EN BANC power of trying impeachments.

power of trying impeachments. And the judiciary in turn, with speak of its historical origin and development there, has been
[G.R. No. 45081. July 15, 1936.] the Supreme Court as the final arbiter, effectively checks the set at rest by popular acquiescence for a period of more than
other departments in the exercise of its power to determine the one and a half centuries. In our case, this moderating power is
JOSE A. ANGARA, petitioner, vs. THE ELECTORAL
law, and hence to declare executive and legislative acts void if granted, if not expressly, by clear implication from section 2 of
COMMISSION, PEDRO YNSUA, MIGUEL
violative of the Constitution. article VIII of our Constitution.
CASTILLO, and DIONISIO C.
MAYOR, respondents. 3. ID.; ID.; ID.; JUDICIARY THE ONLY CONSTITUTIONAL 5. ID.; ID.; ID.; WHAT IS MEANT BY "JUDICIAL
ARBITER TO ALLOCATE CONSTITUTIONAL BOUNDARIES. — But SUPREMACY". — The Constitution is a definition of the powers
Godofredo Reyes for petitioner.
in the main, the Constitution has blocked out with deft strokes of government. Who is to determine the nature, scope and
Solicitor-General Hilado for respondent Electoral and in bold lines, allotment of power to the executive, the extent of such powers? The Constitution itself has provided for
Commission. legislative and the judicial departments of the government. The the instrumentality of the judiciary as the rational way. And
Pedro Ynsua in his own behalf. overlapping and interlacing of functions and duties between the when the judiciary mediates to allocate constitutional
No appearance for other respondents. several departments, however, sometimes makes it hard to say boundaries, it does not assert any superiority over the other
SYLLABUS just where the one leaves off and the other begins. In times of departments; it does not in reality nullify or invalidate an act of
social disquietude or political excitement, the great landmarks the Legislature, but only asserts the solemn and sacred
1. CONSTITUTIONAL LAW; SEPARATION OF POWERS.
of the Constitution are apt to be forgotten or marred, if not obligation assigned to it by the Constitution to determine
— The separation of powers is a fundamental principle in our
entirely obliterated. In cases of conflict, the judicial department conflicting claims of authority under the Constitution and to
system of government. It obtains not through express provision
is the only constitutional organ which can be called upon to establish for the parties in an actual controversy the rights
but by actual division in our Constitution. Each department of
determine the proper allocation of powers between the several which that instrument secures and guarantees to them. This is
the government has exclusive cognizance of matters within its
departments and among the integral or constituent units in truth all that is involved in what is termed "judicial
jurisdiction, and is supreme within its own sphere.
thereof. supremacy" which properly is the power of judicial review
2. ID.; ID.; SYSTEM OF CHECKS AND BALANCES. — But under the Constitution.
4. ID.; ID.; ID.; ID.; MODERATING POWER OF THE
it does not follow from the fact that the three powers are to be
JUDICIARY IS GRANTED, IF NOT EXPRESSLY, BY CLEAR 6. ID.; ID.; ID.; JUDICIAL REVIEW LIMITED TO ACTUAL
kept separate and distinct that the Constitutionintended them
IMPLICATION. — As any human production, our Constitution is LITIGATION; WISDOM, JUSTICE OR EXPEDIENCY OF
to be absolutely unrestrained and independent of each other.
of course lacking perfection and perfectibility, but as much as it LEGISLATION. — Even then, this power of judicial review is
The Constitution has provided for an elaborate system of
was within the power of our people, acting through their limited to actual cases and controversies to be exercised after
checks and balances to secure coordination in the workings of
delegates to so provide, that instrument which is the expression full opportunity of argument by the parties, and limited further
various departments of government. For example, the Chief
of their sovereignty however limited, has established a to the constitutional question raised or the verylis
Executive under our Constitution is 80 far made a check on the
republican government intended to operate and function as a mota presented. Any attempt at abstraction could only lead to
legislative power that his assent is required in the enactment of
harmonious whole, under a system of checks and balances, and dialectics and barren legal questions and to sterile conclusions
laws. This, however, is subject to the further check that a bill
subject to specific limitations and restrictions provided in the unrelated to actualities. Narrowed as its function is in this
may become a law notwithstanding the refusal of the President
said instrument. The Constitution sets forth in no uncertain manner, the judiciary does not pass upon questions of wisdom,
to approve it, by a vote of two-thirds or three-fourths, as the
language the restrictions and limitations upon governmental justice or expediency of legislation. More than that, courts
case may be, of the National Assembly. The President has also
powers and agencies. If these restrictions and limitations are accord the presumption of constitutionality to legislative
the right to convene the Assembly in special session whenever
transcended, it would be inconceivable if the Constitution had enactments not only because the Legislature is presumed to
he chooses. On the other hand, the National Assembly operates
not provided for a mechanism by which to direct the course of abide by the Constitution but also because the judiciary in the
as a check on the Executive in the sense that its consent
government along constitutional channels, for, then, the determination of actual cases and controversies must reflect
through its Commission on Appointments is necessary in the
distribution of powers would be mere verbiage, the bill of rights the wisdom and justice of the people as expressed through
appointment of certain officers; and the concurrence of a
mere expressions of sentiment, and the principles of good their representatives in the executive and legislative
majority of all its members is essential to the conclusion of
government mere political apothegms. Certainly, the limitations departments of the government.
treaties. Furthermore, in its power to determine what courts
and restrictions embodied in the Constitution are real as they 7. ID.; ID.; ID.; SYSTEM ITSELF NOT THE CHIEF
other than the Supreme Court shall be established, to define
should be in any living constitution. In the United States where PALLADIUM OF CONSTITUTIONAL LIBERTY; SUCCESS MUST BE
their jurisdiction and to appropriate funds for their support, the
no express constitutional grant is found in their constitution, TESTED IN THE CRUCIBLE OF FILIPINO MINDS AND HEARTS. —
National Assembly exercises to a certain extent control over the
the possession of this moderating power of the courts, not to But much as we might postulate on the internal checks of
judicial department. The Assembly also exercises the judicial
power provided in our Constitution, it ought not the less to be
remembered that, in the language of James Madison, the
system itself is not "the chief palladium of constitutional liberty
. . . the people who are authors of this blessing must also be its
guardians . . . their eyes must be ever ready to mark, their voice
to pronounce . . . aggression on the authority of
their constitution." In the last and ultimate analysis, then, must
the success of our government in the unfolding years to come
be tested in the crucible of Filipino minds and hearts than in the
consultation rooms and court chambers.
8. ID.; OUR CONSTITUTION HAS ADOPTED THE
AMERICAN TYPE OF CONSTITUTIONAL GOVERNMENT. —
Discarding the English type and other European types of
constitutional government, the framers of
our Constitution adopted the American type where the
written constitution is interpreted and given effect by the
judicial department. In some countries which have declined to
follow the American example, provisions have been inserted in
their constitutions prohibiting the courts from exercising the
power to interpret the fundamental law. This is taken as a
recognition of what otherwise would be the rule that in the
absence of direct prohibition courts are bound to assume what
is logically their function. For instance, the Constitution of
Poland of 1921, expressly provides that courts shall have no
power to examine the validity of statutes (article 81, chapter
IV). The former Austrian Constitution contained a similar
declaration. In countries whose constitutions are silent in this
respect, courts have assumed this power. This is true in
Norway, Greece, Australia and South Africa. Whereas, in
Czechoslovakia (arts. 2 and 3, Preliminary Law to Constitutional
Charter of the Czechoslovak Republic, February 29, 1920) and
Spain (arts 121-123, Title IX, Constitution of the Republic of
1931) especial constitutional courts are established to pass
upon the validity of ordinary laws.
9. ID.; JURISDICTION OVER THE ELECTORAL
COMMISSION. — The nature of the present controversy shows
the necessity of a final constitutional arbiter to determine the
conflict of authority between two agencies created by
the Constitution. If the conflict were left undecided and
undetermined, a void would be created in our constitutional
system which may in the long run prove destructive of the
entire framework. Natura vacuum abhorret, so must we avoid
exhaustion in our constitutional system. Upon principle, reason
and authority, the Supreme Court has jurisdiction over the
Electoral Commission and the subject matter of the present
controversy for the purpose of determining the character,
scope and extent of the constitutional grant to the Electoral
Commission as "the sole judge of all contests relating to the
election, returns and qualifications of the members of the
National Assembly."
10. ID.; THE ELECTORAL COMMISSION;
CONSTITUTIONAL GRANT OF POWER TO THE ELECTORAL
COMMISSION TO BE THE SOLE JUDGE OF ALL CONTESTS
RELATING TO THE ELECTION, RETURNS AND QUALIFICATIONS
OF MEMBERS OF THE NATIONAL ASSEMBLY. — The original
provision regarding this subject in the Act of Congress of July 1,
1902 (sec. 7, par. 5) laying down the rule that the assembly shall
be the judge of the elections, returns, and qualifications of its
members", was taken from clause 1 of section 5, Article I of
the Constitution of the United States providing that "Each
House shall be the Judge of the Elections, Returns, and
Qualifications of its own Members, . . . ." The Act of Congress of
August 29, 1916 (sec. 18, par. 1) modified this provision by the
insertion of the word "sole" as follows: "That the Senate and
House of Representatives, respectively, shall be the sole judges
of the elections, returns, and qualifications of their elective
members, . . ." apparently in order to emphasize the exclusive
character of the jurisdiction conferred upon each House of the
Legislature over the particular cases therein specified. This
court has had occasion to characterize this grant of power to
the Philippine Senate and House of Representatives,
respectively, as "full, clear and complete". (Veloso vs. Boards of
Canvassers of Leyte and Samar [1919], 39 Phil., 886, 888.)
11. ELECTORAL COMMISSION; HISTORICAL INSTANCES.
— The transfer of the power of determining the election,
returns and qualifications of the members of the Legislature
long lodged in the legislative body, to an independent, impartial
and non-partisan tribunal, is by no means a mere experiment in
the science of government. As early as 1868, the House of
Commons in England solved the problem of insuring the non-
partisan settlement of the controverted elections of its
members by abdicating its prerogative to two judges of the
King's Bench of the High Court of Justice selected from a rota in
accordance with rules of court made for the purpose. Having
proved successful, the practice has become imbedded in English
jurisprudence (Parliamentary Elections Act, 1868 [31 & 32 Vict.
c. 125] as amended by Parliamentary Elections and Corrupt
Practices Act, 1879 [42 & 43 Vict. c. 75], s. 2; Corrupt and Illegal
Practices Prevention Act 1883 [46 & 47 Vict. c. 51], s. 70;
Expiring Laws Continuance Act, 1911 [1 & 2 Geo. 5, c. 22]; Laws
of England, vol. XII, p. 408, vol. XXI, p. 787). In the Dominion of
Canada, election contests which were originally heard by the
Committee of the House of Commons, are since 1922 tried in
the courts. Likewise, in the Commonwealth of Australia,
election contests which were originally determined by each
house, are since 1922 tried in the High Court. In Hungary, the
organic law provides that all protests against the election of
members of the Upper House of Diet are to be resolved by the
Supreme Administrative Court (Law 22 of 1916, chap. 2, art. 37,
par. 6). The Constitution of Poland of March 17, 1921 (art. 19)
and the Constitution of the Free City of Danzig of May 13, 1922
(art. 10) vest the authority to decide contested elections to the
Diet or National Assembly in the Supreme Court. For the
purpose of deciding legislative contests, theConstitution of the
German Reich of July 1, 1919 (art. 31), the Constitution of the
Czechoslovak Republic of February 29, 1920 (art. 19) and
the Constitution of the Grecian Republic of June 2, 1927 (art.
43) all provide for an Electoral Commission.
12. ID.; ELECTORAL COMMISSION IN THE UNITED
STATES. — The creation of an Electoral Commission whose
membership is recruited both from the legislature and the
judiciary is by no means unknown in the United States. In the
presidential elections of 1876 there was a dispute as to the
number of electoral votes received by each of the two opposing
candidates. As the Constitution made no adequate provision for
such a contingency, Congress passed a law on January 29, 1877
(United States Statutes at Large, vol. 19, chap. 37, pp. 227-229),
creating a special Electoral Commission composed of five
members elected by the Senate, five members elected by the
House of Representatives, and five justices of the Supreme
Court, the fifth justice to be selected by the four designated in
the Act. The decision of the commission was to be binding
unless rejected by the two houses voting separately. Although
there is not much moral lesson to be derived from the
experience of America in this regard, the experiment has at
least abiding historical interest.
13. ID.; ID.; FAMILIARITY OF THE MEMBERS OF THE
CONSTITUTIONAL CONVENTION WITH THE HISTORY AND
POLITICAL DEVELOPMENT OF OTHER COUNTRIES OF THE
WORLD; ELECTORAL COMMISSION IS THE EXPRESSION OF THE
WISDOM AND ULTIMATE JUSTICE OF THE PEOPLE. — The
members of the Constitutional Convention who framed our
fundamental law were in their majority men mature in years
and experience. To be sure, many of them were familiar with
the history and political development of other countries of the
world. When, therefore, they deemed it wise to create an
Electoral Commission as a constitutional organ and invested it
with the exclusive function of passing upon and determining the
election, returns and qualifications of the members of the
National Assembly, they must have done so not only in the light
of their own experience but also having in view the experience
of other enlightened peoples of the world. The creation of the
Electoral Commission was designed to remedy certain evils of
which the framers of our Constitution were cognizant.
Notwithstanding the vigorous opposition of some members of
the Convention to its creation, the plan was approved by that
body by a vote of 98 against 58. All that can be said now is that,
upon the approval of the Constitution, the creation of the
Electoral Commission is the expression of the wisdom and
"ultimate justice of the people". (Abraham Lincoln, First
Inaugural Address, March 4, 1861.)
14. ID.; ID.; ID.; PURPOSE WAS TO TRANSFER IN ITS
TOTALITY POWER EXERCISED PREVIOUSLY BY THE LEGISLATURE
OVER THE CONTESTED ELECTIONS OF THE MEMBERS TO AN
INDEPENDENT AND IMPARTIAL TRIBUNAL. — From the
deliberations of our Constitutional Convention it is evident that
the purpose was to transfer in its totality all the powers
previously exercised by the Legislature in matters pertaining to
contested elections of its members, to an independent and
impartial tribunal. It was not so much the knowledge and
appreciation of contemporary constitutional precedents,
however, as the long-felt need of determining legislative
contests devoid of partisan considerations which prompted the
people acting through their delegates to the Convention to
provide for this body known as the Electoral Commission. With
this end in view, a composite body in which both the majority
and minority parties are equally represented to off-set partisan
influence in its deliberations was created, and further endowed
with judicial temper by including in its membership three
justices of the Supreme Court.
15. ID.; ID.; ID.; THE ELECTORAL COMMISSION IS AN
INDEPENDENT CONSTITUTIONAL CREATION ALTHOUGH FOR
PURPOSES OF CLASSIFICATION IT IS CLOSER TO THE
LEGISLATIVE DEPARTMENT THAN TO ANY OTHER. — The
Electoral Commission is a constitutional creation, invested with
the necessary authority in the performance and execution of
the limited and specific function assigned to it by
the Constitution. Although it is not a power in our tripartite
scheme of government, it is, to all intents and purposes, when
acting within the limits of its authority, an independent organ. It
is, to be sure, closer to the legislative department than to any
other. The location of the provision (sec. 4) creating the
Electoral Commission under Article VI entitled "Legislative
Department" of our Constitution is very indicative. Its
composition is also significant in that it is constituted by a
majority of members of the Legislature. But it is a body
separate from and independent of the Legislature.
16. ID.; ID; ID.; GRANT OF POWER TO THE ELECTORAL
COMMISSION INTENDED TO BE AS COMPLETE AND
UNIMPAIRED AS IF IT HAD REMAINED ORIGINALLY IN THE
LEGISLATURE. — The grant of power to the Electoral
Commission to judge all contests relating to the election,
returns and qualifications of members of the National
Assembly, is intended to be as complete and unimpaired as if it
had remained originally in the Legislature. The express lodging
of that power in the Electoral Commission is an implied denial
of the exercise of that power by the National Assembly. And
this is as effective a restriction upon the legislative power as an
express prohibition in the constitution (Ex parte Lewis, 46 Tex.
Crim. Rep., 1; State vs. Whisman, 33 S. D., 260; L. R. A., 1917B,
1). If the power claimed for the National Assembly to regulate
the proceedings of the Electoral Commission and cut off the
power of the Electoral Commission to lay down a period within
which protest should be filed were conceded, the grant of
power to the commission would be ineffective. The Electoral
Commission in such a case would be invested with the power to
determine contested cases involving the election, returns, and
qualifications of the members of the National Assembly but
subject at all times to the regulative power of the National
Assembly. Not only would the purpose of the framers of
our Constitution of totally transferring this authority from the
legislative body be frustrated, but a dual authority would be
created with the resultant inevitable clash of powers from time
to time. A sad spectacle would then be presented of the
Electoral Commission retaining the bare authority of taking
cognizance of cases referred to, but in reality without the
necessary means to render that authority effective whenever
and wherever the National Assembly has chosen to act, a
situation worse than that intended to be remedied by the
framers of our Constitution. The power to regulate on the part
of the National Assembly in procedural matters will inevitably
lead to the ultimate control by the Assembly of the entire
proceedings of the Electoral Commission, and, by indirection, to
the entire abrogation of the constitutional grant. It is obvious
that this result should not be permitted.
17. ID.; ID.; ID; ID.; THE POWER TO PROMULGATE
INCIDENTAL RULES AND REGULATIONS LODGED ALSO IN THE
ELECTORAL COMMISSION BY NECESSARY IMPLICATION. — The
creation of the Electoral Commission carried with it ex
necesitate rei the power regulative in character to limit the time
within which protests intrusted to its cognizance should be
filed. It is a settled rule of construction that where a general
power is conferred or duty enjoined, every particular power
necessary for the exercise of the one or the performance of the
other is also conferred (Cooley, Constitutional Limitations,
eighth ed., vol. I, pp. 138, 139). In the absence of any further
constitutional provision relating to the procedure to be
followed in filing protests before the Electoral Commission,
therefore, the incidental power to promulgate such rules
necessary for the proper exercise of its exclusive powers to
judge all contests relating to the election, returns and
qualifications of members of the National Assembly, must be
deemed by necessary implication to have been lodged also in
the Electoral Commission.
18. ID; ID.; ID.; POSSIBILITY OF ABUSE NO ARGUMENT
AGAINST GRANT OF POWER. — The possibility of abuse is not
an argument against the concession of the power as there is no
power that is not susceptible of abuse. If any mistake has been
committed in the creation of an Electoral Commission and in
investing it with exclusive jurisdiction in all cases relating to the
election, returns, and qualifications of members of the National
Assembly, the remedy is political, not judicial, and must be
sought through the ordinary processes of democracy. All the
possible abuses of the government are not intended to be
corrected by the judiciary. The people in creating the Electoral
Commission reposed as much confidence in this body in the
exclusive determination of the specified cases assigned to it, as
it has given to the Supreme Court in the proper cases entrusted
to it for decision. All the agencies of the government were
designed by the Constitution to achieve specific purposes, and
each constitutional organ working within its own particular
sphere of discretionary action must be deemed to be animated
with same zeal and honesty in accomplishing the great ends for
which they were created by the sovereign will. That the
actuations of these constitutional agencies might leave much to
be desired in given instances, is inherent in the imperfections of
human institutions. From the fact that the Electoral Commission
may not be interfered with in the exercise of its legitimate
power, it does not follow that its acts, however illegal or
unconstitutional, may not be challenged in appropriate cases
over which the courts may exercise jurisdiction.
19. ID.; ID.; ID.; FACTS OF THE CASE; EQUITABLE
CONSIDERATIONS. — The Commonwealth Government was
inaugurated on November 15, 1935, on which date
theConstitution, except as to the provisions mentioned in
section 6 of Article XV thereof, went into effect. The new
National Assembly convened on November 25, of that year, and
the resolution confirming the election of the petitioner was
approved by that body on December 3, 1935. The protest by
the herein respondent against the election of the petitioner was
filed on December 9 of the same year. The pleadings do not
show when the Electoral Commission was formally organized
but it does appear that on December 9, 1935, the Electoral
Commission met for the first time and approved a resolution
fixing said date as the last day for the filing of election protests.
When, therefore, the National Assembly passed its resolution of
December 3, 1935, confirming the election of the petitioner to
the National Assembly, the Electoral Commission had not yet
met; neither does it appear that said body had actually been
organized. As a matter of fact, according to certified copies of
official records on file in the archives division of the National
Assembly attached to the record of this case upon the petition
of the petitioner, the three justices of the Supreme Court and
the six members of the National Assembly constituting the
Electoral Commission were respectively designated only on
December 4 and 6, 1936. If Resolution No. 8 of the National
Assembly confirming non-protested elections of members of
the National Assembly had the effect of limiting or tolling the
time for the presentation of protests, the result would be that
the National Assembly — on the hypothesis that it still retained
the incidental power of regulation in such cases — had already
barred the presentation of protests before the Electoral
Commission had had time to organize itself and deliberate on
the mode and method to be followed in a matter entrusted to
its exclusive jurisdiction by the Constitution. This result was not
and could not have been contemplated, and should be avoided.
20. ID.; ID.; ID.; CONFIRMATION BY THE NATIONAL
ASSEMBLY CAN NOT DEPRIVE THE ELECTORAL COMMISSION OF
ITS AUTHORITY TO FIX THE TIME WITHIN WHICH PROTESTS
AGAINST THE ELECTION, RETURNS AND QUALIFICATIONS OF
MEMBERS OF THE NATIONAL ASSEMBLY SHOULD BE FILED. —
Resolution No. 8 of the National Assembly confirming the
election of members against whom no protests has been filed
at the time of its passage on December 3, 1936, can not be
construed as a limitation upon the time for the initiation of
election contests. While there might have been good reason for
the legislative practice of confirmation of members of the
Legislature at the time the power to decide election contests
was still lodged in the Legislature, confirmation alone by the
Legislature cannot be construed as depriving the Electoral
Commission of the authority incidental to its constitutional
power to be "the sole judge of all contests relating to the
election, returns, and qualifications of the members of the
National Assembly", to fix the time for the filing of said election
protests. Confirmation by the National Assembly of the returns
of its members against whose election no protests have been
filed is, to all legal purposes, unnecessary. Confirmation of the
election of any member is not required by
the Constitution before he can discharge his duties as such
member. As a matter of fact, certification by the proper
provincial board of canvassers is sufficient to entitle a member-
elect to a seat in the National Assembly and to render him
eligible to any office in said body (No. 1, par. 1, Rules of the
National Assembly, adopted December 6, 1935).
21. ID.; EFFECT OF CONFIRMATION UNDER THE JONES
LAW. — Under the practice prevailing when the Jones Law was
still in force, each House of the Philippine Legislature fixed the
time when protests against the election of any of its members
should be filed. This was expressly authorized by section 18 of
the Jones Law making each House the sole judge of the
election, returns and qualifications of its members, as well as by
a law (sec. 478, Act No. 3387) empowering each House
respectively to prescribe by resolution the time and manner of
filing contest the election of members of said bodies. As a
matter of formality, after the time fixed by its rules for the filing
of protests had already expired, each House passed a resolution
confirming or approving the returns of such members against
whose election no protest had been filed within the prescribed
time. This was interpreted as cutting off the filing of further
protests against the election of those members not theretofore
contested (Amistad vs. Claravall [Isabela], Second Philippine
Legislature, Record — First Period, p. 89; 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], Sixth Philippine Legislature, Record — First Period, pp.
1121, 1122; Aguilar vs. Corpus [Masbate], Eighth Philippine
Legislature, Record — First Period, vol. III, No. 56, pp. 892, 893).
The Constitution has expressly repealed section 18 of the Jones
Law. Act No. 3387, section 478, must be deemed to have been
impliedly abrogated also, for the reason that with the power to
determine all contests relating to the election, returns and
qualifications of members of the National Assembly, is
inseparably linked the authority to prescribe regulations for the
exercise of that power. There was thus no law nor
constitutional provision which authorized the National
Assembly to fix, as it is alleged to have fixed on December 3,
1935, the time for the filing of contests against the election of
its members. And what the National Assembly could not do
directly, it could not do by indirection through the medium of
confirmation.
DECISION
LAUREL, J p:
This is an original action instituted in this court by the
petitioner, Jose A. Angara, for the issuance of a writ of
prohibition to restrain and prohibit the Electoral Commission,
one of the respondents, from taking further cognizance of the
protest filed by Pedro Ynsua, another respondent, against the
election of said petitioner as member of the National Assembly
for the first assembly district of the Province of Tayabas.
The facts of this case as they appear in the petition and
as admitted by the respondents are as follows:
(1) That in the elections of September 17, 1935, the
petitioner, Jose A. Angara, and the respondents, Pedro Ynsua,
Miguel Castillo and Dionisio Mayor, were candidates voted for
the position of member of the National Assembly for the first
district of the Province of Tayabas;
(2) That on October 7, 1935, the provincial board of
canvassers, proclaimed the petitioner as member-elect of the
National Assembly for the said district, for having received the
most number of votes;
(3) That on November 15, 1935, the petitioner took his
oath of office;
(4) That on December 3, 1935, the National Assembly
in session assembled, passed the following resolution:
"[No. 8]
"RESOLUTION CONFIRMANDO LAS
ACTAS DE AQUELLOS DIPUTADOS
CONTRAQUIENES NO SE HA PRESENTADO
PROTESTA.
"Se resuelve: Que las actas de eleccion
de los Diputados contra quienes no se hubiere
presentado debidamente una protesta antes de
la adopcion de la presente resolucion sean,
como por la presente, son aprobadas y
confirmadas.
"Adoptada, 3 de diciembre, 1935."
(5) That on December 8, 1935, the herein respondent
Pedro Ynsua, filed before the Electoral Commission a "Motion
of Protest" against the election of the herein petitioner, Jose A.
Angara, being the only protest filed after the passage of
Resolution No. 8 aforequoted, and praying, among other-things,
that said respondent be declared elected member of the
National Assembly for the first district of Tayabas, or that the
election of said position be nullified;
(6) That on December 9, 1935, the Electoral
Commission adopted a resolution, paragraph 6 of which
provides:
"6. La Comision no considerara ninguna
protesta que no se haya presentado en o antes
de este dia."
(7) That on December 20, 1935, the herein petitioner,
Jose A. Angara, one of the respondents in the aforesaid protest,
filed before the Electoral Commission a "Motion to Dismiss the
Protest", alleging (a) that Resolution No. 8 of the National
Assembly was adopted in the legitimate exercise of its
constitutional prerogative to prescribe the period during which
protests against the election of its members should be
presented; (b) that the aforesaid resolution has for its object,
and is the accepted formula for, the limitation of said period;
and (c) that the protest in question was filed out of the
prescribed period;
(8) That on December 27, 1935, the herein respondent,
Pedro Ynsua, filed an "Answer to the Motion of Dismissal"
alleging that there is no legal or constitutional provision barring
the presentation of a protest against the election of a member
of the National Assembly, after confirmation;
(9) That on December 31, 1935, the herein petitioner,
Jose A. Angara, filed a "Reply" to the aforesaid "Answer to the
Motion of Dismissal";
(10) That the case being submitted for decision, the
Electoral Commission promulgated a resolution on January 23,
1936, denying herein petitioner's "Motion to Dismiss the
Protest."
The application of the petitioner sets forth the
following grounds for the issuance of the writ prayed for:
(a) That the Constitution confers exclusive jurisdiction
upon the Electoral Commission solely as regards the merits of
contested elections to the National Assembly;
(b) That the Constitution excludes from said
jurisdiction the power to regulate the proceedings of said
election contests, which power has been reserved to the
Legislative Department of the Government or the National
Assembly;
(c) That like the Supreme Court and other courts
created in pursuance of the Constitution, whose exclusive
jurisdiction relates solely to deciding the merits of controversies
submitted to hem for decision and to matters involving their
internal organization, the Electoral Commission can regulate its
proceedings only if the National Assembly has not availed of its
primary power to so regulate such proceedings;
(d) That Resolution No. 8 of the National Assembly is,
therefore, valid and should be respected and obeyed;
(e) That under paragraph 13 of section 1 of the
Ordinance appended to the Constitution and paragraph 6 of
article 7 of the Tydings-McDuffie Law (No. 127 of the 73rd
Congress of the United States) as well as under sections 1 and 3
(should be sections 1 and 2) of article VIII of the Constitution,
the Supreme Court has jurisdiction to pass upon the
fundamental question herein raised because it involves an
interpretation of the Constitution of the Philippines.
On February 25, 1936, the Solicitor-General appeared
and filed an answer in behalf of the respondent Electoral
Commission interposing the following special defenses:
(a) That the Electoral Commission has been created by
the Constitution as an instrumentality of the Legislative
Department invested with the jurisdiction to decide "all
contests relating to the election, returns, and qualifications of
the members of the National Assembly"; that in adopting its
resolution of December 9, 1935, fixing this date as the last day
for the presentation of protests against the election of any
member of the National Assembly, it acted within its
jurisdiction and in the legitimate exercise of the implied powers
granted it by the Constitution to adopt the rules and regulations
essential to carry out the powers and functions conferred upon
the same by the fundamental law; that in adopting its
resolution of January 23, 1936, overruling the motion of the
petitioner to dismiss the election protest in question, and
declaring itself with jurisdiction to take cognizance of said
protest, it acted in the legitimate exercise of its quasi-judicial
functions as an instrumentality of the Legislative Department of
the Commonwealth Government, and hence said act is beyond
the judicial cognizance or control of the Supreme Court;
(b) That the resolution of the National Assembly of
December 3, 1935, confirming the election of the members of
the National Assembly against whom no protest had thus far
been filed, could not and did not deprive the Electoral
Commission of its jurisdiction to take cognizance of election
protests filed within the time that might be set by its own rules;
(c) That the Electoral Commission is a body invested
with quasi- judicial functions, created by the Constitution as an
instrumentality of the Legislative Department, and is not an
"inferior tribunal, or corporation, or board, or person" within
the purview of sections 226 and 516 of the Code of Civil
Procedure, against which prohibition would lie.
The respondent Pedro Ynsua, in his turn, appeared and
filed an answer in his own behalf on March 2, 1936, setting
forth following as his special defense:
(a) That at the time of the approval of the rules of the
Electoral Commission on December 9, 1935, there was no
existing Law fixing the period within which protests against the
election of members of the National Assembly, the Electoral
Commission was exercising a power impliedly conferred upon it
by the Constitution, by reason of its quasi-judicial attributes;
 (b) That said respondent presented his motion of
protest before the Electoral Commission on December 9, 1935,
the last day fixed by paragraph 6 of the rules of the said
Electoral Commission;
(c) That therefore the Electoral Commission acquired
jurisdiction over the protest filed by said respondent and over
the parties thereto, and the resolution of the Electoral
Commission of January 23, 1936, denying petitioner's motion to
dismiss said protest was an act within the jurisdiction of the
said commission, and is not reviewable by means of a writ of
prohibition;
(d) That neither the law nor the Constitution requires
confirmation by the National Assembly of the election of its
members, and that such confirmation does not operate to limit
the period within which protests should be filed as to deprive
the Electoral Commission of jurisdiction over protests filed
subsequent thereto;
(e) That the Electoral Commission is an independent
entity created by the Constitution, endowed with quasi-judicial
functions, whose decisions are final and unappeallable;
(f) That the Electoral Commission, as a constitutional
creation, is not an inferior tribunal, corporation, board or
person, within the terms of sections 226 and 516 of the Code of
Civil Procedure; and that neither under the provisions of
sections 1 and 2 of Article II (should be article VIII) of
the Constitution and paragraph 13 of section 1 of the Ordinance
appended thereto could it be subject in the exercise of its quasi-
judicial functions to a writ of prohibition from the Supreme
Court;
(g) That paragraph 6 of article 7 of the Tydings-
McDuffie Law (No. 127 of the 73rd Congress of the United
States) has no application to the case at bar.
The case was argued before us on March 13, 1936.
Before it was submitted for decision, the petitioner prayed for
the issuance of a preliminary writ of injunction against the
respondent Electoral Commission which petition was denied
"without passing upon the merits of the case" by resolution of
this court of March 21, 1936.
There was no appearance for the other respondents.
The issues to be decided in the case at bar may be reduced to
the following two principal propositions:
1. Has the Supreme Court jurisdiction over the
Electoral Commission and the subject matter of the controversy
upon the foregoing related facts, and in the affirmative,
2. Has the said Electoral Commission acted without or
in excess of its jurisdiction in assuming to take cognizance of the
protest filed against the election of the herein petitioner
notwithstanding the previous confirmation of such election by
resolution of the National Assembly?
We could perhaps dispose of this case by passing
directly upon the merits of the controversy. However, the
question of jurisdiction having been presented, we do not feel
justified in evading the issue. Being a case primæ impressionis,
it would hardly be consistent with our sense of duty to overlook
the broader aspect of the question and leave it undecided.
Neither would we be doing justice to the industry and
vehemence of counsel were we not to pass upon the question
of jurisdiction squarely presented to our consideration.
The separation of powers is a fundamental principle in
our system of government. It obtains not through express
provision but by actual division in our Constitution. Each
department of the government has exclusive cognizance of
matters within its jurisdiction, and is supreme within its own
sphere. But it does not follow from the fact that the three
powers are to be kept separate and distinct that
the Constitution intended them to be absolutely unrestrained
and independent of each other. The Constitution has provided
for an elaborate system of checks and balances to secure
coordination in the workings of the various departments of the
government. For example, the Chief Executive under
our Constitution is so far made a check on the legislative power
that this assent is required in the enactment of laws. This,
however, is subject to the further check that a bill may become
a law notwithstanding the refusal of the President to approve it,
by a vote of two-thirds or three-fourths, as the case may be, of
the National Assembly. The President has also the right to
convene the Assembly in special session whenever he chooses.
On the other hand, the National Assembly operates as a check
on the Executive in the sense that its consent through its
Commission on Appointments is necessary in the appointment
of certain officers; and the concurrence of a majority of all its
members is essential to the conclusion of treaties. Furthermore,
in its power to determine what courts other than the Supreme
Court shall be established, to define their jurisdiction and to
appropriate funds for their support, the National Assembly
controls the judicial department to a certain extent. The
Assembly also exercises the judicial power of trying
impeachments. And the judiciary in turn, with the Supreme
Court as the final arbiter, effectively checks the other
departments in the exercise of its power to determine the law,
and hence to declare executive and legislative acts void if
violative of the Constitution.
But in the main, the Constitution has blocked out with
deft strokes and in bold lines, allotment of power to the
executive, the legislative and the judicial departments of the
government. The overlapping and interlacing of functions and
duties between the several departments, however, sometimes
makes it hard to say just where the one leaves off and the other
begins. In times of social disquietude or political excitement,
the great landmarks of the Constitution are apt to be forgotten
or marred, if not entirely obliterated. In cases of conflict, the
judicial department is the only constitutional organ which can
be called upon to determine the proper allocation of powers
between the several departments and among the integral or
constituent units thereof.
As any human production, our Constitution is of course
lacking perfection and perfectibility, but as much as it was
within the power of our people, acting through their delegates
to so provide, that instrument which is the expression of their
sovereignty however limited, has established a republican
government intended to operate and function as a harmonious
whole, under a system of checks and balances, and subject to
specific limitations and restrictions provided in the said
instrument. The Constitutionsets forth in no uncertain language
the restrictions and limitations upon governmental powers and
agencies. If these restrictions and limitations are transcended it
would be inconceivable if the Constitution had not provided for
a mechanism by which to direct the course of government
along constitutional channels, for then the distribution of
powers would be mere verbiage, the bill of rights mere
expressions of sentiment, and the principles of good
government mere political apothegms. Certainly, the limitations
and restrictions embodied in our Constitution are real as they
should be in any living constitution. In the United States where
no express constitutional grant is found in theirconstitution, the
possession of this moderating power of the courts, not to speak
of its historical origin and development there, has been set at
rest by popular acquiescence for a period of more than one and
a half centuries. In our case, this moderating power is granted,
if not expressly, by clear implication from section 2 of article VIII
of ourConstitution.
The Constitution is a definition of the powers of
government. Who is to determine the nature, scope and extent
of such powers? The Constitution itself has provided for the
instrumentality of the judiciary as the rational way. And when
the judiciary mediates to allocate constitutional boundaries, it
does not assert any superiority over the other departments; it
does not in reality nullify or invalidate an act of the legislature,
but only asserts the solemn and sacred obligation assigned to it
by the Constitution to determine conflicting claims of authority
under the Constitution and to establish for the parties in an
actual controversy the rights which that instrument secures and
guarantees to them. This is in truth all that is involved in what is
termed "judicial supremacy" which properly is the power of
judicial review under the Constitution. Even then, this power of
judicial review is limited to actual cases and controversies to be
exercised after full opportunity of argument by the parties, and
limited further to the constitutional question raised or the
very lis mota presented. Any attempt at abstraction could only
lead to dialectics and barren legal questions and to sterile
conclusions of wisdom, justice or expediency of legislation.
More than that, courts accord the presumption of
constitutionality to legislative enactments, not only because the
legislature is presumed to abide by the Constitution but also
because the judiciary in the determination of actual cases and
controversies must reflect the wisdom and justice of the people
as expressed through their representatives in the executive and
legislative departments of the government.
But much as we might postulate on the internal checks
of power provided in our Constitution, it ought not the less to
be remembered that, in the language of James Madison, the
system itself is not "the chief palladium of constitutional liberty
. . . the people who are authors of this blessing must also be its
guardians . . . their eyes must be ever ready to mark, their voice
to pronounce . . . aggression on the authority of
their constitution." In the last and ultimate analysis, then, must
the success of our government in the unfolding years to come
be tested in the crucible of Filipino minds and hearts than in
consultation rooms and court chambers.
In the case at bar, the National Assembly has by
resolution (No. 8) of December 3, 1935, confirmed the election
of the herein petitioner to the said body. On the other hand,
the Electoral Commission has by resolution adopted on
December 9, 1935, fixed said date as the last day for the filing
of protests against the election, returns and qualifications of
members of the National Assembly, notwithstanding the
previous confirmation made by the National Assembly as
aforesaid. If, as contended by the petitioner, the resolution of
the National Assembly has the effect of cutting off the power of
the Electoral Commission to entertain protests against the
election, returns and qualifications of members of the National
Assembly, submitted after December 3, 1935, then the
resolution of the Electoral Commission of December 9, 1935, is
mere surplusage and had no effect. But, if as contended by the
respondents, the Electoral Commission has the sole power of
regulating its proceedings to the exclusion of the National
Assembly, then the resolution of December 9, 1935, by which
the Electoral Commission fixed said date as the last day for filing
protests against the election, returns and qualifications of
members of the National Assembly, should be upheld.
Here is then presented an actual controversy involving
as it does a conflict of a grave constitutional nature between
the National Assembly on the one hand, and the Electoral
Commission on the other. From the very nature of the
republican government established in our country in the light of
American experience and of our own, upon the judicial
department is thrown the solemn and inescapable obligation of
interpreting the Constitution and defining constitutional
boundaries. The Electoral Commission, as we shall have
occasion to refer hereafter, is a constitutional organ, created
for a specific purpose, namely to determine all contests relating
to the election, returns and qualifications of the members of
the National Assembly. Although the Electoral Commission may
not be interfered with, when the while acting within the limits
of its authority, it does not follow that it is beyond the reach of
the constitutional mechanism adopted by the people and that it
is not subject to constitutional restrictions. The Electoral
Commission is not a separate department of the government,
and even if it were, conflicting claims of authority under the
fundamental law between departmental powers and agencies
of the government are necessarily determined by the judiciary
in justiciable and appropriate cases. Discarding the English type
and other European types of constitutional government, the
framers of our Constitution adopted the American type where
the written constitution is interpreted and given effect by the
judicial department. In some countries which have declined to
follow the American example, provisions have been inserted in
their constitutions prohibiting the courts from exercising the
power to interpret the fundamental law. This is taken as a
recognition of what otherwise would be the rule that in the
absence of direct prohibition courts are bound to assume what
is logically their function. For instance, the Constitution of
Poland of 1921, expressly provides that courts shall have no
power to examine the validity of statutes (art. 81, chap. IV). The
former Austrian Constitution contained a similar declaration. In
countries whose constitutions are silent in this respect, courts
have assumed this power. This is true in Norway, Greece,
Australia and South Africa. Whereas, in Czechoslovakia (arts. 2
and 3, Preliminary Law to Constitutional Charter of the
Czechoslovak Republic, February 29, 1920) and Spain (arts. 121-
123, Title IX, Constitution of the Republic of 1931) especial
constitutional courts are established to pass upon the validity of
ordinary laws. In our case, the nature of the present
controversy shows the necessity of a final constitutional arbiter
to determine the conflict of authority between two agencies
created by the Constitution. Were we to decline to take
cognizance of the controversy, who will determine the conflict?
And if the conflict were left undecided and undetermined,
would not a void be thus created in our constitutional system
which may in the long run prove destructive of the entire
framework? To ask these questions is to answer them.
Natura vacuum abhorret, so must we avoid exhaustion in our
constitutional system. Upon principle, reason and authority, we
are clearly of the opinion that upon the admitted facts of the
present case, this court has jurisdiction over the Electoral
Commission and the subject matter of the present controversy
for the purpose of determining the character, scope and extent
of the constitutional grant to the Electoral Commission as "the
sole judge of all contests relating to the election, returns and
qualifications of the members of the National Assembly."
Having disposed of the question of jurisdiction, we
shall now proceed to pass upon the second proposition and
determine whether the Electoral Commission has acted without
or in excess of its jurisdiction in adopting its resolution of
December 9, 1935, and in assuming to take cognizance of the
protest filed against the election of the herein petitioner
notwithstanding the previous confirmation thereof by the
National Assembly on December 3, 1935. As able counsel for
the petitioner has pointed out, the issue hinges on the
interpretation of section 4 of Article VI of
the Constitution which provides:
"SEC. 4. There shall be an Electoral Commission
composed of three Justices of the Supreme Court designated by
the Chief Justice, and of six Members chosen by the National
Assembly, three of whom shall be nominated by the party
having the largest number of votes, and three by the party
having the second largest number of votes herein. The senior
Justice in the Commission shall be its Chairman. The Electoral
Commission shall be the sole judge of all contests relating to
the election, returns and qualifications of the members of the
National Assembly." It is imperative, therefore, that we delve
into the origin and history of this constitutional provision and
inquire into the intention of its framers and the people who
adopted it so that we may properly appreciate its full meaning,
import and significance.
The original provision regarding this subject in the Act
of Congress of July 1, 1902 (sec. 7, par. 5) laying down the rule
that "the assembly shall be the judge of the elections, returns,
and qualifications of its members", was taken from clause 1 of
section 5, Article I of the Constitution of the United States
providing that "Each House shall be the Judge of the Elections,
Returns, and Qualifications of its own Members, . . .." The Act of
Congress of August 29, 1916 (sec. 18, par. 1) modified this
provision by the insertion of the word "sole" as follows: "That
the Senate and House of Representatives, respectively, shall be
the sole judges of the elections, returns, and qualifications of
their elective members, . . ." apparently in order to emphasize
the exclusive character of the jurisdiction conferred upon each
House of the Legislature over the particular cases therein
specified. This court has had occasion to characterize this grant
of power to the Philippine Senate and House of
Representatives, respectively, as "full, clear and complete"
(Veloso vs. Boards of Canvassers of Leyte and Samar [1919], 39
Phil., 886, 888.).
The first step towards the creation of an independent
tribunal for the purpose of deciding contested elections to the
legislature was taken by the sub-committee of five appointed
by the Committee on Constitutional Guarantees of the
Constitutional Convention, which sub- committee submitted a
report on August 30, 1934, recommending the creation of a
Tribunal of Constitutional Security empowered to hear protests
not only against the election of members of the legislature but
also against the election of executive officers for whose election
the vote of the whole nation is required, as well as to initiate
impeachment proceedings against specified executive and
judicial officers. For the purpose of hearing legislative protests,
the tribunal was to be composed of three justices designated by
the Supreme Court and six members of the house of the
legislature to which the contest corresponds, three members to
be designated by the majority party and three by the minority,
to be presided over by the Senior Justice unless the Chief
Justice is also a member in which case the latter shall preside.
The foregoing proposal was submitted by the Committee on
Constitutional Guarantees to the Convention on September 15,
1934, with slight modifications consisting in the reduction of
the legislative representation to four members, that is, two
senators to be designated one each from the two major parties
in the Senate and two representatives to be designated one
each from the two major parties in the House of
Representatives, and in awarding representation to the
executive department in the persons of two representatives to
be designated by the President.
Meanwhile, the Committee on Legislative Power was
also preparing its report. As submitted to the Convention on
September 24, 1934, subsection 5, section 5, of the proposed
Article on the Legislative Department, reads as follows:
"The elections, returns and
qualifications of the members of either House
and all cases contesting the election of any of
their members shall be judged by an Electoral
Commission, constituted, as to each House, by
three members elected by the members of the
party having the largest number of votes
therein, three elected by the members of the
party having the second largest number of
votes, and as to its Chairman, one Justice of the
Supreme Court designated by the Chief Justice."
The idea of creating a Tribunal of Constitutional
Security with comprehensive jurisdiction as proposed by the
Committee on Constitutional Guarantees which was probably
inspired by the Spanish plan (art. 121, Constitution of the
Spanish Republic of 1931), was soon abandoned in favor of the
proposition of the Committee on Legislative Power to create a
similar body with reduced powers and with specific and limited
jurisdiction, to be designated as an Electoral Commission. The
Sponsorship Committee modified the proposal of the
Committee on Legislative Power with respect to the
composition of the Electoral Commission and made further
changes in phraseology to suit the project of adopting a
unicameral instead of a bicameral legislature. The draft as
finally submitted to the Convention on October 26, 1934, reads
as follows:
"(6) The elections, returns and
qualifications of the Members of the National
Assembly and all cases contesting the election
of any of its Members shall be judged by an
Electoral Commission, composed of three
members elected by the party having the largest
number of votes in the National Assembly, three
elected by the members of the party having the
second largest number of votes, and three
justices of the Supreme Court designated by the
Chief Justice, the Commission to be presided
over by one of said justices."
During the discussion of the amendment introduced by
Delegates Labrador, Abordo, and others, proposing to strike out
the whole subsection of the foregoing draft and inserting in lieu
thereof the following: "The National Assembly shall be the sole
and exclusive judge of the elections, returns, and qualifications
of the Members", the following illuminating remarks were
made on the floor of the Convention in its session of December
4, 1934, as to the scope of the said draft:
xxx xxx xxx
"Mr. VENTURA. Mr. President, we have a doubt
here as to the scope of the meaning of
the first four lines, paragraph 6, page
11 of the draft, reading: 'The elections,
returns and qualifications of the
Members of the National Assembly and
all cases contesting the election of any
of its Members shall be judged by an
Electoral Commission, . . ..' I should like
to ask from the gentleman from Capiz
whether the election and qualification
of the member whose election is not
 contested shall also be judged by the
Electoral Commission.
"Mr. ROXAS. If there is no question about the
election of the members, there is
nothing to be judged; that is why the
word 'judge' is used to indicate a
controversy. If there is no question
about the election of a member, there
is nothing to be submitted to the
Electoral Commission and there is
nothing to be determined.
"Mr. VENTURA. But does that carry the idea also
that the Electoral Commission shall
confirm also the election of those who
election is not contested?.
"Mr. ROXAS. There is no need of confirmation.
As the gentleman knows, the action of
the House of Representatives
confirming the election of its members
is just a matter of the rules of the
assembly. It is not constitutional. It is
not necessary. After a man files his
credentials that be has been elected,
that is sufficient, unless his election is
contested.
"Mr. VENTURA. But I do not believe that that is
sufficient, as we have observed that for
purposes of the auditor, in the matter
of election of a member to a legislative
body, because he will not authorize his
pay.
"Mr. ROXAS. Well, what is the case with regards
to the municipal president who is
elected? What happens with regards to
the councilors of a municipality? Does
anybody confirm their election? The
municipal council does this: it makes a
canvass and proclaims-in this case the
municipal council proclaims who has
been elected, and it ends there, unless
there is a contest. It is the same case;
there is no need on the part of the
Electoral Commission unless there is a
contest. The first clause refers to the
case referred to by the gentleman from
Cavite where one person tries to be
elected in place of another who was
declared elected. For example, in a
case when the residence of the man
who has been elected is in question, or
in case the citizenship of the man who
has been elected is in question.
"However, if the assembly desires to
annul the power of the commission, it may do
so by certain maneuvers upon its first meeting
when the returns are submitted to the
assembly. The purpose is to give to the Electoral
Commission all the powers exercised by the
assembly referring to the elections, returns and
qualifications of the members. When there is no
contest, there is nothing to be judged.
"Mr. VENTURA. Then it should be eliminated.
"Mr. ROXAS. But that is a different matter, I
think Mr. Delegate.
"Mr. CINCO. Mr. President, I have a similar
question as that propounded by the
gentleman from Ilocos Norte when I
arose a while ago. However I want to
ask more questions from the delegate
from Capiz. This paragraph 6 on page
11 of the draft cites cases contesting
the election as separate from the first
part of the section which refers to
elections, returns and qualifications.
"Mr. ROXAS. That is merely for the sake of
clarity. In fact the cases of contested
elections are already included in the
phrase 'the elections, returns and
qualifications.' This phrase 'and
contested elections' was inserted
merely for the sake of clarity.
"Mr. CINCO. Under this paragraph, may not the
Electoral Commission, at its own
instance, refuse to confirm the 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
Capiz believe that unless this power is
granted to the assembly, the assembly
on its own motion does not have the
right to contest the election and
qualification of its members?
"Mr. ROXAS. I have no doubt but that the
gentleman is right. If this draft is
retained as it is, even if two-thirds of
the assembly believe that a member
has not the qualifications provided by
law, they cannot remove him for that
reason.
Mr. LABRADOR. So that the right to remove shall
only be retained by the Electoral
Commission.
"Mr. ROXAS. By the assembly for misconduct.
"Mr. LABRADOR. I mean with respect to the
qualification of the members.
"Mr. ROXAS. Yes, by the Electoral Commission.
"Mr. LABRADOR. So that under this draft, no
member of the assembly has the right
to question the eligibility of its
members?.
"Mr. ROXAS. Before a member can question the
eligibility, he must go to the Electoral
Commission and make the question
before the Electoral Commission.
"Mr. LABRADOR. So that the Electoral
Commission shall decide whether the
election is contested or not contested.
"Mr. ROXAS. Yes, sir: that is the purpose.
 "Mr. PELAYO. Mr. President, I would like to be
informed if the Electoral Commission
has power and authority to pass upon
the qualifications of the members of
the National Assembly even though
that question has not been raised.
"Mr. ROXAS. I have just said that they have no
power, because they can only judge."
In the same session, the first clause of the aforesaid
draft reading "The election, returns and qualifications of the
members of the National Assembly and" was eliminated by the
Sponsorship Committee in response to an amendment
introduced by Delegates Francisco, Ventura, Vinzons, Rafols,
Lim, Mumar and others. In explaining the difference between
the original draft and the draft as amended, Delegate Roxas
speaking for the Sponsorship Committee said:
xxx xxx xxx
"Sr. ROXAS. La diferencia, señor Presidente,
consiste solamente en obviar la
objecion apuntada por varios
Delegados al efecto to que la primera
clausula del draft que dice: 'The
election, returns and qualifications of
the members of the National Assembly'
parece que da a la Comision Electoral la
facultad de determinar también la
eleccion de los miembros que no han
sido protestados y para obviar esa
dificultad, creemos que la enmienda
tiene razon en ese sentido, si
enmendamos el draft, de tal modo que
se lea como sigue: 'All cases contesting
the election', de modo que los jueces
de la Comision Electoral se limitaran
solamente a los casos en que haya
habido protesta contra las actas."
Before the amendment of Delegate
Labrador was voted upon the following
interpellation also took place:
"El Sr. CONEJERO. Antes de votarse la enmienda,
quisiera pedir 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
tres miembros a la mayoria, y otros tres
a la minoria y tres a la Corte Suprema,
¿no cre Su Señoria que esto equivale
practicamente a dejar el asunto a los
miembros del Tribunal Supremo?.
"El Sr. ROXAS. Si y no. Cremos que si el tribunal
o la Comision esta constituido en esa
forma, tanto los miembros de la
mayoria como los de la minoria asi
como los miembros de la Corte
Suprema consideraran la cuestion
sobre la base de sus méritos, sabiendo
que el partidismo no es suficiente para
dar el triunfo.
"El Sr. CONEJERO. ¿Cree Su Señoria que en un
caso como ese, podriamos hacer que
tanto los de la mayoria como los de la
minoria prescindieran del partidismo?.
"El Sr. ROXAS. Creo que si, porque el partidismo
no les daria el triunfo."
xxx xxx xxx
The amendment introduced by Delegates Labrador,
Abordo and others seeking to restore the power to decide
contests relating to the election, returns and qualifications of
members of the National Assembly to the National Assembly
itself, was defeated by a vote of ninety-eight (98) against fifty-
six (56).
In the same session of December 4, 1934, Delegate
Cruz (C.) sought to amend the draft by reducing the
representation of the minority party and the Supreme Court in
the Electoral Commission to two members each, so as to accord
more representation to the majority party. The Convention
rejected this amendment by a vote of seventy-six (76) against
forty-six (46), thus maintaining the non-partisan character of
the commission.
As approved on January 31, 1935, the draft was made
to read as follows:
"(6) All cases contesting the elections,
returns and qualifications of the Members of
the National Assembly shall be judged by an
Electoral Commission, composed of three
members elected by the party having the largest
number of votes in the National Assembly, three
elected by the members of the party having the
second largest number of votes, and three
justices of the Supreme Court designated by the
Chief Justice, the Commission to be presided
over by one of said justices."
The Style Committee to which the draft was submitted
revised it as follows:
"SEC. 4. There shall be an Electoral
Commission composed of three Justices of the
Supreme Court designated by the Chief Justice,
and of six Members chosen by the National
Assembly, three of whom shall be nominated by
the party having the largest number of votes,
and three by the party having the second largest
number of votes therein. The senior Justice in
the Commission shall be its chairman. The
Electoral Commission shall be the sole judge of
the election, returns, and qualifications of the
Members of the National Assembly."
When the foregoing draft was submitted for approval
on February 8, 1935, the Style Committee, through President
Recto, to effectuate the original intention of the Convention,
agreed to insert the phrase "All contests relating to" between
the phrase "judge of" and the words "the election", which was
accordingly accepted by the Convention.
The transfer of the power of determining the election,
returns and qualifications of the members of the legislature
long lodged in the legislative body, to an independent, impartial
and non-partisan tribunal, is by no means a mere experiment in
the science of government.
Cushing, in his Law and Practice of Legislative
Assemblies (ninth edition, chapter VI, pages 57, 58), gives a
vivid account of the "scandalously notorious" canvassing of
votes by political parties in the disposition of contests by the
House of Commons in the following passages which are partly
quoted by the petitioner in his printed memorandum of March
14, 1936:
"153. From the time when the
commons established their right to be the
exclusive judges of the elections, returns, and
qualifications of their members, until the year
1770, two modes of proceeding prevailed, in the
determination of controverted elections, and
rights of membership. One of the standing
committee appointed at the commencement of
each session, was denominated the committee
of privileges and elections, whose function was
to hear and investigate all questions of this
description which might be referred to them,
and to report their proceedings, with their
opinion thereupon, to the house, from time to
time. When an election petition was referred to
this committee, they heard the parties and their
witnesses and other evidence, and made a
report of all the evidence, together with their
opinion thereupon, in the form of resolutions,
which were considered and agreed or disagreed
to by the house. The other mode of proceeding
was by a hearing at the bar of the house itself.
When this court was adopted, the case was
heard and decided by the house, in substantially
the same manner as by a committee. The
committee of privileges and elections although a
select committee was usually what is called an
open one; that is to say, in order to constitute
the committee, a quorum of the members
named was required to be present, but all the
members of the house were at liberty to attend
the committee and vote if they pleased.
"154. With the growth of political
parties in parliament questions relating to the
right of membership gradually assumed a
political character; so that for many years
previous to the year 1770, controverted
elections had been tried and determined by the
house of commons, as mere party questions,
upon which the strength of contending factions
might be tested. Thus, for example, in 1741, Sir
Robert Walpole, after repeated attacks upon his
government, resigned his office in consequence
of an adverse vote upon the Chippenham
election. Mr. Hatsell remarks, of the trial of
election, cases, as conducted under this system,
that 'Every principle of decency and justice were
notoriously and openly prostituted, from
whence the younger part of the house were
insensibly, but too successfully, induced to
adopt the same licentious conduct in more
serious matters, and in questions of higher
importance to the public welfare.' Mr. George
Grenville, a distinguished member of the house
of commons, undertook to propose a remedy
for the evil, and, on the 7th of March 1770,
obtained the unanimous leave of the house to
bring in a bill, 'to regulate the trial of
controverted elections, or returns of members
to serve in parliament.' In his speech to explain
his plan, on the motion for leave, Mr. Grenville
alluded to the existing practice in the following
terms: 'Instead of trusting to the merits of their
respective causes, the principal dependence of
both parties is their private interest among us;
and it is scandalously notorious that we are an
earnestly canvassed to attend in favor of the
opposite sides, as if we were wholly self-
elective, and not bound to act by the principles
of justice, but by the discretionary impulse of
our own inclinations; nay, it is well known, that
in every contested election, many members of
this house, who are ultimately to judge in a kind
of judicial capacity between the competitors,
enlist themselves as parties in the contention,
and take upon themselves the partial
management of the very business, upon which
they should determine with the strictest
impartiality.'
"155. It was to put an end to the
practices thus described, that Mr. Grenville
brought in a bill which met with the approbation
of both houses, and received the royal assent on
the 12th of April, 1770. This was the celebrated
law since known by the name of the Grenville
Act; of which Mr. Hatsell declares, that it 'was
one of the noblest works, for the honor of the
house of commons, and the security of
the constitution, that was ever devised by any
minister or statesman.' It is probable, that the
magnitude of the evil, or the apparent success
of the remedy, may have led many of the
contemporaries of the measure to the
information of a judgment, which was not
acquiesced in by some of the leading statesmen
of the day, and has not been entirely confirmed
by subsequent experience. The bill was objected
to by Lord North, Mr. De Grey, afterwards chief
justice of the common pleas, Mr. Ellis, Mr.
Dyson, who had been clerk of the house, and
Mr. Charles James Fox, chiefly on the ground,
that the introduction of the new system was an
essential alteration of the constitution of
parliament, and a total abrogation of one of the
most important rights and jurisdictions of the
house of commons."
As early as 1868, the House of Commons in England
solved the problem of insuring the non-partisan settlement of
the controverted elections of its members by abdicating its
prerogative to two judges of the King's Bench of the High Court
of Justice selected from a rota in accordance with rules of court
made for the purpose. Having proved successful, the practice
has become imbedded in English jurisprudence (Parliamentary
Elections Act, 1868 [31 & 32 Vict. c. 125] as amended by
Parliamentary Elections and Corrupt Practices Act, 1879 [42 &
43 Vict. c. 75], s. 2; Corrupt and Illegal Practices Prevention Act,
1883 [46 & 47 Vict. c. 51], s. 70; Expiring Laws Continuance Act,
1911 [1 & 2 Geo. 5, c. 22]; Laws of England, vol. XII, p. 408, vol.
XXI, p. 787). In the Dominion of Canada, election contests which
were originally heard by the Committee of the House of
Commons, are since 1922 tried in the courts. Likewise, in the
Commonwealth of Australia, election contests which were
originally determined by each house, are since 1922 tried in the
High Court. In Hungary, the organic law provides that all
protests against the election of members of the Upper House of
the Diet are to be resolved by the Supreme Administrative
Court (Law 22 of 1916, chap. 2, art. 37, par. 6).
The Constitution of Poland of March 17, 1921 (art. 19) and
the Constitution of the Free City of Danzig of May 13, 1922 (art.
10) vest the authority to decide contested elections to the Diet
or National Assembly in the Supreme Court. For the purpose of
deciding legislative contests, the Constitution of the German
Reich of July 1, 1919 (art. 31), the Constitution of the
Czechoslovak Republic of February 29, 1920 (art. 19) and
the Constitution of the Grecian Republic of June 2, 1927 (art.
43), all provide for an Electoral Commission.
The creation of an Electoral Commission whose
membership is recruited both from the legislature and the
judiciary is by no means unknown in the United States. In the
presidential elections of 1876 there was a dispute as to the
number of electoral votes received by each of the two opposing
candidates. As the Constitution made no adequate provision for
such a contingency, Congress passed a law on January 29, 1877
(United States Statutes at Large, vol. 19, chap. 37, pp. 227-229),
creating a special Electoral Commission composed of five
members elected by the Senate, five members elected by the
House of Representatives, and five justices of the Supreme
Court, the fifth justice to be selected by the four designated in
the Act. The decision of the commission was to be binding
unless rejected by the two houses voting separately. Although
there is not much of a moral lesson to be derived from the
experience of America in this regard, judging from the
observations of Justice Field, who was a member of that body
on the part of the Supreme Court (Countryman, the Supreme
Court of the United States and its Appellate Power under
the Constitution [Albany, 1913]-Relentless Partisanship of
Electoral Commission, p. 25 et seq.), the experiment has at least
abiding historical interest.
The members of the Constitutional Convention who
framed our fundamental law were in their majority men mature
in years and experience. To be sure, many of them were
familiar with the history and political development of other
countries of the world. When, therefore, they deemed it wise to
create an Electoral Commission as a constitutional organ and
invested it with the exclusive function of passing upon and
determining the election, returns and qualifications of the
members of the National Assembly, they must have done so not
only in the light of their own experience but also having in view
the experience of other enlightened peoples of the world. The
creation of the Electoral Commission was designed to remedy
certain evils of which the framers of our Constitution were
cognizant. Notwithstanding the vigorous opposition of some
members of the Convention to its creation, the plan, as
hereinabove stated, was approved by that body by a vote of 98
against 58. All that can be said now is that, upon the approval of
the Constitution, the creation of the Electoral Commission is the
expression of the wisdom and "ultimate justice of the people".
(Abraham Lincoln, First Inaugural Address, March 4, 1861.).
From the deliberations of our Constitutional
Convention it is evident that the purpose was to transfer in its
totality all the powers previously exercised by the legislature in
matters pertaining to contested elections of its members, to an
independent and impartial tribunal. It was not so much the
knowledge and appreciation of contemporary constitutional
precedents, however, as the long-felt need of determining
legislative contests devoid of partisan considerations which
prompted the people, acting through their delegates to the
Convention, to provide for this body known as the Electoral
Commission. With this end in view, a composite body in which
both the majority and minority parties are equally represented
to off-set partisan influence in its deliberations was created,
and further endowed with judicial temper by including in its
membership three justices of the Supreme Court.
The Electoral Commission is a constitutional creation,
invested with the necessary authority in the performance and
execution of the limited and specific function assigned to it by
the Constitution. Although it is not a power in our tripartite
scheme of government, it is, to all intents and purposes, when
acting within the limits of its authority, an independent organ. It
is, to be sure, closer to the legislative department than to any
other. The location of the provision (section 4) creating the
Electoral Commission under Article VI entitled "Legislative
Department" of our Constitution is very indicative. Its
composition is also significant in that it is constituted by a
majority of members of the legislature. But it is a body separate
from and independent of the legislature.
The grant of power to the Electoral Commission to
judge all contests relating to the election, returns and
qualifications of members of the National Assembly, is intended
to be as complete and unimpaired as if it had remained
originally in the legislature. The express lodging of that power in
the Electoral Commission is an implied denial of the exercise of
that power by the National Assembly. And this is as effective a
restriction upon the legislative power as an express prohibition
in the Constitution (Ex parte Lewis, 45 Tex. Crim. Rep., 1; State
vs. Whisman, 36 S. D., 260; L. R. A., 1917B, 1). If we concede the
power claimed in behalf of the National Assembly that said
body may regulate the proceedings of the Electoral Commission
and cut off the power of the commission to lay down the period
within which protests should be filed, the grant of power to the
commission would be ineffective. The Electoral Commission in
such case would be invested with the power to determine
contested cases involving the election, returns and
qualifications of the members of the National Assembly but
subject at all times to the regulative power of the National
Assembly. Not only would the purpose of the framers of
our Constitution of totally transferring this authority from the
legislative body be frustrated, but a dual authority would be
created with the resultant inevitable clash of powers from time
to time. A sad spectacle would then be presented of the
Electoral Commission retaining the bare authority of taking
cognizance of cases referred to, but in reality without the
necessary means to render that authority effective whenever
and wherever the National Assembly has chosen to act, a
situation worse than that intended to be remedied by the
framers of our Constitution. The power to regulate on the part
of the National Assembly in procedural matters will inevitably
lead to the ultimate control by the Assembly of the entire
proceedings of the Electoral Commission, and, by indirection, to
the entire abrogation of the constitutional grant. It is obvious
that this result should not be permitted.
We are not insensible to the impassioned argument of
the learned counsel for the petitioner regarding the importance
and necessity of respecting the dignity and independence of the
National Assembly as a coordinate department of the
government and of according validity to its acts, to avoid what
he characterized would be practically an unlimited power of the
commission in the admission of protests against members of
the National Assembly. But as we have pointed out
hereinabove, the creation of the Electoral Commission carried
with it ex necesitate rei the power regulative in character to
limit the time within which protests intrusted to its cognizance
should be filed. It is a settled rule of construction that where a
general power is conferred or duty enjoined, every particular
power necessary for the exercise of the one or the performance
of the other is also conferred (Cooley, Constitutional
Limitations, eighth ed., vol. I, pp. 138, 139). In the absence of
any further constitutional provision relating to the procedure to
be followed in filing protests before the Electoral Commission,
therefore, the incidental power to promulgate such rules
necessary for the proper exercise of its exclusive power to judge
all contests relating to the election, returns and qualifications of
members of the National Assembly, must be deemed by
necessary implication to have been lodged also in the Electoral
Commission.
It is, indeed, possible that, as suggested by counsel for
the petitioner, the Electoral Commission may abuse its
regulative authority by admitting protests beyond any
reasonable time, to the disturbance of the tranquillity and
peace of mind of the members of the National Assembly. But
the possibility of abuse is not an argument against the
concession of the power as there is no power that is not
susceptible of abuse. In the second place, if any mistake has
been committed in the creation of an Electoral Commission and
in investing it with exclusive jurisdiction in all cases relating to
the election, returns, and qualifications of members of the
National Assembly, the remedy is political, not judicial, and
must be sought through the ordinary processes of democracy.
All the possible abuses of the government are not intended to
be corrected by the judiciary. We believe, however, that the
people in creating the Electoral Commission reposed as much
confidence in this body in the exclusive determination of the
specified cases assigned to it, as they have given to the
Supreme Court in the proper cases entrusted to it for decision.
All the agencies of the government were designed by
theConstitution to achieve specific purposes, and each
constitutional organ working within its own particular sphere of
discretionary action must be deemed to be animated with the
same zealand honesty in accomplishing the great ends for
which they were created by the sovereign will. That the
actuations of these constitutional agencies might leave much to
be desired in given instances, is inherent in the imperfections of
human institutions. In the third place, from the fact that the
Electoral Commission may not be interfered with in the exercise
of its legitimate power, it does not follow that its acts, however
illegal or unconstitutional, may not be challenged in appropriate
cases over which the courts may exercise jurisdiction.
But independently of the legal and constitutional
aspects of the present case, there are considerations of
equitable character that should not be overlooked in the
appreciation of the intrinsic merits of the controversy. The
Commonwealth Government was inaugurated on November
15, 1935, on which date the Constitution, except as to the
provisions mentioned in section 6 of Article XV thereof, went
into effect. The new National Assembly convened on November
25th of that year, and the resolution confirming the election of
the petitioner, Jose A. Angara, was approved by that body on
December 3, 11935. The protest by the herein respondent
Pedro Ynsua against the election of the petitioner was filed on
December 9 of the same year. The pleadings do not show when
the Electoral Commission was formally organized but it does
appear that on December 9, 1935, the Electoral Commission
met for the first time and approved a resolution fixing said date
as the last day for the filing of election protests. When,
therefore, the National Assembly passed its resolution of
December 3, 1935, confirming the election of the petitioner to
the National Assembly, the Electoral Commission had not yet
met; neither does it appear that said body has actually been
organized. As a matter of fact, according to certified copies of
official records on file in the archives division of the National
Assembly attached to the record of this case upon the petition
of the petitioner, the three justices of the Supreme Court and
the six members of the National Assembly constituting the
Electoral Commission were respectively designated only on
December 4 and 6, 1935. If Resolution No. 8 of the National
Assembly confirming non-protested elections of members of
the National Assembly had the effect of limiting or tolling the
time for the presentation of protests, the result would be that
the National Assembly — on the hypothesis that it still retained
the incidental power of regulation in such cases — had already
barred the presentation of protests before the Electoral
Commission had had time to organize itself and deliberate on
the mode and method to be followed in a matter entrusted to is
exclusive jurisdiction by theConstitution. This result was not and
could not have been contemplated,and should be avoided.
From another angle, Resolution No. 8 of the National
Assembly confirming the election of members against whom no
protests had been filed at the time of its passage on December
3, 1935, can not be construed as a limitation upon the time for
the initiation of election contests. While there might have been
good reason for the legislative practice of confirmation of the
election of members of the legislature at the time when the
power to decide election contests was still lodged in the
legislature, confirmation alone by the legislature cannot be
construed as depriving the Electoral Commission of the
authority incidental to its constitutional power to be "the sole
judge of all contests relating to the election, returns, and
qualifications of the members of the National Assembly", to fix
the time for the filing of said election protests. Confirmation by
the National Assembly of the returns of its members against
whose election no protests have been filed is, to all legal
purposes, unnecessary. As contended by the Electoral
Commission in its resolution of January 23, 1936, overruling the
motion of the herein petitioner to dismiss the protest filed by
the respondent Pedro Ynsua, confirmation of the election of
any member is not required by the Constitution before he can
discharge his duties as such member. As a matter of fact,
certification by the proper provincial board of canvassers is
sufficient to entitle a member-elect to a seat in the National
Assembly and to render him eligible to any office in said body
(No. 1, par. 1, Rules of the National Assembly, adopted
December 6, 1935).
Under the practice prevailing both in the English House
of Commons and in the Congress of the United States,
confirmation is neither necessary in order to entitle a member-
elect to take his seat. The return of the proper election officers
in sufficient, and the member-elect presenting such return
begins to enjoy the privileges of a member from the time that
he takes his oath of office (Laws of England, vol. 12, pp. 331,
332; vol. 21, pp. 694, 695; U. S. C. A., Title 2, secs. 21, 25, 26).
Confirmation is in order only in cases of contested elections
where the decision is adverse to the claims of the protestant. In
England, the judges' decision or report in controverted elections
is certified to the Speaker of the House of Commons, and the
House, upon being informed of such certificate or report by the
Speaker, is required to enter the same upon the Journals, and
to give such directions for confirming or altering the return, or
for the issue of a writ for a new election, or for carrying into
execution the determination as circumstances may require (31
& 32 Vict., c. 125, sec. 13). In the United States, it is believed,
the order or decision of the particular house itself is generally
regarded as sufficient, without any actual alteration or
amendment of the return (Cushing, Law and Practice of
Legislative Assemblies, 9th ed., sec. 166).
Under the practice prevailing when the Jones Law was
still force, each house of the Philippine Legislature fixed the
time when protests against the election of any of its members
should be filed. This was expressly authorized by section 18 of
the Jones Law making each house the sole judge of the election,
returns and qualifications of its members, as well as by a law
(sec. 478, Act No. 3387) empowering each house to respectively
prescribe by resolution the time and manner of filing contest in
the election of members of said bodies. As a matter of
formality, after the time fixed by its rules for the filing of
protests had already expired, each house passed a resolution
confirming or approving the returns of such members against
whose election no protests had been filed within the prescribed
time. This was interpreted as cutting off the filing of further
protests against the election of those members not theretofore
contested (Amistad vs. Claravall [Isabela], Second Philippine
Legislature, Record-First Period, p. 89; 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], Sixth
Philippine Legislature, Record-First Period, pp. 1121, 1122;
Aguilar vs. Corpus [Masbate], Eighth Philippine Legislature,
Record-First Period, vol. III, No. 56, pp. 892, 893).
The Constitution has repealed section 18 of the Jones Law. Act
No. 3387, section 478, must be deemed to have been impliedly
abrogated also, for the reason that with the power to
determine all contests relating to the election, returns and
qualifications of members of the National Assembly, is
inseparably linked the authority to prescribe regulations for the
exercise of that power. There was thus no law nor
constitutional provision which authorized the National
Assembly to fix, as it is alleged to have fixed on December 3,
1935, the time for the filing of contests against the election of
its members. And what the National Assembly could not do
directly, it could not do by indirection through the medium of
confirmation.
Summarizing, we conclude:
(a) That the government established by
the Constitution follows fundamentally the theory of separation
of powers into the legislative, the executive and the judicial.
(b) That the system of checks and balances and the
overlapping of functions and duties often makes difficult the
delimitation of the powers granted.
(c) That in cases of conflict between the several
departments and among the agencies thereof, the judiciary,
with the Supreme Court as the final arbiter, is the only
constitutional mechanism devised finally to resolve the conflict
and allocate constitutional boundaries.
(d) That judicial supremacy is but the power of judicial
review in actual and appropriate cases and controversies, and is
the power and duty to see that no one branch or agency of the
government transcends the Constitution, which is the source of
all authority.
(e) That the Electoral Commission is an independent
constitutional creation with specific powers and functions to
execute and perform, closer for purposes of classification to the
legislative than to any of the other two departments of the
government.
(f) That the Electoral Commission is the sole judge of
all contests relating to the election, returns and qualifications of
members of the National Assembly.
(g) That under the organic law prevailing before the
present Constitution went into effect, each house of the
legislature was respectively the sole judge of the elections,
returns, and qualifications of their elective members.
(h) That the present Constitution has transferred all
the powers previously exercised by the legislature with respect
to contests relating to the election, returns and qualifications of
its members, to the Electoral Commission.
(i) That such transfer of power from the legislature to
the Electoral Commission was full, clear and complete, and
carried with it ex necesitate rei the implied power inter alia to
prescribe the rules and regulations as to the time and manner
of filing protests.
(j) That the avowed purpose in creating the Electoral
Commission was to have an independent constitutional organ
pass upon all contests relating to the election, returns and
qualifications of members of the National Assembly, devoid of
partisan influence or consideration, which object would be
frustrated if the National Assembly were to retain the power to
prescribe rules and regulations regarding the manner of
conducting said contests.
(k) That section 4 of article VI of
the Constitution repealed not only section 18 of the Jones
Law making each house of the Philippine Legislature
respectively the sole judge of the elections, returns and
qualifications of its elective members, but also section 478
of Act No. 3387 empowering each house to prescribe by
resolution the time and manner of filing contests against the
election of its members, the time and manner of notifying the
adverse party,and bond or bonds, to be required, if any, and to
fix the costs and expenses of contest.
(l) That confirmation by the National Assembly of the
election of any member, irrespective of whether his election is
contested or not, is not essential before such member-elect
may discharge the duties and enjoy the privileges of a member
of the National Assembly.
(m) That confirmation by the National Assembly of the
election of any member against whom no protest had been
filed prior to said confirmation, does not and cannot deprive
the Electoral Commission of its incidental power to prescribe
the time within which protest against the election of any
member of the National Assembly should be filed.
We hold, therefore, that the Electoral Commission was
acting within the legitimate exercise of its constitutional
prerogative in assuming to take cognizance of the protest filed
by the respondent Pedro Ynsua against the election of the
herein petitioner Jose A. Angara, and that the resolution of the
National Assembly of December 3, 1935 can not in any manner
toll the time for filing protests against the election, returns and
qualifications of members of the National Assembly, nor
prevent the filing of a protest within such time as the rules of
the Electoral Commission might prescribe.
In view of the conclusion reached by us relative to the
character of the Electoral Commission as a constitutional
creation and as to the scope and extent of its authority under
the facts of the present controversy, we deem it unnecessary to
determine whether the Electoral Commission is an inferior
tribunal, corporation, board or person within the purview of
sections 226 and 516 of the Code of Civil Procedure.
The petition for a writ of prohibition against the
Electoral Commission is hereby denied, with costs against the
petitioner. So ordered.
Avanceña, C.J., Diaz, Concepcion and Horrilleno,
JJ., concur.
Separate Opinions
ABAD SANTOS, J., concurring:
I concur in the result and in most of the views so ably
expressed in the preceding opinion. I am, however, constrained
to withhold my assent to certain conclusions therein advanced.
The power vested in the Electoral Commission by
the Constitution of judging of all contests relating to the
election, returns, and qualifications of the members of the
National Assembly, is judicial in nature. (Thomas vs. Loney, 134
U.S., 372; 33 Law. ed., 949, 951.) On the other hand, the power
to regulate the time in which notice of a contested election may
be given, is legislative in character. (M'Elmoyle vs. Cohen, 13
Pet., 312; 10 Law. ed., 177; Missouri vs. Illinois, 200 U. S., 496;
50 Law. ed., 572.).
It has been correctly stated that the government
established by the Constitution follows fundamentally the
theory of the separation of powers into legislative, executive,
and judicial. Legislative power is vested in the National
Assembly. (Article VI, sec. 1.) In the absence of any clear
constitutional provision to the contrary, the power to regulate
the time in which notice of a contested election may be given,
must be deemed to be included in the grant of legislative power
to the National Assembly.
The Constitution of the United States contains a
provision similar to that found in Article VI, section 4, of
the Constitution of the Philippines. Article I, section 5, of the
Constitution of the United States provides that each house of
the Congress shall be the judge of the elections, returns, and
qualifications of its own members. Notwithstanding this
provision, the Congress has assumed the power to regulate the
time in which notice of a contested election may be given. Thus
section 201, Title 2, of the United States Code Annotated
prescribes:
"Whenever any person intends to
contest an election of any Member of the House
of Representatives of the united States, he shall,
within thirty days after the result of such
election shall have been determined by the
office or board of canvassers authorized by law
to determine the same, give notice, in writing,
to the Member whose seat he designs to
contest, of his intention to contest the same,
and, in such notice, shall specify particularly the
grounds upon which he relies in the contest."
(R.S., par. 105.)
The Philippine Autonomy Act, otherwise known as
the Jones Law, also contained a provision to the effect that the
Senate and House of Representatives, respectively, shall be the
sole judges of the elections, returns, and qualifications of their
elective members. Notwithstanding this provision, the
Philippine Legislature passed the Election Law, section 478 of
which reads as follows:
"The Senate and the House of
Representatives shall by resolution respectively
prescribe the time and manner of filing contest
in the election of members of said bodies, the
time and manner of notifying the adverse party,
and bond or bonds, to be required, if any, and
shall fix the costs and expenses of contest which
may be paid from their respective funds."
The purpose sought to be attained by the creation of
the Electoral Commission was not to erect a body that would be
above the law, but to raise legislative election contests from the
category of political to that of justiciable questions. The
purpose was not to place the commission beyond the reach of
the law, but to insure the determination of such contests with
due process of law.
Section 478 of the Election Law was in force at the
time of the adoption of the Constitution, Article XV, section 2,
of which provides that —
"All laws of the Philippine Islands shall
continue in force until the inauguration of the
Commonwealth of the Philippines; thereafter,
such laws shall remain operative, unless
inconsistent with this Constitution, until
amended, altered, modified, or repealed by the
National Assembly, and all references in such
laws to the Government or officials of the
Philippine Islands shall be construed, in so far as
applicable, to refer to the Government and
corresponding officials under this Constitution."
The manifest purpose of this constitutional provision
was to insure the orderly processes of government, and to
prevent any hiatus in its operation after the inauguration of the
Commonwealth of the Philippines. It was thus provided that all
laws of the Philippine Islands shall remain operative even after
the inauguration of the Commonwealth of the Philippines,
unless inconsistent with the Constitution, and that all
references in such laws to the government or officials of the
Philippine Islands shall be construed, in so far as applicable, to
refer to the government and corresponding officials under
the Constitution. It would seem to be consistent not only with
the spirit but with the letter of the Constitution to hold that
section 478 of the Election Law remains operative and should
now be construed to refer to the Electoral Commission, which,
in so far as the power to judge election contests is concerned,
corresponds to either the Senate or the House of
Representatives under the former regime. It is important to
observe in this connection that said section 478 of the Election
Law vested the power to regulate the time and manner in
which notice of a contested election may be given, not in the
Philippine Legislature but in the Senate and House of
Representatives singly. In other words, the authority to
prescribe the time and manner of filing contests in the election
of members of the Philippine Legislature was by statute lodged
separately in the bodies clothed with power to decide such
contests. Construing section 478 of the Election Law to refer to
the National Assembly, as required by Article XV, section 2, of
the Constitution, it seems reasonable to conclude that the
authority to prescribe the time and manner of filing contests in
the election of members of the National Assembly is vested in
the Electoral Commission, which is now the body clothed with
power to decide such contests.
In the light of what has been said, the resolution of the
National Assembly of December 3, 1935, could not have the
effect of barring the right of the respondent Pedro Ynsua to
contest the election of the petitioner. By the same token, the
Electoral Commission was authorized by law to adopt its
resolution of December 9, 1935, which fixed the time within
which written written contests must be filed with the
commission.
Having been filed within the time fixed by its
resolution, the Electoral Commission has jurisdiction to hear
and determine the contest filed by the respondent Pedro Ynsua
against the petitioner Jose A. Angara. Writ denied.
||| (Angara v. Electoral Commission, G.R. No. 45081, [July 15, 1936],
63 PHIL 139-187)
 EN BANC
[A.M. No. 88-7-1861-RTC. October 5, 1988.]
IN RE: DESIGNATION OF JUDGE RODOLFO
U. MANZANO AS MEMBER OF THE ILOCOS NORTE
PROVINCIAL COMMITTEE ON JUSTICE.
SYLLABUS
1. ADMINISTRATIVE LAW; EXECUTIVE ORDER NO. 856, AS
AMENDED; PROVINCIAL/CITY COMMITTEE ON JUSTICE; PERFORMS
ADMINISTRATIVE FUNCTIONS. — It is evident that such
Provincial/City Committees on Justice perform administrative
functions. Administrative functions are those which involve the
regulation and control over the conduct and affairs of individuals for
their own welfare and the promulgation of rules and regulations to
better carry out the policy of the legislature or such as are devolved
upon the administrative agency by the organic law of its existence.
2. CONSTITUTIONAL LAW; SEC, ART VIII, NEW CONSTITUTION;
PROHIBITION TO MEMBERS OF THE JUDICIARY REGARDING THEIR
DISCHARGE OF ADMINISTRATIVE FUNCTIONS I QUASI-JUDICIAL OR
ADMINISTRATIVE AGENCIES. — Under the Constitution, the
members of the Supreme Court and other courts established by law
shall not be designated to any agency performing quasi-judicial or
administrative functions (Section 12, Art. VIII, Constitution).
Considering that membership of Judge Manzano in the Ilocos Norte
Provincial Committee on Justice, which discharges administrative
functions, will be in violation of the Constitution, the Court is
constrained to deny his request. This declaration does not mean
that RTC Judges should adopt an attitude of monastic insensibility or
unbecoming indifference to Province/City Committee on Justice. As
incumbent RTC Judges, they form part of the structure of
government. Their integrity and performance in the adjudication of
cases contribute to the solidity of such structure. As public officials,
they are trustees of an orderly society. Even as non-members of
Provincial/City Committees on Justice, RTC judges should render
assistance to said Committees to help promote the laudable
purposes for which they exist, but only when such assistance may
be reasonably incidental to the fulfillment of their judicial duties.
Gutierrez, Jr., J., dissenting:
1. ADMINISTRATIVE LAW; EXECUTIVE ORDER NO. 856, AS
AMENDED; "ADMINISTRATIVE FUNCTIONS" HOW CONSTRUED. —
"Administrative functions" as used in Section 12 refers to the
executive machinery of government and the performance by that
machinery of governmental acts. It refers to the management
actions, determinations, and orders of executive officials as they
administer the laws and try to make government effective. There is
an element of positive action, of supervision or control.
2. ID.; ID.; ID.; PROVINCIAL/CITY COMMITTEE ON JUSTICE; DOES
NOT INVOLVE ANY REGULATION OR CONTROL OVER CONDUCT OF
ANY INDIVIDUAL. — Membership in the Provincial or City
Committee on Justice would not involve any regulation or control
over the conduct and affairs of individuals. Neither will the
Committee on Justice promulgate rules and regulations nor exercise
any quasi-legislative functions. Its work is purely advisory. I do not
see anything wrong in a member of the judiciary joining any study
group which concentrates on the administration of justice as long as
the group merely deliberates on problems involving the speedy
disposition of cases particularly those involving the poor and needy
litigants or detainees, pools the expertise and experiences of the
members, and limits itself to recommendations which may be
adopted or rejected by those who have the power to legislate or
administer the particular function involved in their implementation.
3. STATUTORY CONSTRUCTION; THE BASIC PRINCIPLES OF
CONSTITUTIONAL INTERPRETATION APPLY AS WELL TO THE
PROVISIONS WHICH DEFINE OR CIRCUMSCRIBE OUR POWERS AND
FUNCTIONS AS THEY DO TO THE PROVISIONS GOVERNING THE
OTHER DEPARTMENTS OF GOVERNMENT. — It is well for this Court
to be generally cautious, conservative or restrictive when it
interprets provisions of the Constitution or statutes vesting us with
powers or delimiting the exercise of our jurisdiction and functions.
However, we should not overdo it. The basic principles of
constitutional interpretation apply as well to the provisions which
define or circumscribe our powers and functions as they do to the
provisions governing the other departments of government. The
Court should not adopt a strained construction which impairs its
own efficiency to meet the responsibilities brought about by the
changing times and conditions of society. The familiar quotation is
apt in this case — constitutional provisions are interpreted by the
spirit which vivifies and not by the letter which killeth.
Melencio-Herrera, J., dissenting:
CONSTITUTIONAL LAW; SEC. 12, ART. VIII, 1987 CONSTITUTION;
SHOULD NOT BE GIVEN RESTRICTIVE INTERPRETATION; COMMITTEE
ON JUSTICE, NOT THE AGENCY CONTEMPLATED BY THE
PROHIBITION. — Justices Melencio-Herrera hesitates to give such a
restrictive and impractical interpretation to Section 12, Article VIII
of the 1987 Constitution, and thus join the dissent of Justice
Gutierrez, Jr. What Justice Melencio-Herrera believes as
contemplated by the Constitutional prohibition is designation, for
example, to such quasi-judicial bodies as the SEC, or administrative
agencies like the BIR. Those are full-time positions involving running
the affairs of government, which will interfere with the discharge of
judicial functions or totally remove a Judge/Justice from the
performance of his regular functions. The Committee on Justice
cannot be likened to such an administrative agency of government.
It is a study group with recommendatory functions. In fact,
membership by members of the Bench in said committee is called
for by reason of the primary functions of their position.
RESOLUTION
PADILLA, J p:
On 4 July 1988, Judge Rodolfo U. Manzano, Executive Judge, RTC,
Bangui, Ilocos Norte, Branch 19, sent this Court a letter which reads:
"Hon. Marcelo Fernan
Chief Justice of the Supreme Court
of the Philippines
Manila
Thru channels: Hon. Leo Medialdea
Court Administrator
Supreme Court of the Philippines
Sir:
By Executive Order RF6-04 issued on June 21,
1988 by the Honorable Provincial Governor of
Ilocos Norte, Hon. Rodolfo C. Fariñas, I was
designated as a member of the Ilocos Norte
Provincial Committee on Justice created
pursuant to Presidential Executive Order No.
856 of 12 December 1986, as amended by
Executive Order No. 326 of June 1,
1988. Inconsonance with Executive Order RF6-
04, the Honorable Provincial Governor of Ilocos
Norte issued my appointment as a member of
the Committee. For your ready reference, I am
enclosing herewith machine copies of Executive
Order RF6-04 and the appointment.
Before I may accept the appointment and
enter in the discharge of the powers and duties
of the position as member of the Ilocos (Norte)
Provincial Committee on Justice, may I have the
honor to request for the issuance by the
 Honorable Supreme Court of a Resolution, as
follows:
(1) Authorizing me to
accept the appointment and to
assume and discharge the powers
and duties attached to the said
position;
(2) Considering my
membership in the Committee as
neither violative of the
Independence of the Judiciary nor
a violation of Section 12, Article
VIII, or of the second paragraph of
Section 7, Article IX (B), both of
the Constitution, and will
not in any way amount to an
abandonment of my present
position as Executive Judge of
Branch XIX, Regional Trial Court,
First Judicial Region, and as a
member of the Judiciary; and
(3) Consider my
membership in the said
Committee as part of the primary
functions of an Executive Judge.
May I please be favored soon by your action on
this request.
Very respectfully yours,
(Sgd) RODOLFO U. MANZANO
Judge"
An examination of Executive Order No. 856, as amended, reveals
that Provincial/City Committees on Justice are created to insure the
speedy disposition of cases of detainees, particularly those involving
the poor and indigent ones, thus alleviating jail congestion and
improving local jail conditions. Among the functions of the
Committee are —
3.3 Receive complaints against any
apprehending officer, jail warden, fiscal or judge
who may be found to have committed
abuses in the discharge of his duties and refer
the same to proper authority for appropriate
action;
3.5 Recommend revision of any law or
regulation which is believed prejudicial to the
proper administration of criminal justice.
It is evident that such Provincial/City Committees on Justice
perform administrative functions. Administrative functions are
those which involve the regulation and control over the conduct
and affairs of individuals for their own welfare and the
promulgation of rules and regulations to better carry out the
policy of the legislature or such as are devolved upon the
administrative agency by the organic law of its existence
(Nasipit Integrated Arrastre and Stevedoring Services Inc., vs.
Tapucar, SP-07599-R, 29 September 1978, Black's Law
Dictionary).
Furthermore, under Executive Order No. 326 amending Executive
Order No. 856, it is provided that —
"SECTION 6. Supervision. — The Provincial/City
Committees on Justice shall be under the
supervision of the Secretary of Justice. Quarterly
accomplishment reports shall be submitted to
the Office of the Secretary of Justice."
Under the Constitution, the members of the Supreme Court and
other courts established by law shall not be designated to any
agency performing quasi-judicial or administrative functions
(Section 12, Art. VIII, Constitution).
Considering that membership of Judge Manzano in the Ilocos Norte
Provincial Committee on Justice, which discharges administrative
functions, will be in violation of theConstitution, the Court is
constrained to deny his request.
Former Chief Justice Enrique M. Fernando in his concurring
opinion in the case of Garcia vs. Macaraig (39 SCRA 106) ably sets
forth:
"2. While the doctrine of separation of powers is
a relative theory not to be enforced with
pedantic rigor, the practical demands of
government precluding its doctrinaire
application, it cannot justify a member of the
judiciary being required to assume a position or
perform a duty non-judicial in character. That is
implicit in the principle. Otherwise there is a
plain departure from its command. The essence
of the trust reposed in him is to decide. Only a
higher court, as was emphasized by Justice
Barredo, can pass on his actuation. He is not a
subordinate of an executive or legislative
official, however eminent. It is indispensable
that there be no exception to the rigidity of such
a norm if he is, as expected, to be confined to
the task of adjudication. Fidelity to his sworn
responsibility no leas than the maintenance of
respect for the judiciary can be satisfied with
nothing less."
This declaration does not mean that RTC Judges should adopt an
attitude of monastic insensibility or unbecoming indifference to
Province/City Committee on Justice. As incumbent RTC Judges, they
form part of the structure of government. Their integrity and
performance in the adjudication of cases contribute to the solidity
of such structure. As public officials, they are trustees of an orderly
society. Even as non-members of Provincial/City Committees on
Justice, RTC judges should render assistance to said Committees to
help promote the laudable purposes for which they exist, but only
when such assistance may be reasonably incidental to the
fulfillment of their judicial duties. cdll
ACCORDINGLY, the aforesaid request of Judge Rodolfo
U. Manzano is DENIED.
SO ORDERED.
Cruz, Paras, Feliciano, Gancayco, Bidin, Sarmiento, Cortes,
Medialdea and Regalado, JJ., concur.
Separate Opinions
GUTIERREZ, JR., J., dissenting:
The Constitution prohibits the designation of members of the
judiciary to any agency performing quasi-judicial or administrative
functions. (Section 12, Article VIII, Constitution.).
Insofar as the term "quasi-judicial" is concerned, it has a fairly clear
meaning and Judges can confidently refrain from participating in the
work of any administrative agency which adjudicates disputes and
controversies involving the rights of parties within its jurisdiction.
The issue involved in this case is where to draw the line insofar as
administrative functions are concerned.
"Administrative functions" as used in Section 12 refers to the
executive machinery of government and the performance by that
machinery of governmental acts. It refers to the management
actions, determinations, and orders of executive officials as they
administer the laws and try to make government effective. There is
an element of positive action, of supervision or control.
Applying the definition given in the opinion of the majority which
reads:
"Administrative functions are those which
involve the regulation and control over the
conduct and affairs of individuals for their own
welfare and the promulgation of rules and
regulations to better carry out the policy of the
legislature or such as are devolved upon the
administrative agency by the organic law of its
existence (Nasipit Integrated Arrastre and
Stevedoring Services Inc. v. Tapucar, SP-07599-
R, 29 September 1978, Black's Law Dictionary.)"
we can readily see that membership in the Provincial or City
Committee on Justice would not involve any regulation or
control over the conduct and affairs of individuals. Neither will
the Committee on Justice promulgate rules and regulations nor
exercise any quasi-legislative functions. Its work is purely
advisory. I do not see anything wrong ina member of the
judiciary joining any study group which concentrates on the
administration of justice as long as the group merely deliberates
on problems involving the speedy disposition of cases
particularly those involving the poor and needy litigants or
detainees, pools the expertise and experiences of the members,
and limits itself to recommendations which may be adopted or
rejected by those who have the power to legislate or administer
the particular function involved in their implementation.
We who are Judges cannot operate in a vacuum or in a tight little
world of our own. The administration of justice cannot be
pigeonholed into neat compartments with Judges, Fiscals, Police,
Wardens, and various other officials concerned erecting watertight
barriers against one another and limiting our interaction to timidly
peeping over these unnecessary and impractical barriers into one
another's work, all the while blaming the Constitution for such a
quixotic and unreal interpretation. As intimated in the majority
opinion, we should not be monastically insensible or indifferent to
projects or movements cogitating on possible solutions to our
common problems of justice and afterwards forwarding their
findings to the people, public or private, where their findings would
do the most good.
The majority opinion suggests the giving of assistance by Judges to
the work of the Committees on Justice. Assistance is a vague term.
Can Judges be designated as observers? Advisers? Consultants? Is it I hesitate to give such a restrictive and impractical interpretation to
the act of being "designated" which is proscribed by Section 12, Article VIII of the 1987 Constitution, and thus join the
the Constitution or is it participation in the prohibited functions? If dissent of Justice Gutierrez, Jr.
Judges cannot become members, why should they be allowed or What I believe is contemplated by the Constitutional prohibition is
even encouraged to assist these Committees? The line drawn by the designation, for example, to such quasi-judicial bodies as the SEC, or
majority is vague and unrealistic. administrative agencies like the BIR. Those are full-time positions
The constitutional provision is intended to shield Judges from involving running the affairs of government, which will interfere
participating in activities which may compromise their with the discharge of judicial functions or totally remove a
independence or hamper their work. Studying problems involving Judge/Justice from the performance of his regular functions.
the administration of justice and arriving at purely recommendatory The Committee on Justice cannot be likened to such an
solutions do not in any way involve the encroachment of the administrative agency of government. It is a study group with
judiciary into executive or legislative functions or into matters which recommendatory functions. In fact, membership by members of the
are none of its concerns. Much less is it an encroachment of the Bench in said committee is called for by reason of the primary
other departments into judicial affairs. functions of their position.
As the visible representation of the law and of justice in his The matter of supervision by the Secretary of Justice provided for
community, the Judge should not shy away from public activities under EO No. 326 amending EO No. 856, need not be a cause for
which do not interfere with the prompt and proper performance of concern. That supervision is confined to Committee work and will by
his office, but which, in fact, enhance his effectiveness as a Judge. no means extend to the performance of judicial functions per se.
He cannot stop mingling in civic intercourse or shut himself into ||| (In re: Manzano, A.M. No. 88-7-1861-RTC (Resolution), [October
solitary seclusion. The Committees on Justice will also be immensely
5, 1988], 248 PHIL 487-496)
benefited by the presence of Judges in the study groups. The work
of the Committees is quite important. Let it not be said that the
Judges — the officials most concerned with justice — have hesitated
to join in such a worthy undertaking because of a strained
interpretation of their functions.
It is well for this Court to be generally cautious, conservative or
restrictive when it interprets provisions of the Constitution or
statutes vesting us with powers or delimiting the exercise of our
jurisdiction and functions. However, we should not overdo it. The
basic principles of constitutional interpretation apply as well to the
provisions which define or circumscribe our powers and functions as
they do to the provisions governing the other departments of
government. The Court should not adopt a strained construction
which impairs its own efficiency to meet the responsibilities brought
about by the changing times and conditions of society. The familiar
quotation is apt in this case — constitutional provisions are
interpreted by the spirit which vivifies and not by the letter which
killeth. Cdpr
I, therefore, dissent from the majority opinion and vote to allow
Judge Rodolfo U. Manzano to become a member of the Ilocos Norte
Provincial Committee on Justice.
Fernan (C.J.), Narvasa and Griño-Aquino, JJ., concur.
MELENCIO-HERRERA, J., dissenting:
FIRST DIVISION
[G.R. No. 76633. October 18, 1988.]
EASTERN SHIPPING LINES,
INC., petitioner, vs. PHILIPPINE OVERSEAS
EMPLOYMENT ADMINISTRATION, (POEA),
MINISTER OF LABOR AND EMPLOYMENT,
HEARING OFFICER ABDUL KASAR and
KATHLEEN D. SACO, respondents.
Jimenea, Dala & Zaragoza Law Office for petitioner.
The Solicitor General for public respondent.
Dizon Law Office for respondent Kathleen D. Saco.
SYLLABUS
1. ADMINISTRATIVE LAW; EXHAUSTION OF ADMINISTRATIVE
REMEDIES; RATIONALE; EXCEPTION; CASE AT BAR. — The petitioner
immediately came to this Court, prompting the Solicitor General to
move for dismissal on the ground of non-exhaustion of
administrative remedies. Ordinarily, the decisions of the POEA
should first be appealed to the National Labor Relations
Commission, on the theory inter alia that the agency should be
given an opportunity to correct the errors, if any, of its
subordinates. This case comes under one of the exceptions,
however, as the questions the petitioner is raising are essentially
questions of law. Moreover, the private respondent himself has not
objected to the petitioner's direct resort to this Court, observing
that the usual procedure would delay the disposition of the case to
her prejudice.
2. LABOR AND SOCIAL LEGISLATION; PHILIPPINE OVERSEAS
EMPLOYMENT ADMINISTRATION; CREATION; JURISDICTION. — The
Philippine Overseas Employment Administration was created
under Executive Order No. 797, promulgated on May 1, 1982, to
promote and monitor the overseas employment of Filipinos and to
protect their rights. It replaced the National Seamen Board created
earlier under Article 20 of the Labor Code in 1974. Under Section 4
(a) of the said executive order, the POEA is vested with "original and
exclusive jurisdiction over all cases, including money claims,
involving employee-employer relations arising out of or by virtue of
any law or contract involving Filipino contract workers, including
seamen." These cases, according to the 1985 Rules and Regulations
on Overseas Employment issued by the POEA, include "claims for
death, disability and other benefits" arising out of such
employment.
3. ID.; ID.; OVERSEAS EMPLOYMENT; DEFINED; CASE AT BAR. —
Under the 1985 Rules and Regulations on Overseas Employment,
overseas employment is defined as "employment of a worker
outside the Philippines, including employment on board vessels
plying international waters, covered by a valid contract." A contract
worker is described as "any person working or who has worked
overseas under a valid employment contract and shall include
seamen" or "any person working overseas or who has been
employed by another which may be a local employer, foreign
employer, principal or partner under a valid employment contract
and shall include seamen." These definitions clearly apply to
Vitaliano Saco for it is not disputed that he died while under a
contract of employment with the petitioner and alongside the
petitioner's vessel, the M/V Eastern Polaris, while berthed in a
foreign country.
4. ID.; ID.; ID.; MEMORANDUM CIRCULAR NO. 2; ADOPTION OF A
STANDARD CONTRACT FOR OVERSEAS EMPLOYMENT; PROVISIONS
THEREOF DEEMED WRITTEN INTO A CONTRACT ENTERED INTO IN
VIOLATION OF SAID CIRCULAR. — The award of P180,000.00 for
death benefits and P12,000.00 for burial expenses was made by the
POEA pursuant to its Memorandum Circular No. 2, which became
effective on February 1, 1984. This circular prescribed a standard
contract to be adopted by both foreign and domestic shipping
companies in the hiring of Filipino seamen for overseas
employment. A similar contract had earlier been required by the
National Seamen Board and had been sustained in a number of
cases by this Court. The petitioner claims that it had never entered
into such a contract with the deceased Saco, but that is hardly a
serious argument. In the first place, it should have done so as
required by the circular, which specifically declared that "all parties
to the employment of any Filipino seamen on board any ocean-
going vessel are advised to adopt and use this employment contract
effective 01 February 1984 and to desist from using any other
format of employment contract effective that date." In the second
place, even if it had not done so, the provisions of the said circular
are nevertheless deemed written into the contract with Saco as a
postulate of the police power of the State.
5. ADMINISTRATIVE LAW; NON-DELEGATION OF LEGISLATIVE
POWER; WHAT CANNOT BE DELEGATED; PRINCIPLE EXPLAINED. —
But the petitioner questions the validity of Memorandum Circular
No. 2 itself as violative of the principle of non-delegation of
legislative power. It is true that legislative discretion as to the
substantive contents of the law cannot be delegated. What can he
delegated is the discretion to determine how the law may be
enforced, not what the law shall be. The ascertainment of the latter
subject is a prerogative of the legislature. This prerogative cannot be
abdicated or surrendered by the legislature to the delegate.
6. ID.; ID.; TESTS TO DETERMINE A VALID DELEGATION THEREOF. —
There are two accepted tests to determine whether or not there is a
valid delegation of legislative power,viz,, the completeness test and
the sufficient standard test. Under the first test, the law must be
complete in all its terms and conditions when it leaves the
legislature such that when it reaches the delegate the only thing he
will have to do is enforce it. Under the sufficient standard test, there
must be adequate guidelines or limitations in the law to map out
the boundaries of the delegate's authority and prevent the
delegation from running riot. Both tests are intended to prevent a
total transference of legislative authority to the delegate, who is not
allowed to step into the shoes of the legislature and exercise a
power essentially legislative.
7. ID.; ID.; ESPECIAL APPLICABILITY IN CASE OF LEGISLATIVE
POWERS. — The principle of non-delegation of powers is applicable
to all the three major powers of the Government but is especially
important in the case of the legislative power because of the many
instances when its delegation is permitted. The occasions are rare
when executive or judicial powers have to be delegated by the
authorities to which they legally pertain. In the case of the
legislative power, however, such occasions have become more and
more frequent, if not necessary. This had led to the observation that
the delegation of legislative power has become the rule and its non-
delegation the exception.
8. ID.; ID.; ID.; RATIONALE. — The reason is the increasing
complexity of the task of government and the growing inability of
the legislature to cope directly with the myriad problems
demanding its attention. The growth of society has ramified its
activities and created peculiar and sophisticated problems that the
legislature cannot be expected reasonably to comprehend.
Specialization even in legislation has become necessary. To many of
the problems attendant upon present-day undertakings, the
legislature may not have the competence to provide the required
direct and efficacious, not to say, specific solutions. These solutions
may, however, be expected from its delegates, who are supposed to
be experts in the particular fields assigned to them.
9. ID.; ID.; ID.; ID.; POWER OF SUBORDINATE LEGISLATION;
PARTICULAR APPLICABILITY TO ADMINISTRATIVE BODIES. — The
reasons given above for the delegation of legislative powers in
general are particularly applicable to administrative bodies. With
the proliferation of specialized activities and their attendant peculiar
problems, the national legislature has found it more and more
necessary to entrust to administrative agencies the authority to
issue rules to carry out the general provisions of the statute. This is
called the "power of subordinate legislation." With this power,
administrative bodies may implement the broad policies laid down
in a statute by "filling in" the details which the Congress may not
have the opportunity or competence to provide. This is effected by
their promulgation of what are known as supplementary
regulations, such as the implementing rules issued by the
Department of Labor on the new Labor Code. These regulations
have the force and effect of law.
10. ID.; ID.; ID.; ID.; ID.; ID.; ACCEPTED SUFFICIENT STANDARDS
ENUNCIATED IN PREVIOUS CASES CITED AT BAR. — Parenthetically,
it is recalled that this Court has accepted as sufficient standards
"public interest" in People v. Rosenthal, "justice and equity"
in Antamok Gold Fields v. CIR, "public convenience and welfare"
in Calalang v. Williams, and "simplicity, economy and efficiency"
in Cervantes v. Auditor General, to mention only a few cases. In the
United States, the "sense and experience of men" was accepted in
Mutual Film Corp. v. Industrial Commission, and "national security"
in Hirabayashi v. United States.
12. ID.; ID.; ID.; ID.; ID.; ID.; ID.; CASE AT BAR. — It is not denied that
the private respondent has been receiving a monthly death benefit
pension of P514.42 since March 1985 and that she was also paid a
P1,000.00 funeral benefit by the Social Security System. In addition,
as already observed, she also received a P5,000.00 burial gratuity
from the Welfare Fund for Overseas Workers. These payments will
not preclude allowance of the private respondent's claim against the
petitioner because it is specifically reserved in the standard contract
of employment for Filipino seamen under Memorandum Circular
No. 2, Series of 1984. The underscored portion is merely a
reiteration of Memorandum Circular No. 22, issued by the National
Seamen Board on July 12, 1976. The above provisions are
manifestations of the concern of the State for the working class,
consistently with the social justice policy and the specific provisions
in the Constitution calling for the protection of the working class
and the promotion of its interest.
13. ADMINISTRATIVE LAW; ADMINISTRATIVE AGENCIES; POWERS;
VESTED WITH QUASI-LEGISLATIVE AND QUASI-JUDICIAL POWERS. —
One last challenge of the petitioner must be dealt with to close this
case. Its argument that it has been denied due process because the
same POEA that issued Memorandum Circular No. 2 has also
sustained and applied it is an uninformed criticism of administrative
law itself. Administrative agencies are vested with two basic powers,
the quasi-legislative and the quasi-judicial. The first enables them to
promulgate implementing rules and regulations, and the second
enables them to interpret and apply such regulations. Examples
abound: the Bureau of Internal Revenue adjudicates on its own
revenue regulations, the Central Bank on its own circulars, the
Securities and Exchange Commission on its own rules, as so too do
the Philippine Patent Office and the Videogram Regulatory Board
and the Civil Aeronautics Administration and the Department of
Natural Resources and so an ad infinitum on their respective
administrative regulations. Such an arrangement has been accepted
as a fact of life of modern governments and cannot be considered
violative of due process as long as the cardinal rights laid down by
Justice Laurel in the landmark case of Ang Tibay v. Court of
Industrial Relations (69 Phil. 635) are observed.
14. LABOR AND SOCIAL LEGISLATION; LABOR CODE;
INTERPRETATION; CONSTRUED IN FAVOR OF LABOR. — Whatever
doubts may still remain regarding the rights of the parties in this
case are resolved in favor of the private respondent, in line with the
express mandate of the Labor Code and the principle that those
with less in life should have more in law. When the conflicting
interests of labor and capital are weighed on the scales of social
justice, the heavier influence of the latter must be counterbalanced
by the sympathy and compassion the law must accord the under
privileged worker. This is only fair if he is to be given the opportunity
— and the right — to assert and defend his cause not as a
subordinate but as a peer of management, with which he can
negotiate on even plane. Labor is not a mere employee of capital
but its active and equal partner.
DECISION
CRUZ, J p:
The private respondent in this case was awarded the sum of
P192,000.00 by the Philippine Overseas Employment Administration
(POEA) for the death of her husband. The decision is challenged by
the petitioner on the principal ground that the POEA had no
jurisdiction over the case as the husband was not an overseas
worker. cdll
Vitaliano Saco was Chief Officer of the M/V Eastern Polaris when he
was killed in an accident in Tokyo, Japan, March 15, 1985. His widow
sued for damages under Executive Order No. 797 and Memorandum
Circular No. 2 of the POEA. The petitioner, as owner of the vessel,
argued that the complaint was cognizable not by the POEA but by
the Social Security System and should have been filed against the
State Insurance Fund. The POEA nevertheless assumed jurisdiction
and after considering the position papers of the parties ruled in
favor of the complainant. The award consisted of P180,000.00 as
death benefits and P12,000.00 for burial expenses.
The petitioner immediately came to this Court, prompting the
Solicitor General to move for dismissal on the ground of non-
exhaustion of administrative remedies.
Ordinarily, the decisions of the POEA should first be appealed to the
National Labor Relations Commission, on the theory inter alia that
the agency should be given an opportunity to correct the errors, if
any, of its subordinates. This case comes under one of the
exceptions, however, as the questions the petitioner is raising are
essentially questions of law. 1 Moreover, the private respondent
himself has not objected to the petitioner's direct resort to this
Court, observing that the usual procedure would delay the
disposition of the case to her prejudice.
The Philippine Overseas Employment Administration was created
under Executive Order No. 797, promulgated on May 1, 1982, to
promote and monitor the overseas employment of Filipinos and to
protect their rights. It replaced the National Seamen Board created
earlier under Article 20 of the Labor Code in 1974. Under Section 4
(a) of the said executive order, the POEA is vested with "original and
exclusive jurisdiction over all cases, including money claims,
involving employee-employer relations arising out of or by virtue of
any law or contract involving Filipino contract workers, including
seamen." These cases, according to the 1985 Rules and Regulations
on Overseas Employment issued by the POEA, include "claims for
death, disability and other benefits" arising out of such
employment. 2
The petitioner does not contend that Saco was not its employee or
that the claim of his widow is not compensable. What it does urge is
that he was not an overseas worker but a domestic employee and
consequently his widow's claim should have been filed with the
Social Security System, subject to appeal to the Employees
Compensation Commission.
We see no reason to disturb the factual finding of the POEA that
Vitaliano Saco was an overseas employee of the petitioner at the
time he met with the fatal accident in Japan in 1985.
Under the 1985 Rules and Regulations on Overseas Employment,
overseas employment is defined as "employment of a worker
outside the Philippines, including employment on board vessels
plying international waters, covered by a valid contract." 3 A
contract worker is described as "any person working or who has
worked overseas under a valid employment contract and shall
include seamen" 4 or "any person working overseas or who has
been employed by another which may be a local employer, foreign
employer, principal or partner under a valid employment contract
and shall include seamen." 5 These definitions clearly apply to
Vitaliano Saco for it is not disputed that he died while under a
contract of employment with the petitioner and alongside the
petitioner's vessel, the M/V Eastern Polaris, while berthed in a
foreign country. 6
It is worth observing that the petitioner performed at least two acts
which constitute implied or tacit recognition of the nature of Saco's
employment at the time of his death in 1985. The first is its
submission of its shipping articles to the POEA for processing,
formalization and approval in the exercise of its regulatory power
over overseas employment under Executive Order No. 797. 7 The
second is its payment 8 of the contributions mandated by law and
regulations to the Welfare Fund for Overseas Workers, which was
created by P.D. No. 1694 "for the purpose of providing social and
welfare services to Filipino overseas workers." prcd
Significantly, the office administering this fund, in the receipt it
prepared for the private respondent's signature, described the
subject of the burial benefits as "overseas contract worker Vitaliano
Saco." 9 While this receipt is certainly not controlling, it does
indicate, in the light of the petitioner's own previous acts, that the
petitioner and the Fund to which it had made contributions
considered Saco to be an overseas employee.
The petitioner argues that the deceased employee should be
likened to the employees of the Philippine Air Lines who, although
working abroad in its international flights, are not considered
overseas workers. If this be so, the petitioner should not have found
it necessary to submit its shipping articles to the POEA for
processing, formalization and approval or to contribute to the
Welfare Fund which is available only to overseas workers.
Moreover, the analogy is hardly appropriate as the employees of
the PAL cannot under the definitions given be considered seamen
nor are their appointments coursed through the POEA. LLpr
The award of P180,000.00 for death benefits and P12,000.00 for
burial expenses was made by the POEA pursuant to
its Memorandum Circular No. 2, which became effective on
February 1, 1984. This circular prescribed a standard contract to be
adopted by both foreign and domestic shipping companies in the
hiring of Filipino seamen for overseas employment. A similar
contract had earlier been required by the National Seamen Board
and had been sustained in a number of cases by this Court. 10 The
petitioner claims that it had never entered into such a contract with
the deceased Saco, but that is hardly a serious argument. In the first
place, it should have done so as required by the circular, which
specifically declared that "all parties to the employment of any
Filipino seamen on board any ocean-going vessel are advised to
adopt and use this employment contract effective 01 February 1984
and to desist from using any other format of employment contract
effective that date." In the second place, even if it had not done so,
the provisions of the said circular are nevertheless deemed written
into the contract with Saco as a postulate of the police power of the
State. 11
But the petitioner questions the validity of Memorandum Circular
No. 2 itself as violative of the principle of non-delegation of
legislative power. It contends that no authority had been given the
POEA to promulgate the said regulation; and even with such
authorization, the regulation represents an exercise of legislative
discretion which, under the principle, is not subject to delegation.
The authority to issue the said regulation is clearly provided
in Section 4(a) of Executive Order No. 797, reading as follows:
". . . The governing Board of the Administration
(POEA), as hereunder provided, shall
promulgate the necessary rules and regulations
to govern the exercise of the adjudicatory
functions of the Administration (POEA)."
Similar authorization had been granted the National Seamen
Board, which, as earlier observed, had itself prescribed a
standard shipping contract substantially the same as the format
adopted by the POEA.
The second challenge is more serious as it is true that legislative
discretion as to the substantive contents of the law cannot be
delegated. What can be delegated is the discretion to
determine how the law may be enforced, not what the law shall be.
The ascertainment of the latter subject is a prerogative of the
legislature. This prerogative cannot be abdicated or surrendered by
the legislature to the delegate. Thus, in Ynot v. Intermediate
Appellate Court, 12 which annulled Executive Order No. 626, this
Court held:
"We also mark, on top of all this, the
questionable manner of the disposition of the
confiscated property as prescribed in the
questioned executive order. It is there
authorized that the seized property shall be
distributed to charitable institutions and other
similar institutions as the Chairman of the
National Meat Inspection Commission may see
fit, in the case of carabaos.' (Emphasis supplied.)
The phrase 'may see fit' is an extremely
generous and dangerous condition, if condition
it is. It is laden with perilous opportunities for
partiality and abuse, and even corruption. One
searches in vain for the usual standard and the
reasonable guidelines, or better still, the
limitations that the said officers must observe
when they make their distribution. There is
none. Their options are apparently boundless.
Who shall be the fortunate beneficiaries of their
generosity and by what criteria shall they be
chosen? Only the officers named can supply the
answer, they and they alone may choose the
grantee as they see fit, and in their own
exclusive discretion. Definitely, there is here a
'roving commission,' a wide and sweeping
authority that is not 'canalized within banks that
keep it from overflowing,' in short a clearly
profligate and therefore invalid delegation of
legislative powers."
There are two accepted tests to determine whether or not there is a
valid delegation of legislative power, viz,, the completeness test and
the sufficient standard test. Under the first test, the law must be
complete in all its terms and conditions when it leaves the
legislature such that when it reaches the delegate the only thing he
will have to do is enforce it. 13 Under the sufficient standard test,
there must be adequate guidelines or limitations in the law to map
out the boundaries of the delegate's authority and prevent the
delegation from running riot. 14 Both tests are intended to prevent
a total transference of legislative authority to the delegate, who is
not allowed to step into the shoes of the legislature and exercise a
power essentially legislative.
The principle of non-delegation of powers is applicable to all the
three major powers of the Government but is especially important
in the case of the legislative power because of the many instances
when its delegation is permitted. The occasions are rare when
executive or judicial powers have to be delegated by the authorities
to which they legally pertain. In the case of the legislative power,
however, such occasions have become more and more frequent, if
not necessary. This had led to the observation that the delegation of
legislative power has become the rule and its non-delegation the
exception.
The reason is the increasing complexity of the task of government
and the growing inability of the legislature to cope directly with the
myriad problems demanding its attention. The growth of society has
ramified its activities and created peculiar and sophisticated
problems that the legislature cannot be expected reasonably to
comprehend. Specialization even in legislation has become
necessary. To many of the problems attendant upon present-day
undertakings, the legislature may not have the competence to
provide the required direct and efficacious, not to say, specific
solutions. These solutions may, however, be expected from its
delegates, who are supposed to be experts in the particular fields
assigned to them. prcd
The reasons given above for the delegation of legislative powers in
general are particularly applicable to administrative bodies. With
the proliferation of specialized activities and their attendant peculiar
problems, the national legislature has found it more and more
necessary to entrust to administrative agencies the authority to
issue rules to carry out the general provisions of the statute. This is
called the "power of subordinate legislation."
With this power, administrative bodies may implement the broad
policies laid down in a statute by "filling in" the details which the
Congress may not have the opportunity or competence to provide.
This is effected by their promulgation of what are known as
supplementary regulations, such as the implementing rules issued
by the Department of Labor on the new Labor Code. These
regulations have the force and effect of law.
Memorandum Circular No. 2 is one such administrative regulation.
The model contract prescribed thereby has been applied in a
significant number of cases without challenge by the employer. The
power of the POEA (and before it the National Seamen Board) in
requiring the model contract is not unlimited as there is a sufficient
standard guiding the delegate in the exercise of the said authority.
That standard is discoverable in the executive order itself which, in
creating the Philippine Overseas Employment Administration,
mandated it to protect the rights of overseas Filipino workers to
"fair and equitable employment practices."
Parenthetically, it is recalled that this Court has accepted as
sufficient standards "public interest" in People v.
Rosenthal, 15 "justice and equity" in Antamok Gold Fields v.
CIR, 16 "public convenience and welfare" in Calalang v.
Williams, 17 and "simplicity, economy and efficiency" in Cervantes v.
Auditor General, 18 to mention only a few cases. In the United
States, the "sense and experience of men" was accepted in Mutual
Film Corp. v. Industrial Commission, 19 and "national security" in
Hirabayashi v. United States. 20
It is not denied that the private respondent has been receiving a
monthly death benefit pension of P514.42 since March 1985 and
that she was also paid a P1,000.00 funeral benefit by the Social
Security System. In addition, as already observed, she also received
a P5,000.00 burial gratuity from the Welfare Fund for Overseas
Workers. These payments will not preclude allowance of the private
respondent's claim against the petitioner because it is specifically
reserved in the standard contract of employment for Filipino
seamen under Memorandum Circular No. 2, Series of 1984, that —
"Section C. Compensation and Benefits. —
"1. In case of death of the seamen during the
term of his Contract, the employer shall pay his
beneficiaries the amount of:
"a. P220,000.00 for
master and chief engineers
"b. P180,000.00 for other
officers, including radio operators
and master electricians
"c. P130,000.00 for
ratings.
"2. It is understood and agreed that the benefits
mentioned above shall be separate and distinct
from, and will be in addition to whatever
benefits which the seaman is entitled to under
Philippine laws. . . .
"3. . . .
"c. If the remains of the seaman is buried in the
Philippines, the owners shall pay the
beneficiaries of the seaman an amount not
exceeding P18,000.00 for burial expenses."
The underscored portion is merely a reiteration of Memorandum
Circular No. 22, issued by the National Seamen Board on July 12,
1976, providing as follows:
"Income Benefits under this Rule Shall be
Considered Additional Benefits. —
"All compensation benefits under Title 11, Book
Four of the Labor Code of the
Philippines (Employees Compensation and State
Insurance Fund)) shall be granted, in addition to
whatever benefits, gratuities or allowances that
the seaman or his beneficiaries may be entitled
to under the employment contract approved by
the NSB. If applicable, all benefits under the
Social Security Law and the Philippine Medicare
Law shall be enjoyed by the seaman or his
beneficiaries in accordance with such laws."
The above provisions are manifestations of the concern of the State
for the working class, consistently with the social justice policy and
the specific provisions in the Constitution calling for the protection
of the working class and the promotion of its interest.
One last challenge of the petitioner must be dealt with to close this
case. Its argument that it has been denied due process because the
same POEA that issued Memorandum Circular No. 2 has also
sustained and applied it is an uninformed criticism of administrative
law itself. Administrative agencies are vested with two basic powers,
the quasi-legislative and the quasi-judicial. The first enables them to
promulgate implementing rules and regulations, and the second
enables them to interpret and apply such regulations. Examples
abound: the Bureau of Internal Revenue adjudicates on its own
revenue regulations, the Central Bank on its own circulars, the
Securities and Exchange Commission on its own rules, as so too do
the Philippine Patent Office and the Videogram Regulatory Board
and the Civil Aeronautics Administration and the Department of
Natural Resources and so an ad infinitum on their respective
administrative regulations. Such an arrangement has been accepted
as a fact of life of modern governments and cannot be considered
violative of due process as long as the cardinal rights laid down by
Justice Laurel in the landmark case of Ang Tibay v. Court of
Industrial Relations 21 are observed. LLjur
Whatever doubts may still remain regarding the rights of the parties
in this case are resolved in favor of the private respondent, in line
with the express mandate of the Labor Code and the principle that
those with less in life should have more in law.
When the conflicting interests of labor and capital are weighed on
the scales of social justice, the heavier influence of the latter must
be counterbalanced by the sympathy and compassion the law must
accord the under privileged worker. This is only fair if he is to be
given the opportunity — and the right — to assert and defend his
cause not as a subordinate but as a peer of management, with
which he can negotiate on even plane. Labor is not a mere
employee of capital but its active and equal partner.
WHEREFORE, the petition is DISMISSED, with costs against the
petitioner. The temporary restraining order dated December 10,
1986 is hereby LIFTED. It is so ordered.
||| (Eastern Shipping Lines, Inc. v. Philippine Overseas Employment
Administration, G.R. No. 76633, [October 18, 1988], 248 PHIL 762-
776)
FIRST DIVISION
[G.R. No. L-38025. August 20, 1979.]
DANTE O. CASIBANG, petitioner, vs. HONORABLE
NARCISO A. AQUINO, Judge of the Court of First
Instance of Pangasinan, Branch XIV, and REMEGIO P.
YU,respondents.
Nicanor S. Bautista and Agaton D. Yaranon for
petitioner.
Bince, Sevilleja, Agsalud & Associates for respondents.
DECISION
MAKASIAR, J p:
Respondent Remigio P. Yu was proclaimed on November 9, 1971 as
the elected Mayor of Rosales, Pangasinan in the 1971 local
elections, by a plurality of 501 votes over his only rival, herein
petitioner, who seasonably filed on November 24, 1971 a protest
against the election of the former with the Court of First Instance of
Pangasinan, on the grounds of (1) anomalies and irregularities in the
appreciation, counting and consideration of votes in specified
electoral precincts; (2) terrorism; (3) rampant vote buying; (4) open
voting or balloting; and (5) excessive campaign expenditures and
other violations of the 1971 Election Code. Cdpr
Respondent Yu filed on November 29, 1971 his answer and counter-
protest which petitioner answered on December 10, 1971.
However, respondent Yu withdrew his counter-protest after waiving
the opening and revision of the ballot boxes specified therein.
Proceedings therein continued with respect to the election protest
of petitioner before the Court of First Instance of Pangasinan,
Branch XIV, presided by respondent Judge, who initially took
cognizance of the same as it is unquestionably a justiciable
controversy.
In the meantime or on September 21, 1972, the incumbent
President of the Republic of the Philippines issued Proclamation No.
1081, placing the entire country under Martial Law; and two months
thereafter, more or less, or specifically on November 29, 1972, the
1971 Constitutional Convention passed and approved a Constitution
to supplant the1935 Constitution; and the same was thereafter
overwhelmingly ratified by the sovereign people of the Republic of
the Philippines on January 17, 1973; and on March 31, 1973, this
Court declared that "there is no further judicial obstacle to the new
Constitution being considered in force and effect" (Javellana vs.
Executive Secretary, 50 SCRA 30 [1973]). LLpr
Thereafter or on October 10, 1973, at which time petitioner had
already completed presenting his evidence and in fact had rested his
case, respondent Yu moved to dismiss the election protest of
petitioner on the ground that the trial court had lost jurisdiction
over the same in view of the effectivity of the 1973 Constitution by
reason of which — (principally) Section 9 of Article XVII [Transitory
Provisions] and Section 2 of Article XI — a political question has
intervened in the case. Respondent Yu contended that ". . the
provisions in the 1935 Constitution relative to all local governments
have been superseded by the 1973 Constitution. Therefore, all local
government should adhere to our Parliamentary form of
government. This is clear in the New Constitution under its Article
XI." He further submitted that local elective officials (including
mayors) have no more four-year term of office. They are only in
office at the pleasure of the appointing power embodied in the New
Constitution, and under Section 9 of Article XVII. prcd
Petitioner vigorously opposed the motion to dismiss, and, relying
mainly on Sections 7 and 8 of Article XVII (Transitory Provisions) of
the New Constitution and G.O. No. 3, contended that the
New Constitution did not divest the Court of First Instance of its
jurisdiction to hear and decide election protests pending before
them at the time of its ratification and effectivity; that the
ratification of the New Constitution and its effectivity did not
automatically abolish the office and position of municipal mayor nor
has it automatically cut short the tenure of the office, so as to
render the issue as to who is the lawfully elected candidate to said
office or position moot and academic; that election protests involve
public interest such that the same must be heard until terminated
and may not be dismissed on mere speculation that the office
involved may have been abolished, modified or reorganized; and
that the motion to dismiss was filed manifestly for delay.
Respondent Yu replied pointing out, among others, that petitioner
failed to refute the issue of political question; and reiterated his
stand, expanding his arguments on the political question, thus:
"It is an undeniable fact that this case has its
source from the 1971 elections for municipal
mayoralty. Unsatisfied with the counting of
votes held by the Board of Canvassers, the
herein protestant filed this present case. And
before the termination of the same and pending
trial, the Filipino people in the exercise of their
free will and sovereign capacity approved a
NEW CONSTITUTION, thus a NEW FORM OF
GOVERNMENT-PARLIAMENTARY IN FORM was
enforced. We find this provision under Article XI
of the New Constitution, which provides:
'SEC. 2. The National Assembly
shall enact a local government code
which may not thereafter be amended
except by a majority vote of all its
members, defining a more responsive
and accountable local government
structure with an effective system of
recall, allocating among the different
local government units their powers,
responsibilities, and resources, and
providing for the qualifications,
election and removal, term, salaries,
powers, functions, and duties of local
officials, and all other matters relating
to the organization and operation of
the local units. However, any change in
the existing form of local government
shall not take effect until ratified by a
majority of the votes cast in a plebiscite
called for the purpose.'
It is respectfully submitted that the
contention of the protestant to the effect
that the New Constitution 'shows that
the office of the Municipal Mayor has not
been abolished . . .,' is not ACCURATE.
Otherwise, the provisions of Section 9 of
Article XVII, is meaningless.
'All officials and employees in
the existing Government of the
Republic shall continue in office until
otherwise provided by law or decreed
by the incumbent President of the
Philippines, . . ..'
In the above-quoted provision is the
protection of the officials and employees
working in our government, otherwise,
by the force of the New Constitution they
are all out of the government offices. In
fact, in the case abovecited (Javellana)
 we are all performing our duties in
accordance with the New Constitution.
"Therefore, election cases of the 1935
Constitution being interwoven in the political
complexion of our new Constitution should be
dismissed because only those incumbent official
and employees existing in the new government
are protected by the transitorial provisions of
the New Fundamental Law of the Land. The
protestant, we respectfully submit, is not
covered by the provisions of Section 9 Article
XVII of the Constitution. And in case he will win
in this present case he has no right to hold the
position of mayor of the town of Rosales,
Pangasinan, because he was not then an official
of the government at the time the New
Constitution was approved by the Filipino
People. His right if proclaimed a winner is
derived from the 1935 Constitution which is
changed by the Filipino people."
On December 18, 1973, the trial court, presided by respondent
Judge, sustained the political question theory of respondent Yu and
ordered the dismissal of the electoral protest. Thus:
"There is no dispute that the Filipino people
have accepted and submitted to a new
Constitution to replace the 1935 Constitution,
and that we are now living under its aegis and
protection. . . .
xxx xxx xxx
"Under Section 9, Article XVII, of the
new Constitution, above-quoted, only those
officials and employees of the existing
Government of the Republic of the Philippines
like the protestee herein, are given protection
and are authorized to continue in office at the
pleasure of the incumbent President of the
Philippines, while under Section 2 of Article XI of
the new Constitution, also above-quoted, the
intention to completely revamp the whole local
government structure, providing for different
qualifications, election and removal, term,
salaries, powers, functions, and duties, is very
clear. These present questions of policy, the
necessity and expediency of which are outside
the range of judicial review. With respect to the
fate of incumbent officials and employees in the
existing Government of the Republic of the
Philippines, as well as to the qualifications,
election and removal, term of office, salaries,
and powers of all local officials under the
parliamentary form of government — these
have been entrusted or delegated by the
sovereign people or has reserved it to be settled
by the incumbent Chief Executive or by the
National Assembly with full discretionary
authority therefor. As if to supplement these
delegated powers, the people have also decreed
in a referendum the suspension of all elections.
Thus, in the United States, questions relating to
what persons or organizations constitute the
lawful government of a state of the Union
(Luther vs. Borden, 7 How. 1, 12, L. Ed. 58), and
those relating to the political status of a state
(Highland Farms Dairy vs. Agnew, 57 S. et. 549,
300 U.S. 608, 81 L.ed. 835), have been held to
be political and not for the judiciary to
determine.
"To the mind of the Court, therefore, the
ratification and effectivity of
new Constitution has tainted this case with a
political complexion above and beyond the
power of judicial review. As fittingly commented
by Mr. Justice Antonio in a separate opinion in
the Javellana, et al. cases, 69 O.G. No. 36,
September 3, 1973, p. 8008:
'The essentially political nature
of the question is at once manifest by
understanding that in the final analysis,
what is assailed is not merely the
validity ofProclamation No. 1102 of the
President, which is merely declaratory
of the fact of the approval or
ratification, but the legitimacy of the
government. It is addressed more to
the frame-work and political character
of this government which now
functions under the new Charter. It
seeks to nullify a Constitution that is
already effective. In other words,
where a complete change in the
fundamental law has been effected
through political action, the Court
whose existence is affected by such a
change is, in the words of Mr. Meville
Fuller Weston, 'precluded from passing
upon the fact of change by a logical
difficulty which is not to be
surmounted,' as the change relates to
the existence of a prior point in the
Court's 'chain of title' to its authority
and 'does not relate merely to a
question of the horizontal distribution
of powers.' It involves a matter which
'the sovereign has entrusted to the so-
called political departments or has
reserved to be settled by its own extra-
governmental action.' The present
Government functions under the
new Constitution which has become
effective through political action.
Judicial power presupposes an
the established government and an
effective constitution. If it decides at all
as a court, it necessarily affirms the
existence and authority of the
Government under which it is
exercising judicial power.'
"The Court is not unaware of provisions of the
new Constitution, particularly Sections 7 and 8,
Article XVII (Transitory Provisions) decreeing
that all existing laws not inconsistent with the
new Constitution shall remain operative until
amended, modified, or repealed by the National
Assembly, and that all courts existing at the time
of the ratification of the said
new Constitution shall continue and exercise
their jurisdiction until otherwise provided by law
in accordance with the new Constitution, and all
cases pending in said courts shall be heard, tried
and determined under the laws then in force.
 Again, to the mind of the Court, these refer to
matters raised in the enforcement of existing
laws or in the invocation of a court's jurisdiction
which have not been 'entrusted to the so-called
political department or has reserved to be
settled by its own extra-governmental action."'
Hence, this petition.
WE reverse.
The thrust of the aforesaid political question theory of respondent
Yu is that the 1973 Constitution, through Section 9 of Article XVII
thereof, protected only those incumbents, like him, at the time of its
ratification and effectivity and are the only ones authorized to
continue in office and their term of office as extended now depends
on the pleasure of, as the same has been entrusted or committed
to, the incumbent President of the Philippines or the Legislative
Department; and that Section 2 of Article XI thereof entrusted to
the National Assembly the revamp of the entire local government
structure by the enactment of a local government code, thus
presenting a question of policy, the necessity and expediency of
which are outside the range of judicial review. In short, for the
respondent Judge to still continue assuming jurisdiction over the
pending election protest of petitioner is for him to take cognizance
of a question or policy "in regard to which full discretionary
authority has been delegated to the Legislative or Executive branch
of the government." LLpr
I
There is an imperative need to re-state pronouncements of this
Court on the new Constitution which are decisive in the resolution
of the political question theory of respondent Yu.
WE ruled:
1. That Section 9 of Article XVII of the 1973 Constitution did not
render moot and academic pending election protest cases (Santos
vs. Castañeda, 65 SCRA 114 [1975];Equipilag vs. Araula, 60 SCRA 211
[1974]; Nuñez vs. Averia, 57 SCRA 726 [1974]; Paredes vs. Abad, L-
36927, Sunga vs. Mosqueda, L-37715, Valley vs. Caro, L-38331, 56
SCRA 522, [1974]).
2. That "the constitutional grant of privilege to continue in office,
made by the new Constitution for the benefit of persons who were
incumbent officials or employees of the Government when the
new Constitution took effect, cannot be fairly construed as
indiscriminately encompassing every person who at the time
happened to be performing the duties of an elective office, albeit
under protest or contest" and that "subject to the constraints
specifically mentioned in Section 9, Article XVII of the Transitory
Provisions, it neither was, nor could have been the intention of the
framers of our new fundamental law to disregard and shunt aside
the statutory right of a candidate for elective position who, within
the time-frame prescribed in the Election Code of 1971, commenced
proceedings beamed mainly at the proper determination in a
judicial forum of a proclaimed candidate-elect's right to the
contested office."' (Santos vs. Castañeda, supra); and We
rationalized that "the Constitutional Convention could not have
intended, as in fact it did not intend, to shielf or protect those who
had been unduly elected. To hold that the right of the herein private
respondents to the respective offices which they are now holding,
may no longer be subject to question, would be tantamount to
giving a stamp of approval to what could have been an election
victory characterized by fraud, threats, intimidation, vote buying, or
other forms of irregularities prohibited by the Election Code to
preserve inviolate the sanctity of the ballot." (Paredes, Sunga and
Valley cases, supra).
3. That "the right of the private respondents (protestees) to
continue in office indefinitely arose not only by virtue of Section 9 of
Article XVII of the New Constitution but principally from their having
been proclaimed elected to their respective positions as a result of
the November 8, 1971 elections. Therefore, if in fact and in law,
they were not duly elected to their respective positions and
consequently, have no right to hold the same, perform their
functions, enjoy their privileges and emoluments, then certainly,
they should not be allowed to enjoy the indefinite term of office
given to them by said constitutional provision" (Paredes, Sunga and
Valley cases, supra).
4. That "until a subsequent law or presidential decree provides
otherwise, the right of respondent (protestee) to continue as mayor
rests on the legality of his election which has been protested by
herein petitioner. Should the court decide adversely against him the
electoral protest, respondent (protestee) would cease to be mayor
even before a law or presidential decree terminates his tenure of
office pursuant to said Section 9 of Article XVII of the 1973
Constitution" (Equipilag, supra).
5. That "there is a difference between the 'term' of office and the
'right' to hold an office. A 'term' of office is the period during which
an elected officer or appointee is entitled to hold office, perform its
functions and enjoy its privileges and emoluments. A 'right' to hold a
public office is the just and legal claim to hold and enjoy the powers
and responsibilities of the office. In other words, the 'term' refers to
the period, duration of length of time during which the occupant of
an office is entitled to stay therein whether such period be definite
or indefinite. Hence, although Section 9, Article XVII of the
New Constitution made the term of the petitioners indefinite, it did
not foreclose any challenge by the herein petitioners, in an election
protest, of the 'right' of the private respondents to continue holding
their respective office. What has been directly affected by said
constitutional provision is the 'term' to the office, although the
'right' of the incumbent to an office which he is legally holding is co-
extensive with the 'term' thereof," and that "it is erroneous to
conclude that under Section 9, Article XVII of the New Constitution,
the term of office of the private respondents expired, and that they
are now holding their respective offices under a new term. We are
of the opinion that they hold their respective offices still under the
term to which they have been elected, although the same is now
indefinite" (Paredes, Sunga and Valley cases, supra).
6. That the New Constitution recognized the continuing jurisdiction
of courts of first instance to hear, try and decide election protests:
"Section 7 of Article XVII of the NewConstitution provides that 'all
existing laws not inconsistent with this Constitution shall remain
operative until amended, modified or repealed by the National
Assembly.' And there has been no amendment, modification or
repeal of Section 220 of the Election Code of 1971 which gave the
herein petitioners the right to file an election contest against those
proclaimed elected," and "according to Section 8, Article XVII of the
New Constitution 'all courts existing at the time of the ratification of
this Constitution shall continue and exercise their jurisdiction until
otherwise provided by law in accordance with this Constitution, and
all cases pending in said courts shall be heard, tried and determined
under the laws then in force.' Consequently, the Courts of First
Instance presided over by the respondent-Judges should continue
and exercise their jurisdiction to hear, try and decide the election
protests filed by herein petitioners" (Santos, Equipilag, Nuñez,
Paredes, Sunga and Valley cases, supra).
While under the New Constitution the Commission on Elections is
now the sole judge of all contests relating to the elections, returns,
and qualifications of members of the National Assembly as well as
elective provincial and city officials (par. 2 of Sec. 2, Article XII-C of
the 1973 Constitution), such power does not extend to electoral
contests concerning municipal elective positions.
7. That General Order No. 3, issued by the President of the
Philippines merely reiterated his powers under Section 9 of Article
XVII of the New Constitution. The President did not intend thereby
to modify the aforesaid constitutional provision (Equipilag, supra).
General Order No. 3, as amended by General Order No. 3-A, does
not expressly include electoral contests of municipal elective
positions as among those removed from the jurisdiction of the
courts; for said General Order, after affirming the jurisdiction of the
Judiciary to decide in accordance with the existing laws on criminal
and civil cases, simply removes from the jurisdiction of the Civil
Court certain crimes specified therein as well as the validity, legality
or constitutionality of any decree, order or acts issued by the
President or his duly designated representative or by public servants
pursuant to his decrees and orders issued under Proclamation No.
1081.
8. That General Order No. 3 may not be invoked by the courts to
avoid exercise of their jurisdiction because to do so "is nothing short
of unwarranted abdication of judicial authority, which no judge duly
imbued with the implications of the paramount principle of
independence of the judiciary should ever think of doing. It is
unfortunate indeed that respondent Judge is apparently unaware
that it is a matter of highly significant historical fact that this Court
has always deemed General Order No. 3 including its amendment by
General Order No. 3-A as practically inoperative even in the light
of Proclamation No. 1081 of September 21, 1972 and Proclamation
No. 1104 of January 17, 1973, placing the whole Philippines
under martial law. While the members of the Court are not agreed
on whether or not particular instances of attack against the validity
of certain Presidential decrees raise political questions which the
Judiciary would not interfere with, there is unanimity among Us in
the view that it is for the Court rather than the Executive to
determine whether or not We may take cognizance of any given
case involving the validity of acts of the Executive Department
purportedly under the authority of the martial lawproclamations"
(Lina vs. Purisima, 3 PHILAJUR 605, 610-611, 82 SCRA 344 [1978]).
II
1. In the light of the foregoing pronouncements, We hold that the
electoral protest case herein involved has remained a justiciable
controversy. No political question has ever been interwoven into
this case. Nor is there any act of the incumbent President or the
Legislative Department to be indirectly reviewed or interfered with
if the respondent Judge decides the election protest. The term
"political question" connotes what it means in ordinary parlance,
namely, a question of policy. It refers to those questions which
under theConstitution, are to be decided by the people in their
sovereign capacity; or in regard to which full discretionary authority
has been delegated to the legislative or executive branch of the
government. It is concerned with issues dependent upon the
wisdom, not legality, of a particular measure" (Tañada vs. Cuenco, L-
1052, Feb. 28, 1957). A broader definition was advanced by U.S.
Supreme Court Justice Brennan in Baker vs. Carr (369 U.S. 186
[1962): "Prominent on the surface of any case held to involve a
political question is found a textually demonstrable constitutional
commitment of the issue to a coordinate political department; or a
lack of judicially discoverable and manageable standards for
resolving it; or the impossibility of deciding without an initial policy
determination of a kind clearly for non-judicial discretion; or the
impossibility of a court's undertaking independent resolution
without expressing lack of respect due coordinate branches of the
government; or an unusual need for unquestioning adherence to a
political decision already made; or the potentiality of
embarrassment from multifarious pronouncements by various
departments on one question" (p. 217). And Chief Justice Enrique
M. Fernando, then an Associate Justice, of this Court fixed the limits
of the term, thus: "The term has been made applicable to
controversies clearly non-judicial and therefore beyond its
jurisdiction or to an issue involved in a case appropriately subject to
its cognizance, as to which there has been a prior legislative or
executive determination to which deference must be paid (Cf. Vera
vs. Avelino, 77 Phil. 192 [1946]; Lopez vs. Roxas, L-25716, July 28,
1966, 17 SCRA 756; Gonzales vs. Commission on Elections, L-28196,
Nov. 9, 1967, 21 SCRA 774). It has likewise been employed loosely to
characterize a suit where the party proceeded against is the
President or Congress, or any branch thereof (Cf.Planas vs. Gil, 67
Phil. 62 [1937]; Vera vs. Avelino, 77 Phil. 192 [1946]). If to be
delimited with accuracy; 'political questions should refer to such as
would under the Constitution be decided by the people in their
sovereign capacity or in regard to which full discretionary authority
is vested either in the President or Congress. It is thus beyond the
competence of the judiciary to pass upon. . . ." (Lansang vs. Garcia,
42 SCRA 448, 504-505 [1971]).
2. The only issue in the electoral protest case dismissed by
respondent Judge on the ground of political question is who
between protestant — herein petitioner — and protestee — herein
respondent Yu — was the duly elected mayor of Rosales,
Pangasinan, and legally entitled to enjoy the rights, privileges and
emoluments appurtenant thereto and to discharge the functions,
duties and obligations of the position. If the protestee's election is
upheld by the respondent Judge, then he continues in office;
otherwise, it is the protestant, herein petitioner. That is the only
consequence of a resolution of the issue therein involved — a purely
justiciable question or controversy as it implies a given right, legally
demandable and enforceable, an act or omission violative of said
right, and a remedy, granted or sanctioned by law, for said breach of
right (Tan vs. Republic, 107 Phil. 632-633 [1960]). Before and after
the ratification and effectivity of the New Constitution, the nature of
the aforesaid issue as well as the consequences of its resolution by
the Court, remains the same as above-stated.
3. Any judgment to be made on that issue will not in any way collide
or interfere with the mandate of Section 9 of Article XVII of the
New Constitution, as it will merely resolve who as between
protestant and protestee is the duly elected mayor of Rosales,
Pangasinan; hence, entitled to enjoy the extended term as
mandated by said provision of the New Constitution. As construed
by this Court, the elective officials referred to in Section 9 of Article
XVII are limited to those duly elected as the right to said extended
term was not personal to whosoever was incumbent at the time of
the ratification and effectivity of the New Constitution. Nor would
such judgment preempt, collide or interfere with the power or
discretion entrusted by the New Constitution to the incumbent
President or the Legislative Department, with respect to the
extended term of the duly elected incumbents; because whoever
between protestant and protestee is declared the duly elected
mayor will be subject always to whatever action the President or the
Legislative Department will take pursuant thereto. LLjur
4. Neither does Section 2 of Article XI stigmatize the issue in that
electoral protest case with a political color. For simply, that section
allocated unto the National Assembly the power to enact a local
government code "which may not thereafter be amended except by
a majority of all its Members, defining a more responsive and
accountable local government allocating among the different local
government units their powers, responsibilities, and resources, and
providing for their qualifications, election and removal, term,
salaries, powers, functions and duties of local officials, and all other
matters relating to the organization and operation of the local units"
but ". . . any change in the existing form of local government shall
not take effect until ratified by a majority of the votes cast in a
plebiscite called for the purpose." It is apparent at once that such
power committed by the New Constitution to the National Assembly
will not be usurped or preempted by whatever ruling or judgment
the respondent Judge will render in the electoral protest case.
Whoever will prevail in that contest will enjoy the indefinite term of
the disputed office of mayor of Rosales, Pangasinan in the existing
set-up of local government in this country; subject always to
whatever change or modification the National Assembly will
introduce when it will enact the local government code. LLpr
III
The construction made by respondent Judge of Sections 7 and 8 of
Article XVII of the New Constitution ". . . that these refer to matters
raised in the enforcement of existing laws or in the invocation of a
court's jurisdiction which have not been 'entrusted to the so-called
political department or reserved to be settled by its own extra-
governmental action,"' strained as it is, cannot be sustained in view
of the result herein reached on the issue of political question as well
as Our previous pronouncements as above restated on the same
Sections 7 and 8 of the New Constitution.
WHEREFORE, RESPONDENT COURT'S ORDER OF DISMISSAL IS
HEREBY SET ASIDE AND THE RESPONDENT COURT IS DIRECTED TO
IMMEDIATELY PROCEED WITH THE TRIAL AND DETERMINATION OF
THE ELECTION PROTEST BEFORE IT ON THE MERITS. THIS DECISION
SHALL BE IMMEDIATELY EXECUTORY UPON PROMULGATION
HEREOF. NO COSTS.
Teehankee (Chairman), Fernandez, Guerrero, De
Castro and Melencio-Herrera, JJ., concur.
||| (Casibang v. Aquino, G.R. No. L-38025, [August 20, 1979], 181
PHIL 181-195)
EN BANC
[G.R. No. L-10520. February 28, 1957.]
LORENZO M. TAÑADA and DIOSDADO
MACAPAGAL, petitioners, vs. MARIANO JESUS
CUENCO, FRANCISCO A. DELGADO, ALFREDO
CRUZ, CATALINA CAYETANO, MANUEL
SERAPIO, PLACIDO REYES, and FERNANDO
HIPOLITO, in his capacity as cashier and
disbursing officer, respondents.
Tañada, Teehankee & Macapagal for petitioners.
Solicitor General Ambrosio Padilla and Solicitor Troadio
T. Quiazon, Jr. for respondents.
SYLLABUS
1. CONSTITUTIONAL LAW; SELECTION OF MEMBERS OF
THE SENATE ELECTORAL TRIBUNAL; NATURE OF TRIBUNAL. —
Although the Constitution provides that the Senate shall choose
six (6) Senators to be members of the Senate Electoral Tribunal,
the letter is part neither of Congress nor of the Senate. (Angara
vs. Electoral Commission, 63 Phil., 139; Suanes vs. Chief
Accountant, 81 Phil., 818; 46 Off. Gaz., 462.)
2. ID.; ID.; MEANING OF "POLITICAL QUESTION"; CASE
AT BAR. — The term "political question" connotes, in legal
parlance, what it means in ordinary parlance, namely, a
question of policy. It refers to those questions which, under the
Constitution, are to be decided by the people in their sovereign
capacity, or in regard to which full discretionary authority has
been delegated to the Legislature or executive branch of the
Government (16 C. J. S., 413). It is concerned with issues
dependent upon the wisdom, not legality, of a particular
measure. In the case at bar, the question for determination is
whether the election of two senators, by the Senate, as
members of the Senate Electoral Tribunal, upon nomination by
another senator, who is a member and spokesman of the party
having the largest number of votes in the Senate, on behalf of
its Committee on Rules, contravenes the constitutional
mandate that said members of the tribunal shall be chosen
"upon nomination *** of the party having the second largest
number of votes" in the Senate, and hence, is null and void. This
is not a political question. The Senate is not clothed with "full
discretionary authority" in the choice of members of the Senate
Electoral Tribunal. The exercise of its power thereon is subject
to constitutional limitations. It is clearly within the legitimate
province of the judicial department to pass upon the validity of
the proceedings in connection therewith. Hence, this Court has,
not only jurisdiction, but, also the duty, to consider and
determine the principal issue raised by the parties herein.
3. ID.; ID.; MAIN OBJECTION IN PROVIDING THE
ESTABLISHMENT OR ELECTORAL TRIBUNALS. — The main
objective of the framers of the Constitution in providing for the
establishment, first, of an Electoral Commission, and then of
one Electoral Tribunal for each House of Congress was to insure
the exercise of judicial impartiality in the disposition of election
contests affecting members of the lawmaking body. To achieve
this purpose, two devices were resorted to, namely: (a) the
party having the largest number of votes, and the party having
the second largest number of votes, in the National Assembly or
in each House of Congress, were given the same number of
representatives in the Electoral Commission or Tribunal so that
they may realize that partisan considerations could not control
the adjudication of said cases, and thus be induced to act with
greater impartiality; and (b) the Supreme Court was given in
said body the same number of representatives as each one of
said political parties, so that the influence of the former may be
decisive and endow said Commission or Tribunal with judicial
temper.
4. ID.; ID.; MOST VITAL FEATURE OF ELECTORAL
TRIBUNALS. — The most vital feature of the Electoral Tribunals
is the equal representation of the parties having the largest and
the second largest number of votes in each House therein, and
the resulting equilibrium to be maintained by the Justices of the
Supreme Court as members of said Tribunals.
5. ID.; ID.; PROCEDURE PRESCRIBED FOR SELECTION OF
MEMBERS; COMPLIANCE WITH PROCEDURE MANDATORY. —
The framers of the Constitution intended to prevent the
majority party from controlling the Electoral Tribunals, and the
structure thereof is founded upon the equilibrium between the
majority and the minority parties therein, with the Justice of the
Supreme Court, who are members of said Tribunals, holding the
resulting balance of power. The procedure prescribed in section
11 of Article VI of the Constitution for the selection of members
of the Electoral Tribunals is vital to the role they are called upon
to play. It constitutes the essence of said Tribunals. Hence,
compliance with said procedure is mandatory, and acts
performed in violation thereof are null and void.
6. ID.; ID.; PRESENT SITUATION NOT FORESEEN BY
FRAMERS OF THE CONSTITUTION; SPIRIT OF THE LAW PREVAILS
OVER ITS LETTER. — While it is true that the membership of the
Senate Electoral Tribunal, in the case at bar, would in effect be
limited to seven (7), instead of nine (9), members it must be
conceded that the present composition of the Senate, wherein
twenty-three (23) of its members belong to one party and one
(1) member belongs to another, was not foreseen by the
framers of the Constitution. Furthermore, the spirit of the law
prevails over its letter, and the solution herein adopted
maintains the spirit of the Constitution, for partisan
considerations cannot be decisive in a tribunal consisting of
three (3) Justices of the Supreme Court, three (3) members
nominated by the majority party and either one (1) or two (2)
members nominated by the party having the second largest
number of votes in the House concerned.
7. ID,; ID.; ID.; MODERATING ROLE OF JUSTICES OF THE
SUPREME COURT. — If the Nacionalista Party would be allowed
to nominate five (5) members to the Senate Electoral Tribunal
instead of three (3), it would have the absolute majority, since
there would be one (1) member of the Citizens Party and three
(3) members of the Supreme Court, and hence, the philosophy
underlying the Constitution would be entirely upset. The
equilibrium between the political parties therein would be
destroyed, and, what is worse, the decisive moderating role of
the Justice of the Supreme Court would be wiped out, and, in
lieu thereof, the door would be thrown wide open for the
predominance of political considerations in the determination
of election protests pending before said Tribunal, which is
precisely what the fathers of our Constitution earnestly strove
to forestall.
8. ID.; ID.; RELIANCE BY THE CONSTITUTION UPON THE
METHOD OF SELECTION ESTABLISHED THEREIN. — When the
election of members of Congress to the Electoral Tribunal is
made dependent upon the nomination of the political parties
referred to in the Constitution, the latter thereby indicates its
reliance upon the method of selection thus established,
regardless of the individual qualities of those chosen therefor.
The delegates to the Convention did not ignore the fact that the
Constitution must limit itself to giving general patterns or
norms of action. In connection, particularly with the
composition of the Electorals, they believed that, even the most
well meaning individuals often find it difficult to shake of the
bias and prejudice created by political antagonisms and to resist
the demands of political exigencies, the pressure of which is
bound to increase in proportion to the degree of predominance
of the party from which it comes.
9. ID.; ID,; ID.; WAIVER OF CONSTITUTIONAL
PROVISIONS INTENDED FOR ONE'S BENEFIT — Although "an
individual may waive constitutional provisions intended for his
benefit," particularly those meant for the protection of his
property, and, sometimes, even those tending "to secure his
personal liberty" the power to waive does not exist when
"public policy or public morals" are involved. (11 Am. Jur. 765; I
Cooley's Constitutional Limitations, pp. 368-371) The procedure
outlined in the Constitution for the organization of the Electoral
Tribunals was adopted in response to the demands of the
commonweal, and it has been held that "where a statute is
founded on public policy, those to whom it applies should not
be permitted to waive its provisions" (82 C. J. S., 874).
10. ID.; ACTS OF CONGRESS; AUTHORITY OF COURTS
TO PASS UPON THE CONSTITUTIONALITY. — The provision
in the Constitution vesting the legislative power in the Congress
of the Philippines does not detract from the power of the courts
to pass upon the constitutionality of act of Congress. Since
judicial power includes the authority to inquire into the legality
of statutes enacted by the two Houses of Congress, and
approved by the Executive there can be no reason why the
validity of an act of one of said Houses like that of any other
branch of the Government, may not be determined in the
proper actions. In fact, whenever the conducting claims of the
parties to a litigation cannot properly be settled without
inquiring into the validity of an act of Congress or of either
House thereof, the courts have, not only jurisdiction to pass
upon said issue, but, also, the duty to do so, which cannot be
evaded without violating the fundamental law and paving the
way to its eventual destruction.
11. STATUTORY CONSTRUCTION; DOCTRINE OF
CONTEMPORANEOUS OR PRACTICAL CONSTRUCTION; WHEN
APPLICABLE. — As a general rule, it is only in cases of
substantial doubt and ambiguity that the doctrine of
contemporaneous or practical construction has any application.
Where the meaning of a constitutional provision is clear, a
contemporaneous or practical executive interpretation thereof
is entitled to no weight and will not be allowed to distort or in
any way change its natural meaning. The reason is that the
application of the doctrine of contemporaneous construction is
more restricted as applied to the interpretation of
constitutional provisions than when applied to statutory
provisions, and that, except as to matters committed by the
Constitution itself to the discretion of some other department,
contemporary or practical construction is not necessarily
binding upon the courts even in a doubtful case. Hence if in the
judgment of the court, such construction is erroneous and its
further application is not made imperative by any paramount
consideration of public policy, it may be rejected (16 C. J. S., 71-
72)
12. ID.; CONFLICT BETWEEN SPIRIT AND LETTER OF A
STATUTE. — As a general rule of statutory construction, the
spirit or intention of a statute prevails over the letter thereof,
and whatever is within the spirit of a statute is within the
statute although it is not within the letter thereof, while that
which is within the letter, but not within the spirit of a statute,
is not within the statute, but, the letter of it is not to be
disregarded on the pretext of pursuing its spirit. (82 C.J.S., 613).
DECISION
CONCEPCION, J p:
Petitioner Lorenzo M. Tañada is a member of the
Senate of the Philippines, and President of the Citizens Party,
whereas petitioner Diosdado Macapagal, a member of the
House of Representatives of the Philippines, was one of the
official candidates of the Liberal Party for the Senate, at the
general elections held in November, 1955, in which Pacita
Madrigal Warns, Lorenzo Sumulong, Quintin Paredes, Francisco
Rodrigo, Pedro Sabido, Claro M. Recto, Domocao Alonto and
Decoroso Rosales, were proclaimed elected. Subsequently, the
election of these Senators-elect — who eventually assumed
their respective seats in the Senate — was contested by
petitioner Macapagal, together with Camilo Osias, Geronima
Pecson, Macario Peralta, Enrique Magalona, Pio Pedrosa and
William Chiongbian — who had, also, run for the Senate, in said
election — in Senate Electoral Case No. 4, now pending before
the Senate Electoral Tribunal.
The Senate, in its session of February 22, 1956, upon
nomination of Senator Cipriano Primicias, on behalf of the
Nacionalista Party, chose Senators Jose P. Laurel, Fernando
Lopez and Cipriano Primicias, as members of the Senate
Electoral Tribunal. Upon nomination of petitioner Senator
Tañada, on behalf of the Citizens Party, said petitioner was next
chosen by the Senate as member of said Tribunal. Then, upon
nomination of Senator Primicias, on behalf of the Committee on
Rules of the Senate, and over the objections of Senators Tañada
and Sumulong, the Senate choose respondents Senators
Mariano J. Cuenco and Francisco A. Delgado as members of the
same Electoral Tribunal. Subsequently, the Chairman of the
latter appointed: (1) Alfredo Cruz and Catalina Cayetano, as
technical assistant and private secretary, respectively, to
Senator Cuenco, as supposed member of the Senate Electoral
Tribunal, upon his recommendation of said respondents; and
(2) Manuel Serapio and Placido Reyes, as technical assistant and
private secretary, respectively to Senator Delgado, as supposed
member of said Electoral Tribunal, and upon his
recommendation.
Soon, thereafter, Senator Lorenzo M. Tañada and
Congressman Diosdado Macapagal instituted the case at bar
against Senators Cuenco and Delgado, and said Alfredo Cruz,
Catalina Cayetano, Manuel Serapio and Placido Reyes, as well as
Fernando Hipolito, in his capacity as Cashier and Disbursing
Officer of the Senate Electoral Tribunal. Petitioners allege that
on February 22, 1956, as well as at present, the Senate consists
of 23 Senators who belong to the Nacionalista Party, and one
(1) Senator — namely, petitioner, Lorenzo M. Tañada —
belonging to the Citizens Party; that the Committee on Rules for
the Senate, in nominating Senators Cuenco and Delgado, and
the Senate, in choosing these respondents, as members of the
Senate Electoral Tribunal, had "acted absolutely without power
or color of authority and in clear violation . . . of Article VI,
Section 11 of the Constitution"; that "in assuming membership
in the Senate Electoral Tribunal, by taking the corresponding
oath of office therefor", said respondents had "acted absolutely
without color of appointment or authority and are unlawfully,
and in violation of the Constitution, usurping, intruding into and
exercising the powers of members of the Senate Electoral
Tribunal"; that, consequently, the appointments of
respondents, Cruz, Cayetano, Serapio and Reyes, as technical
assistants and private secretaries to Senators Cuenco and
Delgado — who caused said appointments to be made — as
members of the Senate Electoral Tribunal, are unlawful and
void; and that Senators Cuenco and Delgado "are threatening
and are about to take cognizance of Electoral Case No. 4 of the
Senate Electoral Tribunal, as alleged members thereof, in
nullification of the rights of petitioner Lorenzo M. Tañada, both
as a Senator belonging to the Citizens Party and as
representative of the Citizens Party in the Senate Electoral
Tribunal, and in deprivation of the constitutional rights of
petitioner Diosdado Macapagal and his co-protestants to have
their election protest tried and decided by an Electoral Tribunal
composed of not more than three (3) senators chosen by the
Senate upon nomination of the party having the largest number
of votes in the Senate and not more than three (3) Senators
upon nomination of the party having the second largest number
of votes therein, together with three (3) Justices of the
Supreme Court to be designated by the Chief Justice, instead of
by an Electoral Tribunal packed with five members belonging to
the Nacionalista Party, which is the rival party of the Liberal
Party, to which the petitioner Diosdado Macapagal and his co-
protestants in Electoral Case No. 4 belong, the said five (5)
Nacionalista Senators having been nominated and chosen in the
manner alleged . . . herein- above."
Petitioners pray that:
"1. Upon petitioners' filing of a bond in
such amount as may be determined by this
Honorable Court, a writ of preliminary
injunction be immediately issued directed to
respondents Mariano J. Cuenco, Francisco A.
Delgado, Alfredo Cruz, Catalina Cayetano,
Manuel Serapio and Placido Reyes, restraining
them from continuing to usurp, intrude into
and/or hold or exercise the said public offices
respectively being occupied by them in the
Senate Electoral Tribunal, and to respondent
Fernando Hipolito restraining him from paying
the salaries of respondents Alfredo Cruz,
Catalina Cayetano, Manuel Serapio and Placido
Reyes, pending this action.
"2. After hearing, judgment be
rendered ousting respondents Mariano J.
Cuenco, Francisco A. Delgado, Alfredo Cruz,
Catalina Cayetano, Manuel Serapio and Placido
Reyes from the aforementioned public offices in
the Senate Electoral Tribunal and that they be
altogether excluded therefrom and making the
preliminary injunction permanent, with costs
against the respondents."
Respondents have admitted the main allegations of
fact in the petition, except insofar as it questions the legality
and validity of the election of respondents Senators Cuenco and
Delgado, as members of the Senate Electoral Tribunal, and of
the appointment of respondent Alfredo Cruz, Catalina
Cayetano, Manuel Serapio and Placido Reyes as technical
assistants and private secretaries to said respondents Senators.
Respondents, likewise, allege, by way of special and affirmative
defenses, that: (a) this Court is without power, authority of
jurisdiction to direct or control the action of the Senate in
choosing the members of the Electoral Tribunal; and (b) that
the petition states no cause of action, because "petitioner
Tañada has exhausted his right to nominate after he nominated
himself and refused to nominate two (2) more Senators",
because said petitioner is in estoppel, and because the present
action is not the proper remedy.
I. Respondents assail our jurisdiction to entertain the
petition, upon the ground that the power to choose six (6)
Senators as members of the Senate Electoral Tribunal has been
expressly conferred by the Constitution upon the Senate,
despite the fact that the draft submitted to the constitutional
convention gave to the respective political parties the right to
elect their respective representatives in the Electoral
Commission provided for in the original Constitution of the
Philippines, and that the only remedy available to petitioners
herein "is not in the judicial forum", but "to bring the matter to
the bar of public opinion."
We cannot agree with the conclusion drawn by
respondents from the foregoing facts. To begin with, unlike the
cases of Alejandrino vs. Quezon (46 Phil., 83) and Vera vs.
Avelino (77 Phil., 192) — relied upon by the respondents — this
is not an action against the Senate, and it does not seek to
compel the latter, either directly or indirectly, to allow the
petitioners to perform their duties as members of said House.
Although the Constitution provides that the Senate shall choose
six (6) Senators to be members of the Senate Electoral Tribunal,
the latter is part neither of Congress nor of the Senate. (Angara
vs. Electoral Commission, 63 Phil., 139; Suanes vs. Chief
Accountant, 81 Phil., 818; 46 Off. Gaz., 462.)
Secondly, although the Senate has, under the
Constitution, the exclusive power to choose the Senators who
shall form part of the Senate Electoral Tribunal, the
fundamental law has prescribed the manner in which the
authority shall be exercised. As the author of a very
enlightening study on judicial self-limitation has aptly put it:
"The courts are called upon to say, on
the one hand, by whom certain powers shall be
exercised, and on the other hand, to determine
whether the powers thus possessed have
been validly exercised. In performing the latter
function, they do not encroach upon the powers
of a coordinate branch of the government, since
the determination of thevalidity of an act is not
the same thing as the performance of the act. In
the one case we are seeking to ascertain upon
whom devolves the duty of the particular
service. In the other case we are merely seeking
to determine whether the Constitution has been
violated by anything done or attempted by
either an executive official or the legislative."
(Judicial Self-Limitation by Finkelstein, pp. 221,
224, 244, Harvard Law Review, Vol. 39;
emphasis supplied.)
The case of Suanes vs. Chief Accountant (supra) cited
by respondents refutes their own pretense. This Court exercised
its jurisdiction over said case and decided the same on the
merits thereof, despite the fact that it involved an inquiry into
the powers of the Senate and its President over the Senate
Electoral Tribunal and the personnel thereof.
Again, under the Constitution, "the legislative power"
is vested exclusively in the Congress of the Philippines. Yet, this
does not detract from the power of the courts to pass upon the
constitutionality of acts of Congress 1 And, since judicial power
includes the authority to inquire into the legality of statutes
enacted by the two Houses of Congress, and approved by the
Executive, there can be no reason why the validity of an act
of one of said Houses, like that of any other branch of the
Government, may not be determined in the proper actions.
Thus, in the exercise of the so- called "judicial supremacy", this
Court declared that a resolution of the defunct National
Assembly could not bar the exercise of the powers of the
former Electoral Commission under the
original Constitution. 2 (Angara vs. Electoral
Commission, supra), and annulled certain acts of the
Executive 3 as incompatible with the fundamental law.
In fact, whenever the conflicting claims of the parties
to a litigation cannot properly be settled without inquiring into
the validity of an act of Congress or of either House thereof, the
courts have, not only jurisdiction to pass upon said issue, but,
also, the duty to do so, which cannot be evaded without
violating the fundamental law and paving the way to its
eventual destruction. 4
Neither are the cases of Mabanag vs. Lopez Vito (78
Phil., 1) and Cabili vs. Francisco (88 Phil., 654), likewise, invoked
by respondents, in point. In the Mabanag case, it was held that
the courts could not review the finding of the Senate to the
effect that the members thereof who had been suspended by
said House should not be considered in determining whether
the votes cast therein, in favor of a resolution proposing an
amendment to the Constitution, sufficed to satisfy the
requirements of the latter, such question being a political one.
The weight of this decision, as a precedent, has been
weakened, however, by our resolutions in Avelino vs.
Cuenco (83 Phil., 17), in which this Court proceeded to
determine the number essential to constitute a quorum in the
Senate. Besides, the case at bar does not hinge on the number
of votes needed for a particular act of said body. The issue
before us is whether the Senate — after acknowledging that
the Citizens Party is the party having the second largest number
of votes in the Senate, to which party the Constitution gives the
right to nominate three (3) Senators for the Senate Electoral
Tribunal — could validly choose therefor two
(2) NacionalistaSenators, upon nomination by the floor leader
of the Nacionalista Party in the Senate, Senator Primicias,
claiming to act on behalf of the Committee on Rules for the
Senate.
The issue in the Cabili case was whether we could
review a resolution of the Senate reorganizing its
representation in the Commission on Appointments. This was
decided in the negative, upon the authority of Alejandrino vs.
Quezon (supra) and Vera vs. Avelino (supra), the main purpose
of the petition being "to force upon the Senate the
reinstatement of Senator Magalona in the Commission on
Appointments," one-half (1/2) of the members of which is to be
elected by each House on the basis of proportional
representation of the political parties therein. Hence, the issue
depended mainly on the determination of the political
alignment of the members of the Senate at the time of said
reorganization and of the necessity or advisability of effecting
said reorganization, which is a political question. We are not
called upon, in the case at bar, to pass upon an identical or
similar question, it being conceded, impliedly, but clearly, that
the Citizens Party is the party with the second largest number of
votes in the Senate. The issue, therefore, is whether a right
vested by the Constitution in the Citizens Party may validly be
exercised, either by the Nacionalista Party, or by the Committee
on Rules for the Senate, over the objection of said Citizens
Party.
The only ground upon which respondents' objection to
the jurisdiction of this Court and their theory to the effect that
the proper remedy for petitioners herein is, not the present
action, but an appeal to public opinion, could possibly be
entertained is, therefore, whether the case at bar raises merely
a political question, not one justiciable in nature.
In this connection, respondents assert in their answer
that "the remedy of petitioners is not in the judicial forum, but,
to use petitioner Tañada's own words, 'to bring the matter to
the bar of public opinion' (p. 81, Discussion on the Creation of
the Senate Electoral Tribunal, February 21, 1956)." This
allegation may give the impression that said petitioner had
declared, on the floor of the Senate, that his only relief against
the acts complained of in the petition is to take up the issue
before the people — which is not a fact. During the discussions
in the Senate, in the course of the organization of the Senate
Electoral Tribunal, on February 21, 1956, Senator Tañada was
asked what remedies he would suggest if he nominated two (2)
Nacionalista Senators and the latter declined the nomination.
Senator Tañada replied:
"There are two remedies that occur to
my mind right now, Mr. Senator; one is the
remedy open to all of us that if we feel
aggrieved and there is no recourse in the court
of justice, we can appeal to public opinion.
Another remedy is an action in the Supreme
Court. Of course, as Senator Rodriguez, our
President here, has said one day; 'If you take
this matter to the Supreme Court, you will lose,
because until now the Supreme Court has
always ruled against any action that would
constitute interference in the business of
anybody pertaining to the Senate. The theory of
separation of powers will be upheld by the
Supreme Court.' But that learned opinion of
Senator Rodriguez, our President,
notwithstanding, I may take the case to the
Supreme Court if my right herein is not
respected. I may lose, Mr. President, but who
has not lost in the Supreme Court? I may lose
because of the theory of the separation of
powers, but that does not mean, Mr. President,
that what has been done here is pursuant to the
provision of the Constitution." (Congressional
Record, Vol. III, p. 339; emphasis supplied.)
This statement did not refer to the nomination, by
Senator Primicias, and the election, by the Senate, of Senators
Cuenco and Delgado as members of said Tribunal. Indeed, said
nomination and election took place the day after the
aforementioned statement of Senator Tañada was made. At
any rate, the latter announced that he might "take the case to
the Supreme Court if my right here is not respected."
As already adverted to, the objection to our
jurisdiction hinges on the question whether the issue before us
is political or not. In this connection, Willoughby lucidly states:
"Elsewhere in this treatise the well-
known and well-established principle is
considered that it is not within the province of
the courts to pass judgment upon the policy of
legislative or executive action. Where,
therefore, discretionary powers are granted
by the Constitution or by statute, the manner in
which those powers are exercised is not subject
to judicial review. The courts, therefore,
concern themselves only with the question as to
the existence and extent of these discretionary
powers.
"As distinguished from the judicial, the
legislative and executive departments are
spoken of as the political departments of
government because in very many cases their
action is necessarily dictated by considerations
of public or political policy. These considerations
of public or political policy of course will not
permit the legislature to violate constitutional
provisions, or the executive to exercise authority
not granted him by the Constitution or by
statute, but, within these limits, they do permit
the departments, separately or together,
 to recognize that a certain set of facts exists or
that a given status exists, and these
determinations, together with the
consequences that flow therefrom, may not be
traversed in the courts." (Willoughby on the
Constitution of the United States, Vol. 3, p.
1326; emnphasis supplied.)
To the same effect is the language used in Corpus Juris
Secundum, from which we quote:
"It is well-settled doctrine that political
questions are not within the province of the
judiciary, except to the extent that power to
deal with such questions has been conferred
upon the courts by express constitutional or
statutory provisions.
"It is not easy, however, to define the
phrase 'political question', nor to determine
what matters fall within its scope. It is
frequently used to designate all questions that
lie outside the scope of the judicial questions,
which under the constitution, are to be decided
by the people in their sovereign capacity, or in
regard to which full discretionary authority has
been delegated to the legislative or executive
branch of the government." (16 C.J.S.,
413; see, also Geauga Lake Improvement Ass'n.
vs. Lozier, 182 N. E. 491, 125 Ohio St. 565;
Sevilla vs. Elizalde, 112 F. 2d 29, 72 App. D. C.,
108; emphasis supplied.)
Thus, it has been repeatedly held that the question
whether certain amendments to the Constitution are invalid for
non-compliance with the procedure therein prescribed, is not a
political one and may be settled by the Courts. 5
In the case of In re McConaughy (119 N.W. 408), the
nature of political question was considered carefully. The Court
said:
"At the threshold of the case we are
met with the assertion that the questions
involved are political, and not judicial. If this is
correct, the court has no jurisdiction as the
certificate of the state canvassing board would
then be final, regardless of the actual vote upon
the amendment. The question thus raised is a
fundamental one; but it has been so often
decided contrary to the view contended for by
the Attorney General that it would seem to be
finally settled.
xxx xxx xxx
". . . What is generally meant, when it is
said that a question is political, and not judicial,
is that it is a matter which is to be exercised by
the people in their primary political capacity, or
that it has been specifically delegated to some
other department or particular officer of the
government, with discretionary power to act.
See State vs. Cunningham, 81 Wis. 497, 51 L. R.
A. 561; In Re Gunn, 50 Kan. 155; 32 Pac. 470,
948, 19 L. R. A. 519; Green vs. Mills, 69 Fed. 852,
16, C. C. A. 516, 30 L. R. A. 90; Fletcher vs.
Tuttle, 151 Ill. 41, 37 N. E. 683, 25 L. R. A. 143,
42 Am. St. Rep. 220. Thus the Legislature may in
its discretion determine whether it will pass a
law or submit a proposed constitutional
amendment to the people. The courts have no
judicial control over such matters, not merely
because they involve political question, but
because they are matters which the people have
by the Constitution delegated to the Legislature.
The Governor may exercise the powers
delegated to him, free from judicial control, so
long as he observes the laws and acts within the
limits of the power conferred.
His discretionary acts cannot be controllable,
not primarily because they are of a political
nature, but because the Constitution and laws
have placed the particular matter under his
control. But every officer under a constitutional
government must act according to law and
subject him to the restraining and controlling
power of the people, acting through the courts,
as well as through the executive or the
Legislature. One department is just as
representative as the other, and the judiciary is
the department which is charged with the
special duty of determining the limitations which
the law places upon all official action. The
recognition of this principle, unknown except in
Great Britain and America, is necessary, to 'the
end that the government may be one of laws
and not men' — words which Webster said were
the greatest contained in any written
constitutional document." (pp. 411, 417;
emphasis supplied.)
In short, the term "political question" connotes, in
legal parlance, what it means in ordinary parlance, namely, a
question of policy. In other words, in the language of Corpus
Juris Secundum (supra), it refers to "those questions which,
under the Constitution, are to be decided by the people in their
sovereign capacity, or in regard to whichfull discretionary
authority has been delegated to the Legislature or executive
branch of the Government." It is concerned with issues
dependent upon the wisdom, not legality, of a particular
measure.
Such is not the nature of the question for
determination in the present case. Here, we are called upon to
decide whether the election of Senators Cuenco and Delgado,
by the Senate, as members of the Senate Electoral Tribunal,
upon nomination by Senator Primicias — a member and
spokesman of the party having the largest number of votes in
the Senate — on behalf of its Committee on Rules, contravenes
the constitutional mandate that said members of the Senate
Electoral Tribunal shall be chosen "upon nomination . . . of the
party having the second largest number of votes" in the Senate,
and hence, is null and void. This is not a political question. The
Senate is not clothed with "full discretionary authority" in the
choice of members of the Senate Electoral Tribunal. The
exercise of its power thereon is subject to constitutional
limitations which are claimed to be mandatory in nature. It is
clearly within the legitimate province of the judicial department
to pass upon the validity of the proceedings in connection
therewith.
". . . whether an election of public
officers has been in accordance with law is for
the judiciary. Moreover, where the legislative
department has by statute prescribed election
procedure in a given situation, the
judiciary may determine whether a particular
election has been in conformity with such
statute, and, particularly, whether such statute
 has been applied in a way to deny or transgress
on constitutional or statutory rights . . ." (16 C. J.
S., 439; emphasis supplied.)
It is, therefore, our opinion that we have, not only
jurisdiction, but, also, the duty, to consider and determine the
principal issue raised by the parties herein.
II. Is the election of Senators Cuenco and Delgado, by
the Senate, as members of the Electoral Tribunal, valid and
lawful?
Section 11 of Article VI of the Constitution, reads:
"The Senate and the House of
Representatives shall each have an Electoral
Tribunal which shall be the sole judge of all
contests relating to the election, returns, and
qualifications of their respective Members. Each
Electoral Tribunal shall be composed of nine
Members, three of whom shall be Justices of the
Supreme Court to be designated by the Chief
Justice, and the remaining six shall be Members
of the Senate or of the House of
Representatives, as the case may be,
who shall be chosen by each House, three upon
nomination of the party having the largest
number of votes and three of the party having
the second largest number of votes therein. The
Senior Justice in each Electoral Tribunal shall be
its Chairman." (Emphasis supplied.)
It appears that on February 22, 1956, as well as at
present, the Senate of the Philippines consists of twenty-three
(23) members of the Nacionalista Party and one (1) member of
the Citizens Party, namely, Senator Tañada, who is, also, the
president of said party. In the session of the Senate held on
February 21, 1956, Senator Sabido moved that Senator Tañada,
"the President of the Citizens Party, be given the privilege to
nominate . . . three (3) members" of the Senate Electoral
Tribunal (Congressional Record for the Senate, Vol. III, pp. 328-
329), referring to those who, according to the provision above-
quoted, should be nominated by "the party having the second
largest number of votes" in the Senate. Senator Tañada
objected formally to this motion upon the ground: (a) that the
right to nominate said members of the Senate Electoral Tribunal
belongs, not to the Nacionalista Party — of which Senator
Sabido and the other Senators are members — but to the
Citizens Party, as the one having the second largest number of
votes in the Senate, so that, being devoid of authority to
nominate the aforementioned members of said Tribunal, the
Nacionalista Party cannot give it to the Citizens Party, which,
already, has such authority, pursuant to the Constitution; and
(b) that Senator Sabido's motion would compel Senator Tañada
to nominate three (3) Senators to said Tribunal, although as
representative of the minority party in the Senate he has "the
right to nominate one, two or three to the Electoral Tribunal,"
in his discretion. Senator Tañada further stated that he reserved
the right to determine how many he would nominate, after
hearing the reasons of Senator Sabido in support of his motion.
After some discussion, in which Senators Primicias, Cea, Lim,
Sumulong, Zulueta, and Rodrigo took part, the Senate
adjourned until the next morning, February 22, 1956 (Do., do.,
pp. 329, 330, 332-333, 336, 338, 339, 343).
Then, said issues were debated upon more extensively,
with Senator Sumulong, not only seconding the opposition of
Senator Tañada, but, also, maintaining that "Senator Tañada
should nominate only one" member of the Senate, namely,
himself, he being the only Senator who belongs to the minority
party in said House (Do., do., pp. 360-364, 369). Thus, a new
issue was raised — whether or not one who does not belong to
said party may be nominated by its spokesman, Senator Tañada
— on which Senators Paredes, Pelaez, Rosales and Laurel, as
well as the other Senators already mentioned, expressed their
views (Do., do., pp. 345, 349, 350, 354, 358, 364, 375). Although
the deliberations of the Senate consumed the whole morning
and afternoon of February 22, 1956, a satisfactory solution of
the question before the Senate appeared to be remote. So, at
7:40 p. m., the meeting was suspended, on motion of Senator
Laurel, with a view to seeking a compromise formula (Do., do.,
pp. 377). When session was resumed at 8:10 p. m., Senator
Sabido withdrew his motion above referred to. Thereupon,
Senator Primicias, on behalf of the Nacionalista Party,
nominated, and the Senate elected, Senators Laurel, Lopez and
Primicias, as members of the Senate Electoral Tribunal.
Subsequently, Senator Tañada stated:
"On behalf of the Citizens Party, the
minority party in this Body, I nominate the only
Citizens Party member in this Body, and that is
Senator Lorenzo M. Tañada."
Without any objection, this nomination was approved
by the House. Then, Senator Primicias stood up and said:
"Now, Mr. President, in order to
comply with the provision in the Constitution,
the Committee on Rules of the Senate — and I
am now making this proposal not on behalf of
the Nacionalista Party but on behalf of the
Committee on Rules of the Senate — I nominate
two other members to complete the
membership of the Tribunal: Senators Delgado
and Cuenco."
What took place thereafter appears in the following
quotations from the Congressional Record for the Senate.
"SENATOR TAÑADA. Mr. President.
"EL PRESIDENTE INTERINO. Caballero
de Quezon.
SENATOR TAÑADA. I would like to
record my opposition to the nominations of the
last two named gentlemen, Senators Delgado
and Cuenco, not because I don't believe that
they do not deserve to be appointed to the
tribunal but because of my sincere and firm
conviction that these additional nominations
are not sanctioned by the Constitution.The
Constitution only permits the Nacionalista Party
or the party having the largest number of votes
to nominate three.
"SENATOR SUMULONG. Mr. President.
"EL PRESIDENTE INTERINO. Caballero
de Rizal.
"SENATOR SUMULONG. For the
reasons that I have stated a few moments ago
when I took the floor, I also wish to record my
objection to the last nominations, to the
nomination of two additional NP's to the
Electoral Tribunal.
EL PRESIDENTE INTERINO. Esta
dispuesto el Senado a votar? (Varios Senadores:
Si.) Los que esten conformes con la nominacion
hecha por el Presidente del Comite de
Reglamentos a favor de los Senadores Delgado y
Cuenco para ser miembros del Tribunal
 Electoral, digan, si. (Varios Senodores: Si.) Los
que no lo esten digan, no (Silencio.)Queda
aprobada." (Congressional Record for the
Senate, Vol. III, p. 377; italics supplied.)
Petitioners maintain that said nomination and election
of Senators Cuenco and Delgado — who belong to the
Nacionalista Party — as members of the Senate Electoral
Tribunal, are null and void and have been made without power
or color of authority, for, after the nomination by said party,
and the election by the Senate, of Senators Laurel, Lopez and
Primicias, as members of said Tribunal, the other Senators, who
shall be members thereof, must necessarily be nominated by
the party having the second largest number of votes in the
Senate, and such party is, admittedly, the Citizens Party, to
which Senator Tañada belongs and which he represents.
Respondents allege, however, that the constitutional
mandate to the effect that "each Electoral Tribunal shall be
composed of nine (9) members," six (6) of whom "shall be
members of the Senate or of the House of Representatives, as
the case may be", is mandatory; that when — after the
nomination of three (3) Senators by the majority party, and
their election by the Senate, as members of the Senate
Electoral Tribunal — Senator Tañada nominated himself only,
on behalf of the minority party, he thereby "waived his right to
nominate two more Senators;" that, when Senator Primicias
nominated Senators Cuenco and Delgado, and these
respondents were chosen by the Senate, as members of the
Senate Electoral Tribunal, said Senator Primicias and the Senate
merely complied with the aforementioned provision of the
fundamental law, relative to the number of members of the
Senate Electoral Tribunal; and, that, accordingly, Senators
Cuenco and Delgado are de jure members of said body, and the
appointment of their co-respondents, Alfredo Cruz, Catalina
Cayetano, Manuel Serapio and Placido Reyes, is valid and
lawful.
At the outset, it will be recalled that the proceedings
for the organization of the Senate Electoral Tribunal began with
a motion of Senator Sabido to the effect that "the distinguished
gentleman from Quezon, the President of the Citizens Party, be
given the privilege to nominate the three Members" of said
Tribunal. Senator Primicias inquired why the movant had used
the word "privilege". Senator Sabido explained that the present
composition of the Senate had created a condition or situation
which was not anticipated by the framers of our Constitution;
that although Senator Tañada formed part of the Nacionalista
Party before the end of 1955, he subsequently "parted ways
with" said party; and that Senator Tañada "is the distinguished
president of the Citizens Party," which "approximates the
situation desired by the framers of the Constitution"
(Congressional Record for the Senate Vol. III, pp. 329-330). Then
Senator Lim intervened, stating:
"At present Senator Tañada is
considered as forming the only minority or the
one that has the second largest number of votes
in the existing Senate, is not that right? And if
this is so, he should be given this as a matter of
right, not as a matter of privilege. . . . I don't
believe that we should be allowed to grant this
authority to Senator Tañada only as a privilege
but we must grant it as a matter of right." (Id.,
id., p. 332; emphasis supplied.)
Similarly, Senator Sumulong maintained that "Senator
Tañada, as Citizens Party Senator, has the right and not a mere
privilege to nominate," adding that:
". . . the question is whether we have a
party here having the second largest number of
votes, and it is clear in my mind that there is
such a party, and that is the Citizens Party to
which the gentleman from Quezon belongs. . . .
We have to bear in mind, . . . that when Senator
Tañada was included in the Nacionalista Party
ticket in 1953 it was by virtue of a coalition or an
alliance between the Citizens Party and the
Nacionalista Party at that time, and I maintain
that when Senator Tañada as head of the
Citizens Party entered into a coalition with the
Nacionalista Party, he did not thereby become a
Nacionalista because that was a mere coalition,
not a fusion. When the Citizens Party entered
into a mere coalition, that party did not lose its
personality as a party separate and distinct from
the Nacionalista. Party. And we should also
remember that the certificate of candidacy filed
by Senator Tañada in the 1953 election was one
to the effect that he belonged to the Citizens
Party . . .." (Id., id., p. 360; emphasis supplied.)
The debate was closed by Senator Laurel, who
remarked, referring to Senator Tañada:
". . . there is no doubt that he does not
belong to the majority in the first place, and
that, therefore, he belongs to the minority. And
whether we like it or not, that, is the reality of
the actual situation — that he is not a
Nacionalista now, that he is the head and the
representative of the Citizens Party. I think that
on equitable ground and from the point of view
of public opinion, his situation . . . approximates
or approaches what is within the spirit of
that Constitution. . . . and from the point of view
of the spirit of the Constitution it would be a
good thing if we grant the opportunity to
Senator Tañada to help us in the organization of
this Electoral Tribunal . . .." (Id., id., p. 376;
emphasis supplied.)
The foregoing statements and the fact that, thereafter,
Senator Sabido withdrew his motion to grant Senator Tañada
the "privilege" to nominate, and said petitioner actually
nominated himself "on behalf of the Citizens Party, the minority
party in this Body" — not only without any
objection whatsoever, but, also, with the approval of the
Senate — leave no room for doubt that the Senate has
regarded the Citizens Party, represented by Senator Tañada, as
the party having the second largest number of votes in said
House.
Referring, now, to the contention of respondents
herein, their main argument in support of the mandatory
character of the constitutional provision relative to the number
of members of the Senate Electoral Tribunal is that the word
"shall", therein used, is imperative in nature and that this is
borne out by an opinion of the Secretary of Justice dated
February 1, 1939, pertinent parts of which are quoted at the
footnote. 6
Regardless of the respect due its author, as a
distinguished citizen and public official, said opinion has little, if
any, weight in the solution of the question before this Court, for
the "practical construction of a Constitution is of little, if any,
unless it has been uniform . . .." 6a Again, "as a general rule, it is
only in cases of substantial doubt and ambiguity that the
doctrine of contemporaneous or practical construction has any
application". As a consequence, "where the meaning of a
constitutional provision is clear, a contemporaneous or practical
. . . executive interpretation thereof is entitled to no weight, and
will not be allowed to distort or in any way change its natural
meaning." The reason is that "the application of the doctrine of
contemporaneous construction is more restricted as applied to
the interpretation of constitutional provisions than when
applied to statutory provisions", and that, "except as to matters
committed by the Constitution itself to the discretion of some
other department, contemporary or practical construction
is not necessarily binding upon the courts, even in a doubtful
case." Hence, "if in the judgment of the court, such construction
is erroneous and its further application is not made imperative
by any paramount considerations of public policy, it may be
rejected." (16 C. J. S., 71-72; italics supplied.) 6b
The aforementioned opinion of the Secretary of Justice
is not backed up by a "uniform" application of the view therein
adopted, so essential to give thereto the weight accorded by
the rules on contemporaneous constructions. Moreover, said
opinion tends to change the natural meaning of section 11 of
Article VI of the Constitution, which is clear. What is more,
there is not the slightest doubt in our mind that the purpose
and spirit of said provisions do not warrant said change and
that the rejection of the latter is demanded by paramount
considerations of public policy.
The flaw in the position taken in said opinion and by
respondents herein is that, while, it relies upon the compulsory
nature of the word "shall", as regards the numberof members
of the Electoral Tribunals, it ignores the fact that the same term
is used with respect to the method prescribed for their election,
and that both form part of asingle sentence and must
be considered, therefore, as integral portions of one and the
same thought. Indeed, respondents have not even tried to
show — and we cannot conceive — why "shall" must be
deemed mandatory insofar as the number of members of each
Electoral Tribunal, and should be considered directory as
regards theprocedure for their selection. More important still,
the history of section 11 of Article VI of the Constitution and the
records of the Convention, refute respondents' pretense, and
back up the theory of petitioners herein.
Commenting on the frame of mind of the delegates to
the Constitutional Convention, when they faced the task of
providing for the adjudication of contests relating to the
election, returns and qualifications of members of the
Legislative Department, Dr. Jose M. Aruego, a member of said
Convention, says:
"The experience of the Filipino people
under the provisions of the organic laws which
left to the lawmaking body the determination of
the elections, returns, and qualifications of its
members was not altogether satisfactory. There
were many complaints against the lack of
political justice in this determination; for in a
great number of cases, party interests
controlled and dictated the decisions. The undue
delay in the dispatch of election contests for
legislative seats, the irregularities that
characterized the proceedings in some of them,
and the very apparent injection of
partisanship in the determination of a great
number of the cases were decried by a great
number of the people as well as by the organs of
public opinion.
"The faith of the people in the
uprightness of the lawmaking body in the
performance of this function assigned to it in
the organic laws was by no means great. In
fact so blatant was the lack of political justice in
the decisions that there was gradually built up a
camp of thought in the Philippines inclined to
leave to the courts the determination of
election contests, following the practice in some
countries, like England and Canada.
"Such were the conditions of things at
the time of the meeting of the convention." (The
Framing of the Philippine Constitution by
Aruego, Vol. I, pp. 257-258; emphasis supplied.)
This view is shared by distinguished members of the
Senate. Thus, in its session of February 22, 1956, Senator
Sumulong declared:
". . . when you leave it to either House
to decide election protests involving its own
members, that is virtually placing the majority
party in a position to dictate the decision in
those election cases, because each House will
be composed of a majority and a minority, and
when you make each House the judge of every
election protest involving any member of that
House, you place the majority in a position to
dominate and dictate the decision in the case
and result was, there were so many abuses,
there were so many injustices committed by the
majority at the expense and to the prejudice of
the minority protestants. Statements have been
made here that justice was done even under the
old system, like that case involving Senator
Mabanag, when he almost became a victim of
the majority when he had an election case, and
it was only through the intervention of
President Quezon that he was saved from
becoming the victim of majority injustices.
"It is true that justice
had sometimes prevailed under the old
system, but the record will show that those
cases were few and they were the rare
exceptions. The overwhelming majority of
election protests decided under the old system
was that the majority being then in a position to
dictate the decision in the election protest, was
tempted to commit as it did commit many
abuses and injustices." (Congressional Record
for the Senate, Vol. III, p. 361; emphasis
supplied.)
Senator Paredes, a veteran legislator and former
Speaker of the House of Representatives, said:
". . . what was intended in the creation
of the electoral tribunal was to create a sort of
collegiate court composed of nine members:
three of them belonging to the party having the
largest number of votes, and three from the
party having the second largest number of votes
so that these members may represent the party,
and the members of said party who will sit
before the electoral tribunal as protestees.
For when it comes to a party, Mr. President,
there is ground to believe that decisions will be
made along party lines." (Congressional Record
for the Senate, Vol. III, p. 351; emphasis
supplied.)
 Senator Laurel, who played an important role in the
framing of our Constitution, expressed himself as follows:
"Now, with reference to the protests or
contests relating to the election, the returns and
the qualifications of the members of the
legislative bodies, I heard it said here correctly
that there was a time when that was given to
the corresponding chamber of the legislative
department. So the election, returns and
qualifications of the members of the Congress
or legislative body was entrusted to that body
itself as the exclusive body to determine the
election, returns and qualifications of its
members. There was some doubt also expressed
as to whether that should continue or not, and
the greatest argument in favor of the retention
of that provision was the fact that was, among
other things, the system obtaining in the United
States under the Federal Constitution of the
United States, and there was no reason why
that power or that right vested in the legislative
body should not be retained. But it was thought
that would make the determination of this
contest, of this election protest, purely
political as has been observed in the past."
(Congressional Record for the Senate, Vol. III, p.
376; emphasis supplied.)
It is interesting to note that not one of the members of
the Senate contested the accuracy of the views thus expressed.
Referring particularly to the philosophy underlying the
constitutional provision quoted above, Dr. Aruego states:
"The defense of the Electoral
Commission was based primarily upon the hope
and belief that the abolition of party lines
because of the equal representation in this body
of the majority and the minority parties of the
National Assembly and the intervention of some
members of the Supreme Court who, under the
proposed constitutional provision, would also be
members of the same, would insure greater
political justice in the determination of election
contests for seats in the National Assembly than
there would be if the power had been lodged in
the lawmaking body itself. Delegate Francisco
summarized the arguments for the creation of
the Electoral Commission in the following
words:
"I understand that from the time that
this question is placed in the hands of members
not only of the majority party but also of the
minority party, there is already a condition, a
factor which would make protests decided in a
non-partisan manner. We know from
experience that many times in the many
protests tried in the House or in the Senate, it
was impossible to prevent the factor of party
from getting in. From the moment that it is
required that not only the majority but also the
minority should intervene in these questions, we
have already enough guarantee that there
would be no tyranny on the part of the majority.
'But there is another more detail which
is the one which satisfies me most, and that is
the intervention of three justices. So that with
this intervention of three justices if there would
be any question as to the justice applied by the
majority or the minority, if there would be any
fundamental disagreement, or if there would be
nothing but questions purely of party in which
the members of the majority as well as those of
the minority should wish to take lightly a protest
because the protestant belongs to one of said
parties, we have in this case, as a check upon
the two parties, the actuations of the three
justices. In the last analysis, what is really
applied in the determination of electoral cases
brought before the tribunals of justice or before
the House of Representatives or the Senate?
Well, it is nothing more than the law and the
doctrine of the Supreme Court. If that is the
case, there will be greater skill in the application
of the laws and in the application of doctrines to
electoral matters having as we shall have three
justices who will act impartially in these
electoral questions.
'I wish to call the attention of my
distinguished colleagues to the fact that in
electoral protests it is impossible to set aside
party interests. Hence, the best guarantee, I
repeat, for the administration of justice to the
parties, for the fact that the laws will not be
applied improperly or incorrectly as well as for
the fact that the doctrines of the Supreme Court
will be applied rightfully, the best guarantee
which we shall have, I repeat, is the intervention
of the three justices. And with the formation of
the Electoral Commission, I say again, the
protestants as well as the protestees could
remain tranquil in the certainty that they will
receive the justice that they really deserve. If we
eliminate from this precept the intervention of
the party of the minority and that of the three
justices, then we shall be placing protests
exclusively in the hands of the party in power.
And I understand, gentlemen, that in practice
that has not given good results. Many have
criticized, many have complained against, the
tyranny of the majority in electoral cases . . .. I
repeat that the best guarantee lies in the fact
that these questions will be judged not only by
three members of the majority but also by three
members of the minority, with the additional
guarantee of the impartial judgment of three
justices of the Supreme Court." (The Framing of
the Philippine Constitution by Aruego, Vol. I, pp.
261-263; emphasis supplied.)
The foregoing was corroborated by Senator Laurel.
Speaking for this Court, in Angara vs. Electoral Commission (63
Phil., 139), he asserted:
"The members of the Constitutional
Convention who framed our fundamental law
were in their majority men mature in years and
experience. To be sure, many of them were
familiar with the history and political
development of other countries of the world.
When, therefore, they deemed it wise to create
an Electoral Commission as a constitutional
organ and invested it with the exclusive function
 of passing upon and determining the election,
returns and qualifications of the members of the
National Assembly, they must have done so not
only in the light of their own experience but also
having in view the experience of other
enlightened peoples of the world. The creation
of the Electoral Commission was designed to
remedy certain evils of which the framers of our
Constitution were cognizant. Notwithstanding
the vigorous opposition of some members of
the Convention to its creation, the plan, as
hereinabove stated, was approved by that body
by a vote of 98 against 58. All that can be said
now is that, upon the approval of the
Constitution, the creation of the Electoral
Commission is the expression of the wisdom
'ultimate justice of the people.' (Abraham
Lincoln, First Inaugural Address, March 4, 1861.)
"From the deliberations of our
Constitutional Convention it is evident that the
purpose was to transfer in its totality all the
powers previously exercised by the legislature in
matters pertaining to contested elections of its
members, to an independent and impartial
tribunal. It was not so much the knowledge and
appreciation of contemporary constitutional
precedents, however, as the long-felt need
of determining legislative contests devoid of
partisan considerations which prompted the
people acting through their delegates to the
Convention, to provide for this body known as
the Electoral Commission. With this end in view,
a composite body in which both the majority
and minority parties are equally represented
to off-set partisan influence in its deliberations
was created, and further endowed with judicial
temper by including in its membership three
justices of the Supreme Court. (Pp. 174-175.) 7
As a matter of fact, during the deliberations of the
convention, Delegates Conejero and Roxas said:
"El Sr. CONEJERO. Antes de votarse la
enmienda, quisiera pedir informacion del
Subcomite de Siete.
"El Sr. PRESIDENTE. Que dice el
Comite?
"El Sr. ROXAS. Con mucho gusto.
"El Sr. CONEJERO. Tal como esta
el draft, dando tres miembros a la mayoria, y
otros tres a la minoria y tres a la Corte
Suprema, no cree su Señoria que este equivale
practicamente a dejar el asunto a los miembros
del Tribunal Supremo?
"El Sr. ROXAS. Si y no. Creemos que si el
tribunal a la Comision esta constituido en esa
forma, tanto los miembros de la mayoria como
los de la minoria asi como los miembros de la
Corte Suprema consideraran la cuestion sobre la
base de sus meritos, sabiendo que el partidismo
no es suficiente para dar el triunfo.
"El Sr. CONEJERO. Cree Su Señoria que
en un caso como ese, podriamos hacer que
tanto los de la mayoria como los de la minoria
prescindieran del partidismo?
"El Sr. ROXAS. Creo que si, porque el
partidismo no les daria el triunfo." (Angara vs.
Electoral Commission, supra, pp. 168-169;
emphasis supplied.)
It is clear from the foregoing that the main objective of
the framers of our Constitution in providing for the
establishment, first, of an Electoral Commission, 8 and then 9of
one Electoral Tribunal for each House of Congress, was to
insure the exercise of judicial impartiality in the disposition of
election contests affecting members of the law making body. To
achieve this purpose, two devices were resorted to, namely: (a)
the party having the largest number of votes, and the party
having the second largest number of votes, in the National
Assembly or in each House of Congress, were given the same
number of representatives in the Electoral Commission or
Tribunal, so that they may realize that partisan considerations
could not control the adjudication of said cases, and thus be
induced to act with greater impartiality; and (b) the Supreme
Court was given in said body the same number of
representatives as each one of said political parties, so that the
influence of the former may be decisive and endow said
Commission or Tribunal with judicial temper.
This is obvious from the very language of the
constitutional provision under consideration. In fact, Senator
Sabido — who had moved to grant to Senator Tañada the
"privilege" to make the nominations on behalf of the party
having the second largest number of votes in the Senate —
agrees with it. As Senator Sumulong inquired:
". . . I suppose Your Honor will agree
with me that the framers of the
Constitution precisely thought of creating this
Electoral Tribunal so as to prevent the majority
from ever having a preponderant majority in the
Tribunal." (Congressional Record for the Senate,
Vol. III, p. 330; emphasis supplied.)
Senator Sabido replied:
"That is so, . . .." (Id., p. 330.)
Upon further interpelation, Senator Sabido said:
". . . the purpose of the creation of the
Electoral Tribunal and of its composition is to
maintain a balance between the two parties and
make the members of the Supreme Court the
controlling power so to speak of the Electoral
Tribunal or hold the balance of power. That is
the ideal situation." (Congressional Record for
the Senate, Vol. III, p. 349; emphasis supplied.)
Senator Sumulong opined along the same line. His
words were:
". . . The intention is that when the
three from the majority and the three from the
minority become members of the Tribunal it is
hoped that they will become aware of their
judicial functions, not to protect the protestants
or the protestees. It is hoped that they will act
as judges because to decide election cases is a
judicial function. But the framers of the
Constitution besides being learned were men of
experience. They knew that even Senators like
us are not angels, that we are human beings,
that if we should be chosen to go to the
Electoral Tribunal no one can say that we will
entirely be free from partisan influence to
favor our party, so that in case that hope that
the three from the majority and the three from
 the minority who will act as judges should result
in disappointment, in case they do not act as
judges but they go there and vote along party
lines, still there is the guarantee that they will
offset each other and the result will be that the
deciding vote will reside in the hands of the
three Justices who have no partisan motivesto
favor either the protestees or the protestants. In
other words, the whole idea is to prevent the
majority from controlling and dictating the
decisions of the Tribunal and to make sure
that the decisive vote will be wielded not by the
Congressmen or Senators who are members of
the Tribunal but will be wielded by the Justices
who, by virtue of their judicial offices, will have
no partisan motives to serve, either protestants
or protestees. That is my understanding of the
intention of the framers of the
Constitution when they decided to create the
Electoral Tribunal.
xxx xxx xxx
"My idea is that the intention of the
framers of the constitution in creating the
Electoral Tribunal is to insure impartiality and
independence in its decision, and that is sought
to be done by never allowing the majority party
to control the Tribunal, and secondly by seeing
to it that the decisive vote in the Tribunal will be
left in the hands of persons who have no
partisan interest or motive to favor either
protestant or protestee." (Congressional Record
for the Senate, Vol. III, pp. 362-363, 365-366;
emphasis supplied.)
So important in the "balance of powers" between the
two political parties in the Electoral Tribunals, that several
members of the Senate questioned the right of the party having
the second largest number of votes in the Senate — and, hence,
of Senator Tañada, as representative of the Citizens Party — to
nominate for the Senate Electoral Tribunal any Senator not
belonging to said party. Senators Lim, Sabido, Cea and Paredes
maintained that the spirit of the Constitution would be violated
if the nominees to the Electoral Tribunals did not belong to the
parties respectively making the nominations. 10
It is not necessary, for the purpose of this decision, to
determine whether the parties having the largest, and the
second largest, number of votes in each House may nominate,
to the Electoral Tribunals, those members of Congress who do
not belong to the party nominating them. It is patent, however,
that the most vital feature of the Electoral Tribunals is the equal
representation of said parties therein, and the
resulting equilibrium to be maintained by the Justices of the
Supreme Court as members of said Tribunals. In the words of
the members of the present Senate, said feature reflects the
"intent" "purpose", and "spirit of the Constitution", pursuant to
which the Senate Electoral Tribunal should be organized
(Congressional Record for the Senate, pp. 330, 337, 348-9, 350,
351, 355, 358, 362-3, 364, 370, 376).
Now then, it is well settled that "the purpose of all
rules or maxims as to the construction or interpretation of
statutes is to discover the true intention of the law" (82 C. J. S.,
526) and that
"As a general rule of statutory
construction, the spirit or intention of a statute
prevails over the letter thereof , and whatever is
within the spirit of a statute is within the statute
although it is not within the letter thereof, while
that which is within the letter, but not within
the spirit of a statute, is not within the statute;
but, where the law is free and clear from
ambiguity, the letter of it is not to be
disregarded on the pretext of pursuing its
spirit." (82 C. J. S, 613.)
"There is no universal rule or absolute
test by which directory provisions in a statute
may in all circumstances be distinguished from
those which are mandatory. However, in the
determination of this question, as of every other
question of statutory construction, the prime
object is to ascertain the legislative intent. The
legislative intent must he obtained from all the
surrounding circumstances, and the
determination does not depend on the form of
the statute. Consideration must be given to the
entire statute, its nature, its object, and the
consequences which would result from
construing it one way or the other, and the
statute must be construed in connection with
other related statutes. Words of permissive
character may be given a mandatory
significance in order to effect the legislative
intent, and, when the terms of a statute are
such that they cannot be made effective to the
extent of giving each and all of them some
reasonable operation, without construing the
statute as mandatory, such construction should
be given; . . . On the other hand, the language of
a statute, however mandatory in form, may be
deemed directory whenever legislative purpose
can best be carried out by such construction,
and the legislative intent does not require a
mandatory construction; but the construction of
mandatory words as directory should not be
lightly adopted and never where it would in fact
make a new law instead of that passed by the
legislature. . . . Whether a statute is mandatory
or directory depends on whether the thing
directed to be done is of the essence of the thing
required, or is a mere matter of form, and what
is a matter of essence can often be determined
only by judicial construction. Accordingly, when
a particular provision of a statute relates to
some immaterial matter, as to which
compliance with the statute is a matter of
convenience rather than substance, or where
the directions of a statute are given merely with
a view to the proper, orderly, and prompt
conduct of business, it is generally regarded as
directory, unless followed by words of absolute
prohibition; and a statute is regarded as
directory where no substantial rights depend on
it, no injury can result from ignoring it, and the
purpose of the legislature can be
accomplished in a manner other than that
prescribed, with substantially the same result.
On the other hand, a provision relating to the
essence of the thing to be done, that is, to
matters of substance, is mandatory, and when a
fair interpretation of a statute, which directs
acts or proceedings to be done in a certain way,
shows that the legislature intended a
 compliance with such provision to be essential
to the validity of the act or proceeding, or when
same antecedent and prerequisite conditions
must exist prior to the exercise of power, or
must be performed before certain other powers
can be exercised, the statute must be regarded
as mandatory. (Id., pp. 869-874.) (See, also,
Words and Phrases, Vol. 26, pp. 463- 467;
emphasis supplied.)
What has been said above, relative to the conditions
antecedent to, and concomitant with, the adoption of section
11 of Article VI of the Constitution, reveals clearly that its
framers intended to prevent the majority party from controlling
the Electoral Tribunals, and that the structure thereof is
founded upon the equilibrium between the majority and the
minority parties therein, with the Justices of the Supreme
Court, who are members of said Tribunals, holding the resulting
balance of power. The procedure prescribed in said provision
for the selection of members of the Electoral Tribunals is vital to
the role they are called upon to play. It constitutes the
essence of said Tribunals. Hence, compliance with said
procedure is mandatory, and acts performed in violation
thereof are null and void. 11
It is true that the application of the foregoing criterion
would limit the membership of the Senate Electoral Tribunal, in
the case at bar, to seven (7), instead of nine (9), members; but,
it is conceded that the present composition of the Senate was
not foreseen by the framers of our Constitution (Congressional
Record for the Senate, Vol. III, pp. 329, 342, 349, 354, 359, 375).
Furthermore, the spirit of the law prevails over its letter, and
the solution herein adopted maintains the spirit of the
Constitution, for partisan considerations can not be decisive in a
tribunal consisting of three (3) Justices of the Supreme Court,
three (3) members nominated by the majority party and either
one (1) or two (2) members nominated by the party having the
second largest number of votes in the House concerned.
Upon the other hand, what would be the result of
respondents' contention if upheld? Owing to the fact that the
Citizens Party 12 has only one member in the Upper House,
Senator Tañada felt he should nominate, for the Senate
Electoral Tribunal, only said member of the Citizens Party. The
same is, thus, numerically handicapped, vis-a-vis the majority
party, in said Tribunal. Obviously, Senator Tañada did not
nominate other two Senators, because, otherwise, he would
worsen the already disadvantageous position, therein, of the
Citizens Party. Indeed, by the aforementioned nomination and
election of Senators Cuenco and Delgado, if the same were
sanctioned, the Nacionalista Party would have five (5) members
in the Senate Electoral Tribunal, as against one (1) member of
the Citizens Party and three members of the Supreme Court.
With the absolute majority thereby attained by the majority
party in said Tribunal, the philosophy underlying the same
would be entirely upset. The equilibrium between the political
parties therein would be destroyed. What is worst, the decisive
moderating role of the Justices of the Supreme Court would be
wiped out, and, in lieu thereof, the door would be thrown wide
open for the predominance of political considerations in the
determination of election protests pending before said
Tribunal, which is precisely what the fathers of
our Constitution earnestly strove to forestall. 13
This does not imply that the honesty, integrity or
impartiality of Senators Cuenco and Delgado are being
questioned. As a matter of fact, when Senator Tañada objected
to their nomination, he explicitly made of record that his
opposition was based, not upon their character, but upon the
principle involved. When the election of members of Congress
to the Electoral Tribunal is made dependent upon the
nomination of the political parties above referred to, the
Constitution thereby indicates its reliance upon themethod of
selection thus established, regardless of the individual qualities
of those chosen therefor. Considering the wealth of experience
of the delegates to the Convention, all lawyers of great note, as
veteran politicians and as leaders in other fields of endeavor,
they could not, and did not, ignore the fact that the
Constitution must limit itself to giving general patterns or
norms of action. In connection, particularly, with the
composition of the Electoral Tribunals, they believed that, even
the most well meaning individuals often find it difficult to shake
off the bias and prejudice created by political antagonisms and
to resist the demands of political exigencies, the pressure of
which is bound to increase in proportion to the degree of
predominance of the party from which it comes. As above
stated, this was confirmed by distinguished members of the
present Senate. (See pp. 25-28, 33, 34, supra.)
In connection with the argument of the former
Secretary of Justice to the effect that when "there is no
minority party represented in the Assembly, the necessity for
such a check by the minority disappears", the following
observations of the petitioners herein are worthy of notice:
"Under the interpretation espoused by
the respondents, the very frauds or terrorism
committed by a party would establish the legal
basis for the final destruction of minority parties
in the Congress at least. Let us suppose, for
example, that in the Senate, the 15 or 16
senators with unexpired terms belong to the
party A. In the senatorial election to fill the
remaining 8 seats, all the 8 candidates of party A
are proclaimed elected through alleged fraud
and/or terrorism. (The ouster of not less than 3
senators-elect in the elections held since
liberation attests to the reality of election frauds
and terrorism in our country.) There being no
senator or only one senator belonging to the
minority, who would sit in judgment on the
election candidates of the minority parties?
According to the contention of the respondents,
it would be a Senate Electoral Tribunal made up
of three Supreme Court Justices and 5 or 6
members of the same party A accused of fraud
and terrorism. Most respectfully, we pray this
Honorable Court to reject an interpretation that
would make of a democratic constitution the
very instrument by which a corrupt and ruthless
party could intrench itself in power in the
legislature and thus destroy democracy in the
Philippines.
xxx xxx xxx
". . . When there are no electoral
protests filed by the minority party, or when the
only electoral protests filed are by candidates of
the majority against members-elect of the same
majority party, there might be no objection to
the statement. But if electoral protests are filed
by candidate of the minority party, it is at this
point that a need for a check on the majority
party is greatest, and contrary to the
observation made in the above-quoted opinion,
such a check is a function that cannot be
 successfully exercised by the 3 Justices of the
Supreme Court, for the obvious and simple
reason that they could easily be outvoted by the
6 members of the majority party in the Tribunal.
xxx xxx xxx
"In the case of the cited opinion of
Secretary Abad Santos rendered in 1939, it did
not appear that there were minority party
candidates who were adversely affected by the
ruling of the Secretary of Justice and who could
have brought a test case to court." (Emphasis
supplied.)
The defenses of waiver and estoppel set up against
petitioner Tañada are untenable. Although "an individual may
waive constitutional provisions intended for his benefit",
particularly those meant for the protection of his property, and,
sometimes, even those tending "to secure his personal liberty",
the power to waive does not exist when "public policy or public
morals" are involved. (11 Am. Jur. 765; I Cooley's Constitutional
Limitations, pp. 368-371). The procedure outlined in the
Constitution for the organization of the Electoral Tribunals was
adopted in response to the demands of the common weal, and
it has been held that "where a statute is founded on public
policy, those to whom it applies should not be permitted to
waive its provisions" (82 C. J. S., 874). Besides, there can be no
waiver without an intent to such effect, which Senator Tañada
did not have. Again, the alleged waiver or exhaustion of his
rights does not justify the exercise thereof by a person or party
other than that to which it is vested exclusively by the
Constitution.
The rule on estoppel is that "whenever a party has, by
his declaration, act or omissions, intentionally and deliberately
led another to believe a particular thing true, and to act upon
such belief, he cannot, in a litigation arising out of such
declaration, act or omission, be permitted to falsify it" (Rule 68,
sec. 68 [a], Rules of Court). In the case at bar, petitioner Senator
Tañada did not lead the Senate to believe that Senator Primicias
could nominate Senators Cuenco and Delgado. On the contrary,
said petitioner repeatedly asserted that his was the exclusive
right to make the nomination. He, likewise, specifically
contested said nomination of Senators Cuenco and Delgado.
Again, the rule on estoppel applies to questions of fact, not of
law, about the truth of which the other party is ignorant (see
Moran's Comments on the Rules of Court, Vol. 3, pp. 490, 495).
Such is not the nature of the situation that confronted Senator
Tañada and the other members of the Senate. Lastly, the case
of Zandueta vs. De la Costa (66 Phil., 615), cited by respondents,
is not in point. Judge Zandueta assumed office by virtue of an
appointment, the legality of which he later on assailed. In the
case at bar, the nomination and election of Senator Tañada as
member of the Senate Electoral Tribunal was separate, distinct
and independent from the nomination and election of Senators
Cuenco and Delgado.
In view of the foregoing, we hold that the Senate may
not elect, as members of the Senate Electoral Tribunal, those
Senators who have not been nominated by the political parties
specified in the Constitution; that the party having the largest
number of votes in the Senate may nominate not more than
three (3) members thereof to said Electoral Tribunal; that the
party having the second largest number of votes in the Senate
has the exclusive right to nominate the other three (3) Senators
who shall sit as members in the Electoral Tribunal; that neither
these three (3) Senators, nor any of them, may be nominated
by a person or party other than the one having the second
largest number of votes in the Senate or its representative
therein; that the Committee on Rules for the Senate has no
standing to validly make such nomination and that the
nomination of Senators Cuenco and Delgado by Senator
Primicias, and the election of said respondents by the Senate,
as members of said Tribunal, are null and void ab initio.
As regards respondents Alfredo Cruz, Catalina
Cayetano, Manuel Serapio and Placido Reyes, we are not
prepared to hold, however, that their appointments were null
and void. Although recommended by Senators Cuenco and
Delgado, who are not lawful members of the Senate Electoral
Tribunal, they were appointed by its Chairman, presumably,
with the consent of the majority of the de jure members of said
body 14 or, pursuant to the Rules thereof. At any rate, as held
in Suanes vs. Chief Accountant(supra), the selection of its
personnel is an internal matter falling within the jurisdiction
and control of said body, and there is every reason to believe
that it will, hereafter, take appropriate measures, in relation to
the four (4) respondents abovementioned, conformably with
the spirit of the Constitution and of the decision in the case at
bar.
Wherefore, judgment is hereby rendered declaring
that respondents Senators Mariano Jesus Cuenco and Francisco
A. Delgado have not been duly elected as Members of the
Senate Electoral Tribunal, that they are not entitled to act as
such and that they should be, as they are hereby, enjoined from
exercising the powers and duties of Members of said Electoral
Tribunal and from acting in such capacity in connection with
Senate Electoral Case No. 4 thereof. With the qualification
stated above, the petition is dismissed, as regards respondents
Alfredo Cruz, Catalina Cayetano, Manuel Serapio and Placido
Reyes. Without special pronouncement as to costs. It is so
ordered.
Bengzon, Padilla, Montemayor, Reyes, A., Bautista
Angelo, Reyes, J. B. L. and Felix, JJ., concur.
Separate Opinions
PARAS, C.J., dissenting:
In 1939, Section (4) of Article VI of the Philippine
Constitution provided that "There shall be an Electoral
Commission composed of three Justices of the Supreme Court
designated by the Chief Justice, and of six members chosen by
the National Assembly, three of whom shall be nominated by
the party having the largest number of votes, and three by the
party having the second largest number of votes therein." As all
the members of the National Assembly then belonged to the
Nacionalista Party and a belief arose that it was impossible to
comply with the constitutional requirement that three
members of the Electoral Commission should be nominated by
the party having the second largest number of votes, the
opinion of the Secretary of Justice was sought on the proper
interpretation of the constitutional provision involved.
Secretary of Justice Jose A. Santos accordingly rendered the
following opinion:
"Sir:
"I have the honor to acknowledge the
receipt of your letter of January 24, 1939, thru
the office of His Excellency, the President, in
which you request my opinion as 'to the proper
interpretation of the following provision of
Section (4) of Article VI of the Philippine
Constitution':
'There shall be an Electoral Commission
composed of three Justices of the Supreme
Court designated by the Chief Justice, and of six
members chosen by the National Assembly,
three of whom shall be nominated by the party
having the largest number of voter, and three by
the party having the second largest number of
votes therein.'
"You state that 'as all the members of
the present National Assembly belong to the
Nacionalista Party, it is impossible to comply
with the last part of the provision which
requires that three members shall be nominated
by the party having the second largest number
of votes in the Assembly.'
"The main features of the
constitutional provision in question are: (1) that
there shall be an Electoral Commission
composed of three Justices of the Supreme
Court designated by the Chief Justice, and of six
members chosen by the National Assembly; and
that (2) of the six members to be chosen by the
National Assembly, three shall be nominated by
the party having the largest number of votes
and three by the party having the second largest
number of votes.
"Examining the history of the
constitutional provision, I find that in the first
two drafts it was provided that the Electoral
Commission shall be composed of 'three
memberselected by the members of the party
having the largest number of votes,
three elected by the members of the party
having the second largest number of votes, and
three justices of the Supreme Court . . . (Aruego,
The Framing of the Phil. Const., pp. 260-261).
But as finally adopted by the Convention, the
Constitution explicitly states that there shall be
'six members chosen by the National Assembly,
three of whom shall be nominated by the party
having the largest number of votes, and three
by the party having the second largest number
of votes' (Aruego, The Framing of the Phil.
Const., pp. 271-272).
"From the foregoing changes in the
phraseology of the provision, it is evident that
the intention of the framers of
our Constitution was that there should
invariably be six members from the National
Assembly. It was also intended to create a non-
partisan body to decide any partisan contest
that may be brought before the Commission.
The primary object was to avoid decision based
chiefly if not exclusively on partisan
considerations.
"The procedure or manner of
nomination cannot possibly affect the
constitutional mandate that the Assembly is
entitled to six members in the Electoral
Commission. When for lack of a minority
representation in the Assembly the power to
nominate three minority members cannot be
exercised, it logically follows that the only party
in the Assembly may nominate three others,
otherwise the explicit mandate of the
Constitution that there shall be six members
from the National Assembly would be nullified.
"In other words, fluctuations in the
total membership of the Commission were not
and could not have been intended. We cannot
say that the Commission should have nine
members during one legislative term and six
members during the next. Constitutional
provisions must always have a consistent
application. The membership of the Commission
is intended to be fixed and not variable and is
not dependent upon the existence or non-
existence of one or more parties in the
Assembly.
"'A cardinal rule in dealing
with Constitutions is that they should
receive a consistent and uniform
interpretation, so they shell not be
taken to mean one thing at one time
and another thing at another time,
even though the circumstances may
have so changed as to make a different
rule seem desirable (11 Am. Jur. 659).
"It is undisputed of course that the
primary purpose of the Convention in giving
representation to the minority party in the
Electoral Commission was to safeguard the
rights of the minority party and to protect their
interests, especially when the election of any
member of the minority party is protected. The
basic philosophy behind the constitutional
provision was to enable the minority party to
act as a check on the majority in the Electoral
Commission, with the members of the Supreme
Court as the balancing factor. Inasmuch,
however, as there is no minority party
represented in the Assembly, the necessity for
such a check by the minority party disappears. It
is a function that is expected to be exercised by
the three Justices of the Supreme Court.
"To summarize, considering the plain
terms of the constitutional provision in
question, the changes that it has undergone
since it was first introduced until finally adopted
by the convention, as well as the considerations
that must have inspired the Constitutional
Convention in adopting it as it is, I have come to
the conclusion that the Electoral Commission
should be composed of nine members, three
from the Supreme Court and six chosen by the
National Assembly to be nominated by the party
in power, there being no other party entitled to
such nomination."
Pursuant to the foregoing opinion of February 1, 1939,
the Electoral Commission was formally organized, with six
members of the National Assembly all belonging to the same
party and three Justices of the Supreme Court. Constitutional
amendments were introduced and duly adopted in 1940, and
the Electoral Commission was replaced by an Electoral Tribunal
for each house of Congress. It is now provided that "Each
Electoral Tribunal shall be composed of nine Members, three of
whom shall be Justices of the Supreme Court to be designated
by the Chief Justice, and the remaining six shall be Members of
the Senate or of the House of Representatives, as the case may
be, who shall be chosen by each House, three upon nomination
of the party having the largest number of votes and three of the
party having the second largest number of votes therein. The
senior Justice in each Electoral Tribunal shall be its Chairman."
(Article VI, Section 11, of the Constitution.)
If there was any doubt on the matter, the same was
removed by the amendment of 1940 the framers of which may
be assumed to have been fully aware of the one-party
composition of the former National Assembly which gave rise to
the abovequoted opinion of the Secretary of Justice. When
instead of wording the amendment in such a form as to nullify
said opinion, Section 11 of Article VI of the Constitution not only
did not substantially depart from the original constitutional
provision but also positively and expressly ordains that "Each
Electoral Tribunal shall be composed of nine Members," the
intent has become clear and mandatory that at all times the
Electoral Tribunal shall have nine Members regardless of
whether or not two parties make up each house of Congress.
It is very significant that while the party having the
second largest number of votes is allowed to nominate three
Members of the Senate or of the House of Representatives, it is
not required that the nominees should belong to the same
party. Considering further that the six Members are chosen by
each house, and not by the party or parties, the conclusion is
inescapable that party affiliation is neither controlling nor
necessary.
Under the theory of the petitioners, even if there were
sufficient Members belonging to the party having the second
largest of votes, the latter may nominate less than three or
none at all; and the Chief Justice may similarly designate less
than three Justices. If not absurd, this would frustrate the
purpose of having an ideal number in the composition of the
Electoral Tribunal and guarding against the possibility of
deadlocks. It would not be accurate to argue that the Members
of the Electoral Tribunal other than the Justices of the Supreme
Court would naturally vote along purely partisan lines, checked
or fiscalized only by the votes of the Justices; otherwise
membership in the Tribunal may well be limited to the Justices
of the Supreme Court and six others who are not Members of
the Senate or of the House of Representatives. Upon the other
hand, the framers of the Constitution — not insensitive to some
such argument — still had reposed their faith and confidence in
the independence, integrity and uprightness of the Members of
each House who are to sit in the Electoral Tribunals and thereby
expected them, as does everybody, to decide jointly with the
Justices of the Supreme Court election contests exclusively
upon their merits.
In view of the failure or unwillingness of Senator
Lorenzo M. Tañada of the Citizens Party, the party having the
second largest number of votes in the Senate, to nominate two
other Members of the Electoral Tribunal, the Senate was
justified, in obedience to the constitutional mandate, to choose
— as it did — said two Members.
I vote to dismiss the petition.
Endencia, J., concurs.
LABRADOR, J., dissenting:
I dissent and herewith proceed to explain my reasons
therefor.
The constitutional provision, in pursuance of which
Senators Cuenco and Delgado were elected by the Senate
members of the Senate Electoral Tribunal is as follows:
"The Senate and the House of
Representatives shall each have an Electoral
Tribunal which shall be the sole judge of all
contests relating to the election, returns, and
qualifications of their respective Members. Each
Electoral Tribunal shall be composed of nine
Members, three of whom shall be Justices of the
Supreme Court to be designated by the Chief
Justice, and the remaining six shall be Members
of the Senate or of the House of
Representatives, as the case may be, who shall
be chosen by each House, three upon
nomination of the party having the largest
number of votes and three of the party having
the second largest number of votes therein. The
Senior Justice in each Electoral Tribunal shall be
its Chairman." (Section II, Article VI of the
Constitution.)
I hold that the above provision, just as any other
constitutional provision, is mandatory in character and that this
character is true not only of the provision that nine members
shall compose the tribunal but also that which defines the
manner in which the members shall be chosen. Such a holding
is in accord with well-settled rules of statutory construction.
"As a general proposition, there is
greater likelihood that constitutional provisions
will be given mandatory effect than is true of
any other class of organic law. Indeed, such a
construction accords with the generally
acknowledged import of constitutional fiat; that
its character is such as to require absolute
compliance in all cases without exception. And
the very principles of our institutions, involving
as they do concepts of constitutional
supremacy, are such as to form reasonable
grounds for a presumption that the framers of
a constitution intended that just such efficacy be
given to it . . .." (Sec. 5807, Sutherland Statutory
Construction, Vol. 3, p. 84.)
The majority holds that as Senator Tañada, the only
member of the Senate who does not belong to the Nacionalista
Party, has refused to exercise the constitutional privilege
afforded him to nominate the two other members, the Senate
may not elect said two other members. And the reason given
for this ruling is the presumed intention of the constitutional
provision to safeguard the interests of the minority. This
holding is subject to the following fundamental objections. In
the first place, it renders nugatory the provision which fixes the
membership of the Senate Electoral Tribunal at nine, a
provision which is admittedly a mandatory provision. In the
second place, it denies to the Senate the power that the
constitutional provision expressly grants it, i.e., that of electing
the members of the Electoral Tribunal; so in effect this right or
prerogative is lodged, as a consequence of the refusal of the
minority member to nominate, in the hands of said member of
the minority, contrary to the constitutional provision. In the
third place, it would make the supposedly procedural provision,
the process of nomination lodged in the minority party in the
Senate, superior to and paramount over the power of election,
which is lodged in the whole Senate itself. So by the ruling of
the majority, a procedural provision overrides a substantive one
and renders nugatory the other more important mandatory
provision that the Electoral Tribunal shall be composed of nine
members. In the fourth place, the majority decision has by
interpretation inserted a provision in the Constitution which the
Constitutional Convention alone had the power to introduce,
namely, a proviso to the effect that if the minority fails or
refuses to exercise its privilege to nominate all the three
members, the membership of the Electoral Tribunal shall
thereby be correspondingly reduced. This arrogation of power
by us is not justified by any rule of law or reason.
I consider the opinion of the Senate that the refusal of
Senator Tañada to nominate the two other members must be
construed as a waiver of a mere privilege, more in consonance
not only with the constitutional provision as a whole, but with
the dictates of reason. The above principle (of waiver) furnishes
the remedy by which two parts of the constitutional provision,
that which fixes membership at nine and that which outlines
the procedure in which said membership of nine may be
elected, can be reconciled. Well known is the legal principle
that provisions which in their application may nullify each other
should be reconciled to make them both effective, if the
reconciliation can be effected by the application of other legal
principles. The reconciliation is brought about in this case by
the principle of waiver.
While I agree with the majority that it is the duty of
this Court to step in, when a constitutional mandate is ignored,
to enforce said mandate even as against the other coordinate
departments, this is not the occasion for it to do so, for to say
the least it does not clearly appear that the form and manner in
which the Senate exercised its expressly recognized power to
elect its members to the Senate Electoral Tribunal has been
clearly violative of the constitutional mandate.
Senators Cuenco and Delgado not having been duly
elected as members of the Senate Electoral Tribunal, are not
entitled to act as such. Petition dismissed as regards
respondents Cruz, Cayetano, Serapio and Reyes.
Footnotes
1.Casanovas vs. Hord, 8 Phil., 125; Omo vs. Insular Gov't., 11
Phil., 67; Weigall vs. Shuster, 11 Phil., 340; Barrameda
vs. Moir, 25 Phil., 44; Hamilton vs. McGirr, 30 Phil.,
563; Compañia Gral. de Tabacos vs. Board of Public
Utility Commissioners, 34 Phil., 136; Central Capiz vs.
Ramirez, 40 Phil., 883; Concepcion vs. Paredes, 42
Phil., 599; McDaniel vs. Apacible, 42 Phil., 749;U. S. vs.
Ang Tang Ho, 43 Phil., 1; People vs. Pomar, 46 Phil.,
440; Agcaoili vs. Suguitan, 48 Phil., 676; Gov't. vs.
Springer, 50 Phil., 259; Gov't. vs. Agoncillo, 50 Phil.,
348; Gov't. vs. El Hogar Filipino, 50 Phil., 399; Manila
Electric vs. Pasay Transp., 57 Phil., 600; Angara vs.
Electoral Commission, supra; People vs. Vera, 65 Phil.,
56; Vargas vs. Rilloraza, 45 Off. Gaz., 3847;Endencia vs.
David, 49 Off. Gaz., 4822; Rutter vs. Esteban, 49 Off.
Gaz., 1807; Comm. Investment vs. Garcia, 49 Off. Gaz.,
1801; Marbury vs. Madison, 1 Cranch 137; Ex Parte
Garland, 4 Wall. 333; Hepburn vs. Griswold, 8 Wall.
603; Knox vs. Lee, 12 Wall. 457; Civil Rights Cases [U. S.
vs. M. Stanley; U. S. vs. M. Ryan, U. S. vs. S. Nichols; U.
S. vs. Singleton; Robinson vs. Menphis and Charleston
Railroad Co.], 109 U. S. 3 Pollock vs. Farmers' Loan and
Trust Co. 157 U. S. 429, 158 U. S. 601; Fairbanks vs. U.
S., 181 U. S. 286.
2.Which, insofar as pertinent to the issues in the case at bar, is
substantially identical to each of the Electoral Tribunals
under the Constitution as amended.
3.Araneta vs. Dinglasan, Barredo vs. Commission on Elections,
and Rodriguez vs. Treasurer of the Philippines, 84 Phil.,
368, 45 Off. Gaz., 4411, 4457; Nacionalista Party vs.
Bautista, 85 Phil., 101, 47 Off. Gaz., 2356; Lacson vs.
Romero, 84 Phil., 740, 47 Off. Gaz., 1778; De los Santos
vs. Mallare, 87 Phil., 289, 48 Off. Gaz., 1787; Lacson vs.
Roque, 92 Phil., 456, 49 Off. Gaz., 93; Jover Ledesma
vs. Borra, 93 Phil., 506, 49 Off. Gaz., 2765; Ramos vs.
Avelino, 97 Phil., 844, 51 Off. Gaz., 5607.
4."From the very nature of the American system of government
with Constitutions prescribing the jurisdiction and
powers of each of the three branches of government, it
has devolved on the judiciary to determine whether the
acts of the other two departments are in harmony with
the fundamental law. All the departments of the
government are unquestionably entitled and compelled
to judge of the Constitution for themselves; but, in doing
so, they act under the obligations imposed in the
instrument, and in the order of time pointed out by it.
When the judiciary has once spoken, if the acts of the
other two departments are held to be unauthorized or
despotic, in violation of the Constitution or the vested
rights of the citizen, they cease to be operative or
binding.
xxx xxx xxx
"Since the Constitution is intended for the observance of the
judiciary as well as the other departments of
government and the judges are sworn to support its
provisions, the courts are not at liberty to overlook or
disregard its commands. It is their duty in authorized
proceedings to give effect to the
existing Constitution and to obey all constitutional
provisions irrespective of their opinion as to the
wisdom of such provisions.
"In accordance with principles which are basic, the rule is
fixed that the duty in a proper case to declare a law
unconstitutional cannot be declined and must be
performed in accordance with the deliberate judgment
of the tribunal before which the validity of the
enactment is directly drawn into question. When it is
clear that a statute transgresses the authority vested in
the legislature by the Constitution, it is the duty of the
courts to declare the act unconstitutional because they
cannot shrink from it without violating their oaths of
office. This duty of the courts to maintain the
Constitution as the fundamental law of the state
is imperative and unceasing; and, as Chief Justice
Marshal said, whenever a statute is in violation of the
fundamental law, the courts must so adjudge and
thereby give effect to the Constitution. Any other
course would lead to the destruction of the
Constitution. Since the question as to the
constitutionality of a statute is a judicial matter, the
courts will not decline the exercise of jurisdiction upon
the suggestion that action might be taken by political
agencies in disregard of the judgment of the judicial
tribunals." (11 Am. Jur., pp. 712-713, 713- 715; italics
supplied.).
5.Rich vs. Board of Canvassers, 59 N. W. 183; State vs. McBride,
29 Am. Dec. 636; Collier vs. Frierson, 24 Ala. 100; State
vs. Swift, 69 Ind. 505; State vs. Timme, 11 N. W. 785;
Prohibition and Amendment Cases, 24 Kan. 700;
Kadderly vs. Portland, 74 Pac. 710; Koehler vs. Hill, 14
N. W. 738; State vs. Brockhart, 84 N. W. 1064;
University vs. McIver, 72 N. C. 76; Westinghausen vs.
People, 6 N. W. 641; State vs.Powell, 27 South, 927;
Bott vs. Wurtz, 43 Atl. 744; Rice vs. Palmer, 96 S. W.
396; State vs. Tooker, 37 Pac. 840.
6."The procedure or manner of nomination cannot possibly
affect the constitutional mandate that the Assembly is
entitled to six members in the Electoral Commission.
When for lack of a minority representation in the
 Assembly the power to nominate three minority
members cannot be exercised, it logically follows that
the only party in the Assembly may nominate three
others, otherwise the explicit mandate of the
Constitution that there shall be six members from the
National Assembly would be nullified.
"In other words, fluctuations in the total membership of the
Commission were not and could have been intended.
We cannot say that the Commission should have nine
members during one legislative term and six members
during the next. Constitutional provisions must always
have a consistent application. The membership of the
Commission is intended to be fixed and not variable
and is not dependent upon the existence or non-
existence of one or more parties in the Assembly.
'A cardinal rule in dealing with Constitutions is that
they should receive a consistent and uniform
interpretation, so they shall not be taken to
mean one thing at one time and another thing
at another time, even though the
circumstances may have so changed as to
make a different rule seem desirable (11 Am.
Jur. 659).'
"It is undisputed of course that the primary purpose of the
Convention in giving representation to the minority
party in the Electoral Commission was to safeguard the
rights of the minority party and to protect their
interests, especially when the election of any member
of the minority party is protected. The basic philosophy
behind the constitutional provision was to enable the
minority party to act as a check on the majority of the
Electoral Commission, with the members of the
Supreme Court as the balancing factor. Inasmuch,
however, as there is no minority party represented in
the Assembly, the necessity for such a check by the
minority party disappears. It is a function that is
expected to be exercised by the three Justices of the
Supreme Court.
"To summarize, considering the plain terms of the
constitutional provision in question, the changes that it
has undergone since it was first introduced until finally
adopted by the Convention, as well as the
considerations that must have inspired the
Constitutional Convention in adopting it as it is, I have
come to the conclusion that the Electoral Commission
should be composed of nine members, three from the
Supreme Court and six chosen by the National
Assembly to be nominated by the party in power,
there being no other party entitled to such
nomination." Annex A to the Answers pp. 2-3.
6a.Since 1939, when said opinion was rendered, the question
therein raised has not been taken up or discussed, until
the events leading to the case at bar (in February 1956).
6b.Thus, in Suanes vs. Chief Accountant (supra) - in which the
respondents maintained that the Electoral Commission
formed part of the National Assembly, citing in support
thereof the principle of contemporaneous and
practical construction - this Court deemed it
unnecessary to refute the same in order to adopt the
opposite view.
7.Senator Laurel reiterated this view on the floor of the Senate,
on February 22, 1956, in the following language:
"And hence this provision that we find in the Constitution,
three to represent, in the manner prescribed in the
Constitution, the party that received the highest
number of votes, meaning the majority party which is
the Nacionalista Party now, and three to represent the
party receiving the next highest number of votes
therein, meaning the minority party, the party
receiving the next highest number of votes. But there
was a great deal of opinion that it would be better if
this political organization, so far as the legislative
department is concerned, could be tempered by a sort
of a judicial reflection which could be done by drafting
three, as to each Electoral Tribunal, from the Supreme
Court. And that, I think, was the reason because a
great majority of the delegates to the constitutional
convention accepted that principle. That is why we
have nine members in each electoral tribunal, in the
House and in the Senate. And one reason that I
remember then and I am speaking from memory, Mr.
President, was that it is likely that the three members
representing a party would naturally favor the
protestants or protestees, and so on. So it would be
better that even on that hypothesis or on that
supposition it would be better, in case they annul each
other because three votes in favor or three votes
against, depending on the party of the protestants or
the protestees, that the Supreme Court decide the
case because then it would be a judicial decision in
reality. Another reason is founded on the theory that
the Justices of the Supreme Court are supposed to be
beyond pressure, beyond influence, although that may
not be true. But having reached the highest judicial
position of the land, these persons would likely act
impartially." (Congressional Record for the Senate, Vol.
III, p. 376.)
8.When the legislative power was vested in a unicameral body,
known as the National Assembly.
9.Upon the substitution of the National Assembly by a
bicameral Congress, consisting of the Senate and the
House of Representatives.
10.Senator Lim said:
"But in the spirit, Your Honor can see very well that those
three should belong to the party having the second
largest number of votes, precisely, as Your Honor said,
to maintain equilibrium because partisan
considerations naturally enter into the mind and heart
of a senator belonging to a particular party. Although
grammatically, I agree with Your Honor, Your Honor
can see that the spirit of the provision of the
Constitution is clear that the three must come from
the party having the highest number of votes and the
other three nominated must belong to the party having
the second highest number of votes. Your Honor can
see the point. If we allow Your Honor to back up your
argument that equilibrium should be maintained,
because partisan considerations enter when one is
with the majority party, and that no party should
prevail, Your Honor should also have to consider
that the spirit of the Constitution is precisely to obviate
that to the extent that only three can be nominated
from the party having the largest number of votes and
three from the party having the second largest number
of votes." (Congressional Record of the Senate, Vol. III,
p. 337; emphasis supplied.).
The statement of Senator Sabido was:
". . .the purpose of the creation of the Electoral Tribunal and
of its composition is to maintain a balance between the
 two parties and make the members of the Supreme
Court the controlling power so to speak of the Electoral
Tribunal or hold the balance of power. That is the ideal
situation."
xxx xxx xxx
". . . I said that the ideal composition in the contemplation of
the framers of the Constitution is that those
participating in the electoral tribunal shall belong to
the members of the party who are before the electoral
tribunal either as protestants or protestees, in order to
insure impartiality in the proceeding and justice in the
decision that may be finally rendered." (Congressional
Record for the Senate, Vol. III, pp. 349, 352; emphasis
supplied.)
Senator Cea declared:
". . . the original purpose of the Constitution is to nominate
only members of the two major parties in the Senate in
the Electoral Tribunal." (Congressional Record for the
Senate, Vol. III, p. 350; emphasis supplied.)
The words of Senator Paredes were:
". . .what was intended in the creation of the electoral
tribunal was to create a sort of collegiate court
composed of nine members three of them belonging to
the party having largest number of votes, and three
from the party having the second largest number of
votes so that these members may represent the
party, and the members of said party who will sit
before the electoral tribunal as protestees. For when it
comes to a party, Mr. President, there is ground to
believe that decisions will be made along party lines."
(Congressional Record for the Senate, Vol. III, p. 351;
emphasis supplied.)
11.The need of adopting this view is demanded, not only by the
factors already adverted to, but, also, by the fact that
constitutional provisions, unlike statutory enactments,
are presumed to be mandatory, "unless the contrary is
unmistakably manifest." The pertinent rule of statutory
construction is set forth in the American Jurisprudence
as follows:
"In the interpretation of Constitutions, questions frequently
arise as to whether particular sections are mandatory
or directory. The courts usually hesitate to declare that
a constitutional provision is directory merely in view of 14.Namely, the other two (2) Justices of the Supreme Court and
the tendency of the legislature to disregard provisions Senators Laurel, Lopez and Primicias, or a total of six
which are not said to be mandatory. Accordingly, it is (6) members of the Tribunal.
the general rule to regard constitutional provisions as ||| (Tañada v. Cuenco, G.R. No. L-10520, [February 28, 1957])
mandatory, and not to leave any discretion to the will
of a legislature to obey or to disregard them. This
presumption as to mandatory quality is usually
followed unless it is unmistakably manifest that the
provisions are intended to be merely directory. The
analogous rules distinguishing mandatory and
directory statutes are oflittle value in this connection
and are rarely applied in passing upon the provisions of
a Constitution.
"So strong is the inclination in favor of giving obligatory
force to the terms of the organic law that it has even
been said that neither by the courts nor by any other
department of the government may any provision
of the Constitution be regarded as merely
directory, but that each and every one of its provisions
should be treated as imperative and mandatory,
without reference to the rules and distinguishing
between the directory and the mandatory statutes." (II
Am. Jr. 686-687; emphasis supplied.)
12.Which admittedly, has the second largest number of votes in
the Senate.
13.In Angara vs. Electoral Commission (supra, 169) Senator,
then Justice, Laurel, speaking for this Court, recalled
that:
"In the same session of December 4, 1934, Delegate Cruz
(C.) sought to amend the draft by reducing the
representation of the minority party and the Supreme
Court in the Electoral Commission to two members
each, so as to accord more representation to the
majority party. The Convention rejected this
amendment by a vote of seventy-six (76) against forty-
six (46), thus maintaining the non-partisan character of
the commission." (Emphasis supplied.)
Needless to say, what the Constitutional Convention thus
precluded from being done by direct action or grant of
authority in the Charter of our Republic should not
receive judicial sanction, when done by resolution of
one House of Congress, a mere creature of said
charter.
 EN BANC
[G.R. No. 86344. December 21, 1989.]
REP. RAUL A. DAZA, petitioner, vs. REP. LUIS C.
SINGSON and HON. RAOUL V. VICTORINO IN
THE LATTER'S CAPACITY AS SECRETARY OF THE
COMMISSION ON APPOINTMENTS, respondent.
DECISION
CRUZ, J p:
After the congressional elections of May 11, 1987, the House of
Representatives proportionally apportioned its twelve seats in the
Commission on Appointments among the several political parties
represented in that chamber, including the Lakas ng Bansa, the PDP-
Laban, the NP-Unido, the Liberal Party, and the KBL, in accordance
with Article VI, Section 18, of the Constitution. Petitioner Raul A.
Daza was among those chosen and was listed as a representative of
the Liberal Party. 1
On September 16, 1988, the Laban ng Demokratikong Pilipino was
reorganized, resulting in a political realignment in the House of
Representatives. Twenty four members of the Liberal Party formally
resigned from that party and joined the LDP, thereby swelling its
number to 159 and correspondingly reducing their former party to
only 17 members. 2
On the basis of this development, the House of Representatives
revised its representation in the Commission on Appointments by
withdrawing the seat occupied by the petitioner and giving this to
the newly-formed LDP. On December 5, 1988, the chamber elected
a new set of representatives consisting of the original members
except the petitioner and including therein respondent Luis C.
Singson as the additional member from the LDP. 3
The petitioner came to this Court on January 13, 1989, to challenge
his removal from the Commission on Appointments and the
assumption of his seat by the respondent. Acting initially on his
petition for prohibition and injunction with preliminary injunction,
we issued a temporary restraining order that same day to prevent
both the petitioner and the respondent from serving in the
Commission on Appointments. 4
Briefly stated, the contention of the petitioner is that he cannot be
removed from the Commission on Appointments because his
election thereto is permanent under the doctrine announced
in Cunanan v. Tan. 5 His claim is that the reorganization of the
House representation in the said body is not based on a permanent
political realignment because the LDP is not a duly registered
political party and has not yet attained political stability.
For his part, the respondent argues that the question raised by the
petitioner is political in nature and so beyond the jurisdiction of this
Court. He also maintains that he has been improperly impleaded,
the real party respondent being the House of Representatives which
changed its representation in the Commission on Appointments and
removed the petitioner. Finally, he stresses that nowhere in
the Constitution is it required that the political party be registered
to be entitled to proportional representation in the Commission on
Appointments. cdll
In addition to the pleadings filed by the parties, a Comment was
submitted by the Solicitor General as amicus curiae in compliance
with an order from the Court.
At the core of this controversy is Article VI, Section 18, of
the Constitution providing as follows:
Sec. 18. There shall be a Commission on
Appointments consisting of the President of the
Senate, as ex officio Chairman, twelve Senators
and twelve Members of the House of
Representatives, elected by each House on the
basis of proportional representation from the
political parties and parties or organizations
registered under the party-list system
represented therein. The Chairman of the
Commission shall not vote, except in case of a
tie. The Commission shall act on all
appointments submitted to it within thirty
session days of the Congress from their
submission. The Commission shall rule by a
majority vote of all the Members.
Ruling first on the jurisdictional issue, we hold that, contrary to the
respondent's assertion, the Court has the competence to act on the
matter at bar. Our finding is that what is before us is not a
discretionary act of the House of Representatives that may not be
reviewed by us because it is political in nature. What is involved
here is the legality, not the wisdom, of the act of that chamber in
removing the petitioner from the Commission on Appointments.
That is not a political question because, as Chief Justice Concepcion
explained in Tañada v. Cuenco: 6
. . . the term "political question" connotes, in
legal parlance, what it means in ordinary
parlance, namely, a question of policy. In other
words, . . . it refers "to those questions which,
under the Constitution, are to be decided by the
people in their sovereign capacity, or in regard
to which full discretionary authority has been
delegated to the Legislature or executive branch
of the Government." It is concerned with issues
dependent upon the wisdom, not legality, of a
particular measure.
In the aforementioned case, the Court was asked by the petitioners
therein to annul the election of two members of the Senate
Electoral Tribunal of that chamber, on the ground that they had not
been validly nominated. The Senate then consisted of 23 members
from the Nacionalista Party and the petitioner as the lone member
of the Citizens Party. Senator Lorenzo M. Tañada nominated only
himself as the minority representative in the Tribunal, whereupon
the majority elected Senators Mariano J. Cuenco and Francisco
Delgado, from its own ranks, to complete the nine-man composition
of the Tribunal as provided for in the 1935 Constitution. The
petitioner came to this Court, contending that under Article VI,
Section 11, of that Charter, the six legislative members of the
Tribunal were to be chosen by the Senate, "three upon nomination
of the party having the largest number of votes and three of the
party having the second largest number of votes therein." As the
majority party in the Senate, the Nacionalista Party could nominate
only three members and could not also fill the other two seats
pertaining to the minority. LibLex
By way of special and affirmative defenses, the respondents
contended inter alia that the subject of the petition was an internal
matter that only the Senate could resolve. The Court rejected this
argument, holding that what was involved was not the wisdom of
the Senate in choosing the respondents but the legality of the
choice in light of the requirement of the Constitution. The
petitioners were questioning the manner of filling the Tribunal, not
the discretion of the Senate in doing so. The Court held that this was
a justiciable and not a political question, thus:
Such is not the nature of the question for
determination in the present case. Here, we are
called upon to decide whether the election of
Senators Cuenco and Delgado by the Senate, as
members of the Senate Electoral Tribunal, upon
nomination by Senator Primicias — a member
and spokesman of the party having the largest
number of votes in the Senate — on behalf of its
 Committee on Rules, contravenes the
constitutional mandate that said members of
the Senate Electoral Tribunal shall be chosen
"upon nomination . . . of the party having the
second largest number of votes" in the Senate
and hence, is null and void. The Senate is not
clothed with "full discretionary authority" in the
choice of members of the Senate Electoral
Tribunal. The exercise of its power thereon is
subject to constitutional limitations which are
claimed to be mandatory in nature. It is clearly
within the legitimate province of the judicial
department to pass upon the validity of the
proceeding in connection therewith.
'. . . whether an election of public
officers has been in accordance with
law is for the judiciary. Moreover,
where the legislative department has
by statute prescribed election
procedure in a given situation, the
judiciary may determine whether a
particular election has been in
conformity with such statute, and
particularly, whether such statute has
been applied in a way to deny or
transgress on constitutional or
statutory rights . . . .' (16 C.J.S., 439;
emphasis supplied).
It is, therefore, our opinion that we have, not
only jurisdiction but also the duty, to consider
and determine the principal issue raised by the
parties herein."
Although not specifically discussed, the same disposition was made
in Cunanan v. Tan as it likewise involved the manner or legality of
the organization of the Commission on Appointments, not the
wisdom or discretion of the House in the choice of its
representatives.
In the case now before us, the jurisdictional objection becomes even
less tenable and decisive. The reason is that, even if we were to
assume that the issue presented before us was political in nature,
we would still not be precluded from resolving it under the
expanded jurisdiction conferred upon us that now covers, in proper
cases, even the political question. Article VII, Section 1, of
the Constitution clearly provides:
Section 1. The judicial power shall be vested in
one Supreme Court and in such lower courts as
may be established by law.
Judicial power includes the duty of the courts of
justice to settle actual controversies involving
rights which are legally demandable and
enforceable, and to determine whether or not
there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on
the part of any branch or instrumentality of the
Government.
The respondent's contention that he has been improperly
impleaded is even less persuasive. While he may be technically
correct in arguing that it is not he who caused the petitioner's
removal, we feel that this objection is also not an insuperable
obstacle to the resolution of this controversy. We may, for one
thing, treat this proceeding as a petition for quo warranto as the
petitioner is actually questioning the respondent's right to sit as a
member of the Commission on Appointments. For another, we have
held as early as in the Emergency Powers Cases 7 that where serious
constitutional questions are involved, "the transcendental
importance to the public of these cases demands that they be
settled promptly and definitely, brushing aside, if we must,
technicalities of procedure." The same policy has since then been
consistently followed by the Court, as in Gonzales v. Commission on
Elections, 8 where we held through Chief Justice Fernando: LexLib
In the course of the deliberations, a serious
procedural objection was raised by five
members of the Court. It is their view that
respondent Commission on Elections not being
sought to be restrained from performing any
specific act, this suit cannot be characterized as
other than a mere request for an advisory
opinion. Such a view, from the remedial law
standpoint, has much to recommend it.
Nonetheless, a majority would affirm the
original stand that under the circumstances, it
could still rightfully be treated as a petition for
prohibition.
The language of Justice Laurel fits the case: "All
await the decision of this Court on the
constitutional question. Considering, therefore,
the importance which the instant case has
assumed and to prevent multiplicity of suits,
strong reasons of public policy demand that [its]
constitutionality . . . be now resolved." It may
likewise be added that the exceptional character
of the situation that confronts us, the
paramount public interest, and the undeniable
necessity for ruling, the national elections being
barely six months away, reinforce our stand.
It would appear undeniable, therefore, that
before us is an appropriate invocation of our
jurisdiction to prevent the enforcement of an
alleged unconstitutional statute. We are left
with no choice then; we must act on the matter.
Coming now to the more crucial question, the Court notes that both
the petitioner and the respondent are invoking the case of Cunanan
v. Tan to support their respective positions. It is best, therefore, to
make a quick review of that case for a proper disposition of this one.
In the election for the House of Representatives held in 1961, 72
seats were won by the Nacionalista Party, 29 by the Liberal Party
and 1 by an independent. Accordingly, the representation of the
chamber in the Commission on Appointments was apportioned to 8
members from the Nacionalista Party and 4 from the Liberal Party.
Subsequently, 25 members of the Nacionalista Party, professing
discontent over the House leadership, made common cause with
the Liberal Party and formed what was called the Allied Majority to
install a new Speaker and reorganize the chamber. Included in this
reorganization was the House representation in the Commission on
Appointments where three of the Nacionalista congressmen
originally chosen were displaced by three of their party colleagues
who had joined the Allied Majority. prcd
Petitioner Carlos Cunanan's ad interim appointment as Deputy
Administrator of the Reforestration Administration was rejected by
the Commission on Appointments as thus reorganized and
respondent Jorge Tan, Jr. was thereafter designated in his place.
Cunanan then came to this Court, contending that the rejection of
his appointment was null and void because the Commission itself
was invalidly constituted.
The Court agreed. It noted that the Allied Majority was a merely
temporary combination as the Nacionalista defectors had not
disaffiliated from their party and permanently joined the new
political group. Officially, they were still members of the
Nacionalista Party. The reorganization of the Commission on
Appointments was invalid because it was not based on the
proportional representation of the political parties in the House of
Representatives as required by the Constitution. The Court held:
. . . In other words, a shifting of votes at a given
time, even if due to arrangements of a more or
less temporary nature, like the one that has led
to the formation of the so-called "Allied
Majority," does not suffice to authorize are
organization of the membership of the
Commission for said House. Otherwise the
Commission on Appointments may have to be
reorganized as often as votes shift from one side
to another in the House. The framers of
our Constitution could not have intended to
thus place a constitutional organ, like the
Commission on Appointments, at the mercy of
each House of Congress.
The petitioner vigorously argues that the LDP is not the permanent
political party contemplated in the Constitution because it has not
been registered in accordance with Article IX-B, Section 2(5), in
relation to the other provisions of the Constitution. He stresses that
the so-called party has not yet achieved stability and suggests it
might be no different from several other political groups that have
died "a-bornin'," like the UNA, or have subsequently floundered, like
the UNIDO.
The respondent also cites Cunanan but from a different viewpoint.
According to him, that case expressly allows reorganization at any
time to reflect changes in the political alignments in Congress,
provided only that such changes are permanent. The creation of the
LDP constituting the bulk of the former PDP Laban and to which no
less than 24 Liberal congressmen had transferred was a permanent
change. That change fully justified his designation to the
Commission on Appointments after the reduction of the LP
representation therein. Thus, the Court held:
Upon the other hand, the constitutional
provision to the effect that "there shall be a
Commission on Appointments consisting of
twelve (12) Senators and twelve (12) members
of the House of Representatives elected by each
House, respectively, on the basis of proportional
REPRESENTATION OF THE POLITICAL PARTIES
THEREIN," necessarily connotes the authority of
each House of Congress to see to it that this
requirement is duly complied with. As a
consequence, it may take appropriate measures,
not only upon the initial organization of the
Commission, but also, subsequently thereto. If
by reason of successful election protests against
members of a House, or of their expulsion from
the political party to which they belonged
and/or of their affiliation with another political
party, the ratio in the representation of the
political parties in the House is materially
changed, the House is clothed with authority to
declare vacant the necessary number of seats in
the Commission on Appointments held by
members of said House belonging to the
political party adversely affected by the change
and then fill said vacancies in conformity with
the Constitution.
In the course of the spirited debate on this matter between the
petitioner and the respondent (who was supported by the Solicitor
General) an important development has supervened to considerable
simplify the present controversy.
The petitioner, to repeat, bases his argument heavily on the non-
registration of the LDP which, he claims has not provided the
permanent political realignment to justify the questioned
reorganization. As he insists:
(c) Assuming that the so-called new coalesced
majority is actually the LDP itself, then the
proposed reorganization is likewise illegal and
ineffectual, because the LDP, not being a duly
registered political party, is not entitled to the
"rights and privileges granted by law to political
parties" (Sec. 160, BP No. 881), and
therefore cannot legally claim the right to be
considered in determining the required
proportional representation of political parties in
the House of Representatives. 9
xxx xxx xxx
. . . the clear constitutional intent behind Section
18, Article VI, of the 1987 Constitution, is to give
the right of representation in the Commission
on Appointment only to political parties who are
duly registered with the Comelec. 10
On November 23, 1989, however, that argument boomeranged
against the petitioner. On that date, the Commission on Elections in
an en banc resolution affirmed the resolution of its First Division
dated August 28, 1989, granting the petition of the LDP for
registration as a political party. 11 This has taken the wind out of the
sails of the petitioner, so to speak, and he must now limp to shore
as best he can. LLpr
The petitioner's contention that, even if registered, the party must
still pass the test of time to prove its permanence is not acceptable.
Under this theory, a registered party obtaining the majority of the
seats in the House of Representatives (or the Senate) would still not
be entitled to representation in the Commission on Appointments
as long as it was organized only recently and has not yet "aged." The
Liberal Party itself would fall in such a category. That party was
created in December 1945 by a faction of the Nacionalista Party that
seceded therefrom to support Manuel A. Roxas's bid for the
Presidency of the Philippines in the election held on April 23,
1946 12 The Liberal Party won. At that time it was only four months
old. Yet no question was raised as to its right to be represented in
the Commission on Appointments and in the Electoral Tribunals by
virtue of its status as the majority party in both chambers of the
Congress.
The LDP has been in existence for more than one year now. It now
has 157 members in the House of Representatives and 6 members
in the Senate. Its titular head is no less than the President of the
Philippines and its President is Senator Neptali A. Gonzales, who
took over recently from Speaker Ramon V. Mitra. It is true that
there have been, and there still are, some internal disagreements
among its members, but these are to be expected in any political
organization, especially if it is democratic in structure. In fact, even
the monolithic Communist Party in a number of socialist states has
undergone similar dissension, and even upheavals. But it surely
cannot be considered still temporary because of such discord.
If the petitioner's argument were to be pursued, the 157 members
of the LDP in the House of Representatives would have to be denied
representation in the Commission on Appointments and, for that
matter, also the Electoral Tribunal. By the same token, the KBL,
which the petitioner says is now "history only," should also be
written off. The independents also cannot be represented because
they belong to no political party. That would virtually leave the
Liberal Party only-with all of its seventeen members — to claim all
the twelve seats of the House of Representatives in the Commission constitutional stalemate had to be resolved, there was no
on Appointments and the six legislative seats in the House Electoral alternative for us except to act, and to act decisively. In doing so, of
Tribunal. course, we are not imposing our will upon the said agencies, or
substituting our discretion for theirs, but merely discharging our
It is noteworthy that when with 41 members the Liberal Party was sworn responsibility to interpret and apply the Constitution. That is
alloted two of the seats in the Commission on Appointments, it did a duty we do not evade, lest we ourselves betray our oath.
not express any objection. 13 Inconsistently, the petitioner is now WHEREFORE, the petition is DISMISSED. The temporary restraining
opposed to the withdrawal from it of one seat although its original order dated January 13, 1989, is LIFTED. The Court holds that the
number has been cut by more than half. respondent has been validly elected as a member of the
As for the other condition suggested by the petitioner, to wit, that Commission on Appointments and is entitled to assume his seat in
the party must survive in a general congressional election, the LDP that body pursuant to Article VI, Section 18, of the Constitution. No
has doubtless also passed that test, if only vicariously. It may even pronouncement as to costs.
be said that as it now commands the biggest following in the House SO ORDERED.
of Representatives, the party has not only survived but in fact Fernan, C .J ., Narvasa, Melencio-Herrera, Gutierrez, Jr., Paras,
prevailed. At any rate, that test was never laid down in Feliciano, Gancayco, Padilla, Bidin, Cortés, Griño-Aquino,
Cunanan. Cdpr Medialdea and Regalado, JJ ., concur.
To summarize, then, we hold, in view of the foregoing Sarmiento, J ., took no part.
considerations, that the issue presented to us is justiciable rather
political, involving as it does the legality and not the wisdom of the ||| (Daza v. Singson, G.R. No. 86344, [December 21, 1989], 259 PHIL
act complained of, or the manner of filling the Commission on
980-992)
Appointments as prescribed by the Constitution. Even if the
question were political in nature, it would still come within our
powers of review under the expanded jurisdiction conferred upon
us by Article VIII, Section 1, of the Constitution, which includes the
authority to determine whether grave abuse of discretion
amounting to excess or lack of jurisdiction has been committed by
any branch or instrumentality of the government. As for the alleged
technical flaw in the designation of the party respondent, assuming
the existence of such a defect, the same may be brushed aside,
conformably to existing doctrine, so that the important
constitutional issue raised may be addressed. Lastly, we resolve that
issue in favor of the authority of the House of Representatives to
change its representation in the Commission on Appointments to
reflect at any time the changes that may transpire in the political
alignments of its membership. It is understood that such changes
must be permanent and do not include the temporary alliances or
factional divisions not involving severance of political loyalties or
formal disaffiliation and permanent shifts of allegiance from one
political party to another. llcd
The Court would have preferred not to intervene in this matter,
leaving it to be settled by the House of Representatives or the
Commission on Appointments as the bodies directly involved. But as
our jurisdiction has been invoked and, more importantly, because a
EN BANC
[G.R. No. 101273. July 3, 1992.]
CONGRESSMAN ENRIQUE T. GARCIA, (Second
District of Bataan), petitioner, vs. THE
EXECUTIVE SECRETARY, THE COMMISSIONER
OF CUSTOMS, THE NATIONAL ECONOMIC AND
DEVELOPMENT AUTHORITY, THE TARIFF
COMMISSION, THE SECRETARY OF FINANCE,
and THE ENERGY REGULATORY
BOARD,respondents.
Abraham C. La Vina for petitioner.
SYLLABUS
1. CONSTITUTIONAL LAW; PRESIDENT; AUTHORIZED BY CONGRESS
TO FIX TARIFF RATES AND OTHER DUTIES OR IMPOSTS. — Under
Section 24, Article VI of the Constitution, the enactment of
appropriation, revenue and tariff bills, like all other bills is, of
course, within the province of the Legislative rather than the
Executive Department. It does not follow, however, that
therefore Executive Orders Nos. 475 and 478, assuming they may be
characterized as revenue measures, are prohibited to the President,
that they must be enacted instead by the Congress of the
Philippines. There is explicit constitutional permission (Section 28[2]
of Article VI of the Constitution) to Congress to authorize the
President "subject to such limitations and restrictions as [Congress]
may impose" to fix "within specific limits" "tariff rates . . . and other
duties or imposts . . . ." The relevant congressional statute is
the Tariff and Customs Code of the Philippines, and Sections 104
and 401, the pertinent provisions thereof. These are the provisions
which the President explicitly invoked in promulgating Executive
Orders Nos. 475 and 478.
2. TAXATION; TARIFF AND CUSTOMS CODE; CUSTOMS DUTIES;
NAME GIVEN TO TAXES ON THE IMPORTATION AND EXPORTATION
OF COMMODITIES. — Customs duties which are assessed at the
prescribed tariff rates are very much like taxes which are frequently
imposed for both revenue-raising and for regulatory purposes. Thus,
it has been held that "customs duties" is "the name given to taxes on
the importation and exportation of commodities, the tariff or tax
assessed upon merchandise imported from, or exported to, a
foreign country."
3. ID.; ID.; ID.; PROTECTION AFFORDED TO LOCAL INDUSTRIES. —
The levying of customs duties on imported goods may have in some
measure the effect of protecting local industries — where such local
industries actually exist and are producing comparable goods.
Simultaneously, however, the very same customs duties inevitably
have the effect of producing governmental revenues. Customs
duties like internal revenue taxes are rarely, if ever, designed to
achieve one policy objective only. Most commonly, customs duties,
which constitute taxes in the sense of exactions the proceeds of
which become public funds — have either or both the generation of
revenue and the regulation of economic or social activity as their
moving purposes and frequently, it is very difficult to say which, in a
particular instance, is the dominant or principal objective. In the
instant case, since the Philippines in fact produces ten (10) to fifteen
percent (15%) of the crude oil consumed here, the imposition of
increased tariff rates and a special duty on imported crude oil and
imported oil products may be seen to have some "protective"
impact upon indigenous oil production. For the effective price of
imported crude oil and oil products is increased. At the same time, it
cannot be gainsaid that substantial revenues for the government are
raised by the imposition of such increased tariff rates or special
duty.
4. ID.; ID.; GENERAL STANDARDS SET FOR THE EXERCISE OF THE
AUTHORITY DELEGATED TO THE PRESIDENT. — Section 401 of
the Tariff and Customs Code establishes general standards with
which the exercise of the authority delegated by that provision to
the President must be consistent: that authority must be exercised
in "the interest of national economy, general welfare and/or
national security." Petitioner, however, insists that the "protection
of local industries" is the only permissible objective that can be
secured by the exercise of that delegated authority, and that
therefore "protection of local industries" is the sum total or the
alpha and omega of "the national economy, general welfare and/or
national security." We find it extremely difficult to take seriously
such a confined and closed view of the legislative standards and
policies summed up in Section 401. We believe, for instance, that
the protection of consumers, who after all constitute the very great
bulk of our population, is at the very least as important a dimension
of "the national economy, general welfare and national security" as
the protection of local industries. And so customs duties may be
reduced or even removed precisely for the purpose of protecting
consumers from the high prices and shoddy quality and inefficient
service that tariff-protected and subsidized local manufacturers may
otherwise impose upon the community.
5. ID.; ID.; TARIFF RATES AND CUSTOM DUTIES; LEVIED UPON
ARTICLES NOT PRODUCED IN THE PHILIPPINES. — Tariff rates are
commonly established and the corresponding customs duties levied
and collected upon articles and goods which are not found at all
and not produced in the Philippines. In such cases, customs duties
may be seen to be imposed either for revenue purposes purely or
perhaps, in certain cases, to discourage any importation of the items
involved. In either case, it is clear that customs duties are levied and
imposed entirely apart from whether or not there are any
competing local industries to protect.
6. CONSTITUTIONAL LAW; PRESIDENT; EXECUTIVE ORDERS NOS.
475 AND 478, CONSTITUTIONAL. — Executive Orders Nos.
475 and 478 which may be conceded to be substantially moved by
the desire to generate additional public revenues, are not, for that
reason alone, either constitutionally flawed, or legally infirm under
Section 401 of theTariff and Customs Code. Petitioner has not
successfully overcome the presumptions of constitutionality and
legality to which those Executive Orders are entitled.
DECISION
FELICIANO, J p:
On 27 November 1990, the President issued Executive Order No.
438 which imposed, in addition to any other duties, taxes and
charges imposed by law on all articles imported into the Philippines,
an additional duty of five percent (5%) ad valorem. This additional
duty was imposed across the board on all imported articles,
including crude oil and other oil products imported into the
Philippines. This additional duty was subsequently increased from
five percent (5%) ad valorem to nine percent (9%) ad valorem by the
promulgation of Executive Order No. 443, dated 3 January 1991.
On 24 July 1991, the Department of Finance requested the Tariff
Commission to initiate the process required by the Tariff and
Customs Code for the imposition of a specific levy on crude oil and
other petroleum products, covered by HS Heading Nos. 27.09, 27.10
and 27.11 of Section 104 of the Tariff and Customs Code as
amended. Accordingly, the Tariff Commission, following the
procedure set forth in Section 401 of the Tariff and Customs Code,
scheduled a public hearing to give interested parties an opportunity
to be heard and to present evidence in support of their respective
positions.
Meantime, Executive Order No. 475 was issued by the President on
15 August 1991 reducing the rate of additional duty on all imported
articles from nine percent (9%) to five percent (5%) ad valorem,
except in the cases of crude oil and other oil products which
continued to be subject to the additional duty of nine percent
(9%) ad valorem. cdtai
Upon completion of the public hearings, the Tariff Commission
submitted to the President a "Report on Special Duty on Crude Oil
and Oil Products" dated 16 August 1991, for consideration and
appropriate action. Seven (7) days later, the President
issued Executive Order No. 478, dated 23 August 1991, which levied
(in addition to the aforementioned additional duty of nine percent
(9%) ad valorem and all other existing ad valorem duties) a special
duty of P0.95 per liter or P151.05 per barrel of imported crude oil
and P1.00 per liter of imported oil products. prLL
In the present Petition for Certiorari, Prohibition and Mandamus,
petitioner assails the validity of Executive Orders Nos. 475 and 478.
He argues that Executive Orders Nos. 475and 478 are violative
of Section 24, Article VI of the 1987 Constitution which provides as
follows:
"Section 24. All appropriation, revenue or tariff
bills, bills authorizing increase of the public
debt, bills of local application, and private bills
shall originate exclusively in the House of
Representatives, but the Senate may propose or
concur with amendments."
He contends that since the Constitution vests the authority to
enact revenue bills in Congress, the President may not assume
such power of issuing Executive Orders Nos. 475and 478 which
are in the nature of revenue-generating measures.
Petitioner further argues that Executive Orders Nos.
475 and 478 contravene Section 401 of the Tariff and Customs Code,
which Section authorizes the President, according to petitioner, to
increase, reduce or remove tariff duties or to impose additional
duties only when necessary to protect local industries or products
but not for the purpose of raising additional revenue for the
government.
Thus, petitioner questions first the constitutionality and second the
legality of Executive Orders Nos. 475 and 478, and asks us to
restrain the implementation of those Executive Orders. We will
examine these questions in that order.
Before doing so, however, the Court notes that the recent
promulgation of Executive Order No. 517 did not render the instant
Petition moot and academic. Executive Order No. 517 which is dated
30 April 1992 provides as follows:
"Section 1. Lifting of the Additional Duty. — The
additional duty in the nature of ad
valoremimposed on all imported articles
prescribed by the provisions of Executive Order
No. 443, as amended, is hereby lifted; Provided,
however, that the selected articles covered by
HS Heading Nos. 27.09 and 27.10 of Section 104
of the Tariff and Customs Code, as amended,
subject of Annex `A' hereof, shall continue to be
subject to the additional duty of nine (9%)
percent ad valorem."
Under the above quoted provision, crude oil and other oil
products continue to be subject to the additional duty of nine
percent (9%) ad valorem under Executive Order No. 475 and to
the special duty of P0.95 per liter of imported crude oil and
P1.00 per liter of imported oil products under Executive Order
No. 478. prcd
Turning first to the question of constitutionality, under Section 24,
Article VI of the Constitution, the enactment of appropriation,
revenue and tariff bills, like all other bills is, of course, within the
province of the Legislative rather than the Executive Department. It
does not follow, however, that therefore Executive Orders Nos.
475 and 478, assuming they may be characterized as revenue
measures, are prohibited to the President, that they must be
enacted instead by the Congress of the Philippines. Section 28(2) of
Article VI of the Constitution provides as follows:
"(2) The Congress may, by law, authorize the
President to fix within specified limits, and
subject to such limitations and restrictions as it
may impose, tariff rates, import and export
quotas, tonage and wharfage dues, and other
duties or imposts within the framework of the
national development program of the
Government."(Emphasis supplied)
There is thus explicit constitutional permission 1 to Congress to
authorize the President "subject to such limitations and
restrictions as [Congress] may impose" to fix "within specific
limits" "tariff rates . . . and other duties or imposts . . . ."
The relevant congressional statute is the Tariff and Customs Code of
the Philippines, and Sections 104 and 401, the pertinent provisions
thereof. These are the provisions which the President explicitly
invoked in promulgating Executive Orders Nos. 475 and 478. Section
104 of the Tariff and Customs Code provides in relevant part:
"Sec. 104. All tariff sections, chapters, headings
and subheadings and the rates of import duty
under Section 104 of Presidential Decree No. 34
and all subsequent amendments issued under
Executive Orders and Presidential Decrees are
hereby adopted and form part of this Code.
There shall be levied, collected, and paid upon
all imported articles the rates of duty indicated
in the Section under this section except as
otherwise specifically provided for in this
Code: Provided, that, the maximum rate shall
not exceed one hundred per cent ad valorem.
The rates of duty herein provided or
subsequently fixed pursuant to Section Four
Hundred One of this Code shall be subject to
periodic investigation by the Tariff Commission
and may be revised by the President upon
recommendation of the National Economic and
Development Authority.
xxx xxx xxx
(Emphasis supplied)
Section 401 of the same Code needs to be quoted in full:
"Sec. 401. Flexible Clause. —
a. In the interest of national economy, general
welfare and/or national security, and subject to
the limitations herein prescribed, the President,
upon recommendation of the National
Economic and Development Authority
(hereinafter referred to as NEDA), is hereby
empowered: (1) to increase, reduce or
remove existing protective rates of import
duty(including any necessary change in
classification). The existing rates may be
increased or decreased but in no case shall the
reduced rate of import duty be lower than the
basic rate of ten (10) per cent ad valorem, nor
shall the increased rate of import duty be higher
than a maximum of one hundred (100) per cent
ad valorem; (2) to establish import quota or to
ban imports of any commodity, as may be
necessary; and (3) to impose an additional duty
on all imports not exceeding ten (10) per cent ad
valorem whenever necessary; Provided, That
upon periodic investigations by the Tariff
Commission and recommendation of the NEDA,
the President may cause a gradual reduction of
protection levels granted in Section One
hundred and four of this Code, including those
subsequently granted pursuant to this
section. LexLib
b. Before any recommendation is submitted to
the President by the NEDA pursuant to the
provisions of this section, except in the
imposition of an additional duty not exceeding
ten (10) per cent ad valorem, the Commission
shall conduct an investigation in the course of
which they shall hold public hearings wherein
interested parties shall be afforded reasonable
opportunity to be present, produce evidence
and to be heard. The Commission shall also hear
the views and recommendations of any
government office, agency or instrumentality
concerned. The Commission shall submit their
findings and recommendations to the NEDA
within thirty (30) days after the termination of
the public hearings.
c. The power of the President to increase or
decrease rates of import duty within the limits
fixed in subsection `a' shall include the authority
to modify the form of duty. In modifying the
form of duty, the corresponding ad valorem or
specific equivalents of the duty with respect to
imports from the principal competing foreign
country for the most recent representative
period shall be used as bases.
d. The Commissioner of Customs shall regularly
furnish the Commission a copy of all customs
import entries as filed in the Bureau of Customs.
The Commission or its duly authorized
representatives shall have access to, and the
right to copy all liquidated customs import
entries and other documents appended thereto
as finally filed in the Commission on Audit.
e. The NEDA shall promulgate rules and
regulations necessary to carry out the provisions
of this section.
f. Any Order issued by the President pursuant to
the provisions of this section shall take effect
thirty (30) days after promulgation, except in
the imposition of additional duty not exceeding
ten (10) per cent ad valorem which shall take
effect at the discretion of the President."
(Underscoring supplied)
Petitioner, however, seeks to avoid the thrust of the delegated
authorizations found in Sections 104 and 401 of the Tariff and
Customs Code, by contending that the President is authorized to act
under the Tariff and Customs Code only "to protect local industries
and products for the sake of the national economy, general welfare
and/or national security." 2 He goes on to claim that:
"E.O. Nos. 478 and 475 having nothing to do
whatsoever with the protection of local
industries and products for the sake of national
economy, general welfare and/or national
security. On the contrary, they work in reverse,
especially as to crude oil, an essential product
which we do not have to protect, since we
produce only minimal quantities and have to
import the rest of what we need.
These Executive Orders are avowedly solely to
enable the government to raise government
finances, contrary to Sections 24 and 28 (2) of
Article VI of the Constitution, as well as to
Section 401 of the Tariff and Customs
Code." 3 (Emphasis in the original)
The Court is not persuaded. In the first place, there is nothing in the
language of either Section 104 or of 401 of the Tariff and Customs
Code that suggest such a sharp and absolute limitation of authority.
The entire contention of petitioner is anchored on just two (2)
words, one found in Section 401 (a) (1): "existing protective rates of
import duty," and the second in the proviso found at the end of
Section 401 (a): " protection levels granted in Section 104 of this
Code . . . ." We believe that the words "protective" and "protection"
are simply not enough to support the very broad and encompassing
limitation which petitioner seeks to rest on those two (2) words.
In the second place, petitioner's singular theory collides with a very
practical fact of which this Court may take judicial notice — that the
Bureau of Customs which administers theTariff and Customs Code,
is one of the two (2) principal traditional generators or producers of
governmental revenue, the other being the Bureau of Internal
Revenue. (There is a third agency, non-traditional in character, that
generates lower but still comparable levels of revenue for the
government — The Philippine Amusement and Games Corporation
[PAGCOR].)
In the third place, customs duties which are assessed at the
prescribed tariff rates are very much like taxes which are frequently
imposed for both revenue-raising and for regulatory purposes. 4
Thus, it has been held that "customs duties" is "the name given
to taxes on the importation and exportation of commodities, the
tariff or tax assessed upon merchandise imported from, or exported
to, a foreign country." 5 The levying of customs duties on imported
goods may have in some measure the effect of protecting local
industries — where such local industries actually exist and are
producing comparable goods. Simultaneously, however, the very
same customs duties inevitably have the effect of producing
governmental revenues. Customs duties like internal revenue taxes
are rarely, if ever, designed to achieve one policy objective only.
Most commonly, customs duties, which constitute taxes in the
sense of exactions the proceeds of which become public funds 6 —
have either or both the generation of revenue and the regulation of
economic or social activity as their moving purposes and frequently,
it is very difficult to say which, in a particular instance, is the
dominant or principal objective. In the instant case, since the
Philippines in fact produces ten (10) to fifteen percent (15%) of the
crude oil consumed here, the imposition of increased tariff rates
and a special duty on imported crude oil and imported oil products
may be seen to have some "protective" impact upon indigenous oil
production. For the effective price of imported crude oil and oil
products is increased. At the same time, it cannot be gainsaid that
substantial revenues for the government are raised by the
imposition of such increased tariff rates or special duty.
In the fourth place, petitioner's concept which he urges us to build
into our constitutional and customs law, is a stiflingly narrow one.
Section 401 of the Tariff and Customs Codeestablishes general
standards with which the exercise of the authority delegated by that
provision to the President must be consistent: that authority must
be exercised in "the interest of national economy, general welfare
and/or national security." Petitioner, however, insists that the
"protection of local industries" is the only permissible objective that
can be secured by the exercise of that delegated authority, and that
therefore "protection of local industries" is the sum total or the equivalent to the "resulting excess money not be needed to
alpha and the omega of "the national economy, general welfare adequately maintain the Oil Price Stabilization Fund (OPSF)." 8
and/or national security." We find it extremely difficult to take WHEREFORE, premises considered, the Petition for Certiorari,
seriously such a confined and closed view of the legislative Prohibition and Mandamus is hereby DISMISSED for lack of merit.
standards and policies summed up in Section 401. We believe, for Costs against petitioner.
instance, that the protection of consumers, who after all constitute SO ORDERED.
the very great bulk of our population, is at the very least as
||| (Garcia v. Executive Secretary, G.R. No. 101273, [July 3, 1992],
important a dimension of "the national economy, general welfare
and national security" as the protection of local industries. And so 286 PHIL 322-334)
customs duties may be reduced or even removed precisely for the
purpose of protecting consumers from the high prices and shoddy
quality and inefficient service that tariff-protected and subsidized
local manufacturers may otherwise impose upon the community.

It seems also important to note that tariff rates are commonly

established and the corresponding customs duties levied and
collected upon articles and goods which are not found at all
and not produced in the Philippines. The Tariff and Customs Code is
replete with such articles and commodities: among the more
interesting examples are ivory(Chapter 5, 5.10); castoreum or musk
taken from the beaver (Chapter 5, 5.14); olives (Chapter 7,
Notes); truffles or European fungi growing under the soil on tree
roots (Chapter 7, Notes); dates (Chapter 8, 8.01); figs (Chapter 8,
8.03); caviar (Chapter 16, 16.01); aircraft (Chapter 88,
88.01); special diagnostic instruments and apparatus for human
medicine and surgery (Chapter 90, Notes); X-ray generators; X-ray
tubes; X-ray screens, etc (Chapter 90, 90.20); etc. In such cases,
customs duties may be seen to be imposed either for revenue
purposes purely or perhaps, in certain cases, to discourage any
importation of the items involved. In either case, it is clear that
customs duties are levied and imposed entirely apart from whether
or not there are any competing local industries to protect.
Accordingly, we believe and so hold that Executive Orders Nos.
475 and 478 which may be conceded to be substantially moved by
the desire to generate additional public revenues, are not, for that
reason alone, either constitutionally flawed, or legally infirm under
Section 401 of the Tariff and Customs Code. Petitioner has not
successfully overcome the presumptions of constitutionality and
legality to which those Executive Orders are entitled. 7
The conclusion we have reached above renders it unnecessary to
deal with petitioner's additional contention that, should Executive
Orders Nos. 475 and 478 be declared unconstitutional and illegal,
there should be a roll back of prices of petroleum products
EN BANC L-3054 3. PRESIDENT; EMERGENCY POWERS; JUSTIFICATION
[G.R. No. L-2044. August 26, 1949.] Claro M. Recto, Ramon Diokno, Jose O. Vera, Alejo OF DELEGATION OF. — Emergency, in order to justify the
J. ANTONIO ARANETA, petitioner, vs. Mabanag, Jose B. Laurel, Jr. and Antonio Barredo for petitioner. delegation of emergency powers, "must be temporary or it can
RAFAEL DINGLASAN, Judge of First Instance of Solicitor General Felix Bautista Angelo for respondent. not be said to be an emergency."
Manila, and JOSE P. BENGZON, Fiscal of City of Vicente de Vera, Chairman, Commission on Elections. 4. ID.; LEGISLATURE HAD RESTRICTED THE LIFE OF
Manila, respondents. EMERGENCY POWERS. — In the language of section 3 of Act No.
Alfonso Ponce Enrile, Alva J. Hill and Honorio Poblador, 671, The National Assembly restricted the life of the emergency
[G.R. No. L-2756. August 26, 1949.] Jr. and Emiliano R. Navarro as amici curiae.
powers of the President to the time the Legislature was
J. ANTONIO ARANETA and GREGORIO Jesus G. Barrera, Enrique M. Fernando, Ramon prevented from holding sessions due to enemy action or other
VILLAMOR, petitioners, vs. EUGENIO ANGELES, Sunico, and Francisco A. Rodrigo also as amici curiae. causes brought on by war.
Fiscal of City of Manila, respondent. L-3055 5. STATUTORY CONSTRUCTION; AUTOMATICAL
[G.R. No. L-3054. Agosto 26, 1949.] Claro M. Recto and Leon Ma. Guerrero for petitioner. EXTINCTION OF ACT NO. 671; CONTEMPORARY
EULOGIO RODRIGUEZ, Sr., por si y como Solicitor General Felix Bautista Angelo for respondents. CONSTRUCTION. — Commonwealth Act No. 671 was only "for a
Presidente del Partido certain period" and "would become invalid unless reenacted."
Nacionalista, recurrente, contra EL TESORERO V. G. Bunuan, Administrator, Sugar Quota Office.
These phrases connote automatic extinction of the law upon
DE FILIPINAS, recurrido. Jesus G. Barrera, Felixberto M. Serrano, Enrique
the conclusion of a certain period. Together they denote that a
Fernando, Ramon Sunico and Francisco A. Rodrigo; Honorio
[G.R. No. L-3055. Agosto 26, 1949.] new legislation was necessary to keep alive (not to repeal) the
Poblador, Jr. and Emiliano R. Navarro as amici curiae.
LEON MA. GUERRERO, petitioner, vs. THE law after the expiration of that period. They signify that the
COMMISSIONER OF CUSTOMS and THE L-3056 same law, not a different one, had to be repassed if the grant
ADMINISTRATOR, SUGAR QUOTA OFFICE, Claro M. Recto and Antonio Barredo for petitioner. should be prolonged.
DEPARTMENT OF COMMERCE AND Solicitor General Felix Bautista Angelo for respondents. 6. ID.; CONTEMPLATED PERIOD FOR ACT NO. 671;
INDUSTRY, respondents. Vicente de Vera, Chairman, Commission on Elections. CONTEMPORARY CONSTRUCTION. — When it became evident
[G.R. No. L-3056. Agosto 26, 1949.] Alfonso Ponce Enrile, Alva J. Hill, Jesus G. Barrera, that we were completely helpless against air attack, and that it
ANTONIO BARREDO, in his own behalf and on Enrique M. Fernando, Ramon Sunico and Francisco A. Rodrigo; was most unlikely the Philippine Legislature would hold its next
behalf of all taxpayers similarly Honorio Poblador, Jr. and Emiliano R. Navarro as amici curiae. regular session which was to open on January 1, 1942." It can
situated, petitioner, vs. THE COMMISSION ON easily be discerned in this statement that the conferring of
SYLLABUS
ELECTIONS, THE AUDITOR GENERAL and THE enormous powers upon the President was decided upon with
1. STATUTORY CONSTRUCTION; INTENTION OF THE specific view to the inability of the National Assembly to meet.
INSULAR TREASURER OF THE LAW, HOW ASCERTAINED. — The intention of an act is to be
PHILIPPINES, respondents. Indeed no other factor than this inability could have motivated
sought for in its nature, the object to be accomplished, the the delegation of powers so vast as to amount to an abdication
L-2044 purpose to be subserved, and its relation to the Constitution. by the National Assembly of its authority. The enactment and
Paredes, Diaz & Poblador, Jesus G. Barrera, Vicente The consequences of the various constructions offered will also continuation of a law so destructive of the foundations of
Hilado, and Araneta & Araneta for petitioner. be resorted to as additional aid to interpretation. We test a rule democratic institutions could not have been conceived under
Solicitor General Felix Bautista Angelo, Assistant by its results. any circumstance short of a complete disruption and dislocation
Solicitor General Ruperto Kapunan, Jr., Solicitor Martiniano P. 2. ID.; ARTICLE VI OF THE CONSTITUTION of the normal processes of government.
Vivo and Assistant City Fiscal Julio Villamor for respondents. INTERPRETED. — Article VI of the Constitution provides that any 7. ID.; ID.; ID. — The period that best comports with
Claro M. Recto and Padilla, Carlos & Fernando as amici law passed by virtue thereof should be "for a limited period." the constitutional requirements and limitations, with the
curiae. "Limited" has been defined to mean restricted; bounded; general context of the law and with what we believe to be the
prescribed; confined within positive bounds; restrictive in main if not the sole raison d'etre for its enactment, was a period
L-2756
duration, extent or scope. The words "limited period" as used in coextensive with the inability of Congress to function, a period
Araneta & Araneta and Jesus G. Barrera for petitioners. the Constitution are beyond question intended to mean ending with the convening of that body.
Assistant City Fiscal Luis B. Reyes for respondent. restrictive in duration.
8. CONSTITUTIONAL LAW; ACT NO. 671 BECAME
Claro M. Recto as amicus curiae.
INOPERATIVE WHEN CONGRESS MET IN REGULAR SESSION;
EXECUTIVE ORDERS THEREAFTER ISSUED, VALIDITY OF. —
Commonwealth Act No. 671 became inoperative when
Congress met in regular session on May 25, 1946, and that
Executive Orders Nos. 62, 192, 225 and 226 were issued
without authority of law.
9. ID.; SYSTEM OF SEPARATION OF POWERS;
LEGISLATION IS PRESERVED FOR CONGRESS ALL THE TIME. —
The Filipino people by adopting parliamentary government
have given notice that they share the faith of other democracy-
loving peoples in this system, with all its faults, as the ideal. The
point is, under this framework of government, legislation is
preserved for Congress all the time, not excepting periods of
crisis no matter how serious. Never in the history of the United
States, the basic features of whose Constitution have been
copied in ours, have the specific functions of the legislative
branch of enacting laws been surrendered to another
department — unless we regard as legislating the carrying out
of a legislative policy according to prescribed standards; no, not
even when that Republic was fighting a total war, or when it
was engaged in a life-and-death struggle to preserve the Union.
The truth is that under our concept of constitutional
government, in times of extreme perils more than in normal
circumstances "the various branches, executive, legislative, and
judicial," given the ability to act, are called upon "to perform
the duties and discharge the responsibilities committed to them
respectively."
10. JUDGES; DISQUALIFICATION; MEMBERS OF
SUPREME COURT; OBJECTION SHOULD BE MADE ON TIME. — A
motion to disqualify a member of the Supreme Court filed after
the said member had given his opinion on the merits of the case
cannot be considered because a litigant cannot be permitted to
speculate upon the action of the court and raise an objection of
this sort after decision has been rendered.
11. ID.; ID.; MEMBER OF SUPREME COURT FORMERLY
AS SECRETARY OF JUSTICE. — The fact that a member of the
Supreme Court while Secretary of Justice had advised the Chief
Executive on the question involved in a certain case, does not
disqualify him to act when it is brought before the court, for he
cannot be considered as having acted previously in said case as
counsel of any of the parties when the Chief Executive is not a
party thereto.
12. ID.; STATUTORY CONSTRUCTION; WHO MAY TAKE
PART IN THE ADJUDICATION; RULE 53, SECTION 1 WITH RULE
58, SECTION 1, INTERPRETED. — One who is not a member of
the court at the time an adjudication is made cannot take part
in that adjudication. The word "adjudication" means decision. A
case can be adjudicated only by means of a decision. And a
decision of this Court, to be of value and binding force, must be
in writing duly signed and promulgated (Article VIII, sections 11
and 12, of the Constitution; Republic Act No. 296, section 21;
Rule 53, section 7, of the Rules of Court). Promulgation means
the delivery of the decision to the Clerk of Court for filing and
publication.
13. ID.; ID.; ID.; ID. — One who is no longer a member
of this Court at the time a decision is signed and promulgated,
cannot validly take part in that decision.
14. CONSTITUTIONAL LAW; EACH OF THE GREAT
BRANCHES OF THE GOVERNMENT TO COMPLY WITH ITS OWN
DUTY. — Democracy is on trial in the Philippines, and surely it
will emerge victorious as a permanent way of life in this
country, if each of the great branches of the Government,
within its own allocated sphere, complies with its own
constitutional duty, uncompromisingly and regardless of
difficulties.
15. EXECUTIVE ORDERS ARE NOT LAWS. — Executive
Orders, even if issued within the powers validly vested in the
Chief Executive, are not laws, although they may have the force
of law, in exactly the same manner as the judgments of the
Supreme Court, municipal ordinances and ordinary executive
orders cannot be considered as laws, even if they have the
force of law.
16. ID. — Executive orders issued by the President in
pursuance of the power delegated to him under section 26,
Article VI of the Constitution, may be considered only as rules
and regulations.
17. JUDGES; REQUIRED NUMBER OF VOTES TO ANNUL
EXECUTIVE ORDERS. — There is nothing either in the
Constitution or in the Judiciary Act requiring the votes of eight
justices to nullify a rule or regulation or an executive order
issued by the President. Hence, a mere majority of six members
of the Supreme Court is enough to nullify them.
DECISION
TUASON, J p:
Three of these cases were consolidated for argument
and the other two were argued separately on other dates.
Inasmuch as all of them present the same fundamental
question which, in our view, is decisive, they will be disposed of
jointly. For the same reason we will pass up the objection to the
personality or sufficiency of interest of the petitioners in case
G.R. No. L-3054 and case G.R. No. L-3056 and the question
whether prohibition lies in cases Nos. L-2044 and L-2756. No
practical benefit can be gained from a discussion of these
procedural matters, since the decision in the cases wherein the
petitioners' cause of action or the propriety of the procedure
followed is not in dispute, will be controlling authority on the
others. Above all, the transcendental importance to the public
of these cases demands that they be settled promptly and
definitely, brushing aside, if we must, technicalities of
procedure. (Avelino vs. Cuenco, G.R. No. L-2821.)
The petitions challenge the validity of executive orders
of the President avowedly issued in virtue of Commonwealth
Act No. 671. Involved in cases Nos. L-2044 and L-2756 is
Executive Order No. 62, which regulates rentals for houses and
lots for residential buildings. The petitioner, J. Antonio Araneta,
is under prosecution in the Court of First Instance of Manila for
violation of the provisions of this Executive Order, and prays for
the issuance of the writ of prohibition to the judge and the city
fiscal. Involved in case L-3055 is Executive Order No. 192, which
aims to control exports from the Philippines. In this case, Leon
Ma. Guerrero seeks a writ of mandamus to compel the
Administrator of the Sugar Quota Office and the Commissioner
of Customs to permit the exportation of shoes by the
petitioner. Both officials refuse to issue the required export
license on the ground that the exportation of shoes from the
Philippines is forbidden by this Executive Order. Case No. L-
3054 relates to Executive Order No. 225, which appropriates
funds for the operation of the Government of the Republic of
the Philippines during the period from July 1, 1949 to June 30,
1950, and for other purposes. The petitioner, Eulogio
Rodriguez, Sr., as a tax-payer, an elector, and president of the
Nacionalista Party, applies for a writ of prohibition to restrain
the Treasurer of the Philippines from disbursing money under
this Executive Order. Affected in case No. L-3056 is Executive
Order No. 226, which appropriates P6,000,000 to defray the
expenses in connection with, and incidental to, the holding of
the national elections to be held in November, 1949. The
petitioner, Antonio Barredo, as a citizen, tax-payer and voter,
asks this Court to prevent "the respondents from disbursing,
spending or otherwise disposing of that amount or any part of
it."
Notwithstanding allegations in the petitions assailing
the constitutionality of Act No. 671, the petitioners do not press
the point in their oral argument and memorandum. They rest
their case chiefly on the proposition that the Emergency Powers
Act (Commonwealth Act No. 671) has ceased to have any force
and effect. This is the basic question we have referred to, and it
is to this question that we will presently address ourselves and
devote greater attention. For the purpose of this decision, only,
the constitutionality of Act No. 671 will be taken for granted,
and any dictum or statement herein which may appear contrary
to that hypothesis should be understood as having been made
merely in furtherance of the main thesis.
Act No. 671 in full is as follows:
AN ACT DECLARING A STATE OF TOTAL
EMERGENCY AS A RESULT OF WAR INVOLVING
THE PHILIPPINES AND AUTHORIZING THE
PRESIDENT TO PROMULGATE RULES AND
REGULATIONS TO MEET SUCH EMERGENCY.
Be it enacted by the National Assembly of the
Philippines:
SECTION 1.The existence of war
between the United States and other countries
of Europe and Asia, which involves the
Philippines, makes it necessary to invest the
President with extraordinary powers in order to
meet the resulting emergency.
"SEC. 2.Pursuant to the provisions of
Article VI, section 26, of the Constitution, the
President is hereby authorized, during the
existence of the emergency, to promulgate such
rules and regulations as he may deem necessary
to carry out the national policy declared in
section 1 hereof. Accordingly, he is, among
other things, empowered (a) to transfer the seat
of the Government or any of its subdivisions,
branches, departments, offices, agencies or
instrumentalities; (b) to reorganize the
Government of the Commonwealth including
the determination of the order of precedence of
the heads of the Executive Department; (c) to
create new subdivisions, branches,
departments, offices, agencies or
instrumentalities of government and to abolish
any of those already existing; (d) to continue in
force laws and appropriations which would
lapse or otherwise become inoperative, and to
modify or suspend the operation or application
of those of an administrative character; (e) to
impose new taxes or to increase, reduce,
suspend or abolish those in existence; (f) to
raise funds through the issuance of bonds or
otherwise, and to authorize the expenditure of
the proceeds thereof; (g) to authorize the
national, provincial, city or municipal
governments to incur in overdrafts for purposes
that he may approve; (h) to declare the
suspension of the collection of credits or the
payment of debts; and (i) to exercise such other
powers as he may deem necessary to enable the
Government to fulfill its responsibilities and to
maintain and enforce the authority.
"SEC. 3.The President of the Philippines
shall as soon as practicable upon the convening
of the Congress of the Philippines report thereto
all the rules and regulations promulgated by him
under the powers herein granted.
"SEC. 4.This Act shall take effect upon
its approval and the rules and regulations
promulgated hereunder shall be in force and
effect until the Congress of the Philippines shall
otherwise provide."
Section 26 of Article VI of the Constitution provides:
"In time of war or other national
emergency, the Congress may by law authorize
the President, for a limited period and subject to
such restrictions as it may prescribe, to
promulgate rules and regulations to carry out a
declared national policy."
Commonwealth Act No. 671 does not in term fix the
duration of its effectiveness. The intention of the Act has to be
sought for in its nature, the object to be accomplished, the
purpose to be subserved, and its relation to the Constitution.
The consequences of the various constructions offered will also
be resorted to as additional aid to interpretation. We test a rule
by its results.
Article VI of the Constitution provides that any law
passed by virtue thereof should be "for a limited period."
"Limited" has been defined to mean "restricted; bounded;
prescribed; confined within positive bounds; restrictive in
duration, extent or scope." (Encyclopedia Law Dictionary, 3rd
ed., 669; Black's Law Dictionary, 3rd ed., 1120.) The words
"limited period" as used in the Constitution are beyond
question intended to mean restrictive in duration. Emergency,
in order to justify the delegation of emergency powers, "must
be temporary or it can not be said to be an emergency." (First
Trust Joint Stock Land Bank of Chicago vs. Adolph P. Arp, et al.,
120 A. L. R., 937, 938.)
It is to be presumed that Commonwealth Act No. 671
was approved with this limitation in view. The opposite theory
would make the law repugnant to the Constitution, and is
contrary to the principle that the legislature is deemed to have
full knowledge of the constitutional scope of its powers. The
assertion that new legislation is needed to repeal the act would
not be in harmony with the Constitution either. If a new and
different law were necessary to terminate the delegation, the
period for the delegation, it has been correctly pointed out,
would be unlimited, indefinite, negative and uncertain; "that
which was intended to meet a temporary emergency may
become permanent law," (Peck vs. Fink, 2 Fed. [2d], 912); for
Congress might not enact the repeal, and even if it would, the
repeal might not meet with the approval of the President, and
the Congress might not be able to override the veto.
Furthermore, this would create the anomaly that, while
Congress might delegate its powers by simple majority, it might
not be able to recall them except by a two-third vote. In other
words, it would be easier for Congress to delegate its powers
than to take them back. This is not right and is not, and ought
not to be, the law. Corwin, President: Office and Powers, 1948
ed., p. 160, says:
"It is generally agreed that the maxim
that the legislature may not delegate its powers
signifies at the very least that the legislature
may not abdicate its powers. Yet how, in view of
the scope that legislative delegations take
nowadays, is the line between delegation and
abdication to be maintained? Only, I urge, by
 rendering the delegated powers recoverable
without the consent of the delegate; . . ."
Section 4 goes far to settle the legislative intention of
this phase of Act No. 671. Section 4 stipulates that "the rules
and regulations promulgated thereunder shall be in full force
and effect until the Congress of the Philippines shall otherwise
provide." The silence of the law regarding the repeal of the
authority itself, in the face of the express provision for the
repeal of the rules and regulations issued in pursuance of it, a
clear manifestation of the belief held by the National Assembly
that there was no necessity to provide for the former. It would
be strange if having no idea about the time the Emergency
Powers Act was to be effective the National Assembly failed to
make a provision for its termination in the same way that it did
for the termination of the effects and incidents of the
delegation. There would be no point in repealing or annulling
the rules and regulations promulgated under a law if the law
itself was to remain in force, since, in that case, the President
could not only make new rules and regulations but he could
restore the ones already annulled by the legislature.
More anomalous than the exercise of legislative
functions by the Executive when Congress is in the
unobstructed exercise of its authority is the fact that there
would be two legislative bodies operating over the same field,
legislating concurrently and simultaneously, mutually nullifying
each other's actions. Even if the emergency powers of the
President, as suggested, be suspended while Congress was in
session and be revived after each adjournment, the anomaly
would not be eliminated. Congress by a two-third vote could
repeal executive orders promulgated by the President during
congressional recess, and the President in turn could treat in
the same manner, between sessions of Congress, laws enacted
by the latter. This is not a fantastic apprehension; in two
instances it materialized. In entire good faith, and inspired only
by the best interests of the country as they saw them, a former
President promulgated an executive order regulating house
rentals after he had vetoed a bill on the subject enacted by
Congress, and the present Chief Executive issued an executive
order on export control after Congress had refused to approve
the measure.
Quite apart from these anomalies, there is good basis
in the language of Act No. 671 for the inference that the
National Assembly restricted the life of the emergency powers
of the President to the time the Legislature was prevented from
holding sessions due to enemy action or other causes brought
on by the war. Section 3 provides:
"The President of the Philippines shall
as soon as practicable upon the convening of
the Congress of the Philippines report thereto
all the rules and regulations promulgated by him
under the powers herein granted."
The clear tenor of this provision is that there was to be only one
meeting of Congress at which the President was to give an
account of his trusteeship. The section did not say each
meeting, which it could very well have said if that had been the
intention. If the National Assembly did not think that the report
mentioned in section 3 was to be the first and last and did not
think that upon the convening of the first Congress Act No. 671
would lapse, what reason could there be for its failure to
provide in appropriate and clear terms for the filing of
subsequent reports? Such reports, if the President was
expected to continue making laws in the form of rules,
regulations and executive orders, were as important, or as
unimportant, as the initial one.
As a contemporary construction, President Quezon's
statement regarding the duration of Act No. 671 is enlightening
and should carry much weight, considering his part in the
passage and in the carrying out of the law. Mr. Quezon, who
called the National Assembly to a special session, who
recommended the enactment of the Emergency Powers Act, if
indeed he was not its author, and who was the very President
to be entrusted with its execution, stated in his autobiography,
"The Good Fight," that Act No. 671 was only "for a certain
period" and "would become invalid unless reenacted." These
phrases connote automatical extinction of the law upon the
conclusion of a certain period. Together they denote that a new
legislation was necessary to keep alive (not to repeal) the law
after the expiration of that period. They signify that the same
law, not a different one, had to be repassed if the grant should
be prolonged.
What then was the contemplated period? President
Quezon in the same paragraph of his autobiography furnished
part of the answer. He said he issued the call for a special
session of the National Assembly "when it became evident that
we were completely helpless against air attack, and that it
was most unlikely the Philippine Legislature would hold its next
regular session which was to open on January 1, 1942." (Italics
ours.) It can easily be discerned in this statement that the
conferring of enormous powers upon the President was
decided upon with specific view to the inability of the National
Assembly to meet. Indeed no other factor than this inability
could have motivated the delegation of powers so vast as to
amount to an abdication by the National Assembly of its
authority. The enactment and continuation of a law so
destructive of the foundations of democratic institutions could
not have been conceived under any circumstance short of a
complete disruption and dislocation of the normal processes of
government. Anyway, if we are to uphold the constitutionality
of the act on the basis of its duration, we must start with the
premise that it fixed a definite, limited period. As we have
indicated, the period that best comports with the constitutional
requirements and limitations, with the general context of the
law and with what we believe to be the main if not the
sole raison d'etre for its enactment, was a period coextensive
with the inability of Congress to function, a period ending with
the convening of that body.
It is our considered opinion, and we so hold, that
Commonwealth Act No. 671 became inoperative when
Congress met in regular session on May 25, 1946, and that
Executive Orders Nos. 62, 192, 225 and 226 were issued
without authority of law. In setting the first regular session of
Congress instead of the first special session which preceded it
as the point of expiration of the Act, we think we are giving
effect to the purpose and intention of the National Assembly. In
a special session, the Congress may "consider general legislation
or only such subjects as he (President) may designate." (Section
9, Article VI of the Constitution.) In a regular session, the power
of Congress to legislate is not circumscribed except by the
limitations imposed by the organic law.
Having arrived at this conclusion, we are relieved of
the necessity of deciding the question as to which department
of government is authorized to inquire whether the
contingency on which the law is predicated still exists. The right
of one or another department to declare the emergency
terminated is not in issue. As a matter of fact, we have
endeavored to find the will of the National Assembly — call that
will, an exercise of the police power or the war power — and,
once ascertained, to apply it. Of course, the function of
interpreting statutes in proper cases, as in this, will not be
denied the courts as their constitutional prerogative and duty.
In so far as it is insinuated that the Chief Executive has the
exclusive authority to say that war has not ended, and may act
on the strength of his opinion and findings in contravention of
the law as the courts have construed it, no legal principle can be
found to support the proposition. There is no pretense that the
President has independent or inherent power to issue such
executive orders as those under review. We take it that the
respondents, in sustaining the validity of these executive orders
rely on Act No. 600, Act No. 620, or Act No. 671 of the former
Commonwealth and on no other source. To put it differently,
the President's authority in this connection is purely statutory,
in no sense political or directly derived from the Constitution.
Act No. 671, as we have stressed, ended ex proprio
vigore with the opening of the regular session of Congress on
May 25, 1946. Acts Nos. 600 and 620 contain stronger if not
conclusive indication that they were self-liquidating. By express
provision the rules and regulations to be eventually made in
pursuance of Acts Nos. 600 and 620, respectively approved on
August 19, 1940 and June 6, 1941, were to be good only up to
the corresponding dates of adjournment of the following
sessions of the Legislature, "unless sooner amended or
repealed by the National Assembly." The logical deduction to be
drawn from this provision is that in the minds of the lawmakers
the idea was fixed that the Acts themselves would lapse not
later than the rules and regulations. The design to provide for
the automatic repeal of those rules and regulations necessarily
was predicated on the consciousness of a prior or at best
simultaneous repeal of their source. Were not this the case,
there would arise the curious spectacle, already painted, and
easily foreseen, of the Legislature amending or repealing rules
and regulations of the President while the latter was
empowered to keep or return them into force and to issue new
ones independently of the National Assembly. For the rest, the
reasoning heretofore adduced against the asserted indefinite
continuance of the operation of Act No. 671 equally applies to
Acts Nos. 600 and 620.
The other corollary of the opinion we have reached is
that the question whether war, in law or in fact, continues, is
irrelevant. If we were to assume that actual hostilities between
the original belligerents are still raging, the conclusion would
not be altered. After the convening of Congress new legislation
had to be approved if the continuation of the emergency
powers, or some of them, was desired. In the light of the
conditions surrounding the approval of the Emergency Powers
Act, we are of the opinion that the "state of total emergency as
a result of war" envisaged in the preamble referred to the
impending invasion and occupation of the Philippines by the
enemy and the consequent total disorganization of the
Government, principally the impossibility for the National
Assembly to act. The state of affairs was one which called for
immediate action and with which the National Assembly would
not be able to cope. The war itself and its attendant chaos and
calamities could not have necessitated the delegation had the
National Assembly been in a position to operate.
After all the criticisms that have been made against the
efficiency of the system of the separation of powers, the fact
remains that the Constitution has set up this form of
government, with all its defects and shortcomings, in
preference to the commingling of powers in one man or group
of men. The Filipino people by adopting parliamentary
government have given notice that they share the faith of other
democracy-loving peoples in this system, with all its faults, as
the ideal. The point is, under this framework of government,
legislation is preserved for Congress all the time, not excepting
periods of crisis no matter how serious. Never in the history of
the United States, the basic features of whose Constitution
have been copied in ours, have the specific functions of the
legislative branch of enacting laws been surrendered to another
department — unless we regard as legislating the carrying out
of a legislative policy according to prescribed standards; no, not
even when that Republic was fighting a total war, or when it
was engaged in a life-and-death struggle to preserve the Union.
The truth is that under our concept of constitutional
government, in times of extreme perils more than in normal
circumstances "the various branches, executive, legislative, and
judicial," given the ability to act, are called upon "to perform
the duties and discharge the responsibilities committed to them
respectively."
These observations, though beyond the issue as
formulated in this decision, may, we trust, also serve to answer
the vehement plea that for the good of the Nation, the
President should retain his extraordinary powers as long as
turmoil and other ills directly or indirectly traceable to the late
war harass the Philippines.
Upon the foregoing considerations, the petitions will
be granted. In order to avoid any possible disruption and
interruption in the normal operation of the Government, we
have deemed it best to depart in these cases from the ordinary
rule relative to the period for the effectivity of decisions, and to
decree, as it is hereby decreed, that this decision take effect
fifteen days from the date of the entry of final judgment
provided in section 8 of Rule 53 of the Rules of Court in relation
to section 2 of Rule 35. No costs will be charged.
Moran, C.J., concurs in part.
Ozaeta, J., concurs.
Paras, J., concurs and also in separate opinion.
Feria, J., concurs in so far as the decision is not in
conflict with his separate opinion.
Separate Opinions
MORAN, C.J., concurring in part:
I agree with the opinion prepared by Mr. Justice
Tuason, except on the points hereunder discussed.
I believe, on the one hand, that the emergency powers
of the President had ceased not in May 1946, when Congress
held its regular sessions, as Mr. Justice Tuason and Mr. Justice
Feria maintain, but on June 9, 1945, when Congress convened
in a special session to consider general legislation. The
emergency contemplated in Commonwealth Act No. 671, is
"total emergency" which means the state of actual war
involving the Philippines, with the impending invasion and
occupation of our country by the enemy and the consequent
total disorganization and paralyzation of the Government,
principally, the impossibility for the National Assembly to act.
This was the only reason and justification for the total
relinquishment of legislative power by Congress in favor of the
Chief Executive under Commonwealth Act No. 671. Such
relinquishment was total because the emergency was also total.
Clearly, therefore, the inability of Congress to act was the soul
of the law, and the moment such inability ceased, the total
emergency also ceased and the law likewise ceased to validly
exist. On June 9, 1945, the Congress of the Philippines
convened in a special session "to adopt such measures as may
be necessary to meet the existing emergency" and "for the
purpose of considering general legislation." I hold that from
that date, June 9, 1945, Congress was able and ready to act on
all matters, and the emergency powers delegated to the
President in Commonwealth Act No. 671, naturally ceased to
exist.
Upon the other hand, while I believe that the
emergency powers had ceased in June 1945, I am not prepared
to hold that all executive orders issued thereafter under
Commonwealth Act No. 671, are per se null and void. It must be
borne in mind that these executive orders had been issued in
good faith and with the best of intentions by three successive
Presidents, and some of them may have already produced
extensive effects in the life of the nation. We have, for instance,
Executive Order No. 73, issued on November 12, 1945,
appropriating the sum of P6,750,000 for public works; Executive
Order No. 86, issued on January 7, 1946, amending a previous
order regarding the organization of the Supreme Court;
Executive Order No. 89, issued on January 1, 1946, reorganizing
the Courts of First Instance; Executive Order No. 184, issued on
November 19, 1948, controlling rice and palay to combat
hunger; and other executive orders appropriating funds for
other purposes. The consequences of a blanket nullification of
all these executive orders will be unquestionably serious and
harmful. And I hold that before nullifying them, other important
circumstances should be inquired into, as for instance, whether
or not they have been ratified by Congress expressly or
impliedly, whether their purposes have already been
accomplished entirely or partially, and in the last instance, to
what extent; acquiescence of litigants; de facto officers; acts
and contracts of parties acting in good faith; etc. It is my
opinion that each executive order must be viewed in the light of
its peculiar circumstances, and, if necessary and possible,
before nullifying it, precautionary measures should be taken to
avoid harm to public interest and innocent parties.
To illustrate the foregoing proposition of individual
consideration of specific cases, I shall go into a brief discussion
of the executive orders involved in the cases now before this
Court. With regard to the Executive Order No. 225 on general
appropriation, I hold that the court should not declare it null
and void till Congress may have an opportunity to provide a
substitute measure for the sustenance of government. This
view is predicated upon the principle of absolute necessity. Till
Congress may pass a valid appropriation act our government
cannot survive without the executive order in question. It
would be absurd for this court to declare the cessation of an
emergency, and by that same declaration permit, if not abet,
the formation of another emergency which would be inevitable
if, by reason of lack of appropriation, government shall cease to
function. In such cases, when apparently the provisions of our
laws and Constitution seem inadequate, the courts must go
deeper even than the very Magna Carta itself and find solution
in the basic principles of preservation of government and of
national survival, which in the last analysis, are the very reasons
for the existence of a Constitution. In such extreme cases, as
can come from the present situation, it would be the height of
judicial imprevision to preserve the form of the constitution,
and at the same time permit the disruption and cessation of the
government which that same constitution so intricately
designed and firmly established. Thus, in the remedy of an evil,
we shall cause a far greater one.
It may be argued that the course of action I am taking
is founded upon fear, fear that Congress will again fail to act on
the matter of appropriations, and it may be asserted that the
members of Congress are presumed to be as patriotic as the
members of this Court, if not more, and that, therefore, we may
rest assured that they will not fail to fulfill their duty. I admit
this to be true, and accordingly, I ask what is then the hurry and
necessity for nullifying the executive order on appropriations
which we are sure will soon be substituted by a valid
appropriations act? Why not defer judgment and wait until the
special session of Congress so that it may fulfill its duty as it
clearly sees it? I can find no reason against this suggestion
except, perhaps, a desire to assert judicial supremacy in a case
where judicial statemanship is more necessary.
It is also true that the possibility that Congress will
again fail to provide funds for the operation of the government
is a remote possibility. But there is no harm in providing for all
possibilities, both near and remote. If that remote possibility
never comes, well and good, nothing is lost and the situation is
saved. However, if the remote possibility does come, and it is
not impossible, and we had already nullified the executive order
on appropriations, how will the government function and
survive? On the other hand, if we defer judgment upon the
nullity of such executive order, and that remote possibility does
come, we still have the saving lifeline of that executive order
which may, perhaps, be tolerated to save the country from
chaos, until a more proper and adequate remedy can be
secured.
With regard to the executive order appropriating funds
for the conduct of the coming elections, I uphold the same view
as in the foregoing, namely, not in abdicating the power of this
court to pass upon the validity of an executive order, but to
defer judgment upon such an order until the legislature may
provide a substitute measure. The reason for this is, likewise,
absolute necessity. Without such Executive Order we may not
have elections in November. Elections are the very essence of
popular government for the establishment and preservation of
which, our Constitution has been consecrated. To permit the
unwarranted abolition or even suspension of elections, will
surely result either in the denial of popular representation or in
the perpetuation in power of those already in office. Either
result is revolting to our system of government. Briefly stated, I
hold that this court should neither ratify nor nullify this
executive order, but should defer judgment in the same manner
and for the same reasons stated above in connection with the
executive order on appropriations. The Court, in these cases, is
confronted not only with bare issues of law, but with actual
anomalous situations pregnant with possible dangers to the
nation, and it is the duty of the Court, as a dispenser of justice,
to find a solution that is both legal and realistic.
With reference to Executive Order No. 62, which
regulates rentals for houses, and Executive Order No. 192,
which aims to control exports from the Philippines, I agree that
they must be held null and void upon the reasons stated by Mr.
Justice Tuason and Mr. Justice Feria and also upon those stated
by Mr. Justice Montemayor and Mr. Justice Alex Reyes.
My vote, therefore, is that the petitions must be
granted in Araneta vs. Dinglasan, G. R. No. L-2044; Araneta vs.
Angeles, G.R. No. L-2756 and Guerrero vs. Commissioner of
Customs, G.R. No. L-3055, and that judgment must be deferred
in Rodriguez vs. El Tesorero de Filipinas, G.R. No. L-3054 and
Barredo vs. The Commission on Elections, G.R. No. L-3056.
PARAS, J., concurring:
I concur in the opinion of Mr. Justice Tuason. I wish to
add, however, the following observations: Even assuming, for
the sake of argument, that the legislative intent is to make
Commonwealth Act No. 671 effective during the existence of
the emergency contemplated therein and that it is within the
exclusive province of the political departments to determine
whether said emergency continues or has ceased to exist, I am
of the conviction that, in view of the formal and unmistakable
declarations of both the Congress and the President, said Act
No. 671 should be held as having lost its force and effect.
It is important to remember that the kind of
emergency expressly spoken of in the Act is a total emergency
resulting from war and that the Act was passed at a time
(December 16, 1941) when there was factually a state of war
involving the Philippines.
In section 1 of Republic Act No. 342, approved on July
26, 1948, it was categorically declared by the Congress that
"since liberation conditions have gradually returned to normal,
but not so with regard to those who have suffered the ravages
of war and who have not received any relief for the loss and
destruction resulting therefrom," and that "the emergency
created by the last war as regards these war sufferers being still
existent, it is the declared policy of the state that as to them the
debt moratorium should be continued in force in a modified
form." The President, in turn, in his speech delivered on July 4,
1949, plainly proclaimed that "what emergencies it (the
Republic) faces today are incidental passing pains artificially
created by seasonal partisanship, very common among
democracies but will disappear with the rains that follow the
thunderclaps not later than November 8 of this year."
We thus have a formal declaration on the part of the
Congress that the emergency created by the last war exists as
regards only those debtors whose war damage claims have not
been settled by the United States Philippine War Damage
Commission (section 2, Republic Act No. 342), patently meaning
that said emergency is, at most, a partial emergency. It is
needless to point out that only a small portion of the Philippine
population are debtors and not all of those who are debtors are
war damage claimants.
We also have the solemn declaration on the part of the
President that the emergencies faced by the Republic are
incidental emergencies artificially created by seasonal
partisanship, clearly meaning that such emergencies not only
are not total but are not the result of war.
If the emergency is, as admitted by the Congress, not
total and, as admitted by the President, not the result of the
war, Commonwealth Act No. 671 has lost its basis and cannot
legally give rise to the executive orders herein involved. Indeed,
it is not pretended that said orders are intended to meet any
emergency growing out of the last war. Lack of a budget, an
appropriation for the elections, or an import control law, has
been brought about by the inaction of the Congress unaffected
by the last war, and such emergency, if it may be called so, is
not of the kind contemplated in Commonwealth Act No. 671.
The government has for four years since liberation
been normally functioning; elections had been regularly held; a
national census had been taken; Congress had held regular and
special sessions; "people travel freely most everywhere and
more quickly, by land, sea and air, to an extent that was not
hitherto enjoyed," and "business is more brisk than ever, goods
are plentiful, our people even in the remotest communities and
barrios of the country are better dressed, their diet has been
immensely improved, and they look more healthy than they
ever did" (President's fifth monthly radio chat, March 15, 1949);
and the sporadic depredations of the outlaws in isolated areas
of the country are but the last paroxysms of a dying movement
(President's State-of- the-Nation Message, January 24, 1949), -
all these certainly negative the existence of any real (much less
total) emergency.
That the Congress had heretofore recognized the
cessation of the emergency is conclusively established by the
fact that it had assumed the task of directly enacting, during its
past sessions, measures dealing with all the matters covered by
the specific legislative powers conceded to the President in
Commonwealth Act No. 671. This is in line with the
fundamental reason for the approval of said Act, as may be
gathered from the following statement of President Quezon:
"When it became evident that we were completely helpless
against air attack and that it was most unlikely the Philippine
Legislature would hold its next regular session which was to
open on January 1, 1942, the National Assembly passed into
history approving a resolution which reaffirmed the abiding
faith of the Filipino people in, and their loyalty to, the United
States. The assembly also enacted a law granting the President
of the Philippines all the powers that under the Philippine
Constitution may be delegated to him in time of war." (The
Good Fight, pp. 204-205.) When President Quezon said "in time
of war", he undoubtedly meant factual war, a situation that
existed at the time of the passage of Commonwealth Act No.
671.
Indeed, the dissenters admit that any delegated power
directly exercised by the principal is considered withdrawn from
the agent. A cursory examination of Commonwealth Act No.
671 will show that the legislative functions therein specified had
been discharged by the Congress. The following illustrates the
powers delegated in the Act and the measures enacted by the
Congress itself covering each:
Section 2 of Commonwealth Act No. 671 —
(a)to transfer the seat of the Government or any of its
subdivisions, branches, departments, offices, agencies or
instrumentalities:
Republic Act No. 333 —
"An Act to establish the Capital of the
Philippines and the permanent seat of the
National Government, to create a capital city
planning commission, to appropriate funds for
the acquisition of private estates within the
boundary limits of said city, and to authorize the
issuance of bonds of the National Government
for the acquisition of private estates, for the
subdivision thereof, and for the construction of
streets, bridges, waterworks, sewerage and
other municipal improvements in the capital
City." (Approved, July 17, 1948.)
(b)to reorganize the Government of the
Commonwealth including the determination of the order of
precedence of the heads of the Executive Departments:
Republic Act No. 51 —
"An Act authorizing the President of
the Philippines to reorganize within one year the
different Executive departments, bureaus,
offices, agencies and their instrumentalities of
the government, including the corporations
owned or controlled by it." (Approved, October
4, 1946.)
(c)to create new subdivisions, branches, departments,
offices, agencies or instrumentalities of government and to
abolish any of those already existing:
Commonwealth Act No. 732 —
"An Act to create the Department of
Foreign Affairs and to authorize the President of
the Philippines to organize said department as
well as the foreign service of the Republic of the
Philippines." (Approved, July 3, 1946.)
(d)to continue in force laws and appropriations which
would lapse or otherwise become inoperative, and to modify or
suspend the operation or application of those of an
administrative character:
Commonwealth Act No. 709 —
"An Act appropriating the sum of five
million pesos to enable the national housing
commission to resume its functions."
(Approved, November 1, 1945.)
Commonwealth Act No. 710 —
"An Act to appropriate funds to
continue the payment of Retirement gratuities
or pensions under existing laws." (Approved,
November 1, 1945.)
(e)to impose new taxes or to increase, reduce,
suspend, or abolish those in existence:
Republic Act No. 215 —
"An Act to amend Section One of
the Republic Act numbered eighty-one providing
a new time limit for the waiver of, and/or
extension of the period, within which to
perform, accomplish or comply with, any term,
condition, or stipulation required of locators,
holders, lessees, operators of mining claims or
concessions, end of water rights and timber
concessions connected with the mining industry
and the condonation of mining, specific and real
estate taxes, under certain terms and
conditions." (Approved, June 1, 1948.)
Ley No 321 de la Republica —
"Ley que eleva los derechos de
transferencia de ganado mayor, enmendado al
efecto el articulo quinientos veintiocho del
Codigo Administrativo Revisado." (Aprobada,
Junio 9, 1948.)
(f)to raise funds through the issuance of bonds or
otherwise, and to authorize the expenditure of the proceeds
thereof:
Republic Act No. 265 —
"An Act establishing the Central Bank of
the Philippines . . ." (Section 87 [e] No. 7.)
Approved, June 15, 1948.)
Republic Act No. 266 —
"An Act appropriating such sums as
may from time to time be released by the
Central Bank representing excess monetary
reserves, and authorizing the President of the
Philippines to issue bonds, certificates or other
evidence of indebtedness covering such
amounts." (Approved, June 15, 1948.)
Republic Act No. 85 —
"An Act creating the Rehabilitation
Finance Corporation." (Section 2 [f].) (Approved,
Oct. 29, 1946.)
(g)to authorize the National, provincial, city or
municipal governments to incur in overdrafts for purposes that
he may approve:
Various Appropriation Acts.
(h)to declare the suspension of the collection of credits
or the payment of debts:
Republic Act No. 342, approved, July 26, 1948.
(i)to exercise such other powers as he may deem
necessary to enable the Government to fulfill its responsibilities
and to maintain and enforce its authority.
The powers included in this subdivision (i) are of
course covered by hundreds of other acts approved by the
Congress which, it cannot be denied, all tend to "enable the
Government to fulfill its responsibilities and to maintain and
enforce its authority." Moreover, the withdrawal of the greater
and more important powers may be presumed to have carried
the accessory and less important powers.
There is no merit in the contention that
Commonwealth Act No. 671 was enacted by virtue of the war
powers of the Congress. As the Act itself expressly states, its
basis is section 26 of Article VI of the Constitution which merely
authorizes delegation of legislative powers to the President in
times of war or other national emergency. The phrase "in times
of war or other national emergency" is solely indicative or
descriptive of the occasions during which the delegation may be
extended and does not classify the act of delegating legislative
functions as a war power. It must be borne in mind that said
section 26 is peculiar to our Constitution, with the result that
the decisions of the Supreme Court of the United States cited
on behalf of the respondents, expounding the theory that the
exercise by the President of his war powers granted by the
Congress cannot be interfered with by the courts, are not
controlling. Particularly, the case of Ludecke vs. Watkins, 92 L.
ed., 1883, in which the opinion of the United States Supreme
Court was written by Mr. Justice Frankfurter, cannot apply, for
the further reason that it merely involved the power of
deportation which, even in our jurisdiction, is recognized, it
being the rule here that the courts cannot control the right of
the Chief Executive to determine the existence or sufficiency of
the facts justifying an order of deportation. Upon the other
hand, the war power of the President is separately covered by
section 10, paragraph (2), of Article VII, and that of the Congress
by section 25, Article VI, of the Constitution, which are not
invoked for the passage of Commonwealth Act No. 671.
MONTEMAYOR, J., concurring and dissenting:
The majority opinion holds that Executive Order No. 62
dated June 21, 1947; Executive Order No. 192 dated December
24, 1948; and Executive Orders Nos. 225 and 226 both dated
June 15, 1949 were issued without authority of law and
therefore illegal and of no legal force and effect. I concur only in
the result. Ordinarily, such concurrence without comment or
explanation would be sufficient and satisfactory. However, in
view of the radical difference between the reasons had and
given by the majority in arriving at the result and those
entertained by me, and considering the transcendental
importance of these cases, not only because of the vast
amounts of public funds and the rights of citizens affected but
also of the principles of law involved, and the fact that not only
the force and effect of a law (Commonwealth Act No. 671) but
also the legality and the force and effect of numerous executive
orders issued by several Presidents during a period of about
three years, affecting as they do not only citizens, their interests
and their properties but also the different departments and
offices of the Government, I deem it my duty to set forth my
views and the reasons in support of the same.
There is a claim made about lack of personality of
some of the parties-petitioners particularly, the petitioners in
G.R. Nos. L-3054 and L-3056. Much could be said for and against
that claim, but I am willing to brush aside all the defenses and
technicalities on this point in order to be able to consider and
decide the more important question of the legality of the
executive orders involved and whether or not Commonwealth
Act No. 671 is still in force.
 The aforementioned executive orders were issued on
the strength of and by virtue of Commonwealth Act No. 671.
The majority holds that Commonwealth Act No. 671 ceased to
have any force and effect on May 25, 1946 when Congress first
convened in regular session after liberation. In this, I disagree
for I believe and hold that Commonwealth Act No. 671 is still in
force and in effect. But despite this view, I am of the opinion
that the executive orders under consideration were issued
without authority.
Starting with Executive Order No. 62, we find that it
deals with and regulates house and lot rentals. If the legislature
had not already acted and legislated on this matter since the
promulgation of Commonwealth Act No. 671, this would be a
proper field for Presidential action. However, the legislature
had already promulgated Commonwealth Act No. 689
and Republic Act No. 66, regulating house rentals and, as late as
the month of May, 1947, Congress passed House Bill No. 978
further amending Commonwealth Act No. 689. In other words,
in thus acting, the Legislature had already shown its readiness
and ability to legislate on this matter, and had withdrawn it
from the realm of presidential legislation or regulation under
the powers delegated by Commonwealth Act No. 671. Not only
this, but in issuing rules and regulations in the form of executive
orders under his delegated powers, the Chief Executive merely
acts as an agent of the legislature, his principal which made the
delegation. As such agent, he cannot go against the policy and
expressed desire of his principal.
There are radical differences between Commonwealth
Act No. 689, Republic Act No. 66, and House Bill No. 978 on one
side and Executive Order No. 62 on the other. That was the
reason why President Roxas vetoed House Bill No. 978,
believing in good faith that it would not solve and remedy the
problem of house rentals as explained by him in his
communication to the House of Representatives of June 21,
1947, setting forth his views on the bill. The President may not
and could not substitute his opinion however excellent or
superior for that of the legislature on matters of legislation
when Congress has already acted and expressed its opinion and
desire on the matter.
With respect to Executive Order No. 192, it will be
remembered that Congress passed Commonwealth Act No.
728, approved on July 2, 1946, authorizing the President to
regulate, curtail, control, and prohibit the exportation of certain
products, merchandise and materials. Under said authority the
President issued Executive Order No. 3 dated July 10, 1946,
later amending section 2 of said Executive Order by issuing
Executive Order No. 23 dated November 1, 1946, regulating the
exportation of certain products, materials and merchandise.
The important thing to consider is that section 4
of Commonwealth Act No. 728 provided that the authority it
granted to the President shall terminate on December 31, 1948,
that is to say, that after said date the Executive could no longer
validly regulate exports under said law. The President, however,
overlooked or ignored said injunction and invoking his
emergency powers under Commonwealth Act No. 671,
promulgated Executive Order No. 192 regulating exports, to
take effect on January 1, 1949. What was said with regard to
Executive Order No. 62 is applicable to the lack of authority of
the Executive to promulgate Executive Order No. 192, namely,
that on this matter of export control, the legislature had already
withdrawn it from the jurisdiction of the Executive under his
emergency powers after the enactment of Commonwealth Act
No. 728. Any Presidential power or authority on the subject of
export control was derived from said Act. Not only this, but
when in section 4 of Commonwealth Act No. 728 the legislature
terminated the authority given the President to regulate and
control exports on December 31, 1948 and failed or refused to
renew said authority, the inference or conclusion is that after
said date Congress deemed any presidential regulation on
exports unnecessary and inadvisable. Therefore, in
promulgating Executive Order No. 192 the Chief Executive acted
not only without legislative authority but also against the
wishes and policy of Congress. This he may not validly do.
With respect to Executive Orders Nos. 225 and 226,
the considerations made with regard to Executive Orders Nos.
62 and 192 are equally applicable. By previously enacting
necessary legislation on the yearly Government appropriation
and on the appropriation of funds for the expenses incurred in
national elections, Congress has shown its readiness and ability
to cope with the financial problems of the Government on this
point. Republic Act No. 80, approved October 22, 1946,
appropriating funds for the operation of the National
Government from July 1, 1946 to June 30, 1947; Republic Act
No. 156 appropriating funds for the fiscal year 1947-48
and Republic Act No. 320, the appropriation law for the fiscal
year 1948-49 show that Congress was in a position and able to
provide for the yearly expenditures of the Government.
And Republic Act No. 73appropriating P1,000,000 to defray
election expenses on March 11, 1947; Republic Act No.
147 appropriating P1,000,000 to defray expenses for the
election of provincial, city and municipal officials and eight
senators held on November 11, 1947, and Republic Act No.
235 appropriating P100,000 for the special elections held on
March 23, 1948, to fill vacancies in Representative District No. 4
of Iloilo and No. 1 of Leyte, demonstrated the ability of the
Congress to appropriate money for election purposes. By so
doing Congress had tacitly and impliedly withdrawn this portion
of the field where the President may under his emergency
power legislate or promulgate rules and regulations.
In this connection, it may be stated that in my opinion,
the theory underlying the delegation of emergency powers to
the President under Commonwealth Act No. 671 and similar
laws is that the legislature because of the emergency resulting
from the war, would be unable to meet in order to legislate or
although able to meet, because of the emergency, the ordinary
process of legislation would be too slow and inadequate and
could not cope with the emergency. So, as a remedy, the power
and authority of legislation are vested temporarily in the hands
of one man, the Chief Executive. But as regards Executive
Orders Nos. 225 and 226, the legislature has demonstrated that
not only it could meet but also that it could legislate on this
point of appropriations by approving general appropriation laws
for the different fiscal years since liberation as well as
appropriations for the necessary funds for the different national
and provincial elections. Consequently, there no longer was any
necessity for Presidential legislation in this regard. Moreover,
and this is not unimportant, the failure of the Legislature to
pass an appropriation law for the fiscal year 1949-50 and a law
appropriating funds for the elections in November, 1949 was
not due to any emergency resulting from the war,
contemplated by Commonwealth Act No. 671, but rather and
possibly due to lack of time and because of the rather abrupt
ending and adjourning of the last session of the Legislature last
May.
As already stated, the majority holds that Act No. 671
ceased to have force and effect on May 25, 1946. The other
view is that it is still in force. To me this is the main and the
more important issue involved in these cases. In fact the
argument of the parties centered on this point. The importance
of this issue may readily be appreciated when it is realized that
on its determination is based, not only the validity or nullity
(according to the theory of the majority opinion), of the four
Executive Orders now under consideration, but also of all the
Executive Orders promulgated under authority of
Commonwealth Act No. 671 after May 25, 1946, up to the
present time. Its determination will also decide whether or not
the President may still exercise his emergency powers in the
future on matters and subjects not heretofore withdrawn by
the Legislature. Because of my disagreement with the majority
on this point, I deem it necessary to explain and elaborate on
my reasons for my disagreement.
For purposes of reference and to facilitate the same, I
am reproducing Commonwealth Act No. 671 in full as well as
section 26, Article VI of the Constitution on which said Act is
based:
"AN ACT DECLARING A STATE OF TOTAL
EMERGENCY AS A RESULT OF WAR INVOLVING
THE PHILIPPINES AND AUTHORIZING THE
PRESIDENT TO PROMULGATE RULES AND
REGULATIONS TO MEET SUCH EMERGENCY.
"Be it enacted by the National Assembly of the
Philippines:
"SECTION 1.The existence of war
between the United States and other countries
of Europe and Asia, which involves the
Philippines, makes it necessary to invest the
President with extraordinary powers in order to
meet the resulting emergency.
"SEC. 2.Pursuant to the provisions of
Article VI, section 26, of the Constitution, the
President is hereby authorized, during the
existence of the emergency, to promulgate such
rules and regulations as he may deem necessary
to carry out the national policy declared in
section 1 hereof. Accordingly, he is, among
other things, empowered (a) to transfer the seat
of the Government or any of its subdivisions,
branches, departments, offices, agencies or
says:
instrumentalities; (b) to reorganize the
Government of the Commonwealth including
the determination of the order of precedence of
the heads of the Executive Department; (c) to
create new subdivisions, branches,
departments, offices, agencies or
instrumentalities of government and to abolish
any of those already existing; (d) to continue in
force laws and appropriations which would
lapse or otherwise become inoperative, and to
modify or suspend the operation or application
of those of an administrative character; (c) to
impose new taxes or to increase, reduce,
suspend or abolish those in existence; (f) to
raise funds through the issuance of bonds or
otherwise, and to authorize the expenditure of
the proceeds thereof; (g) to authorize the
national, provincial, city or municipal
governments to incur in overdrafts for purposes
that he may approve; (h) to declare the
suspension of the collection of credits or the
payment of debts; and (i) to exercise such other
powers as he may deem necessary to enable the
Government to fulfill its responsibilities and to
maintain and enforce the authority.
SEC. 3.The President of the Philippines
shall as soon as practicable upon the convening
of the Congress of the Philippines report thereto
all the rules and regulations promulgated by him
under the powers herein granted.
SEC. 4.This Act shall take effect upon its
approval and the rules and regulations
promulgated hereunder shall be in force and
effect until the Congress of the Philippines shall
otherwise provide."
"In time of war or other national
emergency, the Congress may by law authorize
the President, for a limited period and subject to
such restrictions as it may prescribe, to
promulgate rules and regulations to carry out a
declared national policy." (Section 26, Article VI,
Constitution.)
I fully agree with the majority when in its opinion it
"Commonwealth Act No. 671 does not
in term fix the duration of its effectiveness. The
intention of the Act has to be sought for in its
nature, the object to be accomplished, the
purpose to be subserved, and its relation to the
constitution." (Page 5, majority opinion.)
The main thesis of the majority is that the only reason for the
delegation of legislative powers to the Chief Executive under
the Constitution, such as was done under Commonwealth Act
No. 671 was because due to the emergency resulting from the
war, the Legislature could not meet to enact legislation; that
the moment the Legislature could convene there would no
longer be any reason for the exercise by the President of
emergency powers delegated to him; that if, when the
Legislature could meet and actually is in session, the President
is allowed to exercise his delegated legislative powers, there
would be the serious anomaly of two legislative bodies acting at
the same time, namely, the Legislature and the Executive,
"mutually nullifying each other's actions"; that the limited
period fixed in Commonwealth Act No. 671 for its life and
effectiveness as required by the Constitution is the interval
from the passage of said Act and the moment that Congress
could convene, not in special session where its power of
legislation is limited by the Chief Executive in his call for special
session, but in regular session where it could be free to enact
general legislation; and that unless this automatic ending or
cessation of Act No. 671 is so held, there would be need of
another Act or legislation by Congress to repeal Act No. 671 in
which case, the Chief Executive may by his veto power
effectively block any effort in this direction.
I beg to differ with the foregoing thesis. I believe that,
as I already had occasion to state though incidentally, the real
reason for the delegation of legislative powers to the Chief
Executive is not only because the Legislature is unable to meet
due to a national emergency but also because although it could
and does actually meet, whether in regular or special session, it
is not in a position and able to cope with the problems brought
about by and arising from the emergency, problems which
require urgent and immediate action. Certainly, one man can
act more quickly and expeditiously than about one hundred
members of the Legislature, especially when they are divided
into legislative chambers. That is why in times of emergency,
much as we in democratic countries dislike the system or idea
of dictatorship, we hear of food dictator, fuel dictator,
transportation dictator, civilian evacuation dictator, etc., where
the functions which ordinarily belong to a council or board or to
a legislative body, are entrusted under certain limitations to
one single official or individual.
Supposing that during a national emergency and while
the Legislature is in session, the legislators woke up one
morning to find that there was extreme scarcity of imported
foods, fuel, building materials, equipment required in
agriculture and industry, etc., because of a monopoly, hoarding,
injurious speculations, manipulations, private controls and
profiteering, or that there were wide-spread lockouts and
strikes paralyzing transportation, commerce and industry, or
rampant espionage or sabotage endangering the very life and
security of the nation. How much time would it take the
legislature to enact the necessary legislation in order to cope
with the situation and pass the necessary emergency
measures?
We are all familiar with the practice and routine of
enacting laws. A bill is introduced in the Legislature; it is
referred to the corresponding committee, it is studied by said
committee, which in some cases holds public hearings; the
committee discusses the bill and sometimes introduces
amendments; if the bill is not killed in the committee or
shelved, it is submitted to the chamber for study, discussion
and possible amendment by all the members; it is finally voted
and if approved, it is sent to the other house where it
undergoes the same process; and if it is finally approved by
both houses of Congress, it is submitted to the Chief Executive
for his study and approval or veto. All this may consume weeks
or months as a result of which, ordinarily, many bills finally
approved by Congress could be sent to the President for
approval or veto only after adjournment of the legislative
session. And we should not overlook the fact that in some cases
for lack of time or due to disagreement among the legislators or
between the two houses of Congress, important pieces of
legislations like the annual appropriation law for the fiscal year
1949-50, appropriation of funds for the elections to be held in
November, 1949, contained in Executive Orders Nos. 225 and
226, involved in the present cases, and the proposed
amendment to the Election Code etc. have not been passed by
Congress in its last session ending last May, 1949, which session
lasted one hundred days. If we were to rely on the ordinary
process of legislation to meet a national emergency, by the time
the necessary and needed law is passed, the situation sought to
be remedied, or the problem sought to be solved may have
become disastrous or ended in calamity or gone beyond
legislations or any remedy. It would be too late. It would be like
locking the stable door after the horse had been stolen.
Now, for some retrospect. The Philippine National
Assembly delegated its legislative powers because of the
existence of a state of national emergency as early as the year
1939. During its second special session of that year, it
promulgated the following laws:
(a) Commonwealth Act No. 494,
authorizing the President of the Philippines to
suspend until the time of the adjournment of
the next regular session of the National
Assembly, either wholly or partially and under
such conditions as he may deem proper, the
operation of Commonwealth Act No. 444,
commonly known as the Eight Hour Labor Law;
(b) Commonwealth Act No. 496,
authorizing the President to take over, for use or
operation by the Government, any public
service or enterprise and to pay just
compensation in the manner to be determined
by him and to prescribe and promulgate
regulations he may deem essential to carry out
the purposes of the Act;
(c) Commonwealth Act No. 498
declaring a state of national emergency due to a
state of war among several nations and as a
measure to prevent scarcity, monopolization,
hoarding, injurious speculations, profiteering,
etc. affecting the supply, distribution and
movement of foods, clothing, fuel, building
materials, agricultural equipments etc.
authorized the President to purchase any of the
articles or commodities available for storage, for
re-sale or distribution, to fix the maximum
selling price of said articles or commodities and
to promulgate such rules and regulations as he
may deem necessary; and.
(d) Commonwealth Act No. 500
authorizing the President in view of the
existence of a state of national emergency to
reduce the expenditures of the executive
departments of the Government by the
suspension or abandonment of service,
activities, or operations of no immediate
importance.
At that time, September, 1939 the second world war
was only in Europe, quite far from the Philippines and had just
begun. There was then no likelihood of the Philippines being
involved in the war. In fact, the Philippines did not get involved
in the war until more than two years later, in December, 1941.
The National Assembly was then free to meet either in regular
or special session to enact legislation to meet the emergency. In
fact, it met in regular session in January, 1940 lasting 100 days
and in January, 1941 for another regular session of 100 days,
excluding the several special sessions held during those two
years. And yet the Assembly delegated legislative powers to the
President under section 26, Article II of the Constitution. This is
clear proof that, contrary to the theory of the majority opinion,
the Legislature delegated legislative powers to the President
even when it could meet and it actually met several times.
After passing the Acts just mentioned delegating
legislative powers to the President, the Assembly in its fourth
special session on August 19, 1940 repeated and reiterated this
practice and policy by passing Commonwealth Act No. 600
delegating additional and more extensive legislative powers to
the President in spite of the fact that the war was still far away
in Europe and there was no danger or prospect of involving the
Philippines, and the Legislature was still free to meet as in fact it
met again in regular session in January, 1941. During its regular
session begun that month and year, instead of stopping or
ending the legislative powers delegated to the President,
because according to the theory of the majority opinion, the
Legislature was able to meet, the Assembly allowed them to
continue by passing Commonwealth Act No. 620 which merely
amended section 1 of Commonwealth Act No. 600. I repeat that
all this, far from supporting the view of the majority that the
Legislature delegated legislative powers to the President only
because it could not meet, fairly and squarely refutes said view.
Now, let us consider the theory of the majority that it
would be a great anomaly to have two legislative bodies, the
Legislature and the President to be acting at the same time,
each nullifying the acts of the other. I fail to see the suggested
anomaly. In fact, under the view and interpretation given by the
majority of the delegation of legislative powers, the very laws
making such delegation contemplated the simultaneous
functioning of the Legislature and the President, both exercising
legislative powers. And it is a fact that there were several
instances of the legislature and the President both validly and
simultaneously exercising legislative powers.
Under section 2 of Commonwealth Act No. 496 already
referred to, approved on September 30, 1939, the power
delegated to the President to prescribe rules and regulations he
may deem essential to carry out the purposes of the Act,
namely, the taking over of and operation by the Government of
any public service or enterprise and to pay for the same, was to
last until the date of the adjournment of the next regular
session of the National Assembly. This means that, during the
regular session of the Assembly which began in January, 1940
and lasted 100 days, the President could exercise the
emergency powers delegated to him. Again, under
Commonwealth Acts Nos. 600 and 620 the President could and
indeed he exercised his emergency powers during the regular
session of the Assembly which began in January, 1941, when
President Quezon issued at least nine Executive Orders
numbered 321, 333, 335, 337, 339, 340, 342, 344 and 345.
The same thing obtains under Commonwealth Act 671
Since under the view of the majority the emergency powers of
the President granted him by Commonwealth Act No. 671
ended only on May 25, 1946, then the extensive legislative
powers delegated to the President under that Act could be
exercised and in fact they were exercised during the five special
sessions of Congress in the year 1945, which lasted a total of 84
days. During those special sessions of 1945, President Osmeña
issued several Executive Orders in the exercise of his emergency
powers.
Is there further proof needed to show that the
suggested and feared anomaly and impropriety of the
Legislature and the Executive both exercising legislative
functions simultaneously, is more fancied than real? The
situation was contemplated and expressly intended by the
Legislature itself, evidently believing that said condition or state
of affairs was neither anomalous nor improper. There is to my
mind really no incompatibility. At such a time and during the
period of their simultaneous functioning, the Legislature may
perform its ordinary legislative duties taking its time to study,
consider, amend and pass bills, reserving to the President
matters requiring and demanding immediate action.
After all, it is for the Legislature to say whether it
wants the President to exercise his emergency powers at the
same time that it is in session. It may validly and properly
stipulate in its grant of emergency powers that they be
exercised when the Legislature is not in session. In fact, in one
instance, in Commonwealth Act No. 500, section 2, the National
Assembly expressly provided "that the authority herein given
shall be exercised only when the National Assembly is not in
session." When in its other acts of delegation, like
Commonwealth Act 671, the Legislature not only fails to
stipulate this condition, but on the contrary, contemplates
Presidential exercise of legislative powers simultaneously with
the Legislature, it is to be presumed that the Legislature
intended it and saw nothing improper or anomalous in it, and it
is not for the Courts to pass upon the supposed impropriety or
anomaly.
As to the possibility of the Chief Executive validly and
successfully nullifying the acts of the Legislature, to me that is
quite remote, if not impossible. As already stated at the
beginning of this opinion, the Chief Executive acting as an agent
of the Legislature under his emergency powers, may not go
against the wishes and policies of his principal. He can only
carry out its wishes and policies, and where his acts and orders
run counter to those of the Legislature, or operate on a field
already withdrawn because the Legislature had already acted
therein, his acts or Executive Orders must give way and will be
declared void and of no effect, by the Courts, as we are doing
with the Executive Orders involved in these cases.
With respect to the claim in the majority opinion that
unless the emergency powers were made to end at the time the
President made his report to Congress when it convened, it
would be necessary to enact new legislation to repeal the act of
delegation, in which case the period for the delegation would
be unlimited, indefinite, and uncertain, contrary to the
constitutional provisions, I may say that the President was
authorized by Act 671 to exercise emergency powers "during
the existence of the emergency," and not a day longer. To me
that is a limited period in contemplation of the Constitution.
There would be no need for a new law to repeal the Act of
delegation, for said Act is self-liquidating. The moment the
emergency ceases, the law itself automatically ceases to have
force and effect, and the Presidential emergency powers also
end with it.
Under my view, had the invasion of the Philippines by
the Japanese forces, which we feared and expected in
December, 1941 failed to materialize either because the
invasion was repelled or because the Japanese high command
at the last moment decided to by-pass the Philippines and
divert his forces further south to invade, say Australia, or if the
Pacific war had ended as we all or most of us then expected it
to end sooner within weeks or months after its commencement
and that the emergency resulting therefrom had also ceased
soon thereafter, Commonwealth Act No. 671 would have
automatically ceased to have force and effect right in the year
1942 without any affirmative act or law of the Legislature.
There would be no point or reason for the President to continue
exercising emergency powers when there no longer was any
emergency. But under the view of the majority, emergency or
no emergency even if Congress could meet in special session to
enact general legislation, the country must continue to be ruled
by Presidential decree until the next regular session of Congress
which may not come till many months later. In my opinion this
is not logical. To me the real and only reason and test for the
continuance of the exercise of emergency powers is the
continued existence of the emergency, not the inability of
Congress to meet in regular session.
The majority, and the parties who initiated these
proceedings in court fear that the President may promulgate
rules and regulations contrary in purpose and effect to
legislation enacted by the Legislature; that he may reenact his
rules and regulations after being repealed by the legislature,
and that he may even veto a bill passed by Congress repealing
the Act of delegation and ending his emergency powers. It is a
fear not well founded. It runs counter to the presumption that
the Chief Executive like any other public official would perform
his functions and conduct himself in every respect for the good
and welfare of the people and in accordance with the
Constitution. It is fear based on the presumption that the
Legislature and the Chief Executive are at loggerheads, working
at cross purposes and that the President though acting as a
mere agent of his principal, the legislature, would brazenly
repudiate his principal and even challenge its authority, and
that the Chief Executive is so much in love with his emergency
powers that he would perpetuate them by going as far as
vetoing an act of Congress ending said emergency powers. Let it
be said to the credit of and in justice to the different Chief
Executives who have wielded these emergency powers,
Presidents Quezon, Osmeña, Roxas and the present incumbent
President Quirino, that no accusing finger has ever been
pointed at them, accusing or even insinuating that they had
abused their emergency powers or exercised them for any
purpose other than the welfare of the country, or that they had
maliciously acted contrary to the wishes of the Legislature. Even
after liberation there has been no claim not even from the
Legislature itself, to the knowledge of this Court, at least to that
of the undersigned, that any Chief Executive exercised his
delegated powers, knowing that they had ended or had abused
the same.
There is no charge or insinuation that any of the
Executive Orders which we are now holding to be invalid were
issued from ulterior motives or to further and favor the political
interests of the President issuing them. It is admitted in the
majority opinion that Executive Order No. 62, seeking to
regulate house and lot rentals was issued in good faith by
President Roxas. Executive Order No. 192 was issued to
regulate exports, President Quirino presumably believing that
exports at this time still needed regulation and control as was
formerly provided by Congress in its Act No. 728, and that the
matter was still within the field of his emergency powers as was
also mistakenly believed by President Roxas in issuing Executive
Order No. 52. As to Executive Order No. 226, it merely
appropriated funds to defray the expenses in connection with
the holding of the national elections in November, 1949,
without which, said elections could not be held. With respect to
Executive Order No. 225, it merely continues in force Republic
Act 320which appropriated funds for the last fiscal year
inasmuch as Congress had failed to pass a General
Appropriation Act for the operation of the National
Government for the period beginning July 1, 1949 to June 30,
1950. There is no insinuation that any political motives or
purposes are involved in these Executive Orders.
I agree with the majority that since the Constitution
provides that the delegation of legislative powers by the
Legislature should be done for a limited period, it is to be
presumed that Commonwealth Act No. 671 was approved with
this limitation in view. I even agree to its definition of the word
"limited." But I submit that Commonwealth Act No. 671 itself,
limited its operation and effectiveness to and made it
coextensive with the duration of the emergency resulting from
the war and that furthermore, that duration is a limited period
within the meaning and contemplation of the Constitution.
Surely the emergency resulting from the war contemplated by
the National Assembly when it enacted Act No. 671 is not
permanent or indefinite It is of limited duration. It may be long
or it may be short; but it cannot be for always. It has an end.
Presumably the members of the National Assembly thought
that the emergency would not last as long as it did. The belief
entertained at the time by not a few, in fact by a great portion
of the people here not excluding the legislators, was that the
war with Japan would be of short duration, a question of
months at the longest; that American reinforcements would
come at the beginning of the year 1942 and drive away the
invading Japanese armies if they ever were able to occupy the
Philippines and that, consequently, the war as far as these
islands were concerned and the resulting emergency would
soon pass away. The wisdom or lack of wisdom of the National
Assembly in limiting or rather making the life and effectiveness
of Commonwealth Act No. 671 coextensive with the resulting
emergency, viewed in the light of what had actually happened,
cannot be passed upon by this Court. So, as I see it, so long as
the emergency resulting from the War continues,
Commonwealth Act No. 671 subsists and so long the Chief
Executive retains his emergency powers.
The majority believes that as already stated, Act No.
671 was in force only until Congress could meet and resume its
legislative functions. Naturally, this view is based on the theory
that legislative functions in times of emergency are delegated
only because of the inability of the Legislative Department to
meet and exercise its functions. I believe I have successfully
demonstrated the flaw in this theory, not only by showing that
the real reason underlying the delegation of legislative powers
is not the inability of the Legislature to meet but rather its
inability to consider and pass legislation in time to meet an
emergency which requires as it does urgent and immediate
action and can be solved only by the exercise of legislative
functions by one single responsible individual, unhampered by
study and prolonged discussion by many members of the
legislative body, but also by the fact that although since 1939
when the second world war broke out in Europe and for a
period of more than two years thereafter, when the National
Assembly could still meet and in fact convened on several
occasions and for hundreds of days in regular and special
sessions, nevertheless, it had been delegating legislative powers
to the President.
The majority view finds no support in the law. Section
26, Article VI of the Constitution does not impose this condition
or requirement. The only important conditions imposed by the
Constitution are that there be a national emergency and
delegation be for a limited period. The same thing is true with
Act No. 671 which makes the delegation. The only condition
imposed by section 2 of said Act is that the delegated powers
be exercised during the emergency. Neither in the Constitution
nor in Commonwealth Act No. 671 is there any hint or
insinuation, much less express mention about the inability of
the Legislature to meet. When every consideration for clearness
and for Executive and Judicial guidance loudly called for and
demanded an unequivocal and clear expression of
Constitutional and legislative intent, both laws, the source and
basis of the emergency powers are conspicuously silent on this
point. The only conclusion is that neither the framers of the
Constitution nor the members of the National Assembly had
thought of much less intended to impose this condition. To
sustain the majority view would require reading into the law
what is not there.
In further support of its view that emergency powers
may be exercised by the President only until the Legislature
could meet, the majority finds comfort in and cites section 3 of
Act 671 which reads as follows:
"SEC. 3.The President of the Philippines
shall as soon as practicable upon the convening
of the Congress of the Philippines report thereto
all the rules and regulations promulgated by him
under the powers herein granted."
I fail to see anything in said section that warrants a holding that
upon filing his report with Congress, about the rules and
regulations promulgated by him under his emergency powers
under Commonwealth Act 671, his emergency powers
automatically ceased. I could well imagine that under an act of
delegation of legislative powers where the President is
authorized to perform one single act such as the suspension of
the eight-hour labor law under Commonwealth Act No. 494, or
the reduction of the expenditures of the executive departments
of the National Government by the suspension or abandonment
of services, activities or operations of no immediate necessity
under Commonwealth Act No. 500, when the President has
exercised his delegated authority and made his report to the
Assembly as required by said laws, the latter, as well as his
delegated authority thereunder automatically ceased, for the
simple reason that nothing remains to be performed or done.
However, treating of the grant of extensive emergency powers
as was done under Commonwealth Acts Nos. 600, 620 and 671
where said laws contemplated many different acts, rules and
regulations of varied categories and objectives and to be
performed not at one time or instance but at different times
during the existence of the emergency, as the need or occasion
arose, there is no reason for the belief or the holding that upon
submitting a partial report of his acts up to the time he made
the report, the whole law making the delegation including his
powers under it automatically ended. The legislature during the
emergency might be able to convene and naturally, the
President will immediately make his report to it of the rules and
regulations promulgated by him up to that time; but if the
emergency continued or even became more serious, would it
be reasonable to hold that his emergency powers ended right
then and there? Would it not be more logical and reasonable to
believe that inasmuch as the grant and the exercise of his
emergency powers were motivated by and based upon the
existence of the emergency and since the emergency continued
his work and responsibility were not ended and that his partial
report could not possibly affect the continuance of his
emergency powers?
Section 3 of Commonwealth Act No. 671 provides for
the filing of a report with Congress by the President as soon as
that body convened. According to the majority opinion on that
date the whole Act No. 671 ceased to have force and effect.
Under that theory, as soon as Congress convened in June, 1945,
and it is to be presumed that President Osmeña, complying
with his duty, must have made his report of all the numerous
Executive Orders he had issued so far, perhaps including those
issued by his predecessor President Quezon who because of his
premature death was unable to report his acts to Congress, the
President automatically lost his emergency powers. But the
majority opinion qualifies this convening of Congress, for it says
that it must be a regular session and not a special session,
thereby extending the life of Commonwealth Act No. 671 one
year longer, to May, 1946 when Congress held its first regular
session after liberation. I do not quite see the necessity or the
reason for the distinction made between the special and regular
sessions, for at both sessions Congress could well receive the
report of the President. The reason given is that "in a special
session Congress may consider general legislation or only such
subjects as he (President) may designate." But as a matter of
fact, the first two special sessions called by President Osmeña in
1945, after liberation, each for a period of thirty days were both
to consider general legislation. So, actually there is no reason
for the distinction.
Furthermore, if it were the intention of the Legislature
to fix the time at which Commonwealth Act No. 671 would
cease in its operation as of the date when the President could
file his report before Congress when it first convened not
in special session but in regular session, it would have expressly
and unequivocally said so. In its other acts of delegation of
powers when the legislature wanted to have the report of the
President at its regular session, it expressly and explicitly said
so. In section 3 of Commonwealth Act 494, in section 5 of
Commonwealth Act 496, in section 6 of Commonwealth Act
498, in section 3 of Commonwealth Act 500 and in section 4 of
Commonwealth Act 600, the National Assembly provided that
the President shall report to the National Assembly within ten
days after the opening of the next regular session of the said
Assembly of whatever acts have been taken by him under the
authority of those Acts. The Assembly left nothing for
interpretation or speculation. In section 3 of Commonwealth
Act 671, however, the same Assembly has not specified the kind
of session before which the President should make his report. It
merely said that upon the convening of the Congress the
President shall report thereto all the rules and regulations
promulgated by him. We should make no distinction where the
law makes or calls for none. Here again, to support the majority
opinion would require reading into the law, section 3 of Act
671, something that is not there.
In case like the present where there is room for doubt
as to whether or not Commonwealth Act No. 671 has ceased to
operate, one view (of the majority) being that it automatically
ceased to have any force and effect on May 25, 1946, the other
view being that the law operated as long as the emergency
resulting from the war existed, the opinion of and the obvious
interpretation given by the legislature which enacted the law
and made the delegation of powers and the President to whom
the delegation was made and who exercised said powers,
should have much if not decisive weight. We must bear in mind
that we are not passing upon the validity or constitutionality of
a law enacted by the Legislature, in which case, the Court may
find the act invalid and unconstitutional if it is in violation of the
basic law, regardless of the opinion or interpretation given by
the Legislature that passed it or of the Executive Department
which may be trying to enforce it. We assume that Act No. 671
is valid and constitutional. Here, we are merely trying to
ascertain the intention of the National Assembly as to the life
and period of effectiveness of Commonwealth Act No. 671.
Do the study and analysis of other acts of the
Legislature similar to Commonwealth Act 671, favor the view of
the majority? The answer in my opinion is clearly and decidedly
in the negative. The majority cites Commonwealth Acts Nos.
600 and 620 to support the theory that Commonwealth Act 671
automatically ceased to operate when Congress met at its next
regular session. But the logical inference or conclusion to be
drawn from these two acts is, in my opinion, just the reverse. It
is even fatal to the view of the majority as I shall attempt to
show. Let us consider Commonwealth Act 600 delegating
extensive legislative powers to the President, approved on
August 19, 1940, which like Act 671 is silent as to any express
provision regarding its life or period of effectiveness, and as to
how long the emergency powers granted the President by it will
last. Section 4 of said Commonwealth Act No. 600 like section 3
of Act 671 provides that "the President shall within the first ten
days from the date of the opening of the Assembly's next
regular session report to said Assembly whatever action he had
taken under the authority therein granted." Said section 4 of
Act 600 is clearer and more specific than section 3 of Act 671 in
that it clearly specifies the next regular session whereas the
latter refers merely to the convening of Congress. But let us
assume arguendoas contended by the majority that "the
convening of the Congress" mentioned in section 3 of
Commonwealth Act 671, referred to regular session. According
to the majority opinion, under section 4 of Commonwealth Act
No. 600, as soon as the President made the report to the
National Assembly at its "next regular session" which was to be
and was actually held in January, 1941, Commonwealth Act 600
automatically ceased to operate and the President
automatically lost his delegated legislative powers. But this is
contrary to the very view of the National Assembly which
passed said Act 600. Commonwealth Act No. 620 of the
National Assembly passed during that "next regular session"
and approved on June 6, 1941 merely amended section 1 of
Commonwealth Act 600, which enumerated the powers
delegated to the Chief Executive. It left the rest of the
provisions and sections of Commonwealth Act 600 intact. So
that, under section 4 (which was left intact) of Act 600, the
President was still required to report to the National Assembly
within the first 10 days from the date of the opening of its next
regular session which should have begun in January, 1942,
despite the fact that he had already made a report to the
Legislature in January, 1941. Incidentally, this answers and
refutes the contention of the majority that the law of
delegation of powers contemplated only one meeting of
Congress at which the President was to report his acts of
emergency, and that said report was to be the first and the last.
Now, what inference may be drawn from this
amending of section 1 only of Commonwealth Act No. 600 by
Commonwealth Act No. 620? The logical conclusion is that in
promulgating Commonwealth Act 620 on June 6, 1941, the
National Assembly all along regarded Commonwealth Act No.
600 which delegated legislative powers to the President as still
in force and effect despite the report filed with the Assembly by
the President at the beginning of its regular session in January,
1941. When the Legislature merely amends a section of a law,
leaving the rest of said law intact and unchanged, the logical
inference and conclusion is that the amended law was still in
force because you cannot amend a law which is no longer in
force. The only thing that could be done with a law that has
ceased to operate is to reenact it. But in passing
Commonwealth Act 620 in July, 1941, the Assembly did not
reenact Commonwealth Act No. 600. By merely amending one
of its sections, the Assembly, as late as June 1941, considered
said Act 600 as still effective and in operation and consequently,
the emergency powers of the President continued and
subsisted despite his previously having made a report of his
actions in January 1941. This squarely refutes the theory that as
soon as the President filed his report on the exercise of his
emergency powers with the Legislature, the Act making the
delegation ceased to operate and the President lost his
emergency powers.
As I have already stated in the course of this opinion, in
connection with another phase of this case from January to
June, 1941, President Quezon had issued at least eight
Executive Orders in the exercise of his emergency powers, by
authority of Commonwealth Act 600. From this it is evident that
he did not share the majority view, because despite his having
made his report to the Assembly in January, 1941, and even
before the enactment of Commonwealth Act No. 620, he
believed and considered Commonwealth Act No. 600 as still in
force after that date and that he still retained his emergency
powers.
Then, let us see what was the attitude and conduct of
the Chief Executives and of Congress after May 25, 1946, when
according to the majority opinion Commonwealth Act No. 671
ceased to operate. After May 25, 1946, two Presidents, Roxas
and Quirino had issued numerous Executive Orders based upon
and invoking Commonwealth Act No. 671. Like President
Quezon, they also evidently were of the opinion that despite
the meeting of the Legislature in regular session the act
delegating legislative powers to them (in the case of Roxas and
Quirino - Commonwealth Act No. 671) was still in force, that
they still retained their emergency powers and so proceeded to
exercise them in good faith.
Congress also, evidently, believed that Commonwealth
Act No. 671 was still in force and effect after said date, May 25,
1946. In spite of the several legislative sessions, regular and
special since then and up to and including the year 1949,
Congress has not by law or resolution said anything questioning
or doubting the validity of said Executive Orders on the score of
having been promulgated after Commonwealth Act No. 671 had
supposedly ceased to operate. Not only this, but at least in one
instance, Congress had by a law promulgated by it, considered
one of those supposed illegal Executive Orders promulgated
after May 25, 1946, to be valid. I refer to Republic Act No.
224 approved on June 5, 1948, creating the National Airport
Corporation which considered and treated as valid Executive
Order No. 100, dated October 21, 1947, by providing in section
7 of said Republic Act No. 224 for the abolishment of the Office
of the Administrator of the Manila International Airport
established under the provisions of said Executive Order No.
100 and the transfer of the personnel and funds created under
the same Executive Order to the National Airport Corporation.
This Executive Order No. 100 which appropriated public funds
and therefore, was of a legislative nature must have been
issued under Commonwealth Act No. 671. It cannot possibly be
regarded as having been promulgated by authority of Republic
Act No. 51, for said Act approved on October 4, 1946, gave the
President only one year within which to reorganize the different
executive departments, offices, agencies, etc. and Executive
Order No. 100 was promulgated on October 23, 1947, after the
expiration of the one year period. Furthermore, it is a matter of
common knowledge that during the last session of Congress
which ended in May, 1949, there was talk if not a movement in
the Congress to end the emergency powers of the President.
Nothing concrete in the form of legislation or resolution was
done, for if we are to accept newspaper reports and comment,
the members of Congress or at least a majority of them were
willing and satisfied to have the Chief Executive continue in the
exercise of his emergency powers until the end of 1949. All this
leads to no other conclusion but that Congress believed all
along that Commonwealth Act No. 671 is still in force and
effect.
If Commonwealth Act No. 671 is still in force and effect
the question arises: how long and for what period will said Act
continue to operate? As I have already stated, I believe that the
delegation of emergency powers was made coextensive with
the emergency resulting from the war, and as long as that
emergency continues and unless the Legislature provides
otherwise, Act 671 will continue to operate and the President
may continue exercising his emergency powers.
The last and logical question that one will naturally ask
is: has the emergency resulting from the war passed or does it
still exist? This is a fair and decisive question inasmuch as the
existence of the emergency is, in my opinion, the test and the
only basis of the operation or cessation of Act 671. The
existence or non-existence of the emergency resulting from the
war is a question of fact. It is based on conditions obtaining
among the people and in the country and perhaps even near
and around it. It is a highly controversial question on which
people may honestly differ. There are those who in all good
faith believe and claim that conditions have returned to normal;
that the people have now enough to eat, sometimes even more
than they had before the war; that people nowadays especially
in the cities are better nourished and clothed and transported
and better compensated for their labor, and that the President
himself in his speeches, chats and messages had assured the
public that normal times have returned, that the problem of
peace and order had been solved, that the finances of the
Government and the national economy are sound, and that
there is an adequate food supply. It is, therefore, claimed that
there is no longer any emergency resulting from the war.
 On the other hand, it is asserted with equal
vehemence in the opposite camp that conditions are still far
from normal; that the picture painted by the President in
cheerful and reassuring colors is based on over optimism and,
as to be expected, calculated to show in bold relief the
achievements of the administration, and so should be
considered with some allowance; that we are now importing
more rice than before the war for the reason that many rice
farms are idle because of the farmers' fear of or interference by
dissidents; that the problem of peace and order is far from
solved as shown by the frequent hold-ups, kidnappings, lootings
and killings and organized banditry not only in Luzon but also in
the Visayas and Mindanao; that whereas before the war, the
Constabulary force consisting of only about 6,000 officers and
men could provide complete protection to life and property and
was adequate in all respects to enforce peace and order, now
this Constabulary enlarged to about 20,000 men, provided with
modern weapons and equipment and with the aid of thousands
of civilian guards and of the Philippine Army and Air force
cannot solve the peace and order problem; that the dissidents
who are well organized, armed and disciplined even attack and
sack towns and sometimes openly defy and engage the armed
Government forces; that as long as more than 100,000 firearms
are loose and in the hands of irresponsible parties, not
excluding the seemingly regular mysterious supply to them of
additional firearms and ammunitions, there can be no peace
and order; and as to the barrio folk in central Luzon and now,
even in provinces bordering central Luzon whose parents and
relatives had been killed by dissidents, whose women folk had
been outraged by the same elements, whose homes had been
looted and burned and whose very lives had been subjected to
constant terror and peril, compelling them to leave their homes
and their farms and evacuate to and be concentrated in
the poblaciones to live there in utter discomfort and privation,
it is said that it would be difficult to convince these unfortunate
people that normalcy has returned and that there is no longer
any emergency resulting from the war. To further support the
claim of the existence of an emergency, the menace of
communism not only at home, particularly in central Luzon but
from abroad, especially China, is invoked. And it is asserted that
all this is a result of the war.
I repeat that this question of the existence of an
emergency is a controversial one, the decision on which must
be based on the ascertainment of facts, circumstances and
conditions and the situation obtaining in the country. This Court
is not in a position to decide that controversy. It does not have
the facilities to obtain and acquire the necessary facts and data
on which to base a valid and just decision. Neither did it have
the opportunity to receive the necessary evidence as in a
hearing or trial at which evidence, oral or documentary, is
introduced. We cannot invoke and resort to judicial notice
because this refers to things of public knowledge, and not
controverted, whereas things, facts and conditions necessary
for the determination of whether or not there is still an
emergency, are often not of public knowledge but require
investigation, accurate reporting and close contact with the
people to be able to ascertain their living conditions, their
needs, their fears, etc.
To me, the departments of the Government equipped
and in a position to decide this question of emergency are the
Chief Executive and the Legislature. The first has at his
command and beck and call all the executive officials and
departments. He has the Army, the Constabulary, Naval Patrol,
the Police of the cities and towns and the barrio lieutenants to
inform him of the state of peace and order and the security of
the state. He has the Secretary of Education and all the
subordinate officers and school officials under him to inform
him as to whether or not there is a school crisis or emergency
as a result of the war. He has the Secretary of Agriculture and
Natural Resources and his men to advise him as to the
agricultural needs and the food supply of the country. He has
the Secretary of Finance and all the officials under him to
inform him of the finances of the Government and the economy
of the country as well as the officials to advise him of the land
shipping transportation situation. In other words, the President
is in a position to determine whether or not there is still an
emergency as a result of the war.
As to Congress, it is equally in a position and in fact it is
the first called upon to decide as to the existence or non-
existence of an emergency. According to the Constitution,
section 24, Article VI, either House of Congress may call upon
the head of any department of the Government on any matter
pertaining to his department. The members of Congress come
from all parts and the far-corners of the country. They are
supposed to be in close contact with their constituents and
know at first hand their needs, the way they live, etc. Congress,
therefore should know. Moreover, it is the legislature that must
first determine as to whether or not there is a national
emergency as a condition precedent to the delegation of its
legislative powers. Naturally, it is the one that is called upon to
say when that emergency ceases.
Now, one will ask, what does Congress think about the
emergency? Does it believe that it still exists? To me the answer
is YES. What has been said about the acts, conduct and attitude
of the legislature as to its belief that Commonwealth Act No.
671 is still in force, are all applicable and may be repeated to
show that the Congress believes that the emergency resulting
from the war still exist. Under the theory that I maintain,
Congress must be of the opinion that the emergency still exists
for the reason that as I have shown Congress believes that
Commonwealth Act No. 671 is still in force and the life and
operation of said Act depends upon and is coextensive with the
existence of the emergency. To this may be added the attitude
and the belief of the President as to the continued existence of
the emergency. It must be borne in mind that Commonwealth
Act No. 671 authorizes the President to exercise his emergency
powers only during the existence of the emergency. The
inference is that before exercising his emergency powers by
promulgating an Executive Order he must First determine and
decide that the state of emergency still exists, for that is the
condition precedent to the exercise of his delegated power. In
other words, the two departments of the Government, the
Legislative and Executive Departments, best qualified and called
upon to determine whether or not the emergency resulting
from the war still exist have made manifest in their acts and
attitude that they believe that such emergency still exists. I may
here state that on this question of emergency, I entertain no
personal opinion either way lacking as I do the means of
deciding fairly and justly. Neither has the Court. If the decisions
of the courts on questions of fact involved in a controversy are
given due respect and weight and are binding, it is because such
decisions are based on evidence adduced and received after a
hearing. No such hearing was held for the purpose and no
evidence has been received. In other words, we have nothing
on which to decide a question of fact which is the existence or
non-existence of emergency.
In view of the conclusion we have arrived at, finding
these Executive Orders to be void and of no effect, particularly
Executive Orders Nos. 225 and 226 with the evident result that
no funds are appropriated for the operation of the Government
for the fiscal year beginning July of this year and for the
expenses in the coming national elections next November, one
may inquire as to what will happen or what is to be done. The
answer or answers to this question lie with the Chief Executive.
Congress will not meet in regular session until next year. It is
not for the court, not even the undersigned to suggest the
calling of a special legislative session to cope with the perilous
situation thus created, altho one may regard that as a logical
remedy. But, should the President call a special session and
Congress for one reason or another fails to meet, or though it
meets, for one reason or another it fails to pass an
appropriation law, then a real crisis will have ensued. I am
confident that the Chief Executive, conscious of his
responsibility as the Chief of the ration would not just stand
supine and idle and see the Government of the Republic of the
Philippines disintegrate and die. He would know what to do and
he would do something according to his sound discretion and in
accordance with law, statutory or otherwise and in the
discharge of his high executive powers, express or implied.
TORRES, J.:
I concur in the foregoing opinion of Mr. Justice
Montemayor on the existence of the emergency powers. I
reserve my opinion on the validity of Executive Orders Nos. 225
and 226.
REYES, J., concurring and dissenting:
The main issue in these cases is whether the
emergency which on December 16, 1941 prompted the
approval of Commonwealth Act No. 671, delegating
extraordinary powers to the President, still existed at the time
the Chief Executive exercised those powers by promulgating the
executive orders whose validity is now challenged.
On issues similar to the one just formulated there is a
diversity of opinions. While some courts would rather leave the
determination of such issues to the political department of the
Government, others are for making the determination subject
to judicial review. But the latest ruling of the United States
Supreme Court on the point accords with the first view and
declares that "these are matters of political judgment for which
judges have either technical competence nor official
responsibility." (Ludeckevs. Watkins, 92 L. ed., 1883.)
In any event, the existence or non-existence of an
emergency is a question of fact which may not always be
determined without evidence by mere reference to facts within
judicial notice. In the present cases, there has been no trial for
the reception of proof, and I am not aware that enough facts
have been shown to justify the conclusion that the emergency
in question has already ceased. On the other hand, since the
exercise of the emergency powers by the President
presupposes a determination of the existence of the
emergency, the President must be presumed to have satisfied
himself in some appropriate manner that the emergency
existed when he issued his executive orders. Under the theory
of separation of powers and in accord with the latest ruling of
the United States Supreme Court, it is not for the judiciary to
review the finding of the Executive in this regard. Judicial review
would in such case amount to control of executive discretion
and place the judicial branch above a co-equal department of
the Government. Only in case of a manifest abuse of the
exercise of powers by a political branch of the Government is
judicial interference allowable in order to maintain the
supremacy of the Constitution. But with the cold war still going
on though the shooting war has already ended; with the world
still in turmoil so much so that the American Secretary of State
has declared that "the world has never before in peace time
been as troubled or hazardous as it is right now;" with most of
the industries of the country still unrehabilitated, so that a large
proportion of our food and other necessaries have to be
imported; with a great portion of the population still living in
temporary quarters; with most of the war damage claims still
unpaid; and with peace and order conditions in the country far
from normal, it would be presumptuous for this Court, without
proof of the actual conditions obtaining in all parts of the
Archipelago, to declare that the President clearly abused his
discretion when he considered the emergency not ended at the
time he promulgated the executive orders now questioned.
The majority opinion has skirted the issue of whether
or not the question of the existence or continuance of the
emergency is one for the political department of the
Government to determine by restricting "the life of the
emergency powers of the President to the time the Legislature
was prevented from holding session due to enemy action or
other causes brought on by the war." I cannot subscribe to this
narrow interpretation of Commonwealth Act No. 671, for in my
opinion it is contrary to both the plain language and manifest
purpose of that enactment. That law invests the President with
extraordinary powers in order to meet the emergency resulting
from the war and it expressly says that the President is to
exercise those powers "during the existence of the emergency."
The Act does not say that the President may exercise the
powers only when the Legislature is not in session. Much less
does it say that the emergency powers shall cease as soon as
the Legislature has convened in regular session. An emergency
resulting from a global war cannot end with the mere meeting
of the Legislature. Neither may it be legislated out of existence.
The Legislature, once it has convened, may, if it so desire,
revoke the emergency powers of the President, but it cannot by
any form of legislative action put an immediate end to the
emergency itself. Well known is the fact that a deliberative
body, such as the Legislature, because of the time consumed in
the study and discussion of a measure, may not always act with
the promptness which the situation requires so that in an
emergency there is really need for the concentration of power
in one man. This may well be the reason why Act No. 671 in
express terms authorizes the President to exercise the
emergency powers "during the existence of the emergency"
and not merely during the time that the Legislature could be in
session. For one thing, to make the life of the emergency
powers depend upon the inability of the Legislature to meet is
the same as to declare those emergency powers automatically
ended the moment they were conferred, for at that very
moment the Legislature that conferred them was in session.
The argument that, unless the emergency powers of
the President were made to cease the moment Congress
convened in regular session, we would be having two
legislatures which could mutually annul each other, will not
stand analysis. In supposing that the President, in the exercise
of the emergency powers could "repeal or modify a bill passed
by the Legislature," the argument overlooks the fact that the
emergency powers delegated to the President under Article VI,
section 26 of the Constitution could only authorize him "to
promulgate rules and regulations to carry out a declared
national policy." Only the Legislature (with the concurrence of
the President of course) may declare a national policy, and once
that policy is declared the President may not, under the
Constitution, depart from it. Moreover, unless the Presidential
veto could be overridden, no bill approved by Congress could
become a law if the President did not want it. And if the
President approves a bill and allows it to become a law, surely
he can have no reason for repealing it; while, on the other
hand, if the bill becomes a law because his veto has been
overridden, there is no point in his repealing that bill, because if
there are enough votes to override his veto there must also be
enough votes to repeal his emergency powers.
The majority opinion has I think placed a rather forced
construction upon section 3 of Commonwealth Act No. 671,
which provides that —
"The President of the Philippines shall
as soon as practicable upon the convening of
the Congress of the Philippines report thereto
all the rules and regulations promulgated by him
under the powers herein granted."
As may be seen, the above provision does not say that the
President has to report only once, that is, the first time
Congress is convened, and never again. But the majority
opinion wants to read that thought into the law in order to
bolster up the theory that the emergency powers of the
President would end as soon as Congress could convene in a
regular session.
Invoking the rule of contemporary construction, the
majority opinion makes reference to a passage in President
Quezon's book, "The Good Fight," to the effect that, according
to the author, Act No. 671 was only "for a certain period" and
"would become invalid unless re- enacted." But I see nothing in
the quoted phrases any suggestion that the emergency powers
of the President were to end the moment Congress was
convened in regular session regardless of the continuance of
the emergency which gave birth to those powers. A more valid
application of the rule of contemporary construction may, I
think, be made by citing the executive orders promulgated by
President Roxas in his time in the exercise of the emergency
powers conferred by Commonwealth Act No. 671. Many of
those executive orders were issued after May 25, 1946 when
Congress convened in regular session, an event which,
according to the majority opinion, automatically put an end to
the emergency powers.
While we have adopted the republican form of
government with its three co-equal departments, each acting
within its separate sphere, it would be well to remember that
we have not accepted the American theory of separation of
powers to its full extent. For, profiting from the experience of
America when her Supreme Court, by the application of the
doctrine of separation of powers, frustrated many a New Deal
measure which her Congress had approve to meet a national
crisis, our Constitutional Convention in 1935, despite the
warning of those who feared a dictatorship in this country,
decided to depart from the strict theory of separation of
powers by embodying a provision in our Constitution,
authorizing the delegation of legislative powers to the President
"in times of war or other national emergency." It is my surmise
that this provision was intended to guard not only against the
inability of Congress to meet but also against its usual tardiness
and inaction. We have proof of this last in the last regular
session of Congress, when this body failed to pass measures of
pressing necessity, especially the annual appropriation law and
the appropriation for the expenses of the coming elections.
It is said that the need for an appropriation law for the
fiscal year 1949-1950 as well as for the coming elections is not
an emergency resulting from the war. But I say that if the
emergency resulting from the war as contemplated in
Commonwealth Act No. 671 still exists, as the President
believes it exists or he would not have issued the executive
orders in question (and it is not for the Court to change that
belief in the absence of proof that the President was clearly
wrong) would it not be a dereliction of duty on his part to fail to
provide, during the emergency, for the continuance of the
functions of government, which is only possible with an
appropriation law? What would be gained by issuing rules and
regulations to meet the emergency if there is no Government to
enforce and carry them out? The mere calling of a special
session is no guaranty that an appropriation law will be passed
or that one will be passed before the thousands of officials and
employees who work for the Government have starved. It is,
probably, because of these considerations that the National
Assembly, in approving Commonwealth Act No. 671, specifically
empowered the President, during the existence of the
emergency, "to continue in force laws and appropriations which
would lapse or otherwise become inoperative." And that Act
has also authorized the President during the existence of the
same emergency "to exercise such other powers as he may
deem necessary to enable the government to fulfill its
responsibilities and to maintain in force this authority." Under
this specific provision, the appropriation for the expenses of the
coming elections would, naturally, come, for, without doubt, it
is a measure to enable the Government "to fulfill its
responsibilities."
Consistently with the views above expressed, I am of
the opinion that Executive Order No. 225, appropriating funds
for the operation of the Government of the Republic for the
fiscal year 1949-1950, and Executive Order No. 226,
appropriating funds for the expenses of the coming national
elections in November, 1949, are valid so that the petition in
G.R. No. L-3054, Eulogio Rodriguez, Sr. vs. Treasurer of the
Philippines, and the petition in G.R. No. L-3056, Antonio
Barredo, et al., vs. Commissioner on Elections, et al., in which
the said two executive orders are respectively challenged,
should be denied.
But Executive Order No. 62 (Regulating rents) and
Executive Order No. 192 (controlling exports) stand on a
different footing. The validity of Executive Order No. 62 can no
longer be maintained because of the approval by the
Legislature of Commonwealth Act No. 689 and Republic Act No.
66, which regulate the same subject matter and which, as an
expression of the national policy, can not be deviated from by
the President in the exercise of the emergency powers
delegated to him by Commonwealth Act No. 671. The same is
true with respect to Executive Order No. 192 (controlling
exports) in view of the passage of Commonwealth Act No. 728,
regulating the same subject matter, especially because section
4 of said Act terminates the power of the President thereunder
on December 31, 1948, if not sooner. Consequently, since the
validity of these executive orders (Nos. 62 and 192) can no
longer be upheld, the petitions in G.R. Nos. L-2044, L-2756 and
L-3055, which seek to prohibit their enforcement, should be
granted.
PADILLA, J.:
I join in this opinion of Mr. Justice Reyes. I wish to add
that I agree with Mr. Justice Bengzon that petitioners in G.R.
Nos. L-3054 and L-3056 have no personality to institute the
proceedings.
BENGZON, J., dissenting:
The majority feels it has to decide the question
whether the President still has emergency powers; but unable
to determine in which of the above five cases the issue may
properly be decided, it grouped them together. When the eye
or the hand is unsure, it is best to shoot at five birds in a group:
firing at one after another may mean as many misses.
It does not matter that the first two cases had been
submitted and voted before the submission of the last three.
Neither does it matter that, of these last, two should be thrown
out in accordance with our previous rulings. The target must be
large.
These cases could be, and should be, decided
separately. If they are, they may be disposed of without ruling
on the general question whether the President still has
emergency powers under Commonwealth Act No. 761. How?
This way, which is my vote.
1. L-2044, Araneta vs. Dinglasan; L-2756, Araneta vs.
Angeles. The President has presently no power to regulate rents,
because his power to do so is granted by Commonwealth Acts
Nos. 600 and 620 which have lapsed. Under Commonwealth Act
No. 671 he has no power to regulate rents.
2. L-3056, Barredo vs. Commission, etc. Dismissed
because petitioner has no personality to sue. According to
Custodio vs. President of the Senate et al., 42 Off. Gaz., 1243, a
citizen and taxpayer, as such, has no legal standing to institute
proceedings for the annulment of a statute.
3. L-3054, Rodriguez vs. Treasurer. Dismissed, like the
Barredo case. The private rights of petitioner and of his
partymen are affected only as taxpayers.
4. L-3055, Guerrero vs. Commissioner of Customs.
Supposing that the President still has emergency powers under
Commonwealth Act No. 671, and that they include regulation of
exportation, inasmuch as the Congress has chosen to legislate
on exports (Commonwealth Act No. 728), it has thereby pro
tanto withdrawn the power delegated to the President along
that field.
It is a sound rule, I believe, for the Court to
determine only those questions which are necessary to decide a
case.
Although I am favorably impressed by the
considerations set forth by Mr. Justice Montemayor and Mr.
Justice Reyes on the existence of emergency powers, I prefer to
vote as herein indicated.
I reserve the right subsequently to elaborate on the
above propositions.
For lack of the required number of votes, judgment was
not obtained. However, after rehearing, the required number of
votes was had, by resolution of September 16, 1949, which
follows.
RESOLUTION
September 16, 1949
MORAN, C.J.:
Petitioners filed motions asking (1) that Mr. Justice
Padilla be disqualified to act in these cases; (2) that the vote
cast by the late Mr. Justice Perfecto before his death be
counted in their favor; and (3) that the opinion of the Chief
Justice be counted as a vote for the nullity of Executive Orders
Nos. 225 and 276.
I decision of this Court, to be of value and binding force, must be
As regards the motion to disqualify Mr. Justice Padilla,
the Court is of the opinion that it must not be considered, it
having been presented after Mr. Justice Padilla had given his
opinion on the merits of these cases. As we have once said "a
litigant . . . cannot be permitted to speculate upon the action of
the court and raise an objection of this sort after decision has
been rendered." (Government of the Philippine Islands vs. Heirs
of Abella, 49 Phil., 374.)
Furthermore, the fact that Justice Padilla, while
Secretary of Justice, had advised the President on the question
of emergency powers, does not disqualify him to act in these
cases, for he cannot be considered as having acted previously in
these actions as counsel of any of the parties. The President is
not here a party.
All the members of this Court concur in the denial of
the motion to disqualify Mr. Justice Padilla, with the exception
of Mr. Justice Ozaeta and Mr. Justice Feria who reserve their
vote.
II
With respect to the motion to include the vote and
opinion of the late Mr. Justice Perfecto in the decision of these
cases, it appears that Mr. Justice Perfecto died and ceased to be
a member of this Court on August 17, 1949, and our decision in
these cases was released for publication on August 26, 1949.
Rule 53, section 1, in connection with Rule 58, section 1, of the
Rules of Court, is as follows:
"SECTION 1.Judges: who may take part.
— All matters submitted to the court for its
consideration and adjudication will be deemed
to be submitted for consideration and
adjudication by any and all of the justices who
are members of the court at the time when such
matters are taken up for consideration and
adjudication, whether such justices were or
were not members of the court and whether
they were or were not present at the date of
submission; . . ."
Under this provision, one who is not a member of the
court at the time an adjudication is made cannot take part in
that adjudication. The word "adjudication" means decision. A
case can be adjudicated only by means of a decision. And a
in writing duly signed and promulgated (Article VIII, sections 11
and 12, of the Constitution; Republic Act No. 296, section 21;
Rule 53, section 7, of the Rules of Court). Promulgation means
the delivery of the decision to the Clerk of Court for filing and
publication. Accordingly, one who is no longer a member of this
Court at the time a decision is signed and promulgated, cannot
validly take part in that decision. As above indicated, the true
decision of the Court is the decision signed by the Justices and
duly promulgated. Before that decision is so signed and
promulgated, there is no decision of the Court to speak of. The
vote cast by a member of the Court after deliberation is always
understood to be subject to confirmation at the time he has to
sign the decision that is to be promulgated. That vote is of no
value if it is not thus confirmed by the Justice casting it. The
purpose of this practice is apparent. Members of this Court,
even after they have cast their votes, wish to preserve their
freedom of action till the last moment when they have to sign
the decision, so that they may take full advantage of what they
may believe to be the best fruit of their most mature reflection
and deliberation. In consonance with this practice, before a
decision is signed and promulgated, all opinions and
conclusions stated during and after the deliberation of the
Court, remain in the breasts of the Justices, binding upon no
one, not even upon the Justices themselves. Of course, they
may serve for determining what the opinion of the majority
provisionally is and for designating a member to prepare the
decision of the Court, but in no way is that decision binding
unless and until duly signed and promulgated.
And this is practically what we have said in the
contempt case against Abelardo Subido, 1 promulgated on
September 28, 1948:
"que un asunto o causa pendiente en
esta Corte Suprema solo se considera decidido
una vez registrada, promulgada y publicada la
sentencia en la escribania, y que hasta entonces
 el resultado de la votacion se estima como una In connection with the motion to consider the opinion
materia absolutamente reservada y of the Chief Justice as a vote in favor of petitioners, the writer
confidencial, perteneciente exclusivamente a las has the following to say:
camaras interiores de la Corte." In my previous concurring opinion, I expressed the
In an earlier case we had occasion to state that the view that the emergency powers vested in Commonwealth Act
decisive point is the date of promulgation of judgment. In that No. 671 had ceased in June 1945, but I voted for a deferment of
case a judge rendered his decision on January 14; qualified judgment in these two cases because of two circumstances
himself as Secretary of Finance on January 16; and his decision then present, namely, (1) the need of sustaining the two
was promulgated on January 17. We held that the decision was executive orders on appropriations as the lifeline of
void because at the time of its promulgation the judge who government and (2) the fact that a special session of Congress
prepared it was no longer a judge. (Lino Luna vs. Rodriguez, 37 was to be held in a few days. I then asked, "Why not defer
Phil., 186.) judgment and wait until the special session of Congress so that
Another reason why the vote and opinion of the late it may fulfill its duty as it clearly sees it?"
Mr. Justice Perfecto can not be considered in these cases is that It seemed then to me unwise and inexpedient to force
his successor, Mr. Justice Torres, has been allowed by this Court the Government into imminent disruption by allowing the
to take part in the decision on the question of emergency nullity of the executive orders to follow its reglementary
powers because of lack of majority on that question. And Mr. consequences when Congress was soon to be convened for the
Justice Torres is not bound to follow any opinion previously very purpose of passing, among other urgent measures, a valid
held by Mr. Justice Perfecto on that matter. There is no law or appropriations act. Considering the facility with which Congress
rule providing that a successor is a mere executor of his could remedy the existing anomaly, I deemed it a slavish
predecessor's will. On the contrary, the successor must act submission to a constitutional formula for this Court to seize
according to his own opinion for the simple reason that the upon its power under the fundamental law to nullify the
responsibility for his action is his and of no one else. Of course, executive orders in question. A deferment of judgment struck
where a valid and recorded act has been executed by the me then as wise. I reasoned that judicial statesmanship, not
predecessor and only a ministerial duty remains to be judicial supremacy, was needed.
performed for its completion, the act must be completed However, now that the holding of a special session of
accordingly. For instance, where the predecessor had rendered Congress for the purpose of remedying the nullity of the
a valid judgment duly filed and promulgated, the entry of that executive orders in question appears remote and uncertain, I
judgment which is a ministerial duty, may be ordered by the am compelled to, and do hereby, give my unqualified
successor as a matter of course. But even in that case, if the concurrence in the decision penned by Mr. Justice Tuason
successor is moved to reconsider the decision, and he still may declaring that these two executive orders were issued without
do so within the period provided by the rules, he is not bound authority of law.
to follow the opinion of his predecessor, which he may set aside While in voting for a temporary deferment of the
according to what he may believe to be for the best interests of judgment I was moved by the belief that positive compliance
justice. with the Constitution by the other branches of the Government,
We are of the opinion, therefore, that the motion to which is our prime concern in all these cases, would be
include the vote and opinion of the late Justice Perfecto in the effected, and indefinite deferment will produce the opposite
decision of these cases must be denied. result because it would legitimize a prolonged or permanent
Mr. Justice Paras, Mr. Justice Bengzon, Mr. Justice evasion of our organic law. Executive orders which are, in our
Padilla, Mr. Justice Montemayor, Mr. Justice Alex. Reyes, and opinion, repugnant to the Constitution, would be given
Mr. Justice Torres concur in this denial. Mr. Justice Ozaeta, Mr. permanent life, opening the way to practices which may
Justice Feria and Mr. Justice Tuason dissent. undermine our constitutional structure.
III
The harmful consequences which, as I envisioned in my
concurring opinion, would come to pass should the said
executive orders be immediately declared null and void, are still
real. They have not disappeared by reason of the fact that a
special session of Congress is not now forthcoming. However,
the remedy now lies in the hands of the Chief Executive and of
Congress, for the Constitution vests in the former the power to
call a special session should the need for one arise, and in the
latter, the power to pass a valid appropriations act.
That Congress may again fail to pass a valid
appropriations act is a remote possibility, for under the
circumstances it fully realizes its great responsibility of saving
the nation from breaking down; and furthermore, the President
in the exercise of his constitutional powers may, if he so
desires, compel Congress to remain in special session till it
approves the legislative measures most needed by the country.
Democracy is on trial in the Philippines, and surely it
will emerge victorious as a permanent way of life in this
country, if each of the great branches of the Government,
within its own allocated sphere, complies with its own
constitutional duty, uncompromisingly and regardless of
difficulties.
Our Republic is still young, and the vital principles
underlying its organic structure should be maintained firm and
strong, hard as the best of steel, so as to insure its growth and
development along solid lines of a stable and vigorous
democracy.
With my declaration that Executive Orders Nos. 225
and 226 are null and void, and with the vote to the same effect
of Mr. Justice Ozaeta, Mr. Justice Paras, Mr. Justice Feria, Mr.
Justice Tuason and Mr. Justice Montemayor, there is a sufficient
majority to pronounce a valid judgment on that matter.
It is maintained by the Solicitor General and the amicus
curiae that eight Justices are necessary to pronounce a
judgment on the nullity of the executive orders in question,
under section 9 of Republic Act No. 296 and Article VIII, section
10 of the Constitution. This theory is made to rest on the
ground that said executive orders must be considered as laws,
they having been issued by the Chief Executive in the exercise
of the legislative powers delegated to him.
It is the opinion of the Court that the executive orders
in question, even if issued within the powers validly vested in
the Chief Executive, are not laws, although they may have the
force of law, in exactly the same manner as the judgments of
this Court, municipal ordinances and ordinary executive orders
cannot be considered as laws, even if they have the force of
law.
Under Article VI, section 26, of the Constitution, the
only power which, in times of war or other national emergency,
may be vested by Congress in the President, is the power "to
promulgate rules and regulations to carry out a declared
national policy." Consequently, the executive orders issued by
the President in pursuance of the power delegated to him
under that provision of the Constitution, may be considered
only as rules and regulations. There is nothing either in the
Constitution or in the Judiciary Actrequiring the vote of eight
Justices to nullify a rule or regulation or an executive order
issued by the President. It is very significant that in the previous
drafts of section 10, Article VIII of the Constitution, "executive
order" and "regulation" were included among those that
required for their nullification the vote of two thirds of all the
members of the Court. But "executive order" and "regulation"
were later deleted from the final draft (Aruego, The Framing of
the Philippine Constitution, Vol. I, pp. 495, 496), and thus a
mere majority of six members of this Court is enough to nullify
them.
All the members of the Court concur in this view.
For all the foregoing, the Court denies the motion to
disqualify Mr. Justice Padilla, and the motion to include the vote
of the late Mr. Justice Perfecto in the decision of these cases.
And it is the judgment of this Court to declare Executive Orders
Nos. 225 and 226, null and void, with the dissent of Mr. Justice
Bengzon, Mr. Justice Padilla and Mr. Justice Reyes, upon the
grounds already stated in their respective opinions, and with
Mr. Justice Torres abstaining.
But in order to avoid a possible disruption or
interruption in the normal operation of the Government, it is
decreed, by the majority, of course, that this judgment take
effect upon the expiration of fifteen days from the date of its
entry. No costs to be charged.
Ozaeta, Paras, Bengzon, Padilla, Tuason, Montemayor,
Reyes and Torres, JJ., concur.
Feria, J., concurs plus his concurring opinion.
FERIA, J., concurring:
The respondents in the cases G.R. Nos. L-3054 and L-
3056 contend that the petitioners in said cases can not institute
an action to invalidate the Executive Orders Nos. 225 and 226
promulgated by the President, because they have no interest in
preventing the illegal expenditures of moneys raised by
taxation, and can not therefore question the validity of said
executive orders requiring expenditures of public money.
Although this Supreme Court, in the case of
Custodio vs. President of the Senate, G.R. No. L-117 (42 Off.
Gaz., 1243) held in a minute resolution "That the
constitutionality of a legislative act is open to attack only by a
person whose rights are affected thereby, that one who invokes
the power of the court to declare an Act of Congress to be
unconstitutional must be able to show not only that the statute
is invalid, but that he has sustained or is in immediate danger of
sustaining some direct injury as the result of its enforcement,"
that ruling was laid down without a careful consideration and is
contrary to the ruling laid down in the majority of jurisdictions in
the United States that "In the determination of the degree of
interest essential to give the requisite standing to attack the
constitutionality of a statute, the general rule is that not only
persons individually affected, but also taxpayers, have sufficient
interest in preventing the illegal expenditure of moneys raised
by taxation and may therefore question the constitutionality of
statutes requiring expenditure of public moneys." (Am. Jur., Vol.
11, p. 761.) All the members of this Court, except two, in taking
cognizance of those cases, rejected the respondents' contention,
reversed the ruling in said case and adopted the general rule
above mentioned; and we believe the latter is better than the
one adopted in said case of Custodio, which was based on a
doctrine adhered to only in few jurisdictions in the United
States; because if a taxpayer can not attack the validity of the
executive orders in question or a laws requiring the expenditure
of public moneys, no one under our laws could question the
validity of such laws or executive orders.
After laying down the fundamental principles involved
in the case at bar, we shall discuss and show that
Commonwealth Act No. 671 was no longer in force at the time
the Executive Orders under consideration were promulgated,
because even the respondents in the cases G.R. Nos. L-2044 and
L-2756, in sustaining the validity of the Executive Order No. 62
rely not only on Commonwealth Act No. 600 as amended by
Commonwealth Act No. 620, but on Commonwealth Act No.
671; and afterwards we shall refute the arguments in support of
the contrary proposition that said Commonwealth Act No. 671
is still in force and, therefore, the President may exercise now
the legislative powers therein delegated to him.
PRELIMINARY
The Constitution of the Philippines, drafted by the duly
elected representatives of the Filipino people, provides in its
section 1, Article II, that "The Philippines is a republican state,
sovereignty resides in the people and all government authority
emanates from them." The people have delegated the
government authority to three different and separate
Departments: Legislative, Executive, and Judicial. In section 1,
Article VI, the legislative power to make laws is conferred upon
Congress; the executive power to faithfully execute the laws is
vested by sections 1 and 10 of Article VII, in the President; and
the judicial power is vested by section 1, Article VII, in one
Supreme Court and in such inferior courts as may be
established by law. the Supreme Court having the supremacy to
pass upon "the constitutionality or validity of any treaty, law,
ordinance, or executive order or regulations."
The distribution by the Constitution of the powers of
government to the Legislative, Executive, and Judicial
Departments operates, by implication, as an inhibition against
the exercise by one department of the powers which belong to
another, and imposes upon each of the three departments the
duty of exercising its own peculiar powers by itself, and
prohibits the delegation of any of those powers except in cases
expressly permitted by the Constitution. The principle of the
separation of the powers of government is fundamental to the
very existence of a constitutional government as established in
the Philippines patterned after that of the United States of
America. The division of governmental powers into legislative,
executive, and judicial represents the most important principle
of government that guarantees the liberties of the people, for it
prevents a concentration of powers in the hands of one person
or class of persons.
Under the doctrine of separation of the powers of
government, the law-making function is assigned exclusively to
the legislative, and the legislative branch cannot delegate the
power to make laws to any other authority. But it must be
borne in mind that what cannot be delegated is that which is
purely legislative in nature, not administrative. There are
powers so far legislative that may properly be exercised by the
legislature, but which may nevertheless be delegated because
they may be advantageously exercised in proper cases by
persons belonging to the other departments of the
government, such as the authority to make rules and
regulations of administrative character to carry out an express
legislative purpose or to effect the operation and enforcement
of a law. As illustrations of the proper exercise of the power of
Congress to delegate the authority to promulgate rules and
regulations with the necessary details to carry into effect a law,
are Act No. 3155 empowering the Governor General then, now
the President, to suspend or not, at his discretion, the
prohibition of the importation of foreign cattle (Cruz vs.
Youngberg, 56 Phil., 234; Act No. 3106 authorizing the
Commissioner of the Public Service Commission to regulate
those engaged in various occupations or business affected with
a public interest, and to prescribe what the charges shall be for
services rendered in the conduct of such business (Cebu Autobus
Co. vs. De Jesus, 56 Phil., 446); and the National Industrial
Recovery Act enacted by the Congress of the United States
authorizing the President to promulgate administrative rules
and regulations to carry out the emergency measure enacted by
Congress, though a part thereof was declared unconstitutional
for producing a delegation of legislative authority which is
unconfined, "and not canalized within banks to keep it from
overflowing."
Although, in principle, the power of the Legislature to
make laws or perform acts purely legislative in nature may only
be delegated by Congress to another authority or officer of
either the executive or judicial department when expressly
permitted by the Constitution, no such delegation is authorized
by the State constitution or Federal Constitution of the United
States. It is a fact admitted by the attorneys and amici curiae for
the petitioners and respondents in these cases that section 26,
Article VI, of our Constitution is unique and has no counterpart
in said constitutions, and for that reason not a single case
involving a question similar to the one herein involved has ever
been submitted to and passed upon by the courts of last resort
in the United States. The provision of our Constitution reads as
follows:
"Sec. 26.In times of war or other
national emergency, the Congress may by law
authorize the President, for a limited period and
subject to such restrictions as it may prescribe,
to promulgate rules and regulations to carry out
a declared national policy."
It is important to observe that what the above-quoted
constitutional provision empowers Congress to delegate to the
President, is not the power to promulgate rules and regulations
of administrative nature, for this may also be delegated at any
time without necessity of an express authority by the
Constitution, but the power to promulgate rules and
regulations purely legislative in nature, leaving to the discretion
of the President the determination of what rules or regulations
shall be or what acts are necessary to effectuate the so-called
declared national policy, for otherwise it would not have been
necessary for the Constitution to authorize Congress to make
such delegation.
DEMONSTRATION
The Constitution permits Congress to authorize the
President of the Philippines to promulgate rules and regulations
of legislative nature only (1) in times of war or (2) other national
emergency, such as rebellion, flood, earthquake, pestilence,
economic depression, famine or any other emergency different
from war itself affecting the nation.
It is obvious that it is for Congress and not for the
President to determine when there is such a particular
emergency and to authorize the President to promulgate rules
and regulations to cope with it. Therefore, if Congress declares
that there exists a war as a national emergency and empowers
the President to promulgate rules and regulations to tide over
the emergency, the latter could not, because he believes that
there is an economic emergency or depression or any
emergency other than war itself, exercise the legislative power
delegated to meet such economic or other emergency.
The Constitution requires also that the delegation be
for a limited period or the authority so delegated shall
cease ipso facto at the expiration of the period, because to
require an express legislation to repeal or terminate the
delegated legislative authority of the President might be
subversive to the constitutional separation of powers in our
democratic form of government, for the President may prevent
indefinitely the repeal of his delegated authority by the exercise
of his veto power, since the veto could be overridden only by a
two-thirds vote and it would be extremely difficult to repeal it
in a subservient Congress dominated by the Chief Executive.
Besides, to provide that the delegated legislative powers shall
continue to exist until repealed by the Congress, would be a
delegation not for a limited, but for an unlimited period or
rather without any limitation at all, because all acts enacted are
always subject to repeal by the Congress, without necessity to
providing so.
No question is raised as to the constitutionality of
Commonwealth Act No. 671 under which Executive Orders Nos.
62, 192, 225 and 226 were promulgated by the President of the
Philippines according to the contention of the respondents. The
question involved is the validity (not constitutionality) of said
executive orders, that is, whether or not the President had
authority to promulgate them under Commonwealth Act No.
671; and therefore the concurrence of two-thirds of all the
members of this Court required by section 10, Article VIII of the
Constitution to declare a treaty or law unconstitutional is not
required for adjudging the executive orders in question invalid
or not authorized by Commonwealth Act No. 671, which read as
follows:
"COMMONWEALTH ACT NO. 671
"AN ACT DECLARING A STATE OF TOTAL
EMERGENCY AS A RESULT OF WAR INVOLVING
THE PHILIPPINES AND AUTHORIZING THE
PRESIDENT TO PROMULGATE RULES AND
REGULATIONS TO MEET SUCH EMERGENCY.
"Be it enacted by the National Assembly of the
Philippines:
"SECTION 1.The existence of war
between the United States and other countries
of Europe and Asia, which involves the
Philippines, makes it necessary to invest the
President with extraordinary powers in order to
meet the resulting emergency.
"SEC. 2.Pursuant to the provisions of
Article VI, section 16, of the Constitution, the
President is hereby authorized, during the
existence of the emergency, to promulgate such
rules and regulations as he may deem necessary
to carry out the national policy declared in
section 1 hereof. Accordingly he is, among other
things, empowered (a) to transfer the seat of
the Government or any of its subdivisions,
branches, departments, offices, agencies or
 instrumentalities; (b) to reorganize the
government of the Commonwealth including
the determination of the order of precedence of
the heads of the Executive Departments; (c) to
create new subdivisions, branches,
departments, offices, agencies or
instrumentalities of Government and to abolish
any of those already existing; (d) to continue in
force laws and appropriations which would
lapse or otherwise become inoperative, and to
modify or suspend the operation or application
of those of an administrative character; (e) to
impose new taxes or to increase, reduce,
suspend, or abolish those in existence; (f) to
raise funds through the issuance of bonds or
otherwise, and to authorize the expenditure of
the proceeds thereof (g) to authorize the
National, provincial, city or municipal
governments to incur in overdrafts for purposes
that he may approve; (h) to declare the
suspension of the collection of credits or the
payment of debts; and (i) to exercise such other
powers as he may deem necessary to enable the
Government to fulfill its responsibilities and to
maintain and enforce its authority.
"SEC. 3.The President of the Philippines
shall as soon as practicable upon the convening
of the Congress of the Philippines report thereto
all the rules and regulations promulgated by him
under the powers herein granted.
"SEC. 4.This Act shall take effect upon
its approval, and the rules and regulations
promulgated hereunder shall be in force and
effect until the Congress of the Philippines shall
otherwise provide.
"Approved, December 16, 1941."
Taking into consideration the presumption that
Congress was familiar with the well-known limits of its powers
under section 26, Article VI, of the Constitution and did not
intend to exceed said powers in enacting Commonwealth Act
No. 671, the express provisions of Commonwealth Acts Nos.
494, 496, 498, 499, 500, 600 as amended by 620 and 671, and
those of Commonwealth Act No. 689 as amended by Republic
Act No. 66 and Republic Acts Nos. 51 and 728, we are of the
opinion, and therefore so hold, that the actual war in Philippine
territory and not any other national emergency is contemplated
in Commonwealth Act No. 671, and that the period of time
during which the President was empowered by said
Commonwealth Act No. 671 to promulgate rules and
regulations was limited to the existence of such war or invasion
of the Philippines by the enemy, which prevented the Congress
to meet in a regular session. Such emergency having ceased to
exist upon the complete liberation of the Philippines from the
enemy's occupation, Commonwealth Act No. 671 had ceased to
be in force and effect at the date of the adjournment of the
next regular session of the Congress in 1946, before the
promulgation of said executive orders, and hence they are null
and void.
In view of the existence of a state of national
emergency caused by the last world war among several nations
of the world, the second National Assembly during its second
special session passed the following acts: (a) Commonwealth
Act No. 494 authorizing the President until the adjournment of
the next regular session of the National Assembly, to suspend
the operation of Commonwealth Act No. 444, commonly known
as the "Eight-Hour Labor Law," when in his judgment the public
interest so requires, in order to prevent a dislocation of the
productive forces of the country (b) Commonwealth Act No.
496 delegating to the President the power expressly granted by
section 6, Article XIII, of the Constitution to the State "until the
date of adjournment of the next regular session of the National
Assembly, to take over solely for use or operation by the
Government during the existence of the emergency, any public
service or enterprise and to operate the same," upon payment
of just compensation; (c) Commonwealth Act No. 498,
authorizing the President, among others, to fix the maximum
selling prices of foods, clothing, fuel, fertilizers, chemicals,
building materials, implements, machinery, and equipment
required in agriculture and industry, and other articles or
commodities of prime necessity, and to promulgate such rules
and regulations as he may deem necessary in the public
interests, which rules and regulations shall have the force and
effect of law until the date of the adjournment of the next
regular session of the National Assembly; (d) Commonwealth
Act No. 499 providing that until the date of the adjournment of
the next regular session of the National Assembly, any sale,
mortgage, lease, charter, delivery, transfer of vessels owned in
whole or in part by a citizen of the Philippines or by a
corporation organized under the laws of the Philippines, to any
person not a citizen of the United States or of the Philippines,
shall be null and void, without the approval of the President of
the Philippines; and Commonwealth Act No. 500 authorizing
the President to reduce the expenditure of the Executive
Department of the National Government by the suspension or
abandonment of services, activities or operations of no
immediate necessity, which authority shall be exercised only
when the National Assembly is not in session. All these
Commonwealth Acts took effect upon their approval on
September 30, 1939, a short time after the invasion of Poland
by Germany.
During the fourth special session of the second
National Assembly, Commonwealth Act No. 600, which
superseded the above-mentioned emergency power acts, was
passed and took effect on its approval on August 19, 1940. This
Act No. 600 expressly declared that the existence of war in
many parts of the world had created a national emergency
which made it necessary to invest the President with
extraordinary powers in order to safeguard the integrity of the
Philippines and to insure the tranquillity of its inhabitants, by
suppressing espionage, lawlessness, and all subversive
activities, by preventing or relieving unemployment, by insuring
to the people adequate shelter and clothing and sufficient food
supply, etc. To carry out this policy the President was
"authorized to promulgate rules and regulations which shall
have the force and effect of law until the date of adjournment
of the next regular session of the National Assembly," which
rules and regulations may embrace the objects therein
enumerated. And the National Assembly in its regular session
commencing in January, 1941, in view of the fact that the
delegated authority granted to the President by
Commonwealth Acts Nos. 494, 496, 498, 499, 500, and 600 was
to terminate at the date of the adjournment of that regular
session of the National Assembly, passed Act No. 620 which
took effect upon its approval on June 6, 1941, amending section
1 of Commonwealth Act No. 600 by extending the delegated
legislative authority of the President until the date of the
adjournment of the next regular session of the Congress of the
Philippines, instead of the National Assembly, the Constitution
having been amended by substituting the Congress of the
Philippines for the National Assembly.
 Although Commonwealth Act No. 600, as amended by
Commonwealth Act No. 620, provides that "the President is
authorized to promulgate rules and regulations which shall
have the force and effect of law until the date of adjournment
of the next regular session of the Congress of the Philippines," it
is evident that this limitation was intended to apply, not only to
the effectivity of the rules and regulations already promulgated,
but specially to the authority granted to the President to
promulgate them, for the following reasons: First, because
Commonwealth Acts Nos. 494, 496, 498, 499, and 500 had
expressly limited the authority of the President to exercise the
delegated power while the Assembly was not in session until
the date of the adjournment of the next regular session of the
National Assembly, and there was absolutely no reason
whatsoever why the National Assembly, in enacting
Commonwealth Act No. 600 as amended, which superseded
said Act, would not impose the same limitation on the authority
delegated in Commonwealth Act No. 600 as amended in
compliance with the requirement of the Constitution; secondly,
because it would have been useless to give the rules and
regulations the effect and force of law only until the date of the
adjournment of the next regular session of the Congress, if the
President might, after said adjournment, continue exercising his
delegated legislative powers to promulgate again the same and
other rules and regulations; and lastly, because to construe
Commonwealth Act No. 600, as amended by Act No. 620,
otherwise would be to make the delegation not for a limited
but for an indefinite period of time, in violation of the express
provision of section 26, Article VI of the Constitution.
All the above-mentioned Acts Nos. 494, 496, 499, 500,
and 600 before its amendment show that it was the intention
or policy of the National Assembly, in delegating legislative
functions to the President, to limit the exercise of the latter's
authority to the interregnum while the National Assembly or
Congress of the Philippines was not in session until the date of
the adjournment of the next regular session thereof, which
interregnum might have extended over a long period of time
had the war in Europe involved and made the Philippines a
battle ground before the next regular session of the Congress
had convened. And the authority granted to the President of
Commonwealth Act No. 600, as amended, had to be extended
over a long period of time during the occupation because,
before the meeting of the next regular session of the Congress,
the Philippines was involved in the war of the United States and
invaded and occupied by the Japanese forces. And the
President was authorized to exercise his delegated powers until
the date of the adjournment of the next regular session of the
Congress, for the reason that although during the next regular
session a bill may be passed by the Congress, it would not
become a law until it was approved, expressly or impliedly, by
the President during the period of twenty days after it shall
have been presented to him.
The reason of the limitation is that if Congress were in
position to act it would not be necessary for it to make such
legislative delegation to the President, for Congress may in all
cases act, declare its will and, after fixing a primary standard or
yardstick, authorize the President to fill up the details by
prescribing administrative rules and regulations to cope with
the actual conditions of any emergency; and it is inconceivable
that there may arise an emergency of such a nature that would
require immediate action and can not wait, without irreparable
or great injury to the public interest, and action of the
legislature in regular or special session called by the Chief
Executive for the purpose of meeting it. If in the United States
they could withstand and have withstood all kinds of
emergency without resorting to the delegation by the
legislative body of legislative power to the Executive except
those of administrative nature, because no such delegation is
permitted by the States and Federal constitutions, as above
stated, there is no reason why the same can not be done in the
Philippines. The framers of our Constitution and the National
Assembly that enacted Commonwealth Act No. 671 are
presumed to be aware of the inconveniences and chaotical
consequences of having two legislative bodies acting at one and
the same time.
It is true that Commonwealth Act No. 671 does not
expressly say that the President is authorized to promulgate
rules and regulations until the date of the adjournment of the
next regular session of the National Assembly or Congress, as
the above-quoted Commonwealth Acts; but it is also true that it
clearly provides that "pursuant to the provisions of Article VI,
section 26, of the Constitution, the President is hereby
authorized, during the existence of the emergency, to
promulgate such rules and regulations as he may deem
necessary to carry out the national policy declared"; and that
the definite and specific emergency therein referred to is no
other than the "state of total emergency as a result of war
involving the Philippines", declared in the title of said Act No.
671, that was the reason for which the President was
"authorized to promulgate rules and regulations to meet
resulting emergency." It is obvious that what Act No. 671 calls
"total emergency" was the invasion and occupation of the
Philippines by the enemy or Japanese forces which, at the time
of the passage and approval of said Act, had already landed in
Philippine soil and was expected to paralyze the functioning of
the Congress during the invasion and enemy occupation of the
Philippines.
The mere existence of the last world war in many parts
of the world which had created a national emergency and made
it necessary to invest the President with extraordinary powers
was not called total emergency by Commonwealth Acts Nos.
600 and 620, because it had not yet actually involved and
engulfed the Philippines in the maelstrom of war. It does not
stand to reason that the authority given to the President to
promulgate rules and regulations of legislative nature by
Commonwealth Acts Nos. 494, 496, 498, 499, 500, 600 and 620
was to terminate at the date of the adjournment of the next
regular session of the Congress of the Philippines in 1946, but
those granted to the President by Commonwealth Act No. 671
under the same war emergency should continue to exist
indefinitely even after the Congress of the Philippines had
regularly convened, acted, and adjourned in the year 1946 and
subsequent years. Besides to give such construction to Act No.
671 would make it violative of the express provision of section
26, Article VIII, of the Constitution, under which said
Commonwealth Act No. 671 was enacted, as expressly stated in
said Act, and which permits the Congress to authorize the
President, only for a limited period during a war emergency, to
promulgate rules and regulations to carry into effect a declared
national policy.
By the special session of the first Congress of the
Philippines commencing on the 9th day of June, 1945, called by
the President for the purpose of considering general legislation,
Commonwealth Act No. 671 did not cease to operate. As we
have already said, the emergency which prompted the second
National Assembly to enact Commonwealth Act No. 671
delegating legislative powers to the President, was the inability
of Congress to convene in regular session in January of every
year during the invasion of the Philippines by the Japanese
Imperial forces. The National Assembly could not have in mind
any special session which might have been called by the
President immediately after liberation, because the calling of a
special session as well as the matters which may be submitted
by the President to Congress for consideration is a contingent
event which depend upon the possibility of convening it and the
discretion of the President to call it, and the matters he will
submit to it for consideration; because it is to be presumed, in
order to comply with the provision of section 26, Article VI of
the Constitution, that it was the intention of the National
Assembly to fix a limited period, independent of the President's
will, during which he is authorized to exercise his delegated
legislative power.
The object of section 3 of Act No. 671 in requiring the
President to report "as soon as practicable upon the convening
of the Congress of the Philippines all rules and regulations
promulgated by him under the powers therein granted" is to
inform the Congress of the contents of said rules and
regulations so that the latter may modify or repeal them if it
sees fit to do so, inasmuch as, according to section 4 of the
same Act, "the rules and regulations promulgated hereunder
shall be in force and effect until the Congress shall otherwise
provide." And although said section 3 does not specify whether
in regular or special session, it is evident that it refers to the
next regular and not to the special session of the Congress,
because as a rule a special session is called to consider only
specific matters submitted by the President to Congress for
consideration, and it would be useless to submit such report to
the Congress in special session if the latter can not either
modify or repeal such rules and regulations; and besides, it is to
be presumed that it was the intention of the National Assembly
in enacting section 3 of Commonwealth Act No. 671 to require
the submission of a report to the next regular session of the
Assembly or Congress, as provided in section 4 Commonwealth
Act No. 600, as amended by Commonwealth Act No. 620, which
required a similar report, for there was absolutely no plausible
reason to provide otherwise.
Our conclusion is corroborated by the fact that section
3 of Act No. 671 only requires the President to submit the
report, "as soon as practicable upon the convening of the
Congress" and not to submit a report to the Congress every
time it convenes, in order to inform the Congress thereof so
that the latter may modify or repeal any or all of them, for
under section 4 of the same Act "such rules and regulations
shall continue in force and effect until the Congress shall
otherwise provide." It is obvious that the convening of the
Congress referred to in said section 3 is the next regular session
of the Congress after the passage of Act No. 671, and not any
other subsequent sessions; because, otherwise, it would not
have required that it shall be submitted to the Congress as soon
as practicable and the purpose of the law already stated in
requiring the submission of the report would be defeated; and
if it were the intention of said Commonwealth Act No. 671 to
authorize the President to continue promulgating rules and
regulations after the next regular session of the Congress, it
would have required the President to submit to the Congress
each and every time it convenes a report of the rules and
regulations promulgated after his previous reports had been
submitted.
Furthermore, our conclusion is confirmed by the
legislative interpretation given to Commonwealth Act No. 671
by the same Congress in enacting Commonwealth Act No.
728 which took effect on July 2, 1946, authorizing the President
to regulate, control, curtail, and prohibit the exploration of
agricultural or industrial products, merchandise, articles,
materials and supplies without the permit of the President until
December 31, 1948 as expressly provided in section 4 thereof,
because it would not have been necessary for the Congress to
promulgate said Act No. 728 if the President had authority to
promulgate Executive Order No. 62 in question on January 1,
1949, under Commonwealth Act No. 671 as contented by the
respondents; and Republic Act No. 51, approved on October 4,
1946, authorizing the President of the Philippines to reorganize
within one year the different executive departments, bureaus,
offices, agencies and other instrumentalities of the
government, including corporations controlled by it, would not
have been passed by the Congress if Commonwealth Act No.
671 under consideration was then still in force, for section 2 (b)
and (c) of said Act No. 671 authorizes the President to
reorganize the Government and to create new subdivisions,
branches, department offices, agencies or instrumentalities of
government, and to abolish any of those already existing.
REFUTATION
There is no force in the argument that the executive
orders in question are not valid, not because the promulgation
of the acts above mentioned and of Commonwealth Act No.
689 as amended by the Republic Act No. 66 on rentals, the
appropriation acts or Republic Acts Nos. 1, 156, and 320 for the
years 1946-47, 1947-48 and 1948-49, and of the Republic Acts
Nos. 73, 147, and 235 appropriating public funds to defray the
expenses for the elections held in 1947 and 1948, shows that
the emergency powers granted by Commonwealth Act No. 671
had already ceased to exist, but because Congress "has shown
by their enactment its readiness and ability to legislate on those
matters, and had withdrawn it from the realm of presidential
legislation or regulations under the powers delegated by
Commonwealth Act No. 671." If the Congress was ready and
able to legislate on those matters since 1946 and for that
reason the executive orders herein involved are null and void,
there is no valid reason for not concluding that the emergency
powers of the President has ceased to exist in 1946, because
since then the Congress could, although it did not, legislate on
all matters on which the President was granted and delegated
power to legislate by the Commonwealth Act No. 671. And if
Commonwealth Act No. 671 continues to be in force and effect
in so far as it grants delegated legislative powers to the
President and declares the national policy to be carried out by
the rules and regulations the President is authorized to
promulgate, the mere promulgation of the acts above described
can not be considered as an implied repeal or withdrawal of the
authority of the President to promulgate rules and regulations
only on those matters, and the adoption of a contrary policy by
the Congress, because implied repeal is not favored in statutory
construction, and the national policy referred to in section 26,
Article VIII of the Constitution is to be declared by the Congress
in delegating the legislative powers to the President, in order to
establish the standard to be carried out by him in exercising his
delegated functions, and not in repealing said powers.
As we have already said, section 26, Article VI of the
Constitution expressly empowers Congress, in times of war and
other national emergency, to authorize the President to
promulgate rules and regulations to carry out a declared
national policy, and therefore it is for the National Assembly to
determine the existence of a particular emergency, declare the
national policy, and authorize the President to promulgate rules
and regulations of legislative nature to carry out that policy. As
the National Assembly has determined and specified in
Commonwealth Act No. 671 that the existence of war between
the United States and other countries of Europe and Asia which
involves the Philippines is the emergency which made it
necessary for the National Assembly to invest the President
with extraordinary powers to promulgate rules and regulations
to meet the resulting emergency from the actual existence of
that war which involved the Philippines, the President cannot,
under said Act No. 671, determine the existence of any other
emergency, such as the state of cold war, the continued military
occupation of the enemy country, the disorder in central Luzon,
the current inflation, and the economic and political instability
throughout the world, cited by the respondents, and
promulgate rules and regulations to meet the emergency;
because obviously it is not for the delegate but for the delegant
to say when and under what circumstances the former may act
in behalf of the latter, and not vice-versa.
The theory of those who are of the opinion that the
President may determine "whether the emergency which on
December 16, 1941, prompted the approval of Commonwealth
Act No. 671 delegating extraordinary powers to the President,
still existed at the time the Chief Executive exercised those
powers," is predicated upon the erroneous assumption that
said Commonwealth Act No. 671 contemplated any other
emergency not expressly mentioned in said Commonwealth
Act. This assumption or premise is obviously wrong. Section 1 of
said Act No. 671 expressly states that "the existence of the war
between the United States and other countries of Europe and
Asia which involves the Philippines makes it necessary to invest
the President with extraordinary power in order to meet the
resulting emergency." That is the war emergency. And it is
evident, and therefore no evidence is required to prove, that
the existence of the war which involved the Philippines had
already ceased before the promulgation of the executive orders
in question, or at least, if the last war has not yet technically
terminated in so far as the United States is concerned, it did no
longer involve the Republic of the Philippines since the
inauguration of our Republic or independence from the
sovereignty of the United States.
It is untenable to contend that the words "resulting
emergency from the existence of the war" as used in section 1
of Commonwealth Act No. 671 should be construed to mean
any emergency resulting from or that is the effect of the last
war, and not the war emergency itself, and that therefore it is
for the President to determine whether at the time of the
promulgation of the executive orders under consideration such
emergency still existed, because such contention would make
Act No. 671 unconstitutional or violative of the provisions of
section 26, Article VI of the Constitution. This constitutional
precept distinguishes war emergency from any other national
emergency, such as an economic depression and others which
may be the effect of a war, and empowers the Congress in
times of war and other national emergency, to be determined
by Congress itself as we have already said and shown, to
authorize the President, for a limited period that may be shorter
or of the same duration but not longer than that of the
emergency, to promulgate rules and regulations to carry out
the policy declared by the Congress in order to meet the
emergency. To construe Commonwealth Act No. 671 as
contended would be to leave the determination of the
existence of the emergency to the discretion of the President,
because the effects of the war such as those enumerated by the
respondents are not determined or stated in said Act and could
not have been foreseen by the Assembly in enacting said Act;
and because it would make the delegation of powers for an
indefinite period, since such an emergency may or may not
become a reality and it may arise a short or long time after the
last war. It is of judicial notice that the economic depression,
effect of the first world war, took place in the year 1929, or
about ten years after the cessation of hostilities in the year
1919; and by no stretch of imagination or intellectual
gymnastics may the failure of the Congress to appropriate funds
for the operation of the Government during the period from
July 1, 1949 to June 30, 1950, and to defray the expenses in
connection with the holding of the national election on the
second Tuesday of November, 1949, be considered as an
emergency resulting from the last war.
"In the enactment of emergency police measures, the
question as to whether an emergency exists is primarily for the
legislature to determine. Such determination, although entitled
to great respect, is not conclusive because the courts, in such
cases, possess the final authority to determine whether an
emergency in fact exists." (American Jurisprudence, Vol. XI,
page 980.)
No case decided by the courts of last resort in the
United States may be cited in support of the proportion that it
is for the President to determine whether there exists an
emergency in order to exercise his emergency powers, and "it is
not for the judiciary to review the finding of the Executive in
this regard." There is none and there cannot be any. Because,
as we have already stated at the beginning of this opinion, and
we are supported by the above quotation from American
Jurisprudence, the power to pass emergency police legislation
in the United States may be exercised only by the legislature in
the exercise of the police power of the State, and it can not be
delegated to the Executive because there is no provision in the
State and Federal constitutions authorizing such delegation as
we have in section 26, Article VI, of our Constitution. As we
have already said before, the only legislative power which may
be delegated to the Executive and other administrative bodies
or officers in the United States is the power to promulgate rules
and regulations of administrative nature, which does not
include the exercise of the police power of the State.
The ruling laid down by the United States Supreme
Court in the case of Ludecke vs. Watkins, 92 Law. ed., 1883,
quoted by the respondents and dissenters in support of the
proposition that "only in case of a manifest abuse of the
exercise of powers by a political branch of the government is
judicial interference allowable in order to maintain the
supremacy of the Constitution," has no application to the
present case; because the question involved in the present case
is not a political but a justiciable question, while the question in
issue in said Ludecke case was the power of the court to review
"the determination of the President in the postwar period that
an alien enemy should be deported, even though active
hostilities have ceased," and it was held that it was a political
question and, therefore, was not subject to judicial review.
CONCLUSION
In view of all the foregoing, we have to conclude and
declare that the executive orders promulgated by the President
under Commonwealth Act 671 before the date of the
adjournment of the regular session of the Congress of the
Philippines in 1946 are valid, because said Commonwealth Act
was then still in force; but the executive orders promulgated
after the said date are null and void, because Commonwealth
Act No. 671 had already ceased to be in force in so far as the
delegation of powers was concerned. Therefore, are null and
void the Executive Order No. 62 dated June 21, 1947, regulating
rentals for houses and lots for residential purposes; the
Executive Order No. 192 promulgated on December 24, 1948,
on the control of exports from the Philippines; the Executive
Order No. 225 dated June 15, 1949, appropriating funds for the
operation of the Government of the Republic of the Philippines
during the period from July 1, 1949 to June 30, 1950; and the
 Executive Order No. 226 promulgated on June 15, 1949,
appropriating the sum of six million pesos to defray the
expenses in connection with, and incidental to, the holding of
the national election to be held on the second Tuesday of
November, 1949.
||| (Araneta v. Dinglasan, G.R. No. L-2044, L-2756, L-3054, L-3055,
L-3056, [August 26, 1949], 84 PHIL 368-459)
EN BANC
[G.R. No. L-6266. February 2, 1953.]
EULOGIO RODRIGUEZ, SR. ETC., ET
AL., petitioners, vs. VICENTE GELLA, ETC., ET
AL., respondents.
Eulogio Rodriguez, Sr., Lorenzo M. Tañada, Claro M.
Recto, Jose P. Laurel, Jesus Barrera and Leon Ma. Guerrero for
petitioner.
Solicitor General Juan R. Liwag and Solicitor Martiniano
P. Vivo for respondents.
SYLLABUS
1. CONSTITUTIONAL AND POLITICAL LAW;
CONGRESSIONAL DELEGATION OF EMERGENCY POWERS TO
THE PRESIDENT; COMMONWEALTH ACT NO. 671; LIMITED
DURATION. — Commonwealth Act No. 671, passed in
pursuance of section 26 of Article VI of the Constitution,
declared the national policy that "the existence of war between
the United States and other countries of Europe and Asia, which
involves the Philippines makes it necessary to invest the
President with extraordinary powers in order to meet the
resulting emergency," and authorized the President "during the
existence of the emergency, to promulgate such rules and
regulations as he may deem necessary to carry out the national
policy declared in the Act." To be constitutional, this Act must
be construed to be for the limited period fixed or implied
therein.
2. ID.; ID.; ID.; ID.; EXPRESS REPEAL UNNECESSARY. —
Express repeal of Commonwealth Act No. 671 is not necessary;
otherwise it would be unconstitutional since it may never be
repealed by the Congress, or if the latter attempts to do so, the
President may wield his veto.
3. ID.; ID.; ID.; ID.; ID.; HOUSE BILL NO. 727
CONSIDERED CONCURRENT RESOLUTION. — Although House
Bill No. 727, approved by the Congress, repealing the
Emergency Powers Acts, had been vetoed by the President and
did not thereby become a regular statute, it may at least be
considered as a concurrent resolution formally declaring the
termination of the emergency powers.
4. ID.; ID.; ID.; ID.; EMERGENCY RESULTING FROM LAST
WORLD WAR. — Commonwealth Act No. 671 lasted only during
the emergency resulting from the last world war which factually
involved the Philippines when said Act was passed on
December 16, 1941. That emergency terminated upon the
ending of said war.
5. ID.; ID.; ID.; ID.; KINDS OF EMERGENCIES. — Section
26 of Article VI of the Constitution authorizes the delegation of
powers by the Congress (1) in times of war or (2) other national
emergency. The emergency spoken of in Commonwealth Act
No. 671 is one "in time of war," as distinguished from "other
national emergency" that may arise as an after-effect of war or
from natural causes such as widespread earthquakes, typhoons,
floods, and the like.
6. ID.; ID.; ID.; ID.; POWERS OF PRESIDENT TO MAKE
APPROPRIATIONS. — Even under the theory that insofar as the
Congress had shown its readiness or ability to act on a given
matter, the emergency powers delegated in
Commonwealth Act No. 671 are pro tanto withdrawn, the
President cannot set aside funds for special purposes, since the
Congress has been approving appropriation acts. If the
President had ceased to have powers with respect to general
appropriations, none can remain in respect of special
appropriations; otherwise he may do indirectly what he cannot
do directly.
DECISION
PARAS, C.J p:
As a fitting foreword, it may be recalled that on a
previous occasion, on August 26, 1949 to be exact, this court
had already passed upon the status of CommonwealthAct No.
671, approved on December 16, 1941, "declaring a state of total
emergency as a result of war involving the Philippines and
authorizing the President to promulgate rules and regulations
to meet such emergency." Five members held that the Act
ceased to be operative in its totality, on May 25, 1946 (when
the Congress met in regular session) according to Justices
Ozaeta, Feria, Tuason and the writer, and on June 9, 1945
(when the Congress convened in special session) according to
Chief Justice Moran. Justices Bengzon, Padilla, Montemayor,
Reyes and Torres in effect concluded that the powers delegated
to the President had been withdrawn as to matters already
legislated upon by the Congress or on which the latter had
demonstrated its readiness or ability to act. Executive Orders
No. 62 (dated June 21, 1947) regulating house and lot rentals,
No. 192 (dated December 24, 1948) regulating exports, Nos.
225 and 226 (dated June 15, 1949) the first appropriation funds
for the operation of the Government from July 1, 1949 to June
30, 1950, and the second appropriating funds for election
expenses in November, 1949, were therefore declared null and
void for having been issued after Act No. 671 had lapsed and/or
after the Congress had enacted legislation on the same
subjects. 1
More or less the same considerations that influenced
our pronouncements of August 26, 1949 are and should be
controlling in the case now before us, wherein the petitioners
seek to invalidate Executive Orders Nos. 545 and 546 issued on
November 10, 1952, the first appropriating the sum of
P37,850,500 for urgent and essential public works, and the
second setting aside the sum of P11,367,600 for relief in the
provinces and cities visited by typhoons, floods, droughts,
earthquakes, volcanic action and other calamities.
Section 26 of Article VI of the Constitution provides
that "in times of war or other national emergency, the Congress
may by law authorize the President, for a limited period and
subject to such restrictions as it may prescribe, to promulgate
rules and regulations to carry out a declared national policy."
Accordingly the National Assembly passed Commonwealth Act
No. 671, declaring (in section 1) the national policy that "the
existence of war between the United States and other countries
of Europe and Asia, which involves the Philippines makes it
necessary to invest the President with extraordinary powers in
order to meet the resulting emergency," and (in section 2)
authorizing the President, "during the existence of the
emergency, to promulgate such rules and regulations as he may
deem necessary to carry out the national policy declared in
section 1."
As the Act was expressly in pursuance of the
constitutional provision, it has to be assumed that the National
Assembly intended it to be only for a limited period. If it be
contended that the Act has not yet been duly repealed, and
such step is necessary to a cessation of the emergency powers
delegated to the President, the result would be obvious
unconstitutionality, since it may never be repealed by the
Congress, or if the latter ever attempts to do so, the President
may wield his veto. This eventuality has in fact taken place
when the President disapproved House Bill No. 727, repealing
all Emergency Powers Acts. The situation will make the
Congress and the President or either as the principal authority
to determine the indefinite duration of the delegation of
legislative powers, — in palpable repugnance to the
constitutional provision that any grant thereunder must be for a
limited period, necessarily to be fixed in the law itself and not
dependent upon the arbitrary or elastic will of either the
Congress or the President.
Although House Bill No. 727, had been vetoed by the
President and did not thereby become a regular statute, it may
at least be considered as a concurrent resolution of the
Congress formally declaring the termination of the emergency
powers. To contend that the Bill needed presidential
acquiescence to produce effect, would lead to the anomalous, if
not absurd, situation that, "while Congress might delegate its
powers by a simple majority, it might not be able to recall them
except by two-third vote. In other words, it would be easier for
Congress to delegate its powers than to take them back. This is
not right and is not, and ought not to be the law." 2
Act No. 671 may be likened to an ordinary contract of
agency, whereby the consent of the agent is necessary only in
the sense that he cannot be compelled to accept the trust, in
the same way that the principal cannot be forced to keep the
relation in eternity or at the will of the agent. Neither can it be
suggested that the agency created under the Act is coupled
with interest.
The logical view consistent with constitutionality is to
hold that the powers lasted only during the emergency
resulting from the last world war which factually involved the
Philippines when Act No. 671 was passed on December 16,
1941. That emergency, which naturally terminated upon the
ending of the last world war, was contemplated by the
members of the National Assembly on the foresight that the
actual state of war could prevent it from holding its next regular
session. This is confirmed by the following statement of
President Quezon: "When it became evident that we were
completely helpless against air attack and that it was most
unlikely the Philippine Legislature would hold its next regular
session which was to open on January 1, 1942, the National
Assembly passed into history approving a resolution which
reaffirmed the abiding faith of the Filipino people in, and their
loyalty to, the United States. The Assembly also enacted a law
granting the President of the Philippines all the powers that
under the Philippine Constitution may be delegated to him in
time of war." 3 When President Quezon said "in time of war",
he undoubtedly meant such factual war as that then raging.
As early as July 26, 1948, the Congress categorically
declared that "since liberation conditions have gradually
returned to normal, but not so with regard to those who have
suffered the ravages of war and who have not received any
relief for the loss and destruction resulting therefrom," and that
"the emergency created by the last war as regards these war
sufferers being still existent, it is the declared policy of the state
that as to them the debt moratorium should be continued in
force in a modified form." 4 It is important to remember
that Republic Act No. 342 in which this declaration was made
bore the approval of the President. Indeed, the latter in his
speech delivered on July 4, 1949, plainly proclaimed that "what
emergencies it (the Republic) faces today are incidental passing
rains artificially created by seasonal partisanship, very common
among democracies but will disappear with the rains that
follow the thunderclaps not later than November 8 of this
year," — an admission, that such emergencies not only are not
total but are not the result of the last war as envisaged in Act
No. 671.
If more is necessary to demonstrate the unmistakable
stand of the legislative department on the alleged existence of
emergency, reference may be had to House Bill No. 727,
hereinbefore referred to, repealing all Emergency Powers Acts.
Moreover, section 26 of Article VI of the Constitution,
in virtue of which Act No. 671 was passed, authorizes the
delegation of powers by the Congress (1) in times of war or (2)
other national emergency. The emergency expressly spoken of
in the title and in section 1 of the Act is one "in time of war," as
distinguished from "other national emergency" that may arise
as an after-effect of war or from natural causes such as
widespread earthquakes, typhoons, floods, and the like.
Certainly the typhoons that hit some provinces and cities in
1952 not only did not result from the last world war but were
and could not have been contemplated by the legislators. At
any rate, the Congress is available for necessary special
sessions, and it cannot let the people down without somehow
being answerable thereover.
As a matter of fact, the President, in returning to the
Congress without his signature House Bill No. 727, did not
invoke any emergency resulting from the last world war, but
only called attention to an impending emergency that may be
brought about by present complicated and troubled world
conditions, and to the fact that our own soldiers are fighting
and dying in Korea in defense of democracy and freedom and
for the preservation of our Republic. The emergency thus
feared cannot, however, be attributed to the war mentioned
in Act No. 671 and fought between Germany and Japan on one
side and the Allied Powers on the other; and indications are
that in the next world war, if any, the communist countries will
be aligned against the democracies. No departure can be made
from the national policy declared in section 1 of Act No. 671.
New powers may be granted as often as emergencies
contemplated in the Constitution arise.
There is no point in the argument that the Philippines
is still technically at war with Japan pending the ratification of
the peace treaty. In the first place, Act No. 671referred to a
factual war. In the second place, the last world war was
between the United States and Japan, the Philippines being
involved only because it was then under American sovereignty.
In the third place, the United States had already signed the
peace treaty with Japan, and the Philippines has become an
independent country since July 4, 1946.
It is pointed out that the passage of House Bill No. 727
is inconsistent with the claim that the emergency powers are
non- existent. But, from the debates in the House, it is patent
that the Bill had to be approved merely to remove all doubts,
especially because this Court had heretofore failed, for lack of
necessary majority, to declare Act No. 671 entirely inoperative.
Reliance is placed on the petition of about seventy
Congressmen and Senators and on House Resolution No. 99,
urging the President to release and appropriate funds for
essential and urgent public works and for relief in the typhoon-
stricken areas. It is enough to state, in reply, that the said
petition and resolution cannot prevail over the force and effect
of House Bill No. 727 formally passed by two chambers of the
Congress. If faith can be accorded to the resolution of one
house, there is more reason for accepting the solemn
declaration of two houses.
Even under the theory of some members of this court
that insofar as the Congress had shown its readiness or ability
to act on a given matter, the emergency powers delegated to
the President had been pro tanto withdrawn, Executive Orders
Nos. 545 and 546 must be declared as having no legal
anchorage. We can take judicial notice of the fact that the
Congress has since liberation repeatedly been approving acts
appropriating funds for the operation of the Government,
public works, and many other purposes, with the result that as
to such legislative task the Congress must be deemed to have
long decided to assume the corresponding power itself and to
withdraw the same from the President. If the President had
ceased to have powers with regards to general appropriations,
none can remain in respect of special appropriations; otherwise
he may accomplish indirectly what he cannot do directly.
Besides, it is significant that Act No. 671 expressly limited the
power of the President to that of continuing "in force"
appropriations which would lapse or otherwise become
inoperative, so that, even assuming that the Act is still effective,
it is doubtful whether the President can by executive orders
make new appropriations. The specific power "to continue in
force laws and appropriations which would lapse or otherwise
become inoperative" is a limitation on the general power "to
exercise such other powers as he may deem necessary to
enable the Government to fulfill its responsibilities and to
maintain and enforce its authority." Indeed, to hold that
although the Congress has, for about seven years since
liberation, been normally functioning and legislating on every
conceivable field, the President still has any residuary powers
under the Act, would necessarily lead to confusion and
overlapping, if not conflict.
Shelter may not be sought in the proposition that the
President should be allowed to exercise emergency powers for
the sake of speed and expediency in the interest and for the
welfare of the people, because we have the Constitution,
designed to establish a government under a regime of justice,
liberty and democracy. In line with such primordial objective,
our Government is democratic in form and based on the system
of separation of powers. Unless and until changed or amended,
we shall have to abide by the letter and spirit of the
Constitution and be prepared to accept the consequences
resulting from or inherent in disagreements between, inaction
or even refusal of the legislative and executive departments.
Much as it is imperative in some cases to have prompt official
action, deadlocks in and slowness of democratic processes must
be preferred to concentration of powers in any one man or
group of men for obvious reasons. The framers of the
Constitution, however, had the vision of and were careful in
allowing delegation of legislative powers to the President for a
limited period "in times of war or other national emergency."
They had thus entrusted to the good judgment of the Congress
the duty of coping with any national emergency by a more
efficient procedure; but it alone must decide because
emergency in itself cannot and should not create power. In our
democracy the hope and survival of the nation lie in the
wisdom and unselfish patriotism of all officials and in their
faithful adherence to the Constitution.
Wherefore, Executive Orders Nos. 545 and 546 are
hereby declared null and void, and the respondents are ordered
to desist from appropriating, releasing, allotting, and expending
the public funds set aside therein. So ordered, without costs.
Feria, Pablo and Tuason, JJ., concur.
Bengzon, J., concurs in the result.
Separate Opinions
PADILLA, J., concurring:
"All appropriation, revenue or tariff bills . . . shall
originate exclusively in the House of Representatives, but the
Senate may propose or concur with amendments." 1 "No
money shall be paid out of the Treasury except in pursuance of
an appropriation made by law." 2 The authority or power to
appropriate government funds to be spent for public purposes
is lodged exclusively in the Congress because it is purely and
essentially a legislative function. The legislative power to
appropriate government funds for public purposes lodged
exclusively in the Congress may, however, be delegated to the
President "in times of war or other national emergency," "for a
limited period and subject to such restrictions as it may
prescribe," "to carry out a declared national policy." 3 This
constitutional provision has no counterpart in the Constitution
of the United States of America and in those patterned after it.
Under this provision of the Constitution several emergency
powers acts, notably Com. Acts Nos. 600 and 671, were
passed. 4Being a deviation from the principle of separation of
powers the delegation of legislative powers authorized by the
Constitution may validly be made only by adhering strictly to its
spirit and letter. Pursuant thereto the legislative authority or
power to be granted or delegated to the President by the
Congress must be "in times of war or other national
emergency" and "for a limited period and subject to such
restrictions as it may prescribe," and the Congress has to pass a
law for that purpose. The reason why the Constitution is silent
on or does not provide for the manner the delegation of
legislative powers may be withdrawn, revoked or ended, is
because if it is for a limited period it lapses at the end of the
period and because if the war or other national emergency
which prompted it ceases the delegation of legislative powers
ceases also ipso facto. A law which delegates such powers to
the President for an indefinite period would be unconstitutional
because it is against the express provision of the Constitution. It
would be an abdication of legislative powers. If the law which
delegates legislative powers does not fix or provide for a period
of time within or during which the President may exercise them
and there is dispute or doubt as to whether the national
emergency which prompted the Congress to pass the law
delegating legislative powers to the President continues or has
ceased, such dispute or doubt may be determined in an
appropriate case by the courts. Another way of terminating
such delegation is by the Congress itself which made the
delegation. To withdraw, terminate or revoke the delegation of
legislative powers to the President a concurrent resolution
would be sufficient. 1 The concurrence of the President is
superfluous and unnecessary, for if it be required then the law
which delegated legislative powers to him would suffer from a
fatal defect, vice, or infirmity which would render such
delegation unconstitutional for lack of time limitation
prescribed and ordained by the Constitution.
It is claimed that just as the delegation of legislative
powers to the President is to be made by means of a law which
requires the concurrence of the President, so the withdrawal,
termination or revocation of the legislative powers delegated to
him must also be with his concurrence and approval. The
reason for the requirement that a law be passed to make the
delegation of legislative powers valid and effective is the fact
that whereas the Congress may deem it wise and expedient to
make the delegation, the President may hold a different view.
In other words, he has to concur and accept the powers
delegated to him by the Congress. But when it comes to
withdrawal, termination or revocation of the legislative powers
delegated to him his concurrence or consent is not necessary.
The absence of constitutional provision on how it should be
done and carried out is not due to an oversight or to an
intention of the members of the Constitutional Convention to
require the concurrence of the President to make the
revocation valid and effective, because, as heretofore stated, if
such concurrence be required to make the revocation valid and
effective, the law which delegated legislative powers to the
President would or might offend against the very provision of
the Constitution which requires and ordains that such
delegation be for a limited period of time only, and because the
refusal to concur in by a President bent on or inclined to
continue exercising legislative powers delegated to him would
result in a delegation of legislative powers, at least during his
incumbency or tenure of office, regardless of whether the
reason or reasons for the grant of the authority to exercise such
legislative powers have ceased to exist.
It is contended, however, that in withdrawing,
terminating or revoking the legislative powers delegated to the
President the Congress did so by passing a bill evincing its
intention to have his assent, which he refused to give, and for
that reason the revocation of the legislative powers delegated
to him was ineffective for lack of such concurrence. To
determine what the Congress intended when it passed the bill
repealing the Emergency Powers Acts — the Senate approved it
unanimously — form must give way to substance. If the
contention that in passing the bill repealing the Emergency
Powers Acts the Congress intended to have the concurrence of
the President be upheld, such a construction would render the
bill contradictory in itself, because in the explanatory notes of
H. No. 692 introduced by Congressman Roy and H. No. 727 by
Congressman Zosa, upon which the consolidated bill passed is
based, it is declared "that war had long ended," that "the need
for the grant of such unusual powers to the President has
disappeared," and that for that reason the Congress repealed
all Emergency Powers Acts. The Congress could not have meant
or intended to subordinate its opinion or judgment that the war
had ended and that the national emergency had ceased to exist
to that of the President, the legislative and not the executive
being the department of the Government exclusively clothed or
vested with the authority and power to make such a
declaration. In passing the bill the Congress committed a
mistake in the matter of form but not of substance because the
latter is there in the explanatory note of the bill passed by both
houses, to wit: "that war had long ended," that "the need for
the grant of such unusual powers to the President has
disappeared," and that for that reason it repealed all the
Emergency Powers Acts. After the Congress had made that
declaration the President could no longer exercise the
legislative powers delegated to him. It was a complete and
absolute revocation of the delegation of such powers. His veto
of the bill could not and did not have the effect of reviving or
continuing the delegation of legislative powers which had been
revoked by the Congress, the only constitutional body
empowered and authorized to make the revocation.
For these reasons I am of the opinion that Executive
Orders Nos. 545 and 546 which appropriate government funds
for public works and relief for the, victims of typhoons in some
provinces of the Republic are of no validity and legal effect
because the President no longer had the authority to issue such
executive orders under the Emergency Powers Act which had
been withdrawn or revoked by the Congress. The writ of
prohibition prayed for should be granted.
BENGZON, J.:
I have signed the majority opinion. But I also agree to
the above views of Mr. Justice Padilla.
Labrador, J., concurs.
REYES, J., concurring:
It being repugnant to the spirit of the Constitution to
let Commonwealth Act No. 671 degenerate into a grant in
perpetuity of legislative powers to the Executive, and taking
House Bill No. 727, approved by the Congress but vetoed by the
President, as a for-the- record pronouncement on the part of
the legislative branch of the Government that the emergency
which impelled it to delegate, through the said Commonwealth
Act, legislative powers to the President had already ceased, so
that there was no longer any need for the exercise of those
delegated powers, and, lastly, considering that said Act does
not have to be repealed by another Act because, as an
emergency measure, it repeals itself with the cessation of the
emergency, I concur in this opinion of Mr. Justice Padilla.
JUGO, J., concurring:
In addition to the reasons set forth by Chief Justice
Parás and Associate Justice Padilla, I would like to make a few
brief remarks:
Section 26 of Article VI of the Philippine Constitution
provides as follows:
"In times of war or other national
emergency, the Congress may by law authorize
the President, for a limited period and subject to
such restrictions as it may prescribe, to
promulgate rules and regulations to carry out a
declared national policy."
Section 1 of Commonwealth Act No. 671, which is
entitled "An Act Declaring a State of Total Emergency as a
Result of War Involving the Philippines and Authorizing the
President to Promulgate Rules and Regulations to Meet such
Emergency," reads as follows:
"The existence of war between the
United States and other countries of Europe and
Asia, which involves the Philippines, makes it
necessary to invest the President with
extraordinary powers in order to meet the
resulting emergency."
Section 2 of said Commonwealth Act No. 671 invoking
section 26, Article VI, of the Constitution above-quoted,
authorized the President during the existence of the emergency
caused by said war to promulgate rules and regulations, etc.
Executive Order No. 545, dated November 10, 1952,
appropriating funds for urgent and essential public works,
states in its preamble, in justification of said order, that the
Congress in its last special session had failed to appropriate
funds for the immediate repairs and reconstruction of certain
public buildings and public works, damaged by the recent
typhoons, floods, and other calamities.
Executive Order No. 546, dated November 10, 1952,
also declares as its cause that the Congress had failed in its last
special session to provide funds for relief to the victims of the
recent typhoons, floods, draughts, earthquakes, etc.
It will be seen that the authority given by the
Constitution to the Congress to delegate certain legislative
powers to the President was for a limited time. This was
naturally so, because an emergency cannot be of a long,
unlimited or indefinite duration, for otherwise it would not be
an emergency.
Commonwealth Act No. 671 was passed on December
16, 1941. Executive Orders Nos. 545 and 546 were issued on
November 10, 1952; that is, almost eleven years from the date
Commonwealth Act No. 671 was enacted. It is hard to conceive
of an emergency which has lasted almost eleven years.
The emergency contemplated by Commonwealth Act
No. 671 was not the same emergency invoked in said executive
orders, for, whereas Commonwealth Act No. 671refers to the
emergency created by the existence of war between the United
States and other countries of Europe involving the Philippines,
the executive orders above-mentioned deal with the damages
wrought by the recent typhoons, earthquakes, volcanic
eruptions, etc., and the failure of the Congress to provide funds
for the repairs and reconstruction of damaged buildings and
public works and for the relief of the victims. The recent
typhoons, earthquakes, volcanic eruptions, etc. and the failure
of the Congress to provide for them have nothing to do with the
war mentioned in said Commonwealth Act No. 671 and are not
the consequences of said war.
For the foregoing reasons, I concur in the majority
opinion.
MONTEMAYOR, J., concurring and dissenting:
With the majority I agree that Executive Orders Nos.
545 and 546, — the first appropriating P37,850,500 for urgent
and essential public works, the second appropriating
P11,367,600 for relief — are invalid, for the same reasons given
by me in my dissenting opinion in cases G. R. Nos. L-2044, * L-
2756, * and L-3054-56 * commonly called the "Emergency Cases
of 1949", namely, that the Legislature had already withdrawn
from the realm of presidential legislation or regulation under
the emergency powers delegated by Commonwealth Act No.
671, the power to appropriate funds for the expenses of the
Government and for other purposes.
To me, however, the more important point involved in
the present case is not the validity of the two executive orders
but rather the question of whether or not Commonwealth Act
No. 671 is still in force, and whether or not the Chief Executive
still has emergency powers under said Act. And the parties
herein, not excluding the Chief Executive and the Legislature, it
is to be presumed, want this point definitely settled. So, I
proposed to devote the considerations in this modest
dissenting opinion to this matter. The majority opinion states
that in the emergency cases of 1949, five members of this
tribunal held that Commonwealth Act No. 671 ceased to be
operative. To complete the record, I may add that Mr. Justice
Reyes in his concurring and dissenting opinion held that
Commonwealth Act 671 was still in force. Mr. Justice Padilla
concurred in that opinion. With the concurrence of Mr. Justice
Torres in my concurring and dissenting opinion I also held that
Commonwealth Act 671 was still in force. Mr. Justice Bengzon
in his dissenting opinion in those emergency cases said that
although he was favorably impressed by the reasons set forth
by Mr. Justice Reyes and Mr. Justice Montemayor, he preferred
not to vote on that particular point — the existence or non-
existence of the emergency powers of the President. So that
even if we do not include Mr. Justice Bengzon, we can correctly
say that four justices voted in those emergency cases in favor of
the existence of emergency powers of the President.
In those emergency cases of 1949 I prepared a more or
less extensive opinion in support of the theory that
Commonwealth Act No. 671 was still in force. I wish to embody
said opinion in the present opinion by reference, without
prejudice to reproducing portions of the same.
I agree with the majority that Commonwealth Act 671
was to be in force only for a limited period of time, otherwise it
would be unconstitutional; and that that limited period was
coextensive with the existence of the emergency. But I
emphatically disagree with the majority when it says:
"That emergency, which
naturally terminated upon the ending of the last
world war, was contemplated by the members
of the National Assembly on the foresight that
the actual state of war would prevent it
from holding its next regular session."
As regards the majority's view that emergency powers
were delegated by Commonwealth Act 671 because due to
emergency the National Assembly would be unable to hold its
regular session, I discussed and I hope I refuted this theory in
my dissenting opinion in the 1949 emergency cases and I take
the liberty of quoting a pertinent portion thereof:
"I believe that, as I already had
occasion to state though incidentally, the real
reason for the delegation of legislative powers
to the Chief Executive is not only because the
Legislature is unable to meet due to a national
emergency but also because although it could
and does actually meet, whether in regular or
special session, it is not in a position and able to
cope with the problems brought about by and
arising from the emergency, problems which
require urgent and immediate action. Certainly,
one man can act more quickly and expeditiously
than about one hundred members of the
Legislature, especially when they are divided
into Legislative chambers. That is why in times
of emergency, much as we in democratic
countries dislike the system or idea of
dictatorship, we hear of food dictator, fuel
dictator, transportation dictator, civilian
evacuation dictator, etc., where the functions
which ordinarily belong to a council or board or
to a legislative body, are entrusted under
certain limitations to one single official or
individual.
"Supposing that during a national
emergency and while the Legislature is in
session, the legislators woke up one morning to
find that there was extreme scarcity of imported
foods, fuel, building materials, equipment
required in agriculture and industry, etc.,
because of a monopoly, hoarding, injurious
speculations, manipulations, private controls
and profiteering, or that there were wide spread
lockouts and strikes paralyzing transportation,
commerce and industry, or rampant espionage
or sabotage endangering the very life and
security of the nation. How much time would it
take the legislature to enact the necessary
legislation in order to cope with the situation
and pass the necessary emergency measures?
"We are all familiar with the practice
and routine of enacting laws. A bill is introduced
in the Legislature; it is referred to the
corresponding committee, it is studied by said
committee, which in some cases holds public
hearings; the committee discusses the bill and
sometimes introduces amendments; if the bill is
not killed in the committee or shelved, it is
submitted to the chamber for study, discussion,
and possible amendment by all the members; it
is finally voted and if approved, it is sent to the
other house where it undergoes the same
process; and if it is finally approved by both
houses of Congress, it is submitted to the Chief
Executive for his study and approval or veto. All
this may consume weeks or months as a result
of which, ordinarily, many bills finally approved
by Congress could be sent to the President for
approval or veto only after adjournment of the
legislative session. And we should not overlook
the fact that in some cases for lack of time or
due to disagreement among the legislators or
between the two houses of Congress, important
pieces of legislations like the annual
appropriation law for the fiscal year 1949-50,
appropriation of funds for the elections to be
held in November, 1949, contained in Executive
Orders Nos. 225 and 226, involved in the
present cases, and the proposed amendment to
the Election Code etc., have not been passed by
Congress in its last session ending last May,
1949, which session lasted one hundred days. If
we were to rely on the ordinary process of
legislation to meet a national emergency, by the
time the necessary and needed law is passed,
the situation sought to be remedied, or the
problem sought to be solved may have become
disastrous or ended in calamity or gone beyond
legislations or any remedy. It would be too late.
It would be like locking the stable door after the
horse had been stolen.
"Now, for some retrospect, The
Philippine National Assembly delegated its
legislative powers because of the existence of a
state of national emergency as early as the year
1939. During its second special session of that
year, it promulgated the following laws:
(Commonwealth Acts Nos. 494, 496, 498 and
500).
"At that time, September, 1939, the
second world war was only in Europe, quite far
from the Philippines and had just begun. There
was then no likelihood of the Philippines being
involved in the war. In fact, the Philippines did
not get involved in the war until more than two
years, in December, 1941. The National
Assembly was then free to meet either in
regular or special session to enact legislation to
meet the emergency. In fact, it met in regular
session in January, 1940 lasting 100 days and in
January, 1941 for another regular session of 100
days, excluding the several special sessions held
during those two years. And yet the Assembly
delegated legislative powers to the President
under section 26, Article VI of the Constitution.
This is clear proof that, contrary to the theory of
the majority opinion, the legislature delegated
legislative powers to the President even when it
could meet and it actually met several times.
"After passing the Acts just mentioned
delegating legislative powers to the President,
the Assembly in its fourth special session on
August 19, 1940 repeated and reiterated this
practice and policy by passing Commonwealth
Act No. 600 delegating additional and more
extensive legislative powers to the President in
spite of the fact that the war was still far away in
Europe and there was no danger or prospect of
involving the Philippines, and the legislature was
still free to meet as in fact it met again in regular
session in January, 1941. During its regular
session begun that month and year, instead of
stopping or ending the legislative powers
delegated to the President, because according
to the theory of the majority opinion, the
Legislature was able to meet, the Assembly
allowed them to continue by passing
Commonwealth Act No. 620 which merely
amended section 1 of Commonwealth Act No.
600. I repeat that all this, far from supporting
the view of the majority that the legislature
delegated legislative powers to the President
only because it could not meet, fairly and
squarely refutes said view."
As to the proposition in the majority opinion that the
emergency terminated with the war, I am afraid the majority
confuses war with emergency. They are two different and
separate things and events. Even the Constitution (Article VI,
section 26) which for purposes of reference is reproduced
below, considers war and emergency as separate and distinct:
"SEC. 26. In times of war or other
national emergency, the Congress may by law
authorize the President, for a limited period and
subject to such restrictions as it may prescribe,
to promulgate rules and regulations to carry out
a declared national policy."
There may be a national emergency without a war.
And so, when on the, occasion of a war, a national emergency
ensues and is recognized and declared by Congress, said
emergency may continue even if and when the war that started
it is ended. War may and generally create an emergency, but
the emergency thus created does not necessarily end with the
war. A war may last only several weeks or months but with the
use of the modern weapons of warfare it may cause such
devastation, desolation and national suffering and collapse not
only economically but socially and morally that the resulting
emergency may last for years. A destructive flood, tornado,
tidal wave or volcanic eruption may last only minutes or hours
but the destruction that it leaves in its wake may take weeks,
months or years to repair, and the emergency thereby created
may last that long.
To bolster its contention the majority cites President
Quezon's book "The Good Fight" pp. 204-205, wherein he
speaks of the powers delegated to him under the Constitution
in time of war. I am afraid the citation proves nothing. He
merely said that the delegation was made in time of war. He did
not say or mean that the powers thus delegated were to be
exercised only during the war. The main thing to be considered
and which calls for the exercise of the powers delegated is the
emergency, not the war that merely started or caused it.
Commonwealth Act 671 itself in its section 2 says that the
President will exercise his emergency powers during the
existence of the emergency. It does not say during the existence
of the war.
President Quezon is hardly the authority that the
majority should quote to support its theory that emergency
powers are given to the Chief Executive just because due to the
emergency, the Legislature is unable to meet. It was President
Quezon who was given emergency powers as early as 1939
under Commonwealth Acts Nos. 494, 496, 498 and 500 when
the war was still far away in Europe and we were not yet
involved and the National Assembly could still meet and
actually did meet several times in two years, 1940 and 1941, in
regular and special sessions, and during those two years when
the National Assembly was holding its sessions, he was
exercising his emergency powers and enacting legislation by
means of Executive Orders. Evidently, he did not see any
incompatibility in the grant and exercise of emergency powers
with the ability of the Legislature to meet and in actually
holding sessions, this, all contrary to the majority's contention.
Hostilities incident to the last Pacific war have long
ended since 1945; it does not however necessarily mean that
the emergency resulting from said war has ceased and that the
disruption of trade and dislocation of the economy of the
country, the destruction of public and private property, the
breakdown in honesty and morality and the collapse of peace
and order, all resulting from that war have disappeared, and
that everything has returned to normalcy. In support of its
theory that the emergency has ceased the majority makes
reference to Republic Act 342 wherein it is stated that
conditions have gradually returned to normal. But this same law
clearly says that the emergency created by the last war as
regards war sufferers who have not received any relief for the
loss or destruction resulting from the war, still exists and so
postpones payment of their debts or monetary obligations
contracted before the war, for a period of eight (8) years from
and after the settlement of their war damage claims by the
United States-Philippine War Damage Commission. In other
words, the Congress of the Philippines believes that at least as
regards war sufferers, the emergency resulting from the last
war still exists, and will exist not only up to the time that their
war damage claims are paid but for a period of eight years
thereafter. This hardly supports the majority's theory that
everything is normal, and that there no longer is any emergency
because the war has long ended.
In connection with this question of whether or not
there is still an emergency resulting from the last war and
whether or not things and conditions have returned to normal, I
permit myself to reproduce a portion of my dissenting opinion
in the 1949 emergency cases:
"The last and logical question that one
will naturally ask is: has the emergency resulting
from the war passed or does it still exist? This is
a fair and decisive question inasmuch as the
existence of the emergency is, in my opinion,
the test and the only basis of the operation or
cessation of Act 671. The existence or
nonexistence of the emergency resulting from
the war is a question of fact. It is based on
conditions obtaining among the people and in
the country and perhaps even near and around
it. It is a highly controversial question on which
people may honestly differ. There are those who
in all good faith believe and claim that
conditions have returned to normal; that the
people have now enough to eat, sometimes
even more than they had before the war; that
people nowadays especially in the cities are
better nourished and clothed and transported
and better compensated for their labor, and
that the President himself in his speeches, chats
and messages had assured the public that
normal times have returned, that the problem
of peace and order had been solved, that the
finances of the Government and the national
economy are sound, and that there is an
adequate food supply. It is, therefore, claimed
that there is no longer any emergency resulting
from the war.
"On the other hand, it is asserted with
equal vehemence in the opposite camp that
conditions are still far from normal; that the
picture painted by the President in cheerful and
reassuring colors is based on over optimism and,
as to be expected, calculated to show in bold
relief the achievements of the administration,
and so should be considered with some
allowance; that we are now importing more rice
than before the war for the reason that many
rice farms are idle because of the farmers fear
of or interference by dissidents; that the
problem of peace and order is far from solved as
shown by the frequent hold-ups, kidnappings,
lootings and killings and organized banditry not
only in Luzon but also in the Visayas and
Mindanao; that whereas before the war, the
Constabulary force consisting of only about
6,000 officers and men could provide complete
protection to life and property and was
adequate in all respects to enforce peace and
order, now this Constabulary enlarged to about
20,000 men, provided with modern weapons
and equipment and with the aid of thousands of
civilian guards and of the Philippine Army and
Air Force cannot solve the peace and order
problem; that the dissidents who are well
organized, armed and disciplined even attack
and sack towns and sometimes openly defy and
engage the armed Government forces; that as
long as more than 100,000 firearms are loose
and in the hands of irresponsible parties, not
excluding the seemingly regular mysterious
supply to them of additional firearms and
ammunitions, there can be no peace and order;
and as to the barrio folk in central Luzon and
now, even in provinces bordering central Luzon
whose parents and relatives had been killed by
dissidents, whose women folk had been
outraged by the same elements, whose homes
had been looted and burned and whose very
lives had been subjected to constant terror and
peril, compelling them to leave their homes and
their farms and evacuate to and be
concentrated in the poblaciones to live there in
utter discomfort and privation, it is said that it
would be difficult to convince these unfortunate
people that normalcy has returned and that
there is no longer emergency resulting from the
war. To further support the claim of the
existence of an emergency, the menace of
communism not only at home, particularly in
central Luzon but from abroad, especially China,
is invoked. And it is asserted that all this is a
result of the war."
To the above are those who claim and will add that
since 1949 up to the present time, although rehabilitation
progressed substantially, there are still many people who have
not achieved rehabilitation. The economy of the country is still
far from what it was before the war. It is being bolstered
temporarily by the millions of pesos being received by war
veterans, their widows and children in the form of pensions or
insurance; by the millions being spent by the Mutual Security
Agency (MSA) in the Philippines to rehabilitate agriculture,
industry, commerce, etc.; by the millions being sent here by the
United States in war materials, equipment, etc. in relation with
the United States military aid to the Philippines, and with the
enforcement of the Import Control, Exchange Control and other
laws all of a temporary nature intended to temper and
minimize the financial and economic crisis which otherwise
would overwhelm the country. The coastwise trade is being
maintained with ships originally built for and used during the
war, converted provisionally into interisland freight and
passenger boats; and land transportation specially in the
centers of population like Manila is operated in great measure
with vehicles (used jeeps) obtained from the Surplus Property
Commission. Everything is on a provisional basis. What will
happen after these boats and motor vehicles wear out and
become junk? Could they be readily replaced by their owners or
operators? Sunken boats will clutter the harbors of the country
particularly Manila Bay, constituting a menace to navigation.
Squatters in great numbers are still a problem, claiming that
they have nowhere to go to live. Government and private
buildings, and churches are still in ruins, tenanted by squatters.
Intramuros, the walled city, in the very City of Manila is a living
example of non-rehabilitation, with the hundreds and
thousands of owners of lots therein either financially unable to
reconstruct or prohibited from rebuilding until the Government
has completed its plan about its reconstruction.
The War Damage Commission has paid war damage
claims, it is true, but only a portion of the amounts of the
claims; and with prices as they are and the low purchasing
power of the peso, complete rehabilitation of war sufferers and
substantial repair of the war damage is impossible. The country
is claiming reparations from Japan in the amount of eight (8)
billion dollars. It is not known if Japan can or will ever pay them
and when. That is why the Legislature in Republic Act 342 wisely
postponed payment of debts and monetary obligations of
sufferers, not up to the payment of their war damage claims,
but eight years thereafter, realizing perhaps that the amounts
paid for war damage claims are inadequate to achieve complete
rehabilitation. So the Legislature says that as to these war
sufferers, the emergency still exists. And who has not suffered
damage during the last war?
We have not yet completely risen from the low level
into which we had sunk during and immediately after the war,
in public and private morality, decency, honesty and personal
integrity as witnessed by the more or less rampant
misappropriations and defalcations by public officials,
corruption and malfeasance, bribery, ten percentage, guerrilla
recognition and veterans benefits rackets, dynamite fishing, etc.
When the President makes his inspections, especially
in the troubled areas, he is escorted by contingents of fully
armed soldiers, sometimes with machine guns and tanks. High
officials of the Government using low plate numbers on their
cars, use high plate numbers called "security plate numbers"
when traveling in the provinces to minimize the danger of hold-
ups and attacks by dissidents who are said to be after high
government officials. People are advised not to travel at night
over certain provincial highways, even national roads.
Peace and order still leaves much to be desired. In
1949 when the emergency cases were decided, five justices
held the opinion that there no longer was any emergency. But
conditions of peace and order actually worsened thereafter.
There was an uprising or rebellion in Batangas by Medrano and
his men after November, 1949, and it is said that unable to cope
with the uprising and bring the rebels to justice the
Government was compelled to offer them amnesty. Since 1949
the HUKS and the communists became stronger, in fact became
so strong that they actually threatened the existence of the
Government which was forced to increase its army and wage
campaigns not only in the field but also in centers of population
where it was able to arrest and prosecute those whom it claims
to be high officials of the POLITBURO. In Sulu the Government
waged an intensive campaign against Kamlon and his men
spending several million pesos and losing quite a number of
soldiers and officers, with no decisive result, and it was only
after Kamlon and his men had been promised executive
clemency that they surrendered to the authorities, stood trial,
were convicted and promptly pardoned. Some of Kamlon's
relatives with their followers are said to be still in the
mountains and forests and refuse to surrender unless offered
the same conditions. Not long ago several hundred Chinese said
to be dangerous communists were rounded up in several towns
and cities in the Philippines. About two or three weeks ago,
according to the papers the army authorities said that up to
that time they had through confiscation, capture, surrender and
purchase, been able to collect about 40,000 loose firearms but
that there still remained about 100,000 more to be accounted
for. The other day the Provincial Commander of Lanao said that
he is faced with the problem of eliminating or capturing ten
outlaw bands in the province with about 700 followers. The
hold-ups, massacres, raids and ambushes in different provinces,
even near Manila have not ceased. As long as over 100,000
loose firearms are still in the hands of lawless or irresponsible
persons, there can be no complete peace and order in the
country. Before, the war about 5,000 Constabulary soldiers and
officers with an appropriation of about three million pesos was
able to maintain peace and order throughout the country. The
Armed Forces of the Philippines including the Constabulary of
the country in 1949 numbered 37,000. Realizing that this
number was unable to maintain peace and order it was
increased substantially so that in 1952, it went up to 56,000
men and officers with an appropriation of over P151,000,000,
an amount by far larger than the appropriation for the
Department of Public Schools which gives instruction and
education to school children and students. With the help of
thousands of temporary and special policemen, civilian guards
and commandos the army and the constabulary are still battling
dissidents, communists and bandits. Hundreds and thousands
of families from central Luzon, particularly Pampanga are still
marooned in Manila, Baguio and other centers of population,
unable and afraid to return to their homes, and a number of
them more fearless and optimistic, who thought that peace and
order in central Luzon had been restored, returned to their
homes there but were kidnapped and liquidated. Farmers
harvesting rice in some barrios in central Luzon have to be
guarded by the armed forces so as not to be molested by the
dissidents. Only yesterday the papers carried the news that
14,000 soldiers and officers have started an intensive campaign
in central and southern Luzon against lawless elements. All this,
many people still honestly believe.
Considering all this, one may well doubt that peace
and order in the country has gone back to normal, and that
there is no longer any emergency. And this emergency clearly is
the result of the last war. The HUKS movement was born during
that war and the hundreds of thousands of loose firearms were
also released and distributed indiscriminately during that war.
Lawlessness and banditry always follow a war, and it takes
several years thereafter to restore peace and order.
In the face of all the foregoing which many regard as
facts and realities, the majority without any data in the form of
evidence received at a hearing or trial, but based perhaps on
judicial notice and personal knowledge and observation holds
that everything has gone back to normal and that there no
longer is any emergency.
 Personally, I cannot say that the emergency resulting
from the last war still exists, but neither am I prepared to say
that it no longer exists. It is such a controversial question upon
which people may and could honestly differ. There are
authorities to the effect that the existence or non-existence of
an emergency calling for the exercise of emergency powers is a
political question which can be decided only by the political
department, and that the courts are not called upon, neither
are they authorized to pass upon the question. This was one of
the views maintained in the concurring and dissenting opinion
of Mr. Justice Alex. Reyes concurred in by Mr. Justice Padilla in
the 1949 emergency cases. But assuming for a moment that
this court had the authority to pass upon this point and to bind
the executive and legislative departments with its finding, I
believe that we have no data or evidence on which to base our
finding. If the findings of courts on questions of fact are given
authority or binding effect it is because those findings are based
on facts established during the hearing by means of evidence
adduced by both parties who are given the right to present,
cross-examine and impeach witnesses, object to questions and
object to the admission of evidence in general. In the present
case no such hearing or trial for the reception of evidence was
ever had. Consequently, in my opinion we are not warranted in
finding that there still exists or there no longer exists any
emergency resulting from the last Pacific War.
It is the Legislature that granted or delegated the
emergency powers or the Chief Executive to whom the
delegation was made that decide whether or not the
emergency continues. There has been lack of agreement
between the two departments on this point since the last
sessions of the Legislature. While the President up to a few
weeks ago has been exercising his emergency powers which
presupposes that in his opinion the emergency still existed,
because Commonwealth Act 671 provides that he may exercise
those powers only during the emergency, the Legislature has
passed House Bill No. 727 in an attempt to withdraw said
emergency powers on the theory that the emergency has
ceased. To end and definitely settle this disagreement, we are
called upon to render decision.
In my dissenting opinion in the 1949 emergency cases I
held that the President still had the emergency powers
delegated to him under Commonwealth Act 671. Three justices
of this court held the same view as I did excluding one Justice
who was favorably impressed with that view though he
preferred not to vote directly upon it. Today, tho it seems in the
tribunal, I am the lone dissenter on this proposition and so mine
is reduced so to speak, to the "voice in the wilderness," I still
maintain the same view, and there is reason to believe that
there are many others who subscribe to the same opinion. The
Legislature in passing during its last session House Bill No. 727
repealing the latest Commonwealth Acts including
Commonwealth Act No. 671, delegating emergency powers to
the Chief Executive, must have believed and been satisfied that
the President still had those emergency powers otherwise,
there would have been no need of going to all the trouble and
the tedious process of approving a bill withdrawing said powers
from him. There would have been no necessity for the
Legislature to repeal a law which it believed to be no longer
operative. There is no reason or point in withdrawing
something that is not there or that no longer exists.
In previous sessions of the Legislature after Liberation
there had been talk or move to enact legislation withdrawing
said emergency powers but presumably the atmosphere was
not favorable or the necessary votes to pass the corresponding
measure was not available. It was in the last session of the
Legislature that a bill was finally approved by both Houses of
Congress. The Chief Executive, however, vetoed it and it was
not repassed over his veto. In spite of this, did the Legislature
succeed in withdrawing his emergency powers? The majority
through a process of interpretation which to me, is strained and
unwarranted, voted in the affirmative. I disagree. We should
not forget that in House Bill No. 727 the Legislature was not
only expressing its wish and desire to withdraw the emergency
powers of the President. It wanted to repeal the law or laws
delegating said emergency powers. A law can be repealed only
by another law. Consequently, since House Bill No. 727 did not
become a law because of the veto of the President, it could not
repeal the law or laws which it sought to abrogate.
I agree with the majority and also with Mr. Justice
Padilla that the emergency powers delegated to the President
could be withdrawn by means of a mere concurrent resolution.
It is true that to delegate emergency powers under section 26,
Art. VI of the Constitution, a law is necessary. It is because the
Constitution expressly says so. Moreover, it is not only
convenient but equally necessary that a law should be passed
for that purpose in whose approval the Chief Executive takes
part, because after all he is the one to whom the delegation is
made and who would later exercise the powers so delegated. If
he believes that there is no emergency or that even if there
were, it is not of sufficient magnitude and seriousness as to call
for the delegation and the exercise of emergency powers, he
may veto the bill of delegation and that would be the end of it.
It is far from likely that the bill would be repassed over his veto
because it would be futile and pointless to make a delegation of
powers to an unwilling delegate who later would decline and
refuse to exercise them. But if he approves the bill of delegation
and it becomes a law then the delegation is complete,
successful and effective for the exercise of the powers by the
President would be assured. Not so with the withdrawal of the
powers delegated. The Constitution does not say or require a
law for such withdrawal and it may be withdrawn at any time
even when the emergency which motivated said delegation still
exists. In such a case, the Legislature is the sole judge as to the
necessity and advisability of the continuance or cessation of the
exercise of emergency powers by its delegate, the President.
But how did the Legislature go about this attempt to
withdraw the President's emergency powers? It had the choice
of approving a mere concurrent resolution or passing a bill.
Both houses of the Legislature are graced with the presence of
constitutional lawyers and legal luminaries for whom I have
great respect. They must have known that a concurrent
resolution was sufficient for the purpose. Atty. Recto, counsel
for the petitioners and member of the Senate knew it and in his
oral argument before this Tribunal, he said that the Legislature
merely made a mistake because it could have just as well
approved a concurrent resolution instead of passing a regular
bill.
But to me, it is highly possible and not improbable that
the Legislature knowing that it could withdraw the President's
emergency powers by means of a concurrent resolution or by
means of a law, deliberately and intentionally chose the latter
for reasons of its own. The mistake committed by the
Legislature if any was that perhaps it believed that the Chief
Executive would not veto the bill; but veto it, he did and I am
afraid the Legislature has to abide by the consequences. The
Legislature knew that in passing the bill and in submitting it to
the Chief Executive as required by the Constitution, it had to be
approved by him either with his signature or by letting it
become a law without any action on his part. He may also veto
it. This was a hazard and a risk which the Legislature assumed
and of which it must have been perfectly aware. But they were
willing to take the risk. Another possible reason why the
Legislature chose to pass a bill instead of a mere concurrent
resolution was that it sought and wanted the intervention and
participation of the Chief Executive himself in the withdrawal of
the emergency powers so that he would also share in the credit
and the responsibility for said withdrawal. If he approved the
bill there would be complete understanding between the two
departments of the Government, and no hard feelings. Another
reason not entirely improbable is that the decision to withdraw
the emergency powers from the Chief Executive was a
compromise arrangement between the two parties in the
Legislature. We must remember that our government is run on
the basis of the party system. The President at present happens
to be the head of one of the two major parties in the
Legislature. His party is in the minority in the Senate by two or
three votes but is in the majority by quite a number of votes in
the lower house. It is not inconceivable that his party men in
the two houses consented and agreed to have the emergency
powers withdrawn provided that the Chief Executive consented
to and approved of it. And so, they agreed to pass the bill for
this purpose, but that they would not agree to a concurrent
resolution where the Chief Executive would be ignored and his
emergency powers summarily withdrawn without consultation
and without his approval. This last view is in some measure
supported and borne out by the attitude of the Legislature
when House Bill No. 727 was vetoed. The members of Congress
knew that the remedy was to override his veto if they wanted
to. The Senate approved the bill unanimously and judging from
that unanimity, at least in the upper house the 2/3 votes
necessary to override the veto was available. But the fact is that
the Legislature did not only fail to override the veto but it did
not even make any attempt whatsoever to repass it over the
President's veto. Added to this, it was a fact that, and this is by
no means unimportant, in the month of September, 1952, that
is, about two months after the veto of the bill, about sixty-
seven Congressmen and two Senators filed a petition addressed
to the President in which they not only recognized the existence
of his emergency powers but even asked him to exercise the
same for the purpose of releasing funds for public works
projects. Excluding the two Senators, the signers constituted
more than the majority of the membership of the lower house.
In other words, after the veto of the bill and after a failure
whether intentionally or otherwise of the Legislative to override regarded by some as not only unwarranted but officious and
the veto, the majority of all the members of the lower house uncalled for.
believed that Congress failed to withdraw the President's In view of the foregoing reasons, I beg to disagree with
emergency powers and consequently, believed that he still had the majority.
those powers, and was even requested to exercise the same. ||| (Rodriguez, Sr. v. Gella, G.R. No. L-6266, [February 2, 1953], 92
And on November 8, 1952, the lower house of the Legislature
PHIL 603-637)
passed Resolution No. 99 strongly urging the President to
exercise his emergency powers and authorize the expenditure
of funds for the relief to provinces visited by typhoons and
floods and other calamities and for other urgent essential public
works projects. This official action of the lower House shows
that one of the two Houses of Congress officially believes that
the emergency powers of the President had not been
withdrawn. One view of this action or inaction of the Legislature
on the veto was that it could not get the 2/3 votes in both
houses to override the veto because some members who voted
in favor of House Bill No. 727, particularly members of the party
of the Chief Executive did not from the very beginning want to
withdraw the emergency powers without the President's
consent. Another view is that the Legislature was convinced by
the reasons adduced and given by the Chief Executive in vetoing
the bill and so either approved the stand taken by him or
acquiesced in it and took it in good grace and let the matter
rest, at least for the time being.
If the foregoing considerations on this point are true or
could have been true, then there would absolutely be no reason
or warrant for the majority's interpreting and considering
House Bill No. 727 as a concurrent resolution sufficient to
repeal the several laws mentioned in the bill and withdraw the
emergency powers of the President. In effect, the majority
decided to think for the Legislature and to do for the latter what
it failed or perhaps did not want to do, namely, to withdraw the
emergency powers by means of a concurrent resolution. I
repeat that both houses of Congress with the legal talent and
constitutional authorities, not only among its distinguished
members but also among its legal experts and assistants, did
neither wish nor intend to approve a mere concurrent
resolution but deliberately and intentionally chose to pass a bill,
- House Bill No. 727 with full realization of the possibilities and
chances of its approval or rejection by the Chief Executive to
whom it was submitted. Under these circumstances, the action
of the majority in practically telling the Legislature what it
should have done and in finally doing it for said Legislature in
order to most easily achieve its purpose or wish might be
FIRST DIVISION
[G.R. No. 45685. December 22, 1937.]
THE PEOPLE OF THE PHILIPPINES and THE
HONGKONG & SHANGHAI BANKING
CORPORATION, petitioners, vs. JOSE O. VERA,
Judge ad interim of First Instance of Manila,
and MARIANO CU UNJIENG, respondents.
Solicitor-General Tuason and City Fiscal Diaz for the
Government.
DeWitt, Perkins & Ponce Enrile for the Hongkong &
Shanghai Banking Corporation.
Vicente J. Francisco, Feria & La O, Orense &
Belmonte and Gibbs & McDonough for the respondent Unjieng.
No appearance for respondent Judge.
SYLLABUS
1. JUDGMENT; STAY OF EXECUTION; WRIT OF
CERTIORARI; SUPERSEDEAS BOND. — Section 46 (a) of the Rules
of this court requires that in any civil case in which final
judgment has been rendered by this court, if any party thereto
gives notice in writing of his intention to remove the case to the
Supreme Court of the United States by writ of certiorari, this
court shall grant a stay for the period therein mentioned within
which said party may give a supersedeas bond, the sufficiency
of which is to be determined by one of the members of this
court.
2. ID.; ID.; ID.; ID.; CERTIORARI AND PROHIBITION
PROCEEDINGS. — It is admitted that certiorari and prohibition
are civil remedies but the certiorari and prohibition proceedings
originally instituted in this court were, like the proceedings for
probation, an incident of the criminal case. Apart from this, it
will be noted that the appeal taken is from the judgment of this
court declaring the Probation Act unconstitution and void. That
judgment does not command or permit any act to be done.
There is nothing there to be actively enforced by execution or
otherwise. Because of its negative or prohibitive character,
there is nothing to supersede; nothing, as petitioners assert,
upon which the stay bond can operate.
3. ID.; ID.; ID.; ID. — In reality, the supersedeas is
intended to operate on the decision and judgment in the
criminal case entitled "The People of the Philippine
Islandsvs. Mariano Cu Unjieng, et al." The decision of the Court
of First Instance of Manila in that case, rendered on January 8,
1934 (Criminal Case No. 42649), was affirmed by this court on
March 26, 1935 (G. R. No. 41200, 35 Off. Gaz., 738. See
also resolutions of December 17, 1935). The decision of this
court in that criminal case has already become final and the
petition for a writ of certiorari to review said decision was
denied by the Supreme Court of the United States in November
of last year. At bottom, supersedeas is being sought to stay the
execution of the final judgment in said criminal case. Thereby,
the petitioner will continue to be at large and this is the status
quo desired to be maintained. The suspensive effect of
supersedeas can only operate in this case on the judgment
sought to be reviewed and cannot arrest the execution of the
final judgment rendered in the criminal case against the
respondent M. C. U. (Cyc. of Fed. Proc., Civil and Criminal,
Longsdorf, vol. 6, sec. 2869, p. 362.)
4. ID.; ID.; ID.; ID. — The public interest and the
interest of the speedy administration of justice demand prompt
execution of the final sentence of conviction rendered against
the petitioner. Said petitioner has had all the time and
opportunity which the law can possibly afford to anyone in self-
defense. He had the assistance of able counsel and had
opportunity to appeal to this court and the Supreme Court of
the United States, and the least that can be said is that he must
abide by this judgment and serve his term. It is further to be
observed that the petition for probation of the respondent M.
C. U. has already been denied by the trial court.
5. ID.; ID.; ID.; ID.; RULE OF FEDERAL PRACTICE IN THE
UNITED STATES. — As a rule of federal practice in the United
States, section 8 cd. of the Act of Congress of February 13, 1925
(43 Stat., 936, 940; 28 U. S. C. A., sec. 350), provides that in any
case the execution and enforcement of final judgment or
decree which is subject to review by the Supreme Court of the
United States on writ of certiorari is discretionary with "a judge
of the court rendering the judgment or decree or by a Justice of
the Supreme Court," and this rule is reiterated in paragraph 6 of
Rule 38 of the Supreme Court of the United States. (Robertson
& Kirkham, sec. 413, p. 831 et seq.)
DECISION
LAUREL, J p:
After rendition of the judgment of this court in the
above-entitled case, 1 the respondent Mariano Cu Unjieng, on
November 26, 1937, gave notice of his intention to petition the
Supreme Court of the United States for a writ of certiorari for
the review of said judgment and, desiring to stay execution
during the pendency of the application for the writ and of the
proceedings relative thereto in the Supreme Court of the
United States, now prays that the corresponding supersedeas
bond be fixed, as provided by the rules of this court. The People
of the Philippines and the Hongkong and Shanghai Banking
Corporation, petitioners in the above-entitled case, oppose the
application of the respondent for the granting of a supersedeas
bond.
The original action instituted in this court which
resulted in the declaration of unconstitutionality of the
Probation Act (No. 4221) was for certiorari and prohibition.
Respondent Mariano Cu Unjieng, thru counsel, states that as
certiorari and prohibition are civil remedies, it is mandatory
upon this court to stay enforcement of its judgment in the
above-entitled case. (Sec. 46 [a] infra, Rules of the Supreme
Court of the Philippines.) He also calls attention to the principle
that probation can not be granted after the defendant has
begun the service of his sentence and to the policy of this court
to encourage review of its decisions and judgments on
certiorari by the Federal Supreme Court. In opposition, the
petitioners state that the judgment of this court declaring the
Probation Act unconstitutional and void is self-executing; that
there is no judgment in the instant proceedings to be executed
and that the supersedeas will serve no useful purpose. The
petitioner gave answer to the foregoing objections raised by the
respondents and reiterated the arguments advanced by him in
support of his petition for the fixing of the bond.
Section 46 (a) of the rules of this court provides that:
"Whenever it is made to appear by
notice in writing that any party to a civil case in
which final judgment has been rendered by this
court intends to petition the Supreme Court of
the United States for a writ of certiorari for the
review of the decision and judgment of this
court, and it appears that the case is one which,
by reason of the amount involved or the nature
of the questions of law presented, may be
removed to the Supreme Court of the United
States by writ of certiorari, and it further
appears that the party intending to make
application for such writ desires to stay the
enforcement of the judgment of this court
 during the pendency of the application for the
writ of certiorari and of the proceedings in the
Supreme Court of the United States, if such is
granted, this court shall grant a stay, for a term
not to exceed ten days, within which the moving
party may give a supersedeas bond, and shall
designate one of its members to determine the
sufficiency of such bond."
The foregoing rule requires that in any civil case in
which final judgment has been rendered by this court, if any
party thereto gives notice in writing of his intention to remove
the case to the Supreme Court of the United States by writ of
certiorari, this court shall grant a stay for the period therein
mentioned within which said party may give a supersedeas
bond, the sufficiency of which is to be determined by one of the
members of this court. It is admitted that certiorari and
prohibition are civil remedies but the certiorari and prohibition
proceedings originally instituted in this court were, like the
proceedings for probation, an incident of the criminal case.
Apart from this, it will be noted that the appeal taken is from
the judgment of this court declaring the Probation Act
unconstitutional and void. That judgment does not command or
permit any act to be done. There is nothing there to be actively
enforced by execution or otherwise. Because of its negative or
prohibitive character, there is nothing to supersede; nothing, as
petitioners assert, upon which the stay bond can operate. In
reality, the supersedeas is intended to operate on the decision
and judgment in the criminal case entitled "The People of the
Philippine Islands vs. Mariano Cu Unjieng et al." The decision of
the Court of First Instance of Manila in that case, rendered on
January 8, 1934 (Criminal Case No. 42649), was affirmed by this
court on March 26, 1935 (G. R. No. 41200) 1 . The decision of
this court in that criminal case has already become final and the
petition for a writ of certiorari to review said decision was
denied by the Supreme Court of the United States in November
of last year. At bottom., supersedeas is being sought to stay the
execution of the final judgment in said criminal case. Thereby,
the petitioner will continue to be at large and this is the status
quo desired to be maintained. We do not think that this should
be allowed. (Sec. 46 [f], Rules of the Supreme Court of the
Philippines.) The suspensive effect of supersedeas can only
operate in this case on the judgment sought to be reviewed and
cannot arrest the execution of the final judgment rendered in
the criminal case against the respondent Mariano Cu Unjieng.
(Cyc. of Fed. Proc., Civil and Criminal, Longsdorf, vol. 6, sec. pass on it. That court is in a position to judge,
2869, p. 362.) first, whether the case is one likely, under our
The public interest and the interest of the speedy practice, to be taken up by us on certiorari; and,
administration of justice demand prompt execution of the final second, whether the balance of convenience
sentence of conviction rendered against the petitioner. Said requires a suspension of its decree and a
petitioner has had all the time and opportunity which the law withholding of its mandate. It involves no
can possibly afford to anyone in self- defense. He had the disrespect to this court for the circuit court of
assistance of able counsel and had opportunity to appeal to this appeals to refuse to withhold its mandate or to
court and the Supreme Court of the United States, and the least suspend the operation of its judgment or decree
that can be said is that he must abide by this judgment and pending application for certiorari to us. If it
serve his term. It is further to be observed that the petition for thinks a question involved should be ruled upon
probation of the respondent Mariano Cu Unjieng has already by this court, it may certify it. If it does not
been denied by the trial court. certify, it may still consider that the case is one
in which a certiorari may properly issue, and
may, in its discretion, facilitate the application
There is force in the argument that where the case is
by withholding the mandate or suspending its
appealable under the Constitution and law to the Supreme
decree. This is a matter, however, wholly within
Court of the United States, this court is but an agent of that its discretion. If it refuses, this court requires an
court and must permit the case to take its due course. In such a
extraordinary showing before it will grant a stay
case, the appeal is a matter of right. But from this premise it
of the decree below pending the application for
does not follow that a stay must be granted by this court where
a certiorari, and even after it has granted a
nothing can be stayed, or that the final decision in a criminal certiorari, it requires a clear case and a decided
case which can no longer be appealed from should be
balance of convenience before it will grant such
superseded. Upon the other hand, the wide latitude necessarily
stay. These remarks, of course, apply also to
possessed by this court in the interpretation of its Rules must application for certiorari to review judgments
be exercised in favor of what is believed to be a matter of public
and decrees of the highest courts of states."
interest in the present case.
Petition for stay of execution and the fixing of a
As a rule of federal practice in the United States,
supersedeas bond is denied. So ordered.
section 8 cd. of the Act of Congress of February 13, 1925 (43
Stat., 936, 940; 28 U. S. C. A., sec. 350), provides that in any Avanceña, C. J., Villa-Real, Abad Santos, Imperial,
Diaz and Concepcion, JJ., concur.
case the execution and enforcement of final judgment or
||| (People v. Vera, G.R. No. 45685, [December 22, 1937], 65 PHIL
decree which is subject to review by the Supreme Court of the
United States on writ of certiorari is discretionary with "a judge 56-206)
of the court rendering the judgment or decree or by a Justice of
the Supreme Court," and this rule is reiterated in paragraph 6 of
Rule 38 of the Supreme Court of the United States. (Robertson
& Kirkham, sec. 413, p. 831 et seq.) In Magnum Import
Co. vs. De Spoturno Coty (262 U. S., 159, 163; 43 S. Ct., 531; 67
Law. ed., 922), the Supreme Court of the United States, through
Chief Justice Taft, said:
"The petition should, in the first
instance, be made to the circuit court of
appeals, which, with its complete knowledge of
the cases, may, with full consideration, promptly
EN BANC
[G.R. No. L-17122. February 27, 1922.]
THE UNITED STATES, plaintiff-appellee, vs. NAG
TANG HO, defendant-appellant.
Williams & Ferrier for appellant.
Acting Attorney-General Tuason for appellee.
SYLLABUS
1. ORGANIC LAW. — By the organic law of the
Philippine Islands and the Constitution of the United States, all
powers are vested in the Legislature, Executive, and Judiciary. It
is the duty of the Legislature to make the law; of the Executive;
and of the Judiciary to construe the law. The Legislature has no
authority to execute or construe the law; the Executive has no
authority to make or construe the law; and the Judiciary has no
power to make or execute the law.
2. POWER. — Subject to the Constitution only, the
power of each branch is supreme within its own jurisdiction,
and it is for the judiciary only to say when any Act of the
Legislature is or is not constitutional.
3. THE POWER TO DELEGATE. — The Legislature
cannot delegate legislative power to enact any law. If Act No.
2868 is a law unto itself and within itself, and it does nothing
more than to authorize the Governor-General to make rules
and regulations to carry it into effect, then the Legislature
created the law. There is no delegation of power and it is valid.
One the other hand, if the act within itself does not define a
crime and is not complete, and some legislative act remains to
be done to make it law or a crime, the doing of which is vested
in the Governor-General, the is a delegation of legislative
power, is unconstitutional and avoid.
4. No CRIME TO SELL. — After the passage of Act No.
2868, and without any rules and regulations of the Governor-
General, a dealer in rice could sell it at any price and he would
not commit a crime. There was no legislative act which made it
a crime to sell rice at any price.
5. CRIME BY PROCLAMATION. — When Act No. 2868 is
analyzed, it is the violation of the Proclamation of the
Governor-General which constitutes the crime. The alleged sale
was made a crime, if at all, because of the Proclamation by the
Governor-General.
6. UNCONSTITUTIONAL. — In so far as Act No.
2868 undertakes to authorize the Governor-General, in his
discretion, to issue a proclamation fixing the price and to make
the sale of it in violation of the proclamation a crime, it is
unconstitutional and void.
7. CONSTITUTION. — The Constitution is something
solid, permanent and substantial. It stability protects the rights,
liberty, and property rights of the rich and the poor alike, and
its construction ought not to change with emergencies or
conditions.
8. PRIVATE RIGHTS. — In the instant case, the law was
not dealing with Government property. It was dealing with
private property and private rights which are sacred under the
Constitution.
9. PRIVATE PROPERTY. — In the instant case, the rice
was the personal, private property of the defendant. The
Government had not bought it, did not claim to own it, or have
any interest in it at the time the defendant sold it to one of his
customers.
10. POWER VESTED IN THE LEGISLATURE. — By
the organic act and subject only to constitutional limitations,
the power to legislate and enact laws is vested exclusively in the
Legislature, which is elected by a direct vote of the people of
the Philippine Islands.
11. OPINION LIMITED. — This opinion is confined to
the right of the Governor-General to issue a proclamation fixing
the maximum price at which rice should be sold, and to make it
a crime to sell it at a higher price, and to that extent holds that
it is an unconstitutional delegation of legislative power. It does
not decide or undertake to construe the constitutionality of any
of the remaining portions of Act No. 2868.
DECISION
JOHNS, J p:
At its special session of 1919, the Philippine Legislature
passed Act No. 2868, entitled "An Act penalizing the monopoly
and hoarding of, and speculation in palay, rice, and corn under
extraordinary circumstances, regulating the distribution and
sale thereof, and authorizing the Governor-General, with the
consent of the Council of States. to issue the necessary rules
and regulations therefor, and making an appropriation for this
purpose," the material provisions of which are as follows:
"Section 1. The Governor-General is hereby
authorized, whenever, for any cause, conditions arise
resulting in an extraordinary rise in the price of palay,
rice or corn, to issue and promulgate, with the consent
of the Council of States, temporary rules and
emergency measures for carrying out the purpose of
this Act. to wit:
"(a) To prevent the monopoly and hoarding
of, and speculation in, palay rice or corn.
"(b) To establish and maintain a government
control of the distribution or sale of the commodities
referred to or have such distribution or sale made by
the Government itself.
"(c) To fix, from time to time, the quantities of
palay, rice, or corn that a company or individual may
acquire, and the maximum sale price that the
industrial or merchant may demand.
"(d) . . .
"SEC. 2. It shall be unlawful to destroy, limit,
prevent or in the other manner obstruct the
production or milling of palay, rice or corn for the
purpose of raising the prices thereof; to corner or
hoard said products as defined in section three of this
Act; . . ."
Section 3 defines what shall constitute a monopoly or
hoarding of palay, rice or corn within the meaning of this Act,
but does not specify the price of rice of define any basis for
fixing the price.
"SEC. 4. The violations of any of the provisions
of this Act or of the regulations, orders and decrees
promulgated in accordance therewith shall be
punished by a fine of not more than five thousand
pesos, or by imprisonment for not more than two
years, or both, in the discretion of the court: Provided,
That in the case of companies or corporations, the
manager or administrator shall be criminally liable.
"SEC. 7. At any time that the Governor-
General, with the consent of the Council of State, shall
consider that the public interest requires the
application of the provisions of this Act, he shall so
declare by proclamation, and any provisions of other
laws inconsistent herewith shall from then on be
temporarily suspended.
"Upon the cessation of the reasons foe which
such proclamation was issued, the Governor-General,
 with the consent of the Council of States, shall declare
the application of this Act to have likewise terminated,
and all laws temporarily suspended by virtue of the
same shall again take effect, but such termination shall
not prevent the prosecution of any proceedings or
cause begun prior to such termination, nor the filing of
any proceedings for an offense committed during the
period covered by the Governor-General's
proclamation."
August 1, 1919, the Governor-General issued a
proclamation fixing the price at which rice should be sold.
August 8, 1919, a complaint was filed against the
defendant, NAG Tang Ho, charging him with the sale of rice at
an excessive price as follows:
"The undersigned accuses NAG Tang Ho of a
violation of Executive Order No. 53 of the Governor-
General of the Philippines, dated the 1st of August,
1919, in relation with the provisions of sections 1, 2
and 4 Act No. 2868, committed as follows:
"That on or about the 6th day of August,
1919, in the city of Manila, Philippine Islands, the said
NAG Tang Ho. voluntarily, illegally and criminally sold
to Pedro Trinidad, one Janet of rice at the price of
eighty centavos (P.80). which is a price greater than
that fixed by Executive Order No. 53 of the Governor-
General of the Philippines, dated the 1st of August,
1919, under the authority of section 1 of Act No. 2868.
Contrary to law."
Upon this charge, he was tried, found guilty and
sentenced to five months' imprisonment and to pay a fine of
P500, from which he appealed to this court, claiming that the
lower court erred in finding Executive Order No. 53 of 1919, to
be of any force and effect, in finding the accused guilty of the
offense charged, and in imposing the sentence.
The official records show that Act was to take effect on
its approval; that it was approved July 30,1919; that the
Governor-General issued his proclamation on the 1st of August,
1919; and that the law was first published on the 13th of
August, 1919; and that the proclamation itself was first
published on the 20th of August, 1919.
The question here involves an analysis and
construction of Act No. 2868, in so far as it authorizes the
Governor-General to fix the price at which rice should be sold. It
will be noted that section 1 authorizes the Governor-General,
with the consent of the Council of State, for any cause resulting
in an extraordinary rise in the price of palay, rice or corn, to
issue and promulgated temporary rules and emergency
measures for carrying out the purposes of the Act. By its very
terms, the promulgation of temporary rules and emergency
measures is left to the discretion of the Governor-General. The
Legislature does not undertake reasons the Governor-General
shall issue the proclamation, but says that it may be issued " for
any cause," and leaves the question as to what is "any cause" to
the discretion of the Governor-General. The Act also says: "For
any cause, conditions arise resulting in an extraordinary rise in
the price of palay, rice or corn." The Legislature does not specify
or define what is "an extraordinary rise." That is also left to the
discretion of the Governor-General. The Act also says that the
Governor-General, "with the consent of the Council of State," is
authorized to issue and promulgate "temporary rules and
emergency measures for carrying out the purposes of this Act."
It does not specify or define what is a temporary rule or an
emergency measure, or how long such temporary rules or
emergency measures shall remain in force and effect, or when
they shall take effect. That is to say the Legislature itself has no
in any manner specified or defined any basis for the order, but
has left it to the sole judgment and discretion of the Governor-
General to say what is or what is not "a cause," and what is or
what is not "an extraordinary rise in the price of rice," and as to
what a temporary rule or an emergency measure for the
carrying out the purpose of the Act Under this state of facts, if
the law is valid and the Governor-General issues a proclamation
fixing the minimum price at which rice should be sold, any
dealer who, with or without notice, sells rice at a higher price, is
a criminal. There may not have been any cause, and the price
may not have been extraordinary, and there may not have been
an emergency, but, if the Governor-General found the existence
of such facts and issued a proclamation, and rice is sold at any
higher price, the seller commits a crime.
By the organic law of the Philippine Islands and the
Constitution of the United States all power are vested in the
Legislative, Executive and Judiciary. It is the duty of the
Legislature to make the law; of the Executive to execute the
law; and of the Judiciary to construe the law. The Legislature
has no authority to executive or construe the law, the Executive
has no authority to make or construe the law, and the Judiciary
has no power to make or executive the law. Subject to the
Constitution only, the power of each branch is supreme within
its own jurisdiction, and it is for the Judiciary only to say when
any Act of the Legislature is or is not constitutional. Assuming,
without deciding, that the Legislature itself has the power to fix
the price at which rice is to be sold, can it delegate that power
to another, and, if so, was that power legally delegated by Act.
No. 2868? In other words, does the Act delegate legislative
power to the Governor-General? By the Organic Law, all
legislative power is vested in the Legislature, and the power
conferred upon the Legislature to make laws cannot be
delegated to the Governor-General, or any one else. The
Legislative cannot delegate the Legislative power to enact any
law. If Act No. 2868 is a law unto itself and within itself, and it
does nothing more than to authorize the Governor-General to
make rules and regulations to carry the law into effect, then the
Legislature itself created the law. There is no delegation of
power and it is valid. On the other hand, if the Act within itself
does not define a crime, and is not a law, and some legislative
act remains to be done to make it a law or a crime, the doing of
which is vested in the Governor-General, then the Act is a
delegation of legislative power, is unconstitutional and avoid.
The Supreme Court of the United States in what is
known as the Grainer Cases (94 U. S.. 183-187; 24 L, ed., 94),
first laid down the rule:
"Railroad companies are engaged in public
employment affecting the public interest and, under
the decision in Mun vs. Ill., ante subject to Legislative
control as to their rates of fare and freight unless
protect by their charters.
"The Illinois statute of Mar. 23, 1874, to
established reasonable maximum rates of charges for
the transportation of freights and passengers on the
different railroads of the State is not void as being
repugnant to the Constitution of the United States or
to that of the State."
It was there for the first time held in substance that a
railroad was a public utility, and that, being a public utility, the
State had power to establish reasonable maximum freight and
passenger rates. This was followed by the State of Minnesota in
enacting a similar law, providing for and empowering, a railroad
commission to hear and determine what was a just and
reasonable rate. The constitutionality of this law was attacked
and upheld by the Supreme Court of Minnesota in a learned
and exhaustive opinion by Justice Mitchell, in the case of State
vs. Chicago, Milwaukee & St. Paul Ribs. Co. (38 Minn., 281), in
which the court held:
"Regulations of railway tariffs —
Conclusiveness of commission's tariffs. — Under Laws
1887, c. 10, sec. 8, the determination of the railroad
and warehouse commission as to what are equal and
reasonable fares rates for the transportation of
persons and property by a railway company is
conclusive, and, in proceedings by mandamus to
compel compliance with the tariff of rates
recommended and published by them, no issue can be
raise or inquiry had on that question.
"Same — Constitution — Delegation of power
to commission. — The authority thus given to the
commission to determine, in the exercise of their
discretion and judgment, what are equal and
reasonable rates, is not a delegation of legislative
power."
It will be noted that the law creating the railroad
commission expressly provides —
"That all charges by any common carrier for
the transportation of passengers and property shall be
equal and reasonable."
With that as a basis for the law, power is then given to
the railroad commission to investigate all the facts, to hear and
determine what is a just and reasonable rate. Even then that
law does not make the violation of the order of the commission
a crime. The only remedy is a civil proceeding. It was there held
— should contain so that it could be put in use as a
"That the legislature itself has the power to
regulate railroad charges is now too well settled to
require either argument or citation of authority.
"The difference between the power to say
what the law shall be, and the power to adopt rules
and regulations, or to investigate and determine the
facts, in order to carry into effect a law already passed,
is apparent. The true distinction is between the
delegation of power to make the law, which
necessarily involves a discretion as to what it shall be,
and the conferring an authority or discretion to be
exercised under and in pursuance of the law.
"The legislature enacts that all freight rates
and passenger fares should be just and reasonable. It
had the undoubted power to fix these rates at
whatever it deemed equal and reasonable.
"They have not delegated to the commission
any authority or discretion as to what the law shall be,
— which would not be allowable, — but have merely
conferred upon it an authority and discretion, to be
exercised in the execution of the law, and under and in
pursuance of it, which is entirely permissible. The
legislature itself has passed upon the expediency of the
law, and what it shall be. The commission is intrusted
with no authority or discretion upon these questions. It
can neither make nor unmade a single provision of law.
It is merely charged with the administration of the law,
and with no other power."
The delegation of legislative power was before the
Supreme Court of Wisconsin in Doling vs Lancaster Ins. Co. (92
Wis., 63). The opinion says:
"The true distinction is between the
delegation of power to make the law, which
necessarily involves a discretion as to what it shall be
and conferring authority or discretion as to its
execution, to be exercised under and in pursuance of
the law. The first cannot be done; to the latter no valid
objection can be made.'
"The act, in our judgment, wholly fails to
provide definitely and clearly what the standard policy
uniform policy required to take the place of all others,
without the determination of the insurance
commissioner in respect to matters involving the
exercise of a legislative discretion that could not be
delegated, and without which the act could not
possibly be put in use as an act in conformity to which
all fire insurance policies were required to be issued.
"The result of all the cases on this subject is
that a law must be complete, in all its terms and
provisions, when it leaves the legislative branch of the
government, and nothing must be left to the judgment
of the electors or other appointee or delegate of the
legislature, so that, in form and substances, it is a law
in all its details in presenting, but which may be left to
take effect in future, if necessary, upon the
ascertainment of any prescribed fact or event."
The delegation of legislative power was before the
Supreme Court in United States vs. Grimed (220 U. S., 506; 55 L.
ed., 563), where it was held that the rules and regulations of
the Secretary of Agriculture as to a trespass on government
land in a forest reserve were valid constitutional. The Act there
provided that the Secretary of Agriculture " . . . may make such
rules and regulations and establish such service as will insure
the objects of such reservation; namely, to regulate their
occupancy and use, and to preserve the forests thereon from
destruction; and any violation of the provisions of this act or
such rules and regulations shall be punished, . . ."
The brief of the United States Solicitor-General says:
"In refusing permits to use s forest reservation
for stock grazing, except upon stated terms or in stated
ways, the Secretary of Agriculture merely asserts and
enforces the proprietary right of the United States over
land which it owns. The regulations of the Secretary,
therefore, is not an exercise of legislative, or even of
administrative, power; but is an ordinary and
legitimate refusal of the landowner's authorized agent
to allow persons having no right in the land to use it as
they will. The right of proprietary control is altogether
different from governmental authority."
The opinion says:
"From the beginning of the
government, various acts have been passed
conferring upon executive officers power to
make rules and regulations, — not for the
government of their departments, but for
administering the laws which did govern. None
of these statutes could confer legislative power.
But when Congress had legislated and indicated
its will, it could give to those who were to act
under such general provisions power to fill up
the details' by the establishment of
administrative rules and regulations, the
violation of which be punished by fine
imprisonment fixed by Congress, or by penalties
 fixed by Congress, or measured by the injury
done.
"That 'Congress cannot delegate
legislative power is a principle universally
recognized as vital to the integrity and
maintenance of the system of government
ordained by the Constitution.'
"If, after the passage of the act and the
promulgation the rule, the defendants drove
and grazed their sheep upon the reserve, in
violation of the regulations, they were making
an unlawful use of the government's property.
In doing so they thereby made themselves liable
to the penalty imposed by Congress."
"The subject as to which the Secretary
can regulate are defined. The lands are set apart
as a forest reserve. He is required to make
provision to protect them from depredations
and from harmful uses. He is authorized 'to
regulate the occupancy and use and to use to
preserve the forests from destruction.' A
violation of reasonable rules regulating the use
and occupancy of the property is made a crime,
not by the Secretary, but by Congress."
The above are leading cases in the United States on the
question of delegating legislative power. It will be noted that in
the "Grainer Cases," it was held that a railroad company was a
public corporation, and that a railroad was a public utility, and
that, for such reasons the Legislature had the power to fix and
determine just and reasonable rates for freight and passengers.
The Minnesota case held that, so long as the rates
were just and reasonable, the legislature could delegate the
power to ascertain the facts and determine from the facts what
were just and reasonable rates, and that in vesting the
commission with such power was not a delegation of legislative
power.
The Wisconsin case was a civil action founded upon a
"Wisconsin standard policy of fire insurance," and the court
held that "the act, . . . wholly fails to provide definitely and
clearly what the standard policy should contain, so that it could
be put in use as a uniform policy required to take the place of
all others, without the determination of the insurance
commissioner in respect to matters involving the exercise of a
legislative discretion that could not be delegated.''
The case of the United States Supreme Court, supra,
dealt with rules and regulations which were promulgated by the
Secretary of Agriculture for Government land in the forest
reserve. These hold that the legislature only can enact a law,
and that it cannot delegate its legislative authority.
The line of cleavage between what is and what is not a
delegation of legislative power is pointed out and clearly
defined. As the Supreme Court of Wisconsin says:
"That no part of the legislative power
can be delegated by the legislature to any other
department of the government, executive or
judicial, is a fundamental principle in
constitutional law, essential to the integrity and
maintenance of the system of government
established by the constitution.
"Where an act is clothed with all the
forms of law, and is complete in and of itself, it
may be provided that it shall become operative
only upon some certain act or event, or, in like
manner, that its operation shall be suspended.
The legislature cannot delegate its
power to make a law, but it can make a law to
delegate a power to determine some fact or
state of things upon which the law makes, or
intends to make, its own action to depend."
"All saloons in said village shall be closed at 11 o'clock
P. M. each day and remain closed until 5 o'clock on the
following morning, unless by special permission of the
president."
Construing it in 136 Wis., 526 128 A. S. R., 1100, 1 the
Supreme Court of that State says:
"We regard the ordinance as void for
two reasons: First, because it attempts to confer
arbitrary power upon an executive officer, and
allows him, in executing the ordinance, to make
unjust and groundless discriminations among
persons similarly situated; second, because the
power to regulate saloons is a law-making
power vested in the village board, which cannot
be delegated. A legislative body cannot delegate
to a mere administrative officer power to make
a law, but it can make a law with provisions that
it shall go into effect or be suspended in its
operation upon the ascertainment of a fact or
state of facts by an administrative of board. In
the present case the ordinance by its terms
gives power to the president to decide
arbitrarily, and in the exercise of his own
discretion, when a saloon shall close. This is an
attempt to vest legislative discretion in him, and
cannot be sustained."
The legal principle involved there is squarely in point
here.
It must conceded that, after the passage of Act No.
2868, and before any rules and regulations were promulgated
by the Governor-General, a dealer in rice could sell it at any
price, even at a peso per "Janet," and that he would not commit
a crime, because there would be no law fixing the price of rice,
and the sale of it at any price would not be a crime. That is to
say, in the absence of a proclamation, it was not a crime to sell
rice at any price. Hence, it must follow that, if the defendant
committed a crime, it was because the Governor-General issued
the proclamation. There was no act of the Legislature making it
a crime to sell rice at any price, and without the proclamation,
the sale of it at any price was not crime.
The Executive Order 1 provides"
(5) The maximum selling price of palay, rice or corn is
hereby fixed, for the time being as follows:
"In Manila —
"Palay at P6.75 per sack of 1/2 kilos, or
29 centavos per Janet.
"Rice at P15 per sack of 57 1/2 kilos, or
63 centavos per Janet.
"Corn at P8 per sack of 57 1/2 kilos, or
34 centavos per Janet.
"In the provinces producing palay, rice
and corn, the maximum price shall be the
Manila price less the cost of transportation from
the source of supply and necessary handling
expenses to the place of sale, to be determined
by the provincial treasures or their deputies.
 "In provinces, obtaining their supplies
from Manila or other producing provinces, the
maximum price shall be the authorized price at
the place of supply or the Manila price as the
case may be, plus the transportation cost, from
the place of supply and the necessary handling
expenses, to the place of sale, to be determined
by the provincial treasurers or their deputies.
"(6) Provincial treasurers and their
deputies are hereby directed to communicate
with, and execute all instructions emanating
from the Director of Commerce and Industry,
for the most effective and proper enforcement
of the above regulations in their respective
localities,"
The law says that the Governor-General may fix "the
maximum sale price that industrial or merchant may demand."
The law is a general law and not a local or special law.
The proclamation undertakes to fix one price for rice in
Manila and other and different prices in other and different
provinces in the Philippines Islands, and delegates the power to
determine the other and different prices to provincial
treasurers and their deputies. Here, then, you would have a
delegation of legislative power to the Governor-General, and a
delegation by him of that power to provincial treasurers and
their deputies, who "are hereby directed to communicate with,
and executive all instructions emanating from the Director of
Commerce and Industry, for the most effective and proper
enforcement of the above regulations in their respective
localities." The issuance of the proclamation by the Governor-
General was the exercise of the power delegation of a power,
and was even a subdelegation of that power.
Assuming that it is valid, Act No. 2868 is a general law
and does not authorize the Governor-General to fix one price of
rice in Manila and another price in Iloilo. It only purports to
authorize him fix the price of rice in the Philippine Islands under
a law, which is general and uniform, and not local or special.
Under the terms of the law, the price of rice fixed in the
proclamation must be the same all over the Islands. There
cannot be one price at Manila and another at Iloilo. Again, it is a
matter of common knowledge, and of which this court will take
judicial notice, that there are many kinds of rice with different
and corresponding market values, and that there is a wide
range in the price, which varies with grade and quality. Act No.
2868 makes no distinction in price for the grade quality of the
rice, and the proclamation, upon which the defendant was tried
and convicted, fixes the selling price of rice in Manila "at P15
per sack of 57 1/2 kilos, or 63 centavo per Janet," and is
uniform as to all grades of rice, and says nothing about grade or
quality. Again, it will be noted that the law is confined to palay,
rice and corn. They are products of the Philippine Islands.
Hemp, tobacco, coconut, chickens, eggs, and many other things
are also products. Any law which singles out palay, rice or corn
from the numerous, but is a local or special law. If such a law is
valid, then by the same principle, the Governor-General could
be authorized by proclamation to fix the price of meat, eggs
chickens, coconut, hemp, and tobacco, or any other of the
Islands. In the very nature of things, all of that class of laws
should be general and uniform. Otherwise, there would be an
unjust discrimination of property rights, which, under the law,
must be equal and uniform. Act No. 2868 is nothing more than
a floating law, which, in the discretion and by a proclamation of
the Governor-General, makes it a floating crime to sell rice at a
price in excess of the proclamation, without regard to grade or
quality.
When Act No. 2868 is analyzed, it is the violation of the
proclamation of the Governor-General which constitutes the
crime. Without that proclamation, it was no crime to sell rice at
any price. In other words, the Legislature left it to the sole
discretion of the Governor-General to say what was and what
was not "any cause" for enforcing the act, and what was and
what was not "an extraordinary rise in the price of palay, rice or
corn," and under certain undefined conditions to fix the price at
which rice should be sold, without regard to grade or quality,
also to say whether a proclamation should be issued, if so,
when, and whether or not the law should be enforced, how
long it should be enforced, and when the law should be
suspended. The Legislature did not specify or define what was
"any cause," or what was "an extraordinary rise in the price of
rice, palay or corn." Neither did it specify or define the
conditions upon which the proclamation should be issued. In
the absence of the proclamation no crime was committed. The
alleged sale was made a crime, if at all, because the Governor-
General issued the proclamation. The act or proclamation does
not say anything about the different grades or qualities of rice,
and the defendant is charged with the sale" of one Janet of rice
at the price of eighty centavos (P0.80) which is a price greater
than fixed by Executive Order No. 53."
We are clearly of the opinion and hold that Act No.
2868 in so far as it undertakes to authorize the Governor-
General in his discretion to issue a proclamation, fixing the price
of rice, and to make the sale of rice in violation of the
proclamation a crime, is unconstitutional and void.
It may be urged that there was an extraordinary rise in
the price of rice and profiteering, which worked a severe
hardship, on the poorer classes, and that an emergency existed,
but the question here presented is the constitutionality of a
particular portion of a statute, and none of such matters is an
argument for, or against, its constitutionality.
The Constitution is something solid, permanent and
substantial. Its stability protects the life, liberty and property
rights of the rich and the poor alike, and that protection ought
not to change with the wind or any emergency condition. The
fundamental question involved in this case is the right of the
people of the Philippine Islands to be and live under a
republican form of government. We make the board statement
that no state or nation, living under a republican form of
government, under the terms and conditions specified in Act
No. 2868, has ever enacted a law delegating the power to any
one, to fix the price at which rice should be sold. That power
can never be delegated under a republican form of
government.
In the fixing of the price at which the defendant should
sell his rice, the law was not dealing with government property.
It was dealing with private property and private rights, which
are sacred under the Constitution. If this law should be
sustained, upon the same principle and for the same reason,
the Legislature could authorize the Governor-General to fix the
price of every product or commodity in the Philippine Islands,
and empower him to make it a crime to sell any product at any
other or different price.
It may be said that this was a war measure, and that
for such reason the provision of the Constitution should be
suspended. But the stubborn fact remains that at all times the
judicial power was in full force and effect, and that while that
power was in force and effect, such a provision of the
Constitution could not be, and was not, suspended even in
times of war. It may be claimed that during the war, the United
States Government undertook to, and did, fix the price at which
 wheat and flour should be bought and sold, and that is true.
There, the United States had declared war, and at the time was
at war with other nations, and it was a war measure, but it is
also true that in doing so, and as a part of the same act, the
United States commandeered all the wheat and flour, and took
possession of it, either or constructive, and the government
itself became the owner of the wheat and flour, and fixed the
price to be paid for it. That is not case. Here, the rice sold was
the personal and private property of the defendant, who sold it
to one of his customers. The government had not bought and
did not claim to own the rice, or have any interest in it. and at
the time of the alleged sale, it was the personal, private
property of the defendant. It may be that the law was passed in
the interest of the public, but the members of this court have
taken a solemn oath to uphold and defend the Constitution,
and it ought not to be construed to meet the changing winds or
emergency conditions. Again we say that no state or nation
under a republican form of government ever enacted a law
authorizing any executive, under the conditions stated, to fix
the price at which a private person would sell his own rice, and
make the broad statement that no decision of any court, on
principle or by analogy. will ever be found which sustains the
constitutionality of that particular portion of Act No. 2868 here
in question. By the terms of the Organic Act, subject only to
constitutional limitations, the power Legislature, which is elated
by a direct vote of the people of the Philippine Island. As to the
question here involved, the authority of the Governor-General
to fix the maximum price at which palay, rice and corn may be
sold in the manner and under the conditions stated is a
delegation of legislative power in violation of the organic law.
This opinion is confined to the particular question here
involved, which is the right of the Governor-General, upon the
terms and conditions stated in the Act, to fix the price of rice
and make it a crime to sell it at a higher price, and which holds
that portion of the Act unconstitutional. It does not decide or
undertake to construe the constitutionality of any of the
remaining of the Act.
The judgment of the lower court is reversed, and the
defendant discharged. So ordered.
Araullo, C. J., Johnson, Street, and Ostrand, JJ., concur.
Romualdez, J., concurs in the result.
Separate Opinions
MALCOLM, J., with whom concur AVANCENA and VILLAMOR
JJ., concurring:
I concur in the result for reasons which reach both the
facts and the law. In the first place, as to the facts, — one
cannot be convicted ex post facto of a violation of a law and of
an executive order issued pursuant to the law, when the alleged
violation thereof occurred on August 6, 1919, while the Act of
the Legislature in question was not published until August 13,
1919, and the order was not published until August 20,1919. In
the second place, as to the law, — one cannot be convicted of a
violation of a law or an order issued pursuant to the law when
both the law and the order fail to set up an ascertainable
standard of guilt. (U. S. vs Cohen Grocery Company [1921], 255
U. S., 81, holding section 4 of the Federal Food Control Act of
August 10, 1917, as amended, invalid.)
In order that there may not be any misunderstanding
of our position, I would respectfully invite attention to the
decision of the United States Supreme Court in German Alliance
Ins. Co. vs. Lewis [1914, 233 U. S., 389), concerning the
legislative regulation of the prices charged by businesses
affected with a public interest, and to another decision of the
United States Supreme Court, that of Marshall Field & Co. vs.
Clark [1892] U. S., 649], which adopts as its own the principle
laid down in the case of Locke's Appeal [1873], 72 Pa. St., 491).
namely: "The Legislature cannot delegate its power to make a
law: but it can make a law to delegate a power to determine
some fact or state of things upon which the law makes or
intends to make, its own action depend. To deny this would be
to stop the wheels of government. There are many things upon
which wise and useful legislation must depend which cannot be
know to law-making power, and must, therefore, be a subject
of inquiry and determination outside of the halls legislation.
||| (U.S. v. Ang Tang Ho, G.R. No. L-17122, [February 27, 1922], 43
PHIL 1-19)
EN BANC
[G.R. No. 74457. March 20, 1987.]
RESTITUTO YNOT, petitioner, vs. INTERMEDIATE
APPELLATE COURT, THE STATION COMMANDER,
INTEGRATED NATIONAL POLICE, BAROTAC NUEVO,
ILOILO and THE REGIONAL DIRECTOR, BUREAU OF
ANIMAL INDUSTRY, REGION IV, ILOILO
CITY, respondents.
Ramon A. Gonzales for petitioner.
DECISION
CRUZ, J p:
The essence of due process is distilled in the immortal
cry of Themistocles to Alcibiades: "Strike — but hear me first!'"
It is this cry that the petitioner in effect repeats here as he
challenges the constitutionality of Executive Order No. 626-
A. Cdpr
The said executive order reads in full as follows:
"WHEREAS, the President has given orders
prohibiting the interprovincial movement of
carabaos and the slaughtering of carabaos not
complying with the requirements ofExecutive
Order No. 626 particularly with respect to age;
"WHEREAS, it has been observed that despite
such orders the violators still manage to
circumvent the prohibition against
interprovincial movement of carabaos by
transporting carabeef instead; and.
"WHEREAS, in order to achieve the purposes
and objectives of Executive Order No. 626 and
the prohibition against interprovincial
movement of carabaos, it is necessary to
strengthen the said Executive Order and provide
for the disposition of the carabaos and carabeef
subject of the violation;.
"NOW, THEREFORE, I, FERDINAND E. MARCOS,
President of the Philippines, by virtue of the
powers vested in me by the Constitution, do
hereby promulgate the following:
"SECTION 1. Executive Order No. 626 is hereby
amended such that henceforth, no carabao
regardless of age, sex, physical condition or
purpose and no carabeef shall be transported
from one province to another. The carabao or
carabeef transported in violation of this
Executive Order as amended shall be subject to
confiscation and forfeiture by the government,
to be distributed to charitable institutions and
other similar institutions as the Chairman of the
National Meat Inspection Commission may see
fit, in the case of carabeef, and to deserving
farmers through dispersal as the Director of
Animal Industry may see fit, in the case of
carabaos.
"SECTION 2. This Executive Order shall take
effect immediately.
"Done in the City of Manila, this 25th day of
October, in the year of Our Lord, nineteen
hundred and eighty.
(SGD.)
FERDINAND E.
MARCOS
President
Republic of the
Philippines"
The petitioner had transported six carabaos in a pump
boat from Masbate to Iloilo on January 13, 1984, when they
were confiscated by the police station commander of Barotac
Nuevo, Iloilo, for violation of the above measure. 1 The
petitioner sued for recovery, and the Regional Trial Court of
Iloilo City issued a writ of replevin upon his filing of
a supersedeas bond of P12,000.00. After considering the merits
of the case, the court sustained the confiscation of the carabaos
and, since they could no longer be produced, ordered the
confiscation of the bond. The court also declined to rule on the
constitutionality of the executive order, as raised by the
petitioner, for lack of authority and also for its presumed
validity. 2
The petitioner appealed the decision to the
Intermediate Appellate Court, * 3 which upheld the trial
court, ** and he has now come before us in this petition for
review oncertiorari. prcd
The thrust of his petition is that the executive order is
unconstitutional insofar as it authorizes outright confiscation of
the carabao or carabeef being transported across provincial
boundaries. His claim is that the penalty is invalid because it is
imposed without according the owner a right to be heard
before a competent and impartial court as guaranteed by due
process. He complains that the measure should not have been
presumed, and so sustained, as constitutional. There is also a
challenge to the improper exercise of the legislative power by
the former President under Amendment No. 6 of the 1973
Constitution. 4
While also involving the same executive order, the
case of Pesigan v. Angeles 5 is not applicable here. The question
raised there was the necessity of the previous publication of the
measure in the Official Gazette before it could be considered
enforceable. We imposed the requirement then on the basis of
due process of law. In doing so, however, this Court did not, as
contended by the Solicitor General, impliedly affirm the
constitutionality of Executive Order No. 626-A. That is an
entirely different matter.
This Court has declared that while lower courts should
observe a becoming modesty in examining constitutional
questions, they are nonetheless not prevented from resolving
the same whenever warranted, subject only to review by the
highest tribunal. 6 We have jurisdiction under
the Constitution to "review, revise, reverse, modify or affirm on
appeal or certiorari, as the law or rules of court may provide,"
final judgments and orders of lower courts in, among others, all
cases involving the constitutionality of certain measures. 7 This
simply means that the resolution of such cases may be made in
the first instance by these lower courts.
And while it is true that laws are presumed to be
constitutional, that presumption is not by any means conclusive
and in fact may be rebutted. Indeed, if there be a clear showing
of their invalidity, and of the need to declare them so, then "will
be the time to make the hammer fall, and heavily," 8 to recall
Justice Laurel's trenchant warning. Stated otherwise, courts
should not follow the path of least resistance by simply
presuming the constitutionality of a law when it is questioned.
On the contrary, they should probe the issue more deeply, to
relieve the abscess, paraphrasing another distinguished
jurist, 9 and so heal the wound or excise the affliction.
Judicial power authorizes this; and when the exercise is
demanded, there should be no shirking of the task for fear of
retaliation, or loss of favor, or popular censure, or any other
similar inhibition unworthy of the bench, especially this
Court. LLjur
The challenged measure is denominated an executive
order but it is really presidential decree, promulgating a new
rule instead of merely implementing an existing law. It was
issued by President Marcos not for the purpose of taking care
that the laws were faithfully executed but in the exercise of his
legislative authority under Amendment No. 6. It was provided
thereunder that whenever in his judgment there existed a grave
emergency or a threat or imminence thereof or whenever the
legislature failed or was unable to act adequately on any matter
that in his judgment required immediate action, he could, in
order to meet the exigency, issue decrees, orders or letters of
instruction that were to have the force and effect of law. As
there is no showing of any exigency to justify the exercise of
that extraordinary power then, the petitioner has reason,
indeed, to question the validity of the executive order.
Nevertheless, since the determination of the grounds was
supposed to have been made by the President "in his
judgment," a phrase that will lead to protracted discussion not
really necessary at this time, we reserve resolution of this
matter until a more appropriate occasion. For the nonce, we
confine ourselves to the more fundamental question of due
process.
It is part of the art of constitution-making that the
provisions of the charter be cast in precise and unmistakable
language to avoid controversies that might arise on their
correct interpretation. That is the ideal. In the case of the due
process clause, however, this rule was deliberately not followed
and the wording was purposely kept ambiguous. In fact, a
proposal to delineate it more clearly was submitted in the
Constitutional Convention of 1934, but it was rejected by
Delegate Jose P. Laurel, Chairman of the Committee on the Pill
of Rights, who forcefully argued against it. He was sustained by
the body. 10
The due process clause was kept intentionally vague so
it would remain also conveniently resilient. This was felt
necessary because due process is not, like some provisions of
the fundamental law, an "iron rule" laying down an implacable
and immutable command for all seasons and all persons.
Flexibility must be the best virtue of the guaranty. The very
elasticity of the due process clause was meant to make it adapt
easily to every situation, enlarging or constricting its protection
as the changing times and circumstances may require.
Aware of this, the courts have also hesitated to adopt
their own specific description of due process lest they confine
themselves in a legal straitjacket that will deprive them of the
elbow room they may need to vary the meaning of the clause
whenever indicated. Instead, they have preferred to leave the
import of the protection open-ended, as it were, to be
"gradually ascertained by the process of inclusion and exclusion
in the course of the decision of cases as they arise." 11 Thus,
Justice Felix Frankfurter of the U.S. Supreme Court, for example,
would go no farther than to define due process - and in so doing
sums it all up — as nothing more and nothing less than "the
embodiment of the sporting idea of fair play." 12
When the barons of England extracted from their
sovereign liege the reluctant promise that that Crown would
thenceforth not proceed against the life, liberty or property of
any of its subjects except by the lawful judgment of his peers or
the law of the land, they thereby won for themselves and their
progeny that splendid guaranty of fairness that is now the
hallmark of the free society. The solemn vow that King John
made at Runnymede in 1215 has since then resounded through
the ages, as a ringing reminder to all rulers, benevolent or base,
that every person, when confronted by the stern visage of the
law, is entitled to have his say in a fair and open hearing of his
cause.prLL
The closed mind has no place in the open society. It is
part of the sporting idea of fair play to hear "the other side"
before an opinion is formed or a decision is made by those who
sit in judgment. Obviously, one side is only one-half of the
question; the other half must also be considered if an impartial
verdict is to be reached based on an informed appreciation of
the issues in contention. It is indispensable that the two sides
complement each other, as unto the bow the arrow, in leading
to the correct ruling after examination of the problem not from
one or the other perspective only but in its totality. A judgment
based on less that this full appraisal, on the pretext that a
hearing is unnecessary or useless, is tainted with the vice of bias
or intolerance or ignorance, or worst of all, in repressive
regimes, the insolence of power.
The minimum requirements of due process are notice
and hearing 13 which, generally speaking, may not be
dispensed with because they are intended as a safeguard
against official arbitrariness. It is a gratifying commentary on
our judicial system that the jurisprudence of this country is rich
with applications of this guaranty as proof of our fealty to the
rule of law and the ancient rudiments of fair play. We have
consistently declared that every person, faced by the awesome
power of the State, is entitled to "the law of the land," which
Daniel Webster described almost two hundred years ago in the
famous Dartmouth College Case, 14 as "the law which hears
before it condemns, which proceeds upon inquiry and renders
judgment only after trial." It has to be so if the rights of every
person are to be secured beyond the reach of officials who, out
of mistaken zeal or plain arrogance, would degrade the due
process clause into a worn and empty catchword.
This is not to say that notice and hearing are
imperative in every case for, to be sure, there are a number of
admitted exceptions. The conclusive presumption, for example,
bars the admission of contrary evidence as long as such
presumption is based on human experience or there is a
rational connection between the fact proved and the fact
ultimately presumed therefrom. 15 There are instances when
the need for expeditious action will justify omission of these
requisites, as in the summary abatement of a nuisance per se,
like a mad dog on the loose, which may be killed on sight
because of the immediate danger it poses to the safety and
lives of the people. Pornographic materials, contaminated meat
and narcotic drugs are inherently pernicious and may be
summarily destroyed. The passport of a person sought for a
criminal offense may be cancelled without hearing, to compel
his return to the country he has fled. 16 Filthy restaurants may
be summarily padlocked in the interest of the public health and
bawdy houses to protect the public morals. 17 In such
instances, previous judicial hearing may be omitted without
violation of due process in view of the nature of the property
involved or the urgency of the need to protect the general
welfare from a clear and present danger. cdll
The protection of the general welfare is the particular
function of the police power which both restraints and is
restrained by due process. The police power is simply defined
as the power inherent in the State to regulate liberty and
property for the promotion of the general welfare. 18 By reason
of its function, it extends to all the great public needs and is
described as the most pervasive, the least limitable and the
most demanding of the three inherent powers of the State, far
outpacing taxation and eminent domain. The individual, as a
member of society, is hemmed in by the police power, which
affects him even before he is born and follows him still after he
is dead — from the womb to beyond the tomb — in practically
everything he does or owns. Its reach is virtually limitless. It is a
ubiquitous and often unwelcome intrusion. Even so, as long as
the activity or the property has some relevance to the public
welfare, its regulation under the police power is not only proper
but necessary. And the justification is found in the venerable
Latin maxims, Salus populi est suprema lex and Sic utere tuo ut
alienum non laedas, which call for the subordination of
individual interests to the benefit of the greater number.
It is this power that is now invoked by the government
to justify Executive Order No. 626-A, amending the basic rule in
Executive Order No. 626, prohibiting the slaughter of carabaos
except under certain conditions. The original measure was
issued for the reason, as expressed in one of its Whereases,
that "present conditions demand that the carabaos and the
buffaloes be conserved for the benefit of the small farmers who
rely on them for energy needs." We affirm at the outset the
need for such a measure. In the face of the worsening energy
crisis and the increased dependence of our farms on these
traditional beasts of burden, the government would have been
remiss, indeed, if it had not taken steps to protect and preserve
them.
A similar prohibition was challenged in United States v.
Toribio, 19 where a law regulating the registration, branding
and slaughter of large cattle was claimed to be a deprivation of
property without due process of law. The defendant had been
convicted thereunder for having slaughtered his own carabao
without the required permit, and he appealed to the Supreme
Court. The conviction was affirmed. The law was sustained as a
valid police measure to prevent the indiscriminate killing of
carabaos, which were then badly needed by farmers. An
epidemic had stricken many of these animals and the reduction
of their number had resulted in an acute decline in agricultural
output, which in turn had caused an incipient famine.
Furthermore, because of the scarcity of the animals and the
consequent increase in their price, cattle-rustling had spread
alarmingly, necessitating more effective measures for the
registration and branding of these animals. The Court held that
the questioned statute was a valid exercise of the police power
and declared in part as follows:
"To justify the State in thus interposing its
authority in behalf of the public, it must appear,
first, that the interests of the public generally, as
distinguished from those of a particular class,
require such interference; and second, that the
means are reasonably necessary for the
accomplishment of the purpose, and not unduly
oppressive upon individuals. . . .
"From what has been said, we think it is clear
that the enactment of the provisions of the
statute under consideration was required by
`the interests of the public generally, as
distinguished from those of a particular class'
and that the prohibition of the slaughter of
carabaos for human consumption, so long as
these animals are fit for agricultural work or
draft purposes was a 'reasonably necessary'
limitation on private ownership, to protect the
community from the loss of the services of such
animals by their slaughter by improvident
owners, tempted either by greed of momentary
gain, or by a desire to enjoy the luxury of animal
food, even when by so doing the productive
power of the community may be measurably
and dangerously affected."
In the light of the tests mentioned above, we hold with
the Toribio Case that the carabao, as the poor man's tractor, so
to speak, has a direct relevance to the public welfare and so is a
lawful subject of Executive Order No. 626. The method chosen
in the basic measure is also reasonably necessary for the
purpose sought to be achieved and not unduly oppressive upon
individuals, again following the above-cited doctrine. There is
no doubt that by banning the slaughter of these animals except
where they are at least seven years old if male and eleven years
old if female upon issuance of the necessary permit, the
executive order will be conserving those still fit for farm work or
breeding and preventing their improvident depletion. llcd
But while conceding that the amendatory measure has
the same lawful subject as the original executive order, we
cannot say with equal certainty that it complies with the second
requirement, viz., that there be a lawful method. We note that
to strengthen the original measure, Executive Order No. 626-
A imposes an absolute ban not on theslaughter of the carabaos
but on their movement, providing that "no carabao regardless
of age, sex, physical condition or purpose (sic) and no carabeef
shall be transported from one province to another." The object
of the prohibition escapes us. The reasonable connection
between the means employed and the purpose sought to be
achieved by the questioned measure is missing.
We do not see how the prohibition of the
interprovincial transport of carabaos can prevent their
indiscriminate slaughter, considering that they can be killed
anywhere, with no less difficulty in one province than in
another. Obviously, retaining the carabaos in one province will
not prevent their slaughter there, any more than moving them
to another province will make it easier to kill them there. As for
the carabeef, the prohibition is made to apply to it as
otherwise, so says executive order, it could be easily
circumvented by simply killing the animal. Perhaps so. However,
if the movement of the live animals for the purpose of
preventing their slaughter cannot be prohibited, it should
follow that there is no reason either to prohibit their transfer
as, not to be flippant, dead meat.
Even if a reasonable relation between the means and
the end were to be assumed, we would still have to reckon with
the sanction that the measure applies for violation of the
prohibition. The penalty is outright confiscation of the carabao
or carabeef being transported, to be meted out by the
executive authorities, usually the police only. In the Toribio
Case, the statute was sustained because the penalty prescribed
was fine and imprisonment, to be imposed by the court after
trial and conviction of the accused. Under the challenged
measure, significantly, no such trial is prescribed, and the
property being transported is immediately impounded by the
police and declared, by the measure itself, as forfeited to the
government.
In the instant case, the carabaos were arbitrarily
confiscated by the police station commander, were returned to
the petitioner only after he had filed a complaint for recovery
and given a supersedeas bond of P12,000.00, which was
ordered confiscated upon his failure to produce the carabaos
when ordered by the trial court. The executive order defined
the prohibition, convicted the petitioner and immediately
imposed punishment, which was carried out forthright. The
measure struck at once and pounced upon the petitioner
without giving him a chance to be heard, thus denying him the
centuries-old guaranty of elementary fair play.
It has already been remarked that there are occasions
when notice and hearing may be validly dispensed with
notwithstanding the usual requirement for these minimum
guarantees of due process. It is also conceded that summary
action may be validly taken in administrative proceedings as
procedural due process is not necessarily judicial only. 20 In the
exceptional cases accepted, however, there is a justification for
the omission of the right to a previous hearing, to wit,
the immediacy of the problem sought to be corrected and
the urgency of the need to correct it. cdphil
In the case before us, there was no such pressure of
time or action calling for the petitioner's peremptory
treatment. The properties involved were not even inimical per
se as to require their instant destruction. There certainly was no
reason why the offense prohibited by the executive order
should not have been proved first in a court of justice, with the
accused being accorded all the rights safeguarded to him under
the Constitution. Considering that, as we held in Pesigan v.
Angeles, 21 Executive Order No. 626-A is penal in nature, the
violation thereof should have been pronounced not by the
police only but by a court of justice, which alone would have
had the authority to impose the prescribed penalty, and only
after trial and conviction of the accused.
We also mark, on top of all this, the questionable
manner of the disposition of the confiscated property as
prescribed in the questioned executive order. It is there
authorized that the seized property shall "be distributed to
charitable institutions and other similar institutions as the
Chairman of the National Meat Inspection Commissionmay see
fit, in the case of carabeef, and to deserving farmers through
dispersal as the Director of Animal Industry may see fit, in the
case of carabaos." (Emphasis supplied.) The phrase "may see
fit" is an extremely generous and dangerous condition, if
condition it is. It is laden with perilous opportunities for
partiality and abuse, and even corruption. One searches in vain
for the usual standard and the reasonable guidelines, or better
still, the limitations that the said officers must observe when
they make their distribution. There is none. Their options are
apparently boundless. Who shall be the fortunate beneficiaries
of their generosity and by what criteria shall they be chosen?
Only the officers named can supply the answer, they and they without protest, and soon forgotten in the limbo of
alone may choose the grantee as they see fit, and in their own relinquished rights. LLpr
exclusive discretion. Definitely, there is here a "roving The strength of democracy lies not in the rights it
commission," a wide and sweeping authority that is not guarantees but in the courage of the people to invoke them
"canalized within banks that keep it from overflowing," in short, whenever they are ignored or violated. Rights are but weapons
a clearly profligate and therefore invalid delegation of on the wall if, like expensive tapestry, all they do is embellish
legislative powers. and impress. Rights, as weapons, must be a promise of
To sum up then, we find that the challenged measure protection. They become truly meaningful, and fulfill the role
is an invalid exercise of the police power because the method assigned to them in the free society, if they are kept bright and
employed to conserve the carabaos is not reasonably necessary sharp with use by those who are not afraid to assert them.
to the purpose of the law and, worse, is unduly oppressive. Due WHEREFORE, Executive Order No. 626-A is hereby
process is violated because the owner of the property declared unconstitutional. Except as affirmed above, the
confiscated is denied the right to be heard in his defense and is decision of the Court of Appeals is reversed.
immediately condemned and punished. The conferment on the Thesupersedeas bond is cancelled and the amount thereof is
administrative authorities of the power to adjudge the guilt of ordered restored to the petitioner. No costs.
the supposed offender is a clear encroachment on judicial SO ORDERED.
functions and militates against the doctrine of separation of
powers. There is, finally, also an invalid delegation of legislative ||| (Ynot v. Intermediate Appellate Court, G.R. No. 74457, [March
powers to the officers mentioned therein who are granted 20, 1987], 232 PHIL 615-632)
unlimited discretion in the distribution of the properties
arbitrarily taken. For these reasons, we hereby declareExecutive
Order No. 626-A unconstitutional.
We agree with the respondent court, however, that
the police station commander who confiscated the petitioner's
carabaos is not liable in damages for enforcing the executive
order in accordance with its mandate. The law was at that time
presumptively valid, and it was his obligation, as a member of
the police, to enforce it. It would have been impertinent of him,
being a mere subordinate of the President, to declare the
executive order unconstitutional and, on his own responsibility
alone, refuse to execute it. Even the trial court, in fact, and the
Court of Appeals itself did not feel they had the competence,
for all their superior authority, to question the order we now
annul.
The Court notes that if the petitioner had not seen fit
to assert and protect his rights as he saw them, this case would
never have reached us and the taking of his property under the
challenged measure would have become a fait accompli despite
its invalidity. We commend him for his spirit. Without the
present challenge, the matter would have ended in that pump
boat in Masbate and another violation of the Constitution, for
all its obviousness, would have been perpetrated, allowed
EN BANC
[G.R. No. 78164. July 31, 1987.]
TERESITA TABLARIN, MA. LUZ CIRIACO, MA.
NIMFA B. ROVIRA, EVANGELINA S. LABAO, in
their behalf and in behalf of applicants for
admission into the Medical Colleges during the
school year 1987-88 and future years who have
not taken or successfully hurdled the National
Medical Admission Test
(NMAT) petitioners, vs. THE HONORABLE JUDGE
ANGELINA S. GUTIERREZ, Presiding Judge of
Branch XXXVII of the Regional Trial Court of the
National Capital Judicial Region with seat at
Manila, THE HONORABLE SECRETARY LOURDES
QUISUMBING, in her capacity as Chairman of
the BOARD OF MEDICAL EDUCATION, and THE
CENTER FOR EDUCATIONAL MEASUREMENT
(CEM), respondents.
SYLLABUS
1. CONSTITUTIONAL LAW; DECLARATION OF
UNCONSTITUTIONALITY OF STATUTE AND ADMINISTRATIVE
ORDER; BURDEN OF PROOF TO BE DISCHARGED; CASE AT BAR.
— Article II of the 1987 Constitution sets forth in its second half
certain "State policies" which the government is enjoined to
pursue and promote. The petitioners here have not seriously
undertaken to demonstrate to what extent or in what manner
the statute and the administrative order they assail collide with
the State policies embodied in Sections 11, 13 and 17. They
have not, in other words, discharged the burden of proof which
lies upon them. This burden is heavy enough where the
constitutional provision invoked is relatively specific, rather
than abstract, in character and cast in behavioral or operational
terms. That burden of proof becomes of necessity heavier
where the constitutional provision invoked is cast, as the
second portion of Article II is cast, in language descriptive of
basic policies, or more precisely, of basic objectives of State
policy and therefore highly generalized in tenor. The petitioners
have not made their case, even a prima facie case, and we are
not compelled to speculate and to imagine how the legislation
and regulation impugned as unconstitutional could possibly
offend the constitutional provisions pointed to by the
petitioners. Turning to Article XIV, Section 1, of the 1987
Constitution, we note that once more petitioners have failed to
demonstrate that the statute and regulation they assail in fact
clash with that provision. On the contrary we may note — in
anticipation of discussion infra - that the statute and the
regulation which petitioners attack are in fact designed to
promote "quality education" at the level of professional
schools. When one reads Section 1 in relation to Section 5 (3) of
Article XIV as one must one cannot but note that the latter
phrase of Section 1 is not to be read with absolute literalness.
The State is not really enjoined to take appropriate steps to
make quality education "accessible to all who might for any
number of reasons wish to enroll in a professional school but
rather merely to make such education accessible to all who
qualify under "fair, reasonable and equitable admission and
academic requirements."
2. ID.; CONSTITUTIONALITY ESSENTIALLY A QUESTION
OF POWER OR AUTHORITY; QUESTIONS AS TO DESIRABILITY,
WISDOM OR UTILITY OF LEGISLATION OR ADMINISTRATIVE
REGULATION PROPERLY ADDRESSED TO POLITICAL
DEPARTMENTS OF GOVERNMENT. — The petitioners also urge
that the NMAT prescribed in MECS Order No. 52, s. 1985, is an
"unfair, unreasonable and inequitable requirement," which
results in a denial of due process. Again, petitioners have failed
to specify just what factors or features of the NMAT render it
"unfair" and "unreasonable" or "inequitable." They appear to
suggest that passing the NMAT is an unnecessary requirement
when added on top of the admission requirements set out in
Section 7 of the Medical Act of 1959, and other admission
requirements established by internal regulations of the various
medical schools, public or private. Petitioners arguments thus
appear to relate to utility and wisdom or desirability of the
NMAT requirement. But constitutionality is essentially a
question of power or authority: this Court has neither
commission or competence to pass upon questions of the
desirability or wisdom or utility of legislation or administrative
regulation. Those questions must be addressed to the political
departments of the government not to the courts.
3. ID.; PRINCIPLE OF NON-DELEGATION OF LEGISLATIVE
POWER; APPLIED WITH CIRCUMSPECTION WHERE STATUTES
DEAL WITH COMPLEX AND TECHNICAL SUBJECTS; PRINCIPLE OF
SUBORDINATE LEGISLATION; STANDARDS SET FOR
SUBORDINATE LEGISLATION NECESSARILY BROAD AND HIGHLY
ABSTRACT. — The general principle of non-delegation of
legislative power, which both flows from the reinforces the
more fundamental rule of the separation and allocation of
powers among the three great departments of government,
must be applied with circumspection in respect of statutes
which like the Medical Act of 1959, deal with subjects as
obviously complex and technical as medical education and the
practice of medicine in our present day world. Mr. Justice Laurel
stressed this point 47 years ago in Pangasinan Transportation
Co., Inc. vs. The Public Service Commission: "One thing,
however, is apparent in the development of the principle of
separation of powers and that is that the maxim of delegatus
non potest delegare or delegati potestas non potest delegare,
adopted this practice (Delegibus et Consuetudiniis Anglia edited
by G.E. Woodbine, Yale University Press, 1922, Vol. 2, p. 167)
but which is also recognized in principle in the Roman Law
(d.17.18,3) has been made to adapt itself to the complexities of
modern government, giving rise to the adoption, within certain
limits, of the principle of 'subordinate legislation,' not only in
the United States and England but in practically all modern
governments. (People vs. Rosenthal and Osmena [68 Phil. 318,
1939]. Accordingly, with the growing complexity of modern life,
the multiplication of the subjects of governmental regulation,
and the increased difficulty of administering the laws, there is a
constantly growing tendency toward the delegation of greater
power by the legislature, and toward the approval of the
practice by the courts." The standards set for subordinate
legislation in the exercise of rule making authority by an
administrative agency like the Board of Medical Education are
necessarily broad and highly abstract. As explained by then Mr.
Justice Fernando in Edu v. Ericta — "The standard may be either
expressed or implied. If the former, the non-delegation
objection is easily met. The standard though does not have to
be spelled out specifically. It could be implied from the policy
and purpose of the act considered as a whole. In the Reflector
Law, clearly the legislative objective is public safety. What is
sought to be attained as in Calalang v. Williams is 'safe transit
upon the roads.'" We believe and so hold that the necessary
standards are set forth in Section 1 of the 1959 Medical Act:
"the standardization and regulation of medical education" and
in Section 5 (a) and 7 of the same Act, the body of the statute
itself, and that these considered together are sufficient
compliance with the requirements of the non-delegation
principle.
4. ID.; POLICE POWER; NATURE AND OBJECTIVE;
REGULATION OF PRACTICE OF MEDICINE INCLUDING
ADMISSION TO RANKS OF AUTHORIZED PRACTITIONERS A
VALID EXERCISE THEREOF. — There is another reason why the
petitioners' arguments must fail: the legislative and
administrative provisions impugned by them constitute, to the
mind of the Court, a valid exercise of the police power of the
state. The police power, it is commonplace learning, is the
pervasive and non-waivable power and authority of the
sovereign to secure and promote all the important interests and
needs — in a word, the public order — of the general
community. An important component of that public order is the
health and physical safety and well being of the population, the
securing of which no one can deny is a legitimate objective of
governmental effort and regulation. Perhaps the only issue that
needs some consideration is whether there is some reasonable
relation between the prescribing of passing the NMAT as a
condition for admission to medical school on the one hand, and
the securing of the health and safety of the general community,
on the other hand. This question is perhaps most usefully
approached by recalling that the regulation of the practice of
medicine in all its branches has long been recognized as a
reasonable method of protecting the health and safety of the
public. That the power to regulate and control the practice of
medicine includes the power to regulate admission to the ranks
of those authorized to practice medicine, is also well
recognized. Thus, legislation and administrative regulations
requiring those who wish to practice medicine first to take and
pass medical board examinations have long ago been
recognized as valid exercises of governmental power. Similarly,
the establishment of minimum medical educational
requirements — i.e., the completion of prescribed courses in a
recognized medical school — for admission to the medical
profession, has also been sustained as a legitimate exercise of
the regulatory authority of the state.
5. ID.; ID.; ID.; ID.; CASE AT BAR. — What we have
before us in the instant case is closely related; the regulation of
access to medical schools. MECS Order No. 52, s. 1985, as noted
earlier, articulates the rationale of regulation of this type: the
improvement of the professional and technical quality of the
graduates of medical schools, by upgrading the quality of those
admitted to the student body of the medical schools. That
upgrading is sought by selectivity in the process of admission,
selectivity consisting, among other things, of limiting admission
to those who exhibit in the required degree the aptitude for
medical studies and eventually for medical practice. The need
to maintain, and the difficulties of maintaining, high standards
in our professional schools in general, and medical schools in
particular, in the current stage of our social and economic
development, are widely known. We believe that the
government is entitled to prescribe an admission test like the
NMAT as a means for achieving its stated objective of
"upgrading the selection of applicants into [our] medical
schools" and of "improv[ing] the quality of medical education in
the country." Given the widespread use today of such
admission tests in, for instance, medical schools in the United
States of America (the Medical College Admission Test [MCAT]
and quite probably in other countries with far more developed
educational resources than our own, and taking into account
the failure or inability of the petitioners to even attempt to
prove otherwise, we are entitled to hold that the NMAT is
reasonably related to the securing of the ultimate end of
legislation and regulation in this area. That end, it is useful to
recall, is the protection of the public from the potentially deadly
effects of incompetence and ignorance in those who would
undertake to treat our bodies and minds for disease or trauma.
6. ID.; BILL OF RIGHTS; EQUAL PROTECTION OF THE
LAWS; NOT VIOLATED BY MECS ORDER NO. 52, S. 1985. —
Petitioners have contended, finally, that MECS Order No. 52, s.
1985, is in conflict with the equal protection clause of
the Constitution. More specifically, petitioners assert that
portion of the MECS Order which provides that "the cutoff score
for the successful applicants, based on the scores on the
NMAT, shall be determined every year by the Board of Medical
Education after consultation with the Association of Philippine
Medical Colleges" infringes the requirements of equal
protection. They assert, in other words, that students seeking
admission during a given school year. e.g., 1987-1988, when
subjected to a different cutoff score than that established for
an, e.g., earlier school year, are discriminated against and that
this renders the MECS Order "arbitrary and capricious." The
force of this argument is more apparent than real. Different
cutoff scores for different school years may be dictated by
differing conditions obtaining during those years. Thus, the
appropriate cutoff score for a given year may be a function of
such factors as the number of students who have reached the
cutoff score established the preceding year; the number of
places available in medical schools during the current year; the
average score attained during the current year; the level of
difficulty of the test given during the current year, and so forth.
To establish a permanent and immutable cutoff score
regardless of changes in circumstances from year to year, may
well result in an unreasonable rigidity. The above language in
MECS Order No. 52, far from being arbitrary or capricious,
leaves the Board of Medical Education with the measure of
flexibility needed to meet circumstances as they change.
DECISION
FELICIANO, J p:
The petitioners sought admission into colleges
or schools of medicine for the school year 1987-1988.
However, the petitioners either did not take or did not
successfully take the National Medical Admission Test
(NMAT) required by the Board of Medical Education, one
of the public respondents, and administered by the
private respondent, the Center for Educational
Measurement (CEM).
On 5 March 1987, the petitioners filed with the
Regional Trial Court, National Capital Judicial Region, a
Petition for Declaratory Judgment and Prohibition with a
prayer for Temporary Restraining Order and Preliminary
Injunction. The petitioners sought to enjoin the Secretary
of Education, Culture and Sports, the Board of Medical
Education and the Center for Educational Measurement
from enforcing Section 5 (a) and (f) of Republic Act No.
2382, as amended, and MECS Order No. 52, series of
1985, dated 23 August 1985 and from requiring the
taking and passing of the NMAT as a condition for
securing certificates of eligibility for admission, from
proceeding with accepting applications for taking the
NMAT and from administering the NMAT as scheduled
on 26 April 1987 and in the future. After hearing on the
petition for issuance of preliminary injunction, the trial
court denied said petition on 20 April 1987. The NMAT
was conducted and administered as previously
scheduled.
Petitioners accordingly filed this Special Civil
Action for Certiorari with this Court to set aside the
Order of the respondent judge denying the petition for
issuance of a writ of preliminary injunction.
Republic Act 2382, as amended by Republic Acts
Nos. 4224 and 5946, known as the "Medical Act of 1959"
defines its basic objectives in the following manner:
 "SECTION 1. Objectives. — This
Act provides for and shall govern (a) the
standardization and regulation of medical
education; (b) the examination for
registration of physicians; and (c) the
supervision, control and regulation of the
practice of medicine in the Philippines."
(Emphasis supplied)
The statute, among other things, created a
Board of Medical Education which is composed of (a) the
Secretary of Education, Culture and Sports or his duly
authorized representative, as Chairman; (b) the
Secretary of Health or his duly authorized
representative; (c) the Director of Higher Education or
his duly authorized representative; (d) the Chairman of
the Medical Board or his duly authorized representative;
(e) a representative of the Philippine Medical
Association; (f) the Dean of the College of Medicine,
University of the Philippines; (g) a representative of the
Council of Deans of Philippine Medical Schools; and (h) a
representative of the Association of Philippine Medical
Colleges, as members. The functions of the Board of
Medical Education specified in Section 5 of the statute
include the following: LLphil
"(a) To determine and prescribe
requirements for admission into a
recognized college of medicine;
(b) To determine and prescribe
requirements for minimum physical
facilities of colleges of medicine, to wit:
buildings, including hospitals, equipment
and supplies, apparatus, instruments,
appliances, laboratories, bed capacity for
instruction purposes, operating and
delivery rooms, facilities for outpatient
services, and others, used for didactic
and practical instruction in accordance
with modern trends;
(c) To determine and prescribe
the minimum number and minimum
qualifications of teaching personnel,
including student-teachers ratio;
(d) To determine and prescribe
the minimum required curriculum
leading to the degree of Doctor of
Medicine;
(e) To authorize the
implementation of experimental medical
curriculum in a medical school that has
exceptional faculty and instrumental
facilities. Such an experimental
curriculum may prescribe admission and
graduation requirements other than
those prescribed in this Act; Provided,
That only exceptional students shall be
enrolled in the experimental curriculum;
(f) To accept applications for
certification for admission to a medical
school and keep a register of those issued
said certificate; and to collect from said
applicants the amount of twenty-five
pesos each which shall accrue to the
operating fund of the Board of Medical
Education;
(g) To select, determine and
approve hospitals or some departments
of the hospitals for training which comply
with the minimum specific physical
facilities as provided in subparagraph (b)
hereof; and
(h) To promulgate and prescribe
and enforce the necessary rules and
regulations for the proper
implementation of the foregoing
functions." (Emphasis supplied).
Section 7 prescribes certain minimum
requirements for applicants to medical schools:
"Admission requirements. — The
medical college may admit any student who
has not been convicted by any court of
competent jurisdiction of any offense
involving moral turpitude and who
presents (a) a record of completion of a
bachelor's degree in science or arts; (b) a
certificate of eligibility for entrance to a
medical school from the Board of Medical
Education; (c) a certificate of good moral
character issued by two former professors in
the college of liberal arts; and (d) birth
certificate. Nothing in this act shall be
construed to inhibit any college of medicine
from establishing, in addition to the
preceding, other entrance requirements that
may be deemed admissible.
. . ."(Emphasis supplied)
MECS Order No. 52, s. 1985, issued by the then
Minister of Education, Culture and Sports and dated 23
August 1985, established a uniform admission test called
the National Medical Admission Test (NMAT) as an
additional requirement for issuance of a certificate of
eligibility for admission into medical schools of the
Philippines, beginning with the school year 1986-1987.
This Order goes on to state that:
"2. The NMAT, an aptitude test,
is considered as an instrument toward
upgrading the selection of applicants for
admission into the medical schools and its
calculated to improve the quality of
medical education in the country. The
cutoff score for the successful applicants,
based on the scores on the NMAT, shall
be determined every year by the Board
of Medical Education after consultation
with the Association of Philippine
Medical Colleges. The NMAT rating of
each applicant, together with the other
admission requirements as presently
called for under existing rules, shall serve
as a basis for the issuance of the
prescribed certificate of eligibility for
admission into the medical colleges.
3. Subject to the prior approval
of the Board of Medical Education, each
medical college may give other tests for
applicants who have been issued a
corresponding certificate of eligibility for
admission that will yield information on
other aspects of the applicant's
 personality to complement the
information derived from the NMAT.
xxx xxx xxx
8. No applicant shall be issued
the requisite Certificate of Eligibility for
Admission (CEA), or admitted for
enrollment as first year student in any
medical college, beginning the school
year, 1986- 87, without the required
NMAT qualification as called for under
this Order." (Emphasis supplied)
Pursuant to MECS Order No. 52, s. 1985, the
private respondent Center conducted NMATs for
entrance to medical colleges during the school year
1986-1987. In December 1986 and in April 1987,
respondent Center conducted the NMATs for admission
to medical colleges during the school year 1987-
1988. prcd
Petitioners raise the question of whether or not
a writ of preliminary injunction may be issued to enjoin
the enforcement of Section 5 (a) and (f) of Republic Act
No. 2382, as amended, and MECS Order No. 52, s. 1985,
pending resolution of the issue of constitutionality of the
assailed statute and administrative order. We regard this
issue as entirely peripheral in nature. It scarcely needs
documentation that a court would issue a writ of
preliminary injunction only when the petitioner assailing
a statute or administrative order has made out a case of
unconstitutionality strong enough to overcome, in the
mind of the judge, the presumption of constitutionality,
aside from showing a clear legal right to the remedy
sought. The fundamental issue is of course the
constitutionality of the statute or order assailed.
1. The petitioners invoke a number of
provisions of the 1987 Constitution which are, in their
assertion, violated by the continued implementation of
Section 5 (a) and (f) of Republic Act 2381, as amended,
and MECS Order No. 52, s. 1985. The provisions invoked
read as follows:
(a) Article II, Section 11: "The
state values the dignity of every human
person and guarantees full respect of
human rights.
"(b) Article II, Section 13: "The
State recognizes the vital role of the
youth in nation building and shall
promote and protect their physical,
moral, spiritual, intellectual and social
well being. It shall inculcate in the youth
patriotism and nationalism, and
encourage their involvement in public
and civic affairs.
"(c) Article II, Section 17: "The
State shall give priority to education,
science and technology, arts, culture and
sports to foster patriotism and
nationalism, accelerate social progress
and to promote total human liberation
and development.
"(d) Article XIV, Section 1: "The
State shall protect and promote the right
of all citizens to quality education at all
levels and take appropriate steps to
make such education accessible to all.
"(e) Article XIV, Section 5 (3):
"Every citizen has a right to select a
profession or course of study, subject to
fair, reasonable and equitable admission
and academic requirements."
Article II of the 1987 Constitution sets forth in
its second half certain "State policies" which the
government is enjoined to pursue and promote. The
petitioners here have not seriously undertaken to
demonstrate to what extent or in what manner the
statute and the administrative order they assail collide
with the State policies embodied in Sections 11, 13 and
17. They have not, in other words, discharged the
burden of proof which lies upon them. This burden is
heavy enough where the constitutional provision
invoked is relatively specific, rather than abstract, in
character and cast in behavioral or operational terms.
That burden of proof becomes of necessity heavier
where the constitutional provision invoked is cast, as the
second portion of Article II is cast, in language
descriptive of basic policies, or more precisely, of basic
objectives of State policy and therefore highly
generalized in tenor. The petitioners have not made their
case, even a prima facie case, and we are not compelled
to speculate and to imagine how the legislation and
regulation impugned as unconstitutional could possibly
offend the constitutional provisions pointed to by the
petitioners.
Turning to Article XIV, Section 1, of the 1987
Constitution, we note that once more petitioners have
failed to demonstrate that the statute and regulation
they assail in fact clash with that provision. On the
contrary we may note - in anticipation of
discussion infra — that the statute and the regulation
which petitioners attack are in fact designed to promote
"quality education" at the level of professional schools.
When one reads Section 1 in relation to Section 5 (3) of
Article XIV as one must one cannot but note that the
latter phrase of Section 1 is not to be read with absolute
literalness. The State is not really enjoined to take
appropriate steps to make quality education "accessible
to all who might for any number of reasons wish to
enroll in a professional school but rather merely to make
such education accessible to all who qualify under "fair,
reasonable and equitable admission and academic
requirements."
2. In the trial court, petitioners had made the
argument that Section 5 (a) and (f) of Republic Act No.
2382, as amended, offend against the constitutional
principle which forbids the undue delegation of
legislative power, by failing to establish the necessary
standard to be followed by the delegate, the Board of
Medical Education. The general principle of non-
delegation of legislative power, which both flows from
the reinforces the more fundamental rule of the
separation and allocation of powers among the three
great departments of government, 1 must be applied
with circumspection in respect of statutes which like
the Medical Act of 1959, deal with subjects as obviously
complex and technical as medical education and the
practice of medicine in our present day world. Mr.
Justice Laurel stressed this point 47 years ago
in Pangasinan Transportation Co., Inc. vs. The Public
Service Commission: 2
 "One thing, however, is apparent in
the development of the principle of
separation of powers and that is that the
maxim of delegatus non potest
delegare or delegati potestas non potest
delegare, adopted this practice (Delegibus et
Consuetudiniis Anglia edited by G.E.
Woodbine, Yale University Press, 1922, Vol. 2,
p. 167) but which is also recognized in
principle in the Roman Law (d.17.18,3) has
been made to adapt itself to the complexities
of modern government, giving rise to the
adoption, within certain limits, of the
principle of 'subordinate legislation,' not only
in the United States and England but in
practically all modern governments. (People
vs. Rosenthal and Osmena [68 Phil. 318,
1939]. Accordingly, with the growing
complexity of modern life, the multiplication
of the subjects of governmental regulation,
and the increased difficulty of administering
the laws, there is a constantly growing
tendency toward the delegation of greater
power by the legislature, and toward the
approval of the practice by the courts." 3
The standards set for subordinate legislation in
the exercise of rule making authority by an
administrative agency like the Board of Medical
Education are necessarily broad and highly abstract. As
explained by then Mr. Justice Fernando in Edu v.
Ericta 4 —
"The standard may be either expressed
or implied. If the former, the non-
delegation objection is easily met. The
standard though does not have to be
spelled out specifically. It could be implied
from the policy and purpose of the act
considered as a whole. In the Reflector
Law, clearly the legislative objective is
public safety. What is sought to be
attained as in Calalang v. Williams is 'safe
transit upon the roads.'" 5
We believe and so hold that the necessary
standards are set forth in Section 1 of the 1959 Medical
Act: "the standardization and regulation of medical
education" and in Section 5 (a) and 7 of the same Act,
the body of the statute itself, and that these considered
together are sufficient compliance with the
requirements of the non-delegation principle. LLphil
3. The petitioners also urge that the NMAT
prescribed in MECS Order No. 52, s. 1985, is an "unfair,
unreasonable and inequitable requirement," which
results in a denial of due process. Again, petitioners have
failed to specify just what factors or features of the
NMAT render it "unfair" and "unreasonable" or
"inequitable." They appear to suggest that passing the
NMAT is an unnecessary requirement when added on
top of the admission requirements set out in Section 7 of
the Medical Act of 1959, and other admission
requirements established by internal regulations of the
various medical schools, public or private. Petitioners
arguments thus appear to relate to utility and wisdom or
desirability of the NMAT requirement. But
constitutionality is essentially a question of power or
authority: this Court has neither commission or
competence to pass upon questions of the desirability or
wisdom or utility of legislation or administrative
regulation. Those questions must be addressed to the
political departments of the government not to the
courts.
There is another reason why the petitioners'
arguments must fail: the legislative and administrative
provisions impugned by them constitute, to the mind of
the Court, a valid exercise of the police power of the
state. The police power, it is commonplace learning, is
the pervasive and non-waivable power and authority of
the sovereign to secure and promote all the important
interests and needs — in a word, the public order — of
the general community. 6 An important component of
that public order is the health and physical safety and
well being of the population, the securing of which no
one can deny is a legitimate objective of governmental
effort and regulation. 7
Perhaps the only issue that needs some
consideration is whether there is some reasonable
relation between the prescribing of passing the NMAT as
a condition for admission to medical school on the one
hand, and the securing of the health and safety of the
general community, on the other hand. This question is
perhaps most usefully approached by recalling that
the regulation of the practice of medicine in all its
branches has long been recognized as a reasonable
method of protecting the health and safety of the
public. 8 That the power to regulate and control the
practice of medicine includes the power to regulate
admission to the ranks of those authorized to practice
medicine, is also well recognized. Thus, legislation and
administrative regulations requiring those who wish to
practice medicine first to take and pass medical board
examinations have long ago been recognized as valid
exercises of governmental power. 9 Similarly, the
establishment of minimum medical educational
requirements — i.e., the completion of prescribed
courses in a recognized medical school — for admission
to the medical profession, has also been sustained as a
legitimate exercise of the regulatory authority of the
state. 10 What we have before us in the instant case is
closely related; the regulation of access to medical
schools. MECS Order No. 52, s. 1985, as noted earlier,
articulates the rationale of regulation of this type: the
improvement of the professional and technical quality of
the graduates of medical schools, by upgrading the
quality of those admitted to the student body of the
medical schools. That upgrading is sought by selectivity
in the process of admission, selectivity consisting, among
other things, of limiting admission to those who exhibit
in the required degree the aptitude for medical studies
and eventually for medical practice. The need to
maintain, and the difficulties of maintaining, high
standards in our professional schools in general, and
medical schools in particular, in the current stage of our
social and economic development, are widely known.
We believe that the government is entitled to
prescribe an admission test like the NMAT as a means for
achieving its stated objective of "upgrading the selection
of applicants into [our] medical schools" and of
"improv[ing] the quality of medical education in the
country." Given the widespread use today of such changes in circumstances from year to year, may well
admission tests in, for instance, medical schools in the result in an unreasonable rigidity. The above language in
United States of America (the Medical College Admission MECS Order No. 52, far from being arbitrary or
Test [MCAT] 11 and quite probably in other countries capricious, leaves the Board of Medical Education with
with far more developed educational resources than our the measure of flexibility needed to meet circumstances
own, and taking into account the failure or inability of as they change.
the petitioners to even attempt to prove otherwise, we We conclude that prescribing the NMAT and
are entitled to hold that the NMAT is reasonably related requiring certain minimum scores therein as a condition
to the securing of the ultimate end of legislation and for admission to medical schools in the Philippines, do
regulation in this area. That end, it is useful to recall, is not constitute an unconstitutional imposition.
the protection of the public from the potentially deadly WHEREFORE, the Petition for Certiorari is
effects of incompetence and ignorance in those who DISMISSED and the Order of the respondent trial court
would undertake to treat our bodies and minds for denying the petition for a writ of preliminary injunction
disease or trauma. cdrep is AFFIRMED. Costs against petitioners.
4. Petitioners have contended, finally, that SO ORDERED.
MECS Order No. 52, s. 1985, is in conflict with the equal
||| (Tablarin v. Gutierrez, G.R. No. 78164, [July 31, 1987], 236 PHIL
protection clause of the Constitution. More specifically,
petitioners assert that portion of the MECS Order which 768-785)
provides that.
"the cutoff score for the successful applicants,
based on the scores on the NMAT, shall be
determined every year by the Board of Medical
Education after consultation with the
Association of Philippine Medical Colleges."
(Emphasis supplied).
infringes the requirements of equal protection. They
assert, in other words, that students seeking admission
during a given school year. e.g., 1987-1988, when
subjected to a different cutoff score than that
established for an, e.g., earlier school year, are
discriminated against and that this renders the MECS
Order "arbitrary and capricious." The force of this
argument is more apparent than real. Different cutoff
scores for different school years may be dictated by
differing conditions obtaining during those years. Thus,
the appropriate cutoff score for a given year may be a
function of such factors as the number of students who
have reached the cutoff score established the preceding
year; the number of places available in medical schools
during the current year; the average score attained
during the current year; the level of difficulty of the test
given during the current year, and so forth. To establish a
permanent and immutable cutoff score regardless of
EN BANC
[G.R. No. L-23825. December 24, 1965.]
EMMANUEL PELAEZ, petitioner, vs. THE
AUDITOR GENERAL, respondent.
Zulueta, Gonzales, Paculdo & Associates for petitioner.
Solicitor General for respondent.
SYLLABUS
1. ADMINISTRATIVE LAW; POWER OF PRESIDENT TO
CREATE MUNICIPALITIES. — Since January 1, 1960,
when Republic Act No. 2370 became effective, barrios may "not
be created or their boundaries altered nor their names
changed" except by Act of Congress or of the corresponding
provincial board "upon petition of a majority of the voters in
the areas affected" and the "recommendation of the council of
the municipality or municipalities in which the proposed barrio
is situated." This statutory denial of the presidential authority to
create a new barrio implies a negation of the bigger power to
create municipalities, each of which consists of several barrios.
2. ID.; ID.; NATURE OF POWER TO CREATE
MUNICIPALITIES. — Whereas the power to fix a common
boundary, in order to avoid or settle conflicts of jurisdiction
between adjoining municipalities, may partake of an
administrative nature — involving, as it does, the adoption of
means and ways to carry into effect the law creating said
municipalities — the authority to create municipal corporations
is essentially legislative in nature.
3. ID.; ID.; ID.; REQUISITES FOR VALID DELEGATION OF
POWER. — Although Congress may delegate to another branch
of the Government the power to fill in the details in the
execution, enforcement or administration of a law, it is
essential that said law: (a) be complete in itself, setting forth
therein the policy to be executed, carried out or implemented
by the delegate; and (b) fix a standard - the limits of which are
sufficiently determinate or determinable to which the delegate
must conform in the performance of his functions.
4. ID.; ID.; ID.; ID.; REQUIREMENTS OF DUE
DELEGATION OF POWER NOT MET BY SECTION 68 OF REVISED
ADMINISTRATIVE CODE. — Section 68 of the Revised
Administrative Code, insofar as it grants to the President the
power to create municipalities, does not meet the well-settled
requirements for a valid delegation of the power to fix the
details in the enforcement of a law. It does not enunciate any
policy to be carried out or implemented by the President.
5. ID.; ID.; ID.; ID.; ID.; ABDICATION OF POWERS OF
CONGRESS IN FAVOR OF THE EXECUTIVE. — If the validity of
said delegation of powers, made in Section 68 of theRevised
Administrative Code, were upheld, there would no longer be
any legal impediment to a statutory grant of authority to the
President to do anything which, in his opinion, may be required
by public welfare or public interest. Such grant of authority
would be a virtual abdication of the powers of Congress in favor
of the Executive, and would bring about a total collapse of the
democratic system established by the Constitution.
6. ID.; ID.; ID.; NATURE OF POWERS DEALT WITH IN
SECTION 68 OF THE REVISED ADMINISTRATIVE CODE. — It is
true that in Calalang vs. Williams (70 Phil., 726) andPeople vs.
Rosenthal (68 Phil., 328), this Court had upheld "public welfare"
and "public interest," respectively, as sufficient standards, for a
valid delegation of the authority to execute the law. But the
doctrine laid down in these cases must be construed in relation
to the specific facts and issues involved therein, outside of
which they do not constitute precedents and have no binding
effect. Both cases involved grants to administrative officers of
powers related to the exercise of their administrative functions,
calling for the determination of questions of fact. Such is not
the nature of the powers dealt with in Section 68 of the Revised
Administrative Code. The creation of municipalities being
essentially and eminently legislative in character, the question
whether or not "public interest" demands the exercise of such
power is not one of fact. It is purely a legislative question
(Carolina- Virginia Coastal Highway vs. Coastal Turnpike
Authority, 74 S.E. 21., 310-313, 315-318), or a political question
(Udall vs. Severn, 79 p. 2d., 347-349).
7. ID.; ID., ID.; ID.; PROOF THAT ISSUANCE OF
EXECUTIVE ORDERS IN QUESTION ENTAILS EXERCISE OF PURELY
LEGISLATIVE FUNCTIONS. — The fact that Executive Orders Nos.
93 to 121, 124 and 126 to 129, creating thirty-three
municipalities, were issued after the legislative bills for the
creation of the said municipalities had failed to pass Congress, is
the best proof that their issuance entails the exercise of purely
legislative functions.
8. ID.; ID.; ID.; POWER OF CONTROL OVER LOCAL
GOVERNMENTS. — The power of control under Section 10(a) of
Article X of the Constitution implies the right of the President to
interfere in the exercise of such discretion as may be vested by
law in the officers of the executive departments, bureaus or
offices of the national government, as well as to act in lieu of
such officers. This power is denied by the Constitution to the
Executive, insofar as local governments are concerned. With
respect to the latter, the fundamental law permits him to wield
no more authority than that of checking whether said local
governments or the officers thereof perform their duties as
provided by statutory enactments. Hence, the President cannot
interfere with local governments, so long as the same or its
officers act within the scope of their authority. He may not, for
instance, suspend an elective official of a regular municipality or
take any disciplinary action against him, except on appeal from
a decision of the corresponding provincial board. If, on the
other hand, the President could create a municipality, he could,
in effect, remove any of its officials, by creating a new
municipality and including therein the barrio in which the
official concerned resides, for his office would thereby become
vacant (Section 2179, Revised Administrative Code). Thus, by
merely brandishing the power to create a new municipality,
without actually creating it, he could compel local officials to
submit to his dictation, thereby, in effect, exercising over them
the power of control denied to him by the Constitution.
9. ID.; ID.; ID.; ID.; SECTION 68, REVISED
ADMINISTRATIVE CODE, REPEALED BY THE CONSTITUTION. —
The power of control of the President over executive
departments, bureaus or offices under Section 10 (a) of Article
X of the Constitution implies no more than the authority to
assume directly the functions thereof or to interfere in the
exercise of discretion by its officials. Manifestly, such control
does not include the authority either to abolish an executive
department or bureau, or to create a new one. As a
consequence, the alleged power of the President to create
municipal corporations would necessarily connote the exercise
by him of an authority even greater than that of control which
he has over the executive departments, bureaus or offices.
Instead of giving the President less power over local
governments than that vested in him over the executive
departments, bureaus or offices, it reverses the process and
does the exact opposite, by conferring upon him more power
over municipal corporations than that which he has over
executive departments, bureaus or offices. Even if, therefore, it
did not entail an undue delegation of legislative powers, as it
certainly does, said Section 68, as part of the Revised
 Administrative Code, approved on March 10, 1917, must be
deemed repealed by the subsequent adoption of
the Constitution in 1935, which is utterly incompatible and
inconsistent with said statutory enactment. (De los Santos vs.
Mallare, 87 Phil., 289, 298-299.)
10. ID. ID.; ID.; MUNICIPAL OFFICIALS CONCERNED
DULY REPRESENTED IN PRESENT CASE. — It is contended that
not all the proper parties have been impleaded in the present
case. Suffice it to say that the records do not show, and the
parties do not claim, that the officers of any of the
municipalities concerned have been appointed or elected and
have assumed office. At any rate, the Solicitor-General, who has
appeared on behalf of respondent Auditor General, is the
officer authorized by law "to act and represent the Government
of the Philippines, its officers and agents, in any official
investigation, proceeding or matter requiring the services of a
lawyer" (Section 1661,Revised Administrative Code), and, in
connection with the creation of the municipalities involved in
this case, which involves a political, not proprietary functions,
said local officials, if any, are mere agents or representatives of
the national government. Their interest in the case has
accordingly been duly represented. (Mangubat vs. Osmeña Jr.,
G.R. No. L-12837, April 30, 1959; City of Cebu vs. Judge Piccio,
G.R. Nos. L-13012 & L-14876, December 31, 1960.)
11. ID.; ID.; ACTION NOT PREMATURE. — The present
action cannot be said to be premature simply because
respondent Auditor General has not yet acted on any of the
executive orders in question and has not intimated how he
would act in connection therewith. It is a matter of common
knowledge that the President has for many years issued
executive orders creating municipal corporations and that the
same have been organized and are in actual operation, thus
indicating, without peradventure of doubt, that the
expenditures incidental thereto have been sanctioned,
approved or passed in audit by the General Auditing Office and
its officials. There is no reason to believe that respondent would
adopt a different policy as regards the new municipalities
involved in this case, in the absence of an allegation to such
effect, and none has been made by him.
DECISION
CONCEPCION, J p:
During the period from September 4 to October 29,
1964 the President of the Philippines, purporting to act
pursuant to Section 68 of the Revised Administrative Code,
issued Executive Orders Nos. 93 to 121, 124 and 126 to 129,
creating thirty-three (33) municipalities enumerated in the
margin. 1 Soon after the date last mentioned, or on November
10, 1964, petitioner Emmanuel Pelaez, as Vice-President of the
Philippines and as taxpayer, instituted the present special civil
action, for a writ of prohibition with preliminary injunction,
against the Auditor General, to restrain him, as well as his
representatives and agents, from passing in audit any
expenditure of public funds in implementation of said executive
orders and/or any disbursement by said municipalities.
Petitioner alleges that said executive orders are null
and void, upon the ground that said Section 68 has been
impliedly repealed by Republic Act 2370 and constitutes an
undue delegation of legislative power. Respondent maintains
the contrary view and avers that the present action is
premature and that not all proper parties — referring to the
officials of the new political subdivisions in question — have
been impleaded. Subsequently, the mayors of several
municipalities adversely affected by the aforementioned
executive orders — because the latter have taken away from
the former the barrios composing the new political subdivision
— intervened in the case. Moreover, Attorneys Enrique M.
Fernando and Emma Quisumbing-Fernando were allowed to
and did appear as amici curiae.
The third paragraph of Section 3 of Republic Act No.
2370, reads:
"Barrios shall not be created or
their boundaries altered nor their names
changed except under the provisions of
this Act or by Act of Congress.
Pursuant to the first two (2) paragraphs of the same
Section 3:
"All barrios existing at the time
of the passage of this Act shall come
under the provisions hereof.
"Upon petition of a majority of
the voters in the areas affected, a new
barrio may be created or the name of an
existing one may be changed by the
provincial board of the province, upon
recommendation of the council of the
municipality or municipalities in which
the proposed barrio is situated. The
recommendation of the municipal council
shall be embodied in a resolution
approved by at least two-thirds of the
entire membership of the said
council: Provided, however, That no new
barrio may be created if its population is
less than five hundred persons."
Hence, since January 1, 1960, when Republic Act No.
2370 became effective, barrios may "not be created or their
boundaries altered nor their names changed" except by Act of
Congress or of the corresponding provincial board "upon
petition of a majority of the voters in the areas affected" and
the "recommendation of the council of the municipality or
municipalities in which the proposed barrio is situated."
Petitioner argues, accordingly: "If the President, under this new
law, cannot even create a barrio, can he create a municipality
which is composed of several barrios, since barrios are units of
municipalities?"
Respondent answers in the affirmative, upon the
theory that a new municipality can be created without creating
new barrios, such as, by placing old barrios under the
jurisdiction of the new municipality. This theory overlooks,
however, the main import of the petitioner's argument, which
is that the statutory denial of the presidential authority to
create a new barrio implies a negation of the bigger power to
create municipalities, each of which consists of several barrios.
The cogency and force of this argument is too obvious to be
denied or even questioned. Founded upon logic and
experience, it cannot be offset except by a clear manifestation
of the intent of Congress to the contrary, and no such
manifestation, subsequent to the passage of Republic Act No.
2370. has been brought to our attention.
Moreover, section 68 of the Revised Administrative
Code, upon which the disputed executive orders are based,
provides:
"The (Governor-General)
President of the Philippines may by
executive order define the boundary, or
boundaries, of any province, sub-
province, municipality, [township]
municipal district or other political
subdivision, and increase or diminish the
 territory comprised therein, may divide
any province into one or more
subprovinces, separate any political
division other than a province, into such
portions as may be required, merge any
of such subdivisions or portions with
another, name any new subdivision so
created, and may change the seat of
government within any subdivision to
such place therein as the public welfare
may require: Provided, That the
authorization of the (Philippine
Legislature) Congress of the Philippines
shall first be obtained whenever the
boundary of any province or subprovince
is to be defined or any province is to be
divided into one or more subprovinces.
When action by the (Governor-General)
President of the Philippines in
accordance herewith makes necessary a
change of the territory under the
jurisdiction of any administrative officer
or any judicial officer, the (Governor-
General) President of the Philippines,
with the recommendation and advice of
the head of the Department having
executive control of such officer, shall
redistrict the territory of the several
officers affected and assign such officers
to the new districts so formed.
"Upon the changing of the limits
of political divisions in pursuance of the
foregoing authority, an equitable
distribution of the funds and obligations
of the divisions thereby affected shall be
made in such manner as may be
recommended by the (Insular Auditor)
Auditor General and approved by the
(Governor-General) President of the
Philippines."
Respondent alleges that the power of the President to
create municipalities under this section does not amount to an
undue delegation of legislative power, relying
upon Municipality of Cardona vs. Municipality of
Binañgonan (36 Phil. 547), which, he claims, has settled it. Such
claim is untenable, for said case involved, not the creation of a
new municipality, but a mere transfer of territory — from
an already existing municipality (Cardona) to another
municipality (Binañgonan), likewise, existing at the time of and
prior to said transfer (See Gov't of the P.I. ex rel.Municipality of
Cardona vs. Municipality of Binañgonan [34 Phil. 518, 519-520],
— in consequence of the fixing and definition, pursuant to Act
No. 1748, of the common boundaries of two municipalities.
It is obvious, however, that, whereas the power to fix
such common boundary, in order to avoid or settle conflicts of
jurisdiction between adjoining municipalities, may partake of
an administrative nature — involving, as it does, the adoption
of means and ways to carry into effect the law creating said
municipalities — the authority to createmunicipal corporations
is essentially legislative in nature. In the language of other
courts, it is "strictly a legislative function" (State ex rel. Higgins
vs. Aicklen, 119 S. 425, January 2, 1959) or "solely
and exclusively the exercise of legislative power"
(Udall vs. Severn, May 29, 1938, 79 P. 2d. 347-349). As the
Supreme Court of Washington has put it (Territory ex rel. Kelly
vs. Stewart, February 13, 1890, 23 Pac. 405, 409), "municipal
corporations are purely the creatures of statutes."
Although 1 Congress may delegate to another branch
of the government the power to fill in the details in the
execution, enforcement or administration of a law, it is
essential, to forestall a violation of the principle of separation of
powers, that said law: (a) be complete in itself — it must set
forth therein the policy to be executed, carried out or
implemented by the delegate 2 — and (b) fix a standard — the
limits of which are sufficiently determinate or determinable —
to which the delegate must conform in the performance of his
functions. 2 Indeed, without a statutory declaration of policy,
the delegate would, in effect, make or formulate such policy,
which is the essence of every law; and, without the
aforementioned standard, there would be no means to
determine, with reasonable certainty, whether the delegate has
acted within or beyond the scope of his authority. 2 Hence, he
could thereby arrogate upon himself the power, not only to
make the law, but, also — and this is worse — to unmake it, by
adopting measures inconsistent with the end sought to be
attained by the Act of Congress, thus nullifying the principle of
separation of powers and the system of checks and balances,
and, consequently undermining the very foundation of our
Republican system.
Section 68 of the Revised Administrative Code does
not meet these well settled requirements for a valid delegation
of the power to fix the details in the enforcement of a law. It
does not enunciate any policy to be carried out or implemented
by the President. Neither does it give a standard sufficiently
precise to avoid the evil effects above referred to. In this
connection, we do not overlook the fact that, under the last
clause of the first sentence of Section 68, the President:
". . . may change the seat of the
government within any subdivision to
such place therein as the public welfare
may require."
It is apparent, however, from the language of this
clause, that the phrase "as the public welfare may require"
qualifies, not the clauses preceding the one just quoted,
but only the place to which the seat of the government may be
transferred. This fact becomes more apparent when we
consider that said Section 68 was originally Section 1 of Act No.
1748, 3 which provided, that "whenever in the judgment of the
Governor-General the public welfare requires, he may, by
executive order", effect the changes enumerated therein (as
well as in said Section 68), including the change of the seat of
the government "to such place . . . as the public
interest requires". The opening statement of said Section 1
of Act No. 1748 — which was not included in Section 68 of
the Revised Administrative Code — governed the time at which,
or the conditions under which, the powers therein conferred
could be exercised; whereas the last part of the first sentence
of said section referred exclusively to the place to which the
seat of the government was to be transferred.
At any rate, the conclusion would be the same, insofar
as the case at bar is concerned, even if we assumed that the
phrase "as the public welfare may require", in said Section 68,
qualifies all other clauses thereof. It is true that in Calalang vs.
Williams (70 Phil. 726) and People vs. Rosenthal (68 Phil. 328),
this Court had upheld "public welfare" and "public interest",
respectively, as sufficient standards for a valid delegation of the
authority to execute the law. But, the doctrine laid down in
these cases — as all judicial pronouncements — must be
construed in relation to the specific facts and issues involved
therein, outside of which they do not constitute precedents and
have no binding effect. 4 The law construed in the Calalang case
conferred upon the Director of Public Works, with the approval
of the Secretary of Public Works and Communications, the
power to issue rules and regulations to promote safe
transit upon national roads and streets. Upon the other hand,
the Rosenthal case referred to the authority of the Insular
Treasurer, under Act No. 2581, to issue and cancel certificates
or permits for the sale of speculative securities. Both cases
involved grants to administrative officers of powers related to
the exercise of their administrative functions, calling for the
determination of questions of fact.
Such is not the nature of the powers dealt with in
section 68. As above indicated, the creation of municipalities,
is not an administrative function, but one which is essentially
and eminently legislative in character. The question whether or
not "public interest" demands the exercise of such power
is not one of fact. It is "purely a legislativequestion" (Carolina-
Virginia Coastal Highway vs. Coastal Turnpike Authority, 74 S.E.
2d., 310-313, 315-318), or a political question (Udall vs. Severn,
79 P. 2d. 347-349). As the Supreme Court of Wisconsin has aptly
characterized it, "the question as to whether incorporation is
for the best interest of the community in any case is
emphatically aquestion of public policy and statecraft" (In re
Village of North Milwaukee, 67 N. W. 1033, 1035-1037).
For this reason, courts of justice have annulled, as
constituting undue delegation of legislative powers, state laws
granting the judicial department the power to determine
whether certain territories should be annexed to a particular
municipality (Udall vs. Severn, supra, 358-359); or vesting in a
Commission the right to determine the plan and frame of
government of proposed villages and what functions shall be
exercised by the same, although the powers and functions of
the village are specifically limited by statute (In re Municipal
Charters, 86 Atl. 307-308); or conferring upon courts the
authority to declare a given town or village incorporated, and
designate its meter and bounds, upon petition of a majority of
the taxable inhabitants thereof, setting forth the area desired
to be included in such village (Territory ex rel Kelly vs. Stewart,
23 Pac. 405-409); or authorizing the territory of a town,
containing a given area and population, to be incorporated as a
town, on certain steps being taken by the inhabitants thereof
and on certain determination by a court and subsequent vote of
the inhabitants in favor thereof, insofar as the court is allowed
to determine whether the lands embraced in the petition
"ought justly" to be included in the village, and whether the
interest of the inhabitants will be promoted by such
incorporation, and to enlarge and diminish the boundaries of
the proposed village "as justice may require" (In re Villages of
North Milwaukee, 67 N.W. 1035-1037); or creating a Municipal
Board of Control which shall determine whether or not the
laying out, construction or operation of a toll road is in the
"public interest" and whether the requirements of the law had
been complied with, in which case the Board shall enter an
order creating a municipal corporation and fixing the name of
the same (Carolina-Virginia Coastal Highway vs. Coastal
Turnpike Authority, 74 S. E. 2d. 310).
Insofar as the validity of a delegation of power by
Congress to the President is concerned, the case of Schechter
Poultry Corporation vs. U. S. (79 L. ed. 1570) is quite relevant to
the one at bar. The Schechter case involved the
constitutionality of Section 3 of the National Industrial Recovery
Act authorizing the President of the United States to approve
"codes of fair competition" submitted to him by one or more
trade or industrial associations or corporations which "impose
no inequitable restrictions on admission to membership therein
and are truly representative," provided that such codes are not
designed "to promote monopolies or to eliminate or oppress
small enterprises and will not operate to discriminate against
them, and will tend to effectuate the policy" of said Act. The
Federal Supreme Court held:
"To summarize and conclude
upon this point: Sec. 3 of the Recovery
Act is without precedent. It supplies no
standards for any trade, industry or
activity. It does not undertake to
prescribe rules of conduct to be applied
to particular states of fact determined by
appropriate administrative procedure.
Instead of prescribing rules of conduct, it
authorizes the making of codes to
prescribe them. For that legislative
undertaking, Sec. 3 sets up no standards,
aside from the statement of the general
aims of rehabilitation, correction and
expansion described in Sec. 1. In view of
the scope of that broad declaration, and
of the nature of the few restrictions that
are imposed, the discretion of the
President in approving or prescribing
codes, and thus enacting laws for the
government of trade and industry
throughout the country, is virtually
unfettered. We think that the code-
making authority thus conferred is an
unconstitutional delegation of legislative
power."
If the term "unfair competition" is so broad as to vest
in the President a discretion that is "virtually unfettered", and,
consequently, tantamount to a delegation of legislative power,
it is obvious that "public welfare", which has even a broader
connotation, leads to the same result. In fact, if the validity of
the delegation of powers made in Section 68 were upheld,
there would no longer be any legal impediment to a statutory
grant of authority to the President to do anything which, in his
opinion, may be required by public welfare or public interest.
Such grant of authority would be a virtual abdication of the
powers of Congress in favor of the Executive, and would bring
about a total collapse of the democratic system established by
our Constitution, which it is the special duty and privilege of this
Court to uphold.
It may not be amiss to note that the executive orders in
question were issued after the legislative bills for the creation of
the municipalities involved in this case had failed to pass
Congress. A better proof of the fact that the issuance of said
executive orders entails the exercise of purely legislative
functions can hardly be given.
Again, Section 10 (1) of Article VII of our fundamental
law ordains:
"The President shall have
control of all executive departments,
bureaus or offices, exercise general
supervision over all local governments as
may be provided by law, and take care
that the laws be faithfully executed."
The power of control under this provision implies the
right of the President to interfere in the exercise of such
discretion as may be vested by law in the officers of the
executive departments, bureaus, or offices of the national
government, as well as to act in lieu of such officers. This power
is denied by the Constitution to the Executive, insofar as local
governments are concerned. With respect to the latter, the
fundamental law permits him to wield no more authority than
that of checking whether said local governments or the officers
thereof perform their duties as provided by statutory
enactments. Hence, the President cannot interfere with local
governments, so long as the same or its officers act within the
scope of their authority. He may not enact an ordinance which
the municipal council has failed or refused to pass, even if it had
thereby violated a duty imposed thereto by law, although he
may see to it that the corresponding provincial officials take
appropriate disciplinary action therefor. Neither may he veto,
set aside or annul an ordinance passed by said council within
the scope of its jurisdiction, no matter how patently unwise it
may be. He may not even suspend an elective official of a
regular municipality or take any disciplinary action against him,
except on appeal from a decision of the corresponding
provincial board. 5
Upon the other hand, if the President could create a
municipality, he could, in effect, remove any of its officials, by
creating a new municipality and including therein thebarrio in
which the official concerned resides, for his office would
thereby become vacant. 6 Thus, by merely brandishing the
power to create a new municipality (if he had it), without
actually creating it, he could compel local officials to submit to
his dictation, thereby, in effect, exercising over them the power
of control denied to him by theConstitution.
Then, also, the power of control of the President over
executive departments, bureaus or offices implies no more than
the authority to assume directly the functions thereof or to
interfere in the exercise of discretion by its officials.
Manifestly, such control does not include the authority either to
abolish an executive department or bureaus, or to create a new
one. As a consequence, the alleged power of the President to
create municipal corporations would necessarily connote the
exercise by him of an authority even greater than that of
control which he has over the executive departments, bureaus
or offices. In other words, Section 68 of the Revised
Administrative Code does not merely fail to comply with the
constitutional mandate above quoted. Instead of giving the
President less power over local governments than that vested in
him over the executive departments, bureaus or offices, it
reverses the process and does the exact opposite, by conferring
upon him more power over municipal corporations than that
which he has over said executive departments, bureaus or
offices.
In short, even if it did not entail an undue delegation of
legislative powers, as it certainly does, said Section 68, as part
of the Revised Administrative Code, approved on March 10,
1917, must be deemed repealed by the subsequent adoption of
the Constitution, in 1935, which is utterly incompatible and
inconsistent with said statutory enactment. 7
There are only two (2) other points left for
consideration, namely, respondent's claim (a) that "not all the
proper parties" — referring to the officers of the newly created
municipalities — "have been impleaded in this case", and (b)
that "the present petition is premature."
As regards the first point, suffice it to say that the
records do not show, and the parties do not claim, that the
officers of any of said municipalities have been appointed or
elected and assumed office. At any rate, the Solicitor-General,
who has appeared on behalf of respondent Auditor General, is
the officer authorized by law "to act and represent the
Government of the Philippines, its offices and agents, in any
official investigation, proceeding or matter requiring the
services of a lawyer" (Section 1661, Revised Administrative
Code), and, in connection with the creation of the
aforementioned municipalities, which involves a political, not
proprietary, function, said local officials, if any, are mere agents
or representatives of the national government. Their interest in
the case at bar has, accordingly, been, in effect, duly
represented. 8
With respect to the second point, respondent alleges
that he has not as yet acted on any of the executive order in
question and has not intimated how he would act in connection
therewith. It is however, a matter of common, public
knowledge, subject to judicial cognizance, that the President
has, for many years, issued executive orders creating municipal
corporations and that the same have been organized and in
actual operation, thus indicating, without peradventure of
doubt, that the expenditures incidental thereto have been
sanctioned, approved or passed in audit by the General
Auditing Office and its officials. There is no reason to believe,
therefore, that respondent would adopt a different policy as
regards the new municipalities involved in this case, in the
absence of an allegation to such effect, and none has been
made by him.
WHEREFORE the Executive Orders in question are
hereby declared null and void ab initio and the respondent
permanently restrained from passing in audit any expenditure
of public funds in implementation of said Executive Orders or
any disbursement by the municipalities above referred to. It is
so ordered.
Bengzon, C.J., Bautista Angelo, Reyes, J.B.L.,
Barrera and Dizon, JJ., concur.
Zaldivar, J., took no part.
Separate Opinions
BENGZON, J.P., J., concurring and dissenting:
A sign of progress in a developing nation is the rise of
new municipalities. Fostering their rapid growth has long been
the aim pursued by all three branches of our Government.
So it was that the Governor-General during the time of
the Jones Law was given authority by the legislature (Act No.
1748) to act upon certain details with respect to said local
governments, such as fixing of boundaries, subdivisions and
mergers. And the Supreme Court, within the framework of the
Jones Law, ruled in 1917 that the execution or implementation
of such details, did not entail abdication of legislative power
(Government vs. Municipality of Binangonan, 34 Phil. 518;
Municipality of Cardona vs.Municipality of Binangonan, 36 Phil.
547). Subsequently, Act No. 1748's aforesaid statutory
authorization was embodied in Section 68 of the Revised
Administrative Code. And Chief Executives since then up to the
present continued to avail of said provision, time and again
invoking it to issue executive orders providing for the creation
of municipalities.
From September 4, 1964 to October 29, 1964 the
President of the Philippines issued executive orders to create
thirty-three municipalities pursuant to Section 68 of theRevised
Administrative Code. Public funds thereby stood to be
disbursed in implementation of said executive orders.
Suing as private citizen and taxpayer, Vice-President
Emmanuel Pelaez filed in this Court a petition for prohibition
with preliminary injunction against the Auditor General. It seeks
to restrain the respondent or any person acting in his behalf,
from passing in audit any expenditure of public funds in
implementation of the executive orders aforementioned.
 Petitioner contends that the President has no power to
create a municipality by executive order. It is argued that
Section 68 of the Revised Administrative Code of 1917, so far as
it purports to grant any such power, is invalid or, at least,
already repealed in the light of the
Philippine Constitution and Republic Act 2370 (The Barrio
Charter).
Section 68 is again reproduced hereunder for
convenience:
"SEC. 68.General authority of
[Governor-General] President of the
Philippines to fix boundaries and make
new subdivisions. — The [Governor-
General] President of the Philippines may
by executive order define the boundary,
or boundaries, of any province,
subprovince, municipality, [township]
municipal district, or other political
subdivision, and increase or diminish the
territory comprised therein, may divide
any province into one or more
subprovinces, separate any political
division other than a province, into such
portions as may be required, merge any
of such subdivisions or portions with
another, name any new subdivision so
created, and may change the seat of
government within any subdivision to
such place therein as the public welfare
may require: Provided, That the
authorization of the [Philippine
Legislature] Congress of the Philippines
shall first be obtained whenever the
boundary of any province or subprovince
is to be defined or any province is to be
divided into one or more subprovinces.
When action by the [Governor- General]
President of the Philippines in
accordance herewith makes necessary a
change of the territory under the
jurisdiction of any administrative officer
or any judicial officer, the [Governor-
General] President of the Philippines,
with the recommendation and advice of
the head of the Department having
executive control of such officer, shall
redistrict the territory of the several
officers affected and assign such officers
to the new districts so formed.
"Upon the changing of the limits
of political divisions in pursuance of the
foregoing authority, an equitable
distribution of the funds and obligations
of the division thereby affected shall be
made in such manner as may be
recommended by the [Insular Auditor]
Auditor General and approved by the
[Governor-General] President of the
Philippines."
From such wording I believe that power to create a
municipality is included: to "separate any political division other
than a province, into such portions as may be required, merge
any of such subdivisions or portions with another, name any
new subdivision so created". The issue, however, is whether the
Legislature can validly delegate to the Executive such power.
The power to create a municipality is legislative in
character. American authorities have therefore favored the
view that it cannot be delegated; that what is delegable is not
the power to create municipalities but only the power to
determine the existence of facts under which creation of a
municipality will result (37 Am. Jur. 628).
The test is said to lie in whether the statute allows any
discretion on the delegate as to whether the municipal
corporation should be created. If so, there is an attempted
delegation of legislative power and the statute is invalid (Ibid).
Now Section 68 no doubt gives the President such discretion,
since it says that the President "may by executive order"
exercise the powers therein granted. Furthermore, Section 5 of
the same Code states:
"SEC. 5.Exercise of
administrative discretion. — The exercise
of the permissive powers of all executive
or administrative officers and bodies is
based upon discretion, and when such
officer or body is given authority to do
any act but not required to do such act,
the doing of the same shall be dependent
on a sound discretion to be exercised for
the good of the service and benefit of the
public, whether so expressed in the
statute giving the authority or not."
Under the prevailing rule in the United States — and
Section 68 is of American origin — the provision in question
would be an invalid attempt to delegate purely legislative
powers, contrary to the principle of separation of powers.
It is very pertinent that Section 68 should be
considered with the stream of history in mind. A proper
knowledge of the past is the only adequate background for the
present. Section 68 was adopted half a century ago. Political
change, two world wars, the recognition of our independence
and rightful place in the family of nations, have since taken
place. In 1917 the Philippines had for its Organic Act the Jones
Law. And under the set-up ordained therein no strict separation
of powers was adhered to. Consequently, Section 68 was not
constitutionally objectionable at the time of its enactment.
The advent of the Philippine Constitution in
1935 however altered the situation. For not only was
separation of power strictly ordained, except only in specific
instances therein provided, but the power of the Chief
Executive over local governments suffered an explicit reduction.
Formerly, Section 21 of the Jones Law provided that
the Governor-General "shall have general supervision and
control of all the departments and bureaus of the government
in the Philippine Islands". Now Section 10 (1), Article VII of the
Philippine Constitution provides: "The President shall have
control of all the executive departments, bureaus, or offices,
exercise general supervision over all local governments as may
be provided by law, and take care that the laws be faithfully
executed."
In short, the power of control over local governments
had now been taken away from the Chief Executive. Again, to
fully understand the significance of this provision, one must
trace its development and growth.
As early as April 7, 1900 President McKinley of the
United States, in his Instructions to the Second Philippine
Commission, laid down the policy that our municipal
governments should be "subject to the least degree of
supervision and control" on the part of the national
government. Said supervision and control was to be confined
within the "narrowest limits" or so much only as "may be
necessary to secure and enforce faithful and efficient
administration by local officers". And the national government
"shall have no direct administration except of matters of purely
general concern". (See Hebron v. Reyes, L-9158, July 28, 1958.)
All this had one aim, to enable the Filipinos to acquire
experience in the art of self-government, with the end in view
of later allowing them to assume complete management and
control of the administration of their local affairs. Such aim is
the policy now embodied in Section 10(1), Article VII of
the Constitution (Rodriguez v. Montinola, 50 O. G., 4820).
It is the evident decree of the Constitution, therefore,
that the President shall have no power of control over local
governments. Accordingly, Congress cannot by law grant him
such power (Hebron v. Reyes, supra). And any such power
formerly granted under the Jones Law thereby-became
unavoidably inconsistent with the PhilippineConstitution.
It remains to examine the relation of the power to
create and the power to control local governments. Said
relationship has already been passed upon by this Court
inHebron v. Reyes, supra. In said case, it was ruled that the
power to control is an incident of the power to create or abolish
municipalities. Respondent's view, therefore, that creating
municipalities and controlling their local governments are "two
worlds apart", is untenable. And since, as stated, the power to
control local governments can no longer be conferred on or
exercised by the President, it follows a fortiori that the power
to create them, all the more cannot be so conferred or
exercised.
I am impelled to conclude, therefore, that Section
10(1) of Article VII of the Constitution has repealed Section 68
of the Revised Administrative Code as far as the latter
empowers the President to create local governments. Repeal by
the Constitution of prior statutes inconsistent with it has
already been sustained in De los Santos vs. Mallare, 87 Phil.
289. And it was there held that such repeal differs from a
declaration of unconstitutionality of a posterior legislation, so
much so that only a majority vote of the Court is needed to
sustain a finding of repeal.
Since the Constitution repealed Section 68 as far back
as 1935, it is academic to ask whether Republic Act
2370 likewise has provisions in conflict with Section 68 so as to
repeal it. Suffice it to state, at any rate, that statutory
prohibition on the President from creating a barrio does not, in
my opinion, warrant the inference of statutory prohibition for
creating a municipality. For although municipalities consist of
barrios, there is nothing in the statute that would preclude
creation of new municipalities out of pre-existing barrios.
It is not contrary to the logic of local autonomy to be
able to create larger political units and unable to create smaller
ones. For as long ago observed in President McKinley's
Instructions to the Second Philippine Commission, greater
autonomy is to be imparted to the smaller of the two political
units. The smaller the unit of local government, the lesser is the
need for the national government's intervention in its political
affairs. Furthermore, for practical reasons, local autonomy
cannot be given from the top downwards. The national
government, in such a case, could still exercise power over the
supposedly autonomous unit, e.g., municipalities, by exercising
it over the smaller units that comprise them, e.g., the barrios. A
realistic program of decentralization therefore calls for
autonomy from the bottom upwards, so that it is not surprising
for Congress to deny the national government some power over
barrios without denying it over municipalities. For this reason, I
disagree with the majority view that because the President
could not create a barrio under Republic Act 2370, a fortiori he
cannot create a municipality.
It is my view, therefore, that the Constitution, and
not Republic Act 2370, repealed Section 68 of the Revised
Administrative Code's provision giving the President authority
to create local governments. And for this reason I agree with
the ruling in the majority opinion that the executive orders in
question are null and void.
In thus ruling, the Court is but sustaining the fulfillment
of our historic desire to be free and independent under a
republican form of government, and exercising a function
derived from the very sovereignty that it upholds.
Makalintal and Regala, JJ., concur with the opinion of
Justice J.P. Bengzon.
||| (Pelaez v. Auditor General, G.R. No. L-23825, [December 24,
1965], 122 PHIL 965-989)