CONSTI1_C6

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2 | C o n s t i L a w 1 C a s e s f o r C h a p t e r 6 S e p a r a t i o n o f P o w e r s

neither notice nor opportunity given the petitioner to beheard or present evidence. The commission appears tohave taken advantage of the petitioner to augmentpetitioner's equipment in imposing the limitation oftwenty-five (25) years which might as well be twenty orfifteen or any number of years. This is, to say the least,irregular and should not be sanctioned. There arecardinal primary rights which must be respected even inproceedings of this character. The first of these rights isthe right to a hearing, which includes the right of the

party interested or affected to present his own case andsubmit evidence in support thereof. In the language ofChief Justice Hughes, in Morgan vs. U.S. (304 U.S., 1; 58Sup. Ct., 773, 999; 82 Law. ed., 1129), 'the liberty andproperty of the citizen shall be protected by therudimentary requirements of fair play." Not only must theparty be given an opportunity to present his case and toadduce evidence tending to establish the rights which heasserts but the tribunal must consider the evidencepresented.

D E C I S I O NLAUREL, J p:The petitioner has been engaged for the past twenty

years in the business of transporting passengers in theProvinces of Pangasinan and Tarlac and, to a certainextent, in the Provinces of Nueva Ecija and Zambales, bymeans of motor vehicles commonly known as TPU buses,in accordance with the terms and conditions of thecertificates of public convenience issued in its favor bythe former Public Utility Commission in cases Nos. 24948,30973, 36831, 32014 and 53090. On August 26, 1939, thepetitioner filed with the Public Service Commission anapplication for authorization to operate ten additionalnew Brockway trucks (case No. 56641), on the groundthat they were needed to comply with the terms andconditions of its existing certificates and as a result of theapplication of the Eight Hour Labor Law. In the decision of

September 26, 1339, granting the petitioner's applicationfor increase of equipment, the Public Service Commissionordered:"Y de acuerdo con lo que se provee por el articulo 15 dela Ley No. 146 del Commonwealth, tal como ha sidoenmendada por el articulo 1 de la Ley No. 454, por lapresente se enmienda las condiciones de los certificadosde conveniencia publica expedidos en los expedientesNos. 24948, 30973, 36831, 32014 y la autorizacionconcedida en el expediente No. 53090, asi que seconsideran incorporadas en los mismos las dos siguientescondiciones:"Que los certificados de conveniencia publica yautorizacion arriba mencionados seran validos ysubsistentes solamente durante el periodo de veinticinco(25) anos, contados desde la fecha de la promulgacionde esta decision."Que la empresa de la solicitante podra ser adquirida porel Commonwealth de Filipinas o por algunadependencia del mismo en cualquier tiempo que lodeseare previo pago del precio de costo de su equipoutil, menos una depreciacion razonable que se ha defijar por la Comision al tiempo de su adquisicion."Not being agreeable to the two new conditions thusincorporated in its existing certificates, the petitioner filedon October 9, 1939 a motion for reconsideration which

was denied by the Public Service Commission onNovember 14, 1939. Whereupon, on November 20, 1939the present petition for a writ of certiorari was instituted inthis court praying that an order be issued directing thesecretary of the Public Service Commission to certifyforthwith to this court the records of all proceedings incase No. 56641; that this court, after hearing, render adecision declaring section 1 of Commonwealth Act No454 unconstitutional and void; that, if this court should beof the opinion that section 1 of Commonwealth Act No

454 is constitutional, a decision be rendered declaringthat the provisions thereof are not applicable to validand subsisting certificates issued prior to June 8, 1939Stated in the language of the petitioner, it is contended:

"1.That the legislative powers granted to the PublicService Commission by section 1 of Commonwealth AcNo. 454, without limitation, guide or rule except theunfettered discretion and judgment of the Commissionconstitute a complete and total abdication by theLegislature of its functions in the premises, and. for thareason, the Act, in so far as those powers are concernedis unconstitutional and void."2.That even if it be assumed that section 1 of

Commonwealth Act No. 454, is a valid delegation olegislative powers, the Public Service Commission hasexceeded its authority because: (a) The Act applies onlyto future certificates and not to valid and subsistingcertificates issued prior to June 8, 1939, when said Acttook effect, and (b) the Act, as applied by theCommission, violates constitutional guarantees.Section 15 of Commonwealth Act No. 146, as amendedby section 1 of Commonwealth Act No. 454, invoked bythe respondent Public Service Commission in the decisioncomplained of in the present proceedings, reads asfollows:"With the exception of those enumerated in thepreceding section, no public service shall operate in the

Philippines without possessing a valid and subsistingcertificate from the Public Service Commission, known as'certificate of public convenience,' or 'certificate oconvenience and public necessity,' as the case may beto the effect that the operation of said service and theauthorization to do business will promote the publicinterests in a proper and suitable manner."The Commission may prescribe as a condition for theissuance of the certificate provided in the precedingparagraph that the service can be acquired by theCommonwealth of the Philippines or by anyinstrumentality thereof upon payment of the cost price oits useful equipment, less reasonable depreciation; andlikewise, that the certificate shall be valid only for adefinite period of time; and that the violation of any ofthese conditions shall produce the immediatecancellation of the certificate without the necessity oany express action on the part of the Commission."In estimating the depreciation, the effect of the use ofthe equipment, its actual condition, the age of themodel, or other circumstances affecting its value in themarket shall be taken into consideration."The foregoing is likewise applicable to any extension oamendment of certificates actually in force and to thosewhich may hereafter be issued, to permits to modifyitineraries and time schedules of public services and to

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authorizations to renew and increase equipment andproperties."Under the first paragraph of the aforequoted section 15of Act No. 146, as amended, no public service canoperate without a certificate of public convenience orcertificate of convenience and public necessity to theeffect that the operation of said service and theauthorization to do business will promote "public interestsin a proper and suitable manner." Under the secondparagraph, one of the conditions which the Public

Service Commission may prescribe for the issuance of thecertificate provided for in the first paragraph is that "theservice can be acquired by the Commonwealth of thePhilippines or by any instrumentality thereof uponpayment of the cost price of its useful equipment, lessreasonable depreciation," a condition which is virtually arestatement of the principle already embodied theConstitution, section 6 of Article XII, which provides at "theState may, in the interest of national welfare anddefense, establish and operate industries and means oftransportation and communication, and, upon paymentof just compensation, transfer to public ownership utilitiesd other private enterprises to be operated by theGovernment." Another condition which the Commission

may prescribe, and which is assailed by the petitioner, isthat the certificate "shall be valid only for a definiteperiod of time." As there is a relation between the firstand second paragraphs of said section 15, the twoprovisions must be read and interpreted together. That isto say, in issuing a certificate, the Commission mustnecessarily be satisfied that the operation of the serviceunder said certificate during a definite period fixedtherein "will promote the public interests in a proper andsuitable manner." Under section 16 (a) of CommonwealthAct No. 146 which is a complement of section 15, theCommission is empowered to issue certificates of publicconvenience whenever it "finds that the operation of thepublic service proposed and the authorization to do

business will promote the public interests in a proper andsuitable manner." Inasmuch as the period to be fixed bythe Commission under section 15 is inseparable from thecertificate itself, said period cannot be disregarded bythe Commission in determining the question whether theissuance of the certificate will promote the publicinterests in a proper and suitable manner. Conversely, indetermining "a definite period of time," the Commissionwill be guided by "public interests," the only limitation to itspower 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 "publicinterest" furnishes a sufficient standard. (People vs.Fernandez and Trinidad, G. R. No. 45655, promulgatedJune 15, 1938; People vs. Rosenthal and Osmeña, G. R.Nos. 46076 and 46077, promulgated June 12, 1939, citingNew York Central Securities Corporation vs. U. S. A., 287 U.S. 12, 24, 25, 77 Law. ed. 138, 145, 146; Schenchter PoultryCorporation vs. U. S., 295 U. S. 495, 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 anyother form of authorization for the operation of a publicutility shall be "for a longer period than fifty years," andwhen it was ordained, in section 15 of CommonwealthAct No. 146, as amended by Commonwealth Act No.

454, that the Public Service Commission may prescribe asa condition for the issuance of a certificate that it "shalbe valid only for a definite period of time" and, in section16 (a) that "no such certificates shall be issued for aperiod of more than fifty years," the National Assemblymeant to give effect to the aforesaid constitutionamandate. More than this, it has thereby also declared itswill that the period to be fixed by the Public ServiceCommission shall not be longer than fifty years. All thathas been delegated to the Commission, therefore, is the

administrative function, involving the use of discretion, tocarry out the will of the National Assembly having in viewin addition, the promotion of "public interests in a propeand suitable manner." The fact that the NationaAssembly may itself exercise the function and authoritythus conferred upon the Public Service Commission doesnot make the provision in question constitutionallyobjectionable.The theory of the separation of powers is designed by itsoriginators to secure action and at the same time toforestall over action which necessarily results from undueconcentration of powers, and thereby obtain efficiencyand prevent despotism. Thereby, the "rule of law" wasestablished which narrows the range of governmenta

action and makes it subject to control by certain legadevices. As a corollary, we find the rule prohibitingdelegation of legislative authority, and from the earliestime American legal authorities have proceeded on thetheory that legislative power must be exercised by thelegislature alone. It is frankness, however, to confess thaas one delves into the mass of judicial pronouncementshe finds a great deal of confusion. One thing, however, isapparent in the development of the principle ofseparation of powers and that is that the maxim odelegatus non potest delegari or delegata potestas nonpotest delegari, attributed to Bracton (De Legibus eConsuetedinious Angliae, edited by G.E. Woodbine, YaleUniversity Press, 1922, vol. 2, p. 167) but which is also

recognized in principle in the Roman Law (D. 17.18.3), hasbeen made to adapt itself to the complexities of moderngovernments, giving rise to the adoption, within certainlimits, of the principle of "subordinate legislation," not onlyin the United States and England but in practically almodern governments. (People vs. Rosenthal andOsmeña, G. R. Nos. 46076 and 46077, promulgated June12, 1939.) Accordingly, with the growing complexity omodern life, the multiplication of the subjects ofgovernmental regulation, and the increased difficulty oadministering the laws, there is a constantly growingtendency toward the delegation of greater powers bythe legislature, and toward the approval of the practiceby the courts. (Dillon Catfish Drainage Dist. vs. Bank ofDillon, 141 S. E. 274, 275, 143 S. Ct. 178; State vs. KnoxCounty, 54 S. W. 2d. 973, 976, 165 Tenn. 319.) In harmonywith such growing tendency, this Court, since thedecision in the case of Compania General de Tabacosde Filipinas vs. Board of Public Utility Commissioners (34Phil., 136), relied upon by the petitioner, has, in instancesextended its seal of approval to the "delegation ofgreater powers by the legislature." (Inchausti SteamshipCo. vs. Public Utility Commissioner, 44 Phil., 366; Alegre vsCollector of Customs, 53 Phil., 394; Cebu Autobus Co. vsDe Jesus, 56 Phil., 446; People vs. Fernandez & Trinidad, GR. No, 45655, promulgated June 15, 1938 in People vs

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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 ofCommonwealth Act No. 146, as amended byCommonwealth Act No. 454, the power of the PublicService Commission to prescribe the conditions "that theservice can be acquired by the Commonwealth of thePhilippines or by any instrumentality thereof uponpayment of the cost price of its useful equipment, less

reasonable depreciation," and "that the certificate shallbe valid only for a definite period of time" is expresslymade applicable "to any extension or amendment ofcertificates actually in force" and "to authorizations torenew and increase equipment and properties." We haveexamined the legislative proceedings on the subject andhave found that these conditions were purposely madeapplicable to existing certificates of public convenience.The history of Commonwealth Act No. 454 reveals thatthere was an attempt to suppress, by way ofamendment, the sentence "and likewise, that thecertificate shall be valid only for a definite period of time,"but the attempt failed:

xxx xxx xxx"Sr. CUENCO. Senor Presidente, para otra enmienda. Enla misma pagina, lineas 23 y 24, pido que se supriman laspalabras 'and likewise, that the certificate shall be validonly for a definite period of time.' Esta disposicion delproyecto autoriza a la Comision de Servicios Publicos afijar un plazo de vigencia del certificado deconveniencia publica. Todo el mundo sabe que no sepuede determinar cuando los intereses del serviciopublico requieren la explotacion de un servicio publico ycomo ha de saber la Comision de Servicios Publicos, si enun tiempo determinado, la explotacion de algunos busesen cierta ruta ya no tiene razon de ser, sobre todo, si setiene en cuenta; que la explotacion de los servicios

publicos depende de condiciones fluctuantes, asi comodel volumen del trafico y de otras condiciones. Ademas,el servicio publico se concede por la Comision deServicios Publicos cuando el interes publico asi lo exige. Elinteres publico no tiene duracion fija, no es permanente;es un proceso mas o menos indefinido en cuanto altiempo. 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 esaenmienda, en vista de que esto de los certificados deconveniencia publica es igual que la franquicia: sepuede extender. Si los servicios prestados por lacompania durante el tiempo de su certificado lorequiere, puede pedir la extension y se le extendera;pero no creo conveniente el que nosotros demos uncertificado de conveniencia publica de urla manera quepodria pasar de cincuenta anos, porque seriaanticonstitucional." xxx xxx xxxBy a majority vote the proposed amendment wasdefeated. (Sesion de 17 de mayo de 1939, AsambleaNacional.)The petitioner is mistaken in the suggestion that, simplybecause its existing certificates had been granted beforeJune 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 theright of holding them in perpetuity. Section 74 of thePhilippine Bill provided that "no franchise, privilege, oconcession shall be granted to any corporation exceptunder the conditions that it shall be subject toamendment, alteration, or repeal by the Congress of theUnited States." The Jones Law, incorporating a similamandate, provided, in section 28, that "no franchise oright shall be granted to any individual, firm, orcorporation except under the conditions that it shall be

subject to amendment, alteration, or repeal by theCongress of the United States." Lastly, the Constitution othe Philippines provides, in section 8 of Article XIII, that "nofranchise or right shall be granted to any individual, firmor corporation, except under the condition that it shall besubject to amendment, alteration, or repeal by theNational Assembly when the public interest so requires.The National Assembly, by virtue of the Constitutionlogically succeeded to the Congress of the United Statesin the power to amend, alter or repeal any franchise orright granted prior to or after the approval of theConstitution; and when Commonwealth Acts Nos. 146and 454 were enacted, the National Assembly, to theextent therein provided, has declared its will and purpose

to amend or alter existing certificates of publicconvenience.Upon the other hand, statutes enacted for the regulationof public utilities, being a proper exercise by the state oits police power, are applicable not only to those publicutilities coming into existence after its passage, bulikewise to those already established and in operation."Nor is there any merit in petitioner's contention, thatbecause of the establishment of petitioner's operationsprior to May 1, 1917, they are not subject to theregulations of the Commission. Statutes for the regulationof public utilities are a proper exercise by the state of itspolice power. As soon as the power is exercised, alphases of operation of established utilities, become at

once subject to the police power thus called intooperation. Producers' Transportation Co. v. RailroadCommission, 251 U. S. 228, 40 Sup. Ct. 131, 64 Law. ed239, Law vs. Railroad Commission, 184 Cal. 737, 195 Pac423, 14 A. L. R. 249. The statute is applicable not only tothose public utilities coming into existence after itspassage, but likewise to those already established and inoperation. The 'Auto Stage and Truck Transportation Act(Stats. 1917, c. 213) is a statute passed in pursuance ofthe police power. The only distinction recognized in thestatute between those established before and thoseestablished after the passage of the act is in the methodof the creation of their operative rights. A certificate opublic convenience and necessity is required for any newoperation, but no such certificate is required of anytransportation company for the operation which wasactually carried on in good faith on May 1, 1917. Thisdistinction in the creation of their operative rights in noway affects the power of the Commission to superviseand regulate them. Obviously the power of theCommission to hear and dispose of complaints is aseffective against companies securing their operativerights prior to May 1, 1917, as against those subsequentlysecuring such rights under a certificate of publicconvenience and necessity. (Motor Transit Co. et al. vsRailroad Commission of California et al., 209 Pac. 586.)"

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Moreover, Commonwealth Acts Nos. 146 and 454 are notonly the organic acts of the Public Service Commissionbut are "a part of the charter of every utility companyoperating or seeking to operate a franchise" in thePhilippines. (Streator Aqueduct Co. v. Smith et al., 295Fed. 385.) The business of a common carrier holds such apeculiar relation to the public interest that there issuperinduced upon it the right of public regulation. Whenprivate property is "affected with a public interest itceased to be juris privati only." When, therefore, one

devotes his property to a use in which the public has aninterest, he, in effect, grants to the public an interest inthat use, and must submit to be controlled by the publicfor the common good, to the extent of the interest he hasthus created. He may withdraw his grant by discontinuingthe use, but so long as he maintains the use he mustsubmit to control. Indeed, this right of regulation is so farbeyond question that it is well settled that the power ofthe state to exercise legislative control over public utilitiesmay be exercised through boards of commissioners.(Fisher vs. Yangco Steamship Company, 31 Phil., 1, citingMunn vs. Illinois, 94 U. S. 113; Georgia R. & Bkg. Co. vs.Smith, 128 U. S. 174; Budd vs. New York, 143 U. S. 517; NewYork etc. R. Co. vs. Bristol, 151 U. S. 556, 571; Connecticut

etc. R. Co. vs. Woodruff, 153 U. S. 689; Louisville etc. RyCo. vs. Kentucky, 161 U. S. 677, 695.) This right of the stateto regulate public utilities is founded upon the policepower, and statutes for the control and regulation ofutilities are a legitimate exercise thereof, for theprotection of the public as well as of the utilitiesthemselves. Such statutes are, therefore, notunconstitutional, either as impairing the obligation ofcontracts, taking property without due process, ordenying the equal protection of the laws, especiallyinasmuch as the question whether or not private propertyshall be devoted to a public use and the consequentburdens 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 theregulatory powers of the state. (51 C. J., sec. 21, pp. 9-10.)This is the more so in the light of authorities which holdthat a certificate of public convenience constitutesneither a franchise nor a contract, confers no propertyright, and is a mere license or privilege. (Burgess vs. Mayor& Aldermen of Brockton, 235 Mass. 95, 100, 126 N.E. 456;Roberto vs. Commissioners of Department of PublicUtilities, 262 Mass. 583, 160 N.E. 321, Scheible vs. Hogan,113 Ohio St., 83 148 N.E. 581; Matz vs. Curtis [J.L.] CartageCo., [1937], 132 Ohio St. 271, 7 N.E. [2d] 220; ManilaYellow Taxicab Co. vs. Sabellano, 59 Phil. 773.)Whilst the challenge provisions of Commonwealth ActNo. 454 are valid and constitutional, we are, however. ofthe opinion that the decision of the Public ServiceCommission should be reversed and the case remandedthereto for further proceedings for the reason now to bestated. Th Public Service Commission has power, uponproper notice and hearing, "to amend, modify or revokeat any time any certificate issued under the provisions ofthis Act, whenever the facts and circumstances of thestrength of which said certificate was issued have beenmisrepresented or materially changed." (Section 16, par.[m]. Commonwealth Act No. 146.) The petitioner'sapplication here was for an increase of its equipment toenable it to comply with the conditions of its certificates

of public convenience. On the matter of limitation otwenty five (25) years of the life of its certificates of publicconvenience, there had been neither notice notopportunity given the petitioner to be heard or presenevidence. The Commission appears to have takenadvantage of the petitioner to augment petitioner'sequipment in imposing the limitation to twenty-five (25years which might as well be twenty of fifteen or anynumber of years. This is, to say the least, irregular andshould not be sanctioned. There are cardinal primary

rights which must be respected even in proceedings ofthis character. The first of these rights is the right of ahearing, which includes the right of the party interested oaffected to present his own case and submit evidence insupport thereof. In the language of Chief Justice Hughesin Morgan vs. U. S., 304 U. S. 1, 58 S. Ct. 773, 999, 82 Lawed. 1129, "the liberty and property of the citizen shall beprotected by the rudimentary requirements of fair play.Not only must the party be given an opportunity topresent his case and to adduce evidence tending toestablish the rights which he asserts but the tribunal mustconsider the evidence presented. (Chief Justice Hughesin Morgan vs. U. S., 298 U. S. 468, 56 S. Ct. 906, 80 Law. ed1288.) In the language of this Court in Edwards vs. McCoy

(22 Phil., 598), "the right to adduce evidence, without thecorresponding duty on the part of the board to consideit, is vain. Such right is conspicuously futile if the person opersons to whom the evidence is presented can thrust iaside without notice or consideration." While the duty todeliberate does not impose the obligation to decideright, it does imply a necessity which cannot bedisregarded, namely, that of having something to supporits decision. A decision with absolutely nothing to supporit is a nullity, at least when directly attacked. (Edwards vsMcCoy, supra.) This principle emanates from the morefundamental principle that the genius of constitutionagovernment is contrary to the vesting of unlimited poweranywhere. Law is both a grant and a limitation upon

power.

The decision appealed from is hereby reversed and thecase remanded to the Public Service Commission fofurther proceedings in accordance with law and thisdecision, without any pronouncement regarding costs. Soordered.Avanceña, C.J., Imperial, Diaz, Concepcion, and MoranJJ., concur.||| (Pangasinan Trans. Co., Inc. v. Public ServiceCommission, G.R. No. 47065, June 26, 1940)

EN BANC[G.R. No. 45081. July 15, 1936.]

JOSE A. ANGARA, petitioner, vs. THE ELECTORALCOMMISSION, PEDRO YNSUA, MIGUEL CASTILLO, and

DIONISIO C. MAYOR, respondents.Godofredo Reyes for petitioner.

Solicitor-General Hilado for respondent ElectoralCommission.

Pedro Ynsua in his own behalf.No appearance for other respondents.

SYLLABUS

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provided in our Constitution, it ought not the less to beremembered that, in the language of James Madison,the system itself is not "the chief palladium ofconstitutional liberty . . . the people who are authors ofthis blessing must also be its guardians . . . their eyes mustbe ever ready to mark, their voice to pronounce . . .aggression on the authority of their constitution." In thelast and ultimate analysis, then, must the success of ourgovernment in the unfolding years to come be tested inthe crucible of Filipino minds and hearts than in the

consultation rooms and court chambers.8.ID.; OUR CONSTITUTION HAS ADOPTED THE AMERICANTYPE OF CONSTITUTIONAL GOVERNMENT. — Discardingthe English type and other European types ofconstitutional government, the framers of our Constitutionadopted the American type where the writtenconstitution is interpreted and given effect by the judicialdepartment. In some countries which have declined tofollow the American example, provisions have beeninserted in their constitutions prohibiting the courts fromexercising the power to interpret the fundamental law.This is taken as a recognition of what otherwise would bethe rule that in the absence of direct prohibition courtsare bound to assume what is logically their function. For

instance, the Constitution of Poland of 1921, expresslyprovides that courts shall have no power to examine thevalidity of statutes (article 81, chapter IV). The formerAustrian Constitution contained a similar declaration. Incountries whose constitutions are silent in this respect,courts have assumed this power. This is true in Norway,Greece, Australia and South Africa. Whereas, inCzechoslovakia (arts. 2 and 3, Preliminary Law toConstitutional Charter of the Czechoslovak Republic,February 29, 1920) and Spain (arts 121-123, Title IX,Constitution of the Republic of 1931) especialconstitutional courts are established to pass upon thevalidity of ordinary laws.9.ID.; JURISDICTION OVER THE ELECTORAL COMMISSION.

— The nature of the present controversy shows thenecessity of a final constitutional arbiter to determine theconflict of authority between two agencies created bythe Constitution. If the conflict were left undecided andundetermined, a void would be created in ourconstitutional system which may in the long run provedestructive of the entire framework. Natura vacuumabhorret, so must we avoid exhaustion in ourconstitutional system. Upon principle, reason andauthority, the Supreme Court has jurisdiction over theElectoral Commission and the subject matter of thepresent controversy for the purpose of determining thecharacter, scope and extent of the constitutional grantto the Electoral Commission as "the sole judge of allcontests relating to the election, returns andqualifications of the members of the National Assembly."

10.ID.; THE ELECTORAL COMMISSION; CONSTITUTIONALGRANT OF POWER TO THE ELECTORAL COMMISSION TO BETHE SOLE JUDGE OF ALL CONTESTS RELATING TO THEELECTION, RETURNS AND QUALIFICATIONS OF MEMBERS OFTHE NATIONAL ASSEMBLY. — The original provisionregarding this subject in the Act of Congress of July 1,1902 (sec. 7, par. 5) laying down the rule that theassembly shall be the judge of the elections, returns, andqualifications of its members", was taken from clause 1 of

section 5, Article I of the Constitution of the United Statesproviding that "Each House shall be the Judge of theElections, Returns, and Qualifications of its own Members. . . ." The Act of Congress of August 29, 1916 (sec. 18, par1) modified this provision by the insertion of the word"sole" as follows: "That the Senate and House ofRepresentatives, respectively, shall be the sole judges othe elections, returns, and qualifications of their electivemembers, . . ." apparently in order to emphasize theexclusive character of the jurisdiction conferred upon

each House of the Legislature over the particular casestherein specified. This court has had occasion tocharacterize this grant of power to the Philippine Senateand House of Representatives, respectively, as "full, cleaand complete". (Veloso vs. Boards of Canvassers of Leyteand Samar [1919], 39 Phil., 886, 888.)11.ELECTORAL COMMISSION; HISTORICAL INSTANCES. —The transfer of the power of determining the electionreturns and qualifications of the members of theLegislature long lodged in the legislative body, to anindependent, impartial and non-partisan tribunal, is by nomeans a mere experiment in the science of governmentAs early as 1868, the House of Commons in Englandsolved the problem of insuring the non-partisan

settlement of the controverted elections of its membersby abdicating its prerogative to two judges of the King'sBench of the High Court of Justice selected from a rota inaccordance with rules of court made for the purposeHaving proved successful, the practice has becomeimbedded in English jurisprudence (ParliamentaryElections Act, 1868 [31 & 32 Vict. c. 125] as amended byParliamentary Elections and Corrupt Practices Act, 1879[42 & 43 Vict. c. 75], s. 2; Corrupt and Illegal PracticesPrevention Act 1883 [46 & 47 Vict. c. 51], s. 70; ExpiringLaws Continuance Act, 1911 [1 & 2 Geo. 5, c. 22]; Laws oEngland, vol. XII, p. 408, vol. XXI, p. 787). In the Dominionof Canada, election contests which were originally heardby the Committee of the House of Commons, are since

1922 tried in the courts. Likewise, in the Commonwealth oAustralia, election contests which were originallydetermined by each house, are since 1922 tried in theHigh Court. In Hungary, the organic law provides that aprotests against the election of members of the UppeHouse of Diet are to be resolved by the SupremeAdministrative Court (Law 22 of 1916, chap. 2, art. 37, par6). The Constitution of Poland of March 17, 1921 (art. 19)and the Constitution of the Free City of Danzig of May 131922 (art. 10) vest the authority to decide contestedelections to the Diet or National Assembly in the SupremeCourt. For the purpose of deciding legislative conteststhe Constitution of the German Reich of July 1, 1919 (art31), the Constitution of the Czechoslovak Republic oFebruary 29, 1920 (art. 19) and the Constitution of theGrecian Republic of June 2, 1927 (art. 43) all provide foan Electoral Commission.12.ID.; ELECTORAL COMMISSION IN THE UNITED STATES. —The creation of an Electoral Commission whosemembership is recruited both from the legislature and the judiciary is by no means unknown in the United States. Inthe presidential elections of 1876 there was a dispute asto the number of electoral votes received by each of thetwo opposing candidates. As the Constitution made noadequate provision for such a contingency, Congresspassed a law on January 29, 1877 (United States Statutes

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at Large, vol. 19, chap. 37, pp. 227-229), creating aspecial Electoral Commission composed of five memberselected by the Senate, five members elected by theHouse of Representatives, and five justices of theSupreme Court, the fifth justice to be selected by the fourdesignated in the Act. The decision of the commissionwas to be binding unless rejected by the two housesvoting separately. Although there is not much morallesson to be derived from the experience of America inthis regard, the experiment has at least abiding historical

interest.13.ID.; ID.; FAMILIARITY OF THE MEMBERS OF THECONSTITUTIONAL CONVENTION WITH THE HISTORY ANDPOLITICAL DEVELOPMENT OF OTHER COUNTRIES OF THEWORLD; ELECTORAL COMMISSION IS THE EXPRESSION OFTHE WISDOM AND ULTIMATE JUSTICE OF THE PEOPLE. — Themembers of the Constitutional Convention who framedour fundamental law were in their majority men mature inyears and experience. To be sure, many of them werefamiliar with the history and political development ofother countries of the world. When, therefore, theydeemed it wise to create an Electoral Commission as aconstitutional organ and invested it with the exclusivefunction of passing upon and determining the election,

returns and qualifications of the members of the NationalAssembly, they must have done so not only in the light oftheir own experience but also having in view theexperience of other enlightened peoples of the world.The creation of the Electoral Commission was designed toremedy certain evils of which the framers of ourConstitution were cognizant. Notwithstanding thevigorous opposition of some members of the Conventionto its creation, the plan was approved by that body by avote of 98 against 58. All that can be said now is that,upon the approval of the Constitution, the creation of theElectoral Commission is the expression of the wisdom and"ultimate justice of the people". (Abraham Lincoln, FirstInaugural Address, March 4, 1861.)

14.ID.; ID.; ID.; PURPOSE WAS TO TRANSFER IN ITS TOTALITYPOWER EXERCISED PREVIOUSLY BY THE LEGISLATURE OVERTHE CONTESTED ELECTIONS OF THE MEMBERS TO ANINDEPENDENT AND IMPARTIAL TRIBUNAL. — From thedeliberations of our Constitutional Convention it is evidentthat the purpose was to transfer in its totality all thepowers previously exercised by the Legislature in matterspertaining to contested elections of its members, to anindependent and impartial tribunal. It was not so muchthe knowledge and appreciation of contemporaryconstitutional precedents, however, as the long-felt needof determining legislative contests devoid of partisanconsiderations which prompted the people actingthrough their delegates to the Convention to provide forthis body known as the Electoral Commission. With thisend in view, a composite body in which both the majorityand minority parties are equally represented to off-setpartisan influence in its deliberations was created, andfurther endowed with judicial temper by including in itsmembership three justices of the Supreme Court.15.ID.; ID.; ID.; THE ELECTORAL COMMISSION IS ANINDEPENDENT CONSTITUTIONAL CREATION ALTHOUGH FORPURPOSES OF CLASSIFICATION IT IS CLOSER TO THELEGISLATIVE DEPARTMENT THAN TO ANY OTHER. — TheElectoral Commission is a constitutional creation, investedwith the necessary authority in the performance and

execution of the limited and specific function assigned toit by the Constitution. Although it is not a power in ourtripartite scheme of government, it is, to all intents andpurposes, when acting within the limits of its authority, anindependent organ. It is, to be sure, closer to thelegislative department than to any other. The location othe provision (sec. 4) creating the Electoral Commissionunder Article VI entitled "Legislative Department" of ouConstitution is very indicative. Its composition is alsosignificant in that it is constituted by a majority of

members of the Legislature. But it is a body separate fromand independent of the Legislature.16.ID.; ID; ID.; GRANT OF POWER TO THE ELECTORALCOMMISSION INTENDED TO BE AS COMPLETE ANDUNIMPAIRED AS IF IT HAD REMAINED ORIGINALLY IN THELEGISLATURE. — The grant of power to the ElectoraCommission to judge all contests relating to the electionreturns and qualifications of members of the NationaAssembly, is intended to be as complete and unimpairedas if it had remained originally in the Legislature. Theexpress lodging of that power in the Electoral Commissionis an implied denial of the exercise of that power by theNational Assembly. And this is as effective a restrictionupon the legislative power as an express prohibition in the

constitution (Ex parte Lewis, 46 Tex. Crim. Rep., 1; State vsWhisman, 33 S. D., 260; L. R. A., 1917B, 1). If the powerclaimed for the National Assembly to regulate theproceedings of the Electoral Commission and cut off thepower of the Electoral Commission to lay down a periodwithin which protest should be filed were conceded, thegrant of power to the commission would be ineffectiveThe Electoral Commission in such a case would beinvested with the power to determine contested casesinvolving the election, returns, and qualifications of themembers of the National Assembly but subject at altimes to the regulative power of the National AssemblyNot only would the purpose of the framers of ouConstitution of totally transferring this authority from the

legislative body be frustrated, but a dual authority wouldbe created with the resultant inevitable clash of powersfrom time to time. A sad spectacle would then bepresented of the Electoral Commission retaining the bareauthority of taking cognizance of cases referred to, but inreality without the necessary means to render thatauthority effective whenever and wherever the NationaAssembly has chosen to act, a situation worse than thaintended to be remedied by the framers of ouConstitution. The power to regulate on the part of theNational Assembly in procedural matters will inevitablylead to the ultimate control by the Assembly of the entireproceedings of the Electoral Commission, and, byindirection, to the entire abrogation of the constitutionagrant. It is obvious that this result should not be permitted.

17.ID.; ID.; ID; ID.; THE POWER TO PROMULGATE INCIDENTARULES AND REGULATIONS LODGED ALSO IN THE ELECTORACOMMISSION BY NECESSARY IMPLICATION. — Thecreation of the Electoral Commission carried with it exnecesitate rei the power regulative in character to limitthe time within which protests intrusted to its cognizanceshould be filed. It is a settled rule of construction thawhere a general power is conferred or duty enjoinedevery particular power necessary for the exercise of theone or the performance of the other is also conferred

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(Cooley, Constitutional Limitations, eighth ed., vol. I, pp.138, 139). In the absence of any further constitutionalprovision relating to the procedure to be followed in filingprotests before the Electoral Commission, therefore, theincidental power to promulgate such rules necessary forthe proper exercise of its exclusive powers to judge allcontests relating to the election, returns andqualifications of members of the National Assembly, mustbe deemed by necessary implication to have beenlodged also in the Electoral Commission.

18.ID; ID.; ID.; POSSIBILITY OF ABUSE NO ARGUMENTAGAINST GRANT OF POWER. — The possibility of abuse isnot an argument against the concession of the power asthere is no power that is not susceptible of abuse. If anymistake has been committed in the creation of anElectoral 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 soughtthrough the ordinary processes of democracy. All thepossible abuses of the government are not intended tobe corrected by the judiciary. The people in creating theElectoral Commission reposed as much confidence in thisbody in the exclusive determination of the specified

cases assigned to it, as it has given to the Supreme Courtin the proper cases entrusted to it for decision. All theagencies of the government were designed by theConstitution to achieve specific purposes, and eachconstitutional organ working within its own particularsphere of discretionary action must be deemed to beanimated with same zeal and honesty in accomplishingthe great ends for which they were created by thesovereign will. That the actuations of these constitutionalagencies might leave much to be desired in giveninstances, is inherent in the imperfections of humaninstitutions. From the fact that the Electoral Commissionmay not be interfered with in the exercise of its legitimatepower, it does not follow that its acts, however illegal or

unconstitutional, may not be challenged in appropriatecases over which the courts may exercise jurisdiction.19.ID.; ID.; ID.; FACTS OF THE CASE; EQUITABLE CONSIDERATIONS. — The Commonwealth Governmentwas inaugurated on November 15, 1935, on which datethe Constitution, except as to the provisions mentioned insection 6 of Article XV thereof, went into effect. The newNational Assembly convened on November 25, of thatyear, and the resolution confirming the election of thepetitioner was approved by that body on December 3,1935. The protest by the herein respondent against theelection of the petitioner was filed on December 9 of thesame year. The pleadings do not show when the ElectoralCommission was formally organized but it does appearthat on December 9, 1935, the Electoral Commission metfor the first time and approved a resolution fixing saiddate as the last day for the filing of election protests.When, therefore, the National Assembly passed itsresolution of December 3, 1935, confirming the electionof the petitioner to the National Assembly, the ElectoralCommission had not yet met; neither does it appear thatsaid body had actually been organized. As a matter offact, according to certified copies of official records onfile in the archives division of the National Assemblyattached to the record of this case upon the petition ofthe petitioner, the three justices of the Supreme Court

and the six members of the National Assemblyconstituting the Electoral Commission were respectivelydesignated only on December 4 and 6, 1936. If ResolutionNo. 8 of the National Assembly confirming non-protestedelections of members of the National Assembly had theeffect of limiting or tolling the time for the presentation oprotests, the result would be that the National Assembly — on the hypothesis that it still retained the incidentapower of regulation in such cases — had already barredthe presentation of protests before the Electora

Commission had had time to organize itself anddeliberate on the mode and method to be followed in amatter entrusted to its exclusive jurisdiction by theConstitution. This result was not and could not have beencontemplated, and should be avoided.20.ID.; ID.; ID.; CONFIRMATION BY THE NATIONAASSEMBLY CAN NOT DEPRIVE THE ELECTORACOMMISSION OF ITS AUTHORITY TO FIX THE TIME WITHINWHICH PROTESTS AGAINST THE ELECTION, RETURNS ANDQUALIFICATIONS OF MEMBERS OF THE NATIONALASSEMBLY SHOULD BE FILED. — Resolution No. 8 of theNational Assembly confirming the election of membersagainst whom no protests has been filed at the time of itspassage on December 3, 1936, can not be construed as

a limitation upon the time for the initiation of electioncontests. While there might have been good reason fothe legislative practice of confirmation of members of theLegislature at the time the power to decide electioncontests was still lodged in the Legislature, confirmationalone by the Legislature cannot be construed asdepriving the Electoral Commission of the authorityincidental to its constitutional power to be "the sole judgeof all contests relating to the election, returns, andqualifications of the members of the National Assembly"to fix the time for the filing of said election protestsConfirmation by the National Assembly of the returns of itsmembers against whose election no protests have beenfiled is, to all legal purposes, unnecessary. Confirmation o

the election of any member is not required by theConstitution before he can discharge his duties as suchmember. As a matter of fact, certification by the propeprovincial board of canvassers is sufficient to entitle amember-elect to a seat in the National Assembly and torender him eligible to any office in said body (No. 1, par1, Rules of the National Assembly, adopted December 61935).21.ID.; EFFECT OF CONFIRMATION UNDER THE JONES LAW — Under the practice prevailing when the Jones Law wasstill in force, each House of the Philippine Legislature fixedthe time when protests against the election of any of itsmembers should be filed. This was expressly authorized bysection 18 of the Jones Law making each House the sole judge of the election, returns and qualifications of itmembers, as well as by a law (sec. 478, Act No. 3387)empowering each House respectively to prescribe byresolution the time and manner of filing contest theelection of members of said bodies. As a matter offormality, after the time fixed by its rules for the filing ofprotests had already expired, each House passed aresolution confirming or approving the returns of suchmembers against whose election no protest had beenfiled within the prescribed time. This was interpreted ascutting off the filing of further protests against the electionof those members not theretofore contested (Amistad vs

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Claravall [Isabela], Second Philippine Legislature, Record — First Period, p. 89; Urgello vs. Rama [Third District,Cebu], Sixth Philippine Legislature; Fetalvero vs. Festin[Romblon], Sixth Philippine Legislature, Record — FirstPeriod, pp. 637-640; Kintanar vs. Aldanese [Fourth District,Cebu], Sixth Philippine Legislature, Record — First Period,pp. 1121, 1122; Aguilar vs. Corpus [Masbate], EighthPhilippine Legislature, Record — First Period, vol. III, No. 56,pp. 892, 893). The Constitution has expressly repealedsection 18 of the Jones Law. Act No. 3387, section 478,

must be deemed to have been impliedly abrogatedalso, for the reason that with the power to determine allcontests relating to the election, returns andqualifications of members of the National Assembly, isinseparably linked the authority to prescribe regulationsfor the exercise of that power. There was thus no law norconstitutional provision which authorized the NationalAssembly to fix, as it is alleged to have fixed onDecember 3, 1935, the time for the filing of contestsagainst the election of its members. And what theNational Assembly could not do directly, it could not doby indirection through the medium of confirmation.

D E C I S I O N

LAUREL, J p:This is an original action instituted in this court by thepetitioner, Jose A. Angara, for the issuance of a writ ofprohibition to restrain and prohibit the ElectoralCommission, one of the respondents, from taking furthercognizance of the protest filed by Pedro Ynsua, anotherrespondent, against the election of said petitioner asmember of the National Assembly for the first assemblydistrict of the Province of Tayabas.The facts of this case as they appear in the petition andas admitted by the respondents are as follows:(1)That in the elections of September 17, 1935, thepetitioner, Jose A. Angara, and the respondents, Pedro

Ynsua, Miguel Castillo and Dionisio Mayor, werecandidates voted for the position of member of theNational Assembly for the first district of the Province ofTayabas;(2)That on October 7, 1935, the provincial board ofcanvassers, proclaimed the petitioner as member-electof the National Assembly for the said district, for havingreceived the most number of votes;(3)That on November 15, 1935, the petitioner took hisoath of office;(4)That on December 3, 1935, the National Assembly insession assembled, passed the following resolution:"[No. 8]"RESOLUTION CONFIRMANDO LAS ACTAS DE AQUELLOSDIPUTADOS CONTRAQUIENES NO SE HA PRESENTADOPROTESTA.

"Se resuelve: Que las actas de eleccion de los Diputadoscontra quienes no se hubiere presentado debidamenteuna protesta antes de la adopcion de la presenteresolucion sean, como por la presente, son aprobadas yconfirmadas."Adoptada, 3 de diciembre, 1935."(5)That on December 8, 1935, the herein respondentPedro Ynsua, filed before the Electoral Commission a"Motion of Protest" against the election of the herein

petitioner, Jose A. Angara, being the only protest filedafter the passage of Resolution No. 8 aforequoted, andpraying, among other-things, that said respondent bedeclared elected member of the National Assembly fothe first district of Tayabas, or that the election of saidposition be nullified;(6)That on December 9, 1935, the Electoral Commissionadopted a resolution, paragraph 6 of which provides:"6.La Comision no considerara ninguna protesta que nose haya presentado en o antes de este dia."

(7)That on December 20, 1935, the herein petitioner, JoseA. Angara, one of the respondents in the aforesaidprotest, filed before the Electoral Commission a "Motionto Dismiss the Protest", alleging (a) that Resolution No. 8 othe National Assembly was adopted in the legitimateexercise of its constitutional prerogative to prescribe theperiod during which protests against the election of itsmembers should be presented; (b) that the aforesaidresolution has for its object, and is the accepted formulafor, the limitation of said period; and (c) that the protestin question was filed out of the prescribed period;(8)That on December 27, 1935, the herein respondentPedro Ynsua, filed an "Answer to the Motion of Dismissalalleging that there is no legal or constitutional provision

barring the presentation of a protest against the electionof a member of the National Assembly, afterconfirmation;(9)That on December 31, 1935, the herein petitioner, JoseA. Angara, filed a "Reply" to the aforesaid "Answer to theMotion of Dismissal";(10)That the case being submitted for decision, theElectoral Commission promulgated a resolution onJanuary 23, 1936, denying herein petitioner's "Motion toDismiss the Protest."The application of the petitioner sets forth the followinggrounds for the issuance of the writ prayed for:(a)That the Constitution confers exclusive jurisdictionupon the Electoral Commission solely as regards the

merits of contested elections to the National Assembly;(b)That the Constitution excludes from said jurisdiction thepower to regulate the proceedings of said electioncontests, which power has been reserved to theLegislative Department of the Government or theNational Assembly;(c)That like the Supreme Court and other courts createdin pursuance of the Constitution, whose exclusive jurisdiction relates solely to deciding the merits ocontroversies submitted to hem for decision and tomatters involving their internal organization, the ElectoraCommission can regulate its proceedings only if theNational Assembly has not availed of its primary power toso regulate such proceedings;(d)That Resolution No. 8 of the National Assembly istherefore, valid and should be respected and obeyed;(e)That under paragraph 13 of section 1 of theOrdinance appended to the Constitution and paragraph6 of article 7 of the Tydings-McDuffie Law (No. 127 of the73rd Congress of the United States) as well as undersections 1 and 3 (should be sections 1 and 2) of article VIIof the Constitution, the Supreme Court has jurisdiction topass upon the fundamental question herein raisedbecause it involves an interpretation of the Constitutionof the Philippines.

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On February 25, 1936, the Solicitor-General appearedand filed an answer in behalf of the respondent ElectoralCommission interposing the following special defenses:(a)That the Electoral Commission has been created bythe Constitution as an instrumentality of the LegislativeDepartment invested with the jurisdiction to decide "allcontests relating to the election, returns, andqualifications of the members of the National Assembly";that in adopting its resolution of December 9, 1935, fixingthis date as the last day for the presentation of protests

against the election of any member of the NationalAssembly, it acted within its jurisdiction and in thelegitimate exercise of the implied powers granted it bythe Constitution to adopt the rules and regulationsessential to carry out the powers and functions conferredupon the same by the fundamental law; that in adoptingits resolution of January 23, 1936, overruling the motion ofthe petitioner to dismiss the election protest in question,and declaring itself with jurisdiction to take cognizance ofsaid protest, it acted in the legitimate exercise of its quasi- judicial functions as an instrumentality of the LegislativeDepartment of the Commonwealth Government, andhence said act is beyond the judicial cognizance orcontrol of the Supreme Court;

(b)That the resolution of the National Assembly ofDecember 3, 1935, confirming the election of themembers of the National Assembly against whom noprotest had thus far been filed, could not and did notdeprive the Electoral Commission of its jurisdiction to takecognizance of election protests filed within the time thatmight be set by its own rules;(c)That the Electoral Commission is a body invested withquasi- judicial functions, created by the Constitution asan instrumentality of the Legislative Department, and isnot an "inferior tribunal, or corporation, or board, orperson" within the purview of sections 226 and 516 of theCode of Civil Procedure, against which prohibition wouldlie.

The respondent Pedro Ynsua, in his turn, appeared andfiled an answer in his own behalf on March 2, 1936,setting forth following as his special defense:(a)That at the time of the approval of the rules of theElectoral Commission on December 9, 1935, there was noexisting Law fixing the period within which protests againstthe election of members of the National Assembly, theElectoral Commission was exercising a power impliedlyconferred upon it by the Constitution, by reason of itsquasi-judicial attributes;(b)That said respondent presented his motion of protestbefore the Electoral Commission on December 9, 1935,the last day fixed by paragraph 6 of the rules of the saidElectoral Commission;(c)That therefore the Electoral Commission acquired jurisdiction over the protest filed by said respondent andover the parties thereto, and the resolution of theElectoral Commission of January 23, 1936, denyingpetitioner's motion to dismiss said protest was an actwithin the jurisdiction of the said commission, and is notreviewable by means of a writ of prohibition;(d)That neither the law nor the Constitution requiresconfirmation by the National Assembly of the election ofits members, and that such confirmation does notoperate to limit the period within which protests should

be filed as to deprive the Electoral Commission of jurisdiction over protests filed subsequent thereto;(e)That the Electoral Commission is an independent entitycreated by the Constitution, endowed with quasi-judiciafunctions, whose decisions are final and unappeallable;(f)That the Electoral Commission, as a constitutionacreation, is not an inferior tribunal, corporation, board operson, within the terms of sections 226 and 516 of theCode of Civil Procedure; and that neither under theprovisions of sections 1 and 2 of Article II (should be article

VIII) of the Constitution and paragraph 13 of section 1 othe Ordinance appended thereto could it be subject inthe exercise of its quasi-judicial functions to a writ oprohibition from the Supreme Court;(g)That paragraph 6 of article 7 of the Tydings-McDuffieLaw (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, 1936Before it was submitted for decision, the petitioner prayedfor the issuance of a preliminary writ of injunction againstthe respondent Electoral Commission which petition wasdenied "without passing upon the merits of the case" byresolution 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 reducedto the following two principal propositions:1.Has the Supreme Court jurisdiction over the ElectoraCommission and the subject matter of the controversyupon the foregoing related facts, and in the affirmative,2.Has the said Electoral Commission acted without or inexcess of its jurisdiction in assuming to take cognizance othe protest filed against the election of the hereinpetitioner notwithstanding the previous confirmation osuch election by resolution of the National Assembly?We could perhaps dispose of this case by passing directlyupon the merits of the controversy. However, the questionof jurisdiction having been presented, we do not fee justified in evading the issue. Being a case primæ

impressionis, it would hardly be consistent with our senseof duty to overlook the broader aspect of the questionand leave it undecided. Neither would we be doing justice to the industry and vehemence of counsel werewe not to pass upon the question of jurisdiction squarelypresented to our consideration.The separation of powers is a fundamental principle in ousystem of government. It obtains not through expressprovision but by actual division in our Constitution. Eachdepartment of the government has exclusive cognizanceof matters within its jurisdiction, and is supreme within itsown sphere. But it does not follow from the fact that thethree powers are to be kept separate and distinct thatthe Constitution intended them to be absolutelyunrestrained and independent of each other. TheConstitution has provided for an elaborate system ochecks and balances to secure coordination in theworkings of the various departments of the governmentFor example, the Chief Executive under our Constitution isso far made a check on the legislative power that thisassent is required in the enactment of laws. This, howeveris subject to the further check that a bill may become alaw notwithstanding the refusal of the President toapprove it, by a vote of two-thirds or three-fourths, as thecase may be, of the National Assembly. The President hasalso the right to convene the Assembly in special session

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whenever he chooses. On the other hand, the NationalAssembly operates as a check on the Executive in thesense that its consent through its Commission onAppointments is necessary in the appointment of certainofficers; and the concurrence of a majority of all itsmembers is essential to the conclusion of treaties.Furthermore, in its power to determine what courts otherthan the Supreme Court shall be established, to definetheir jurisdiction and to appropriate funds for theirsupport, the National Assembly controls the judicial

department to a certain extent. The Assembly alsoexercises the judicial power of trying impeachments. Andthe judiciary in turn, with the Supreme Court as the finalarbiter, effectively checks the other departments in theexercise of its power to determine the law, and hence todeclare executive and legislative acts void if violative ofthe Constitution.

But in the main, the Constitution has blocked out withdeft strokes and in bold lines, allotment of power to theexecutive, the legislative and the judicial departments ofthe government. The overlapping and interlacing offunctions 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 socialdisquietude or political excitement, the great landmarksof the Constitution are apt to be forgotten or marred, ifnot entirely obliterated. In cases of conflict, the judicialdepartment is the only constitutional organ which can becalled upon to determine the proper allocation ofpowers between the several departments and amongthe integral or constituent units thereof.As any human production, our Constitution is of courselacking perfection and perfectibility, but as much as itwas within the power of our people, acting through theirdelegates to so provide, that instrument which is theexpression of their sovereignty however limited, hasestablished a republican government intended to

operate and function as a harmonious whole, under asystem of checks and balances, and subject to specificlimitations and restrictions provided in the said instrument.The Constitution sets forth in no uncertain language therestrictions and limitations upon governmental powersand agencies. If these restrictions and limitations aretranscended it would be inconceivable if the Constitutionhad not provided for a mechanism by which to direct thecourse of government along constitutional channels, forthen the distribution of powers would be mere verbiage,the bill of rights mere expressions of sentiment, and theprinciples of good government mere politicalapothegms. Certainly, the limitations and restrictionsembodied in our Constitution are real as they should bein any living constitution. In the United States where noexpress constitutional grant is found in their constitution,the possession of this moderating power of the courts, notto speak of its historical origin and development there,has been set at rest by popular acquiescence for aperiod of more than one and a half centuries. In ourcase, this moderating power is granted, if not expressly,by clear implication from section 2 of article VIII of ourConstitution.The Constitution is a definition of the powers ofgovernment. Who is to determine the nature, scope andextent of such powers? The Constitution itself has

provided for the instrumentality of the judiciary as therational way. And when the judiciary mediates toallocate constitutional boundaries, it does not assert anysuperiority over the other departments; it does not inreality nullify or invalidate an act of the legislature, buonly asserts the solemn and sacred obligation assigned toit by the Constitution to determine conflicting claims oauthority under the Constitution and to establish for theparties in an actual controversy the rights which thainstrument 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 theConstitution. Even then, this power of judicial review islimited to actual cases and controversies to be exercisedafter full opportunity of argument by the parties, andlimited further to the constitutional question raised or thevery lis mota presented. Any attempt at abstractioncould only lead to dialectics and barren legal questionand to sterile conclusions of wisdom, justice oexpediency of legislation. More than that, courts accordthe presumption of constitutionality to legislativeenactments, not only because the legislature is presumedto abide by the Constitution but also because the judiciary in the determination of actual cases and

controversies must reflect the wisdom and justice of thepeople as expressed through their representatives in theexecutive and legislative departments of thegovernment.But much as we might postulate on the internal checks opower provided in our Constitution, it ought not the less tobe remembered that, in the language of James Madisonthe system itself is not "the chief palladium oconstitutional liberty . . . the people who are authors othis blessing must also be its guardians . . . their eyes musbe ever ready to mark, their voice to pronounce . . aggression on the authority of their constitution." In thelast and ultimate analysis, then, must the success of ougovernment in the unfolding years to come be tested in

the crucible of Filipino minds and hearts than inconsultation rooms and court chambers.In the case at bar, the National Assembly has byresolution (No. 8) of December 3, 1935, confirmed theelection of the herein petitioner to the said body. On theother hand, the Electoral Commission has by resolutionadopted on December 9, 1935, fixed said date as the lasday for the filing of protests against the election, returnsand qualifications of members of the National Assemblynotwithstanding the previous confirmation made by theNational Assembly as aforesaid. If, as contended by thepetitioner, the resolution of the National Assembly has theeffect of cutting off the power of the ElectoraCommission to entertain protests against the electionreturns and qualifications of members of the NationaAssembly, submitted after December 3, 1935, then theresolution of the Electoral Commission of December 91935, is mere surplusage and had no effect. But, if ascontended by the respondents, the Electoral Commissionhas the sole power of regulating its proceedings to theexclusion of the National Assembly, then the resolution oDecember 9, 1935, by which the Electoral Commissionfixed said date as the last day for filing protests againstthe election, returns and qualifications of members of theNational Assembly, should be upheld.

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Here is then presented an actual controversy involving asit does a conflict of a grave constitutional naturebetween the National Assembly on the one hand, andthe Electoral Commission on the other. From the verynature of the republican government established in ourcountry in the light of American experience and of ourown, upon the judicial department is thrown the solemnand inescapable obligation of interpreting theConstitution and defining constitutional boundaries. TheElectoral Commission, as we shall have occasion to refer

hereafter, is a constitutional organ, created for a specificpurpose, namely to determine all contests relating to theelection, returns and qualifications of the members of theNational Assembly. Although the Electoral Commissionmay not be interfered with, when the while acting withinthe limits of its authority, it does not follow that it is beyondthe reach of the constitutional mechanism adopted bythe people and that it is not subject to constitutionalrestrictions. The Electoral Commission is not a separatedepartment of the government, and even if it were,conflicting claims of authority under the fundamental lawbetween departmental powers and agencies of thegovernment are necessarily determined by the judiciaryin justiciable and appropriate cases. Discarding the

English type and other European types of constitutionalgovernment, the framers of our Constitution adopted theAmerican type where the written constitution isinterpreted and given effect by the judicial department.In some countries which have declined to follow theAmerican example, provisions have been inserted in theirconstitutions prohibiting the courts from exercising thepower to interpret the fundamental law. This is taken as arecognition of what otherwise would be the rule that inthe absence of direct prohibition courts are bound toassume what is logically their function. For instance, theConstitution of Poland of 1921, expressly provides thatcourts shall have no power to examine the validity ofstatutes (art. 81, chap. IV). The former Austrian

Constitution contained a similar declaration. In countrieswhose constitutions are silent in this respect, courts haveassumed this power. This is true in Norway, Greece,Australia and South Africa. Whereas, in Czechoslovakia(arts. 2 and 3, Preliminary Law to Constitutional Charter ofthe Czechoslovak Republic, February 29, 1920) and Spain(arts. 121-123, Title IX, Constitution of the Republic of 1931)especial constitutional courts are established to passupon the validity of ordinary laws. In our case, the natureof the present controversy shows the necessity of a finalconstitutional arbiter to determine the conflict ofauthority between two agencies created by theConstitution. Were we to decline to take cognizance ofthe controversy, who will determine the conflict? And ifthe conflict were left undecided and undetermined,would not a void be thus created in our constitutionalsystem which may in the long run prove destructive of theentire framework? To ask these questions is to answerthem. Natura vacuum abhorret, so must we avoidexhaustion in our constitutional system. Upon principle,reason and authority, we are clearly of the opinion thatupon the admitted facts of the present case, this courthas jurisdiction over the Electoral Commission and thesubject matter of the present controversy for the purposeof determining the character, scope and extent of theconstitutional grant to the Electoral Commission as "the

sole judge of all contests relating to the election, returnsand qualifications of the members of the NationaAssembly."Having disposed of the question of jurisdiction, we shalnow proceed to pass upon the second proposition anddetermine whether the Electoral Commission has actedwithout or in excess of its jurisdiction in adopting itsresolution of December 9, 1935, and in assuming to takecognizance of the protest filed against the election of theherein petitioner notwithstanding the previous

confirmation thereof by the National Assembly onDecember 3, 1935. As able counsel for the petitioner haspointed out, the issue hinges on the interpretation osection 4 of Article VI of the Constitution which provides:

"SEC. 4.There shall be an Electoral Commission composedof three Justices of the Supreme Court designated by theChief Justice, and of six Members chosen by the NationaAssembly, three of whom shall be nominated by the partyhaving the largest number of votes, and three by theparty having the second largest number of votes hereinThe senior Justice in the Commission shall be its ChairmanThe Electoral Commission shall be the sole judge of alcontests relating to the election, returns and

qualifications of the members of the National Assembly.It is imperative, therefore, that we delve into the originand history of this constitutional provision and inquire intothe intention of its framers and the people who adoptedit so that we may properly appreciate its full meaningimport and significance.The original provision regarding this subject in the Act ofCongress of July 1, 1902 (sec. 7, par. 5) laying down therule that "the assembly shall be the judge of the electionsreturns, and qualifications of its members", was taken fromclause 1 of section 5, Article I of the Constitution of theUnited States providing that "Each House shall be theJudge of the Elections, Returns, and Qualifications of itsown Members, . . .." The Act of Congress of August 29

1916 (sec. 18, par. 1) modified this provision by theinsertion of the word "sole" as follows: "That the Senateand House of Representatives, respectively, shall be thesole judges of the elections, returns, and qualifications otheir elective members, . . ." apparently in order toemphasize the exclusive character of the jurisdictionconferred upon each House of the Legislature over theparticular cases therein specified. This court has hadoccasion to characterize this grant of power to thePhilippine Senate and House of Representativesrespectively, as "full, clear and complete" (Veloso vsBoards of Canvassers of Leyte and Samar [1919], 39 Phil.886, 888.).The first step towards the creation of an independentribunal for the purpose of deciding contested electionsto the legislature was taken by the sub-committee of fiveappointed by the Committee on ConstitutionaGuarantees of the Constitutional Convention, which subcommittee submitted a report on August 30, 1934recommending the creation of a Tribunal ofConstitutional Security empowered to hear protests notonly against the election of members of the legislaturebut also against the election of executive officers fowhose election the vote of the whole nation is requiredas well as to initiate impeachment proceedings againstspecified executive and judicial officers. For the purpose

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of hearing legislative protests, the tribunal was to becomposed of three justices designated by the SupremeCourt and six members of the house of the legislature towhich the contest corresponds, three members to bedesignated by the majority party and three by theminority, to be presided over by the Senior Justice unlessthe Chief Justice is also a member in which case thelatter shall preside. The foregoing proposal was submittedby the Committee on Constitutional Guarantees to theConvention on September 15, 1934, with slight

modifications consisting in the reduction of the legislativerepresentation to four members, that is, two senators tobe designated one each from the two major parties inthe Senate and two representatives to be designatedone each from the two major parties in the House ofRepresentatives, and in awarding representation to theexecutive department in the persons of tworepresentatives to be designated by the President.Meanwhile, the Committee on Legislative Power was alsopreparing its report. As submitted to the Convention onSeptember 24, 1934, subsection 5, section 5, of theproposed Article on the Legislative Department, reads asfollows:"The elections, returns and qualifications of the members

of either House and all cases contesting the election ofany of their members shall be judged by an ElectoralCommission, constituted, as to each House, by threemembers elected by the members of the party havingthe largest number of votes therein, three elected by themembers of the party having the second largest numberof votes, and as to its Chairman, one Justice of theSupreme Court designated by the Chief Justice."The idea of creating a Tribunal of Constitutional Securitywith comprehensive jurisdiction as proposed by theCommittee on Constitutional Guarantees which wasprobably inspired by the Spanish plan (art. 121,Constitution of the Spanish Republic of 1931), was soonabandoned in favor of the proposition of the Committee

on Legislative Power to create a similar body withreduced powers and with specific and limited jurisdiction,to be designated as an Electoral Commission. TheSponsorship Committee modified the proposal of theCommittee on Legislative Power with respect to thecomposition of the Electoral Commission and madefurther changes in phraseology to suit the project ofadopting a unicameral instead of a bicamerallegislature. The draft as finally submitted to theConvention on October 26, 1934, reads as follows:"(6)The elections, returns and qualifications of theMembers of the National Assembly and all casescontesting the election of any of its Members shall be judged by an Electoral Commission, composed of threemembers elected by the party having the largest numberof votes in the National Assembly, three elected by themembers of the party having the second largest numberof votes, and three justices of the Supreme Courtdesignated by the Chief Justice, the Commission to bepresided over by one of said justices."During the discussion of the amendment introduced byDelegates Labrador, Abordo, and others, proposing tostrike out the whole subsection of the foregoing draft andinserting in lieu thereof the following: "The NationalAssembly shall be the sole and exclusive judge of theelections, returns, and qualifications of the Members", the

following illuminating remarks were made on the floor othe Convention in its session of December 4, 1934, as tothe scope of the said draft: xxx xxx xxx"Mr. VENTURA.Mr. President, we have a doubt here as tothe scope of the meaning of the first four lines, paragraph6, page 11 of the draft, reading: 'The elections, returnsand qualifications of the Members of the NationaAssembly and all cases contesting the election of any ofits Members shall be judged by an Electoral Commission,

. ..' I should like to ask from the gentleman from Capizwhether the election and qualification of the membewhose election is not contested shall also be judged bythe Electoral Commission."Mr. ROXAS.If there is no question about the election ofthe members, there is nothing to be judged; that is whythe word 'judge' is used to indicate a controversy. If thereis no question about the election of a member, there isnothing to be submitted to the Electoral Commission andthere is nothing to be determined."Mr. VENTURA.But does that carry the idea also that theElectoral Commission shall confirm also the election ofthose who election is not contested?."Mr. ROXAS.There is no need of confirmation. As the

gentleman knows, the action of the House ofRepresentatives confirming the election of its members is just a matter of the rules of the assembly. It is noconstitutional. It is not necessary. After a man files hiscredentials that be has been elected, that is sufficientunless his election is contested."Mr. VENTURA.But I do not believe that that is sufficient, aswe have observed that for purposes of the auditor, in thematter of election of a member to a legislative bodybecause he will not authorize his pay."Mr. ROXAS.Well, what is the case with regards to themunicipal president who is elected? What happens withregards to the councilors of a municipality? Doesanybody confirm their election? The municipal counc

does this: it makes a canvass and proclaims-in this casethe municipal council proclaims who has been electedand it ends there, unless there is a contest. It is the samecase; there is no need on the part of the ElectoraCommission unless there is a contest. The first clause refersto the case referred to by the gentleman from Cavitewhere one person tries to be elected in place of anotherwho was declared elected. For example, in a case whenthe residence of the man who has been elected is inquestion, or in case the citizenship of the man who hasbeen elected is in question."However, if the assembly desires to annul the power ofthe commission, it may do so by certain maneuvers uponits first meeting when the returns are submitted to theassembly. The purpose is to give to the ElectoraCommission all the powers exercised by the assemblyreferring to the elections, returns and qualifications of themembers. 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 MrDelegate."Mr. CINCO.Mr. President, I have a similar question as thatpropounded by the gentleman from Ilocos Norte when arose a while ago. However I want to ask more questionsfrom the delegate from Capiz. This paragraph 6 on page

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11 of the draft cites cases contesting the election asseparate from the first part of the section which refers toelections, returns and qualifications."Mr. ROXAS.That is merely for the sake of clarity. In factthe cases of contested elections are already included inthe phrase 'the elections, returns and qualifications.' Thisphrase 'and contested elections' was inserted merely forthe sake of clarity."Mr. CINCO.Under this paragraph, may not the ElectoralCommission, at its own instance, refuse to confirm the

election 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 Capizbelieve that unless this power is granted to the assembly,the assembly on its own motion does not have the right tocontest the election and qualification of its members?"Mr. ROXAS.I have no doubt but that the gentleman isright. If this draft is retained as it is, even if two-thirds of theassembly believe that a member has not thequalifications provided by law, they cannot remove him

for that reason.Mr. LABRADOR.So that the right to remove shall only beretained by the Electoral Commission."Mr. ROXAS.By the assembly for misconduct."Mr. LABRADOR.I mean with respect to the qualification ofthe members."Mr. ROXAS.Yes, by the Electoral Commission."Mr. LABRADOR.So that under this draft, no member ofthe assembly has the right to question the eligibility of itsmembers?."Mr. ROXAS.Before a member can question the eligibility,he must go to the Electoral Commission and make thequestion before the Electoral Commission."Mr. LABRADOR.So that the Electoral Commission shall

decide whether the election is contested or notcontested."Mr. ROXAS.Yes, sir: that is the purpose."Mr. PELAYO.Mr. President, I would like to be informed ifthe Electoral Commission has power and authority to passupon the qualifications of the members of the NationalAssembly 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 draftreading "The election, returns and qualifications of themembers of the National Assembly and" was eliminatedby the Sponsorship Committee in response to anamendment introduced by Delegates Francisco,Ventura, Vinzons, Rafols, Lim, Mumar and others. Inexplaining the difference between the original draft andthe draft as amended, Delegate Roxas speaking for theSponsorship Committee said: xxx xxx xxx"Sr. ROXAS.La diferencia, señor Presidente, consistesolamente en obviar la objecion apuntada por variosDelegados al efecto to que la primera clausula del draftque dice: 'The election, returns and qualifications of themembers of the National Assembly' parece que da a laComision Electoral la facultad de determinar también laeleccion de los miembros que no han sido protestados y

para obviar esa dificultad, creemos que la enmiendatiene razon en ese sentido, si enmendamos el draft, detal modo que se lea como sigue: 'All cases contesting theelection', de modo que los jueces de la ComisionElectoral se limitaran solamente a los casos en que hayahabido protesta contra las actas." Before theamendment of Delegate Labrador was voted upon thefollowing interpellation also took place:"El Sr. CONEJERO.Antes de votarse la enmienda, quisierapedir informacion del Subcomité de Siete.

"El Sr. PRESIDENTE.¿Qué dice el Comité?."El Sr. ROXAS.Con mucho gusto."El Sr. CONEJERO.Tal como esta el draft, dando tresmiembros a la mayoria, y otros tres a la minoria y tres a laCorte Suprema, ¿no cre Su Señoria que esto equivalepracticamente a dejar el asunto a los miembros deTribunal Supremo?."El Sr. ROXAS.Si y no. Cremos que si el tribunal o laComision esta constituido en esa forma, tanto losmiembros de la mayoria como los de la minoria asi comolos miembros de la Corte Suprema consideraran lacuestion sobre la base de sus méritos, sabiendo que epartidismo 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 comolos de la minoria prescindieran del partidismo?."El Sr. ROXAS.Creo que si, porque el partidismo no lesdaria el triunfo." xxx xxx xxxThe amendment introduced by Delegates LabradorAbordo and others seeking to restore the power todecide contests relating to the election, returns andqualifications of members of the National Assembly to theNational Assembly itself, was defeated by a vote ofninety-eight (98) against fifty-six (56).In the same session of December 4, 1934, Delegate Cruz(C.) sought to amend the draft by reducing therepresentation of the minority party and the Supreme

Court in the Electoral Commission to two members eachso as to accord more representation to the majorityparty. The Convention rejected this amendment by avote of seventy-six (76) against forty-six (46), thusmaintaining the non-partisan character of thecommission.As approved on January 31, 1935, the draft was made toread as follows:"(6)All cases contesting the elections, returns andqualifications of the Members of the National Assemblyshall be judged by an Electoral Commission, composedof three members elected by the party having the largesnumber of votes in the National Assembly, three electedby the members of the party having the second largestnumber of votes, and three justices of the Supreme Courtdesignated by the Chief Justice, the Commission to bepresided over by one of said justices."The Style Committee to which the draft was submittedrevised it as follows:"SEC. 4.There shall be an Electoral Commission composedof three Justices of the Supreme Court designated by theChief Justice, and of six Members chosen by the NationaAssembly, three of whom shall be nominated by the partyhaving the largest number of votes, and three by theparty having the second largest number of votes thereinThe senior Justice in the Commission shall be its chairman

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The Electoral Commission shall be the sole judge of theelection, returns, and qualifications of the Members of theNational Assembly."When the foregoing draft was submitted for approval onFebruary 8, 1935, the Style Committee, through PresidentRecto, to effectuate the original intention of theConvention, agreed to insert the phrase "All contestsrelating to" between the phrase "judge of" and the words"the election", which was accordingly accepted by theConvention.

The transfer of the power of determining the election,returns and qualifications of the members of thelegislature long lodged in the legislative body, to anindependent, impartial and non-partisan tribunal, is by nomeans 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 vividaccount of the "scandalously notorious" canvassing ofvotes by political parties in the disposition of contests bythe House of Commons in the following passages whichare partly quoted by the petitioner in his printedmemorandum of March 14, 1936:"153.From the time when the commons established theirright 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 determinationof controverted elections, and rights of membership. Oneof the standing committee appointed at thecommencement of each session, was denominated thecommittee of privileges and elections, whose functionwas to hear and investigate all questions of thisdescription which might be referred to them, and toreport their proceedings, with their opinion thereupon, tothe house, from time to time. When an election petitionwas referred to this committee, they heard the partiesand their witnesses and other evidence, and made areport of all the evidence, together with their opinionthereupon, 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 thebar of the house itself. When this court was adopted, thecase was heard and decided by the house, insubstantially the same manner as by a committee. Thecommittee of privileges and elections although a selectcommittee was usually what is called an open one; thatis to say, in order to constitute the committee, a quorumof the members named was required to be present, butall the members of the house were at liberty to attendthe committee and vote if they pleased."154.With the growth of political parties in parliamentquestions relating to the right of membership graduallyassumed a political character; so that for many yearsprevious to the year 1770, controverted elections hadbeen tried and determined by the house of commons, asmere party questions, upon which the strength ofcontending factions might be tested. Thus, for example,in 1741, Sir Robert Walpole, after repeated attacks uponhis government, resigned his office in consequence of anadverse vote upon the Chippenham election. Mr. Hatsellremarks, of the trial of election, cases, as conductedunder this system, that 'Every principle of decency and justice were notoriously and openly prostituted, fromwhence the younger part of the house were insensibly,but too successfully, induced to adopt the same

licentious conduct in more serious matters, and inquestions of higher importance to the public welfare.' MrGeorge Grenville, a distinguished member of the houseof commons, undertook to propose a remedy for the eviland, on the 7th of March 1770, obtained the unanimousleave of the house to bring in a bill, 'to regulate the trial ocontroverted elections, or returns of members to serve inparliament.' In his speech to explain his plan, on themotion for leave, Mr. Grenville alluded to the existingpractice in the following terms: 'Instead of trusting to the

merits of their respective causes, the principadependence of both parties is their private interesamong us; and it is scandalously notorious that we are anearnestly canvassed to attend in favor of the oppositesides, as if we were wholly self-elective, and not bound toact by the principles of justice, but by the discretionaryimpulse of our own inclinations; nay, it is well known, thatin every contested election, many members of this housewho are ultimately to judge in a kind of judicial capacitybetween the competitors, enlist themselves as parties inthe contention, and take upon themselves the partiamanagement of the very business, upon which theyshould determine with the strictest impartiality.'

"155.It was to put an end to the practices thus describedthat Mr. Grenville brought in a bill which met with theapprobation of both houses, and received the royaassent on the 12th of April, 1770. This was the celebratedlaw since known by the name of the Grenville Act; owhich Mr. Hatsell declares, that it 'was one of the noblestworks, for the honor of the house of commons, and thesecurity of the constitution, that was ever devised by anyminister or statesman.' It is probable, that the magnitudeof the evil, or the apparent success of the remedy, mayhave led many of the contemporaries of the measure tothe information of a judgment, which was notacquiesced in by some of the leading statesmen of theday, and has not been entirely confirmed by subsequent

experience. The bill was objected to by Lord North, MrDe Grey, afterwards chief justice of the common pleasMr. Ellis, Mr. Dyson, who had been clerk of the house, andMr. Charles James Fox, chiefly on the ground, that theintroduction of the new system was an essential alterationof the constitution of parliament, and a total abrogationof one of the most important rights and jurisdictions of thehouse of commons."As early as 1868, the House of Commons in Englandsolved the problem of insuring the non-partisansettlement of the controverted elections of its membersby abdicating its prerogative to two judges of the King'sBench of the High Court of Justice selected from a rota inaccordance with rules of court made for the purposeHaving proved successful, the practice has becomeimbedded in English jurisprudence (ParliamentaryElections Act, 1868 [31 & 32 Vict. c. 125] as amended byParliamentary Elections and Corrupt Practices Act, 1879[42 & 43 Vict. c. 75], s. 2; Corrupt and Illegal PracticesPrevention Act, 1883 [46 & 47 Vict. c. 51], s. 70; ExpiringLaws Continuance Act, 1911 [1 & 2 Geo. 5, c. 22]; Laws oEngland, vol. XII, p. 408, vol. XXI, p. 787). In the Dominionof Canada, election contests which were originally heardby the Committee of the House of Commons, are since1922 tried in the courts. Likewise, in the Commonwealth oAustralia, election contests which were originally

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determined by each house, are since 1922 tried in theHigh Court. In Hungary, the organic law provides that allprotests against the election of members of the UpperHouse of the Diet are to be resolved by the SupremeAdministrative 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 contestedelections to the Diet or National Assembly in the SupremeCourt. 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 ofFebruary 29, 1920 (art. 19) and the Constitution of theGrecian Republic of June 2, 1927 (art. 43), all provide foran Electoral Commission.The creation of an Electoral Commission whosemembership is recruited both from the legislature and the judiciary is by no means unknown in the United States. Inthe presidential elections of 1876 there was a dispute asto the number of electoral votes received by each of thetwo opposing candidates. As the Constitution made noadequate provision for such a contingency, Congresspassed a law on January 29, 1877 (United States Statutesat Large, vol. 19, chap. 37, pp. 227-229), creating a

special Electoral Commission composed of five memberselected by the Senate, five members elected by theHouse of Representatives, and five justices of theSupreme Court, the fifth justice to be selected by the fourdesignated in the Act. The decision of the commissionwas to be binding unless rejected by the two housesvoting separately. Although there is not much of a morallesson to be derived from the experience of America inthis regard, judging from the observations of Justice Field,who was a member of that body on the part of theSupreme Court (Countryman, the Supreme Court of theUnited States and its Appellate Power under theConstitution [Albany, 1913]-Relentless Partisanship ofElectoral Commission, p. 25 et seq.), the experiment has

at least abiding historical interest.The members of the Constitutional Convention whoframed our fundamental law were in their majority menmature in years and experience. To be sure, many ofthem were familiar with the history and politicaldevelopment of other countries of the world. When,therefore, they deemed it wise to create an ElectoralCommission as a constitutional organ and invested it withthe exclusive function of passing upon and determiningthe election, returns and qualifications of the members ofthe National Assembly, they must have done so not onlyin the light of their own experience but also having inview the experience of other enlightened peoples of theworld. The creation of the Electoral Commission wasdesigned to remedy certain evils of which the framers ofour Constitution were cognizant. Notwithstanding thevigorous opposition of some members of the Conventionto its creation, the plan, as hereinabove stated, wasapproved by that body by a vote of 98 against 58. Allthat can be said now is that, upon the approval of theConstitution, the creation of the Electoral Commission isthe expression of the wisdom and "ultimate justice of thepeople". (Abraham Lincoln, First Inaugural Address,March 4, 1861.).From the deliberations of our Constitutional Convention itis evident that the purpose was to transfer in its totality all

the powers previously exercised by the legislature inmatters pertaining to contested elections of its membersto an independent and impartial tribunal. It was not somuch the knowledge and appreciation of contemporaryconstitutional precedents, however, as the long-felt needof determining legislative contests devoid of partisanconsiderations which prompted the people, actingthrough their delegates to the Convention, to provide fothis body known as the Electoral Commission. With thisend in view, a composite body in which both the majority

and minority parties are equally represented to off-separtisan influence in its deliberations was created, andfurther endowed with judicial temper by including in itsmembership three justices of the Supreme Court.The Electoral Commission is a constitutional creationinvested with the necessary authority in the performanceand execution of the limited and specific functionassigned to it by the Constitution. Although it is not apower in our tripartite scheme of government, it is, to alintents and purposes, when acting within the limits of itsauthority, an independent organ. It is, to be sure, closer tothe legislative department than to any other. The locationof the provision (section 4) creating the ElectoraCommission under Article VI entitled "Legislative

Department" of our Constitution is very indicative. Itscomposition is also significant in that it is constituted by amajority of members of the legislature. But it is a bodyseparate from and independent of the legislature.The grant of power to the Electoral Commission to judgeall contests relating to the election, returns andqualifications of members of the National Assembly, isintended to be as complete and unimpaired as if it hadremained originally in the legislature. The express lodgingof that power in the Electoral Commission is an implieddenial of the exercise of that power by the NationaAssembly. And this is as effective a restriction upon thelegislative power as an express prohibition in theConstitution (Ex parte Lewis, 45 Tex. Crim. Rep., 1; State vs

Whisman, 36 S. D., 260; L. R. A., 1917B, 1). If we concedethe power claimed in behalf of the National Assemblythat said body may regulate the proceedings of theElectoral Commission and cut off the power of thecommission to lay down the period within which protestsshould be filed, the grant of power to the commissionwould be ineffective. The Electoral Commission in suchcase would be invested with the power to determinecontested cases involving the election, returns andqualifications of the members of the National Assemblybut subject at all times to the regulative power of theNational Assembly. Not only would the purpose of theframers of our Constitution of totally transferring thisauthority from the legislative body be frustrated, but adual authority would be created with the resultaninevitable clash of powers from time to time. A sadspectacle would then be presented of the ElectoraCommission retaining the bare authority of takingcognizance of cases referred to, but in reality without thenecessary means to render that authority effectivewhenever and wherever the National Assembly haschosen to act, a situation worse than that intended to beremedied by the framers of our Constitution. The poweto regulate on the part of the National Assembly inprocedural matters will inevitably lead to the ultimatecontrol by the Assembly of the entire proceedings of the

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Electoral Commission, and, by indirection, to the entireabrogation of the constitutional grant. It is obvious thatthis result should not be permitted.We are not insensible to the impassioned argument of thelearned counsel for the petitioner regarding theimportance and necessity of respecting the dignity andindependence of the National Assembly as a coordinatedepartment of the government and of according validityto its acts, to avoid what he characterized would bepractically an unlimited power of the commission in the

admission of protests against members of the NationalAssembly. But as we have pointed out hereinabove, thecreation of the Electoral Commission carried with it exnecesitate rei the power regulative in character to limitthe time within which protests intrusted to its cognizanceshould be filed. It is a settled rule of construction thatwhere a general power is conferred or duty enjoined,every particular power necessary for the exercise of theone or the performance of the other is also conferred(Cooley, Constitutional Limitations, eighth ed., vol. I, pp.138, 139). In the absence of any further constitutionalprovision relating to the procedure to be followed in filingprotests before the Electoral Commission, therefore, theincidental power to promulgate such rules necessary for

the proper exercise of its exclusive power to judge allcontests relating to the election, returns andqualifications of members of the National Assembly, mustbe deemed by necessary implication to have beenlodged also in the Electoral Commission.

It is, indeed, possible that, as suggested by counsel forthe petitioner, the Electoral Commission may abuse itsregulative authority by admitting protests beyond anyreasonable time, to the disturbance of the tranquillity andpeace of mind of the members of the National Assembly.But the possibility of abuse is not an argument against theconcession of the power as there is no power that is notsusceptible of abuse. In the second place, if any mistake

has been committed in the creation of an ElectoralCommission and in investing it with exclusive jurisdiction inall cases relating to the election, returns, andqualifications of members of the National Assembly, theremedy is political, not judicial, and must be soughtthrough the ordinary processes of democracy. All thepossible abuses of the government are not intended tobe corrected by the judiciary. We believe, however, thatthe people in creating the Electoral Commission reposedas much confidence in this body in the exclusivedetermination of the specified cases assigned to it, asthey have given to the Supreme Court in the propercases entrusted to it for decision. All the agencies of thegovernment were designed by the Constitution toachieve specific purposes, and each constitutional organworking within its own particular sphere of discretionaryaction must be deemed to be animated with the samezealand honesty in accomplishing the great ends forwhich they were created by the sovereign will. That theactuations of these constitutional agencies might leavemuch to be desired in given instances, is inherent in theimperfections of human institutions. In the third place,from the fact that the Electoral Commission may not beinterfered with in the exercise of its legitimate power, itdoes not follow that its acts, however illegal or

unconstitutional, may not be challenged in appropriatecases over which the courts may exercise jurisdiction.But independently of the legal and constitutional aspectsof the present case, there are considerations of equitablecharacter that should not be overlooked in theappreciation of the intrinsic merits of the controversy. TheCommonwealth Government was inaugurated onNovember 15, 1935, on which date the Constitutionexcept as to the provisions mentioned in section 6 oArticle XV thereof, went into effect. The new Nationa

Assembly convened on November 25th of that year, andthe resolution confirming the election of the petitionerJose A. Angara, was approved by that body onDecember 3, 11935. The protest by the herein respondentPedro Ynsua against the election of the petitioner wasfiled on December 9 of the same year. The pleadings donot show when the Electoral Commission was formallyorganized but it does appear that on December 9, 1935the Electoral Commission met for the first time andapproved a resolution fixing said date as the last day forthe filing of election protests. When, therefore, theNational Assembly passed its resolution of December 31935, confirming the election of the petitioner to theNational Assembly, the Electoral Commission had not ye

met; neither does it appear that said body has actuallybeen organized. As a matter of fact, according tocertified copies of official records on file in the archivesdivision of the National Assembly attached to the recordof this case upon the petition of the petitioner, the three justices of the Supreme Court and the six members of theNational Assembly constituting the Electoral Commissionwere respectively designated only on December 4 and 61935. If Resolution No. 8 of the National Assemblyconfirming non-protested elections of members of theNational Assembly had the effect of limiting or tolling thetime for the presentation of protests, the result would bethat the National Assembly — on the hypothesis that it stiretained the incidental power of regulation in such cases

— had already barred the presentation of protests beforethe Electoral Commission had had time to organize itselfand deliberate on the mode and method to be followedin a matter entrusted to is exclusive jurisdiction by theConstitution. This result was not and could not have beencontemplated,and should be avoided.From another angle, Resolution No. 8 of the NationaAssembly confirming the election of members againswhom no protests had been filed at the time of itspassage on December 3, 1935, can not be construed asa limitation upon the time for the initiation of electioncontests. While there might have been good reason fothe legislative practice of confirmation of the election ofmembers of the legislature at the time when the power todecide election contests was still lodged in thelegislature, confirmation alone by the legislature cannobe construed as depriving the Electoral Commission othe authority incidental to its constitutional power to be"the sole judge of all contests relating to the electionreturns, and qualifications of the members of the NationaAssembly", to fix the time for the filing of said electionprotests. Confirmation by the National Assembly of thereturns of its members against whose election no protestshave been filed is, to all legal purposes, unnecessary. Ascontended by the Electoral Commission in its resolution oJanuary 23, 1936, overruling the motion of the herein

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petitioner to dismiss the protest filed by the respondentPedro Ynsua, confirmation of the election of any memberis not required by the Constitution before he candischarge his duties as such member. As a matter of fact,certification by the proper provincial board of canvassersis sufficient to entitle a member-elect to a seat in theNational Assembly and to render him eligible to anyoffice in said body (No. 1, par. 1, Rules of the NationalAssembly, 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 amember-elect to take his seat. The return of the properelection officers in sufficient, and the member-electpresenting such return begins to enjoy the privileges of amember 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 inorder only in cases of contested elections where thedecision is adverse to the claims of the protestant. InEngland, the judges' decision or report in controvertedelections is certified to the Speaker of the House ofCommons, and the House, upon being informed of suchcertificate or report by the Speaker, is required to enter

the same upon the Journals, and to give such directionsfor confirming or altering the return, or for the issue of awrit for a new election, or for carrying into execution thedetermination as circumstances may require (31 & 32Vict., c. 125, sec. 13). In the United States, it is believed,the order or decision of the particular house itself isgenerally regarded as sufficient, without any actualalteration or amendment of the return (Cushing, Law andPractice of Legislative Assemblies, 9th ed., sec. 166).Under the practice prevailing when the Jones Law wasstill force, each house of the Philippine Legislature fixedthe time when protests against the election of any of itsmembers should be filed. This was expressly authorized bysection 18 of the Jones Law making each house the sole

judge of the election, returns and qualifications of itsmembers, as well as by a law (sec. 478, Act No. 3387)empowering each house to respectively prescribe byresolution the time and manner of filing contest in theelection of members of said bodies. As a matter offormality, after the time fixed by its rules for the filing ofprotests had already expired, each house passed aresolution confirming or approving the returns of suchmembers against whose election no protests had beenfiled within the prescribed time. This was interpreted ascutting off the filing of further protests against the electionof those members not theretofore contested (Amistad vs.Claravall [Isabela], Second Philippine Legislature, Record-First Period, p. 89; Urgello 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], SixthPhilippine Legislature, Record-First Period, pp. 1121, 1122;Aguilar vs. Corpus [Masbate], Eighth PhilippineLegislature, Record-First Period, vol. III, No. 56, pp. 892,893). The Constitution has repealed section 18 of theJones Law. Act No. 3387, section 478, must be deemed tohave been impliedly abrogated also, for the reason thatwith the power to determine all contests relating to theelection, returns and qualifications of members of theNational Assembly, is inseparably linked the authority to

prescribe regulations for the exercise of that power. Therewas thus no law nor constitutional provision whichauthorized the National Assembly to fix, as it is alleged tohave fixed on December 3, 1935, the time for the filing ofcontests against the election of its members. And whatthe National Assembly could not do directly, it could notdo by indirection through the medium of confirmation.Summarizing, we conclude:(a)That the government established by the Constitutionfollows fundamentally the theory of separation of powers

into the legislative, the executive and the judicial.(b)That the system of checks and balances and theoverlapping of functions and duties often makes difficulthe delimitation of the powers granted.(c)That in cases of conflict between the severadepartments and among the agencies thereof, the judiciary, with the Supreme Court as the final arbiter, isthe only constitutional mechanism devised finally toresolve the conflict and allocate constitutionaboundaries.(d)That judicial supremacy is but the power of judiciareview in actual and appropriate cases andcontroversies, and is the power and duty to see that noone branch or agency of the government transcends the

Constitution, which is the source of all authority.

(e)That the Electoral Commission is an independenconstitutional creation with specific powers and functionsto execute and perform, closer for purposes oclassification to the legislative than to any of the othertwo departments of the government.(f)That the Electoral Commission is the sole judge of alcontests relating to the election, returns andqualifications of members of the National Assembly.(g)That under the organic law prevailing before thepresent Constitution went into effect, each house of thelegislature was respectively the sole judge of theelections, returns, and qualifications of their elective

members.(h)That the present Constitution has transferred all thepowers previously exercised by the legislature withrespect to contests relating to the election, returns andqualifications of its members, to the Electoral Commission(i)That such transfer of power from the legislature to theElectoral Commission was full, clear and complete, andcarried with it ex necesitate rei the implied power intealia to prescribe the rules and regulations as to the timeand manner of filing protests.(j)That the avowed purpose in creating the ElectoraCommission was to have an independent constitutionaorgan pass upon all contests relating to the electionreturns and qualifications of members of the NationaAssembly, devoid of partisan influence or considerationwhich object would be frustrated if the National Assemblywere to retain the power to prescribe rules andregulations regarding the manner of conducting saidcontests.(k)That section 4 of article VI of the Constitution repealednot only section 18 of the Jones Law making each houseof the Philippine Legislature respectively the sole judge othe elections, returns and qualifications of its electivemembers, but also section 478 of Act No. 3387empowering each house to prescribe by resolution thetime and manner of filing contests against the election of

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its members, the time and manner of notifying theadverse 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 theelection of any member, irrespective of whether hiselection is contested or not, is not essential before suchmember-elect may discharge the duties and enjoy theprivileges of a member of the National Assembly.(m)That confirmation by the National Assembly of theelection of any member against whom no protest had

been filed prior to said confirmation, does not andcannot deprive the Electoral Commission of its incidentalpower to prescribe the time within which protest againstthe election of any member of the National Assemblyshould be filed.We hold, therefore, that the Electoral Commission wasacting within the legitimate exercise of its constitutionalprerogative in assuming to take cognizance of theprotest filed by the respondent Pedro Ynsua against theelection of the herein petitioner Jose A. Angara, and thatthe resolution of the National Assembly of December 3,1935 can not in any manner toll the time for filing protestsagainst the election, returns and qualifications ofmembers of the National Assembly, nor prevent the filing

of a protest within such time as the rules of the ElectoralCommission might prescribe.In view of the conclusion reached by us relative to thecharacter of the Electoral Commission as a constitutionalcreation and as to the scope and extent of its authorityunder the facts of the present controversy, we deem itunnecessary to determine whether the ElectoralCommission is an inferior tribunal, corporation, board orperson within the purview of sections 226 and 516 of theCode of Civil Procedure.The petition for a writ of prohibition against the ElectoralCommission is hereby denied, with costs against thepetitioner. So ordered.Avanceña, C.J., Diaz, Concepcion and Horrilleno, JJ.,

concur.

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.Solicitor General Felix Bautista Angelo, Lorenzo Sumulong,

Lorenzo Tañada, and Vicente J. Francisco, forrespondents.

SYLLABUS

1.LAW; POWER OF EITHER HOUSE OF CONGRESS TOCONDUCT AN INQUIRY. – The power of inquiry, withprocess to enforce it, is an essential and appropriateauxiliary to the legislative function.2.ID.; RANGE OF LEGISLATIVE INQUIRY. – The Congress ofthe Philippines has a wider range of legislative field thaneither the Congress of the United States or a StateLegislature, and the field of inquiry into which it may enteris also wider. It is difficult to define any limits by which thesubject matter of its inquiry can be bounded. Sufficed it

to say that it must be coextensive with the range oflegislative power.3.ID.; POWER OF HOUSE OF CONGRESS TO PUNISH AWITNESS FOR CONTEMPT. – No person can be punished focontumacy as a witness before either House unless histestimony is required in a matter into which that Househas jurisdiction to inquire.4.ID.; ID. – Once an inquiry is admitted or established tobe within the jurisdiction of a legislative body to makethe investigating committee has the power to require a

witness to answer any question pertinent to the subject ofthe inquiry, subject of the course to his constitutionaprivilege against self-incrimination.5.ID.; ID.; MATERIALITY OF THE QUESTION. – The materialityof a question that it may be propounded to a witness isdetermined by its direct relation to the subject of theinquiry and not by its indirect relation to any proposed opossible legislation.6.ID.; ID.; POWER OF THE COURT TO PASS UPONMATERIALITY. – Where the immateriality of the informationsought by the legislative body from a witness is reliedupon to contest its jurisdiction, the Court is in duty boundto pass upon the contention. Although the legislativebody has the power to make the inquiry, the Court is

empowered to correct a clear abuse of discretion in theexercise of that power .7.ID.; LACK OF POWER OF THE COURT TO INTERFERE WITHLEGISLATIVE ACTION. – Since the Court has no power todetermine what legislation to approve or not to approveit cannot say that the information sought from a witnesswhich is material to the subject of the legislative inquiry isimmaterial to any proposed or possible legislation. It is nowithin the province of the Court to determine or imaginewhat legislative measures Congress may take after thecompletion of the legislative investigation.8.ID.; AUTHORITY OF EITHER HOUSE OF CONGRESS TOCOMMIT A WITNESS FOR CONTEMPT BEYOND PERIOD OFLEGISLATIVE SESSION. – There is no sound reason to limi

the power of the legislative body to punish for contemptto the end of every session and not to the end of the lastsession terminating the existence of that body. While theexistence of the House of Representatives is limited to fouyears, that of the Senate is not so limited. The Senate is acontinuing body which does not ceases to exist upon theperiodical dissolution of the Congress or of the House ofRepresentatives. There is no limit as to time to the Senate'spower to punish for contempt in cases where that powermay constitutionally be exerted.9.ID.; PRIVILEGE AGAINST SELF-INCRIMINATION; REFUSAOF WITNESS TO ANSWER. – Testimony which is obviouslyfalse or evasive is equivalent to a refusal to testify and ispunishable as contempt, assuming that a refusal to testifywould be so punishable.10.ID.; ID.; POWER OF THE COURT TO DETERMINE WHETHERQUESTION IS INCRIMINATORY. – It is not enough for thewitness to say that the answer will incriminate, as he is notthe sole judge of his liability. The danger of selfincrimination must appear reasonable and real to thecourt, from all the circumstances, and from the wholecase, as well as from his general conception of therelations of the witness. Upon the facts thus developed, itis the province of the court to determine whether a direcanswer to a question may criminate or not. The witnesscannot assert his privilege by reason of some fancifu

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excuse, for protection against an imaginary danger, or tosecure immunity to a third person.11.ID.; RIGHT AND OBLIGATION OF A CITIZEN. – It is theduty of every citizen to give frank, sincere, and truthfultestimony before a competent authority. HisConstitutional privilege against self-incrimination, unlessclearly established, must yield to that duty. when aspecific right and specific obligation conflict wit eachother, and one is doubtful or uncertain while the other isclear and imperative, the former must yield to the latter.

The right to live is one of the most sacred that the citizenmay claim, and yet the state may deprive him of it if heviolates his corresponding obligation to respect the life ofothers.

D E C I S I O N

OZAETA, J p:This is an original petition for habeas corpus to relieve thepetitioner from his confinement in the New Bilibid Prison towhich he has been committed by virtue of a resolutionadopted by the Senate on May 15, 1950, which reads asfollows:"Whereas, Jean L. Arnault refused to reveal the name of

the person to whom he gave the P440,000, as well asanswer other pertinent questions related to the saidamount; Now, therefore, be it."Resolved, That for his refusal to reveal the name of theperson to whom he gave the P440,000 Jean L. Arnault becommitted to the custody of the Sergeant-at-Arms andimprisoned in the New Bilibid Prison, Muntinlupa, Rizal,until discharged by further order of the Senate or by thespecial committee created by Senate Resolution No. 8,such discharge to be ordered when he shall have purgedthe contempt by revealing to the Senate or to the saidspecial committee the name of the person to whom hegave the P440,000, as well as answer other pertinentquestions 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 PhilippineGovernment, through the Rural Progress Administration,bought two estates known as Buenavista andTambobong for the sums of P4,500,000 and P500,000,respectively. Of the first sum, P1,000,000 was paid toErnest 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 thesaid Burt in the Buenavista Estate. The second sum ofP500,000 was all paid to the same Ernest H. Burt throughhis other attorney-in-fact, the North Manila DevelopmentCo., Inc., also represented by Jean L. Arnault, for thealleged interest of the said Burt in the Tambobong Estate.The original owner of the Buenavista Estate was the SanJuan de Dios Hospital. The Philippine Government held a25-year lease contract on said estate, with an option topurchase it for P3,000,000 within the same period of 25years counted from January 1, 1939. The occupationrepublic of the Philippines purported to exercise thatoption by tendering to the owner the sum of P3,000,000and, upon its rejection, by depositing it in court on June21, 1944, together with the accrued rentals amounting toP324,000. Since 1939 the Government has remained inpossession of the estate.

On June 29, 1946, the San Juan de Dios Hospital sold theBuenavista Estate for P5,000,000 to Ernest H. Burt, whomade a down payment of P10,000 only and agreed topay P500,000 within one year and the remainder inannual installments of P500,000 each, with the stipulationthat failure on his part to make any of said paymentswould cause the forfeiture of his down payment oP10,000 and would entitle the Hospital to rescind the saleto him. Aside from the down payment of P10,000, Burt hasmade no other payment on account of the purchase

price of said estate.The original owner of the Tambobong Estate was thePhilippine Trust Company. On May 14, 1946, the PhilippineTrust Company sold said estate for the sum of P1,200,000to Ernest H. Burt, who paid P10,000 down and promised topay P90,000 within nine months and the balance oP1,100,000 in ten successive annual installments ofP110,000 each. The nine-month period within which topay the first installment of P90,000 expired on February 141947, without Burt's having paid the said or any otheamount then or afterwards. On September 4, 1947, thePhilippine Trust Company sold, conveyed, and deliveredthe Tambobong Estate to the Rural ProgressAdministration by an absolute deed of sale in

consideration of the sum of P750,000. On February 51948, the Rural Progress Administration made, undearticle 1504 of the Civil Code, a notarial demand uponBurt for the resolution and cancellation of his contract ofpurchase with the Philippine Trust Company due to hisfailure to pay the installment of P90,000 within the periodof nine months. Subsequently the Court of First Instance oRizal ordered the cancellation of Burt's certificate of titleand the issuance of a new one in the name of the RuraProgress Administration, from which order he appealed tothe Supreme Court. 1

It was in the face of the antecedents sketched in the lastthree preceding paragraphs that the Philippine

Government, through the Secretary of Justice asChairman of the Board of Directors of the Rural ProgressAdministration and as Chairman of the Board of Directorsof the Philippine National Bank, from which the moneywas borrowed, accomplished the purchase of the twoestates in the latter part of October, 1949, as stated atthe outset.On February 27, 1950, the Senate adopted its ResolutionNo. 8, which reads as follows:"RESOLUTION CREATING A SPECIAL COMMITTEE TOINVESTIGATE THE BUENAVISTA AND THE TAMBOBONGESTATES DEAL.

"WHEREAS, it is reported that the Philippine Governmentthrough the Rural Progress Administration, has bought theBuenavista and the Tambobong Estates for theaggregate sum of five million pesos;"WHEREAS, it is reported that under the decision of theSupreme Court dated October 31, 1949, the BuenavistaEstate could have been bought for three million pesos byvirtue of a contract entered into between the San Juande Dios Hospital and Philippine Government in 1939;"WHEREAS, it is even alleged that the PhilippineGovernment did not have to purchase the BuenavistaEstate because the occupation government had madetender of payment in the amount of three million pesos

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"The CHAIRMAN. And why did you give that certainperson, representative of Burt, this big amount of P440,000which forms part of the P1-1/2 million paid to Burt?"Mr. ARNAULT. Because I have instructions to that effect."The CHAIRMAN. Who gave you the instruction?"Mr. ARNAULT. Burt."The CHAIRMAN. Where is the instruction; was that inwriting?"Mr. ARNAULT. No."The CHAIRMAN. By cable?

"Mr. ARNAULT. No."The CHAIRMAN. In what form did you receive thatinstruction?"Mr. ARNAULT. Verbal instruction."The CHAIRMAN. When did you receive this verbalinstruction from Burt to deliver these P440,000 to a certainperson whose name you do not like to reveal?"Mr. ARNAULT. I have instruction to comply with therequest of that person."The CHAIRMAN. Now, you said that instruction to you byBurt was verbal?"Mr. ARNAULT. Yes."The CHAIRMAN. When was that instruction given to youby Burt?

"Mr. ARNAULT. Long time ago."The CHAIRMAN. In what year did Burt give you thatverbal instruction; when Burt was still here in thePhilippines?"Mr. ARNAULT. Yes."The CHAIRMAN. But at that time Burt already knew thathe would receive the money?"Mr. ARNAULT. No."The CHAIRMAN. In what year was that when Burt whilehe was here in the Philippines gave you the verbalinstruction?"Mr. ARNAULT. In 1946."The CHAIRMAN. And what has that certain person donefor Burt to merit receiving these P440,000?

"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 youthe verbal instruction why that certain person shouldreceive these P440,000?"Mr. ARNAULT. He did not tell me."The CHAIRMAN. And Burt also authorized you to give thisbig amount to that certain person without receipt?"Mr. ARNAULT. He told me that a certain person wouldrepresent him and where I could meet him."The CHAIRMAN. Did Burt know already that certainperson as early as 1946?"Mr. ARNAULT. I presume much before that."The CHAIRMAN. Did that certain person have anyintervention in the prosecution of the two cases involvingthe Buenavista and Tambobong estates?"Mr. ARNAULT. Not that I know of."The CHAIRMAN. Did that certain person have anythingto do with the negotiation for the settlement of the twocases?"Mr. ARNAULT. Not that I know of."The CHAIRMAN. Is that certain person related to any highgovernment official?"Mr. ARNAULT. No, I do not know.

"The CHAIRMAN. Why can you not tell us the name othat certain person?"Mr. ARNAULT. Because I am not sure of his name; cannot remember the name."The CHAIRMAN. When you gave that certain person thaP440,000 on October 29, 1949, you knew already thatperson?"Mr. ARNAULT. Yes, I have seen him several times."The CHAIRMAN. And the name of that certain person is aFilipino name?

"Mr. ARNAULT. I would say Spanish name."The CHAIRMAN. And how about his Christian name; is italso 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 whichaccording to your recollection is Spanish; can youremember the first letter with which that family namebegins?"Mr. ARNAULT. S, D or F.

"The CHAIRMAN. And what was the last letter of thefamily name?

"Mr. ARNAULT. I do not know."The CHAIRMAN. Have you seen that person again afteryou have delivered this P440,000?"Mr. ARNAULT. Yes."The CHAIRMAN. Several times?"Mr. ARNAULT. Two or three times."The CHAIRMAN. When was the last time that you sawthat certain person?"Mr. ARNAULT. Sometime in December."The CHAIRMAN. Here in Manila?"Mr. ARNAULT. Yes."The CHAIRMAN. And in spite of the fact that you metthat person two or three times, you never were able tofind out what was his name?

"Mr. ARNAULT. If I knew, I would [have] taken it down. MrPeralta knows my name; of course, we have not donebusiness. Lots of people in Manila know me, but theydon't know my name, and I don't know them. They say am 'chiflado' because I don't know their names."The CHAIRMAN. That certain person is a male or afemale?"Mr. ARNAULT. He is a male."The CHAIRMAN. You are sure that he is a male at least?"Mr. ARNAULT. Yes."The CHAIRMAN. How old was he?"Mr. ARNAULT. Let us say 38 to 40 years, more or less."The CHAIRMAN. Can you give us, more or less, adescription of that certain person? What is hiscomplexion: light, dark, or light brown?"Mr. ARNAULT. He is like the gentleman there (pointing toSen. Cabili), but smaller. He walks very straight, withmilitary bearing."The CHAIRMAN. Do you know the residence of thatcertain person to whom you gave the P440,000?"Mr. ARNAULT. No."The CHAIRMAN. During these frequent times that youmet that certain person, you never came to know hisresidence?"Mr. ARNAULT. No, because he was coming to the office."The CHAIRMAN. How tall is that certain person?

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"Mr. ARNAULT. Between 5-2 and 5-6."On May 15, 1950, the petitioner was haled before the barof the Senate, which approved and read to him thefollowing resolution:"Be it resolved by the Senate of the Philippines in Sessionassembled:"That Jean L. Arnault, now at the bar of the Senate, bearraigned for contempt consisting of contumacious actscommitted by him during the investigation conducted bythe Special Committee created by Senate Resolution No.

8 to probe the Tambobong and Buenavista estates dealof October 21, 1940, and that the President of the Senatepropounded to him the following interrogatories:"1.What excuse have you for persistently refusing to revealthe name of the person to whom you gave the P440,000on October 29, 1949, a person whose name it isimpossible for you not to remember not only because ofthe big amount of money you gave to him withoutreceipt, but also because by your own statements youknew him as early as 1946 when General Ernest B. Burtwas still in the Philippines, you made two other deliveriesof money to him without receipt, and the last time yousaw him was in December 1949?"Thereupon petitioner's attorney, Mr. Orendain, submitted

for him a written answer alleging that the questions wereincriminatory in nature and begging leave to be allowedto stand on his constitutional right not to be compelled tobe a witness against himself. Not satisfied with that writtenanswer Senator Sumulong, over the objection of counselfor the petitioner, propounded to the latter the followingquestion:"Sen. SUMULONG. During the investigation, when theCommittee asked you for the name of that person towhom you gave the P440,000, you said that you can[could] not remember his name. That was your reasonthen for refusing to reveal the name of the person. Now,in the answer that you have just cited, you are refusing toreveal 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 areabandoning your former claim that you cannotremember the name of that person and that your reasonnow for your refusal the name of that person is that youranswer might be self-incriminating? In other words, thequestion is this: What is your real reason for refusing toreveal the name of that parson to whom you gave theP440,000: that you do not remember his name or thatyour answer would be self-incriminating? xxx xxx xxx"Mr. Orendain. Mr. President, we are begging for the rulesof procedure that the accused should not be required totestify unless he so desires."The President. It is the duty of the respondent to answerthe question. The question is very clear. It does notincriminate him. xxx xxx xxx"Mr. ARNAULT. I stand by every statement that I havemade before the senate Committee on the first, second,and third hearings to which I was made to testify. I standby the statements that I have made in my letter to thisSenate of May 2, 1950, in which I gave all the reasonsthat were in my powers to give, as requested. I cannotchange anything in those statements that I made

because they represent the best that I can do, to thebest of my ability."The PRESIDENT. You are not answering the question. Theanswer has nothing to do with the question is very clear. Idoes not incriminate him. xxx xxx xxxMr. ARNAULT. I stand by every statement that I havemade before the Senate Committee on the first, secondand third hearings to which I was made to testify. I standby statements that I have made in my letter to this Senate

of May 2, 1950, in which I gave all the reasons that wereon my powers to give, as requested. I cannot changeanything in those statement that I made because theyrepresent the best that I can do, to the best of my ability."The PRESIDENT. You are not answering the question. Theanswer has nothing to do with the question."Sen. SUMULONG. I would like to remind you, Mr. Arnaultthat the reason that you gave during the investigation fornot revealing the name of the person to whom you gavethe P440,000 is not the same reason that you are nowalleging because during the investigation you told us: 'do not remember his name." But, now, you are nowsaying: 'My answer might incriminate me.' What is youreal position?

"Mr. ARNAULT. I have just stated that I stand by mystatements that I made at the first, second, and thirdhearings. I said that I wanted to be excused fromanswering the question. I beg to be excused from makingany answer that might be incriminating in natureHowever, in this answer, if the detail of not rememberingthe name of the person has not been included, it is anoversight."Sen. SUMULONG. Mr. Arnault, will you kindly answer asimple question: Do you remember or not the name ofthe person to whom you gave the P440,000?Mr. ARNAULT. I do not remember."Sen. SUMULONG. Now, if you do not remember thename of that person, how can you say that your answe

might be incriminating? If you do mot remember hisname, you cannot answer the question; so how couldyour answer be self-incriminating? What do you say tothat?Mr. ARNAULT. This is too complicated for me to explainPlease I do not see how to answer those questions. That iswhy I asked for a lawyer, so he can help me. I have nomeans of knowing what the situation is about. I havebeen in jail 13 days without communication with outsideHow could I answer the question? I have no knowledgeof legal procedure or rule, of which I am completelyignorant. xxx xxx xxx"Sen. SUMULONG. Mr. President, I ask that the question beanswered."The PRESIDENT. The witness is ordered to answer thequestion. It is very clear. It does not incriminate witness. xxx xxx xxx"Mr. ARNAULT. I do not remember. I stand on myconstitutional rights. I beg o be excused from makingfurther answer, please. xxx xxx xxxSen. SUMULONG. In that mimeograph letter that you sentaddressed to the President of the Senate, dated May 21950, you stated there that you cannot reveal the nameof the person to whom you gave the P440,000 because

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he is a public official you might render yourself liable forprosecution for bribery, and that if he is a privateindividual you might render yourself liable for prosecutionfor slander. Why did you make those statements whenyou cannot even tell us whether that person to whomyou gave the P440,000 is a public official or a privateindividual? We are giving you this chance to convincethe Senate that all these allegations of yours that youranswers might incriminate you are given by you honestlyor 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 alawyer for me and I signed it. That is all I can say how Istand about this letter. I have no knowledge myselfenough to write such a letter, so I had to secure to help ofa lawyer to help me in my period of distress."In that same session of the Senate before which thepetitioner was called to show cause why he should notbe adjudge guilty of contempt of the Senate, SenatorSumulong propounded to the petitioner questionstending to elicit information from him as to identity of the

person to whom he delivered the P440,000; but thepetitioner refused to reveal it by saying that he did notremember. the President of the Senate then propoundedto him various questions concerning his past activitiesdating as far back as when witness was seven years ofage and ending as recently as the postliberation periodwhich questions as the witness answered satisfactorily. Inview thereof. the President of the Senate also made anattempt to elicit the desired information from the witness,as follows:"The PRESIDENT. Now I am convinced that you have agood memory. Answer: Did you deliver the P440,000 as agift, or for any consideration?Mr. ARNAULT. I have said that I had instruction 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 leastremembrance of the name of that person?Mr. ARNAULT. I cannot remember.The PRESIDENT. How is it that you do not remember eventsthat happened a short time ago and, on the other hand,you remember events that occurred during yourchildhood?Mr. ARNAULT. I cannot explain."The Senate then deliberated and adopted the resolutionof May 15 hereinabove quoted whereby the petitionerwas committed to the custody of the Sergeant-at-armsand imprisoned until "he shall have purged the contemptby revealing to the Senate or to the aforesaid SpecialCommittee the name of the person to whom he gavethe P440,000, as well as answer other pertinent questionsin connection therewith."The Senate also adopted on the same date antherresolution (No. 16), to wit:"That Special Committee created by Senate ResolutionNo. 8 be empowered and directed to continue itsinvestigation of the Tambobong and Buenavista Estatesdeal of October 21, 1949, more particularly to continue its

examination of Jean L. Arnault regarding the name of theperson to whom he gave the P440,000 an other mattersrelated therewith."The first session of the Second Congress was adjourned atmidnight on May 18, 1950.The case was argued twice before us. W have given itearnest and prolonged consideration because it is thefirst of its kind to arise the Constitution of the Republic othe Philippines was adopted. For the first time this court iscalled upon to define the power of either House o

Congress to punish a person not a member for contemptand we are fully conscious that our pronouncement herewill set an important precedent for the future guidance oall concerned.Before discussing the specific issues raised by the partieswe deem it necessary to lay down the general principlesof law which form the background of those issues.Patterned after the American system, our Constitutionvests the powers of the Government in threeindependent but coordinate Departments – LegislativeExecutive, and Judicial. The Legislative is vested in theCongress, which consists of the Senate and the House oRepresentatives. (Section 1, Article VI.) Each House maydetermine the rules of its proceedings, punish its Members

for disorderly behaviour, and, with the concurrence otwo-thirds of all its Member. (Section 10 Article VI.) The judicial power is vested in the Supreme Court and in suchinferior courts as may me established by law. (Section 1Article VIII.) Like the Constitution of the United States, oursdoes not contain an express provision empowering eitherof the two House of Congress to punish nonmembers focontempt. It may also be noted that whereas in theUnited States the legislative power is shared between theCongress of the United State, on the one hand, and therespective legislatures of the different States, on the othe – the powers not delegated to the Unite States by theConstitution nor prohibited by it to States being reservedto the states, respectively, or to the people – in the

Philippines, the legislative power is vested in the Congressof the Philippines alone. It may therefore be said that theCongress of the Philippines has a wider range olegislative field than the Congress of the Unites States oany State Legislature.Our form of government being patterned after theAmerican system – the framers of our Constitution havingbeen drawn largely from American institution andpractices – we can, in this case. properly draw also fromAmerican precedents in interpreting analogous provisionsof our Constitution, as we have done in other cases in thepast.Although there is no provision in the Constitution expresslyinvesting either House of Congress with power to makeinvestigations and exact testimony to the end that it mayexercise its legislative functions advisedly and effectivelysuch power is so far incidental to the legislative functionas to be implied. In other words, the power of inquiry –

with process to enforce it – is an essential andappropriate auxiliary to the legislative function. Alegislative body cannot legislate wisely or effectively inthe absence of information respecting the conditionswhich the legislations is intended to affect or changeand where the legislative body does not itself possess therequisite information – which is not frequently true –

recourse must be had to others who do possess it

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Experience has shown that mere requests for suchinformation are often unavailing, and also thatinformation which is volunteered is not always accurateor complete; so some means of compulsion is essential toobtain what is needed. (McGrain vs. Daugherty, 273 U.S.,135; 71 L. ed., 580; 50 A. L. R., 1.) The fact that theConstitution expressly hives to congress the power topunish its Members for disorderly behaviour, does not bynecessary implication exclude the power to punish forcontempt any other person. (Anderson vs. Dunn, 6

Wheaton. 204; 5 L ed., 242.)But no person can punish for contumacy as a witnessbefore either House, unless his testimony is required in amatter into which that House has jurisdiction to inquire.(Killbourn vs. Thompson, 26 L. ed., 377.)Since, as we noted, the Congress of the Philippines has awider range of legislative field than either the congress ofthe United States or a State Legislature, we think it iscorrect to say that the field of inquiry into which it mayenter is also wider. It would be difficult to define any limitsby which the subject matter of its inquiry can bebounded. It is necessary for us to do so in this case.Suffice it to say it must be coextensive with the range ofthe legislative power.

In the present case the jurisdiction of the Senate, thru thespecial Committee created by it, to investigate theBuenavista and Tambobong estates deal is notchallenged by the petitioner; and we entertain no doubtas to the Senate's authority to do so and as to the validityof Resolution No. 8 hereinabove quoted. the transactioninvolved a questionable and allegedly unnecessary andirregular expenditure of no less than P5,000,000 of publicfunds, of which the Congress is the constitutionalguardian. It is also involved government agenciescreated by Congress and officers whose positions it iswithin the power of Congress to regulate or even abolish.As a result of the yet uncompleted investigation, theinvestigating committee has recommended and the

Senate has approved three bills (1) prohibiting theSecretary of Justice or any other department head fromdischarging functions and exercising powers than thoseattached to his own office, without previouscongressional authorization; (2) prohibiting brothers andnear relatives of any President of the Philippines fromintervening directly or indirectly and in whatevercapacity in transactions in which the Government is aparty, more particularly where the decision lies in thehands of executive or administrative officers who areappointees of the President; and (3) providing thatpurchases of the Rural Progress Administration of biglanded estates at a price of P100,000 or more, and loansguaranteed by the Government involving P100,000 ormore, shall not become effective without previouscongressional confirmation. 2We shall now consider and pass upon each of thequestions raised by the petitioner in support of hiscontention that his commitment is unlawful.First. He contends that the senate has no power to punishhim for contempt for refusing to reveal the name of theperson to whom he gave the P440,000, because suchinformations is immaterial to, and will not serve, anyintended or purported legislation and his refusal toanswer the question has not embarrassed, obstructed, orimpeded the legislative prices. It is argued that since the

investigating committee has already rendered its reportand has made all its recommendations as to whatlegislative measures should be taken pursuant to itfindings, there is no necessity to force the petitioner togive information desired other than that mentioned in itsreport, to wit: "In justice to Judge Quirino and to SecretaryNepomuceno, this atmosphere of suspicion that nowpervades the public mind must be dissipated, and it canonly be done if appropriate steps are taken by thesenate to compel Arnault to stop pretending that he

cannot remember the name of the person to whom hegave the P440,000 and answer questions which wildefinitely of that person . . . ." Senator SumulongChairman of the Committee, who appeared and arguedthe case for the respondents, denied that that was theonly purpose of the Senate in seeking the informationfrom the witness, He said that the investigation had notbeen completed, because, due to the contumacy of thewitness, his committee had not yet determined theparties responsible for the anomalous transaction asrequired by Resolution No. 8; that, by Resolution No. 19his committee was empowered and directed to continueits investigation, more particularly to continue itsexamination of the witness regarding the name of the

person to whom he gave the P440,000 and other mattersrelated herewith; that the bills recommended by hiscommittee had not been approved by the House andmight not be approved pending the completion of theinvestigation; and that those bills were not necessarily althe measures that congress might deem it necessary topass after the investigation is finished.Once an inquiry is admitted or established to be withinthe jurisdiction of a legislative body to make, we think theinvestigating committee has the power to require awitness to answer any question pertinent to that inquirysubject of course to his constitutional right against selfincrimination. The inquiry, to be within the jurisdiction othe legislative body to make, must be material o

necessary to the exercise of a power in it vested by theConstitution, such as to legislate, or to expel a Memberand every question which the investigator is empoweredto coerce a witness to answer must be material opertinent to the subject of the inquiry or investigation. Soa witness may not be coerced to answer a question thaobviously has no relation to the subject of the inquiry. Bufrom this it does not follow that every question that maypropounded to a witness must be material to anyproposed or possible legislation. In other words, themateriality of the question must be determined by itsdirect relation to the subject of the inquiry and not by itsindirect relation to any proposed or possible legislationThe reason is, that the necessity or lack of necessity folegislative action and the form and character of theaction itself are determined by the sum total of theinformation to be gathered as a result of theinvestigation, and not by a fraction of such informationelicited from a single question.

In this connection, it is suggested by counsel for therespondents that the power of the Court is limited todetermining whether the legislative body has jurisdictionto institute the inquiry or investigation; that once that jurisdiction is conceded, this Court cannot control theexercise of that jurisdiction or the use of Congressiona

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discretion; and, it is insinuated, that the ruling of theSenate on the materiality of the question propounded tothe witness is not subject to review by this Court under theprinciple of the separation of powers. We have to qualifythis proposition. As we said by the Court of Appeals ofNew York: "We are bound to presume that the action ofthe legislative body was with a legitimate object if it iscapable of being so construed, and we have no right toassume that the contrary was intended." (People ex relMc. Donald vs. Keeler. 99 N. Y., 463; 52 Am. Rep., 49; 2 N.

E., 615, quoted with approval by the Supreme Court ofthe United States in McGrain vs. Daugherty, supra.)Applying this principle to the question at hand, we mayconcede that the ruling of the Senate on the materialityof the information sought from the witness is presumed tobe correct. But, as noted by the Supreme Court of theUnite States in the said case of McGrain vs. Daugherty, itis a necessary deduction from the decision in ReChapman, 41 L. ed., 1154, that were the questions arenot pertinent to the matter under the inquiry a witnessrightfully may refuse to answer. So we are of the opinionthat were the alleged immateriality of the informationsought by the legislative body from a witness is reliedupon to contest its jurisdiction, the court is in duty bound

to pass upon the contention. The fact that the legislativebody has jurisdiction or the power to make the inquirywould not preclude judicial intervention to correct aclear abuse of discretion in the exercise of that power.Applying the criterion laid down in the last two precedingparagraphs to the resolution of the issue underconsideration, we find that the question for the refusal toanswer which the petitioner was held in contempt by theSenate which the petitioner was held in contempt by theSenate is pertinent to the matter under inquiry. In fact, thisis not and cannot be disputed. Senate Resolution No. 8,the validity of which is not challenged by the petitionerrequires the Special Committee, among other things todetermine the parties responsible for the Buenavista an

Tambobong estates deal, and it is obvious that the nameof the person to whom the witness gave the P440,000 it isin fact the very things sought to be determined. Thecontention that the question is impertinent to the subjectof the inquiry but that it has in relation or materiality toany proposed legislation. We have already indicatedthat it is not necessary for the legislative body to showthat every question propounded to a witness is materialto any proposed or possible legislation; what is required isthat it be pertinent to the matter under inquiry.The Court cannot determine, any more that it can directCongress, what legislation to approve or not to approve;that would be an invasion of the legislative prerogative.The Court, therefore, may not say that the informationsought from the witness which is material to the subject ofthe legislative inquiry is immaterial to any proposed orpossible legislation.It is said that the Senate has already approved the threebills recommended by the Committee as a result of theuncompleted investigation and that there is no need forit to know the name of the person to whom the witnessgave the P440,000. But aside from the fact that those billshave not yet been approved by the lower court houseand by the President and that they may be withdrawn ormodified if after the inquiry is completed they should befound unnecessary or inadequate, there is nothing to

prevent the Congress from approving other measures itmay deem necessary after completing the investigationWe are not called upon, nor is it within our province, todetermine or imagine what those measures may be. Andour inability to do so is no reason for overruling thequestion propounded by the Senate to the witness.The case of Re Chapman, 166 U.S., 661; 41 L. ed., 1554, isin point here. The inquiry there in question wasconducted under a resolution of the Senate and relatedto charges, publish in the press, that senators were

yielding to corrupt influences in considering a tariff bilthen before the Senate and were speculating in stocksthe value of which would be affected by pendingamendments to the bill. Chapman, a member of a firm ostock brokers dealing in the stock of the American SugaRefining Company, appeared before the committee inresponse to a subpoena and was asked, among othersthe following questions:"Had the firm, during the month of March 1894, bought orsold any stock or securities, known as sugar stocks, for oin the interest, directly or indirectly, of any United Statessenator?"Was the said firm at that time carrying any sugar stockfor the benefit of, or in the interest, directly or indirectly, o

any United Senate senator?"He refused to answer those questions and wasprosecuted under an act of Congress for contempt othe Senate Upon being convicted and sent to jail hepetitioned the Supreme Court of the Unite States for a wriof habeas corpus. One of the questions decided by theSupreme Court of the united States in that case waswhether the committee had the right to compel thewitness to answer said questions, and the Court held thatthe committee did have such right, saying:"The questions were undoubtedly pertinent to the subjecmatter of the inquiry. The resolution directed thecommittee to inquire 'whether any senator has been, ois, 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 factswhen ascertained, we cannot say, nor are we calledupon to inquire whether such ventures might bedefensible, as contended in argument, but it is plain thanegative answers should have cleared that the body ofwhat the Senate regarded as offensive imputations, whileaffirmative answer might have led to further action onthe part of the Senate within its constitutional powers."(Emphasis ours.)It may be contended that the determination of theparties responsible for the deal is incumbent upon the judicial rather than upon the legislative branch. But wethink there is no basis in fact or in a law for suchassumption. The petitioner has not challenged the validityof Senate Resolution No. 8, and that resolution expresslyrequires the committee to determine the partiesresponsible for the deal. We are bound to presume thatthe Senate has acted in the due performance of itsconstitutional function in instituting the inquiry, if the act iscapable of being construed. On the other hand, there isno suggestion that the judiciary has instituted an inquiryto determine the parties responsible for the deal. Undethe circumstances of the case, it appearing that thequestioned transaction was affected by the head of theDepartment of Justice himself, it is not reasonable to

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expect that the Fiscal; or the Court of First Instance ofManila will take the initiative to investigate and prosecutethe parties responsible for the deal and unless the Senateshall have determined who those parties are and shallhave taken such measures as may be within itscompetence to take the redress the wrong that mayhave been committed against the people as a result ofthe transaction. As we have said, the transactioninvolved no less than P5,000,000 of public funds. Thatcertainly is a matter of public concern, which it is the duty

of the constitutional guardian of the treasury toinvestigate.If the subject of investigation before the committee iswithin the range of legitimate legislative inquiry and theproposed testimony called relate to that subject,obedience to its process may be enforced by thecommittee by imprisonment. (Sulivan vs. Hill. 73 W. Va.,49; 79 S. E., 670; 40 Ann. Cas. [1926 B.], 1115.)The decision in the case of Kilbourn vs. Thompson, 26 L.ed., 377, relied upon by the petitioner, is not applicablehere. In that case the inquiry instituted by the House ofRepresentatives of the United States related to a privatereal-estate pool or partnership in the District of Columbia.Jay Cook & Company had had an interest in the pool but

had become bankrupts, and their estate was in course ofadministration in a federal bankruptcy court inPennsylvania. The United States was one of their creditors.the trustee in the bankruptcy proceeding had effected asettlement of the bankrupts' interest in the pool, and ofcourse his action was subject to examination andapproval or disapproval by the bankruptcy court. Someof the creditors, including the United States, weredissatisfied with the settlement. The resolution of theHouse directed the Committee "to inquire into the natureand history of said real-estate pool and the character ofsaid settlement with the amount of property involved, inwhich Jay Cooked & Co. were interested, and theamount 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 containedno suggestion of contemplated legislation; that thematter was one in respect of which no valid legislationcould be had; that the bankrupts' estate and the trustee'ssettlement were still pending in the bankruptcy court; andthat the United States and other creditors were free topress their claims in that proceeding. And on thesegrounds the court held that in undertaking theinvestigation "the house of Representatives not onlyexceeded the limit of its own authority, but assumed apower which could only be properly exercised byanother branch of the government, because the powerwas in its nature clearly judicial." The principlesannounced and applied in that case are: that neitherHouse of congress possesses a "general power of makingactually possessed is limited to inquiries relating to mattersof which the particular House of jurisdiction and inrespect of which it rightfully may take other action; that ifthe inquiry relates to a matter wherein relief or redresscould be had only judicial proceeding, it is not within therange of this power, but must be left to the courts,conformably to the constitution separation ofgovernmental powers.

That case differs from the present case into two importanrespects: (1) There the court found that the subject of theinquiry, which related to a private real-estate pool opartnership, was not within the jurisdiction of either Houseof Congress; while here it is not disputed that the subjecof the inquiry, which relates to a transaction involving aquestionable expenditure by the Government oP5,000,000 of public funds, is within the jurisdiction of theSenate. (2) There the claim of the government as acreditor of Jay Cooke & Company, which had had an

interest in the pool, was pending adjudication by thecourt; while here the interposition of the judicial power onthe subject of the inquiry cannot be expected, as wehave pointed out above, until after the Senate shall havedetermined who the parties responsible are shall havetaken such measures as may be within its competence totake redress the wrong that may have been committedagainst the people as a result of the transaction.It is interesting to note that the decision in the case ofKilbourn vs. Thompson has evoked strong criticisms fromlegal scholars. (See Potts, Power of Legislative Bodies toPunish for Contempt [1926], 74 U. Pa L. Rev., 692-699Janes M. Landis, Constitutional Limitations on theCongressional Power of Investigation [1926], 40 Harvard L

Rev., 153, 214-220.) We quote the following from ProfessoLandis' criticism: "Mr. Justice Miller saw the case purely asan attempt by the House to secure to the Governmentcertain priority rights as creditors of the bankrupt concernTo him it assumed the character of a lawsuit between theGovernment and Jay Cooke & Co., with theGovernment, acting through the House, attempting tooverride the orderliness of established procedure andthereby prefer a creditors' bill not before the courts butbefore Congress. That the bankruptcy proceedings hadalready been instituted against Jay Cooke & Co. in afederal court gave added impetus to such a conceptionThe House was seeking to oust of prior acquired jurisdiction by an extraordinary and unwarranted o

assumption of 'judicial power'! The broader aspect of theinvestigation had not been disclosed to the Court. ThaJay Cooke & Co.'s indebtedness and the particular fundsin question were only part of the great administrativeproblem connected with the use and disposition opublic monies, that the particular failure was oconsequence mainly in relation to the securitydemanded for all government deposits, that the factsconnected with one such default revealed the possibilityof other and greater maladministration, suchconsideration had not been put before the Court. Nohad it been acquainted with the every-day nature of theparticular investigation and the powers there exerted bythe House, powers whose exercise was customary andfamiliar in legislative practice. Instead of assuming thecharacter of an extraordinary judicial proceeding, theinquiry, placed in its proper background, should havebeen regarded as a normal and customary part of thelegislative process. detailed definiteness of legislativepurpose was thus made the demand of the Court inKilbourn vs. Thompson. But investigators cannot foretethe results that may be achieved. The power of Congressto exercise control over a real-estate pool is not a matterfor abstract speculation but one to be determined onlyafter an exhaustive examination of the problemRelationship, and not their possibilities, determine the

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extent of congressional power. Constitutionality dependsupon such disclosure. their presence, whetherdeterminative of legislative or judicial power, cannot berelegated to guesswork. Neither Congress nor the Courtcan predict, prior to the event, the result of investigation."The other case relied upon by the petitioner is Marshall vs.Gordon, 243 U.S., 521; 61 L. ed., 881. The question therewas whether the House of Representatives exceeded itspower in punishing, as for contempt of its authority, thedistrict Attorney of the Southern District of New York, who

had written, published, and sent to the chairman of oneof its committees an ill-tempered and irritating letterrespecting the action and purposes of the committee ininterfering with the investigation by the grand jury ofalleged illegal activities of a member of the House ofRepresentatives. Power to make inquiries and obtainevidence by compulsory process was not involved. Thecourt recognized distinctly that the House ofRepresentative had implied power to punish a person nota member for contempt, but held that its action in thisinstance was without constitutional justification. Thedecision was put on the ground that the letter, whileoffensive and vexatious, was not calculated or likely toaffect the House in any of its proceedings or in the

exercise of any of its functions. This brief statement of thefacts and the issues decided in that case is sufficient toshow the inapplicability thereof to the present case.There the contempt involved consisted in the districtattorney's writing to the chairman of the committee anoffensive and vexatious letter, while here the contemptinvolved consists in the refusal of the witness to answerquestions pertinent to the subject of an inquiry which theSenates has the power and jurisdiction to make. But inthat case it was recognized that the House ofRepresentatives has implied power to punish a person nota member for contempt. In that respect the case isapplicable here in favor of the Senate's (not not of thepetitioner's) contention.

Second. It is next contended for the petitioner that theSenate lacks authority to commit him for contempt for aterm beyond its period of legislative session, which endedon May 18, 1950. This contention is based on the opinionof Mr. Justice Malcolm, concurred in by Justices Streetand Villa-Real in the case of Lopez vs. De los Reyes(1930), 55 Phil., 170. In that case it appears that onOctober 23, 1929, Candido Lopez assaulted a member ofthe House of Representative while the latter was going tothe hall of the House of Representatives to attend thesession which was then about to begin as a result ofwhich assault said representative was unable to attendthe session on that day and those of the two days nextfollowing by reason of the threats which Candido Lopezmade against him. By resolution of the House adoptedNovember 6, 1929, Lopez was declared guilty ofcontempt of the House of Representatives and orderedpunished by confinement in Bilibid Prison for a period oftwenty-four hours. That resolution was not complied withbecause the session of the House of Representativesadjourned at the next session on September 16, 1930.Lopez was subsequently arrested, whereupon he appliedfor the writ of habeas corpus in the Court of First Instanceof Manila, which denied the application. Upon appeal tothe Supreme Court, six justices voted to grant the writ:Justices Malcolm, Street, and Villa-Real, on the ground

that the term of imprisonment meted out to the petitionecould not legally be extended beyond the session of thebody in which the contempt occurred; and JusticesJohns, Villamor, and Ostrands, on the ground that thePhilippine Legislature had no power to punish focontempt because it was a creature merely of an Act othe Congress of the United States and not of aConstitution adopted by the people. Chief JusticeAvanceña, Justice Johnson, and Justice Romualdezwrote a separate opinions, concurring with Justice

Malcolm, Street and Villa-Real, that the Legislature hasinherent power to punish for contempt but dissentingfrom the opinion that the order of commitment couldonly be executed during the particular session in whichthe act of contempt was committed.Thus, on the question under consideration, the Court wasequally divided and no decisive pronouncement wasmade. The opinion of Mr. Justice Malcolm is based mainlyon the following passage in the case of Anderson vsDunn, supra:"And although the legislative power continues perpetualthe legislative body ceases to exist on the amount of itsadjournment or periodical dissolution. It follows thaimprisonment must terminate with that adjournment."

as well as on the following quotation from Marshall vsGordon, supra:And the essential nature of the power also makes cleathe cogency and application of the two limitations whichwere expressly pointed out in Anderson vs. Dunn, suprathat is, that the power even when applied to subjectswhich justified its exercise is limited to imprisonment andsuch imprisonment may not extended beyond the sessionof the body in which the contempt occurred."Interpreting the above quotations, Chief JusticeAvanceña held:"From this doctrine it follows, in my judgment, that theimposition of the penalty is limited to the existence of thelegislative body, which ceases to function upon its fina

periodical dissolution. The doctrine refers to its existenceand not to any particular session thereof. This must be soinasmuch as the basis of the power to impose suchpenalty is the right which the Legislature has to selfpreservation, and which right is enforceable during theexistence of the legislative body. Many causes might beconceived to constitute contempt to the Legislaturewhich would continue to be a menace to its preventionduring the existence of the legislative body against whichcontempt was committed."If the basis of the power of the legislature to punish focontempt exists while the legislative body exercising it is insession, then that power and the exercise thereof musbe perforce continue until its final adjournment and theelection of its successor."Mr. Justice Johnson's more elaborate opinion, supportedby quotations from Cooley's Constitutional Limitations andfrom Jefferson's Manual, is to the same effect. Mr. JusticeRomualdez said: "In my opinion, where, as in the casebefore us, the members composing the legislative bodyagainst which the contempt was committed have noyet completed their three-year term, the House may takeaction against the petitioner herein."

We note that the quotations from Anderson vs. Dunn. andMarshall vs. Gordon relied upon by Justice Malcolm are

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obiter dicta. Anderson vs. Dunn was an action of trespassagainst the Sergeant-at-Arms of the House ofRepresentatives of the United States for assault of theUnited states for assault and battery and falseimprisonment. The plaintiff had been arrested forcontempt of the House, brought before the bar of theHouse, and reprimanded by the Speaker, and thendischarge from custody. The question as to the durationof the penalty was not involved in that case. The questionthere presented was "whether the House of

Representatives can take cognizance of contemptscommitted against themselves, under anycircumstances." The court there held that the House ofRepresentatives had the power to punish for contempt,and affirmed the judgment of the lower court in favor ofthe defendant. In Marshall vs. Gordon, the questionpresented was whether the House had the power underthe Constitution to deal with the conduct of the districtattorney in writing a vexatious letter as a contempt of itsauthority, and to inflict punishment upon the writer forsuch contempt as a matter of legislative power. The courtheld that the House had no such power because thewriting of the letter did not obstruct the performance oflegislative duty and did not endanger the preservation of

the power of the House to carry out its legislativeauthority. Upon that ground alone, and not because theHouse had adjourned, the court ordered the dischargeof the petitioner from custody.The case where the question was squarely decided isMcGrain vs. Daugherty, supra. There it appears that theSenate had adopted a resolution authorizing anddirecting a select committee of five senators toinvestigate various charges of misfeasance andnonfeasance in the Department of Justice after AttorneyGeneral Harry M. Daugherty became its supervisinghead. In the course of the investigation the committeecaused to be served on Mally S. Daugherty, brother ofHarry M. Daugherty and president of the Midland

National Bank of Washington Court, Ohio, a subpoenacommanding him to appear before it for the purpose ofgiving testimony relating to the subject underconsideration. The witness failed to appear withoutoffering any excuse for his failure. The committeereported the matter to the Senate and the latteradopted a resolution, "That the President of the Senatepro tempore issue his warrant commanding the Sergeant-at-Arms or his deputy to take into custody the body of thesaid M. S. Daugherty wherever found, and to bring thesaid M. S. Daugherty before the bar of the Senate, thenand there to answer such questions pertinent to thematter under inquiry as the Senate may order thePresident of the Senate pro tempore to propound; and tokeep the said M. S. Daugherty in custody to await thefurther order of the Senate." Upon being arrested, thewitness petitioned the federal court in Cincinnati for a writof habeas corpus. The federal court granted the writ anddischarged the witness on the ground that the Senate, indirecting the investigation and in ordering the arrest,exceeded its power under the Constitution. Upon appealto the Supreme Court of the United States, one of thecontentions of the witness was that the case hadbecome moot because the investigation was orderedand the committee was appointed during the Sixty-

eighth Congress, which expired on March 4, 1926. Inoverruling the contention, the court said:". . . The resolution ordering the investigation in termslimited the committee's authority to the period of theSixty-eight Congress; but this apparently was changed bya later and amendatory resolution authorizing thecommittee to sit at such times and places as it mightdeem advisable or necessary. It is said in Jefferson'sManual: 'Neither House can continue any portion of itselin any parliamentary function beyond the end of the

session without the consent of the other two branchesWhen done, it is by a bill constituting them commissionersfor the particular purpose.' But the context shows that thereference is to the two houses of Parliament whenadjourned by prorogation or dissolution by the King. Therule may be the same with the House of Representativeswhose members are all elected for the period of a singleCongress; but it cannot well be the same with the Senatewhich is a continuing body whose members are alelected for a term of six years and so divided into classesthat the seats of one third only become vacant at theend of each Congress, two thirds always continuing intothe next Congress, save as vacancies may occur throughdeath or resignation.

"Mr. Hinds in his collection of precedents, says: 'TheSenate, as a continuing body, may continue itscommittees through the recess following the expiration oa Congress;' and, after quoting the above statementfrom Jefferson's Manual, he says: 'The Senate, howeverbeing a continuing body, gives authority to itscommittees during the recess after the expiration of aCongress.' So far as we are advised the select committeehaving this investigation in charge has neither made afinal report nor been discharged; nor has it beencontinued by an affirmative order. Apparently itsactivities have been suspended pending the decision ofthis case. But, be this as it may, it is certain that thecommittee may be continued or revived now by motion

to that effect, and, if continued or revived, will have all itsoriginal powers. This being so, and the Senate being acontinuing body, the case cannot be said to havebecome moot in the ordinary sense. The situation ismeasurably like that in Southern P. Terminal Co. vsInterstate Commerce Commission, 219 U. S., 498, 514-51655 L. ed., 310, 315, 316; 31 Sup. Ct. Rep., 279, where it washeld that a suit to enjoin the enforcement of an order ofthe Interstate Commerce Commission did not becomemoot through the expiration of the order where it wascapable of repetition by the Commission and was amatter of public interest. Our judgment may yet becarried into effect and the investigation proceeded withfrom the point at which it apparently was interrupted byreason of the habeas corpus proceedings. In thesecircumstances we think a judgment should be renderedas was done in the case cited."What has been said requires that the final order in theDistrict Court discharging the witness from custody bereversed."Like the Senate of the United States, the Senate of thePhilippines is a continuing body whose members areelected for a term of six years and so divided that theseats of only one-third become vacant every two yearstwo-thirds always continuing into the next Congress saveas vacancies may occur thru death or resignation

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Members of the House of Representatives are all electedfor a term of four years; so that the term of everyCongress is four years. The Second Congress of thePhilippines was constituted on December 30, 1949, andwill expire on December 30, 1953. The resolution of theSenate committing the petitioner was adopted duringthe first session of the Second Congress, which began onthe fourth Monday of January and ended on May 18,1950.Had said resolution of commitment been adopted by the

House of Representatives, we think it could be enforceduntil the final adjournment of the last session of theSecond Congress in 1953. We find no sound reason tolimit the power of a legislative body to punish forcontempt to the end of every session and not to the endof the last session terminating the existence of that body.The very reason for the exercise of the power to punish forcontempt is to enable the legislative body to perform itsconstitutional function without impediment or obstruction.Legislative functions may be and in practice areperformed during recess by duly constituted committeescharged with the duty of performing investigations orconducting 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 verypurpose for which that power is recognized in thelegislative body as an essential and appropriate auxiliaryto its legislative function. It is but logical to say that thepower of self-preservation is coexistent with the life to bepreserved.But the resolution of commitment here in question wasadopted by the Senate, which is a continuing body andwhich does not cease to exist upon the periodicaldissolution of the Congress or of the House ofRepresentatives. There is no limit as to time to the Senate'spower to punish for contempt in cases where that powermay 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 hasordered an investigation of the Buenavista andTambobong estates deal, which we have found it iswithin its competence to make. That investigation has notbeen completed because of the refusal of the petitioneras a witness to answer certain questions pertinent to thesubject of the inquiry. The Senate has empowered thecommittee to continue the investigation during therecess. By refusing to answer the questions, the witnesshas obstructed the performance by the Senate of itslegislative function, and the Senate has the power toremove the obstruction by compelling the witness toanswer the questions thru restraint of his liberty until heshall have answered them. That power subsists as long asthe Senate, which is a continuing body, persists inperforming the particular legislative function involved. Tohold that it may punish the witness for contempt onlyduring the session in which investigation was begun,would be to recognize the right of the Senate to performits function but at the same time to deny to it an essentialand appropriate means for its performance. Aside fromthis, if we should hold that the power to punish forcontempt terminates upon the adjournment of thesession, the Senate would have to resume theinvestigation at the next and succeeding sessions andrepeat the contempt proceedings against the witness

until the investigation is completed – an absurdunnecessary, and vexatious procedure, which should beavoided.

As against the foregoing conclusion it is argued for thepetitioner that the power may be abusively andoppressively exerted by the Senate which might keep thewitness in prison for life. But we must assume that theSenate will not be disposed to exert the power beyond itsproper bounds. And if, contrary to this assumption, prope

limitations are disregarded, the portals of this Court arealways open to those whose rights might thus betransgressed.Third. Lastly, the petitioner invokes the privilege againstself- incrimination. He contends that he would incriminatehimself if he should reveal the name of the person towhom he gave the P440,000 because if that person be apublic official he (witness) might be accused of briberyand if that person be a private individual the latter mightaccuse him of oral defamation.The ground upon which the witness' claim is based is tooshaky, infirm, and slippery to afford him safety. At first hetold the Committee that the transactions were legal, thatno laws were violated, and that all requisites had been

complied with; but at the same time he begged to beexcused from making answers "which might later be usedagainst me." A little later he explained that although thetransactions were legal he refused to answer questionsconcerning them "because it violates the rights of acitizen to privacy in his dealings with other people. . . . simply stand on my privilege to dispose of the money thahas been paid to me as a result of a legal transactionwithout having to account for any use of it." But aftebeing apparently convinced by the Committee that hisposition was untenable, the witness testified that, withousecuring any receipt, he turned over the P440,000 to acertain person, a representative of Burt, in compliancewith Burt's verbal instruction made in 1946; that, as far as

he know, that certain person had nothing to do with thenegotiations for the settlement of the Buenavista andTambobong cases; that he had seen that person severatimes before he gave him the P440,000 on October 29,1949, and that since then he had seen him again two orthree times, the last time being in December, 1949, inManila; that the person was a male, 39 to 40 years ofage, between 5 feet, 2 inches and 5 feet, 6 inches inheight. But the witness would not reveal the name of thaperson on these pretexts: "I don't remember the name; hewas a representative of Burt." "I am not sure; I don'remember the name."We are satisfied that those answers of the witness to theimportant question, What is the name of that person towhom you gave the P440,000? were obviously false. Hisinsistent claim before the bar of the Senate that if heshould reveal the name he would incriminate himselfnecessarily implied that he knew the name. Moreover, it isunbelievable that he gave P440,000 to a person to himunknown."Testimony which is obviously false or evasive is equivalentto a refusal to testify and is punishable as contemptassuming that a refusal to testify would be so punishable.(12 Am. Jur., sec. 15, Contempt, pp. 399-400.) In the caseof Mason vs. U. S., 61 L. ed., 1198, it appears that Masonwas called to testify before a grand jury engaged in

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investigating a charge of gambling against six other men.After stating that he was sitting at a table with said menwhen they were arrested, he refused to answer twoquestions, claiming so to do might tend to incriminatehim: (1) "Was there a game of cards being played on thisparticular evening at the table at which you weresitting?" (2) "Was there a game of cards being played atanother table at this time?" The foreman of the grand juryreported the matter to the judge, who ruled "that eachand all of said questions are proper and that the answers

thereto would not tend to incriminate the witnesses."Mason was again called and he refused to answer thefirst question propounded to him, but, half yielding tofrustration, he said in response to the second question: "Idon't know." In affirming the conviction for contempt, theSupreme Court of the United States among other thingssaid:"In the present case the witnesses certainly were notrelieved from answering merely because they declaredthat so to do might incriminate them. The wisdom of therule in this regard is well illustrated by the enforcedanswer, 'I don't know,' given by Mason to the secondquestion, after he had refused to reply under a claim ofconstitutional privilege."

Since according to the witness himself the transactionwas legal, and that he gave the P440,000 to arepresentative of Burt in compliance with the latter'sverbal instruction, we find no basis upon which to sustainhis claim that to reveal the name of that person mightincriminate him. There is no conflict of authorities on theapplicable rule, to wit:"Generally, the question whether testimony is privileged isfor the determination of the Court. At least, it is notenough for the witness to say that the answer willincriminate him, as he is not the sole judge of his liability.The danger of self-incrimination must appear reasonableand real to the court, from all the circumstances, andfrom the whole case, as well as from his general

conception of the relations of the witness. Upon the factsthus developed, it is the province of the court todetermine whether a direct answer to a question maycriminate or not. . . . The fact that the testimony of awitness may tend to show that he has violated the law isnot sufficient to entitle him to claim the protection of theconstitutional provision against self-incrimination, unlesshe is at the same time liable to prosecution andpunishment for such violation. The witness cannot asserthis privilege by reason of some fanciful excuse, forprotection against an imaginary danger, or to secureimmunity to a third person." (3 Wharton's CriminalEvidence, 11th ed., secs. 1135, 1136.)"It is the province of the trial judge to determine from allthe facts and circumstances of the case whether thewitness is justified in refusing to answer. (People vs. Gonzo,23 N. E. [2d], 210 [Ill. App., 1939].) A witness is not relievedfrom answering merely on his own declaration that ananswer 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 aconstitutional right, is his clear duty as a citizen to givefrank, sincere, and truthful testimony before a competentauthority. The state has the right to exact fulfillment of acitizen's obligation, consistent of course with his right

under the Constitution. The witness in this case has beenvociferous and militant in claiming constitutional rightsand privileges but patently recreant to his duties andobligations to the Government which protects thoserights under the law. When a specific right and a specificobligation conflict with each other, and one is doubtful ouncertain while the other is clear and imperative, theformer must give way to the latter. The right to life is oneof the most sacred that the citizen may claim, and yetthe state may deprive him of it if he violates his

corresponding obligation to respect the life of others. AsMr. Justice Johnson said in Anderson vs. Dunn: "Thewretch beneath the gallows may repine at the fatewhich awaits him, and yet it is not less certain that thelaws under which he suffers were made for the security.Paraphrasing and applying that pronouncement herethe petitioner may not relish the restraint of his libertypending the fulfillment by him of his duty, but it is no lesscertain that the laws under which his liberty is restrainedwere made for his welfare.From all the foregoing, it follows that the petition must bedenied, and it is so ordered, with costs.Paras, Pablo, Bengzon, Montemayor and Reyes JJ.concur.

EN BANC

[G.R. No. L-36142. March 31, 1973.]

JOSUE JAVELLANA, petitioner, vs. THE EXECUTIVESECRETARY, THE SECRETARY OF NATIONAL DEFENSE, THE

SECRETARY OF JUSTICE and THE SECRETARY OF FINANCE,respondents.

[G.R. No. L-36164. March 31, 1973.]

VIDAL TAN, J. ANTONIO ARANETA, ALEJANDRO ROCES,MANUEL CRUDO, ANTONIO U. MIRANDA, EMILIO DE

PERALTA and LORENZO M. TAÑADA, petitioners, vs. THEEXECUTIVE SECRETARY, THE SECRETARY OF FINANCE, THE

SECRETARY OF JUSTICE, THE SECRETARY OF LAND REFORMTHE SECRETARY OF NATIONAL DEFENSE, THE AUDITOR

GENERAL, THE BUDGET COMMISSIONER, THE CHAIRMANOF PRESIDENTIAL COMMISSION ON REORGANIZATION, THE

TREASURER OF THE PHILIPPINES, THE COMMISSION ONELECTIONS and THE COMMISSIONER OF CIVIL SERVICE,

respondents.

[G.R. No. L-36165. March 31, 1973.]

GERARDO ROXAS, AMBROSIO PADILLA, JOVITO R.SALONGA, SALVADOR H. LAUREL, RAMON V. MITRA, JR.and EVA ESTRADA-KALAW, petitioners, vs. ALEJANDRO

MELCHOR, in his capacity as Executive Secretary; JUANPONCE ENRILE, in his capacity as Secretary of National

Defense; General ROMEO ESPINO, in his capacity asChief of Staff of the Armed Forces of the philippines;

CONSTANCIO E. CASTAÑEDA, in his capacity as Secretaryof General Services; Senator GIL J. PUYAT, in his capacityas President of the Senate; and Senator JOSE ROY, in his

capacity as President Pro Tempore of the Senate,respondents.

[G.R. No. L-36236. March 31, 1973.]

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EDDIE B. MONTECLARO, [personally and in his capacityPresident of the National Press Club of the Philippines],

petitioner, vs, THE EXECUTIVE SECRETARY, THE SECRETARYOF PUBLIC INFORMATION, THE AUDITOR GENERAL, THEBUDGET COMMISSIONER & THE NATIONAL TREASURER,

respondent.

[G.R. No. L-36283. March 31, 1973.]

NAPOLEON V. DILAG, ALFREDO SALAPANTAN, JR.,LEONARDO ASODISEN, JR., and RAUL M. GONZALEZ,

petitioners, vs. THE HONORABLE SECRETARY OF NATIONALDEFENSE, THE HONORABLE BUDGET COMMISSIONER, THE

HONORABLE AUDITOR GENERAL, respondents.

Ramon A. Gonzales for petitioner Josue Javellana.

Lorenzo M. Tañada & Associates for petitioners Vidal Tan,et al.

Tañada, Salonga, Ordoñez, Rodrigo, Sanidad RoxasGonzales and Arroyo for petitioners Gerardo Roxas, et al.

Joker P. Arroyo and Rogelio B. Padilla for petitioner EddieMonteclaro.

Raul M. Gonzales & Associates for petitioners Napoleon V.Dilag, et al.

Arturo M. Tolentino for respondents Gil J. Puyat and JoseRoy.

Solicitor General Estelito P. Mendoza, Solicitor Vicente V .Mendoza and Solicitor Reynato S. Puno for other

respondents.

R E S O L U T I O N

CONCEPCION, J p:

The above entitled five (5) cases are a sequel of casesG.R. Nos. L-35925, L-35929, L-35940, L-35941, L-35942, L-35948, L-35953, L-35961, L-35965 and L-35979, decided onJanuary 22, 1973, to which We will hereafter refercollectively plebiscite cases.

Background of the Plebiscite Cases

The factual setting thereof is set forth in the decisionrendered, from which We quote:

"On March 16, 1967, Congress of the Philippines passedResolution No. 2, which was amended by Resolution No. 4of said body, adopted on June 17, 1969, calling aconvention to propose amendments to the Constitutionof the Philippines. Said Resolution No. 2, as amended, wasimplemented by Republic Act No. 6132, approved onAugust 24, 1970, pursuant to the provisions of which theelection of delegates to said Convention was held onNovember 10, 1970, and the, 1971 ConstitutionalConvention began to perform its functions on June 1,1971. While the Convention was in session on September21, 1972, the President issued Proclamation No. 1081

placing the entire Philippines under Martial Law. OnNovember 29, 1972, the Convention approved itsProposed Constitution of the Republic of the PhilippinesThe next day, November 30, 1972, the President of thePhilippines issued Presidential Decree No. 73, 'submittingto the Filipino people for ratification or rejection theConstitution of the Republic of the Philippines proposedby the 1971 Constitutional Convention, and appropriatingfunds therefor,' as well as setting the plebiscite for saidratification or rejection of the Proposed Constitution on

January 15, 1973.

"Soon after, or on December 7, 1972, Charito Planas filedwith this Court, Case G.R. No. L-35925, against theCommission on Elections, the Treasurer of the Philippinesand the Auditor General, to enjoin said 'respondents ortheir agents from implementing Presidential Decree No73, in any manner, until further orders of the Court,' uponthe grounds, inter alia that said Presidential Decree 'hasno force and effect as law because the calling . . . ofsuch plebiscite, the setting of guidelines for the conductof the same, the prescription of the ballots to be usedand the question to be answered by the voters, and theappropriation of public funds for the purpose, are, by the

Constitution, lodged exclusively in Congress . . .,' and'there is no proper submission to the people of saidProposed Constitution set for January 15, 1973, therebeing no freedom of speech, press and assembly, andthere being sufficient time to inform the people of thecontents thereof.'

"Substantially identical actions were filed, on Decembe8, 1972, by Pablo C. Sanidad against the Commission onElections (Case G.R. No. L-35929); on December 11, 1972by Gerardo Roxas, et al., against the Commission onElections, Director of Printing, the National Treasurer andthe Auditor General (Case G.R. L-35940), by Eddie BMonteclaro against the Commission on Elections and the

Treasurer of the Philippines (Case G.R. No L-35941), andby Sedfrey A. Ordoñez, et al. against the NationaTreasurer and the Commission on Elections (Case G.R. NoL-35942); on December 12, 1972, by Vidal Tan, et al.against the Commission on Elections, the Treasurer of thePhilippines, the Auditor General and the Director oPrinting (Case G.R. No. L-35948), and by Jose W. Dioknoand Benigno S. Aquino against the Commission onElections (Case G R No. L-35953); on December 14, 1972by Jacinto Jimenez against the Commission on Electionsthe Auditor General, the Treasurer of the Philippines andthe Director of the Bureau of Printing (Case G.R. No. L35961), and by Raul M. Gonzales against the Commissionon Elections, the Budget Commissioner, the NationaTreasurer and the Auditor General (Case G.R. No. L35965), and on December 16, 1972, by Ernesto C. Hidalgoagainst the Commission on Elections, the Secretary oEducation, the National Treasurer and the AuditoGeneral (Case G.R. No. L-35979).

"In all these cases, except the last (G.R. No. L-35979), therespondents were required to file their answers 'not laterthan 12:00 (o'clock) noon of Saturday, December 161972.' Said cases were, also, set for hearing and partlyheard on Monday, December 18, 1972, at 9:30 a.m. Thehearing was continued on December 19, 1972. By

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agreement of the parties, the aforementioned last case — G.R. No. L-35979 — was, also, heard, jointly with theothers, on December 19, 1972. At the conclusion of thehearing, on that date, the parties in all of theaforementioned cases were given a short period of timewithin which 'to submit their notes on the points theydesire to stress.' Said notes were filed on different dates,between December 21, 1972, and January 4, 1973.

"Meanwhile, or on December 17, 1972, the President had

issued an order temporarily suspending the effects ofProclamation No. 1081, for the purpose of free and opendebate on the Proposed Constitution. On December 23,the President announced the postponement of theplebiscite for ratification or rejection of the ProposedConstitution. No formal action to this effect was takenuntil January 7, 1973, when General Order No. 20 wasissued, directing 'that the plebiscite scheduled to be heldon January 15, 1973 be postponed until further notice.'Said General Order No. 20, moreover, 'suspended in themeantime' the 'order of December 17, 1972, temporarilysuspending the effects of Proclamation No. 1081 forpurposes of free and open debate on the proposedConstitution.'

"In view of these events relative to the postponement ofthe aforementioned plebiscite, the Court deemed it fit torefrain, for the time being, from deciding theaforementioned cases, for neither the date nor theconditions under which said plebiscite would be heldwere known or announced officially. Then, again,Congress was, pursuant to the 1935 Constitution,scheduled to meet in regular session on January 22, 1973,and since the main objection to Presidential Decree No.73 was that the President does not have the legislativeauthority to call a plebiscite and appropriate fundstherefor, which Congress unquestionably could do,particularly in view of the formal postponement of the

plebiscite by the President — reportedly afterconsultation with, among others, the leaders of Congressand the Commission on Elections — the Court deemed itmore imperative to defer its final action on these cases.

"In the afternoon of January 12, 1973, the petitioners inCase G.R. No. L-35948 filed an 'urgent motion,' prayingthat said case be decided 'as soon as possible,preferably not later than January 15, 1973.' It was allegedin said motion, inter alia.

'6.That the President subsequently announced theissuance of Presidential Decree No. 86 organizing the so-called Citizens Assemblies, to be consulted on certainpublic questions [Bulletin Today, January 1, 1973];

'7.That thereafter it was later announced that "theAssemblies will be asked if they favor or oppose —

"[1]The New Society;

"[2]Reforms instituted under Martial Law;

"[3]The holding of a plebiscite on proposed newConstitution and when (the tentative new dates given

following postponement of the plebiscite from theoriginal date of January 15 are February 19 and March 5)

"[4]The opening of the regular session on January 22 inaccordance with the existing Constitution despite MartiaLaw." [Bulletin Today, January 3, 1973.]

'8.That it was later reported that the following are to bethe forms of the questions to be asked to the CitizenAssemblies: —

"[1]Do you approve of the New Society?

"[2]Do you approve of the reform measures under martialaw?

"[3]Do you think that Congress should meet again inregular session?

"[4]How soon would you like the plebiscite on the newConstitution to be held?" [Bulletin Today, January 5, 1973]

'9.That the voting by the so-called Citizens Assemblies wasannounced to take place during the period from January10 to January 15, 1973;

'10.That on January 10, 1973, it was reported that onemore question would be added to the four (4) questionspreviously announced, and that the forms of thequestions would be as follows: —

"[1]Do you like the New Society?

"[2]Do you like the reforms under martial law?

"[3]Do you like Congress again to hold sessions?

"[4]Do you like the plebiscite to be held later?

"[5]Do you like the way President Marcos is running theaffairs of the government?" [Bulletin Today, January 101973; additional question italics.]

'11.That on January 11, 1973, it was reported that six (6)more questions would be submitted to the so calledAssemblies: —

"[1]Do you approve of the citizens assemblies as the baseof popular government to decide issues of nationainterests?

"[2]Do you approve of the New Constitution?

"[3]Do you want a plebiscite to be called to ratify thenew Constitution?

"[4]Do you want the elections to be held in November1973 in accordance with the provisions of the 1935Constitution?

"[5]If the elections would not be held, when do you wantthe next elections to be called?

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"[6]Do you want martial law to continue?" [Bulletin Today,January 11, 1973; italics supplied.]

'12.That according to reports, the returns with respect tothe six (6) additional questions quoted above will be on aform similar or identical to Annex "A" hereof;

'13. That attached to page 1 of Annex "A" is anotherpage which we marked as Annex "A-1", and which reads:

—

"COMMENTS ON

QUESTION No. 1

In order to broaden the base of citizen participation ingovernment.

QUESTION No. 2

But we do not want the Ad Interim Assembly to beconvoked. Or if it is to be convened at all, it should notbe done so until after at least seven (7) years from the

approval of the New Constitution by the CitizensAssemblies.

QUESTION No. 3

The vote of the Citizens Assemblies should already beconsidered the plebiscite on the Constitution.

If the Citizens Assemblies approve of the Constitution,then the new Constitution should be deemed ratified.

QUESTION No. 4

We are sick and tired of too frequent elections. We are

fed up with politics, of so many debates and so muchexpenses.

QUESTION No. 5

Probably a period of at least seven (7) years moratoriumon elections will be enough for stability to be establishedin the country, for reforms to take root and normalcy toreturn.

QUESTION No. 6

We want President Marcos to continue with Martial Law.We want him to exercise his powers with more authority.We want him to be strong and firm so that he canaccomplish all his reform programs and establishnormalcy in the country. If all other measures fail, wewant President Marcos to declare a revolutionarygovernment along the lines of the new Constitutionwithout the ad interim Assembly."

'Attention is respectfully invited to the comments on"Question No. 3," which reads: —

"QUESTION No. 3

The vote of the Citizens Assemblies should be consideredthe plebiscite on the New Constitution.

If the Citizens Assemblies approve of the NewConstitution, then the new Constitution should bedeemed ratified."

This, we are afraid, and therefore allege, is pregnant withominous possibilities.

'14.That, in the meantime, speaking on television andover the radio, on January 7, 1973, the Presidentannounced that the limited freedom of debate on theproposed Constitution was being withdrawn and that theproclamation of martial law and the orders and decreesissued thereunder would thenceforth strictly be enforced[Daily Express, January 8, 1973];

'15.That petitioners have reason to fear, and thereforestate, that the question added in the last list of questionsto be asked to the Citizens Assemblies, namely: —

"Do you approve of the New Constitution?" —

in relation to the question following it: —

"Do you still want a plebiscite to becalled to ratify thenew Constitution?" —

would be an attempt to by-pass and short-circuit thisHonorable Court before which the question of the validityof the plebiscite on the proposed Constitution is nowpending;

'16.That petitioners have reason to fear, and thereforeallege, that if an affirmative answer to the two questions just referred to will be reported then this Honorable Courand the entire nation will be confronted with a fait

accompli which has been attained in a highlyunconstitutional and undemocratic manner;

'17.That the fait accompli would consist in the supposedexpression of the people approving the proposedConstitution;

'18.That, if such event would happen, then the casebefore this Honorable Court could, to all intents andpurposes, become moot because, petitioners fear, andthey therefore allege, that on the basis of such supposedexpression of the will of the people through the CitizensAssemblies, it would be announced that the proposedConstitution, with all its defects, both congenital andotherwise, has been ratified;

'19.That, in such a situation, the Philippines will be facing areal crisis and there is likelihood of confusion if not chaosbecause then, the people and their officials will not knowwhich Constitution is in force.

'20.That the crisis mentioned above can only be avoidedif this Honorable Court will immediately decide andannounce its decision on the present petition;

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'21.That with the withdrawal by the President of thelimited freedom of discussion on the proposedConstitution which was given to the people pursuant toSee. 3 of Presidential Decree No. 73, the opposition ofrespondents to petitioners' prayer that the proposedplebiscite be prohibited has now collapsed and that afree plebiscite can no longer be held.'

"At about the same time, a similar prayer was made in a'manifestation' filed by the petitioners in L-35949, 'Gerardo

Roxas, et al, v. Commission on Elections, et al.,' and L-35942, 'Sedfrey Ordoñez, et al. v. The National Treasurer,et al.'

"The next day, January 13, 1973, which was a Saturday,the Court issued a resolution requiring the respondents insaid three (3) cases to comment on said 'urgent motion'and 'manifestation,' 'not later that Tuesday noon, January16, 1973.' Prior thereto, or on January 15, 1973, shortlybefore noon, the petitioners in said Case G.R. No. L-35948filed a 'supplemental motion for issuance of restrainingorder and inclusion of additional respondents,' praying —

'. . . that a restraining order be issued enjoining and

restraining respondent Commission on Elections, as wellas the Department of Local Governments and its head,Secretary Jose Roño; the Department of AgrarianReforms and its head, Secretary Conrado Estrella; theNational Ratification Coordinating Committee and itsChairman, Guillermo de Vega; their deputies,subordinates and substitutes, and all other officials andpersons who may be assigned such task, from collecting,certifying, and announcing and reporting to the Presidentor other officials concerned, the so-called Citizens'Assemblies referendum results allegedly obtained whenthey were supposed to have met during the periodcomprised between January 10 and January 15, 1973, onthe two questions quoted in paragraph 1 of this

Supplemental Urgent Motion.'

"In support of this prayer, it was alleged —

'3.That petitioners are now before this Honorable Court inorder to ask further that this Honorable Court issue arestraining order enjoining herein respondents, particularlyrespondent Commission on Elections as well as theDepartment of Local Governments and its head,Secretary Jose Roño; the Department of AgrarianReforms and its head, Secretary Conrado Estrella; theNational Ratification Coordinating Committee and itsChairman, Guillermo de Vega; and their deputies,subordinates and/or substitutes, from collecting certifying,announcing and reporting to the President the supposedCitizens' Assemblies referendum results allegedly obtainedwhen they were supposed to have met during the periodbetween January 10 and January 15, 1973, particularlyon the two questions quoted in paragraph 1 of thisSupplemental Urgent Motion;

'4.That the proceedings of the so-called Citizens'Assemblies are illegal, null and void particularly insofar assuch proceedings are being made the basis of asupposed consensus for the ratification of the proposedConstitution because: —

[a]The elections contemplated in the Constitution, ArticleXV, at which the proposed constitutional amendmentsare to be submitted for ratification, are elections at whichonly qualified and duly registered voters are permitted tovote, whereas, the so called Citizens' Assemblies wereparticipated in by persons 15 years of age and olderregardless of qualifications or lack thereof, as prescribedin the Election Code;[b]Elections or plebiscites for the ratification of

constitutional amendments contemplated in Article XV othe Constitution have provisions for the secrecy of choiceand of vote, which is one of the safeguards of freedom oaction, but votes in the Citizens' Assemblies were openand were cast by raising hands;[c]The Election Code makes ample provisions for freeorderly and honest elections, and such provisions are aminimum requirement for elections or plebiscites for theratification of constitutional amendments, but there wereno similar provisions to guide and regulate proceedingsof the so called Citizens' Assemblies;[d]It is seriously to be doubted that, for lack of materiatime, more than a handful of the so called CitizensAssemblies have been actually formed, because the

mechanics of their organization were still being discusseda day or so before the day they were supposed to beginfunctioning —

'Provincial governors and city and municipal mayors hadbeen meeting with barrio captains and communityleaders since last Monday [January 8, 1973] to thresh outhe mechanics in the formation of the Citizens' Assembliesand the topics for discussion.' [Bulletin Today, January 101973].'It should be recalled that the Citizens' Assemblies wereordered formed only at the beginning of the year [DailyExpress, January 1, 1973], and considering the lack ofexperience of the local organizers of said assemblies, as

well as the absence of sufficient guidelines foorganization, it is too much to believe that suchassemblies could be organized at such a short notice.

'5.That for lack of material time, the appropriateamended petition to include the additional officials andgovernment agencies mentioned in paragraph 3 of thisSupplemental Urgent Motion could not be completedbecause, as noted in the Urgent Motion of January 121973, the submission of the proposed Constitution to theCitizens' Assemblies was not made known to the publicuntil January 11, 1973. But be that as it may, the saidadditional officials and agencies may be properlyincluded in the petition at bar because: —

[a]The herein petitioners have prayed in their petition forthe annulment not only of Presidential Decree No. 73, bualso of "any similar decree, proclamation, order oinstruction."so that Presidential Decree No. 86, insofar at least as itattempts to submit the proposed Constitution to aplebiscite by the so-called Citizens' Assemblies, is properlyin issue in this case, and those who enforce, implementor carry out the said Presidential Decree No. 86, and theinstructions incidental thereto clearly fall within the scopeof this petition;

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[b]In their petition, petitioners sought the issuance of awrit of preliminary injunction restraining not only therespondents named in the petition but also their "agents"from implementing not only Presidential Decree No. 73,but also "any other similar decree, order, instruction, orproclamation in relation to the holding of a plebiscite onJanuary 15, 1973 for the purpose of submitting to theFilipino people for their ratification or rejection the 1972Draft or proposed Constitution approved by the

Constitutional Convention on November 30, 1972"; andfinally,[c]Petitioners prayed for such other relief which may be just and equitable. [p. 39, Petition].'Therefore, viewing the case from all angles, the officialsand government agencies mentioned in paragraph 3 ofthis Supplemental Urgent Motion, can lawfully hereached by the processes of this Honorable Court byreason of this petition, considering, furthermore, that theCommission on Elections has under our laws the power,among others, of: —

"(a)Direct and immediate supervision and control overnational, provincial, city, municipal and municipal district

officials required by law to perform duties relative to theconduct of elections on matters pertaining to theenforcement of the provisions of this Code . . ." [ElectionCode of 1971, Sec. 3].'6.That unless the petition at bar is decided immediatelyand the Commission on Elections, together with theofficials and government agencies mentioned inparagraph 3 of this Supplemental Urgent Motion arerestrained or enjoined from collecting, certifying,reporting or announcing to the President the results of thealleged voting of the so-called Citizens' Assemblies,irreparable damage will be caused to the Republic of thePhilippines, the Filipino people, the cause of freedom anddemocracy, and the petitioners herein because:

[a]After the result of the supposed voting on thequestions mentioned in paragraph 1 hereof shall havebeen announced, a conflict will arise between those whomaintain that the 1935 Constitution is still in force, on theone hand, and those who will maintain that it has beensuperseded by the proposed Constitution, on the other,thereby creating confusion, if not chaos;[b]Even the jurisdiction of this Court will be subject toserious attack because the advocates of the theory thatthe proposed Constitution has been ratified by reason ofthe announcement of the results of the proceedings ofthe so-called Citizens' Assemblies will argue that, GeneralOrder No. 3, which shall also be deemed ratified pursuantto the Transitory Provisions of the proposed Constitution,has placed Presidential Decree Nos. 73 and 86 beyondthe reach and jurisdiction of this Honorable Court.'"On the same date — January 15, 1973 — the Courtpassed a resolution requiring the respondents in said caseG.R. No. L-35948 to file 'file an answer to the said motionnot later than 4 P.M., Tuesday, January 16, 1973,' andsetting the motion for hearing 'on January 17, 1973, at9:30 a.m.' While the case was being heard, on the datelast mentioned, at noontime, the Secretary of Justicecalled on the writer of this opinion and said that, uponinstructions of the President, he (the Secretary of Justice)

was delivering to him (the writer) a copy of ProclamationNo. 1102, which had just been signed by the PresidentThereupon, the writer returned to the Session Hall andannounced to the Court, the parties in G.R. No. L-35948 — inasmuch as the hearing in connection therewith wasstill going on — and the public there present that thePresident had, according to information conveyed bythe Secretary of Justice, signed said Proclamation No1102, earlier that morning. Thereupon, the writer readProclamation No. 1102 which is of the following tenor:

'BY THE PRESIDENT OF THE PHILIPPINES'PROCLAMATION NO. 1102'ANNOUNCING THE RATIFICATION BY THE FILIPINO PEOPLEOF THE CONSTITUTION PROPOSED BY THE 1971CONSTITUTIONAL CONVENTION.

'WHEREAS, the Constitution proposed by the nineteenhundred seventy-one Constitutional Convention is subjecto ratification by the Filipino people;

'WHEREAS, Citizens Assemblies were created in barrios, inmunicipalities and in districts/wards in chartered citiespursuant to Presidential Decree No. 86, dated Decembe

31, 1972, composed of all persons who are residents ofthe barrio, district or ward for at least six months, fifteenyears of age or over, citizens of the Philippines and whoare registered in the list of Citizen Assembly members kepby the barrio, district or ward secretary;

'WHEREAS, the said Citizens Assemblies were establishedprecisely to broaden the base of citizen participation inthe democratic process and to afford ample opportunityfor the citizenry to express their views on importannational issues;

'WHEREAS, responding to the clamor of the people andpursuant to Presidential Decree No. 86-A, dated January

5, 1973, the following questions were posed before theCitizens Assemblies or Barangays: Do you approve of theNew Constitution? Do you still want a plebiscite to becalled to ratify the new Constitution?

'WHEREAS, fourteen million nine hundred seventy-sixthousand five hundred sixty-one (14,976,561) members oall the Barangays (Citizens Assemblies) voted for theadoption of the proposed Constitution, as against sevenhundred forty-three thousand eight hundred sixty-nine(743,869) who voted for its rejection; while on thequestion as to whether or not the people would still like aplebiscite to be called to ratify the new Constitutionfourteen million two hundred ninety-eight thousand eighhundred fourteen (14,298,814) answered that there wasno need for a plebiscite and that the vote of theBarangays (Citizens Assemblies) should be considered asa vote in a plebiscite;

'WHEREAS, since the referendum results show that morethan ninety-five (95) per cent of the members of theBarangays (Citizens Assemblies) are in favor of the newConstitution, the Katipunan ng Mga Barangay hasstrongly recommended that the new Constitution shouldalready be deemed ratified by the Filipino people;

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"c.Justice Zaldivar maintains unqualifiedly that theProposed Constitution has not been ratified inaccordance with Article XV of the 1935 Constitution, andthat, accordingly, it has no force and effect whatsoever.

"d.Justice Antonio feels 'that the Court is not competentto act' on the issue whether the Proposed Constitutionhas been ratified by the people or not, 'in the absence ofany judicially discoverable and manageable standards,'

since the issue 'poses a question of fact.'

"7.On the question whether or not these cases should bedismissed, Justices Makalintal, Castro, Barredo, Makasiar,Antonio and Esguerra voted in the affirmative, for thereasons set forth in their respective opinions. JusticesFernando, Teehankee, and the writer similarly voted,except as regards Case No. L-35948 as to which theyvoted to grant to the petitioners therein a reasonableperiod of time within which to file appropriate pleadingsshould they wish to contest the legality of PresidentialProclamation No. 1102. Justice Zaldivar favors thegranting of said period to the petitioners in said Case No.L-35948 for the aforementioned purpose, but he believes,

in effect, that the Court should go farther and decide onthe merits everyone of the cases under consideration."

Accordingly, the Court — acting in conformity with theposition taken by six (6) of its members, 1 with three (3)members dissenting, 2 with respect to G.R. No. L-35948,only, and another member 3 dissenting, as regards all ofthe cases — dismissed the same, without specialpronouncement as to costs.

The Present Cases

Prior thereto, or on January 20, 1973, Josue Javellana filedCase G.R. No. L-36142 against the Executive Secretary

and the Secretaries of National Defense, Justice andFinance, to restrain said respondents "and theirsubordinates or agents, from implementing any of theprovisions of the proposed Constitution not found in thepresent Constitution' — referring to that of 1935. Thepetition therein, filed by Josue Javellana, as a "Filipinocitizen, and a qualified and registered voter" and as "aclass suit, for himself, and in behalf of all citizens andvoters similarly situated," was amended on or aboutJanuary 24, 1973. After reciting in substance the facts setforth in the decision in the plebiscite cases, Javellanaalleged that the President had announced "theimmediate implementation of the New Constitution, thruhis Cabinet, respondents including," and that the latter"are acting without, or in excess of jurisdiction inimplementing the said proposed Constitution" upon theground: "that the President, as Commander-in-Chief ofthe Armed Forces of the Philippines, is without authority tocreate the Citizens Assemblies"; that the same "arewithout power to approve the proposed Constitution . . .";"that the President is without power to proclaim theratification by the Filipino people of the proposedConstitution"; and "that the election held to ratify theproposed Constitution was not a free election, hence nulland void."

Similar actions were filed, on January 23, 1973, by VidaTan, J. Antonio Araneta, Alejandro Roces, Manuel CrudoAntonio U. Miranda, Emilio de Peralta and Lorenzo MTañada against the Executive Secretary, the Secretariesof Finance Justice, Land Reform, and National Defensethe Auditor General, Budget Commissioner, theChairman of the Presidential Commission onReorganization, the Treasurer of the Philippines, theCommission on Elections and the Commissioner of CiviService 4 ; on February 3, 1973, by Eddie Monteclaro

personally and as President of the National Press Club othe Philippines, against the Executive Secretary, theSecretary of Public Information, the Auditor GeneralBudget Commissioner and the National Treasurer 5 ; andon February 12, 1973, by Napoleon V. Dilag, AlfredoSalapantan, Jr., Leonardo Asodisen, Jr. and Raul MGonzales, 6 against the Executive Secretary, theSecretary of National Defense, the Budget Commissioneand the Auditor General.

Likewise, on January 23, 1973, Gerardo Roxas, AmbrosioPadilla, Jovito R. Salonga, Salvador H. Laurel, 7 Ramon VMitra, Jr. and Eva Estrada-Kalaw, the first as "duly electedSenator and Minority Floor Leader of the Senate," and the

others as "duly elected members" thereof, filed Case G.RNo. L-36165, against the Executive Secretary, theSecretary of National Defense, the Chief of Staff of theArmed Forces of the Philippines, the Secretary of GeneraServices, the President and the President Pro Tempore ofthe Senate. In their petition — as amended on January26, 1973 — petitioners Gerardo Roxas, et al. allege, intealia, that the term of office of three (3) of theaforementioned petitioners 8 would expire en Decembe31, 1975, and that of the others 9 on December 31, 1977that pursuant to our 1935 Constitution, "which is still inforce," Congress of the Philippines "must convene for its8th Session on Monday, January 22, 1973, at 10:00 A.M.which is the regular customary hour of its opening

session"; that "on said day, from 10:00 A.M. up to theafternoon," said petitioner "along with their othecolleagues, were unlawfully prevent from using theSenate Session Hall, the same having be closed by theauthorities in physical possession and control of theLegislative Building'; that "(a)t about 5:00 to 6:00 P.M. ofthe said day, the premises of the entire LegislativeBuilding were ordered cleared by the same authoritiesand no one was allowed to enter and have access tosaid premises"; that "(r)espondent Senate President Gil JPuyat and, in his absence, respondent President ProTempore Jose Roy were asked by petitioning Senators toperform their duties under the law and the Rules of theSenate, but unlawfully refrained and continue to refrainfrom doing so"; that the petitioners "are ready and willingto perform their duties as duly elected members of theSenate of the Philippines," but respondents Secretary oNational Defense, Executive Secretary and Chief of Staff"through their agents and representatives, are preventingpetitioners from performing their duties as duly electedSenators of the Philippines"; that "the Senate premises inthe Congress of the Philippines Building . . . are occupiedby and are under the physical control of the elements ofmilitary organizations under the direction of saidrespondents"; that, as per "official reports, theDepartment of General Services . . . is now the civilian

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agent in custody of the premises of the LegislativeBuilding"; that respondents "have unlawfully excludedand prevented, and continue to so exclude and prevent"the petitioners from the performance of their swornduties, invoking the alleged approval of the 1972 (1973)Constitution of the Philippines by action of the so-calledCitizens' Assemblies on January 10, 1973 to January 15,197 ', as stated in and by virtue of Proclamation No. 1102signed and issued by the President of the Philippines"; that"the alleged creation of the Citizens' Assemblies as

instrumentalities for the ratification of the Constitution ofthe Republic of the Philippines" is inherently illegal andpalpably unconstitutional; that respondents SenatePresident and Senate President Pro Tempore "haveunlawfully refrained and continue to refrain from and/orunlawfully neglected and continue to neglect theperformance of their duties and functions as such officersunder the law and the Rules of the Senate" quoted in thepetition; that because of events supervening theinstitution of the plebiscite cases, to which reference hasbeen made in the preceding pages" the Supreme Courtdismissed said cases on January 22, 1973, by a majorityvote, upon the ground that the petitions therein hadbecome moot and academic; that the alleged

ratification of the 1972 (1973) Constitution "is illegal,unconstitutional and void and . . . can not havesuperseded and revoked the 1935 Constitution," for thereasons specified in the petition as amended; that, byacting as they did, the respondents and their "agents,representatives and subordinates . . . have excluded thepetitioners from an office to which" they "are lawfullyentitled"; that "respondents Gil J. Puyat and Jose Royhave unlawfully refrained from convening the Senate forits 8th session, assuming general jurisdiction over theSession Hall and the premises of the Senate and . . .continue such inaction up to this time and . . . a writ ofmandamus is warranted in order to compel them tocomply with the duties and functions specifically

enjoined by law"; and that "against the above mentionedunlawful acts of the respondents, the petitioners have noappeal nor other speedy and adequate remedy in theordinary course of law except by invoking the equitableremedies of mandamus and prohibition with theprovisional remedy of preliminary mandatory injunction."

Premised upon the foregoing allegations, said petitionersprayed that, "pending hearing on the merits, a writ ofpreliminary mandatory injunction be issued ordering therespondents Executive Secretary, the Secretary ofNational Defense, the Chief of Staff of the Armed Forcesof the Philippines, and the . . . Secretary of GeneralServices, as well as all their agents, representatives andsubordinates to vacate the premises of the Senate of thePhilippines and to deliver physical possession of the sameto the President of the Senate or his authorizedrepresentative"; and that "after hearing, judgment berendered declaring null and void Proclamation No. 1102 .. . and any order, decree, or proclamation having thesame import and objective, issuing the writs of prohibitionand mandamus, as prayed for against the above-mentioned respondents, and making the writ ofinjunction permanent; and that a writ of mandamus be

issued against the respondents Gil J. Puyat and Jose Roydirecting them to comply with their duties and functionsas President and President Pro Tempore, respectively, othe Senate of the Philippines, as provided by law and theRules of the Senate."

Required to comment on the above-mentioned petitionsand/or amended petitions, respondents filed, with theleave of Court first had and obtained, a consolidatedcomment on said petitions and/or amended petitions, a

consolidated comment on said petitions and/oamended petitions, alleging that the same ought to havebeen dismissed outright; controverting petitionersallegations concerning the alleged lack or impairment othe freedom of the 1971 Constitutional Convention toapprove the proposed Constitution, its alleged lack ofauthority to incorporate certain contested provisionsthereof, the alleged lack of authority of the President tocreate and establish Citizens' Assemblies "for the purposeof submitting to them the matter of ratification of the newConstitution," the alleged "improper or inadequatesubmission of the proposed constitution," the "procedurefor ratification adopted . . . through the CitizensAssemblies"; and maintaining that: 1) "(t)he Court is

without jurisdiction to act on these petitions"; 2) thequestions raised therein are "political in character andtherefore non-justiciable"; 3) "there was substantiacompliance with Article XV of the 1935 Constitution"; 4)"(t)he Constitution was properly submitted to the peoplein a free, orderly and honest election"; 5) "ProclamationNo. 1102, certifying the results of the election, isconclusive upon the courts"; and 6) "(t)he amendingprocess outlined in Article XV of the 1935 Constitution isnot exclusive of other modes of amendment."

Respondents Puyat and Roy, in said Case G.R. No. L36165, filed their separate comment therein, alleging tha"(t)he subject matter" of said case "is a highly politica

question which, under the circumstances, this . . . Courwould not be in a position to act upon judicially," andthat, in view of the opinions expressed by three membersof this Court in its decision in the plebiscite cases, in effectupholding the validity of Proclamation No. 1102, "furtheproceedings in this case may only be an academicexercise in futility."

On February 5, 1973, the Court issued a resolutionrequiring respondents in L 36236 to comment on thepetition therein not later than Saturday, February 101973, and setting the case for hearing on February 121973, at 9:30 a.m. By resolution dated February 7, 1973this Court resolved to consider the comments of therespondents in cases G.R. Nos. L-36142, L-36161, L-36165as motions to dismiss the petitions therein, and to set saidcases for hearing on the same date and time as L-36236On that date, the parties in G.R. No. L-36283 10 agreedthat the same be, likewise, heard, as it was, in fact, heard jointly with the aforementioned cases G.R. Nos. L-36142, L36164, L-36165 and L 36236. The hearing, which began onFebruary 12, shortly after 9:30 a.m., was continued notonly that after but, also, on February 13, 14, 15 and 16morning and afternoon, after which the parties weregranted up to February 24, 1973, noon, within which tosubmit their notes arguments and additional arguments

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as well as the documents required of them or whosepresentation was reserved by them. The same resolutiongranted the parties until March 1, 1973, to reply to thenotes filed by their respective opponents. Counsel for thepetitioners in G.R. Nos. L-36164 and L-36165 filed theiraforementioned notes on February 24, 1973, on whichdate the Solicitor General sought an extension of time upto March 3, 1973, within which to file his notes, which wasgranted, with the understanding that said notes shallinclude his reply to the notes already filed by the

petitioners in G.R. Nos. L-36164 and L-36165. Counsel forthe petitioners, likewise, moved and were granted anextension of time, to expire on March 10, 1973, withinwhich to file, as they did, their notes in reply to thosesubmitted by the Solicitor General on March 3, 1973. OnMarch 21, 1973, petitioners in l-36165 filed a"Manifestation and Supplemental Rejoinder," whereas theOffice of the Solicitor General submitted in all these casesa "Rejoinder to Petitioners' Replies."

After deliberating on these cases, the members of theCourt agreed that each would write his own opinion andserve a copy thereof on his colleagues, and this they did.Subsequently, the Court discussed said opinions and

votes were cast thereon. Such individual opinions areappended hereto.

Accordingly, the writer will first express his personalopinion on the issues before the Court. After theexposition of his aforesaid opinion, the writer will make,concurrently with his colleagues in the Court, a resume ofsummary of the votes cast by them in these cases.

Writer's Personal Opinion

IAlleged academic futility of further proceedings in G.R.No. L-36165.

This defense or theory, set up by counsel for respondentsGil J. Puyat and Jose Roy in G.R. No. L-36165, and, also,by the Solicitor General, is predicated upon the fact that,in Our decision in the plebiscite cases, Mr. Justice Barredoexpressed the view that the 1935 Constitution had "protanto passed into history" and "been legitimatelysupplanted by the Constitution now in force by virtue ofProclamation No. 1102 . . . "; that Mr. Justice Antonio didnot feel "that this Court is competent to act" in said cases"in the absence of any judicially discoverable andmanageable standards" and because "the access torelevant information is insufficient to assure the correctdetermination of the issue," apart from the circumstancethat "the new constitution has been promulgate andgreat interests have already arisen under it" and that thepolitical organ of the Government has recognized itsprovisions; whereas, Mr. Justice Esguerra had postulatedthat "(w)ithout any competent evidence . . . about thecircumstances attending the holding" of the referendumor plebiscite" thru the Citizens' Assemblies, he "cannot saythat it was not lawfully held" and that, accordingly, heassumed "that what the proclamation (No. 1102) says onits face is true and until overcome by satisfactoryevidence" he could not "subscribe to the claim that suchplebiscite was not held accordingly"; and that he

accepted "as a fait accompli that the Constitutionadopted (by the 1971 Constitutional Convention) onNovember 30, 1972, has been duly ratified."

Counsel for respondents Gil J. Puyat and Jose Roy goeson to say that, under these circumstances, "it seemsremote or improbable that the necessary eight (8) votesunder the 1935 Constitution, and much less the ten (10)votes required by the 1972 (1973) Constitution, can beobtained for the relief sought in the Amended Petition" in

G.R. No. L-36165.

I am unable to share this view. To begin with, Mr. JusticeBarredo announced publicly, in open court, during thehearing of these cases, that he was and is willing to beconvinced that his aforementioned opinion in theplebiscite cases should be reconsidered and changed. Ineffect, he thus declared that he had an open mind inconnection with the cases at bar, and that in decidingthe same he would not necessarily adhere to said opinionif the petitioners herein succeeded in convincing him thatheir view should be sustained.

Secondly, counsel for the aforesaid respondents had

apparently assumed that, under the 1935 Constitutioneigth (8) votes are necessary to declare invalid thecontested Proclamation No. 1102. I do not believe thatthis assumption is borne out by any provision of saidConstitution. Section 10 of Article VIII thereof reads:

"All cases involving the constitutionality of a treaty or lawshall be heard and decided by the Supreme Court inbanc, and no treaty or law may be declaredunconstitutional without the concurrence of two thirds oall the members of the Court."

Pursuant to this section, the concurrence of two thirds oall the Members of the Supreme Court is required only to

declare a "treaty or law" unconstitutional. Construing saidprovision, in a resolution dated September 16, 1949, thenChief Justice Moran, voicing the unanimous view of theMembers of this Court, postulated:

". . . There is nothing either in the Constitution or in theJudiciary Act requiring the vote of eight Justices to nullifya rule or regulation or an executive order issued by thePresident. It is very significant that in the previous drafts ofsection 10, Article VIII of the Constitution, 'execution orderand 'regulation' were included among those thatrequired for their nullification the vote of two-thirds of althe members of the Court. But 'executive order' and'regulation' were later deleted from the final draft(Aruego, The Framing of the Philippine Constitution, Vol. Ipp. 495, 496), and thus a mere majority of six members ofthis Court is enough to nullify them." 11

The distinction is not without reasonable foundation. Thetwo thirds vote (eight [8] votes) requirement, indeed, wasmade to apply only to treaty and law, because, in thesecases, the participation of the two other departments othe government — the Executive and the Legislative — ispresent, which circumstance is absent in the case orules, regulations and executive orders. Indeed, alaw(statute) passed by Congress is subject to the

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approval or veto of the President, whose disapprovalcannot be overridden except by the vote of two-thirds(2/3) of all members of each House of Congress. 12 Atreaty is entered into by the President with theconcurrence of the Senate, 13 which is not required inthe case of rules, regulations or executive orders whichare exclusive acts of the President. Hence, to nullify thesame, a lesser number of votes is necessary in theSupreme Court than that required to invalidate a law ortreaty.

Although the foregoing refers to rules, regulations andexecutive orders issued by the President, the dictumapplies with equal force to executive proclamations, likesaid Proclamation No. 1102, inasmuch as the authority toissue the same is governed by section 63 of the RevisedAdministrative Code, which provides:

"Administrative acts and commands of the (Governor-General) President of the Philippines touching theorganization or mode of operation of the Government orrearranging or readjusting any of the districts, divisions,

parts, or ports of the (Philippine Islands) Philippines and allacts and commands governing the general performanceof duties by public employees or disposing of issues ofgeneral concern shall be made effective in executiveorders.

"Executive orders fixing the dates when specific laws,resolutions, or orders are to have or cease to (have)effect and any information concerning matters of publicmoment determined by law, resolution, or executiveorders, may be promulgated in an executiveproclamation, with all the force of an executive order." 14

In fact, while executive orders embody administrative

acts or commands of the President, executiveproclamations are mainly informative and declaratory incharacter, and so does counsel for respondents Gil J.Puyat and Jose Roy maintain in G.R. No. L-36165. 15 Asconsequence, an executive proclamation has no morethan "the force of an executive order," so that, for theSupreme Court to declare such proclamationunconstitutional, under the 1935 Constitution, the samenumber of votes needed to invalidate an executiveorder, rule of regulation — namely, six (6) votes — wouldsuffice.

As regards the applicability of the provisions of theproposed new Constitution, approved by the 1971Constitutional Convention, in the determination of thequestion whether or not it is now in force, it is obvious thatsuch question depends upon whether or not the said newConstitution has been ratified in accordance with therequirements of the 1935 Constitution, upon the authorityof which said Constitutional Convention was called andapproved the proposed Constitution. It is well settled thatthe matter of ratification of an amendment to theConstitution should be settled by applying the provisionsof the Constitution in force at the time of the allegedratification, or the old Constitution. 16

IIDoes the issue on the validity of Proclamation No. 1102partake of the nature of a political, and, hence, non- justiciable question?

The Solicitor General maintains in his comment theaffirmative view and this is his main defense. In supportthereof, he alleges that "petitioners would have this Courdeclare as invalid the New Constitution of the Republicfrom which — he claims — "this Court now derives its

authority"; that "nearly 15 million of our body politic fromthe age of 15 years have mandated this Constitution tobe the New Constitution and the prospect of unsettlingacts done in reliance on it caution against interposition ofthe power of judicial review"; that "In the case of the NewConstitution, the government has been recognized inaccordance with the New Constitution"; that "thecountry's foreign relations are now being conducted inaccordance with the new charter"; that "foreigngovernments have taken note of it"; that the "plebiscitecases" are "not precedents for holding questionsregarding proposal and ratification justiciable"; and tha"to abstain from judgment on the ultimate issue oconstitutionality is not to abdicate duty."

At the outset, it is obvious to me that We are not beingasked to "declare" the new Constitution invalid. Whatpetitioners dispute is the theory that it has been validlyratified by the people, especially that they have done soin accordance with Article XV of the 1935 ConstitutionThe petitioners maintain that the conclusion by the ChieExecutive in the dispositive portion of Proclamation No1102 is not borne out by the whereases preceding thesame, as the predicates from which said conclusion wasdrawn; that the plebiscite or "election" required in saidArticle XV has not been held; that the Chief Executive hasnot authority, under the 1935 Constitution, to dispensewith said election or plebiscite; that the proceedings

before the Citizens' Assemblies did not constitution andmay not be considered as such plebiscite; that the factsof record abundantly show that the aforementionedAssemblies could not have been held throughout thePhilippines from January 10 to January 15, 1973; and thatin any event, the proceedings in said Assemblies are nuland void as an alleged ratification of the newConstitution proposed by the 1971 ConstitutionaConvention, not only because of the circumstancesunder which said Assemblies had been created andheld, but, also, because persons disqualified to voteunder Article V of the Constitution were allowed toparticipate therein, because the provisions of our ElectionCode were not observed in said Assemblies, because thesame were not held under the supervision of theCommission on Elections, in violations of section 2 oArticle X of the 1935 Constitution, and because theexistence of Martial Law and General Order No. 20withdrawing or suspending the limited freedom to discussthe merits and demerits of said proposed Constitutionimpaired the people's freedom in voting thereonparticularly, a viva voce, as it was done in manyinstances, as well as their ability to have a reasonableknowledge of the contents of the document on whichthey were allegedly called upon to express their views.

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Referring now more specifically to the issue on whetherthe new Constitution proposed by the 1971 ConstitutionalConvention has been ratified in accordance with theprovisions of Article XV of the 1935 Constitution is apolitical question or not, I do not hesitate to state that theanswer must be in the negative. Indeed, such is theposition taken by this Court, 17 in an endless line ofdecisions, too long to leave any room for possible doubtthat said issue is inherently and essentially justiciable.Such, also, has been the consistent position of the courts

of the United States of America, whose decisions have apersuasive effect in this jurisdiction, our constitutionalsystem in the 1935 Constitution being patterned after thatof the United States. Besides, no plausible reason has, tomy mind, been advanced to warrant a departure fromsaid position, consistently with the form of governmentestablished under said Constitution.

Thus, in the aforementioned plebiscite cases, 18 Werejected the theory of the respondents therein that thequestion whether Presidential Decree No. 73 calling aplebiscite to be held on January 15, 1973, for theratification or rejection of the proposed new Constitution,was valid or not, was not a proper subject of judicial

inquiry because, they claimed, it partook of a politicalnature; and We unanimously declared that the issue wasa justiciable one. With identical unanimity, We overruledthe respondents' contention in the 1971 habeas corpuscases, 19 questioning Our authority to determine theconstitutional sufficiency of the factual bases of thePresidential proclamation suspending the privileges of thewrit of habeas corpus on August 21, 1971, despite theopposite view taken by this Court in Barcelona v. Baker 20and Montenegro v. Castañeda, 21 insofar as it adheredto the former case, which view We, accordinglyabandoned and refused to apply. For the same reason,We did not apply and expressly modified, in Gonzales v.Commission on Elections, 22 the political-question theory

adopted in Mabanag v. Lopez Vito. 23 Hence,respondents herein urge Us to reconsider the action thustaken by the Court and to revert to and follow the viewsexpressed in Barcelon v. Baker and Mabanag v. LopezVito. 24

The reasons adduced in support thereof are, however,substantially the same as those given in support of thepolitical-question theory advanced in said habeas corpusand plebiscite cases, which were carefully considered bythis Court and found by it to be legally unsound andconstitutionally untenable. As a consequence, Ourdecision in the aforementioned habeas corpus casespartakes of the nature and effect of a stare decisis, whichgained added weight by its virtual reiteration in theplebiscite cases.

The reason why the issue under consideration and otherissues of similar character are justiciable, not political, isplain and simple. One of the principal bases of the non- justiciability of so-called political questions is the principleof separation of powers — characteristic of thePresidential system of government — the functions ofwhich are classified or divided, by reason of their nature,into three (8) categories, namely: 1) those involving themaking of laws, which are allocated to the legislative

department; 2) those concerned mainly with theenforcement of such laws and of judicial decisionsapplying and/or interpreting the same, which belong tothe executive department; and 3) those dealing with thesettlement of disputes, controversies or conflicts involvingrights, duties or prerogatives that are legally demandableand enforceable, which are apportioned to courts o justice. Within its own sphere — but only within suchsphere — each department is supreme and independentof the others, and each is devoid of authority, not only to

encroach upon the powers or field of action assigned toany of the other departments, but, also, to inquire into opass upon the advisability or wisdom of the actsperformed, measures taken or decisions made by theother departments — provided that such acts, measuresor decisions are within the area allocated thereto by theConstitution. 25

This principle of separation of powers under thePresidential system goes hand in hand with the system ofchecks and balances, under which each department isvested by the Fundamental Law with some powers toforestall, restrain or arrest a possible or actual misuse orabuse of powers by the other departments. Hence, the

appointing power of the Executive, his pardoning powerhis veto power, his authority to call the Legislature oCongress to special sessions and even to prescribe or limitthe object or objects of legislation that may be taken upin such sessions, etc. Conversely, Congress or an agencyor arm thereof — such as the Commission onAppointments; — may approve or disapprove someappointments made by the President, It, also, has thepower of appropriation, to "define, prescribe, andapportion the jurisdiction of the various courts," as well asthat of impeachment. Upon the other hand, under the judicial power vested by the Constitution, the "SupremeCourt and . . . such inferior courts as may be establishedby law," may settle or decide with finality, not only

justiciable controversies between private individuals oentities, but, also, disputes or conflicts between a privateindividual or entity, on the one hand, and an officer orbranch of the government, on the other, or between two(2) officers or branches of service, when the latter officeor branch is charged with acting without jurisdiction or inexcess thereof or in violation of law. And so, when apower vested in said officer or branch of the governmentis absolute or unqualified, the acts in the exercise of suchpower are said to be political in nature, andconsequently, non-justiciable beyond judicial reviewOtherwise, courts of justice would be arrogating uponthemselves a power conferred by the Constitution uponanother branch of the service to the exclusion of theothers. Hence, in Tañada v. Cuenco, 26 this Court quotedwith approval from In re McConaughy, 27 the following:

"'At the threshold of the case we are met with theassertion that the questions involved are political, and no judicial. If this is correct, the court has no jurisdiction asthe certificate of the state canvassing board would thenbe final, regardless of the actual vote upon theamendment. The question thus raised is a fundamentaone; but it has been so often decided contrary to the

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view contended for by the Attorney General that it wouldseem to be finally settled.

xxx xxx xxx

"'. . . What is generally meant, when it is said that aquestion is political, and not judicial, is that it is a matterwhich is to be exercised by the people in their primarypolitical capacity, or that it has been specificallydelegated to some other department or particular officer

of the government, with discretionary power to act. SeeState vs. Cunningham, 81 Wis. 497, N.W. 724, 15 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, 42Am. St. Rep. 220. Thus the Legislature may in its discretiondetermine whether it will pass a law or submit a proposedconstitutional amendment to the people. The courtshave no judicial control over such matters, not merelybecause they involve political questions, but becausethey are matters which the people have by theConstitution delegated to the Legislature. The Governormay 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 discretionaryacts cannot be controllable, not primarily because theyare of a political nature, but because the Constitutionand laws have placed the particular matter under hiscontrol. But every officer under a constitutionalgovernment must act according to law and subject to itsrestrictions, and every departure therefrom or disregardthereof must subject him to that restraining andcontrolling power of the people, acting through theagency of the judiciary; for it must be remembered thatthe people act through courts, as well as through theexecutive or the Legislature. One department is just asrepresentative as the other, and the judiciary is thedepartment which is charged with the special duty of

determining the limitations which the law places upon allofficial action. The recognition of this principle, unknownexcept in Great Britain and America, is necessary, to "theend that the government may be one of laws and not ofmen" — words which Webster said were the greatestcontained in any written constitutional document.' (Italicssupplied.)"

and, in an attempt to describe the nature of a politicalquestion in terms, it was hoped, understandable to thelaymen, We added that ". . . the term 'political question'connotes, in legal parlance, what it means in ordinaryparlance, namely, a question of policy" in mattersconcerning the government of a State, as a body politic."In other words, in the language of Corpus JurisSecundum (supra), it refers to 'those questions which,under the Constitution, are to be decided by the peoplein their sovereign capacity, or in regard to which fulldiscretionary authority has been delegated to theLegislature or executive branch of the government.' It isconcerned with issues dependent upon the wisdom, notlegality, of a particular measure."Accordingly, when the grant of power is qualified,conditional or subject to limitations, the issue on whetheror not the prescribed qualifications or conditions havebeen met, or the limitations respected, it justiciable or

non-political, the crux of the problem being one olegality or validity of the contested act, not its wisdomOtherwise, said qualifications, conditions or limitations —particularly those prescribed or imposed by theConstitution — would be set at naught. What is more, the judicial inquiry into such issue and the settlement thereoare the main functions of courts of justice under thePresidential form of government adopted in our 1935Constitution, and the system of checks and balancesone of its basic predicates. As a consequence, We have

neither the authority nor the discretion to decline passingupon said issue, but are under the ineluctable obligation — made particularly more exacting and peremptory byour oath, as members of the highest Court of the land, tosupport and defend the Constitution — to settle it. Thisexplains why, in Miller v. Johnson, 28 it was held thatcourts have a "duty, rather than a power", to determinewhether another branch of the government has "keptwithin constitutional limits." Not satisfied with this postulatethe court went farther and stressed that, if theConstitution provides how it may be amended — as it is inour 1935 Constitution — "then, unless the manner isfollowed, the judiciary as the interpreter of thatconstitution, will declare the amendment invalid." 29 In

fact, this very Court — speaking through Justice Laurelan outstanding authority on Philippine Constitutional Lawas well as one of the highly respected and foremosleaders of the Convention that drafted the 1935Constitution — declared, as early as July 15, 1936, tha"(i)n times of social disquietude or political excitementthe great landmarks of the Constitution are apt to beforgotten or marred, if not entirely obliterated. In cases ofconflict, the judicial department is the only constitutionaorgan which can be called upon to determine theproper allocation of powers between the severadepartments" of the government. 30

The Solicitor General has invoked Luther v. Borden 31 in

support of his stand that the issue under consideration isnon-justiciable in nature. Neither the factual backgroundof that case nor the action taken therein by the FederaSupreme Court has any similarity with or bearing on thecases under consideration.

Luther v. Borden was an action for trespass filed by Luthewith the Circuit Court of the United States against Bordenand others for having forcibly entered into Luther's housein Rhode Island, sometime in 1842. The defendants whowere in the military service of said former colony oEngland, alleged in their defense that they had acted inobedience to the commands of a superior officerbecause Luther and others were engaged in aconspiracy to overthrow the government by force andthe state had been placed by competent authorityunder Martial Law. Such authority was the chartegovernment of Rhode Island at the time of theDeclaration of Independence, for — unlike other stateswhich adopted a new Constitution upon secession fromEngland — Rhode Island retained its form of governmentunder a British Charter, making only such alterations, byacts of the Legislature, as were necessary to adapt it to itssubsequent condition as an independent state. It wasunder this form of government when Rhode Island joinedother American states in the Declaration o

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Independence and, by subsequently ratifying theConstitution of the United States, became a member ofthe Union. In 1843, it adopted a new Constitution.

Prior thereto, however, many citizens had becomedissatisfied with the charter government. Memorialsaddressed by them to the Legislature having failed tobring about the desired effect, meetings were held andassociations formed — by those who belonged to thissegment of the population — which eventually resulted in

a convention called for the drafting of a new Constitutionto be submitted to the people for their adoption orrejection. The convention was not authorized by any lawof the existing government. The delegates to suchconvention framed a new Constitution which wassubmitted to the people. Upon the return of the votescast by them, the convention declared that saidConstitution had been adopted and ratified by amajority of the people and became the paramount lawand Constitution of Rhode Island.

The charter government, which was supported by a largenumber of citizens of the state, contested, however, thevalidity of said proceedings. This notwithstanding, one

Thomas W. Dorr, who had been elected governor underthe new Constitution of the rebels, prepared to assertauthority by force of arms, and many citizens assembledto support him. Thereupon, the charter governmentpassed an Act declaring the state under Martial Law andadopted measures to repel the threatened attack andsubdue the rebels. This was the state of affairs when thedefendants, who were in the military service of thecharter government and were to arrest Luther, forengaging in the support of the rebel government — which was never able to exercise any authority in thestate — broke into his house.

Meanwhile, the charter government had taken measures

to call its own convention to revise the existing form ofgovernment. Eventually, a new constitution was draftedby a convention held under the authority of the chartergovernment, and thereafter was adopted and ratified bythe people. "(T)he times and places at which the voteswere to be persons who were to be given, the receiveand return them qualifications of the voters having allbeen previously authorized and provided for by lawpassed by the charter government," the latter formallysurrendered all of its power to the new government,established under its authority, in May 1843, which hadbeen in operation uninterruptedly since then.

About a year before, or in May 1842, Dorr, at the head ofa military force, had made an unsuccessful attempt totake possession of the state arsenal in Providence, but hewas repulsed, and, after an "assemblage of somehundreds of armed men under his command atChepatchet in the June following which dispersed uponapproach of the troops of the old government, no furthereffort was made to establish" his government. ". . . untilthe Constitution of 1843" — adopted under the auspicesof the charter government — "went into operation, thecharter government continued to asset its authority andexercise its powers and to enforce obedience throughoutthe state . . ."

Having offered to introduce evidence to prove that theconstitution of the rebels had been ratified by themajority of the people, which the Circuit Court rejectedapart from rendering judgment for the defendants, theplaintiff took the case for review to the Federal SupremeCourt which affirmed the action of the Circuit Courtstating:

"It is worthy of remark, however, when we are referring tothe authority of State decisions, that the trial of ThomasW. Dorr took place after the constitution of 1843 wheninto operation. The judges who decided that the caseheld their authority under that constitution; and it isadmitted on all hands that it was adopted by the peopleof the State, and is the lawful and establishedgovernment. It is the decision, therefore, of a State courtwhose judicial authority to decide upon the constitutionand laws of Rhode Island is not questioned by either partyto this controversy, although the government undewhich it acted was framed and adopted under thesanction and laws of the charter government.

"The point, then, raised here has been already decidedby the courts of Rhode Island. The question relatesaltogether, to the constitution and laws of that State; andthe well settled rule in this court is, that the courts of theUnited States adopt and follow the decisions of the Statecourts in questions which concern merely the constitutionand laws of the State.

"Upon what ground could the Circuit Court of UnitedStates which tried this case have departed from this ruleand disregarded and overruled the decisions of thecourts of Rhode Island? Undoubtedly the courts of theUnited States have certain powers under the Constitution

and laws of the United States which do not governmenthas been lawfully established, which the courts of Statedisown and repudiate, is not one of them. Upon such aquestion the courts of the United States are bound tofollow the decisions of the State tribunals, and musttherefore regard the charter government as the lawfuand established government during the time of thiscontest." 32

It is thus apparent that the context within which the caseof Luther v. Borden was decided is basically andfundamentally different from that of the cases at bar. Tobegin with, the case did not involve a federal questionbut one purely municipal in nature. Hence, the FederaSupreme Court was "bound to follow the decisions of theState tribunals" of Rhode Island upholding the constitutionadopted under the authority of the charter governmentWhatever else was said in that case constitutestherefore, an obiter dictum. Besides, no decisionanalogous to that rendered by the State Court of RhodeIsland exists in the cases at bar. Secondly, the states othe Union have a measure of internal sovereignty uponwhich the Federal Government may not encroachwhereas ours is a unitary form of government, undewhich our local governments derive their authority fromthe national government. Again, unlike our 1935

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Constitution, the charter or organic law of Rhode Islandcontained no provision on the manner, procedure orconditions for its amendment.

Then, too, the case of Luther v. Borden hinged more onthe question of recognition of government, than onrecognition of constitution, and there is a fundamentaldifference between these two (2) types of recognition,the first being generally conceded to be a politicalquestion, whereas the nature of the latter depends upon

a number of factors, one of them being whether the newConstitution in force at the time of the purportedratification of the former, which is essentially a justiciablequestion. There was, in Luther v. Borden, a conflictbetween two (2) rival governments, antagonistic to eachother, which is absent in the present cases. Here, theGovernment established under the 1935 Constitution isthe very same government whose Executive Departmenthas urged the adoption of the new or revised Constitutionproposed by the 1971 Constitutional Convention andnow alleges that it has been ratified by the people.

In short, the views expressed by the Federal SupremeCourt in Luther v. Borden, decided in 1849, on matters

other than those referring to its power to review decisionsof a state court concerning the constitution andgovernment of that state, not the Federal Constitution orGovernment, are manifestly neither controlling, nor evenpersuasive in the present cases, having — as the FederalSupreme Court admitted — no authority whatsoever topass upon such matters or to review decisions of saidstate court thereon. In fact, referring to that case, theSupreme Court of Minnesota had the following to say:

"Luther v. Borden, 7 How. 1, 12 L. Ed. 581, is always citedby those who assert that the courts have no power todetermine questions of a political character. It isinteresting historically, but it has not the slightest

application to the case at bar. When carefully analyzed,it appears that it merely determines that the federalcourts will accept as final and controlling a decision ofthe highest court of a state upon a question of theconstruction of the Constitution of the state . . ." 33

Baker v. Carr, 34 cited by respondents, involved anaction to annul a Tennessee statute apportioning theseats in the General Assembly among the counties of theState, upon the theory that the legislation violated theequal protection clause. A district court dismissed thecase upon the ground, among others, that the issue wasa political one, but, after a painstaking review of the jurisprudence on the matter, the Federal Supreme Courtreversed the appealed decision and held that said issuewas justiciable and non-political, inasmuch as: ". . .(d)eciding whether a matter has in any measure beencommitted by the Constitution to another branch ofgovernment, or whether the action of that branchexceeds whatever authority has been committed, is itselfa delicate exercise in constitutional interpretation, and isa responsibility of this Court as ultimate interpreter of theConstitution . . ."

Similarly, in Powell v. McCormack, 35 the same Court,speaking through then Chief Justice Warren, reversed a

decision of the Court of Appeals of New York affirmingthat of a Federal District Court, dismissing Powell's actionfor a declaratory judgment declaring thereunder that he — whose qualifications were uncontested — had beenunlawfully excluded from the 90th Congress of the U.SSaid dismissal was predicated upon the ground, inter aliathat the issue was political, but the Federal SupremeCourt held that it was clearly a justiciable one.

The Supreme Court of Minnessota undertook a carefu

review of American jurisprudence on the matter. Owingto the lucidity of its appraisal thereof, We append thesame to this opinion as Annex A thereof.

After an exhaustive analysis of the cases on this subjectthe Court concluded:

"The authorities are thus practically uniform in holding thawhether a constitutional amendment has been properlyadopted according to the requirements of an existingConstitution is a judicial question. There can be littledoubt that the consensus of judicial opinion is to theeffect that it is the absolute duty of the judiciary todetermine whether the Constitution has been amended

in the manner required by the Constitution, unless aspecial tribunal has been created to determine thequestion; and even then many of the courts hold that thetribunal cannot be permitted to illegally amend theorganic law . . . " 36

In the light of the foregoing, and considering that Art. XVof our 1935 Constitution prescribes the method oprocedure for its amendment, it is clear to my mind thatthe question whether or not the revised Constitutiondrafted by the 1971 Constitutional Convention has beenratified in accordance with said Art. XV is a justiciableone and non-political in nature, and that it is not onlysubject to judicial inquiry, but, also, that it is the Court's

bounden duty to decide such question.

The Supreme Court of the United States has meaningfullypostulated that "the courts cannot reject as 'no law suit' — because it allegedly involves a political question — "abona fide controversy as to whether some actiondenominated 'political' exceeds constitutional authority.'37

IIIHas the proposed new or revised Constitution beenratified conformably to said Art. XV of the 1935Constitution?

Petitioners in L-36142 maintain the negative view, uponthe ground: 1) that the President "is without authority tocreate the Citizens' Assemblies" through whichrespondents maintain, the proposed new Constitution hasbeen ratified; 2) that said Assemblies "are without poweto approve the proposed Constitution"; 3) that thePresident "is without power to proclaim the ratification bythe Filipino people of the proposed Constitution"; and4),that "the election held (in the Citizens' Assemblies) toratify the proposed Constitution was not a free electionhence null and void."

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Apart from substantially reiterating these grounds supportof said negative view, the petitioners in L-36164 contend:1) that the President "has no power to call a plebiscite forthe ratification or rejection" of the proposed Constitutionor "to appropriate funds for the holding of said plebiscite";2) that the proposed new or revised Constitution "is vagueand incomplete," as well as "contains provisions which arebeyond the powers of the 1971 Convention to enact,"thereby rendering it "unfit for . . . submission to thepeople;" 3) that "(t)he period of time between November

30, 1972 when the 1972 draft was approved and January11-15, 1973," when the Citizens' Assemblies supposedlyratified said draft, "was too short, worse still, there waspractically no time for the Citizens' Assemblies to discussthe merits of the Constitution which the majority of themhave not read and which they never knew would besubmitted to them for ratification until they were askedthe question — 'do you approve of the NewConstitution?' during the said days of the voting"; andthat "(t)here was altogether no freedom of discussion andno opportunity to concentrate on the matter submittedto them when the 1972 draft was supposedly submittedto the Citizens' Assemblies for ratification."

Petitioner in L-36236 added, as arguments in support ofthe negative view, that: 1) "(w)ith a government-controlled press, there can never be a fair and propersubmission of the proposed Constitution to the people";and 2) Proclamation No. 1102 is null and void "(i)nasmuchas the ratification process" prescribed "in the 1935Constitution was not followed."

Besides adopting substantially some of the grounds reliedupon by the petitioners in the above mentioned cases,the petitioners in L-36283 argue that "(t)he creation of theCitizens' Assemblies as the vehicle for the ratification of

the Constitution was a deception upon the people sincethe President announced the postponement of theJanuary 15, 1973 plebiscite to either February 19 or March5, 1973." 38

The reasons adduced by the petitioners in L-36165 infavor of the negative view have already been set forthearlier in this opinion. Hence, it is unnecessary toreproduce them here. So it is, with respect to the positionstaken in L-36165 by counsel for therein respondents Gil J.Puyat and Jose Roy — although more will be said laterabout them — and by the Solicitor General, on behalf ofthe other respondents in that case and the respondentsin the other cases.

1.What is the procedure prescribed by the 1935Constitution for its amendment?

Under section 1 of Art. XV of said Constitution, three (3)steps are essential, namely:

1.That the amendments to the Constitution be proposedeither by Congress or by a convention called for thatpurpose, "by a vote of three-fourths of all the Members ofthe Senate and the House of Representatives votingseparately," but "in joint session assembled";

2.That such amendments be "submitted to the people fotheir ratification" at an "election"; and

3.That such amendments be "approved by a majority othe votes cast" in said election.

Compliance with the first requirement is virtuallyconceded, although the petitioners in L-36164 questionthe authority of the 1971 Constitutional Convention to

incorporate certain provisions into the draft of the new orrevised Constitution The main issue in these five (5) caseshinges, therefore, on whether or not the last two (2)requirements have been complied with.

2.Has the contested draft of the new or revisedConstitution been "submitted to the people for theiratification" conformably to Art. XV of the Constitution?

In this connection, other provisions of the 1935Constitution concerning "elections" must, also, be takeninto account, namely, section 1 of Art. V and Art. X ofsaid Constitution. The former reads:

"Section 1.Suffrage may be exercised by male citizens ofthe Philippines not otherwise disqualified by law, who aretwenty-one years of age or over and are able to readand write, and who shall have resided in the Philippinesfor one year and in the municipality wherein theypropose to vote for at least six months preceding theelection. The National Assembly shall extend the right ofsuffrage to women, if in a plebiscite which shall be heldfor that purpose within two years after the adoption othis Constitution, not less than three hundred thousandwomen possessing the necessary qualifications shall voteaffirmatively on the question."

Sections 1 and 2 of Art. X of the Constitution ordain in

part:

"Section 1.There shall be an independent Commission onElections composed of a Chairman and two otheMembers to be appointed by the President with theconsent of the Commission on Appointments, who shalhold office for a term of nine years and may not bereappointed . . .

"xxx xxx xxx

"Sec. 2.The Commission on Elections shall have exclusivecharge of the enforcement and administration of all lawsrelative to the conduct of elections and shall exercise alother functions which may be conferred upon it by law. Ishall decide, save those involving the right to vote, aladministrative questions, affecting elections, includingthe determination of the number and location of pollingplaces, and the appointment of election inspectors andof other election officials. All law enforcement agenciesand instrumentalities of the Government, when sorequired by the Commission, shall act as its deputies fothe purpose of insuring free, orderly, and honest electionsThe decisions, orders, and rulings the Commission shall besubject to review by the Supreme Court.

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"xxx xxx xxx" 39a.Who may vote in a plebiscite under Art. V of theConstitution?

Petitioners maintain that section 1 of Art. V of theConstitution is a limitation upon the exercise of the right ofsuffrage. They claim that no other persons than "citizen ofthe Philippines not otherwise disqualified by law, who aretwenty-one years of age or over and are able to readand write, and who shall have resided in the Philippines

for one year and in the municipality wherein theypropose to vote for at least six months preceding theelection," may exercise the right of suffrage in thePhilippines. Upon the other hand, the Solicitor Generalcontends that said provision merely guarantees the rightof suffrage to persons possessing the aforementionedqualifications and none of the disqualifications,prescribed by law, and that said right may be vested bycompetent authorities in persons lacking some or all ofthe aforementioned qualifications, and possessing someof the aforesaid disqualifications. In support of this view,he invokes the permissive nature of the language — "(s)uffrage may be exercised" — used in section 1 of Art. Vof the Constitution, and the provisions of the Revised

Barrio Charter, Republic Act No. 3590, particularlysections 4 and 6 thereof, providing that citizens of thePhilippines "eighteen years of age or over," who areregistered in the list of barrio assembly members, shall bemembers thereof and may participate as such in theplebiscites prescribed in said Act.

I cannot accept the Solicitor General's theory. Art. V ofthe Constitution declares who may exercise the right ofsuffrage, so that those lacking the qualifications thereinprescribed may not exercise such right. This view is borneout by the records of the Constitutional Convention thatdrafted the 1935 Constitution. Indeed, section 1 of Art. Vof the 1935 Constitution was largely based on the report

of the committee on suffrage of the Convention thatdrafted said Constitution, which report was, in turn,"strongly influenced by the election laws then in force inthe Philippines . . ." 40 Said committee hadrecommended: 1) "That the right of suffrage should beexercised only by male citizens of the Philippines." 2) "Thatit should be limited to those who could read and write." 3)"That the duty to vote should be made obligatory." Itappears that the first recommendation was discussedextensively in the Convention, and that, by way ofcompromise, it was eventually agreed to include, insection 1 of Art. V of the Constitution, the secondsentence thereof imposing upon the National Assembly,established by the original Constitution — instead of thebicameral Congress subsequently created byamendment of said Constitution — the duty to "extendthe right of suffrage to women, if in a plebiscite to beheld for that purpose within two years after the adoptionof this Constitution, not less than three hundred thousandwomen possessing the necessary qualifications shall voteaffirmatively on the question." 41

The third recommendation on "compulsory" voting was,also, debated upon rather extensively, after which it wasrejected by the Convention. 42 This accounts, in myopinion, for the permissive language used in the first

sentence of said Art. V. Despite some debates on theage qualification — amendments having been proposedto reduce the same to 18 or 20, which were rejected, andthe residence qualification, as well as the disqualificationsto the exercise of the right of suffrage — the secondrecommendation limiting the right of suffrage who could"read and write" was — in the language of Dr. Jose MAruego, one of the Delegates to said Convention —

"readily approved in the Convention without anydissenting vote," although there was some debate on

whether the Fundamental Law should specify thelanguage or dialect that the voter could read and writewhich was decided in the negative. 43

What is relevant to the issue before Us is the fact that theconstitutional provision under consideration was meant tobe and is a grant or conferment of a right to personspossessing the qualifications and none of thedisqualifications therein mentioned, which in turnconstitute a limitation of or restriction to said right, andcannot, accordingly, be dispensed with, except byconstitutional amendment. Obviously, every suchconstitutional grant or conferment of a right is necessarilya negation of the authority of Congress or of any othe

branch of the Government to deny said right to thesubject of the grant — and, in this sense only, may thesame partake of the nature of a guarantee. But, this doesnot imply not even remotely, that the Fundamental Lawallows Congress or anybody else to vest in those lackingthe qualifications and having the disqualificationsmentioned in the Constitution the right of suffrage.

At this juncture, it is noteworthy that the committee onsuffrage responsible for the adoption of section 1 of Art. Vof the Constitution was "strongly influenced by theelection laws then in force in the Philippines." Our firstElection Law was Act 1582, passed on January 9, 1907which was partly amended by Acts 1669, 1709, 1726 and

1768, and incorporated into the Administrative Code of1916 — Act 2657 — as chapter 20 thereof, and then in theAdministrative Code of 1971 — Act 2711 — as chapter 18thereof, which, in turn, was amended by Act 3387approved on December 3, 1927. Sections 431 and 432 osaid Code of 1917, prescribing, respectively, thequalifications for and disqualifications from voting, arequoted below. 44 In all of these legislative acts, theprovisions concerning the qualifications of voters partookof the nature of a grant or recognition of the right ofsuffrage, and. hence, of a denial thereof to those wholacked the requisite qualifications and possessed any othe statutory disqualifications. In short, the history osection 1, Art. V of the Constitution, shows beyond doubthat the same conferred — not guaranteed — theauthority to exercise the right of suffrage to personshaving the qualifications prescribed therein and none ofthe disqualifications to be specified in ordinary laws andby necessary implication, denied such right to thoselacking any of said qualifications or having any of theaforementioned disqualifications.

This view is further bolstered by the fact that the 1971Constitutional Convention sought the submission to a

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plebiscite of a "partial amendment" to said section 1 ofArt. V of the 1935 Constitution, by reducing the votingage from twenty-one (21) years to eighteen (18) years,which, however, did not materialize on account of thedecision of this Court in Tolentino v. Commission onElections, 45 granting the writs of prohibition andinjunction therein applied for, upon the ground that,under the Constitution, all of the amendments adoptedby the Convention should be submitted in "an election" ora single election, not separately or in several or distinct

elections, and that the proposed amendment sought tobe submitted to a plebiscite was not even a completebut a "partial amendment" of said section 1, which couldbe amended further, after its ratification had the sametaken place, so that the aforementioned partialamendment was, for legal purposes, no more than aprovisional or temporary amendment. Said partialamendment was predicated upon the generallyaccepted contemporary construction that, under the1935 Constitution, persons below twenty-one (21) years ofage could not exercise the right of suffrage, without aprevious amendment of the Constitution.

Upon the other hand, the question, whether 18-year-old

members of barrio assemblies may vote in barrio asplebiscites is, to say the least, a debatable one. Indeed,there seems to be a conflict between the last paragraphof said section 6 of Rep. Act No. 3590, 46 pursuant towhich the "majority vote of all the barrio assemblymembers" (which include all barrio residents 18 years ofage or over, duly registered in the list of barrio assemblymembers) is necessary for the approval, in an assemblyplebiscite, of "any budgetary, supplementalappropriations or special tax ordinances," whereas,according to the paragraph preceding the penultimateone of said section, 47 "(a)ll duly registered barrioassembly members qualified to vote" — who, pursuant tosection 10 of the same Act, must be citizens "of the

Philippines, twenty-one years of age or over, able to readand write," and residents of the barrio "during the sixmonths immediately preceding the election, dulyregistered in the list of voters" and "not otherwisedisqualified . . ." — just like the provisions of the presentand past election codes of the Philippines and Art. V ofthe 1935 Constitution — "may vote in the plebiscite."

I believe, however, that the apparent conflict should beresolved in favor of the 21-year-old members of theassembly, not only because this interpretation is in accordwith Art. V of the Constitution, but, also, becauseprovisions of a Constitution — particularly of a written andrigid one, like ours — are generally accorded amandatory status — unless the intention to the contrary ismanifest, which is not so as regards said Art. V — forotherwise they would not have been consideredsufficiently important to be included in the FundamentalLaw of the land. 48 Besides, it would be illogical, if notabsurd, to believe that Republic Act No. 3590 requires, forthe most important measures for which it demands — inaddition to the favorable action of the barrio council — the approval of the barrio assembly through a plebiscite,lesser qualifications than those prescribed in dealing withordinary measures for which such plebiscite need not beheld.

It is similarly inconceivable that those who drafted the1935 Constitution intended section 1 of Art. V thereof toapply only to elections of public officers, not to plebiscitesfor the ratification of amendments to the FundamentaLaw or a revision thereof, or of an entirely newConstitution, and to permit the legislature to require lessequalifications for such ratification, notwithstanding thefact that the subject thereof is much more important — inot fundamental, such as the basic changes introduced

in the draft of the revised Constitution adopted by the1971 Constitutional Convention, which are intended tobe in force permanently, or, at least, for many decadesand to affect the way of life of the nation — andaccordingly demands greater experience and maturityon the part of the electorate than that required for theelection of public officers, 49 whose average term rangesfrom 2 to 6 years.

It is admitted that persons 15 years of age or over, butbelow 21 years, regardless of whether or not theypossessed the other qualifications laid down in both theConstitution and the present Election Code, 50 and owhether or not they are disqualified under the provisions

of said Constitution and Code, 51 or those of RepublicAct No. 3590, 52 have participated and voted in theCitizens' Assemblies that have allegedly ratified the newor revised Constitution drafted by the 1971 ConstitutionaConvention.

In fact, according to the latest official data, the totanumber of registered voters 21 years of age or over in theentire Philippines, available in January 1973, was less than12 million. Yet, Proclamation No. 1102 states that14,976,561 "members of all the Barangays (CitizensAssemblies) voted for the adoption of the proposedConstitution, as against . . . 743,869 who voted for its

rejection," whereas, on the question whether or not thepeople still wanted a plebiscite to be called to ratify thenew Constitution, ". . . 14,298,814 answered that there wasno need for a plebiscite and that the vote of theBarangays (Citizens Assemblies) should be considered asa vote in a plebiscite." In other words, it is conceded thatthe number of people who allegedly voted at theCitizens' Assemblies for exceeded the number oregistered voters under the Election Code in force inJanuary 1973.

It is thus clear that the proceedings held in such CitizensAssemblies — and We have more to say on this point insubsequent pages — were fundamentally irregular, inthat persons lacking the qualifications prescribed insection 1 of Art. V of the Constitution were allowed tovote in said Assemblies. And, since there is no means bywhich the invalid votes of those less than 21 years of agecan be separated or segregated from those of thequalified voters, the proceedings in the CitizensAssemblies must be considered null and void. 53

It has been held that "(t)he power to reject an entire poll . . should be exercised . . . in a case where it is impossibleto ascertain with reasonable certainty the true vote," as

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where "it is impossible to separate the legal votes from theillegal or spurious . . ." 54

In Usman v. Commission on Elections, et al., 55 We held:

"Several circumstances, defying exact description anddependent mainly on the factual milieu of the particularcontroversy, have the effect of destroying the integrityand authenticity of disputed election returns and ofavoiding their prima facie value and character. If

satisfactorily proven, although in a summary proceeding,such circumstances as alleged by the affected orinterested parties, stamp the election returns with theindelible mark of falsity and irregularity, and,consequently, of unreliability, and justify their exclusionfrom the canvass."

Then, too, the 1935 Constitution requires "a majority of thevotes cast" for a proposed amendment to theFundamental Law to be "valid" as part thereof, and theterm "votes cast" has a well-settled meaning.

"The term 'votes cast' . . . was held in Smith v. RenvilleCounty Commissioners, 65 N.W. 956, 64 Minn. 16, to have

been used as an equivalent of 'ballots cast.'" 56

"The word 'cast' is defined as 'to deposit formally orofficially.'" 57

"It seems to us that a vote is cast when a ballot isdeposited indicating a 'choice.' . . . The word 'cast'means 'deposit (a ballot) formally or officially . . .'

". . . In simple words, we would define a 'vote cast' as theexercise on a ballot of the choice of the voter on themeasure proposed." 58

In short, said Art. XV envisages — with the term "votes

cast" — choices made on ballots — not orally or by raisinghands — by the persons taking part in plebiscites. This isbut natural and logical, for, since the early years of theAmerican regime, we had adopted the Australian BallotSystem, with its major characteristics, namely, uniformofficial ballots prepared and furnished by theGovernment and secrecy in the voting, with theadvantage of keeping records that permit judicial inquiry,when necessary, into the accuracy of the electionreturns. And the 1935 Constitution has been soconsistently interpreted in all plebiscites for the ratificationor rejection of proposed amendments thereto, from 1935to 1967. Hence, the viva voce voting in the Citizens'Assemblies was and is null and void ab initio.

b.How should the plebiscite be held? (COMELECsupervision indispensable; essential requisites)

Just as essential as compliance with said Art. V of the1935 Constitution is that of Art. X thereof, particularly itssections 1 and 2. Indeed, section 1 provides that "(t)hereshall be an independent Commission on Elections . . ." Thepoint to be stressed here is the term "independent."Indeed, why was the term used?

In the absence of said constitutional provision as to theindependence of the Commission, would it have beendependent upon either Congress or the Judiciary? Theanswer must be in the negative, because the functions othe Commission — "enforcement and administration" oelection laws — are neither legislative nor judicial innature, and, hence, beyond the field allocated to eitherCongress or courts of justice. Said functions are by theinature essentially executive, for which reason, theCommission would be under the "control" of the

President, pursuant to section 10, paragraph (1) of Art. VIof the Constitution, if Art. X thereof did not explicitlydeclare that it (the Commission) is an "independent"body. In other words, in amending the original 1935Constitution, by inserting therein said Art. X, on theCommission on Elections, the purpose was to make saidCommission independent principally of the ChieExecutive.

And the reason therefor is, also, obvious. Prior to thecreation of the Commission on Elections as aconstitutional organ, election laws in the Philippines were

enforced by the then Department of the Interior, throughits Executive Bureau, one of the offices under thesupervision and control of said Department. The same —

like other departments of the Executive Branch of theGovernment — was, in turn, under the control of theChief Executive, before the adoption of the 1935Constitution, and had been — until the abolition of saidDepartment, sometime ago — under the control of thePresident of the Philippines, since the effectivity of saidFundamental Law. Under the provisions thereof, theExecutive could so use his power of control over theDepartment of the Interior and its Executive Bureau as toplace the minority party at such a great, if not decisivedisadvantage, as to deprive it, in effect, of the

opportunity to defeat the political party in power, andhence, to enable the same to perpetuate itself thereinTo forestall this possibility, the original 1935 Constitutionwas amended by the establishment of the Commissionon Elections as a constitutional body independenprimarily of the President of the Philippines.

The independence of the Commission was sought to bestrengthened by the long term of office of its members —nine (9) years, except those first appointed 59 — thelongest under the Constitution, second only to that of theAuditor General 60 ; by providing that they may not beremoved from office except by impeachment, placingthem, in this respect, on the same plane as the Presidentthe Vice-President, the Justices of the Supreme Court andthe Auditor General; that they may not be reappointedthat their salaries "shall be neither increased nodiminished during their term of office"; that the decisionsof the Commission "shall be subject to review by theSupreme Court" only 61 ; that "(n)o pardon, parole, osuspension of sentence for the violation of any electionlaw may be granted without the favorablerecommendation of the Commission" 62 ; and that itschairman and members "shall not, during theicontinuance in office, engage in the practice of anyprofession, or intervene, directly or indirectly, in the

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management or control of any private enterprise whichin anyway may be affected by the functions of theiroffice; nor shall they, directly or indirectly, be financiallyinterested in any contract with the Government or anysubdivision or instrumentality thereof." 63 Thus, the framersof the amendment to the original Constitution of 1935endeavored to do everything possible to protect andinsure the independence of each member of theCommission.

With respect to the functions thereof as a body, section 2of said Art. X ordains that "(t)he Commission on Electionsshall have exclusive charge of the enforcement andadministration of all laws relative to the conduct ofelections," apart from such other "functions which may beconferred upon it by law." It further provides that theCommission "shall decide, save those involving the rightto vote, all administrative questions, affecting elections,including the determination of the number and locationof polling places, and the appointment of electioninspectors and of other election officials." And, to forestallpossible conflicts or frictions between the Commission, onthe one hand, and the other offices or agencies of theexecutive department, on the other, said section 2

postulates that "(a)ll law enforcement agencies andinstrumentalities of the Government, when so required bythe Commission, shall act as its deputies for the purposeof insuring free, orderly, and honest elections." Notsatisfied with this, it declares, in effect, that "(t)hedecisions, orders, and rulings of the Commission" shall notbe subject to review, except by the Supreme Court.

In accordance with the letter and spirit of said Art. X ofthe Constitution, Rep. Act No. 6388, otherwise known asElection Code of 1971, implements the constitutionalpowers of the Commission on Elections and grantsadditional powers thereto, some of which areenumerated in sections 5 and 6 of said Act, quoted

below. 64 Moreover, said Act contains, inter alia, detailedprovisions regulating contributions and other (corrupt)practices; the establishment of election precincts; thedesignation and arrangement of polling places, includingvoting booths, to protect the secrecy of the ballot; theformation of lists of voters, the identification andregistration of voters, the proceedings therefor, as well asfor the inclusion in, or exclusion or cancellation from saidlist and the publication thereof; the establishment ofmunicipal, provincial and national files of registeredvoters; the composition and appointment of boards ofelection inspectors; the particulars of the official ballots tobe used and the precautions to be taken to insure theauthenticity thereof; the procedure for the casting ofvotes; the counting of votes by boards of inspectors; therules for the appreciation of ballots and the preparationand disposition of election returns; the constitution andoperation of municipal, provincial and national boards ofcanvassers; the representation of political parties and/ortheir candidates in each election precinct; theproclamation of the results, including, in the case ofelection of public officers, election contests; and the jurisdiction of courts of justice in cases of violations of theprovisions of said Election Code and penalties for suchviolations.

Few laws may be found with such a meticulous andelaborate set of provisions aimed at "insuring free, orderlyand honest elections," as envisaged in section 2 of Art. Xof the Constitution. Yet, none of the foregoingconstitutional and statutory provisions was followed bythe so-called Barangays or Citizens' Assemblies. And noreasons have been given, or even sought to be giventherefor. In many, if not most, instances, the electionswere held a viva voce, thus depriving the electorate othe right to vote secretly — one of the most fundamenta

and critical features of our election laws from timeimmemorial — particularly at a time when the same wasof utmost importance, owing to the existence of MartiaLaw.

In Glenn v. Gnau, 65 involving the casting of many votesopenly, without complying with the requirements of thelaw pertinent thereto, it was held that the "electionofficers" involved "cannot be too strongly condemnedtherefor and that if they 'could legally dispense with suchrequirement xxx they could with equal propriety dispensewith all of them, including the one that the vote shall beby secret ballot, or even by ballot at all . . ."

Moreover, upon the formal presentation to the Executiveof the proposed Constitution drafted by the 1971Constitutional Convention, or on December 1, 1972Presidential Decree No. 73 (on the validity of which —

was contested in the plebiscite cases, as well as in the1972 habeas corpus case 66 — We need not, in the casesat bar, express any opinion) was issued, calling aplebiscite, to be held on January 15, 1973, at which theproposed Constitution would be submitted to the peoplefor ratification or rejection; directing the publication ofsaid proposed Constitution; and declaring, inter alia, that"(t)he provisions of the Election Code of 1971, insofar asthey are not inconsistent" with said decree — exceptingthose "regarding rights and obligations of political parties

and candidates" — "shall apply to the conduct of theplebiscite." Indeed, section 2 of said Election Code of1971 provides that "(a)ll elections of public officers excepbarrio officials and plebiscites shall be conducted in themanner provided by this Code." General Order No. 20dated January 7, 1973, postponing, until further notice"the plebiscite scheduled to be held on January 15, 1973,said nothing about the procedure to be followed in theplebiscite to take place at such notice, and no otheorder or decree has been brought to Our attentionexpressly or impliedly repealing the provisions oPresidential Decree No. 73, insofar as said procedure isconcerned.

Upon the other hand, said General Order No. 20 expresslysuspended "the provisions of Section 3 of PresidentiaDecree No. 73 insofar as they allow free public discussionof the proposed Constitution . . . temporarily suspendingthe effects of Proclamation No. 1081 for the purposes ofree and open debate on the proposed Constitution . . .This specific mention of the portions of the decrees ororders or instructions suspended by General Order No. 20necessarily implies that all other portions of said decreesorders or instructions — and, hence, the provisions oPresidential Decree No. 73 outlining the procedure to befollowed in the plebiscite for the ratification or rejection o

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the proposed Constitution — remained in force, assumingthat said Decree is valid.

It is claimed that by virtue of Presidential Decree No. 86-A — the text of which is quoted below 67 — the Executivedeclared, inter alia, that the collective views expressed inthe Citizens' Assemblies "shall be considered in theformulation of national policies or programs and,wherever practicable, shall be translated into concreteand specific decision"; that such Citizens' Assemblies "shall

consider vital national issues . . . like the holding of theplebiscite on the new Constitution . . . and others in thefuture, which shall serve as guide or basis for action ordecision by the national government"; and that theCitizens' Assemblies "shall conduct between January 10and 15, 1973, a referendum on important national issues,including those specified in paragraph 2 hereof, andsubmit the results thereof to the Department of LocalGovernments and Community Development immediatelythereafter, . . ." As in Presidential Decree No. 86, thisDecree No. 86-A does not and cannot exclude theexercise of the constitutional supervisory power of theCommission on elections or its participation in theproceedings in said Assemblies, if the same had been

intended to constitute the "election" or plebiscite requiredin Art. V of the 1935 Constitution. The provision ofPresidential Decree No. 86-A directing the immediatesubmission of the result thereof to the Department ofLocal Governments and Community Development is notnecessarily inconsistent with, and must be subordinate tothe constitutional power of the Commission on Electionsto exercise its "exclusive" authority over the "enforcementand administration of all laws relative to the conduct ofelections," if the proceedings in the Assemblies wouldpartake of the nature of an "election" or plebiscite for theratification or rejection of the proposed Constitution.

We are told that Presidential Decree No. 86 was furtheramended by Presidential Decree No. 86-B, datedJanuary 7, 1973, ordering "that important national issuesshall from time to time be referred to the Barangays(Citizens Assemblies) for resolution in accordance withPresidential Decree No. 86-A dated January 5, 1973 andthat the initial referendum shall include the matter ofratification of the Constitution proposed by the 1971Constitutional Convention" and that "(t)he Secretary ofthe Department of Local Governments and CommunityDevelopment shall insure the implementation of thisorder." As in the case of Presidential Decrees Nos. 86 and86-A, the foregoing directives do not necessarily excludethe exercise of the powers vested by the 1935Constitution in the Commission on Elections, even if theExecutive had the authority to repeal Art. X of ourFundamental Law — which he does not possess. Copy ofPresidential Decree No. 86-B is appended hereto asAnnex B hereof.

The point is that, such of the Barrio Assemblies as wereheld took place without the intervention of theCommission on Elections, and without complying with theprovisions of the Election Code of 1971 or even of thoseof Presidential Decree No. 73. What is more, they were

held under the supervision of the very officers andagencies of the Executive Department sought to beexcluded therefrom by Art. X of the 1935 ConstitutionWorse still, said officers and agencies of the ExecutiveDepartment, who had been publicly urged andostensibly promised to work for the ratification of theproposed revised Constitution would be favored therebyowing to the practically indefinite extension of theirespective terms of office in consequence of section 9 ofthe Transitory Provisions, found in Art. XVII of the proposed

Constitution, without any elections therefor. And theprocedure therein mostly followed is such that there is noreasonable means of checking the accuracy of thereturns filed by the officers who conducted saidplebiscites. This is another patent violation of Art. X of theConstitution which can hardly be sanctioned. And, sincethe provisions of this article form part of the fundamentascheme set forth in the 1935 Constitution, as amended, toinsure the "free, orderly, and honest" expression of thepeople's will, the aforementioned violation thereorenders null and void the contested proceedings oalleged plebiscite in the Citizens' Assemblies, insofar asthe same are claimed to have ratified the revisedConstitution proposed by the 1971 Constitutiona

Convention. ". . . (a)ll the authorities agree that the legadefinition of an election, as well as that which is usuallyand ordinarily understood by the term, is a choosing or aselection by those having a right to participate (in theselection) of those who shall fill the offices, or of theadoption or rejection of any public measures affectingthe territory involved. 15 Cyc. 279; Lewis v. Boynton, 25Colo. 486, 55 Pac. 732; Saunders v. Haynes, 13 Cal. 145Seaman v. Baughman, 82 Iowa 216, 47 N.W. 1091, 11L.R.A. 354; State v. Hirsh, 125 Ind. 207, 24 N.E. 1062, 9 L.R.A170; Bouvier's Law Dictionary." 68

IVHas the proposed Constitution aforementioned

been approved by a majority of the people inthe Citizen's Assemblies allegedly heldthroughout the Philippines?Respondents maintain the affirmative, relying uponProclamation No. 1102, the validity of which is preciselybeing contested by petitioners herein. Respondents claimthat said proclamation is "conclusive" upon this Court, ois, at least, entitled to full faith and credence, as anenrolled bill; that the proposed Constitution has been, infact, ratified, approved or adopted by the"overwhelming" majority of the people; that Art. XV of the1935 Constitution has thus been "substantially" compliedwith; and that the Court should refrain from passing uponthe validity of Proclamation No. 1102, not only becausesuch question is political in nature, but, also, becauseshould the Court invalidate the proclamation, the formewould, in effect, veto the action of the people in whomsovereignty resides and from whom its powers arederived.

The major flaw in this process of rationalization is that itassumes, as a fact, the very premise on which it ispredicated, and which, moreover, is contested by thepetitioners. As the Supreme Court of Minnessota has aptlyput it —

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". . . every officer under a constitutional government mustact according to law and subject to its restrictions, andevery departure therefrom or disregard thereof mustsubject him to the restraining and controlling power ofthe people, acting through the agency of the judiciary;for it must be remembered that the people act throughcourts, 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 withthe special duty of determining the limitations which the

law places upon all official action. . . ."

Accordingly, the issue boils down to whether or not theExecutive acted within the limits of his authority when hecertified in Proclamation No. 1102 "that the Constitutionproposed by the nineteen hundred and seventy-one(1971) Constitutional Convention has been ratified by anoverwhelming majority of all of the votes cast by themembers of all the Barangays (Citizens Assemblies)throughout the Philippines, and has thereby come intoeffect."

In this connection, it is not claimed that the ChiefExecutive had personal knowledge of the data he

certified in said proclamation. Moreover, Art. X of the1935 Constitution was precisely inserted to place beyondthe Executive the power to supervise or even exerciseany authority whatsoever over "all laws relative to theconduct of elections," and, hence, whether the electionsare for the choice or selection of public officers or for theratification or rejection of any proposed amendment, orrevision of the Fundamental Law, since the proceedingsfor the latter are, also, referred to in said Art. XV as"elections."

The Solicitor General stated, in his argument before thisCourt, that he had been informed that there was in eachmunicipality a municipal association of presidents of the

citizens' assemblies for each barrio of the municipality;that the president of each such municipal associationformed part of a provincial or city association ofpresidents of such municipal associations; that thepresident of each one of these provincial or cityassociations in turn formed part of a National Associationor Federation of Presidents of such Provincial or CityAssociations; and that one Francisco Cruz from Pasig,Rizal, as President of said National Association orFederation, reported to the President of the Philippines, inthe morning of January 17, 1973, the total result of thevoting in the citizens' assemblies all over the country fromJanuary 10 to January 15, 1973. The Solicitor Generalfurther intimated that the said municipal associations hadreported the results of the citizens' assemblies in theirrespective municipalities to the corresponding ProvincialAssociation, which, in turn, transmitted the results of thevoting in the province to the Department of LocalGovernments and Community Development, whichtabulated the results of the voting in the citizens'assemblies throughout the Philippines and then turnedthem over to Mr. Francisco Cruz, as President or actingPresident of the National Association or Federation,whereupon Mr. Cruz, acting in a ceremonial capacity,reported said results (tabulated by the Department ofLocal Governments and Community Development) to

the Chief Executive, who, accordingly, issuedProclamation No. 1102.

The record shows, however, that Mr. Cruz was not even amember of any barrio council since 1972, 80 that hecould not possibly have been a member on January 171973, of a municipal association of presidents of barrio oward citizens' assemblies, much less of a Provincial, City oNational Association or Federation of Presidents of anysuch provincial or city associations.

Secondly, at the conclusion of the hearing of these caseson February 16, 1973, and in the resolution of this Court ofthe same date, the Solicitor General was asked to submittogether with his notes on his oral argument, a true copyof the aforementioned report of Mr. Cruz to the Presidentand of the "(p)roclamation, decree, instruction, orderregulation or circular, if any, creating or directing oauthorizing the creation, establishment or organization" osaid municipal, provincial and national associations, buneither a copy of said alleged report to the President, nora copy of any said "(p)roclamation, decree, instructionorder, regulation or circular," has been submitted to thisCourt. In the absence of said report, "(p)roclamation

decree, instruction," etc., Proclamation No. 1102 is devoidof any factual and legal foundation. Hence, theconclusion is set forth in the dispositive portion of saidProclamation No. 1102, to the effect that the proposednew or revised Constitution had been ratified by themajority of the votes cast by the people, cannot possiblyhave any legal effect or value.

The theory that said proclamation is "conclusive" uponthe Court is clearly untenable. If it were, acts of theExecutive and those of Congress could not possibly beannulled or invalidated by courts of justice. Yet, such inot the case. In fact, even a resolution of Congressdeclaring that a given person has been elected Presiden

or Vice-President of the Philippines as provided in theConstitution 69 is not conclusive upon the courts. It is nomore than prima facie evidence of what is attested to bysaid resolution. 70 If assailed directly in appropriateproceedings, such as an election protest, if and whenauthorized by law, as it is in the Philippines, the Court mayreceive evidence and declare, in accordance therewithwho was duly elected to the office involved. 71 If prior tothe creation of the Presidential Electoral Tribunal, no suchprotest could be filed, it was not because the resolutionof Congress declaring those had been elected Presidentor Vice-President was conclusive upon courts of justicebut because there was no law permitting the filing ofsuch protest and declaring what court or body wouldhear and decide the same. So, too, a declaration to theeffect that a given amendment to the Constitution orevised or new Constitution has been ratified by amajority of the votes cast therefor, may be duly assailedin court and be the object of judicial inquiry, in direcproceedings therefor — such as the cases at bar — andthe issue raised therein may and should be decided inaccordance with the evidence presented.

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issued, directing 'that the plebiscite scheduled to be heldon January 15, 1973, he postponed until further notice.'Said General Order No. 20, moreover, 'suspended in themeantime' the 'order of December 17, 1972, temporarilysuspending the effects of Proclamation No. 1081 forpurposes of free and open debate on the proposedConstitution.'

"In view of these events relative to the postponement ofthe aforementioned plebiscite, the Court deemed it fit to

refrain, for the time being, from deciding theaforementioned cases, for neither the date nor theconditions under which said plebiscite would be heldwere known or announced officially. Then again,Congress was, pursuant to the 1935 Constitution,scheduled to meet in regular session on January 22,1973,and since the main objection to Presidential DecreeNo. 73 was that the President does not have thelegislative authority to call a plebiscite and appropriatefunds therefor, which Congress unquestionably could do,particularly in view of the formal postponement of theplebiscite by the President — reportedly afterconsultation with, among others, the leaders of Congressand the Commission on Elections — the Court deemed it

more imperative to defer its final action on these cases."

And, apparently, the parties in said cases entertained thesame belief, for, on December 23, 1972 — four (4) daysafter the last hearing of said cases 76 — the Presidentannounced the postponement of the plebiscitescheduled by Presidential Decree No. 73 to be held onJanuary 15, 1973, after consultation with the Commissionon Elections and the leaders of Congress, owing todoubts on the sufficiency of the time available totranslate the proposed Constitution into some localdialects and to comply with some pre-electoralrequirements, as well as to afford the people areasonable opportunity to be posted on the contents

and implications of said transcendental document. OnJanuary 7, 1973, General Order No. 20 was issuedformally, postponing said plebiscite "until further notice."How can said postponement be reconciled with thetheory that the proceedings in the Citizens' Assembliesscheduled to be held from January 10, to January 15,1973, were "plebiscites," in effect, accelerated,according to the theory of the Solicitor General, for theratification of the proposed Constitution? If saidAssemblies were meant to be the plebiscites or electionsenvisaged in Art. XV of the Constitution, what, then, wasthe "plebiscite" postponed by General Order No. 20?Under these circumstances, it was only reasonable for thepeople who attended such assemblies to believe thatthe same were not an "election" or plebiscite for theratification or adoption of said proposed Constitution.

And, this belief is further bolstered up by the questionspropounded in the Citizens' Assemblies, namely:

"[1]Do you like the New Society?

"[2]Do you like the reforms under martial law?

"[3]Do you like Congress again to hold sessions?

"[4]Do you like the plebiscite to be held later?

"[5]Do you like the way President Marcos is running theaffairs of the government? [Bulletin Today, January 101973; additional question italics.]

"[6]Do you approve of the citizens assemblies as the baseof popular government to decide issues of nationainterests?

"[7]Do you approve of the new Constitution?

"[8]Do you want a plebiscite to be called to ratify thenew Constitution?

"[9]Do you want the elections to be held in November1973 in accordance with the provisions of the 1935Constitution?

"[10]If the elections would not be held, when do youwant the next elections to be called?

"[11]Do you want martial law to continue?" [BulletinToday, January 11, 1973]

To begin with, questions nos. 1, 2, 3, 4, 5, 6, 9, 10 and 11are not proper in a plebiscite for the ratification of aproposed Constitution or of a proposed amendmentthereto. Secondly, neither is the language of question No7 — "Do you approve of the new Constitution?" Oneapproves "of" the act of another, which does not needsuch approval for the effectivity of said act, which the firsperson, however, finds to be good, wise or satisfactoryThe approval of the majority of the votes cast in aplebiscite is, however, essential for an amendment to theConstitution to be valid as part thereof. Thirdly, if the

proceedings in the Citizens' Assemblies constituted aplebiscite, question No. 8 would have been unnecessaryand improper, regardless of whether question No. 7 wereanswered affirmatively or negatively. If the majority of theanswers to question No. 7 were in the affirmative, theConstitution would have become effective and no otheplebiscite could be held thereafter in connectiontherewith, even if the majority of the answers to questionNo. 8 were, also, in the affirmative. If the majority of theanswers to question No. 7 were in the negative, neithemay another plebiscite be held, even if the majority othe answers to question No. 8 were in the affirmative. Ineither case, not more than one plebiscite could be heldfor the ratification or rejection of the proposedConstitution. In short, the insertion of said two (2questions — apart from the other questions adverted toabove — indicates strongly that the proceedings thereindid not partake of the nature of a plebiscite or electionfor the ratification or rejection of the proposedConstitution.

Indeed, I can not, in good conscience, declare that theproposed Constitution has been approved or adoptedby the people in the citizens' assemblies all over thePhilippines, when it is, to my mind, a matter of judiciaknowledge that there have been no such citizens

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the power to do so, expressly or impliedly, to theExecutive. This, notwithstanding, the political organ of agovernment that purports to be republican is essentiallythe Congress or Legislative Department. Whatever maybe the functions allocated to the Executive Department — specially under a written, rigid Constitution, with arepublican system of Government like ours — the role ofthat Department is inherently, basically andfundamentally executive in nature — to "take care thatthe laws be faithfully executed," in the language of our

1935 Constitution. 79

Consequently, I am not prepared to concede that theacts of the officers and offices of the ExecutiveDepartment, in line with Proclamation No. 1102, connotea recognition thereof or an acquiescence thereto.Whether they recognized the proposed Constitution oracquiesce thereto or not is something that cannotlegally, much less necessarily or even normally, bededuced from their acts in accordance therewith,because they are bound to obey and act in conformitywith the orders of the President, under whose "control"they are, pursuant to the 1935 Constitution. They haveabsolutely no other choice, specially in view of

Proclamation No. 1081 placing the Philippines underMartial Law. Besides, by virtue of the very decrees, ordersand instructions issued by the President thereafter, he hadassumed all powers of Government — although somequestion his authority to do so — and, consequently,there is hardly anything he has done since the issuance ofProclamation No. 1102, on January 17, 1973 — declaringthat the Constitution proposed by the 1971 ConstitutionalConvention has been ratified by the overwhelmingmajority of the people — that he could not do under theauthority he claimed to have under Martial Law, sinceSeptember 21, 1972, except the power of supervisionover inferior courts and its personnel, which saidproposed Constitution would place under the Supreme

Court, and which the President has not ostensiblyexercised, except as to some minor routine matters,which the Department of Justice has continued tohandle, this Court having preferred to maintain the statusquo in connection therewith pending final determinationof these cases, in which the effectivity of theaforementioned Constitution is disputed.

Then, again, a given department of the Governmentcannot generally be said to have "recognized" its ownacts. Recognition normally connotes theacknowledgment by a party of the acts of another.Accordingly, when a subordinate officer or office of theGovernment complies with the commands of a superiorofficer or office, under whose supervision and control heor it is, the former merely obeys the latter. Strictlyspeaking, and from a legal and constitutional viewpoint,there is no act of recognition involved therein. Indeed,the lower officer or office, if he or it acted otherwise,would just be guilty of insubordination.

Thus, for instance, the case of Taylor v. Commonwealth80 — cited by respondents herein in support of the theoryof the people's acquiescence — involved a constitution

ordained in 1902 and "proclaimed by a convention dulycalled by a direct vote of the people of the state torevise and amend the Constitution of 1869. The result othe work of that Convention has been recognizedaccepted and acted upon as the only valid Constitutionof the State" by —

1.The "Governor of the State in swearing fidelity to it andproclaiming it, as directed thereby";

2.The "Legislature in its formal official act adopting a jointresolution, July 15, 1902, recognizing the Constitutionordained by the Convention . . .";

3.The "individual oaths of its members to support it, and byits having been engaged for nearly a year, in legislatingunder it and putting its provisions into operation . . .";

4.The "judiciary in taking the oath prescribed thereby tosupport it and by enforcing its provisions . . . "; and

5.The "people in their primary capacity by peacefullyaccepting it and acquiescing in it, by registering as votersunder it to the extent of thousands throughout the State

and by voting, under its provisions, at a general electionfor their representatives in the Congress of the UnitedStates."

Note that the New Constitution of Virginia, drafted by aconvention whose members were elected directly by thepeople, was not submitted to the people for ratificationor rejection thereof. But, it was recognized, not by theconvention itself, but by other sectors of the Governmentnamely, the Governor; the Legislature — not merely byindividual acts of its members, but by formal joinresolution of its two (2) chambers; by the judiciary; and bythe people, in the various ways specified above. What ismore, there was no martial law. In the present cases

none of the foregoing acts of acquiescence was presentWorse still, there is martial law, the strict enforcement owhich was announced shortly before the alleged citizensassemblies. To top it all, in the Taylor case, the effectivityof the contested amendment was not contested judicially until about one (1) year after the amendmenhad been put into operation in all branches of theGovernment, and complied with by the people whoparticipated in the elections held pursuant to theprovisions of the new Constitution. In the cases underconsideration, the legality of Presidential Decree No. 73calling a plebiscite to be held on January 15, 1973, wasimpugned as early as December 7, 1972, or five (5) weeksbefore the scheduled plebiscite, whereas the validity ofProclamation No. 1102 declaring on January 17, 1973that the proposed Constitution had been ratified —

despite General Order No. 20, issued on January 7, 1972formally and officially suspending the plebiscite untifurther notice — was impugned as early as January 201973, when L-36142 was filed, or three (3) daysafter theissuance of Proclamation No. 1102.

It is further alleged that a majority of the members of ouHouse of Representatives and Senate have acquiescedin the new or revised Constitution, by filing writtenstatements opting to serve in the Ad Interim Assembly

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established in the Transitory Provisions of said Constitution.Individual acts of recognition by members of ourlegislature, as well as of other collegiate bodies under thegovernment, are invalid as acts of said legislature orbodies, unless its members have performed said acts insession duly assembled, or unless the law providesotherwise, and there is no such law in the Philippines. Thisis a well-established principle of Administrative Law andof the Law of Public Officers, and no plausible reason hasbeen adduced to warrant departure therefrom. 81

Indeed, if the members of Congress were generallyagreeable to the proposed Constitution, why did itbecome necessary to padlock its premises to prevent itsmeeting in session on January 22, 1973, and thereafter asprovided in the 1935 Constitution? It is true that,theoretically, the members of Congress, if bent ondischarging their functions under said Constitution, couldhave met in any other place, the building in which theyperform their duties being immaterial to the legality oftheir official acts. The force of this argument is, however,offset or dissipated by the fact that, on or aboutDecember 27, 1972, immediately after a conferencebetween the Executive, on the one hand, and members

of Congress, on the other, some of whom expressed thewish to meet in session on January 22, 1973, as providedin the 1935 Constitution, a Daily Express columnist(Primitivo Mijares) attributed to Presidential AssistantGuillermo de Vega a statement to the effect that"'certain members of the Senate appear to be missing thepoint in issue' when they reportedly insisted on taking upfirst the question of convening Congress." The DailyExpress of that date, 82 likewise, headlined, on its frontpage, a "Senatorial Plot Against 'Martial LawGovernment' Disclosed." Then, in its issue of December 29,1972, the same paper imputed to the Executive anappeal "to diverse groups involved in a conspiracy toundermine" his powers "under martial law to desist from

provoking a constitutional crisis . . . which may result in theexercise by me of authority I have not exercised."

No matter how good the intention behind thesestatements may have been, the idea implied therein wastoo clear and ominous for any member of Congress whothought of organizing, holding or taking part in a sessionof Congress, not to get the impression that he couldhardly do so without inviting or risking the application ofMartial Law to him. Under these conditions, I do not feel justified in holding that the failure of the members ofCongress to meet since January 22, 1973, was due totheir recognition, acquiescence in or conformity with theprovisions of the aforementioned Constitution, or itsalleged ratification.

For the same reasons, especially because ofProclamation No. 1081, placing the entire Philippinesunder Martial Law, neither am I prepared to declare thatthe people's inaction as regards Proclamation No. 1102,and their compliance with a number of Presidentialorders, decrees and/or instructions — some or many ofwhich have admittedly had salutary effects — issuedsubsequently thereto amounts, constitutes or attests to aratification, adoption or approval of said ProclamationNo. 1102. In the words of the Chief Executive, "martial law

connotes power of the gun, meant coercion by themilitary, and compulsion and intimidation." 83 The failureto use the gun against those who comply with the ordersof the party wielding the weapon does not detract fromthe intimidation that Martial Law necessarily connotes. Itmay reflect the good, reasonable and wholesomeattitude of the person who has the gun, either pointed atothers, without pulling the trigger, or merely kept in itsholster, but not without warning that he may or would useit if he deemed it necessary. Still, the intimidation is there

and inaction or obedience of the people, under theseconditions, is not necessarily an act of conformity oacquiescence. This is specially so when we consider thatthe masses are, by and large, unfamiliar with theparliamentary system, the new form of governmentintroduced in the proposed Constitution, with theparticularity that it is not even identical to that existing inEngland and other parts of the world, and that evenexperienced lawyers and social scientists find it difficult tograsp the full implications of some provisions incorporatedtherein.

As regards the applicability to these cases of the"enrolled bill" rule, it is well to remember that the same

refers to a document certified to the President — for hisaction under the Constitution — by the Senate Presidenand the Speaker of the House of Representatives, andattested to by the Secretary of the Senate and theSecretary of the House of Representatives, concerninglegislative measures approved by the two Houses oCongress. The argument of the Solicitor General isroughly, this: If the enrolled bill is entitled to full faith andcredence and, to this extent, it is conclusive upon thePresident and the judicial branch of the Governmentwhy should Proclamation No. 1102 merit lessconsideration than in enrolled bill?

Before answering this question, I would like to ask the

following: If, instead of being certified by theaforementioned officers of Congress, the so-calledenrolled bill were certified by, say, the President of theAssociation of Sugar Planters and/or Millers of thePhilippines, and the measure in question were aproposed legislation concerning Sugar Plantations andMills sponsored by said Association, which even preparedthe draft of said legislation, as well as lobbied actually foits approval, for which reason the officers of theAssociation, particularly, its aforementioned president —whose honesty and integrity are unquestionable — werepresent at the deliberations in Congress when the sameapproved the proposed legislation, would the enrolledbill rule apply thereto? Surely, the answer would have tobe in the negative. Why? Simply, because saidAssociation President has absolutely no official authorityto perform in connection therewith, and, hence, hiscertification is, legally, as good as non-existent.

Similarly, a certification, if any, of the Secretary of theDepartment of Local Governments and CommunityDevelopment about the tabulated results of the voting inthe Citizens' Assemblies allegedly held all over thePhilippines — and the records do not show that any such

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proposed Constitution to the people at a plebiscite for itsratification or rejection in accordance with Articles V, Xand XV of the 1935 Constitution and the provisions of theRevised Election Code in force at the time of suchplebiscite.

Perhaps others would feel that my position in these casesoverlooks what they might consider to be the demandsof "judicial statesmanship," whatever may be themeaning of such phrase. I am aware of this possibility, if

not probability; but "judicial statesmanship," thoughconsistent with Rule of Law, cannot prevail over the latter.Among consistent ends or consistent values, there alwaysis a hierarchy, a rule of priority.

We must realize that the New Society has manyachievements which would have been very difficult, ifnot impossible, to accomplish under the old dispensation.But, in and for the judiciary, statesmanship should notprevail over the Rule of Law. Indeed, the primacy of thelaw or of the Rule of Law and faithful adherence theretoare basic, fundamental and essential parts ofstatesmanship itself.

Resume of the Votes Cast and the Court's Resolution

As earlier stated, after the submittal by the members ofthe Court of their individual opinions and/orconcurrences as appended hereto, the writer will nowmake, with the concurrence of his colleagues, a resumeor summary of the votes cast by each of them.

It should be stated that by virtue of the variousapproaches and views expressed during thedeliberations, it was agreed to synthesize the basic issuesat bar in broad general terms in five questions forpurposes of taking the votes. It was further agreed ofcourse that each member of the Court would expound in

his individual opinion and/or concurrence his ownapproach to the stated issues and deal with them andstate (or not) his opinion thereon singly or jointly and withsuch priority, qualifications and modifications as he maydeem proper, as well as discuss thereon other relatedissues which he may consider vital and relevant to thecases at bar.

The five questions thus agreed upon as reflecting thebasic issues herein involved are the following:

1.Is the issue of the validity of Proclamation No. 1102 a justiciable, or political and therefore non-justiciable,question?

2.Has the Constitution proposed by the 1971Constitutional Convention been ratified validly (withsubstantial, if not strict, compliance) conformably to theapplicable constitutional and statutory provisions?

3.Has the aforementioned proposed Constitution beenacquiesced in (with or without valid ratification) by thepeople?

4.Are petitioners entitled to relief? and

5.Is the aforementioned proposed Constitution in force?

The results of the voting, premised on the individual viewsexpressed by the members of the Court in their respectiveopinions and/or concurrences, are as follows:

1.On the first issue involving the political-questiondoctrine, Justices Makalintal, Zaldivar, Castro, FernandoTeehankee and myself, or six (6) members of the Courthold that the issue of the validity of Proclamation No

1102 presents a justiciable and non-political questionJustices Makalintal and Castro did not vote squarely onthis question, but, only inferentially, in their discussion ofthe second question. Justice Barredo qualified his votestating that "inasmuch as it is claimed that there has beenapproval by the people, the Court may inquire into thequestion of whether or not there has actually been suchan approval, and, in the affirmative, the Court shouldkeep its hands-off out of respect to the people's will, butin the negative, the Court may determine from bothfactual and legal angles whether or not Article XV of the1935 Constitution has been complied with." JusticesMakasiar, Antonio and Esguerra, or three (3) members othe Court hold that the issue is political and "beyond the

ambit of judicial inquiry."

2.On the second question of validity of the ratificationJustices Makalintal, Zaldivar, Castro, FernandoTeehankee and myself, or six (6) members of the Courtalso hold that the Constitution proposed by the 1971Constitutional Convention was not validly ratified inaccordance with Article XV, section 1 of the 1935Constitution, which provides only one way for ratificationi.e., "in an election or plebiscite held in accordance withlaw and participated in only by qualified and dulyregistered voters." 87

Justice Barredo qualified his vote, stating that "(A)s towhether or not the 1973 Constitution has been validlyratified pursuant to Article XV, I still maintain that in thelight of traditional concepts regarding the meaning andintent of said Article, the referendum in the CitizensAssemblies, specially in the manner the votes thereinwere cast, reported and canvassed, falls short of therequirements thereof. In view, however, of the fact that have no means of refusing to recognize as a judge thafactually there was voting and that the majority of thevotes were for considering as approved the 1973Constitution without the necessity of the usual form oplebiscite followed in past ratifications, I am constrainedto hold that, in the political sense, if not in the orthodoxlegal sense, the people may be deemed to have casttheir favorable votes in the belief that in doing so they didthe part required of them by Article XV, hence, it may besaid that in its political aspect, which is what counts mostafter all, said Article has been substantially complied withand, in effect, the 1973 Constitution has beenconstitutionally ratified."

Justices Makasiar, Antonio and Esguerra, or three (3members of the Court hold that under their view there

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has been in effect substantial compliance with theconstitutional requirements for valid ratification.

3.On the third question of acquiescence by the Filipinopeople in the aforementioned proposed Constitution, nomajority vote has been reached by the Court.

Four (4) of its members, namely, Justices Barredo,Makasiar, Antonio and Esguerra hold that "the peoplehave already accepted the 1973 Constitution." 88

Two (2) members of the Court, namely, Justice Zaldivarand myself hold that there can be no free expression,and there has even been no expression, by the peoplequalified to vote all over the Philippines, of theiracceptance or repudiation of the proposed Constitutionunder Martial Law. Justice Fernando states that "(I)f it isconceded that the doctrine stated in some Americandecisions to the effect that independently of the validityof the ratification, a new Constitution once accepted oracquiesced in by the people must be accordedrecognition by the Court, I am not at this stage preparedto state that such doctrine calls for application in view ofthe shortness of time that has elapsed and the difficulty of

ascertaining what is the mind of the people in theabsence of the freedom of debate that is a concomitantfeature of martial law."

Three (3) members of the Court express their lack ofknowledge and/or competence to rule on the question.Justices Makalintal and Castro are joined by JusticeTeehankee in their statement that "Under a regime ofmartial law, with the free expression of opinions throughthe usual media vehicles restricted, (they) have nomeans of knowing, to the point of judicial certainty,whether the people have accepted the Constitution." 89

4.On the fourth question of relief, six (6) members of the

Court, namely, Justices Makalintal, Castro, Barredo,Makasiar, Antonio and Esguerra voted to DISMISS thepetition. Justices Makalintal and Castro so voted on thestrength of their view that "(T)he effectivity of the saidConstitution, in the final analysis, is the basic and ultimatequestion posed by these cases to resolve whichconsiderations other than judicial, and therefore beyondthe competence of this Court, 90 are relevant andunavoidable." 91

Four (4) members of the Court, namely, Justices Zaldivar,Fernando, Teehankee and myself voted to denyrespondents' motion to dismiss and to give due course tothe petitions.

5.On the fifth question of whether the new Constitution of1973 is in force:

Four (4) members of the Court, namely, Justices Barredo,Makasiar, Antonio and Esguerra hold that it is in force byvirtue of the people's acceptance thereof;

Four (4) members of the Court, namely, JusticesMakalintal, Castro, Fernando and Teehankee cast novote thereon on the premise stated in their votes on thethird question that they could not state with judicial

certainty whether the people have accepted or notaccepted the Constitution; and

Two (2) members of the Court, namely, Justice Zaldivaand myself voted that the Constitution proposed by the1971 Constitutional Convention is not in force;

with the result that there are not enough votes to declarethat the new Constitution is not in force.ACCORDINGLY, by virtue of the majority of six (6) votes o

Justices Makalintal, Castro, Barredo, Makasiar, Antonioand Esguerra with the four (4) dissenting votes of theChief Justice and Justices Zaldivar, Fernando andTeehankee, all the aforementioned cases are herebydismissed. This being the vote of the majority, there is nofurther judicial obstacle to the new Constitution beingconsidered in force and effect.

It is so ordered.

Makalintal, Castro, Barredo, Makasiar, Antonio andEsguerra, JJ., concur.

Concepcion, C.J., dissents.

Zaldivar, J., dissents in line with the personal opinion of theChief Justice, and also dissents in a separate opinion.

Fernando, J., dissents in conformity with the personaviews of the Chief Justice, except as to such portionsthereof on which he expresses his own thoughts as seforth in his dissenting opinion.

Teehankee, J., dissents in conformity with the ChieJustice's personal opinion and files a separate dissent.

FIRST DIVISION[G.R. No. L-17144. October 28, 1960.]

SERGIO OSMEÑA, JR., petitioner, vs. SALIPADA K.PENDATUN, LEON Z. GUINTO, JR., VICENTE L. PERALTA,

FAUSTINO TOBIA, LORENZO G. TEVES, JOSE J. ROY, FAUSTODUGENIO, ANTONIO Y. DE PIO, BENJAMIN T. LIGOT, PEDROG. TRONO, FELIPE ABRIGO, FELIPE S. ABELEDA, TECLA SAN

ANDRES ZIGA, ANGEL B. FERNANDEZ, and EUGENIO S.BALTAO, in their capacity as members of the Special

Committee created by House Resolution No. 59,respondents.

A. Padilla, F. A. Rodrigo and T. T. Quiazon, Jr., forpetitioner.

Antonio Y. de Pio in his own behalf.F. S. Abeleda, A. B. Fernandez, E. S. Baltao and Tecla San

Andres Ziga in their own behalf.C. T. Villareal and R. D. Bagatsing as amici curiae.

SYLLABUS

1.CONSTITUTIONAL LAW; CONGRESS; PARLIAMENTARYIMMUNITY OF MEMBERS, NOT ABSOLUTE. — Whileparliamentary immunity guarantees the legislatocomplete freedom of expression without fear of beingmade responsible in criminal or civil actions before thecourts or any other forum outside of the CongressionaHall, however, it does not protect him from responsibilitybefore the legislative body itself whenever his words and

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conduct are considered by the latter disorderly orunbecoming a member thereof. For unparliamentaryconduct, members of Congress can be censured,committed to prison, suspended, even expelled by thevotes of their colleagues.2.ID.; ID.; PARLIAMENTARY RULES; FAILURE TO CONFORMTO RULES, EFFECT OF. — Parliamentary rules are merelyprocedural, and with their observance, the courts haveno concern. They may be waived or disregarded by thelegislative body. Consequently, mere failure to conform

to parliamentary usage will not invalidate the actiontaken by a deliberate body when the requisite number ofmembers have agreed to a particular measure.3.ID.; ID.; POWER OF CONGRESS TO DETERMINEDISORDERLY BEHAVIOR OF MEMBERS; SEPARATION OFPOWERS. — The House of Representatives is the judge ofwhat constitutes disorderly behavior. The courts will notresume a jurisdiction in any case which will amount to aninterference by the judicial department with thelegislature.4.ID.; ID.; ID.; PERSONAL ATTACK UPON CHIEF EXECUTIVECONSTITUTES DISORDERLY BEHAVIOUR. — The House ofRepresentatives of the United States has taken theposition that personal attacks upon the Chief Executive

constitutes unparliamentary conduct or breach of order.And in several instances, it took action against offenders,even after other business had been considered.5.ID.; ID.; POWER OF CONGRESS TO SUSPEND ITSMEMBERS. — While under the Jones Law, the Senate hadno power to suspend appointive member (Alejandrino vs.Quezon, 46 Phil., 83), at present Congress has the inherentlegislative prerogative of suspension which theConstitution did not impair.

D E C I S I O N

BENGZON, J p:On July 14, 1960, Congressman Sergio Osmeña, Jr.,

submitted to this Court a verified petition for "declaratoryrelief, certiorari and prohibition with preliminary injunction"against Congressman Salipada K. Pendatun andfourteen other congressmen in their capacity asmembers of the Special Committee created by HouseResolution No. 59. He asked for annulment of suchResolution on the ground of infringement of hisparliamentary immunity; he also asked, principally, thatsaid members of the special committee be enjoined fromproceeding in accordance with it, particularly the portionauthorizing them to require him to substantiate hischarges against the President, with the admonition that ifhe failed to do so, he must show cause why the Houseshould not punish him.

The petition attached a copy of House Resolution No. 59,the pertinent portions of which read as follows:

"WHEREAS, on the 23rd day of June, 1960, the HonorableSergio Osmeña, Jr., Member of the House ofRepresentatives from the Second District of the provinceof Cebu, took the floor of this Chamber on the one hourprivilege to deliver a speech, entitled 'A Message toGarcia;'WHEREAS, in the course of said speech, the Congressmanfrom the Second District of Cebu stated the following:

xxx xxx xxx"The people, Mr. President, have been hearing of uglyreports that under your unpopular administration the freethings they used to get from the government are now fosale at premium prices. They say that even pardons arefor sale, and that regardless of the gravity or seriousnessof a criminal case, the culprit can always be bailed outforever from jail as long as he can come across with ahandsome dole. I am afraid, such an anomalous situationwould reflect badly on the kind of justice that you

administration is dispensing. . . ."WHEREAS, the charges of the gentleman from theSecond District of Cebu, if made maliciously or recklesslyand without basic in truth and in fact, would constitute aserious assault upon the dignity and prestige of the Officeof the President, which is the one visible symbol of thesovereignty of the Filipino people, and would expose saidoffice to contempt and disrepute; . . .Resolved by the House of Representatives, that a speciacommittee of fifteen Members to be appointed by theSpeaker be, and the same hereby is, created toinvestigate the truth of the charges against the Presidenof the Philippines made by Honorable Sergio Osmeña, Jr.in his privileges speech of June 23, 1960, and for such

purpose it is authorized to summon Honorable SergioOsmeña, Jr., to appear before it to substantiate hischarges, as well as to issue subpoena and/or subpoenaduces tecum to require the attendance of witnessesand/or the production of pertinent papers before it, andif Honorable Sergio Osmeña, Jr., fails to do so to requirehim to show cause why he should not be punished by theHouse. The special committee shall submit to the House areport of its findings and recommendations before theadjournment of the present special session of theCongress of the Philippines."In support of his request, Congressman Osmeña allegedfirst, the Resolution violated his constitutional absoluteparliamentary immunity for speeches delivered in the

House; second, his words constituted no actionableconduct; and third, after his allegedly objectionablespeech and words, the House took up other business, andRule XVII, sec. 7 of the Rules of the House provides that ifother business has intervened after the Member haduttered obnoxious words in debate, he shall not be heldto answer therefor nor be subject to censure by theHouse.

Although some members of the court expressed doubtsof petitioner's cause of action and the Court's jurisdictionthe majority decided to hear the matter further, andrequired respondents to answer, without issuing anypreliminary injunction. Evidently aware of suchcircumstance with its implications, and pressed for time inview of the imminent adjournment of the legislativesession, the special committee continued to perform itstask, and after giving Congressman Osmeña a chance todefend himself, submitted its report on July 18, 1960finding said congressman guilty of serious disorderlybehavior; and acting on such report, the Houseapproved on the same day — before closing its session —House Resolution No. 175, declaring him guilty asrecommended, and suspending him from office fofifteen months.

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Thereafter, on July 19, 1960, the respondents (with theexception of Congressmen De Pio, Abeleda, San AndresZiga, Fernandez and Baltao) 1 filed their answer,challenged the jurisdiction of this Court to entertain thepetition, defended the power of Congress to discipline itsmembers with suspension, upheld House Resolution No.175 and then invited attention to the fact that Congresshaving ended its session on July 18, 1960, the Committee — whose members are the sole respondents — hadthereby ceased to exist.

There is no question that Congressman Osmeña, in aprivilege speech delivered before the House, made theserious imputations of bribery against the President whichare quoted in Resolution No. 59, and that he refused toproduce before the House Committee created for thepurpose, evidence to substantiate such imputations.There is also no question that for having made theimputations and for failing to produce evidence insupport thereof, he was, by resolution of the House,suspended from office for a period of fifteen months, forserious disorderly behaviour.

Resolution No. 175 states in part:

"WHEREAS, the Special Committee created under and byvirtue of Resolution No. 59, adopted on July 8, 1960,found Representative Sergio Osmeña, Jr., guilty of seriousdisorderly behaviour for making without basis in truth andin fact, scurrilous, malicious, reckless and irresponsiblecharges against the President of the Philippines in hisprivilege speech of June 23, 1960; andWHEREAS, the said charges are so vile in character thatthey affronted and degraded the dignity of the House ofRepresentatives: Now, Therefore, be it.RESOLVED by the House of Representatives, ThatRepresentative Sergio Osmeña, Jr., be, as he hereby is,declared guilty of serious disorderly behaviour; and . . ."

As previously stated, Osmeña contended in his petitionthat: (1) the Constitution gave him completeparliamentary immunity, and so, for words spoken in theHouse, he ought not to be questioned; (2) that his speechconstituted no disorderly behaviour for which he couldbe punished; and (3) supposing he could be questionedand disciplined therefor, the House had lost the power todo so because it had taken up other business beforeapproving House Resolution No. 59. Now, he takes theadditional 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 "forany speech or debate" in Congress, the Senators orMembers of the House of Representatives "shall not bequestioned in any other place." This section was taken oris a copy of sec. 6, clause 1 of Art. 1 of the Constitution ofthe United States. In that country, the provision hasalways been understood to mean that although exemptfrom prosecution or civil actions for their words uttered inCongress, the members of Congress may, nevertheless,be questioned in Congress itself. Observe that "they shallnot be questioned in any other place" than Congress.

Furthermore, the Rules of the House which petitionerhimself has invoked (Rule XVII, sec. 7), recognize the

House's power to hold a member responsible "for wordsspoken in debate."

Our Constitution enshrines parliamentary immunity whichis a fundamental privilege cherished in every legislativeassembly of the democratic world. As old as the EnglishParliament, its purpose "is to enable and encourage arepresentative of the public to discharge his public truswith firmness and success" for "it is indispensablynecessary that he should enjoy the fullest liberty o

speech, and that he should be protected from theresentment of every one, however powerful, to whom theexercise of that liberty may occasion offense." 2 Suchimmunity has come to this country from the practices oParliament as construed and applied by the Congress othe United States. Its extent and application remain nolonger in doubt in so far as related to the question beforeus. It guarantees the legislator complete freedom oexpression without fear of being made responsible incriminal or civil actions before the courts or any otheforum outside of the Congressional Hall. But it does notprotect him from responsibility before the legislative bodyitself whenever his words and conduct are considered bythe latter disorderly or unbecoming a member thereof. In

the United States Congress, Congressman FernandoWood of New York was censured for using the followinglanguage on the floor of the House: "A monstrosity, ameasure the most infamous of the many infamous acts othe infamous Congress." (Hinds' Precedents, Vol. 2, pp798-799). Two other congressmen were censured foemploying insulting words during debate. (2 HindsPrecedents, 799-801). In one case, a member of Congreswas summoned to testify on a statement made by him indebate, but invoked his parliamentary privilege. TheCommittee rejected his plea. (3 Hinds' Precedents 123124.)

For unparliamentary conduct, members of Parliament o

of Congress have been, or could be censuredcommitted to prison 3 , suspended, even expelled by thevotes of their colleagues. The appendix to this decisionamply attests to the consensus of informed opinionregarding the practice and the traditional power olegislative assemblies to take disciplinary action against itsmembers, including imprisonment, suspension oexpulsion. It mentions one instance of suspension of alegislator in a foreign country.

And to cite a local illustration, the Philippine Senate, inApril 1949, suspended a senator for one year.

Needless to add, the Rules of Philippine House oRepresentatives provide that the parliamentary practicesof the Congress of the United States shall apply in asupplementary manner to its proceedings.

This brings up the third point of petitioner: the House mayno longer take action against me, he argues, becauseafter my speech, and before approving Resolution No59, it had taken up other business. Respondents answethat Resolution No. 59 was unanimously approved by theHouse, that such approval amounted to a suspension othe House Rules, which according to standard

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parliamentary practice may be done by unanimousconsent.

Granted, counters the petitioner, that the House maysuspend the operation of its Rules, it may not, however,affect past acts or renew its right to take action whichhad already lapsed.

The situation might thus be compared to laws 4extending the period of limitation of actions and making

them applicable to actions that had lapsed. TheSupreme Court of the United States has upheld such lawsas against the contention that they impaired vested rightsin violation of the Fourteenth Amendment (Campbell vs.Holt, 115 U. S. 620). The states hold divergent views. At anyrate, courts have declared that "the rules adopted bydeliberative bodies are subject to revocationmodification or waiver at the pleasure of the bodyadopting them." 5 And it has been said that"Parliamentary rules are merely procedural, and with theirobservance, the courts have no concern. They may bewaived or disregarded by the legislative body."Consequently, "mere failure to conform to parliamentaryusage will not invalidate the action (taken by a

deliberative body) when the requisite number ofmembers have agreed to a particular measure." 6

The following is quoted from a reported decision of theSupreme Court of Tennessee:

"The rule here invoked is one of parliamentary procedure,and it is uniformly held that it is within the power of alldeliberative bodies to abolish, modify, or waive their ownrules of procedure, adopted for the orderly conduct ofbusiness, 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; Cityof Corinth vs. Sharp, 107 Miss. 696, 65 So. 888; McGraw vs.Whitson, 69 Iowa, 348, 28 N. W. 632; Tuell vs. Meachamcontracting Co. 145 Ky. 181, 186, 140 S. W. 159, Ann. Cas.1913B, 802.) [Taken from the case of Rutherford vs. City ofNashville, 78 South Western Reporter, p. 534.]It may be noted in this connection, that in the case ofCongressman Stanbery of Ohio, who insulted theSpeaker, for which Act a resolution of censure waspresented, the House approved the resolution, despitethe argument that other business had intervened afterthe objectionable remarks. (2 Hinds' Precedents pp. 799-800.)

On the question whether delivery of speeches attackingthe Chief Executive constitutes disorderly conduct forwhich Osmeña may be disciplined, many arguments proand con have been advanced. We believe, however,that the House is the judge of what constitutes disorderlybehaviour, not only because the Constitution hasconferred jurisdiction upon it, but also because thematter depends mainly on factual circumstances ofwhich the House knows best but which can not bedepicted in black and white for presentation to, andadjudication by the Courts. For one thing, if this Court

assumed the power to determine whether Osmeña'sconduct constituted disorderly behaviour, it wouldthereby have assumed appellate jurisdiction, which theConstitution never intended to confer upon a coordinatebranch of the Government. The theory of separation ofpowers fastidiously observed by this Court, demands insuch situation a prudent refusal to interfere. Eachdepartment, it has been said, has exclusive cognizanceof matters within its jurisdiction and is supreme within itsown sphere. (Angara vs. Electoral Commission, 63 Phil.

139.)

"SEC. 200.Judicial Interference with Legislature. — Theprinciple is well established that the courts will not assumea jurisdiction in any case which will amount to aninterference by the judicial department with thelegislature since each department is equallyindependent within the powers conferred upon it by theConstitution. . . .""The general rule has been applied in other cases tocause the courts to refuse to intervene in what areexclusively legislative functions. Thus, where the stateSenate is given the power to expel a member, the courtswill not review its action or revise even a most arbitrary or

unfair decision." (11 Am. Jur., Const. Law, sec. 200, p. 902.[Italics Ours.]The above statement of American law merely abridgedthe landmark case of Clifford vs. French. 7 In 1905, severasenators who had been expelled by the State Senate oCalifornia for having taken a bribe, filed mandamusproceedings to compel reinstatement, alleging theSenate had given them no hearing, nor a chance tomake defense, besides falsity of the charges of briberyThe Supreme Court of California declined to interfereexplaining in orthodox juristic language:

"Under our form of government, the judicial departmenthas no power to revise even the most arbitrary and unfai

action of the legislative department, or of either housethereof, taking in pursuance of the power committedexclusively to that department by the Constitution. It hadbeen held by high authority that, even in the absence ofan express provision conferring the power, everylegislative body in which is vested the general legislativepower of the state has the implied power to expel amember for any cause which it may deem sufficient. InHiss vs. Barlett. 3 Gray 473. 63 Am. Dec. 768, the supremecourt of Mass. says, in substance, that this power isinherent in every legislative body; that it is necessary toenable the body 'to perform its high functions, and isnecessary to the safety of the state;' 'That it is a power ofself-protection, and that the legislative body mustnecessarily be the sole judge of the exigency which may justify and require its exercise. '. . . There is no provisionauthorizing courts to control, direct, supervise, or forbidthe exercise by either house of the power to expel amember. These powers are functions of the legislativedepartment and therefore, in the exercise of the powethus committed to it, the senate is supreme. An attempby this court to direct or control the legislature, or eitherhouse thereof, in the exercise of the power, would be anattempt to exercise legislative functions, which it isexpressly forbidden to do."

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We have underscored in the above quotation these lineswhich in our opinion emphasize the principles controllingthis litigation. Although referring to expulsion, they may aswell be applied to other disciplinary action. Their gist asapplied to the case at bar: the House has exclusivepower; the courts have no jurisdiction to interfere.

Our refusal to intervene might impress some readers assubconscious hesitation due to discovery of impermissiblecourse of action in the legislative chamber. Nothing of

that sort: we merely refuse to disregard the allocation ofconstitutional functions which it is our special duty tomaintain. Indeed, in the interest of comity, we feel boundto state that in a conscientious survey of governingprinciples and/or episodic illustrations, we found theHouse of Representatives of the United States taking theposition on at least two occasions, that personal attacksupon the Chief Executive constitute unparliamentaryconduct or breach of order. 8 And in several instances, ittook action against offenders, even after other businesshad been considered. 9

Petitioner's principal argument against the House's powerto suspend is the Alejandrino precedent. In 1924, Senator

Alejandrino was, by resolution of the Senate, suspendedfrom office for 12 months because he had assaultedanother member of that Body for certain phrases thelatter had uttered in the course of a debate. The Senatorapplied to this Court for reinstatement, challenging thevalidity of the resolution. Although this Court held that inview of the separation of powers, it had no jurisdiction tocompel the Senate to reinstate petitioner, it neverthelesswent on to say the Senate had no power to adopt theresolution because suspension for 12 months amountedto removal, and the Jones Law (under which the Senatewas then functioning) gave the Senate no power toremove on 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 anelective member (sec. 18). Note particularly the word"elective."

The Jones Law, it must be observed, empowered theGovernor General to appoint "without consent of theSenate and without restriction as to residence senators . .. who will, in his opinion, best represent the TwelfthDistrict." Alejandrino was one appointive Senator.

It is true, the opinion in that case contained an obiterdictum that "suspension deprives the electoral district ofrepresentation without that district being afforded anymeans by which to fill that vacancy." But that remarkshould be understood to refer particularly to theappointive senator who was then the affected party andwho was by the same Jones Law charged with the dutyto represent the Twelfth District and maybe the views ofthe Government of the United States or of the Governor-General, who had appointed him.

It must be observed, however, that at that time theLegislature had only those powers which were granted toit by the Jones Law 10 ; whereas now the Congress hasthe full legislative powers and prerogatives of a sovereign

nation, except as restricted by the Constitution. In othewords, in the Alejandrino case, the Court reached theconclusion that the Jones Law did not give the Senatethe power it then exercised — the power of suspensionfor one year. Whereas now, as we find, the Congress hasthe inherent legislative prerogative of suspension 11which the Constitution did not impair. In fact, as alreadypointed out, the Philippine Senate suspended a Senatofor 12 months in 1949.

"The Legislative power of the Philippine Congress isplenary, subject only to such limitations as are found inthe Republic's Constitution. So that any power deemedto be legislative by usage or tradition, is necessarilypossessed by the Philippine Congress, unless theConstitution provides otherwise." (Vera vs. Avelino, 77Phil., 192, 212.)In any event, petitioner's argument as to the deprivationof the district's representation can not be more weighty inthe matter of suspension than in the case of imprisonmenof a legislator; yet deliberative bodies have the power inproper 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 fromacting in pursuance of House Resolution No. 59. Becauseno preliminary injunction had been issued, theCommittee performed its task, reported to the Houseand the latter approved the suspension order. The Househas closed its session, and the Committee has ceased toexist as such. It would seem, therefore, the case shouldbe dismissed for having become moot or academic. 13Of course, there is nothing to prevent petitioner from filingnew pleadings to include all members of the House asrespondents, ask for reinstatement and thereby topresent a justiciable cause. Most probable outcome osuch reformed suit, however, will be a pronouncement olack of jurisdiction, as in Vera vs. Avelino 14 and

Alejandrino vs. Quezon.

At any rate, having perceived suitable solutions to theimportant questions of political law, the Court thought iproper to express at this time its conclusions on such issuesas were deemed relevant and decisive.

Accordingly, the petition has to be, and is herebydismissed. So ordered.

Parás, C.J., Bautista Angelo, Concepción, BarreraGutierrez David, Paredes, and Dizon, JJ., concur.

EN BANC[G.R. No. L-28790. April 29, 1968.]

ANTONIO H. NOBLEJAS, as Commissioner of LandRegistration, petitioner, vs. CLAUDIO TEEHANKEE, as

Secretary of Justice, and RAFAEL SALAS, as ExecutiveSecretary, respondents.

Sevilla & Aquino and Lino M. Patajo for petitioner.Hon. Felix V. Makasiar for the respondents.

SYLLABUS

1.CIVIL PROCEDURE; ACTIONS; AMENDMENT; AN ORIGINASPECIAL CIVIL ACTION FOR MANDAMUS MAY NOT BE

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CHANGED INTO AN ORDINARY CIVIL ACTION FORSPECIFIC PERFORMANCE BY AMENDMENT. — Where therespondent judge admitted the second amendedcomplaint (petition) whereby the original special civilaction for mandamus was completely changed into anordinary civil action for specific performance of analleged contract, with damages in both cases and it waspatent that the action for mandamus had no leg tostand on because the writ was sought to enforce allegedcontractual obligations under a disputed contract

disputed not only on the ground that it had failed ofperfection but on the further ground that it was illegaland against public interest and public policy, it is obvious,that the amended pleading which changed the verynature of the action was clearly intended to correctVILTRA's error in instituting a special civil action formandamus to enforce contractual obligations, and thatthe partial decision summarily rendered by respondent judge under the irregular circumstances describedabove was intended to replace the unwarrantedpreliminary writ of mandatory injunction issued by himbefore the filing and admission of the last amendedcomplaint.

2.ID.; SUMMARY PARTIAL JUDGMENTS; IRREGULARRENDITION, EFFECT OF. — The irregularity of the summarypartial decision rendered by the respondent judge ismade manifest by the fact that in both answers filed byNAMARCO — one to the first amended complaint formandamus, and the other to the last or secondamended complaint entitled "For Specific PerformanceAnd Damages" — the illegality and unenforceability ofthe alleged contract between VILTRA and NAMARCO,on both legal and factual grounds, was duly raised.Consequently, it was, to say the least, improvident toissue a preliminary mandatory injunction for itsperformance, or render a partial judgment preciselyrequiring compliance with one of its essential features or

stipulations. The several writs issued by the respondentJudge for its execution must necessarily be deemedirregular and void.

D E C I S I O N

REYES, J.B.L., Actg. C.J. p:

Petition for a writ of prohibition with preliminary injunctionto restrain the Secretary of Justice from investigating theofficial actuations of the Commissioner of LandRegistration, and to declare inoperative his suspension bythe Executive Secretary pending investigation.

The facts are not in dispute. Petitioner Antonio H. Noblejasis the duly appointed, confirmed and qualifiedCommissioner of Land Registration, a position created byRepublic Act No. 1151. By the terms of section 2 of saidAct, the said Commissioner is declared "entitled to thesame compensation, emoluments and privileges as thoseof a Judge of the Court of First Instance." Theappropriation laws (Rep. Acts 4642, 4856 and 5170) in theitem setting forth the salary of said officer, use thefollowing expression:

"1.One Land Registration Commissioner, with the rank andprivileges of district judge — P19,000.00."

On March 7, 1968, respondent Secretary of Justicecoursed to the petitioner a letter requiring him to explainin writing not later than March 9, 1968 why no disciplinaryaction should be taken against petitioner for "approvingor recommending approval of subdivision, consolidationand consolidation-subdivision plans covering areasgreatly in excess of the areas covered by the origina

titles." Noblejas answered and apprised the Secretary oJustice that, as he enjoyed the rank, privilegesemoluments and compensation of a Judge of the Courof First Instance, he could only be suspended andinvestigated in the same manner as a Judge of theCourts of First Instance, and, therefore, the papers relativeto his case should be submitted to the Supreme Court, foaction thereon conformably to section 67 of the JudiciaryAct (R.A. No. 296) and Revised Rule 140 of the Rules oCourt.

On March 17, 1968, petitioner Noblejas received acommunication signed by the Executive Secretary, "byauthority of the President", whereby, based on "finding

that a prima facie case exists against you for grossnegligence and conduct prejudicial to the publicinterest", petitioner was "hereby suspended, upon receiphereof, pending investigation of the above charges."

On March 18, 1968, petitioner applied to this Courtreiterating the contentions advanced in his letter to theSecretary of Justice, claiming lack of jurisdiction andabuse of discretion, and praying for restraining writs. Intheir answer respondents admit the facts but deny thapetitioner, as Land Registration Commissioner, exercises judicial functions, or that the petitioner may beconsidered a Judge of First Instance within the purview othe Judiciary Act and Revised Rules of Court 140; that the

function of investigating charges against public officers isadministrative or executive in nature; that the Legislaturemay not charge the judiciary with nonjudicial functions oduties except when reasonably incidental to thefulfillment of judicial duties, as it would be in violation othe principle of the separation of powers.

Thus, the stark issue before this Court is whether theCommissioner of Land Registration may only beinvestigated by the Supreme Court, in view of theconferment upon him by the Statutes heretoforementioned (Rep. Act 1151 and Appropriation Laws) othe rank and privileges of a Judge of the Court of FirsInstance.

First to militate against petitioner's stand is the fact thasection 67 of the Judiciary Act providing for investigationsuspension or removal of Judges, specifically recites tha"No District Judge shall be separated or removed fromoffice by the President of the Philippines unless sufficiencause shall exist in the judgment of the Supreme Court . . " and it is nowhere claimed, much less shown, that theCommissioner of Land Registration is a District Judge, or infact a member of the Judiciary at all.

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In the second place, petitioner's theory that the grant of"privileges of a Judge of First Instance" includes byimplication the right to be investigated only by theSupreme Court and to be suspended or removed uponits recommendation, would necessarily result in the sameright being possessed by a variety of executive officialsupon whom the Legislature had indiscriminatelyconferred the same privileges. These favoured officersinclude (a) the Judicial Superintendent of theDepartment of Justice (Judiciary Act, sec. 42); (b) the

Assistant Solicitors General, seven in number (Rep. ActNo. 4360); (c) the City Fiscal of Quezon City (R.A. No.4495); (d) the City Fiscal of Manila (R.A. No. 4631 ) and (e)the Securities and Exchange Commissioner (R.A. No,5050, s. 2). To adopt petitioner's theory, therefore, wouldmean placing upon the Supreme Court the duty ofinvestigating and disciplining all these officials whosefunctions are plainly executive, and the consequentcurtailment by mere implication from the Legislativegrant, of the President's power to discipline and removeadministrative officials who are presidential appointees,and which the Constitution expressly place under thePresident's supervision and control (Constitution, Art. VII),sec. 10 [1]).

Incidentally, petitioner's stand would also lead to theconclusion that the Solicitor General, another appointeeof the President could not be removed by the latter,since the Appropriation Acts confer upon the SolicitorGeneral the rank and privileges of a Justice of the Courtof Appeals, and these Justices are only removable by theLegislature, through the process of impeachment(Judiciary Act, sec. 24, par. 2).

In our opinion, such unusual corollaries could not havebeen intended by the Legislature when it granted theseexecutive officials the rank and privileges of Judges ofFirst Instance. This conclusion gains strength when

account is taken of the fact that in the case of theJudges of the Court of Agrarian Relations and those ofthe Court of Tax Appeals, the organic statutes of saidbodies (Republic Act 1206, as amended by Act 1409;Rep. Act No. 1125) expressly provide that they are to beremoved from office for the same causes and in thesame manner provided by law for Judges of FirstInstance" or "members of the judiciary of appellate rank."The same is true of Judges of the Court of AgrarianRelations (Comm. Act No. 103) and of the Commissionerof Public Service (Public Service Act, Sec. 3). It is therebyshown that where the legislative design is to make thesuspension or removal procedure prescribed for Judgesof First Instance applicable to other officers, provision tothat effect is made in plain and unequivocal language.

But the more fundamental objection to the stand ofpetitioner Noblejas is that, if the Legislature had reallyintended to include in the general grant of "privileges" or"rank and privileges of Judges of the Court of FirstInstance" the right to be investigated by the SupremeCourt, and to be suspended or removed only uponrecommendation of that Court, then such grant ofprivileges would be unconstitutional, since it wouldviolate the fundamental doctrine of separation ofpowers, by charging this court with the administrative

function of supervisory control over executive officialsand simultaneously reducing pro tanto the control of theChief Executive over such officials.

Justice Cardozo ruled in In re Richardson et al., Connollyvs. Scudder (247 N.Y. 401, 160 N.E. 655), saying:

"There is no inherent power in the Executive or Legislatureto charge the judiciary with administrative functionsexcept when reasonably incidental to the fulfillment o

judicial duties."

The United States Supreme Court said in Federal RadioCommission vs. General Electric Co., et al., 281 U.S. 46974 Law, Ed., 972, —

"But this court cannot be invested with jurisdiction of thatcharacter, whether for purposes of review or otherwise. Iwas brought into being by the judiciary article of theConstitution, is invested with judicial power only and canhave no jurisdiction other than of cases and controversiesfalling within the classes enumerated in that article. It

cannot give decisions which are merely advisory nor canit exercise or participate in the exercise of functions whichare essentially legislative or administrative. Keller vPotomac Electric Power Co. supra (261 U.S. 444, 67 L. ed736, 43 Sup. Ct. Rep. 445) and cases cited; Postum CereaCo. vs. California Fig. Nut Co. supra (272 U.S. 700 701, 71Led. 481, 47 Sup. Ct. Rep. 284); Liberty Warehouse Co.vGrannis, 273 U.S. 70, 74, 71 L. ed. 541, 544, 47 Sup. Ct. Rep.282; Willing v. Chicago Auditorium Asso. 277 U.S. 274, 28972 L. ed. 880, 884, 48 Sup. Ct. Rep. 507; Ex parte BakeliteCorp. 279 U.S. 438, 449, 73 L. ed. 789, 793, 49 Sup. Ct. Rep411. (Federal Radio Commission v. General ElectricCompany, 281 US. 469, 74 L. ed. 972) (Emphasis supplied.)

In this spirit, it has been held that the Supreme Court ofthe Philippines and its members should not and can notbe required to exercise any power or to perform any trustor to assume any duty not pertaining to or connectedwith the administration of judicial functions; and a lawrequiring the Supreme Court to arbitrate disputesbetween public utilities was pronounced void in ManilaElectric Co. vs. Pasay Transportation Co. (57 Phil, 600).

Petitioner Noblejas seeks to differentiate his case fromthat of other executive officials by claiming that undeSection 4 of Republic Act No. 1151, he is endowed with judicial functions. The section invoked runs as follows:

"Sec. 4. — Reference of doubtful matters to Commissioneof Land Registration — When the Register of Deeds is indoubt with regard to the proper step to be taken omemorandum to be made in pursuance of any deedmortgage, or other instrument presented to him foregistration, or where any party in interest does not agreewith the Register of Deeds with reference to any suchmatter, the question shall be submitted to theCommissioner of Land Registration either upon thecertification of the Register of Deeds, stating the questionupon which he is in doubt, or upon the suggestion inwriting by the party in interest; and thereupon the

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Commissioner, after consideration of the matter shown bythe records certified to him, and in case of registeredlands, after notice to the parties and hearing, shall enteran order prescribing the step to be taken ormemorandum to be made. His decision in such casesshall be conclusive and binding upon all Registers ofdeeds: Provided, further, That when a party in interestdisagrees with the ruling or resolution of the Commissionerand the issue involves a question of law, said decisionmay be appealed to the Supreme Court within thirty days

from and after receipt of the notice thereof."

Serious doubt may well be entertained as to whether theresolution of a consulta by a Register of Deeds is a judicialfunction, as contrasted with administrative process. It willbe noted that by specific provision of the section, thedecision of the Land Registration Commissioner "shall beconclusive and binding upon all Registers of Deeds"alone, and not upon other parties. This limitation 1 ineffect identifies the resolutions of the Land RegistrationCommissioner with those of any other bureau director,whose resolutions or orders bind his subordinates alone.That the Commissioner's resolutions are appealable doesnot prove that they are not administrative: any bureau

director's ruling is likewise appealable to thecorresponding department head.

But even granting that the resolution of consultas by theRegister of Deeds should constitute a judicial (or moreproperly quasi judicial) function, analysis of the powersand duties of the Land Registration Commissioner underRepublic Act No. 1151, sections 3 and 4, will show that theresolution of consultas are but a minimal portion of hisadministrative or executive functions and merelyincidental to the latter.

Conformably to the well-known principle of statutoryconstruction that statutes should be given, whenever

possible, a meaning that will not bring them in conflictwith the Constitution, 2 We are constrained to rule thatthe grant by Republic Act 1151 to the Commissioner ofLand Registration of the "same privileges as those of aJudge of the Court of First Instance" did not include, andwas not intended to include, the right to demandinvestigation by the Supreme Court, and to besuspended or removed only upon that Court'srecommendation; for otherwise, the said grant ofprivileges would be violative of the Constitution and benull and void. Consequently, the investigation andsuspension of the aforenamed Commissioner pursuant tosections 32 and 34 of the Civil Service Law (R.A. 2260) areneither abuses of discretion nor acts in excess of jurisdiction.

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