. Nepomuceno (Nepomuceno),
filed a Petition dated August 23, 2012 (Nepomuceno Petition), seeking that the PDAF
be declared unconstitutional, and a cease and desist order be issued restraining
President Benigno Simeon S. Aquino III (President Aquino) and Secretary Abad from
releasing such funds to Members of Congress and, instead, allow their release to
fund priority projects identified and approved by the Local Development Councils in
consultation with the executive departments, such as the DPWH, the Department of
Tourism, the Department of Health, the Department of Transportation, and
Communication and the National Economic Development Authority.111 The
Nepomuceno Petition was docketed as UDK-14951.112
On September 10, 2013, the Court issued a Resolution of even date (a) consolidating
all cases; (b) requiring public respondents to comment on the consolidated petitions;
(c) issuing a TRO (September 10, 2013 TRO) enjoining the DBM, National Treasurer,
the Executive Secretary, or any of the persons acting under their authority from
releasing (1) the remaining PDAF allocated to Members of Congress under the GAA
of 2013, and (2) Malampaya Funds under the phrase "for such other purposes as
may be hereafter directed by the President" pursuant to Section 8 of PD 910 but not
for the purpose of "financing energy resource development and exploitation programs
and projects of the government‖ under the same provision; and (d) setting the
consolidated cases for Oral Arguments on October 8, 2013.
On September 23, 2013, the Office of the Solicitor General (OSG) filed a
Consolidated Comment (Comment) of even date before the Court, seeking the lifting,
or in the alternative, the partial lifting with respect to educational and medical
assistance purposes, of the Court‘s September 10, 2013 TRO, and that the
consolidated petitions be dismissed for lack of merit.113
On September 24, 2013, the Court issued a Resolution of even date directing
petitioners to reply to the Comment.
Petitioners, with the exception of Nepomuceno, filed their respective replies to the
Comment: (a) on September 30, 2013, Villegas filed a separate Reply dated
September 27, 2013 (Villegas Reply); (b) on October 1, 2013, Belgica, et al. filed a
Reply dated September 30, 2013 (Belgica Reply); and (c) on October 2, 2013,
Alcantara filed a Reply dated October 1, 2013.
On October 1, 2013, the Court issued an Advisory providing for the guidelines to be
observed by the parties for the Oral Arguments scheduled on October 8, 2013. In
view of the technicality of the issues material to the present cases, incumbent
Solicitor General Francis H. Jardeleza (Solicitor General) was directed to bring with
him during the Oral Arguments representative/s from the DBM and Congress who
would be able to competently and completely answer questions related to, among
others, the budgeting process and its implementation. Further, the CoA Chairperson
was appointed as amicus curiae and thereby requested to appear before the Court
during the Oral Arguments.
On October 8 and 10, 2013, the Oral Arguments were conducted. Thereafter, the
Court directed the parties to submit their respective memoranda within a period of
seven (7) days, or until October 17, 2013, which the parties subsequently did.
The Issues Before the Court
Based on the pleadings, and as refined during the Oral Arguments, the following are
the main issues for the Court‘s resolution:
I. Procedural Issues.
Whether or not (a) the issues raised in the consolidated petitions involve an actual
and justiciable controversy; (b) the issues raised in the consolidated petitions are
matters of policy not subject to judicial review; (c) petitioners have legal standing to
sue; and (d) the Court‘s Decision dated August 19, 1994 in G.R. Nos. 113105,
113174, 113766, and 113888, entitled "Philippine Constitution Association v.
Enriquez"114 (Philconsa) and Decision dated April 24, 2012 in G.R. No. 164987,
entitled "Lawyers Against Monopoly and Poverty v. Secretary of Budget and
Management"115 (LAMP) bar the re-litigatio n of the issue of constitutionality of the
"Pork Barrel System" under the principles of res judicata and stare decisis.
II. Substantive Issues on the "Congressional Pork Barrel."
Whether or not the 2013 PDAF Article and all other Congressional Pork Barrel Laws
similar thereto are unconstitutional considering that they violate the principles
of/constitutional provisions on (a) separation of powers; (b) non-delegability of
legislative power; (c) checks and balances; (d) accountability; (e) political dynasties;
and (f) local autonomy.
III. Substantive Issues on the "Presidential Pork Barrel."
Whether or not the phrases (a) "and for such other purposes as may be hereafter
directed by the President" under Section 8 of PD 910,116 relating to the Malampaya
Funds, and (b) "to finance the priority infrastructure development projects and to
finance the restoration of damaged or destroyed facilities due to calamities, as may
be directed and authorized by the Office of the President of the Philippines" under
Section 12 of PD 1869, as amended by PD 1993, relating to the Presidential Social
Fund, are unconstitutional insofar as they constitute undue delegations of legislative
power.
These main issues shall be resolved in the order that they have been stated. In
addition, the Court shall also tackle certain ancillary issues as prompted by the
present cases.
The Court’s Ruling
The petitions are partly granted.
I. Procedural Issues.
The prevailing rule in constitutional litigation is that no question involving the
constitutionality or validity of a law or governmental act may be heard and decided by
the Court unless there is compliance with the legal requisites for judicial
inquiry,117 namely: (a) there must be an actual case or controversy calling for the
exercise of judicial power; (b) the person challenging the act must have the standing
to question the validity of the subject act or issuance; (c) the question of
constitutionality must be raised at the earliest opportunity ; and (d) the issue of
constitutionality must be the very lis mota of the case.118 Of these requisites, case law
states that the first two are the most important119and, therefore, shall be discussed
forthwith.
A. Existence of an Actual Case or Controversy.
By constitutional fiat, judicial power operates only when there is an actual case or
controversy.120 This is embodied in Section 1, Article VIII of the 1987 Constitution
which pertinently states that "judicial power includes the duty of the courts of justice to
settle actual controversies involving rights which are legally demandable and
enforceable x x x." Jurisprudence provides that an actual case or controversy is one
which "involves a conflict of legal rights, an assertion of opposite legal claims,
susceptible of judicial resolution as distinguished from a hypothetical or abstract
difference or dispute.121 In other words, "there must be a contrariety of legal rights
that can be interpreted and enforced on the basis of existing law and
jurisprudence."122 Related to the requirement of an actual case or controversy is the
requirement of "ripeness," meaning that the questions raised for constitutional
scrutiny are already ripe for adjudication. "A question is ripe for adjudication when the
act being challenged has had a direct adverse effect on the individual challenging it. It
is a prerequisite that something had then been accomplished or performed by either
branch before a court may come into the picture, and the petitioner must allege the
existence of an immediate or threatened injury to itself as a result of the challenged
action."123 "Withal, courts will decline to pass upon constitutional issues through
advisory opinions, bereft as they are of authority to resolve hypothetical or moot
questions."124
Based on these principles, the Court finds that there exists an actual and justiciable
controversy in these cases.
The requirement of contrariety of legal rights is clearly satisfied by the antagonistic
positions of the parties on the constitutionality of the "Pork Barrel System." Also, the
questions in these consolidated cases are ripe for adjudication since the challenged
funds and the provisions allowing for their utilization – such as the 2013 GAA for the
PDAF, PD 910 for the Malampaya Funds and PD 1869, as amended by PD 1993, for
the Presidential Social Fund – are currently existing and operational; hence, there
exists an immediate or threatened injury to petitioners as a result of the
unconstitutional use of these public funds.
As for the PDAF, the Court must dispel the notion that the issues related thereto had
been rendered moot and academic by the reforms undertaken by respondents. A
case becomes moot when there is no more actual controversy between the parties or
no useful purpose can be served in passing upon the merits.125 Differing from this
description, the Court observes that respondents‘ proposed line-item budgeting
scheme would not terminate the controversy nor diminish the useful purpose for its
resolution since said reform is geared towards the 2014 budget, and not the 2013
PDAF Article which, being a distinct subject matter, remains legally effective and
existing. Neither will the President‘s declaration that he had already "abolished the
PDAF" render the issues on PDAF moot precisely because the Executive branch of
government has no constitutional authority to nullify or annul its legal existence. By
constitutional design, the annulment or nullification of a law may be done either by
Congress, through the passage of a repealing law, or by the Court, through a
declaration of unconstitutionality. Instructive on this point is the following exchange
between Associate Justice Antonio T. Carpio (Justice Carpio) and the Solicitor
General during the Oral Arguments:126
Justice Carpio: The President has taken an oath to faithfully execute the
law,127 correct? Solicitor General Jardeleza: Yes, Your Honor.
Justice Carpio: And so the President cannot refuse to implement the General
Appropriations Act, correct?
Solicitor General Jardeleza: Well, that is our answer, Your Honor. In the case, for
example of the PDAF, the President has a duty to execute the laws but in the face of
the outrage over PDAF, the President was saying, "I am not sure that I will continue
the release of the soft projects," and that started, Your Honor. Now, whether or not
that … (interrupted)
Justice Carpio: Yeah. I will grant the President if there are anomalies in the project,
he has the power to stop the releases in the meantime, to investigate, and that is
Section 38 of Chapter 5 of Book 6 of the Revised Administrative Code 128 x x x. So at
most the President can suspend, now if the President believes that the PDAF is
unconstitutional, can he just refuse to implement it?
Solicitor General Jardeleza: No, Your Honor, as we were trying to say in the specific
case of the PDAF because of the CoA Report, because of the reported irregularities
and this Court can take judicial notice, even outside, outside of the COA Report, you
have the report of the whistle-blowers, the President was just exercising precisely the
duty ….
xxxx
Justice Carpio: Yes, and that is correct. You‘ve seen the CoA Report, there are
anomalies, you stop and investigate, and prosecute, he has done that. But, does that
mean that PDAF has been repealed?
Solicitor General Jardeleza: No, Your Honor x x x.
xxxx
Justice Carpio: So that PDAF can be legally abolished only in two (2) cases.
Congress passes a law to repeal it, or this Court declares it unconstitutional, correct?
Solictor General Jardeleza: Yes, Your Honor.
Justice Carpio: The President has no power to legally abolish PDAF. (Emphases
supplied)
Even on the assumption of mootness, jurisprudence, nevertheless, dictates that "the
moot and academic‘ principle is not a magical formula that can automatically
dissuade the Court in resolving a case." The Court will decide cases, otherwise moot,
if: first, there is a grave violation of the Constitution; second, the exceptional character
of the situation and the paramount public interest is involved; third, when the
constitutional issue raised requires formulation of controlling principles to guide the
bench, the bar, and the public; and fourth, the case is capable of repetition yet
evading review.129
The applicability of the first exception is clear from the fundamental posture of
petitioners – they essentially allege grave violations of the Constitution with respect
to, inter alia, the principles of separation of powers, non-delegability of legislative
power, checks and balances, accountability and local autonomy.
The applicability of the second exception is also apparent from the nature of the
interests involved
– the constitutionality of the very system within which significant amounts of public
funds have been and continue to be utilized and expended undoubtedly presents a
situation of exceptional character as well as a matter of paramount public interest.
The present petitions, in fact, have been lodged at a time when the system‘s flaws
have never before been magnified. To the Court‘s mind, the coalescence of the CoA
Report, the accounts of numerous whistle-blowers, and the government‘s own
recognition that reforms are needed "to address the reported abuses of the
PDAF"130 demonstrates a prima facie pattern of abuse which only underscores the
importance of the matter. It is also by this finding that the Court finds petitioners‘
claims as not merely theorized, speculative or hypothetical. Of note is the weight
accorded by the Court to the findings made by the CoA which is the constitutionally-
mandated audit arm of the government. In Delos Santos v. CoA, 131 a recent case
wherein the Court upheld the CoA‘s disallowance of irregularly disbursed PDAF
funds, it was emphasized that:
The COA is endowed with enough latitude to determine, prevent, and disallow
irregular, unnecessary, excessive, extravagant or unconscionable expenditures of
government funds. It is tasked to be vigilant and conscientious in safeguarding the
proper use of the government's, and ultimately the people's, property. The exercise of
its general audit power is among the constitutional mechanisms that gives life to the
check and balance system inherent in our form of government.
It is the general policy of the Court to sustain the decisions of administrative
authorities, especially one which is constitutionally-created, such as the CoA, not only
on the basis of the doctrine of separation of powers but also for their presumed
expertise in the laws they are entrusted to enforce. Findings of administrative
agencies are accorded not only respect but also finality when the decision and order
are not tainted with unfairness or arbitrariness that would amount to grave abuse of
discretion. It is only when the CoA has acted without or in excess of jurisdiction, or
with grave abuse of discretion amounting to lack or excess of jurisdiction, that this
Court entertains a petition questioning its rulings. x x x. (Emphases supplied)
Thus, if only for the purpose of validating the existence of an actual and justiciable
controversy in these cases, the Court deems the findings under the CoA Report to be
sufficient.
The Court also finds the third exception to be applicable largely due to the practical
need for a definitive ruling on the system‘s constitutionality. As disclosed during the
Oral Arguments, the CoA Chairperson estimates that thousands of notices of
disallowances will be issued by her office in connection with the findings made in the
CoA Report. In this relation, Associate Justice Marvic Mario Victor F. Leonen (Justice
Leonen) pointed out that all of these would eventually find their way to the
courts.132 Accordingly, there is a compelling need to formulate controlling principles
relative to the issues raised herein in order to guide the bench, the bar, and the
public, not just for the expeditious resolution of the anticipated disallowance cases,
but more importantly, so that the government may be guided on how public funds
should be utilized in accordance with constitutional principles.
Finally, the application of the fourth exception is called for by the recognition that the
preparation and passage of the national budget is, by constitutional imprimatur, an
affair of annual occurrence.133 The relevance of the issues before the Court does not
cease with the passage of a "PDAF -free budget for 2014."134 The evolution of the
"Pork Barrel System," by its multifarious iterations throughout the course of history,
lends a semblance of truth to petitioners‘ claim that "the same dog will just resurface
wearing a different collar."135 In Sanlakas v. Executive Secretary,136 the government
had already backtracked on a previous course of action yet the Court used the
"capable of repetition but evading review" exception in order "to prevent similar
questions from re- emerging."137 The situation similarly holds true to these cases.
Indeed, the myriad of issues underlying the manner in which certain public funds are
spent, if not resolved at this most opportune time, are capable of repetition and
hence, must not evade judicial review.
B. Matters of Policy: the Political Question Doctrine.
The "limitation on the power of judicial review to actual cases and controversies‖
carries the assurance that "the courts will not intrude into areas committed to the
other branches of government."138 Essentially, the foregoing limitation is a
restatement of the political question doctrine which, under the classic formulation of
Baker v. Carr,139applies when there is found, among others, "a textually demonstrable
constitutional commitment of the issue to a coordinate political department," "a lack of
judicially discoverable and manageable standards for resolving it" or "the impossibility
of deciding without an initial policy determination of a kind clearly for non- judicial
discretion." Cast against this light, respondents submit that the "the political branches
are in the best position not only to perform budget-related reforms but also to do them
in response to the specific demands of their constituents" and, as such, "urge the
Court not to impose a solution at this stage."140
The Court must deny respondents‘ submission.
Suffice it to state that the issues raised before the Court do not present political but
legal questions which are within its province to resolve. A political question 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." 141 The
intrinsic constitutionality of the "Pork Barrel System" is not an issue dependent upon
the wisdom of the political branches of government but rather a legal one which the
Constitution itself has commanded the Court to act upon. Scrutinizing the contours of
the system along constitutional lines is a task that the political branches of
government are incapable of rendering precisely because it is an exercise of judicial
power. More importantly, the present Constitution has not only vested the Judiciary
the right to exercise judicial power but essentially makes it a duty to proceed
therewith. Section 1, Article VIII of the 1987 Constitution cannot be any clearer: "The
judicial power shall be vested in one Supreme Court and in such lower courts as may
be established by law. It 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." In Estrada v. Desierto,142 the expanded concept of judicial power under
the 1987 Constitution and its effect on the political question doctrine was explained as
follows:143
To a great degree, the 1987 Constitution has narrowed the reach of the political
question doctrine when it expanded the power of judicial review of this court not only
to settle actual controversies involving rights which are legally demandable and
enforceable but also 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 government. Heretofore, the judiciary has focused on the "thou shalt
not's" of the Constitution directed against the exercise of its jurisdiction. With the new
provision, however, courts are given a greater prerogative to determine what it can do
to prevent grave abuse of discretion amounting to lack or excess of jurisdiction on the
part of any branch or instrumentality of government. Clearly, the new provision did not
just grant the Court power of doing nothing. x x x (Emphases supplied)
It must also be borne in mind that ― when the judiciary mediates to allocate
constitutional boundaries, it does not assert any superiority over the other
departments; does not in reality nullify or invalidate an act of the legislature or the
executive, but only asserts the solemn and sacred obligation assigned to it by the
Constitution."144 To a great extent, the Court is laudably cognizant of the reforms
undertaken by its co-equal branches of government. But it is by constitutional force
that the Court must faithfully perform its duty. Ultimately, it is the Court‘s avowed
intention that a resolution of these cases would not arrest or in any manner impede
the endeavors of the two other branches but, in fact, help ensure that the pillars of
change are erected on firm constitutional grounds. After all, it is in the best interest of
the people that each great branch of government, within its own sphere, contributes
its share towards achieving a holistic and genuine solution to the problems of society.
For all these reasons, the Court cannot heed respondents‘ plea for judicial restraint.
C. Locus Standi.
"The gist of the question of standing is whether a party alleges such personal stake in
the outcome of the controversy as to assure that concrete adverseness which
sharpens the presentation of issues upon which the court depends for illumination of
difficult constitutional questions. Unless a person is injuriously affected in any of his
constitutional rights by the operation of statute or ordinance, he has no standing." 145
Petitioners have come before the Court in their respective capacities as citizen-
taxpayers and accordingly, assert that they "dutifully contribute to the coffers of the
National Treasury."146 Clearly, as taxpayers, they possess the requisite standing to
question the validity of the existing "Pork Barrel System" under which the taxes they
pay have been and continue to be utilized. It is undeniable that petitioners, as
taxpayers, are bound to suffer from the unconstitutional usage of public funds, if the
Court so rules. Invariably, taxpayers have been allowed to sue where there is a claim
that public funds are illegally disbursed or that public money is being deflected to any
improper purpose, or that public funds are wasted through the enforcement of an
invalid or unconstitutional law,147 as in these cases.
Moreover, as citizens, petitioners have equally fulfilled the standing requirement given
that the issues they have raised may be classified as matters "of transcendental
importance, of overreaching significance to society, or of paramount public
interest."148 The CoA Chairperson‘s statement during the Oral Arguments that the
present controversy involves "not merely a systems failure" but a "complete
breakdown of controls"149 amplifies, in addition to the matters above-discussed, the
seriousness of the issues involved herein. Indeed, of greater import than the damage
caused by the illegal expenditure of public funds is the mortal wound inflicted upon
the fundamental law by the enforcement of an invalid statute.150 All told, petitioners
have sufficient locus standi to file the instant cases.
D. Res Judicata and Stare Decisis.
Res judicata (which means a "matter adjudged") and stare decisis non quieta et
movere (or simply, stare decisis which means "follow past precedents and do not
disturb what has been settled") are general procedural law principles which both deal
with the effects of previous but factually similar dispositions to subsequent cases. For
the cases at bar, the Court examines the applicability of these principles in relation to
its prior rulings in Philconsa and LAMP.
The focal point of res judicata is the judgment. The principle states that a judgment on
the merits in a previous case rendered by a court of competent jurisdiction would bind
a subsequent case if, between the first and second actions, there exists an identity of
parties, of subject matter, and of causes of action.151 This required identity is not,
however, attendant hereto since Philconsa and LAMP, respectively involved
constitutional challenges against the 1994 CDF Article and 2004 PDAF Article,
whereas the cases at bar call for a broader constitutional scrutiny of the entire "Pork
Barrel System." Also, the ruling in LAMP is essentially a dismissal based on a
procedural technicality – and, thus, hardly a judgment on the merits – in that
petitioners therein failed to present any "convincing proof x x x showing that, indeed,
there were direct releases of funds to the Members of Congress, who actually spend
them according to their sole discretion" or "pertinent evidentiary support to
demonstrate the illegal misuse of PDAF in the form of kickbacks and has become a
common exercise of unscrupulous Members of Congress." As such, the Court up
held, in view of the presumption of constitutionality accorded to every law, the 2004
PDAF Article, and saw "no need to review or reverse the standing pronouncements in
the said case." Hence, for the foregoing reasons, the res judicata principle, insofar as
the Philconsa and LAMP cases are concerned, cannot apply.
On the other hand, the focal point of stare decisis is the doctrine created. The
principle, entrenched under Article 8152 of the Civil Code, evokes the general rule that,
for the sake of certainty, a conclusion reached in one case should be doctrinally
applied to those that follow if the facts are substantially the same, even though the
parties may be different. It proceeds from the first principle of justice that, absent any
powerful countervailing considerations, like cases ought to be decided alike. Thus,
where the same questions relating to the same event have been put forward by the
parties similarly situated as in a previous case litigated and decided by a competent
court, the rule of stare decisis is a bar to any attempt to re-litigate the same issue.153
Philconsa was the first case where a constitutional challenge against a Pork Barrel
provision, i.e., the 1994 CDF Article, was resolved by the Court. To properly
understand its context, petitioners‘ posturing was that "the power given to the
Members of Congress to propose and identify projects and activities to be funded by
the CDF is an encroachment by the legislature on executive power, since said power
in an appropriation act is in implementation of the law" and that "the proposal and
identification of the projects do not involve the making of laws or the repeal and
amendment thereof, the only function given to the Congress by the Constitution." 154 In
deference to the foregoing submissions, the Court reached the following main
conclusions: one, under the Constitution, the power of appropriation, or the "power of
the purse," belongs to Congress; two, the power of appropriation carries with it the
power to specify the project or activity to be funded under the appropriation law and it
can be detailed and as broad as Congress wants it to be; and, three, the proposals
and identifications made by Members of Congress are merely recommendatory. At
once, it is apparent that the Philconsa resolution was a limited response to a
separation of powers problem, specifically on the propriety of conferring post-
enactment identification authority to Members of Congress. On the contrary, the
present cases call for a more holistic examination of (a) the inter-relation between the
CDF and PDAF Articles with each other, formative as they are of the entire "Pork
Barrel System" as well as (b) the intra-relation of post-enactment measures contained
within a particular CDF or PDAF Article, including not only those related to the area of
project identification but also to the areas of fund release and realignment. The
complexity of the issues and the broader legal analyses herein warranted may be,
therefore, considered as a powerful countervailing reason against a wholesale
application of the stare decisis principle.
In addition, the Court observes that the Philconsa ruling was actually riddled with
inherent constitutional inconsistencies which similarly countervail against a full resort
to stare decisis. As may be deduced from the main conclusions of the case,
Philconsa‘s fundamental premise in allowing Members of Congress to propose and
identify of projects would be that the said identification authority is but an aspect of
the power of appropriation which has been constitutionally lodged in Congress. From
this premise, the contradictions may be easily seen. If the authority to identify projects
is an aspect of appropriation and the power of appropriation is a form of legislative
power thereby lodged in Congress, then it follows that: (a) it is Congress which should
exercise such authority, and not its individual Members; (b) such authority must be
exercised within the prescribed procedure of law passage and, hence, should not be
exercised after the GAA has already been passed; and (c) such authority, as
embodied in the GAA, has the force of law and, hence, cannot be merely
recommendatory. Justice Vitug‘s Concurring Opinion in the same case sums up the
Philconsa quandary in this wise: "Neither would it be objectionable for Congress, by
law, to appropriate funds for such specific projects as it may be minded; to give that
authority, however, to the individual members of Congress in whatever guise, I am
afraid, would be constitutionally impermissible." As the Court now largely benefits
from hindsight and current findings on the matter, among others, the CoA Report, the
Court must partially abandon its previous ruling in Philconsa insofar as it validated the
post-enactment identification authority of Members of Congress on the guise that the
same was merely recommendatory. This postulate raises serious constitutional
inconsistencies which cannot be simply excused on the ground that such mechanism
is "imaginative as it is innovative." Moreover, it must be pointed out that the recent
case of Abakada Guro Party List v. Purisima155(Abakada) has effectively overturned
Philconsa‘s allowance of post-enactment legislator participation in view of the
separation of powers principle. These constitutional inconsistencies and the Abakada
rule will be discussed in greater detail in the ensuing section of this Decision.
As for LAMP, suffice it to restate that the said case was dismissed on a procedural
technicality and, hence, has not set any controlling doctrine susceptible of current
application to the substantive issues in these cases. In fine, stare decisis would not
apply.
II. Substantive Issues.
A. Definition of Terms.
Before the Court proceeds to resolve the substantive issues of these cases, it must
first define the terms "Pork Barrel System," "Congressional Pork Barrel," and
"Presidential Pork Barrel" as they are essential to the ensuing discourse.
Petitioners define the term "Pork Barrel System" as the "collusion between the
Legislative and Executive branches of government to accumulate lump-sum public
funds in their offices with unchecked discretionary powers to determine its distribution
as political largesse."156 They assert that the following elements make up the Pork
Barrel System: (a) lump-sum funds are allocated through the appropriations process
to an individual officer; (b) the officer is given sole and broad discretion in determining
how the funds will be used or expended; (c) the guidelines on how to spend or use
the funds in the appropriation are either vague, overbroad or inexistent; and (d)
projects funded are intended to benefit a definite constituency in a particular part of
the country and to help the political careers of the disbursing official by yielding rich
patronage benefits.157 They further state that the Pork Barrel System is comprised of
two (2) kinds of discretionary public funds: first, the Congressional (or Legislative)
Pork Barrel, currently known as the PDAF;158 and, second, the Presidential (or
Executive) Pork Barrel, specifically, the Malampaya Funds under PD 910 and the
Presidential Social Fund under PD 1869, as amended by PD 1993. 159
Considering petitioners‘ submission and in reference to its local concept and legal
history, the Court defines the Pork Barrel System as the collective body of rules and
practices that govern the manner by which lump-sum, discretionary funds, primarily
intended for local projects, are utilized through the respective participations of the
Legislative and Executive branches of government, including its members. The Pork
Barrel System involves two (2) kinds of lump-sum discretionary funds:
First, there is the Congressional Pork Barrel which is herein defined as a kind of
lump-sum, discretionary fund wherein legislators, either individually or collectively
organized into committees, are able to effectively control certain aspects of the fund’s
utilization through various post-enactment measures and/or practices. In particular,
petitioners consider the PDAF, as it appears under the 2013 GAA, as Congressional
Pork Barrel since it is, inter alia, a post-enactment measure that allows individual
legislators to wield a collective power;160 and
Second, there is the Presidential Pork Barrel which is herein defined as a kind of
lump-sum, discretionary fund which allows the President to determine the manner of
its utilization. For reasons earlier stated,161 the Court shall delimit the use of such
term to refer only to the Malampaya Funds and the Presidential Social Fund.
With these definitions in mind, the Court shall now proceed to discuss the substantive
issues of these cases.
B. Substantive Issues on the Congressional Pork Barrel.
1. Separation of Powers.
a. Statement of Principle.
The principle of separation of powers refers to the constitutional demarcation of the
three fundamental powers of government. In the celebrated words of Justice Laurel in
Angara v. Electoral Commission,162 it means that the "Constitution has blocked out
with deft strokes and in bold lines, allotment of power to the executive, the legislative
and the judicial departments of the government." 163 To the legislative branch of
government, through Congress,164belongs the power to make laws; to the executive
branch of government, through the President,165 belongs the power to enforce laws;
and to the judicial branch of government, through the Court,166 belongs the power to
interpret laws. Because the three great powers have been, by constitutional design,
ordained in this respect, "each department of the government has exclusive
cognizance of matters within its jurisdiction, and is supreme within its own
sphere."167 Thus, "the legislature has no authority to execute or construe the law, the
executive has no authority to make or construe the law, and the judiciary has no
power to make or execute the law."168 The principle of separation of powers and its
concepts of autonomy and independence stem from the notion that the powers of
government must be divided to avoid concentration of these powers in any one
branch; the division, it is hoped, would avoid any single branch from lording its power
over the other branches or the citizenry.169 To achieve this purpose, the divided
power must be wielded by co-equal branches of government that are equally capable
of independent action in exercising their respective mandates. Lack of independence
would result in the inability of one branch of government to check the arbitrary or self-
interest assertions of another or others.170
Broadly speaking, there is a violation of the separation of powers principle when one
branch of government unduly encroaches on the domain of another. US Supreme
Court decisions instruct that the principle of separation of powers may be violated in
two (2) ways: firstly, "one branch may interfere impermissibly with the other’s
performance of its constitutionally assigned function";171 and "alternatively, the
doctrine may be violated when one branch assumes a function that more properly is
entrusted to another."172 In other words, there is a violation of the principle when there
is impermissible (a) interference with and/or (b) assumption of another department‘s
functions.
The enforcement of the national budget, as primarily contained in the GAA, is
indisputably a function both constitutionally assigned and properly entrusted to the
Executive branch of government. In Guingona, Jr. v. Hon. Carague 173 (Guingona, Jr.),
the Court explained that the phase of budget execution "covers the various
operational aspects of budgeting" and accordingly includes "the evaluation of work
and financial plans for individual activities," the "regulation and release of funds" as
well as all "other related activities" that comprise the budget execution cycle. 174 This
is rooted in the principle that the allocation of power in the three principal branches of
government is a grant of all powers inherent in them.175 Thus, unless the Constitution
provides otherwise, the Executive department should exclusively exercise all roles
and prerogatives which go into the implementation of the national budget as provided
under the GAA as well as any other appropriation law.
In view of the foregoing, the Legislative branch of government, much more any of its
members, should not cross over the field of implementing the national budget since,
as earlier stated, the same is properly the domain of the Executive. Again, in
Guingona, Jr., the Court stated that "Congress enters the picture when it deliberates
or acts on the budget proposals of the President. Thereafter, Congress, "in the
exercise of its own judgment and wisdom, formulates an appropriation act precisely
following the process established by the Constitution, which specifies that no money
may be paid from the Treasury except in accordance with an appropriation made by
law." Upon approval and passage of the GAA, Congress‘ law -making role necessarily
comes to an end and from there the Executive‘s role of implementing the national
budget begins. So as not to blur the constitutional boundaries between them,
Congress must "not concern it self with details for implementation by the
Executive."176
The foregoing cardinal postulates were definitively enunciated in Abakada where the
Court held that "from the moment the law becomes effective, any provision of law that
empowers Congress or any of its members to play any role in the implementation or
enforcement of the law violates the principle of separation of powers and is thus
unconstitutional."177 It must be clarified, however, that since the restriction only
pertains to "any role in the implementation or enforcement of the law," Congress may
still exercise its oversight function which is a mechanism of checks and balances that
the Constitution itself allows. But it must be made clear that Congress‘ role must be
confined to mere oversight. Any post-enactment-measure allowing legislator
participation beyond oversight is bereft of any constitutional basis and hence,
tantamount to impermissible interference and/or assumption of executive functions.
As the Court ruled in Abakada:178
Any post-enactment congressional measure x x x should be limited to scrutiny and
investigation.1âwphi1 In particular, congressional oversight must be confined to the
following:
(1) scrutiny based primarily on Congress‘ power of appropriation and the budget
hearings conducted in connection with it, its power to ask heads of departments to
appear before and be heard by either of its Houses on any matter pertaining to their
departments and its power of confirmation; and
(2) investigation and monitoring of the implementation of laws pursuant to the power
of Congress to conduct inquiries in aid of legislation.
Any action or step beyond that will undermine the separation of powers guaranteed
by the Constitution. (Emphases supplied)
b. Application.
In these cases, petitioners submit that the Congressional Pork Barrel – among others,
the 2013 PDAF Article – "wrecks the assignment of responsibilities between the
political branches" as it is designed to allow individual legislators to interfere "way
past the time it should have ceased" or, particularly, "after the GAA is
passed."179 They state that the findings and recommendations in the CoA Report
provide "an illustration of how absolute and definitive the power of legislators wield
over project implementation in complete violation of the constitutional principle of
separation of powers."180 Further, they point out that the Court in the Philconsa case
only allowed the CDF to exist on the condition that individual legislators limited their
role to recommending projects and not if they actually dictate their implementation. 181
For their part, respondents counter that the separations of powers principle has not
been violated since the President maintains "ultimate authority to control the
execution of the GAA‖ and that he "retains the final discretion to reject" the legislators‘
proposals.182 They maintain that the Court, in Philconsa, "upheld the constitutionality
of the power of members of Congress to propose and identify projects so long as
such proposal and identification are recommendatory." 183 As such, they claim that
"everything in the Special Provisions [of the 2013 PDAF Article follows the Philconsa
framework, and hence, remains constitutional."184
The Court rules in favor of petitioners.
As may be observed from its legal history, the defining feature of all forms of
Congressional Pork Barrel would be the authority of legislators to participate in the
post-enactment phases of project implementation.
At its core, legislators – may it be through project lists,185 prior consultations186 or
program menus187 – have been consistently accorded post-enactment authority to
identify the projects they desire to be funded through various Congressional Pork
Barrel allocations. Under the 2013 PDAF Article, the statutory authority of legislators
to identify projects post-GAA may be construed from the import of Special Provisions
1 to 3 as well as the second paragraph of Special Provision 4. To elucidate, Special
Provision 1 embodies the program menu feature which, as evinced from past PDAF
Articles, allows individual legislators to identify PDAF projects for as long as the
identified project falls under a general program listed in the said menu. Relatedly,
Special Provision 2 provides that the implementing agencies shall, within 90 days
from the GAA is passed, submit to Congress a more detailed priority list, standard or
design prepared and submitted by implementing agencies from which the legislator
may make his choice. The same provision further authorizes legislators to identify
PDAF projects outside his district for as long as the representative of the district
concerned concurs in writing. Meanwhile, Special Provision 3 clarifies that PDAF
projects refer to "projects to be identified by legislators"188 and thereunder provides
the allocation limit for the total amount of projects identified by each legislator. Finally,
paragraph 2 of Special Provision 4 requires that any modification and revision of the
project identification "shall be submitted to the House Committee on Appropriations
and the Senate Committee on Finance for favorable endorsement to the DBM or the
implementing agency, as the case may be." From the foregoing special provisions, it
cannot be seriously doubted that legislators have been accorded post-enactment
authority to identify PDAF projects.
Aside from the area of project identification, legislators have also been accorded post-
enactment authority in the areas of fund release and realignment. Under the 2013
PDAF Article, the statutory authority of legislators to participate in the area of fund
release through congressional committees is contained in Special Provision 5 which
explicitly states that "all request for release of funds shall be supported by the
documents prescribed under Special Provision No. 1 and favorably endorsed by
House Committee on Appropriations and the Senate Committee on Finance, as the
case may be"; while their statutory authority to participate in the area of fund
realignment is contained in: first , paragraph 2, Special Provision 4 189 which explicitly
state s, among others, that "any realignment of funds shall be submitted to the House
Committee on Appropriations and the Senate Committee on Finance for favorable
endorsement to the DBM or the implementing agency, as the case may be‖ ; and,
second , paragraph 1, also of Special Provision 4 which authorizes the "Secretaries of
Agriculture, Education, Energy, Interior and Local Government, Labor and
Employment, Public Works and Highways, Social Welfare and Development and
Trade and Industry190 x x x to approve realignment from one project/scope to another
within the allotment received from this Fund, subject to among others (iii) the request
is with the concurrence of the legislator concerned."
Clearly, these post-enactment measures which govern the areas of project
identification, fund release and fund realignment are not related to functions of
congressional oversight and, hence, allow legislators to intervene and/or assume
duties that properly belong to the sphere of budget execution. Indeed, by virtue of the
foregoing, legislators have been, in one form or another, authorized to participate in –
as Guingona, Jr. puts it – "the various operational aspects of budgeting," including
"the evaluation of work and financial plans for individual activities" and the "regulation
and release of funds" in violation of the separation of powers principle. The
fundamental rule, as categorically articulated in Abakada, cannot be overstated –
from the moment the law becomes effective, any provision of law that empowers
Congress or any of its members to play any role in the implementation or
enforcement of the law violates the principle of separation of powers and is thus
unconstitutional.191 That the said authority is treated as merely recommendatory in
nature does not alter its unconstitutional tenor since the prohibition, to repeat, covers
any role in the implementation or enforcement of the law. Towards this end, the Court
must therefore abandon its ruling in Philconsa which sanctioned the conduct of
legislator identification on the guise that the same is merely recommendatory and, as
such, respondents‘ reliance on the same falters altogether.
Besides, it must be pointed out that respondents have nonetheless failed to
substantiate their position that the identification authority of legislators is only of
recommendatory import. Quite the contrary, respondents – through the statements of
the Solicitor General during the Oral Arguments – have admitted that the identification
of the legislator constitutes a mandatory requirement before his PDAF can be tapped
as a funding source, thereby highlighting the indispensability of the said act to the
entire budget execution process:192
Justice Bernabe: Now, without the individual legislator’s identification of the project,
can the PDAF of the legislator be utilized?
Solicitor General Jardeleza: No, Your Honor.
Justice Bernabe: It cannot?
Solicitor General Jardeleza: It cannot… (interrupted)
Justice Bernabe: So meaning you should have the identification of the project by the
individual legislator?
Solicitor General Jardeleza: Yes, Your Honor.
xxxx
Justice Bernabe: In short, the act of identification is mandatory?
Solictor General Jardeleza: Yes, Your Honor. In the sense that if it is not done and
then there is no identification.
xxxx
Justice Bernabe: Now, would you know of specific instances when a project was
implemented without the identification by the individual legislator?
Solicitor General Jardeleza: I do not know, Your Honor; I do not think so but I have no
specific examples. I would doubt very much, Your Honor, because to implement,
there is a need for a SARO and the NCA. And the SARO and the NCA are triggered
by an identification from the legislator.
xxxx
Solictor General Jardeleza: What we mean by mandatory, Your Honor, is we were
replying to a question, "How can a legislator make sure that he is able to get PDAF
Funds?" It is mandatory in the sense that he must identify, in that sense, Your Honor.
Otherwise, if he does not identify, he cannot avail of the PDAF Funds and his district
would not be able to have PDAF Funds, only in that sense, Your Honor. (Emphases
supplied)
Thus, for all the foregoing reasons, the Court hereby declares the 2013 PDAF Article
as well as all other provisions of law which similarly allow legislators to wield any form
of post-enactment authority in the implementation or enforcement of the budget,
unrelated to congressional oversight, as violative of the separation of powers principle
and thus unconstitutional. Corollary thereto, informal practices, through which
legislators have effectively intruded into the proper phases of budget execution, must
be deemed as acts of grave abuse of discretion amounting to lack or excess of
jurisdiction and, hence, accorded the same unconstitutional treatment. That such
informal practices do exist and have, in fact, been constantly observed throughout the
years has not been substantially disputed here. As pointed out by Chief Justice Maria
Lourdes P.A. Sereno (Chief Justice Sereno) during the Oral Arguments of these
cases:193
Chief Justice Sereno:
Now, from the responses of the representative of both, the DBM and two (2) Houses
of Congress, if we enforces the initial thought that I have, after I had seen the extent
of this research made by my staff, that neither the Executive nor Congress frontally
faced the question of constitutional compatibility of how they were engineering the
budget process. In fact, the words you have been using, as the three lawyers of the
DBM, and both Houses of Congress has also been using is surprise; surprised that all
of these things are now surfacing. In fact, I thought that what the 2013 PDAF
provisions did was to codify in one section all the past practice that had been done
since 1991. In a certain sense, we should be thankful that they are all now in the
PDAF Special Provisions. x x x (Emphasis and underscoring supplied)
Ultimately, legislators cannot exercise powers which they do not have, whether
through formal measures written into the law or informal practices institutionalized in
government agencies, else the Executive department be deprived of what the
Constitution has vested as its own.
2. Non-delegability of Legislative Power.
a. Statement of Principle.
As an adjunct to the separation of powers principle,194 legislative power shall be
exclusively exercised by the body to which the Constitution has conferred the same.
In particular, Section 1, Article VI of the 1987 Constitution states that such power shall
be vested in the Congress of the Philippines which shall consist of a Senate and a
House of Representatives, except to the extent reserved to the people by the
provision on initiative and referendum.195 Based on this provision, it is clear that only
Congress, acting as a bicameral body, and the people, through the process of
initiative and referendum, may constitutionally wield legislative power and no other.
This premise embodies the principle of non-delegability of legislative power, and the
only recognized exceptions thereto would be: (a) delegated legislative power to local
governments which, by immemorial practice, are allowed to legislate on purely local
matters;196 and (b) constitutionally-grafted exceptions such as the authority of the
President to, by law, exercise powers necessary and proper to carry out a declared
national policy in times of war or other national emergency, 197or fix within specified
limits, and subject to such limitations and restrictions as Congress may impose, tariff
rates, import and export quotas, tonnage and wharfage dues, and other duties or
imposts within the framework of the national development program of the
Government.198
Notably, the principle of non-delegability should not be confused as a restriction to
delegate rule-making authority to implementing agencies for the limited purpose of
either filling up the details of the law for its enforcement (supplementary rule-making)
or ascertaining facts to bring the law into actual operation (contingent rule-
making).199The conceptual treatment and limitations of delegated rule-making were
explained in the case of People v. Maceren 200 as follows:
The grant of the rule-making power to administrative agencies is a relaxation of the
principle of separation of powers and is an exception to the nondelegation of
legislative powers. Administrative regulations or "subordinate legislation" calculated to
promote the public interest are necessary because of "the growing complexity of
modern life, the multiplication of the subjects of governmental regulations, and the
increased difficulty of administering the law."
xxxx
Nevertheless, it must be emphasized that the rule-making power must be confined to
details for regulating the mode or proceeding to carry into effect the law as it has
been enacted. The power cannot be extended to amending or expanding the
statutory requirements or to embrace matters not covered by the statute. Rules that
subvert the statute cannot be sanctioned. (Emphases supplied)
b. Application.
In the cases at bar, the Court observes that the 2013 PDAF Article, insofar as it
confers post-enactment identification authority to individual legislators, violates the
principle of non-delegability since said legislators are effectively allowed to
individually exercise the power of appropriation, which – as settled in Philconsa – is
lodged in Congress.201 That the power to appropriate must be exercised only through
legislation is clear from Section 29(1), Article VI of the 1987 Constitution which states
that: "No money shall be paid out of the Treasury except in pursuance of an
appropriation made by law." To understand what constitutes an act of appropriation,
the Court, in Bengzon v. Secretary of Justice and Insular Auditor 202 (Bengzon), held
that the power of appropriation involves (a) the setting apart by law of a certain sum
from the public revenue for (b) a specified purpose. Essentially, under the 2013 PDAF
Article, individual legislators are given a personal lump-sum fund from which they are
able to dictate (a) how much from such fund would go to (b) a specific project or
beneficiary that they themselves also determine. As these two (2) acts comprise the
exercise of the power of appropriation as described in Bengzon, and given that the
2013 PDAF Article authorizes individual legislators to perform the same, undoubtedly,
said legislators have been conferred the power to legislate which the Constitution
does not, however, allow. Thus, keeping with the principle of non-delegability of
legislative power, the Court hereby declares the 2013 PDAF Article, as well as all
other forms of Congressional Pork Barrel which contain the similar legislative
identification feature as herein discussed, as unconstitutional.
3. Checks and Balances.
a. Statement of Principle; Item-Veto Power.
The fact that the three great powers of government are intended to be kept separate
and distinct does not mean that they are absolutely unrestrained and independent of
each other. The Constitution has also provided for an elaborate system of checks and
balances to secure coordination in the workings of the various departments of the
government.203
A prime example of a constitutional check and balance would be the President’s
power to veto an item written into an appropriation, revenue or tariff bill submitted to
him by Congress for approval through a process known as "bill presentment." The
President‘s item-veto power is found in Section 27(2), Article VI of the 1987
Constitution which reads as follows:
Sec. 27. x x x.
xxxx
(2) The President shall have the power to veto any particular item or items in an
appropriation, revenue, or tariff bill, but the veto shall not affect the item or items to
which he does not object.
The presentment of appropriation, revenue or tariff bills to the President, wherein he
may exercise his power of item-veto, forms part of the "single, finely wrought and
exhaustively considered, procedures" for law-passage as specified under the
Constitution.204 As stated in Abakada, the final step in the law-making process is the
"submission of the bill to the President for approval. Once approved, it takes effect as
law after the required publication."205
Elaborating on the President‘s item-veto power and its relevance as a check on the
legislature, the Court, in Bengzon, explained that:206
The former Organic Act and the present Constitution of the Philippines make the
Chief Executive an integral part of the law-making power. His disapproval of a bill,
commonly known as a veto, is essentially a legislative act. The questions presented
to the mind of the Chief Executive are precisely the same as those the legislature
must determine in passing a bill, except that his will be a broader point of view.
The Constitution is a limitation upon the power of the legislative department of the
government, but in this respect it is a grant of power to the executive department. The
Legislature has the affirmative power to enact laws; the Chief Executive has the
negative power by the constitutional exercise of which he may defeat the will of the
Legislature. It follows that the Chief Executive must find his authority in the
Constitution. But in exercising that authority he may not be confined to rules of strict
construction or hampered by the unwise interference of the judiciary. The courts will
indulge every intendment in favor of the constitutionality of a veto in the same manner
as they will presume the constitutionality of an act as originally passed by the
Legislature. (Emphases supplied)
The justification for the President‘s item-veto power rests on a variety of policy goals
such as to prevent log-rolling legislation,207 impose fiscal restrictions on the
legislature, as well as to fortify the executive branch‘s role in the budgetary
process.208 In Immigration and Naturalization Service v. Chadha, the US Supreme
Court characterized the President‘s item-power as "a salutary check upon the
legislative body, calculated to guard the community against the effects of factions,
precipitancy, or of any impulse unfriendly to the public good, which may happen to
influence a majority of that body"; phrased differently, it is meant to "increase the
chances in favor of the community against the passing of bad laws, through haste,
inadvertence, or design."209
For the President to exercise his item-veto power, it necessarily follows that there
exists a proper "item" which may be the object of the veto. An item, as defined in the
field of appropriations, pertains to "the particulars, the details, the distinct and
severable parts of the appropriation or of the bill." In the case of Bengzon v. Secretary
of Justice of the Philippine Islands,210 the US Supreme Court characterized an item of
appropriation as follows:
An item of an appropriation bill obviously means an item which, in itself, is a specific
appropriation of money, not some general provision of law which happens to be put
into an appropriation bill. (Emphases supplied)
On this premise, it may be concluded that an appropriation bill, to ensure that the
President may be able to exercise his power of item veto, must contain "specific
appropriations of money" and not only "general provisions" which provide for
parameters of appropriation.
Further, it is significant to point out that an item of appropriation must be an item
characterized by singular correspondence – meaning an allocation of a specified
singular amount for a specified singular purpose, otherwise known as a "line-
item."211 This treatment not only allows the item to be consistent with its definition as
a "specific appropriation of money" but also ensures that the President may
discernibly veto the same. Based on the foregoing formulation, the existing Calamity
Fund, Contingent Fund and the Intelligence Fund, being appropriations which state a
specified amount for a specific purpose, would then be considered as "line- item"
appropriations which are rightfully subject to item veto. Likewise, it must be observed
that an appropriation may be validly apportioned into component percentages or
values; however, it is crucial that each percentage or value must be allocated for its
own corresponding purpose for such component to be considered as a proper line-
item. Moreover, as Justice Carpio correctly pointed out, a valid appropriation may
even have several related purposes that are by accounting and budgeting practice
considered as one purpose, e.g., MOOE (maintenance and other operating
expenses), in which case the related purposes shall be deemed sufficiently specific
for the exercise of the President‘s item veto power. Finally, special purpose funds and
discretionary funds would equally square with the constitutional mechanism of item-
veto for as long as they follow the rule on singular correspondence as herein
discussed. Anent special purpose funds, it must be added that Section 25(4), Article
VI of the 1987 Constitution requires that the "special appropriations bill shall specify
the purpose for which it is intended, and shall be supported by funds actually
available as certified by the National Treasurer, or t o be raised by a corresponding
revenue proposal therein." Meanwhile, with respect to discretionary funds, Section 2
5(6), Article VI of the 1987 Constitution requires that said funds "shall be disbursed
only for public purposes to be supported by appropriate vouchers and subject to such
guidelines as may be prescribed by law."
In contrast, what beckons constitutional infirmity are appropriations which merely
provide for a singular lump-sum amount to be tapped as a source of funding for
multiple purposes. Since such appropriation type necessitates the further
determination of both the actual amount to be expended and the actual purpose of
the appropriation which must still be chosen from the multiple purposes stated in the
law, it cannot be said that the appropriation law already indicates a "specific
appropriation of money‖ and hence, without a proper line-item which the President
may veto. As a practical result, the President would then be faced with the
predicament of either vetoing the entire appropriation if he finds some of its purposes
wasteful or undesirable, or approving the entire appropriation so as not to hinder
some of its legitimate purposes. Finally, it may not be amiss to state that such
arrangement also raises non-delegability issues considering that the implementing
authority would still have to determine, again, both the actual amount to be expended
and the actual purpose of the appropriation. Since the foregoing determinations
constitute the integral aspects of the power to appropriate, the implementing authority
would, in effect, be exercising legislative prerogatives in violation of the principle of
non-delegability.
b. Application.
In these cases, petitioners claim that "in the current x x x system where the PDAF is a
lump-sum appropriation, the legislator‘s identification of the projects after the passage
of the GAA denies the President the chance to veto that item later on." 212 Accordingly,
they submit that the "item veto power of the President mandates that appropriations
bills adopt line-item budgeting" and that "Congress cannot choose a mode of
budgeting which effectively renders the constitutionally-given power of the President
useless."213
On the other hand, respondents maintain that the text of the Constitution envisions a
process which is intended to meet the demands of a modernizing economy and, as
such, lump-sum appropriations are essential to financially address situations which
are barely foreseen when a GAA is enacted. They argue that the decision of the
Congress to create some lump-sum appropriations is constitutionally allowed and
textually-grounded.214
The Court agrees with petitioners.
Under the 2013 PDAF Article, the amount of ₱24.79 Billion only appears as a
collective allocation limit since the said amount would be further divided among
individual legislators who would then receive personal lump-sum allocations and
could, after the GAA is passed, effectively appropriate PDAF funds based on their
own discretion. As these intermediate appropriations are made by legislators only
after the GAA is passed and hence, outside of the law, it necessarily means that the
actual items of PDAF appropriation would not have been written into the General
Appropriations Bill and thus effectuated without veto consideration. This kind of lump-
sum/post-enactment legislative identification budgeting system fosters the creation of
a budget within a budget" which subverts the prescribed procedure of presentment
and consequently impairs the President‘s power of item veto. As petitioners aptly
point out, the above-described system forces the President to decide between (a)
accepting the entire ₱24.79 Billion PDAF allocation without knowing the specific
projects of the legislators, which may or may not be consistent with his national
agenda and (b) rejecting the whole PDAF to the detriment of all other legislators with
legitimate projects.215
Moreover, even without its post-enactment legislative identification feature, the 2013
PDAF Article would remain constitutionally flawed since it would then operate as a
prohibited form of lump-sum appropriation above-characterized. In particular, the
lump-sum amount of ₱24.79 Billion would be treated as a mere funding source
allotted for multiple purposes of spending, i.e., scholarships, medical missions,
assistance to indigents, preservation of historical materials, construction of roads,
flood control, etc. This setup connotes that the appropriation law leaves the actual
amounts and purposes of the appropriation for further determination and, therefore,
does not readily indicate a discernible item which may be subject to the President‘s
power of item veto.
In fact, on the accountability side, the same lump-sum budgeting scheme has, as the
CoA Chairperson relays, "limited state auditors from obtaining relevant data and
information that would aid in more stringently auditing the utilization of said
Funds."216 Accordingly, she recommends the adoption of a "line by line budget or
amount per proposed program, activity or project, and per implementing agency." 217
Hence, in view of the reasons above-stated, the Court finds the 2013 PDAF Article,
as well as all Congressional Pork Barrel Laws of similar operation, to be
unconstitutional. That such budgeting system provides for a greater degree of
flexibility to account for future contingencies cannot be an excuse to defeat what the
Constitution requires. Clearly, the first and essential truth of the matter is that
unconstitutional means do not justify even commendable ends. 218
c. Accountability.
Petitioners further relate that the system under which various forms of Congressional
Pork Barrel operate defies public accountability as it renders Congress incapable of
checking itself or its Members. In particular, they point out that the Congressional
Pork Barrel "gives each legislator a direct, financial interest in the smooth, speedy
passing of the yearly budget" which turns them "from fiscalizers" into "financially-
interested partners."219 They also claim that the system has an effect on re- election
as "the PDAF excels in self-perpetuation of elective officials." Finally, they add that
the "PDAF impairs the power of impeachment" as such "funds are indeed quite
useful, ‘to well, accelerate the decisions of senators.‘" 220
The Court agrees in part.
The aphorism forged under Section 1, Article XI of the 1987 Constitution, which states
that "public office is a public trust," is an overarching reminder that every
instrumentality of government should exercise their official functions only in
accordance with the principles of the Constitution which embodies the parameters of
the people‘s trust. The notion of a public trust connotes accountability, 221 hence, the
various mechanisms in the Constitution which are designed to exact accountability
from public officers.
Among others, an accountability mechanism with which the proper expenditure of
public funds may be checked is the power of congressional oversight. As mentioned
in Abakada,222 congressional oversight may be performed either through: (a) scrutiny
based primarily on Congress‘ power of appropriation and the budget hearings
conducted in connection with it, its power to ask heads of departments to appear
before and be heard by either of its Houses on any matter pertaining to their
departments and its power of confirmation;223 or (b) investigation and monitoring of
the implementation of laws pursuant to the power of Congress to conduct inquiries in
aid of legislation.224
The Court agrees with petitioners that certain features embedded in some forms of
Congressional Pork Barrel, among others the 2013 PDAF Article, has an effect on
congressional oversight. The fact that individual legislators are given post-enactment
roles in the implementation of the budget makes it difficult for them to become
disinterested "observers" when scrutinizing, investigating or monitoring the
implementation of the appropriation law. To a certain extent, the conduct of oversight
would be tainted as said legislators, who are vested with post-enactment authority,
would, in effect, be checking on activities in which they themselves participate. Also, it
must be pointed out that this very same concept of post-enactment authorization runs
afoul of Section 14, Article VI of the 1987 Constitution which provides that:
Sec. 14. No Senator or Member of the House of Representatives may personally
appear as counsel before any court of justice or before the Electoral Tribunals, or
quasi-judicial and other administrative bodies. Neither shall he, directly or indirectly,
be interested financially in any contract with, or in any franchise or special privilege
granted by the Government, or any subdivision, agency, or instrumentality thereof,
including any government-owned or controlled corporation, or its subsidiary, during
his term of office. He shall not intervene in any matter before any office of the
Government for his pecuniary benefit or where he may be called upon to act on
account of his office. (Emphasis supplied)
Clearly, allowing legislators to intervene in the various phases of project
implementation – a matter before another office of government – renders them
susceptible to taking undue advantage of their own office.
The Court, however, cannot completely agree that the same post-enactment authority
and/or the individual legislator‘s control of his PDAF per se would allow him to
perpetuate himself in office. Indeed, while the Congressional Pork Barrel and a
legislator‘s use thereof may be linked to this area of interest, the use of his PDAF for
re-election purposes is a matter which must be analyzed based on particular facts
and on a case-to-case basis.
Finally, while the Court accounts for the possibility that the close operational proximity
between legislators and the Executive department, through the former‘s post-
enactment participation, may affect the process of impeachment, this matter largely
borders on the domain of politics and does not strictly concern the Pork Barrel
System‘s intrinsic constitutionality. As such, it is an improper subject of judicial
assessment.
In sum, insofar as its post-enactment features dilute congressional oversight and
violate Section 14, Article VI of the 1987 Constitution, thus impairing public
accountability, the 2013 PDAF Article and other forms of Congressional Pork Barrel of
similar nature are deemed as unconstitutional.
4. Political Dynasties.
One of the petitioners submits that the Pork Barrel System enables politicians who
are members of political dynasties to accumulate funds to perpetuate themselves in
power, in contravention of Section 26, Article II of the 1987 Constitution 225 which
states that:
Sec. 26. The State shall guarantee equal access to opportunities for public service,
and prohibit political dynasties as may be defined by law. (Emphasis and
underscoring supplied)
At the outset, suffice it to state that the foregoing provision is considered as not self-
executing due to the qualifying phrase "as may be defined by law." In this respect,
said provision does not, by and of itself, provide a judicially enforceable constitutional
right but merely specifies guideline for legislative or executive action.226 Therefore,
since there appears to be no standing law which crystallizes the policy on political
dynasties for enforcement, the Court must defer from ruling on this issue.
In any event, the Court finds the above-stated argument on this score to be largely
speculative since it has not been properly demonstrated how the Pork Barrel System
would be able to propagate political dynasties.
5. Local Autonomy.
The State‘s policy on local autonomy is principally stated in Section 25, Article II and
Sections 2 and 3, Article X of the 1987 Constitution which read as follows:
ARTICLE II
Sec. 25. The State shall ensure the autonomy of local governments.
ARTICLE X
Sec. 2. The territorial and political subdivisions shall enjoy local autonomy.
Sec. 3. The Congress shall enact a local government code which shall provide for a
more responsive and accountable local government structure instituted through a
system of decentralization with effective mechanisms of recall, initiative, and
referendum, allocate among the different local government units their powers,
responsibilities, and resources, and provide for the qualifications, election,
appointment and removal, term, salaries, powers and functions and duties of local
officials, and all other matters relating to the organization and operation of the local
units.
Pursuant thereto, Congress enacted RA 7160,227 otherwise known as the "Local
Government Code of 1991" (LGC), wherein the policy on local autonomy had been
more specifically explicated as follows:
Sec. 2. Declaration of Policy. – (a) It is hereby declared the policy of the State that the
territorial and political subdivisions of the State shall enjoy genuine and meaningful
local autonomy to enable them to attain their fullest development as self-reliant
communities and make them more effective partners in the attainment of national
goals. Toward this end, the State shall provide for a more responsive and
accountable local government structure instituted through a system of
decentralization whereby local government units shall be given more powers,
authority, responsibilities, and resources. The process of decentralization shall
proceed from the National Government to the local government units.
xxxx
(c) It is likewise the policy of the State to require all national agencies and offices to
conduct periodic consultations with appropriate local government units,
nongovernmental and people‘s organizations, and other concerned sectors of the
community before any project or program is implemented in their respective
jurisdictions. (Emphases and underscoring supplied)
The above-quoted provisions of the Constitution and the LGC reveal the policy of the
State to empower local government units (LGUs) to develop and ultimately, become
self-sustaining and effective contributors to the national economy. As explained by
the Court in Philippine Gamefowl Commission v. Intermediate Appellate Court: 228
This is as good an occasion as any to stress the commitment of the Constitution to
the policy of local autonomy which is intended to provide the needed impetus and
encouragement to the development of our local political subdivisions as "self - reliant
communities." In the words of Jefferson, "Municipal corporations are the small
republics from which the great one derives its strength." The vitalization of local
governments will enable their inhabitants to fully exploit their resources and more
important, imbue them with a deepened sense of involvement in public affairs as
members of the body politic. This objective could be blunted by undue interference by
the national government in purely local affairs which are best resolved by the officials
and inhabitants of such political units. The decision we reach today conforms not only
to the letter of the pertinent laws but also to the spirit of the
Constitution.229 (Emphases and underscoring supplied)
In the cases at bar, petitioners contend that the Congressional Pork Barrel goes
against the constitutional principles on local autonomy since it allows district
representatives, who are national officers, to substitute their judgments in utilizing
public funds for local development.230 The Court agrees with petitioners.
Philconsa described the 1994 CDF as an attempt "to make equal the unequal" and
that "it is also a recognition that individual members of Congress, far more than the
President and their congressional colleagues, are likely to be knowledgeable about
the needs of their respective constituents and the priority to be given each
project."231 Drawing strength from this pronouncement, previous legislators justified its
existence by stating that "the relatively small projects implemented under the
Congressional Pork Barrel complement and link the national development goals to
the countryside and grassroots as well as to depressed areas which are overlooked
by central agencies which are preoccupied with mega-projects.232 Similarly, in his
August 23, 2013 speech on the "abolition" of PDAF and budgetary reforms, President
Aquino mentioned that the Congressional Pork Barrel was originally established for a
worthy goal, which is to enable the representatives to identify projects for
communities that the LGU concerned cannot afford.233
Notwithstanding these declarations, the Court, however, finds an inherent defect in
the system which actually belies the avowed intention of "making equal the unequal."
In particular, the Court observes that the gauge of PDAF and CDF allocation/division
is based solely on the fact of office, without taking into account the specific interests
and peculiarities of the district the legislator represents. In this regard, the
allocation/division limits are clearly not based on genuine parameters of equality,
wherein economic or geographic indicators have been taken into consideration. As a
result, a district representative of a highly-urbanized metropolis gets the same amount
of funding as a district representative of a far-flung rural province which would be
relatively "underdeveloped" compared to the former. To add, what rouses graver
scrutiny is that even Senators and Party-List Representatives – and in some years,
even the Vice-President – who do not represent any locality, receive funding from the
Congressional Pork Barrel as well. These certainly are anathema to the
Congressional Pork Barrel‘s original intent which is "to make equal the unequal."
Ultimately, the PDAF and CDF had become personal funds under the effective control
of each legislator and given unto them on the sole account of their office.
The Court also observes that this concept of legislator control underlying the CDF and
PDAF conflicts with the functions of the various Local Development Councils (LDCs)
which are already legally mandated to "assist the corresponding sanggunian in setting
the direction of economic and social development, and coordinating development
efforts within its territorial jurisdiction."234 Considering that LDCs are instrumentalities
whose functions are essentially geared towards managing local affairs,235 their
programs, policies and resolutions should not be overridden nor duplicated by
individual legislators, who are national officers that have no law-making authority
except only when acting as a body. The undermining effect on local autonomy caused
by the post-enactment authority conferred to the latter was succinctly put by
petitioners in the following wise:236
With PDAF, a Congressman can simply bypass the local development council and
initiate projects on his own, and even take sole credit for its execution. Indeed, this
type of personality-driven project identification has not only contributed little to the
overall development of the district, but has even contributed to "further weakening
infrastructure planning and coordination efforts of the government."
Thus, insofar as individual legislators are authorized to intervene in purely local
matters and thereby subvert genuine local autonomy, the 2013 PDAF Article as well
as all other similar forms of Congressional Pork Barrel is deemed unconstitutional.
With this final issue on the Congressional Pork Barrel resolved, the Court now turns
to the substantive issues involving the Presidential Pork Barrel.
C. Substantive Issues on the Presidential Pork Barrel.
1. Validity of Appropriation.
Petitioners preliminarily assail Section 8 of PD 910 and Section 12 of PD1869 (now,
amended by PD 1993), which respectively provide for the Malampaya Funds and the
Presidential Social Fund, as invalid appropriations laws since they do not have the
"primary and specific" purpose of authorizing the release of public funds from the
National Treasury. Petitioners submit that Section 8 of PD 910 is not an appropriation
law since the "primary and specific‖ purpose of PD 910 is the creation of an Energy
Development Board and Section 8 thereof only created a Special Fund incidental
thereto.237 In similar regard, petitioners argue that Section 12 of PD 1869 is neither a
valid appropriations law since the allocation of the Presidential Social Fund is merely
incidental to the "primary and specific" purpose of PD 1869 which is the amendment
of the Franchise and Powers of PAGCOR.238 In view of the foregoing, petitioners
suppose that such funds are being used without any valid law allowing for their proper
appropriation in violation of Section 29(1), Article VI of the 1987 Constitution which
states that: "No money shall be paid out of the Treasury except in pursuance of an
appropriation made by law."239
The Court disagrees.
"An appropriation made by law‖ under the contemplation of Section 29(1), Article VI
of the 1987 Constitution exists when a provision of law (a) sets apart a determinate or
determinable240 amount of money and (b) allocates the same for a particular public
purpose. These two minimum designations of amount and purpose stem from the
very definition of the word "appropriation," which means "to allot, assign, set apart or
apply to a particular use or purpose," and hence, if written into the law, demonstrate
that the legislative intent to appropriate exists. As the Constitution "does not provide
or prescribe any particular form of words or religious recitals in which an authorization
or appropriation by Congress shall be made, except that it be ‘made by law,‘" an
appropriation law may – according to Philconsa – be "detailed and as broad as
Congress wants it to be" for as long as the intent to appropriate may be gleaned from
the same. As held in the case of Guingona, Jr.:241
There is no provision in our Constitution that provides or prescribes any particular
form of words or religious recitals in which an authorization or appropriation by
Congress shall be made, except that it be "made by law," such as precisely the
authorization or appropriation under the questioned presidential decrees. In other
words, in terms of time horizons, an appropriation may be made impliedly (as by past
but subsisting legislations) as well as expressly for the current fiscal year (as by
enactment of laws by the present Congress), just as said appropriation may be made
in general as well as in specific terms. The Congressional authorization may be
embodied in annual laws, such as a general appropriations act or in special
provisions of laws of general or special application which appropriate public funds for
specific public purposes, such as the questioned decrees. An appropriation measure
is sufficient if the legislative intention clearly and certainly appears from the language
employed (In re Continuing Appropriations, 32 P. 272), whether in the past or in the
present. (Emphases and underscoring supplied)
Likewise, as ruled by the US Supreme Court in State of Nevada v. La Grave:242
To constitute an appropriation there must be money placed in a fund applicable to the
designated purpose. The word appropriate means to allot, assign, set apart or apply
to a particular use or purpose. An appropriation in the sense of the constitution means
the setting apart a portion of the public funds for a public purpose. No particular form
of words is necessary for the purpose, if the intention to appropriate is plainly
manifested. (Emphases supplied)
Thus, based on the foregoing, the Court cannot sustain the argument that the
appropriation must be the "primary and specific" purpose of the law in order for a valid
appropriation law to exist. To reiterate, if a legal provision designates a determinate or
determinable amount of money and allocates the same for a particular public
purpose, then the legislative intent to appropriate becomes apparent and, hence,
already sufficient to satisfy the requirement of an "appropriation made by law" under
contemplation of the Constitution.
Section 8 of PD 910 pertinently provides:
Section 8. Appropriations. x x x
All fees, revenues and receipts of the Board from any and all sources including
receipts from service contracts and agreements such as application and processing
fees, signature bonus, discovery bonus, production bonus; all money collected from
concessionaires, representing unspent work obligations, fines and penalties under the
Petroleum Act of 1949; as well as the government share representing royalties,
rentals, production share on service contracts and similar payments on the
exploration, development and exploitation of energy resources, shall form part of a
Special Fund to be used to finance energy resource development and exploitation
programs and projects of the government and for such other purposes as may be
hereafter directed by the President. (Emphases supplied)
Whereas Section 12 of PD 1869, as amended by PD 1993, reads:
Sec. 12. Special Condition of Franchise. — After deducting five (5%) percent as
Franchise Tax, the Fifty (50%) percent share of the Government in the aggregate
gross earnings of the Corporation from this Franchise, or 60% if the aggregate gross
earnings be less than ₱150,000,000.00 shall be set aside and shall accrue to the
General Fund to finance the priority infrastructure development projects and to
finance the restoration of damaged or destroyed facilities due to calamities, as may
be directed and authorized by the Office of the President of the Philippines.
(Emphases supplied)
Analyzing the legal text vis-à-vis the above-mentioned principles, it may then be
concluded that (a) Section 8 of PD 910, which creates a Special Fund comprised of
"all fees, revenues, and receipts of the Energy Development Board from any and all
sources" (a determinable amount) "to be used to finance energy resource
development and exploitation programs and projects of the government and for such
other purposes as may be hereafter directed by the President" (a specified public
purpose), and (b) Section 12 of PD 1869, as amended by PD 1993, which similarly
sets aside, "after deducting five (5%) percent as Franchise Tax, the Fifty (50%)
percent share of the Government in the aggregate gross earnings of PAGCOR, or
60%, if the aggregate gross earnings be less than ₱150,000,000.00" (also a
determinable amount) "to finance the priority infrastructure development projects and
x x x the restoration of damaged or destroyed facilities due to calamities, as may be
directed and authorized by the Office of the President of the Philippines" (also a
specified public purpose), are legal appropriations under Section 29(1), Article VI of
the 1987 Constitution.
In this relation, it is apropos to note that the 2013 PDAF Article cannot be properly
deemed as a legal appropriation under the said constitutional provision precisely
because, as earlier stated, it contains post-enactment measures which effectively
create a system of intermediate appropriations. These intermediate appropriations
are the actual appropriations meant for enforcement and since they are made by
individual legislators after the GAA is passed, they occur outside the law. As such, the
Court observes that the real appropriation made under the 2013 PDAF Article is not
the ₱24.79 Billion allocated for the entire PDAF, but rather the post-enactment
determinations made by the individual legislators which are, to repeat, occurrences
outside of the law. Irrefragably, the 2013 PDAF Article does not constitute an
"appropriation made by law" since it, in its truest sense, only authorizes individual
legislators to appropriate in violation of the non-delegability principle as afore-
discussed.
2. Undue Delegation.
On a related matter, petitioners contend that Section 8 of PD 910 constitutes an
undue delegation of legislative power since the phrase "and for such other purposes
as may be hereafter directed by the President" gives the President "unbridled
discretion to determine for what purpose the funds will be used."243 Respondents, on
the other hand, urged the Court to apply the principle of ejusdem generis to the same
section and thus, construe the phrase "and for such other purposes as may be
hereafter directed by the President" to refer only to other purposes related "to energy
resource development and exploitation programs and projects of the government." 244
The Court agrees with petitioners‘ submissions.
While the designation of a determinate or determinable amount for a particular public
purpose is sufficient for a legal appropriation to exist, the appropriation law must
contain adequate legislative guidelines if the same law delegates rule-making
authority to the Executive245 either for the purpose of (a) filling up the details of the
law for its enforcement, known as supplementary rule-making, or (b) ascertaining
facts to bring the law into actual operation, referred to as contingent rule-
making.246 There are two (2) fundamental tests to ensure that the legislative
guidelines for delegated rule-making are indeed adequate. The first test is called the
"completeness test." Case law states that a law is complete when it sets forth therein
the policy to be executed, carried out, or implemented by the delegate. On the other
hand, the second test is called the "sufficient standard test." Jurisprudence holds that
a law lays down a sufficient standard when it provides adequate guidelines or
limitations in the law to map out the boundaries of the delegate‘s authority and
prevent the delegation from running riot.247 To be sufficient, the standard must specify
the limits of the delegate‘s authority, announce the legislative policy, and identify the
conditions under which it is to be implemented.248
In view of the foregoing, the Court agrees with petitioners that the phrase "and for
such other purposes as may be hereafter directed by the President" under Section 8
of PD 910 constitutes an undue delegation of legislative power insofar as it does not
lay down a sufficient standard to adequately determine the limits of the President‘s
authority with respect to the purpose for which the Malampaya Funds may be used.
As it reads, the said phrase gives the President wide latitude to use the Malampaya
Funds for any other purpose he may direct and, in effect, allows him to unilaterally
appropriate public funds beyond the purview of the law. That the subject phrase may
be confined only to "energy resource development and exploitation programs and
projects of the government" under the principle of ejusdem generis, meaning that the
general word or phrase is to be construed to include – or be restricted to – things akin
to, resembling, or of the same kind or class as those specifically mentioned, 249 is
belied by three (3) reasons: first, the phrase "energy resource development and
exploitation programs and projects of the government" states a singular and general
class and hence, cannot be treated as a statutory reference of specific things from
which the general phrase "for such other purposes" may be limited; second, the said
phrase also exhausts the class it represents, namely energy development programs
of the government;250 and, third, the Executive department has, in fact, used the
Malampaya Funds for non-energy related purposes under the subject phrase, thereby
contradicting respondents‘ own position that it is limited only to "energy resource
development and exploitation programs and projects of the government." 251 Thus,
while Section 8 of PD 910 may have passed the completeness test since the policy of
energy development is clearly deducible from its text, the phrase "and for such other
purposes as may be hereafter directed by the President" under the same provision of
law should nonetheless be stricken down as unconstitutional as it lies independently
unfettered by any sufficient standard of the delegating law. This notwithstanding, it
must be underscored that the rest of Section 8, insofar as it allows for the use of the
Malampaya Funds "to finance energy resource development and exploitation
programs and projects of the government," remains legally effective and subsisting.
Truth be told, the declared unconstitutionality of the aforementioned phrase is but an
assurance that the Malampaya Funds would be used – as it should be used – only in
accordance with the avowed purpose and intention of PD 910.
As for the Presidential Social Fund, the Court takes judicial notice of the fact that
Section 12 of PD 1869 has already been amended by PD 1993 which thus moots the
parties‘ submissions on the same.252 Nevertheless, since the amendatory provision
may be readily examined under the current parameters of discussion, the Court
proceeds to resolve its constitutionality.
Primarily, Section 12 of PD 1869, as amended by PD 1993, indicates that the
Presidential Social Fund may be used "to first, finance the priority infrastructure
development projects and second, to finance the restoration of damaged or destroyed
facilities due to calamities, as may be directed and authorized by the Office of the
President of the Philippines." The Court finds that while the second indicated purpose
adequately curtails the authority of the President to spend the Presidential Social
Fund only for restoration purposes which arise from calamities, the first indicated
purpose, however, gives him carte blanche authority to use the same fund for any
infrastructure project he may so determine as a "priority". Verily, the law does not
supply a definition of "priority in frastructure development projects" and hence, leaves
the President without any guideline to construe the same. To note, the delimitation of
a project as one of "infrastructure" is too broad of a classification since the said term
could pertain to any kind of facility. This may be deduced from its lexicographic
definition as follows: "the underlying framework of a system, especially public services
and facilities (such as highways, schools, bridges, sewers, and water-systems)
needed to support commerce as well as economic and residential development." 253 In
fine, the phrase "to finance the priority infrastructure development projects" must be
stricken down as unconstitutional since – similar to the above-assailed provision
under Section 8 of PD 910 – it lies independently unfettered by any sufficient
standard of the delegating law. As they are severable, all other provisions of Section
12 of PD 1869, as amended by PD 1993, remains legally effective and subsisting.
D. Ancillary Prayers. 1.
Petitioners’ Prayer to be Furnished Lists and Detailed Reports.
Aside from seeking the Court to declare the Pork Barrel System unconstitutional – as
the Court did so in the context of its pronouncements made in this Decision –
petitioners equally pray that the Executive Secretary and/or the DBM be ordered to
release to the CoA and to the public: (a) "the complete schedule/list of legislators who
have availed of their PDAF and VILP from the years 2003 to 2013, specifying the use
of the funds, the project or activity and the recipient entities or individuals, and all
pertinent data thereto" (PDAF Use Schedule/List);254 and (b) "the use of the
Executive‘s lump-sum, discretionary funds, including the proceeds from the x x x
Malampaya Funds and remittances from the PAGCOR x x x from 2003 to 2013,
specifying the x x x project or activity and the recipient entities or individuals, and all
pertinent data thereto"255 (Presidential Pork Use Report). Petitioners‘ prayer is
grounded on Section 28, Article II and Section 7, Article III of the 1987 Constitution
which read as follows:
ARTICLE II
Sec. 28. Subject to reasonable conditions prescribed by law, the State adopts and
implements a policy of full public disclosure of all its transactions involving public
interest.
ARTICLE III Sec. 7.
The right of the people to information on matters of public concern shall be
recognized. Access to official records, and to documents and papers pertaining to
official acts, transactions, or decisions, as well as to government research data used
as basis for policy development, shall be afforded the citizen, subject to such
limitations as may be provided by law.
The Court denies petitioners‘ submission.
Case law instructs that the proper remedy to invoke the right to information is to file a
petition for mandamus. As explained in the case of Legaspi v. Civil Service
Commission:256
While the manner of examining public records may be subject to reasonable
regulation by the government agency in custody thereof, the duty to disclose the
information of public concern, and to afford access to public records cannot be
discretionary on the part of said agencies. Certainly, its performance cannot be made
contingent upon the discretion of such agencies. Otherwise, the enjoyment of the
constitutional right may be rendered nugatory by any whimsical exercise of agency
discretion. The constitutional duty, not being discretionary, its performance may be
compelled by a writ of mandamus in a proper case.
But what is a proper case for Mandamus to issue? In the case before Us, the public
right to be enforced and the concomitant duty of the State are unequivocably set forth
in the Constitution.
The decisive question on the propriety of the issuance of the writ of mandamus in this
case is, whether the information sought by the petitioner is within the ambit of the
constitutional guarantee. (Emphases supplied)
Corollarily, in the case of Valmonte v. Belmonte Jr.257 (Valmonte), it has been clarified
that the right to information does not include the right to compel the preparation of
"lists, abstracts, summaries and the like." In the same case, it was stressed that it is
essential that the "applicant has a well -defined, clear and certain legal right to the
thing demanded and that it is the imperative duty of defendant to perform the act
required." Hence, without the foregoing substantiations, the Court cannot grant a
particular request for information. The pertinent portions of Valmonte are hereunder
quoted:258
Although citizens are afforded the right to information and, pursuant thereto, are
entitled to "access to official records," the Constitution does not accord them a right to
compel custodians of official records to prepare lists, abstracts, summaries and the
like in their desire to acquire information on matters of public concern.
It must be stressed that it is essential for a writ of mandamus to issue that the
applicant has a well-defined, clear and certain legal right to the thing demanded and
that it is the imperative duty of defendant to perform the act required. The
corresponding duty of the respondent to perform the required act must be clear and
specific Lemi v. Valencia, G.R. No. L-20768, November 29,1968,126 SCRA 203;
Ocampo v. Subido, G.R. No. L-28344, August 27, 1976, 72 SCRA 443.
The request of the petitioners fails to meet this standard, there being no duty on the
part of respondent to prepare the list requested. (Emphases supplied)
In these cases, aside from the fact that none of the petitions are in the nature of
mandamus actions, the Court finds that petitioners have failed to establish a "a well-
defined, clear and certain legal right" to be furnished by the Executive Secretary
and/or the DBM of their requested PDAF Use Schedule/List and Presidential Pork
Use Report. Neither did petitioners assert any law or administrative issuance which
would form the bases of the latter‘s duty to furnish them with the documents
requested. While petitioners pray that said information be equally released to the
CoA, it must be pointed out that the CoA has not been impleaded as a party to these
cases nor has it filed any petition before the Court to be allowed access to or to
compel the release of any official document relevant to the conduct of its audit
investigations. While the Court recognizes that the information requested is a matter
of significant public concern, however, if only to ensure that the parameters of
disclosure are properly foisted and so as not to unduly hamper the equally important
interests of the government, it is constrained to deny petitioners‘ prayer on this score,
without prejudice to a proper mandamus case which they, or even the CoA, may
choose to pursue through a separate petition.
It bears clarification that the Court‘s denial herein should only cover petitioners‘ plea
to be furnished with such schedule/list and report and not in any way deny them, or
the general public, access to official documents which are already existing and of
public record. Subject to reasonable regulation and absent any valid statutory
prohibition, access to these documents should not be proscribed. Thus, in Valmonte,
while the Court denied the application for mandamus towards the preparation of the
list requested by petitioners therein, it nonetheless allowed access to the documents
sought for by the latter, subject, however, to the custodian‘s reasonable
regulations,viz.:259
In fine, petitioners are entitled to access to the documents evidencing loans granted
by the GSIS, subject to reasonable regulations that the latter may promulgate relating
to the manner and hours of examination, to the end that damage to or loss of the
records may be avoided, that undue interference with the duties of the custodian of
the records may be prevented and that the right of other persons entitled to inspect
the records may be insured Legaspi v. Civil Service Commission, supra at p. 538,
quoting Subido v. Ozaeta, 80 Phil. 383, 387. The petition, as to the second and third
alternative acts sought to be done by petitioners, is meritorious.
However, the same cannot be said with regard to the first act sought by petitioners,
i.e.,
"to furnish petitioners the list of the names of the Batasang Pambansa members
belonging to the UNIDO and PDP-Laban who were able to secure clean loans
immediately before the February 7 election thru the intercession/marginal note of the
then First Lady Imelda Marcos."
The Court, therefore, applies the same treatment here.
2. Petitioners’ Prayer to Include Matters in Congressional Deliberations.
Petitioners further seek that the Court "order the inclusion in budgetary deliberations
with the Congress of all presently, off-budget, lump sum, discretionary funds including
but not limited to, proceeds from the x x x Malampaya Fund, remittances from the
PAGCOR and the PCSO or the Executive‘s Social Funds."260
Suffice it to state that the above-stated relief sought by petitioners covers a matter
which is generally left to the prerogative of the political branches of government.
Hence, lest the Court itself overreach, it must equally deny their prayer on this score.
3. Respondents’ Prayer to Lift TRO; Consequential Effects of Decision.
The final issue to be resolved stems from the interpretation accorded by the DBM to
the concept of released funds. In response to the Court‘s September 10, 2013 TRO
that enjoined the release of the remaining PDAF allocated for the year 2013, the DBM
issued Circular Letter No. 2013-8 dated September 27, 2013 (DBM Circular 2013-8)
which pertinently reads as follows:
3.0 Nonetheless, PDAF projects funded under the FY 2013 GAA, where a Special
Allotment Release Order (SARO) has been issued by the DBM and such SARO has
been obligated by the implementing agencies prior to the issuance of the TRO, may
continually be implemented and disbursements thereto effected by the agencies
concerned.
Based on the text of the foregoing, the DBM authorized the continued implementation
and disbursement of PDAF funds as long as they are: first, covered by a SARO; and,
second, that said SARO had been obligated by the implementing agency concerned
prior to the issuance of the Court‘s September 10, 2013 TRO.
Petitioners take issue with the foregoing circular, arguing that "the issuance of the
SARO does not yet involve the release of funds under the PDAF, as release is only
triggered by the issuance of a Notice of Cash Allocation [(NCA)]." 261 As such, PDAF
disbursements, even if covered by an obligated SARO, should remain enjoined.
For their part, respondents espouse that the subject TRO only covers "unreleased
and unobligated allotments." They explain that once a SARO has been issued and
obligated by the implementing agency concerned, the PDAF funds covered by the
same are already "beyond the reach of the TRO because they cannot be considered
as ‘remaining PDAF.‘" They conclude that this is a reasonable interpretation of the
TRO by the DBM.262
The Court agrees with petitioners in part.
At the outset, it must be observed that the issue of whether or not the Court‘s
September 10, 2013 TRO should be lifted is a matter rendered moot by the present
Decision. The unconstitutionality of the 2013 PDAF Article as declared herein has the
consequential effect of converting the temporary injunction into a permanent one.
Hence, from the promulgation of this Decision, the release of the remaining PDAF
funds for 2013, among others, is now permanently enjoined.
The propriety of the DBM‘s interpretation of the concept of "release" must,
nevertheless, be resolved as it has a practical impact on the execution of the current
Decision. In particular, the Court must resolve the issue of whether or not PDAF funds
covered by obligated SAROs, at the time this Decision is promulgated, may still be
disbursed following the DBM‘s interpretation in DBM Circular 2013-8.
On this score, the Court agrees with petitioners‘ posturing for the fundamental reason
that funds covered by an obligated SARO are yet to be "released" under legal
contemplation. A SARO, as defined by the DBM itself in its website, is "aspecific
authority issued to identified agencies to incur obligations not exceeding a given
amount during a specified period for the purpose indicated. It shall cover expenditures
the release of which is subject to compliance with specific laws or regulations, or is
subject to separate approval or clearance by competent authority." 263
Based on this definition, it may be gleaned that a SARO only evinces the existence of
an obligation and not the directive to pay. Practically speaking, the SARO does not
have the direct and immediate effect of placing public funds beyond the control of the
disbursing authority. In fact, a SARO may even be withdrawn under certain
circumstances which will prevent the actual release of funds. On the other hand, the
actual release of funds is brought about by the issuance of the NCA,264 which is
subsequent to the issuance of a SARO. As may be determined from the statements
of the DBM representative during the Oral Arguments:265
Justice Bernabe: Is the notice of allocation issued simultaneously with the SARO?
xxxx
Atty. Ruiz: It comes after. The SARO, Your Honor, is only the go signal for the
agencies to obligate or to enter into commitments. The NCA, Your Honor, is already
the go signal to the treasury for us to be able to pay or to liquidate the amounts
obligated in the SARO; so it comes after. x x x The NCA, Your Honor, is the go signal
for the MDS for the authorized government-disbursing banks to, therefore, pay the
payees depending on the projects or projects covered by the SARO and the NCA.
Justice Bernabe: Are there instances that SAROs are cancelled or revoked?
Atty. Ruiz: Your Honor, I would like to instead submit that there are instances that the
SAROs issued are withdrawn by the DBM.
Justice Bernabe: They are withdrawn?
Atty. Ruiz: Yes, Your Honor x x x. (Emphases and underscoring supplied)
Thus, unless an NCA has been issued, public funds should not be treated as funds
which have been "released." In this respect, therefore, the disbursement of 2013
PDAF funds which are only covered by obligated SAROs, and without any
corresponding NCAs issued, must, at the time of this Decision’s promulgation, be
enjoined and consequently reverted to the unappropriated surplus of the general
fund. Verily, in view of the declared unconstitutionality of the 2013 PDAF Article, the
funds appropriated pursuant thereto cannot be disbursed even though already
obligated, else the Court sanctions the dealing of funds coming from an
unconstitutional source.
This same pronouncement must be equally applied to (a) the Malampaya Funds
which have been obligated but not released – meaning, those merely covered by a
SARO – under the phrase "and for such other purposes as may be hereafter directed
by the President" pursuant to Section 8 of PD 910; and (b) funds sourced from the
Presidential Social Fund under the phrase "to finance the priority infrastructure
development projects" pursuant to Section 12 of PD 1869, as amended by PD 1993,
which were altogether declared by the Court as unconstitutional. However, these
funds should not be reverted to the general fund as afore-stated but instead,
respectively remain under the Malampaya Funds and the Presidential Social Fund to
be utilized for their corresponding special purposes not otherwise declared as
unconstitutional.
E. Consequential Effects of Decision.
As a final point, it must be stressed that the Court‘s pronouncement anent the
unconstitutionality of (a) the 2013 PDAF Article and its Special Provisions, (b) all
other Congressional Pork Barrel provisions similar thereto, and (c) the phrases (1)
"and for such other purposes as may be hereafter directed by the President" under
Section 8 of PD 910, and (2) "to finance the priority infrastructure development
projects" under Section 12 of PD 1869, as amended by PD 1993, must only be
treated as prospective in effect in view of the operative fact doctrine.
To explain, the operative fact doctrine exhorts the recognition that until the judiciary,
in an appropriate case, declares the invalidity of a certain legislative or executive act,
such act is presumed constitutional and thus, entitled to obedience and respect and
should be properly enforced and complied with. As explained in the recent case of
Commissioner of Internal Revenue v. San Roque Power Corporation, 266 the doctrine
merely "reflects awareness that precisely because the judiciary is the governmental
organ which has the final say on whether or not a legislative or executive measure is
valid, a period of time may have elapsed before it can exercise the power of judicial
review that may lead to a declaration of nullity. It would be to deprive the law of its
quality of fairness and justice then, if there be no recognition of what had transpired
prior to such adjudication."267 "In the language of an American Supreme Court
decision: ‘The actual existence of a statute, prior to such a determination of
unconstitutionality, is an operative fact and may have consequences which cannot
justly be ignored.‘"268
For these reasons, this Decision should be heretofore applied prospectively.
Conclusion
The Court renders this Decision to rectify an error which has persisted in the
chronicles of our history. In the final analysis, the Court must strike down the Pork
Barrel System as unconstitutional in view of the inherent defects in the rules within
which it operates. To recount, insofar as it has allowed legislators to wield, in varying
gradations, non-oversight, post-enactment authority in vital areas of budget
execution, the system has violated the principle of separation of powers; insofar as it
has conferred unto legislators the power of appropriation by giving them personal,
discretionary funds from which they are able to fund specific projects which they
themselves determine, it has similarly violated the principle of non-delegability of
legislative power ; insofar as it has created a system of budgeting wherein items are
not textualized into the appropriations bill, it has flouted the prescribed procedure of
presentment and, in the process, denied the President the power to veto items ;
insofar as it has diluted the effectiveness of congressional oversight by giving
legislators a stake in the affairs of budget execution, an aspect of governance which
they may be called to monitor and scrutinize, the system has equally impaired public
accountability ; insofar as it has authorized legislators, who are national officers, to
intervene in affairs of purely local nature, despite the existence of capable local
institutions, it has likewise subverted genuine local autonomy ; and again, insofar as it
has conferred to the President the power to appropriate funds intended by law for
energy-related purposes only to other purposes he may deem fit as well as other
public funds under the broad classification of "priority infrastructure development
projects," it has once more transgressed the principle of non-delegability.
For as long as this nation adheres to the rule of law, any of the multifarious
unconstitutional methods and mechanisms the Court has herein pointed out should
never again be adopted in any system of governance, by any name or form, by any
semblance or similarity, by any influence or effect. Disconcerting as it is to think that a
system so constitutionally unsound has monumentally endured, the Court urges the
people and its co-stewards in government to look forward with the optimism of
change and the awareness of the past. At a time of great civic unrest and vociferous
public debate, the Court fervently hopes that its Decision today, while it may not
purge all the wrongs of society nor bring back what has been lost, guides this nation
to the path forged by the Constitution so that no one may heretofore detract from its
cause nor stray from its course. After all, this is the Court‘s bounden duty and no
other‘s.
WHEREFORE, the petitions are PARTLY GRANTED. In view of the constitutional
violations discussed in this Decision, the Court hereby declares as
UNCONSTITUTIONAL: (a) the entire 2013 PDAF Article; (b) all legal provisions of
past and present Congressional Pork Barrel Laws, such as the previous PDAF and
CDF Articles and the various Congressional Insertions, which authorize/d legislators –
whether individually or collectively organized into committees – to intervene, assume
or participate in any of the various post-enactment stages of the budget execution,
such as but not limited to the areas of project identification, modification and revision
of project identification, fund release and/or fund realignment, unrelated to the power
of congressional oversight; (c) all legal provisions of past and present Congressional
Pork Barrel Laws, such as the previous PDAF and CDF Articles and the various
Congressional Insertions, which confer/red personal, lump-sum allocations to
legislators from which they are able to fund specific projects which they themselves
determine; (d) all informal practices of similar import and effect, which the Court
similarly deems to be acts of grave abuse of discretion amounting to lack or excess of
jurisdiction; and (e) the phrases (1) "and for such other purposes as may be hereafter
directed by the President" under Section 8 of Presidential Decree No. 910 and (2) "to
finance the priority infrastructure development projects" under Section 12 of
Presidential Decree No. 1869, as amended by Presidential Decree No. 1993, for both
failing the sufficient standard test in violation of the principle of non-delegability of
legislative power.
Accordingly, the Court‘s temporary injunction dated September 10, 2013 is hereby
declared to be PERMANENT. Thus, the disbursement/release of the remaining PDAF
funds allocated for the year 2013, as well as for all previous years, and the funds
sourced from (1) the Malampaya Funds under the phrase "and for such other
purposes as may be hereafter directed by the President" pursuant to Section 8 of
Presidential Decree No. 910, and (2) the Presidential Social Fund under the phrase
"to finance the priority infrastructure development projects" pursuant to Section 12 of
Presidential Decree No. 1869, as amended by Presidential Decree No. 1993, which
are, at the time this Decision is promulgated, not covered by Notice of Cash
Allocations (NCAs) but only by Special Allotment Release Orders (SAROs), whether
obligated or not, are hereby ENJOINED. The remaining PDAF funds covered by this
permanent injunction shall not be disbursed/released but instead reverted to the
unappropriated surplus of the general fund, while the funds under the Malampaya
Funds and the Presidential Social Fund shall remain therein to be utilized for their
respective special purposes not otherwise declared as unconstitutional.
On the other hand, due to improper recourse and lack of proper substantiation, the
Court hereby DENIES petitioners‘ prayer seeking that the Executive Secretary and/or
the Department of Budget and Management be ordered to provide the public and the
Commission on Audit complete lists/schedules or detailed reports related to the
availments and utilization of the funds subject of these cases. Petitioners‘ access to
official documents already available and of public record which are related to these
funds must, however, not be prohibited but merely subjected to the custodian‘s
reasonable regulations or any valid statutory prohibition on the same. This denial is
without prejudice to a proper mandamus case which they or the Commission on Audit
may choose to pursue through a separate petition.
The Court also DENIES petitioners prayer to order the inclusion of the funds subject
of these cases in the budgetary deliberations of Congress as the same is a matter left
to the prerogative of the political branches of government.
Finally, the Court hereby DIRECTS all prosecutorial organs of the government to,
within the bounds of reasonable dispatch, investigate and accordingly prosecute all
government officials and/or private individuals for possible criminal offenses related to
the irregular, improper and/or unlawful disbursement/utilization of all funds under the
Pork Barrel System.

This Decision is immediately executory but prospective in effect.

SO ORDERED.