CONSTI1 – SEPARATION OF POWERS – CHAPTER 6

IN RE: DESIGNATION OF JUDGE RODOLFO U. MANZANO AS MEMBER OF THE ILOCOS NORTE PROVINCIAL COMMITTEE ON JUSTICE.

PADILLA, J.:

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. Farinas, 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. In consonance 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 as 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. MANZANOJudge

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, final 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, Blacks 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 shag 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 a administrative functions, will be in violation of the Constitution, the Court is constrained to deny his request.

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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 less 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.

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, S.P-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 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.

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 water-tight 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 these 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 the act of being "designated" which is proscribed by the Constitution or is it participation in the prohibited functions? If judges cannot become members, why should they be allowed or even encouraged to assist these Committees The line drawn by the majority is vague and unrealistic.

The constitutional provision is intended to shield Judges from participating in activities which may compromise their independence or hamper their work. Studying problems involving the administration of justice and arriving at purely recommendatory solutions do not in any way involve the encroachment of. the judiciary into executive or legislative functions or into matters which are none of its concerns. Much less is it an encroachment of the other departments into judicial affairs.

As the visible representation of the law and of justice in his community, the Judge should not shy away from public activities which do not interfere with the prompt and proper performance of his office, but which, in fact, enhance his effectiveness as a Judge. He cannot stop mingling in civic intercourse or shut himself into solitary

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seclusion. The Committees on Justice will also be immensely 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 delimit 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 dependents 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.

I, therefore, dissent from the majority opinion and vote to allow Judge Rodolfo U.

Fernan C.J., Narvasa and Griño-Aquino, JJ., join in Gutierrez dissent.

MELENCIO-HERRERA, J., dissenting:

I hesitate 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 I believe is 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.

The matter of supervision by the Secretary of Justice provided for under E.O. No. 326 amending E.O. No. 856, need not be a cause for concern. That supervision is confined to Committee work and will by no means extend to the performance of judicial functions per se.

Manzano to become a member of the Ilocos Norte Provincial Committee on Justice.

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, S.P-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 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.

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 water-tight 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 these 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

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observers? Advisers? Consultants? Is it the act of being "designated" which is proscribed by the Constitution or is it participation in the prohibited functions? If judges cannot become members, why should they be allowed or even encouraged to assist these Committees The line drawn by the majority is vague and unrealistic.

The constitutional provision is intended to shield Judges from participating in activities which may compromise their independence or hamper their work. Studying problems involving the administration of justice and arriving at purely recommendatory solutions do not in any way involve the encroachment of. the judiciary into executive or legislative functions or into matters which are none of its concerns. Much less is it an encroachment of the other departments into judicial affairs.

As the visible representation of the law and of justice in his community, the Judge should not shy away from public activities which do not interfere with the prompt and proper performance of his office, but which, in fact, enhance his effectiveness as a Judge. He cannot stop mingling in civic intercourse or shut himself into solitary seclusion. The Committees on Justice will also be immensely 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 delimit 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 dependents 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.

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., join in Gutierrez dissent.

MELENCIO-HERRERA, J., dissenting:

I hesitate 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 I believe is 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.

The matter of supervision by the Secretary of Justice provided for under E.O. No. 326 amending E.O. No. 856, need not be a cause for concern. That supervision is confined to Committee work and will by no means extend to the performance of judicial functions per se.

Angara vs. Electoral Commission 63 PHIL 143

FACTS:

In the elections of Sept. 17, 1935, petitioner Jose A. Angara and the respondents Pedro Ynsua, Miguel Castillo, and Dionisio Mayor were candidates voted for the position of members of the National Assembly for the first district of Tayabas. On Oct. 7, 1935, the provincial board of canvassers proclaimed Angara as member-elect of the National Assembly and on Nov. 15, 1935, he took his oath of office.

On Dec. 3, 1935, the National Assembly passed Resolution No. 8, which in effect, fixed the last date to file election protests. On Dec. 8, 1935, Ynsua filed before the Electoral Commission a "Motion of Protest" against Angara and praying, among other things, that Ynsua be named/declared elected Member of the National Assembly or that the election of said position be nullified. On Dec. 9, 1935, the Electoral Commission adopted a resolution (No. 6) stating that last day for filing of protests is on Dec. 9.

Angara contended that the Constitution confers exclusive jurisdiction upon the Electoral Commission solely as regards the merits of contested elections to the National Assembly and the Supreme Court therefore has no jurisdiction to hear the case.

ISSUES:

(1) Whether or not the Supreme Court has jurisdiction over the Electoral Commision and the subject matter of the controversy upon the foregoing related facts, and in the affirmative,(2) Whether or not 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

RULING:

On the issue of jurisdiction of the Supreme Court

The separation of powers is a fundamental principle of a system of government. It obtains not through a single provision but by actual division in our Constitution that 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 that fact that the three powers are to be kept separate and that the Constitution intended them to be absolutely restrained 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.

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In case 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 and constituent units thereof.

As any human production, our Constitution is of course lacking perfection and perfectability, 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 the specific limitations and restrictions provided in the said instrument.

The Constitution itself has provided for the instrumentality of the judiciary as the rational way. 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. 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 respect the wisdom and justice of the people as expressed through their representatives in the executive and legislative departments of government.

In the case at bar, 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. Although the Electoral Commission may not be interfered with, when and while acting wihtin 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.

The 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."

On the issue of jurisdiction of the Electoral Commission

The creation of the Electoral Commission was designed to remedy certain errors of which the framers of our Constitution were cognizant. 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.

The Electoral Commission is a constitutional creation, invested with the necessary authority in the performance and exercise 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.

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 in the exercise of that power by the National Assembly. And thus, it is as effective a restriction upon the legislative power as an express prohibition in the Constitution.

The creation of the Electoral Commission carried with it ex necessitate rei the power regulative in character to limit the time within which protests instructed to its cognizance should be filed. 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 appears that on Dec. 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 Dec. 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.

While there might have been good reason for the legislative practice of confirmation of the election 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...", to fix the time for the filing of said election protests.

HELD:

The Electoral Commission is acting within the legitimate exercise of its constitutional prerogative in assuming to take cognizance of the protest filed by the respondent, Pedro Ynsua against he election of the herein petitioner, Jose A. Angara, and that the resolution of the National Assembly on Dec. 3, 1935, cannot in any manner toll the time for filing protest against the election, returns, and qualifications of the members of the National Assembly, nor prevent the filing of protests within such time as the rules of the Electoral Commission might prescribe

[G.R. No. L-10520 | February 28, 1957]TAÑADA vs. CUENCO

FACTS: Senate chose respondents Senators Mariano J. Cuenco and Francisco A. Delgado as members of the same Electoral Tribunal. Respondents allege 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."

RULING: 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

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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.

Secondly, although the Senate has, under the Constitution, the exclusive power to choose the Senators who shall form part of the Senate Electoral Tribunal, the fundamental law has prescribed the manner in which the authority shall be exercised. As the author of a very enlightening study on judicial self-limitation has aptly put it:

"The courts are called upon to say, on the one hand, by whom certain powers shall be exercised, and on the other hand, to determine whether the powers possessed have been validly exercised. In performing the latter function, they do not encroach upon the powers of a coordinate branch of the, government, since the determination of the validity of an act is not the same, thing as the performance of the act. In the one case we are seeking to ascertain upon whom devolves the duty of the particular service. In the other case we are merely seeking to determine whether the Constitution has been violated by anything done or attented by either an executive official or the legislative."

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. 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.

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.

As already adverted to, the objection to our jurisdiction hinges on the question whether the issue before us is political or not.

In short, the term "political question" connotes, in legal parlance, what it means in ordinary parlance, namely, a question of policy. In other words, in the language of Corpus Juris Secundum (supra), it refers to "those questions which, under the Constitution, are to be decided by the people in their sovereign capacity, or in regard to which full discretionary authority has been delegated to the Legislature or executive branch of the Government." It is concerned with issues dependent upon the wisdom, not legality, of a particular measure.

Such is not the nature of the question for determination in the present case. Here, we are called upon to decide whether the election of Senators Cuenco and Delgado, by the Senate, as members of the Senate Electoral Tribunal, upon nomination by Senator Primicias-a member and spokesman of the party having the largest number of votes in the Senate-on behalf of its Committee on Rules, contravenes the constitutional mandate that said members of the Senate Electoral Tribunal shall be chosen "upon nomination .. of the party having the second largest number of votes" in the Senate, and hence, is null and void. This is not a political question. The Senate is not clothed with "full discretionary authority" in the choice of members of the Senate Electoral Tribunal. The exercise of its power thereon is subject to constitutional limitations which are claimed to be mandatory in nature. It is clearly within the legitimate prove of the judicial department to pass upon the validity the proceedings in connection therewith.

Whether an election of public officers has been in accordance with law is for the judiciary. Moreover, where the legislative department has by statute prescribed election procedure in a given situation, the judiciary may determine whether a particular election has been in conformity with such statute, and, particularly, whether such statute has been applied in a way to deny or transgress on the constitutional or statutory rights .." (16 C.J.S., 439; emphasis supplied.).

It is, therefore, our opinion that we have, not only jurisdiction, but, also, the duty, to consider and determine the principal issue raised by the parties herein.

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 1935 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."

Petitioners maintain that said nomination and election of Senators Cuenco and Delgado-who belong to the Nacionalista Party-as members of the Senate Electoral Tribunal, are null and void and have been made without power or color of authority, for, after the nomination by said party, and the election by the Senate, of Senators Laurel, Lopez and Primicias, as members of said Tribunal, the other Senators, who shall be members thereof, must necessarily be nominated by the party having the second largest number of votes in the Senate, and such party is, admittedly, the Citizens Party, to which Senator Tañada belongs and which he represents.

Respondents allege, however, that the constitutional mandate to the effect that "each Electoral Tribunal shall be compose of nine (9) members," six (6) of whom "shall be members of the Senate or of the House of Representatives, as the case may be", is mandatory; that when-after the nomination of three (3) Senators by the majority party, and their election by the Senate, as members of the Senate Electoral Tribunal-Senator Tañada nominated himself only, on behalf of the minority party, he thereby "waived his right to no two more Senators;" that, when Senator Primicias nominated Senators Cuenco and Delgado, and these respondents were chosen by the Senate, as members of the Senate Electoral Tribunal, Said Senator Primicias and the Senate merely complied with the aforementioned provision of the fundamental law, relative to the number of members of the Senate Electoral Tribunal; and, that, accordingly, Senators Cuenco and Delgado are de jure members of said body, and the appointment of their co-respondents, Alfredo Cruz, Catalina Cayetano, Manuel Serapio and Placido Reyes is valid and lawful.

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.

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.

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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 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.

In view of the foregoing, we hold that the Senate may not elect, as members of the Senate Electoral Tribunal, those Senators who have not been nominated by the political parties specified in the Constitution; that the party having the largest number of votes in the Senate may nominate not more than three (3) members thereof to said Electoral Tribunal; that the party having the second largest number of votes in the Senate has the exclusive right to nominate the other three (3) Senators who shall sit as members in the Electoral Tribunal; that neither these three (3) Senators, nor any of them, may be nominated by a person or party other than the one having the second largest number of votes in the Senate or its representative therein; that the Committee on Rules for the Senate has no standing to validly make such nomination and that the nomination of Senators Cuenco and Delgado by Senator Primicias, and the election of said respondents by the Senate, as members of said Tribunal, are null and void ab initio.

As regards respondents Alfredo Cruz, Catalina Cayetano, Manuel Serapio and Placido Reyes, we are not prepared to hold, however, that their appointments were null and void. Although recommended by Senators Cuenco and Delgado, who are not lawful members of the Senate Electoral Tribunal, they were appointed by its Chairman, presumably, with the consent of the majority of the de jure members of said body 14 or, pursuant to the Rules thereof. At any rate, as held in Suanes vs. Chief Accountant (supra), the election of its personnel is an internal matter falling within the jurisdiction and control of said body, and there is every reason to believe that it will, hereafter take appropriate measures, in relation to the four (4) respondents abovementioned, conformably with the spirit of the Constitution and of, the decision in the case at bar.

Wherefore, judgment is hereby rendered declaring that, respondents Senators Mariano Jesus Cuenco and Francisco A. Delgado have not been duly elected as Members of the Senate Electoral Tribunal, that they are not entitled to act as such and that they should be, as they are hereby, enjoined from exercising the powers and duties of Members of said Electoral Tribunal and from acting in such capacity in connection with Senate Electoral Case No. 4 thereof. With the qualification stated above, the petition is dismissed, as regards respondents Alfredo Cruz, Catalina Cayetano, Manuel Serapio and Placido Reyes.

Sanidad vs. Commission on Elections[GR L-44640, 12 October 1976]; also Guzman vs. Comelec [GR L-44684], and Gonzales vs. Commission on Elections [GR L-44714]En Banc, Martin (J): 1 concurs in result, 4 concur in separate opinions, 2 dissent in separate opinions, 2 filed separate opinions

Facts: On 2 September 1976, President Ferdinand E. Marcos issued Presidential Decree 991 calling for a national referendum on 16 October 1976 for the Citizens Assemblies ("barangays") to resolve, among other things, the issues of martial law, the interim assembly, its replacement, the powers of such replacement, the period of its existence, the length of the period for the exercise by the President of his present powers. 20 days after or on 22 September 1976, the President issued another related decree, Presidential Decree 1031, amending the previous Presidential Decree 991, by declaring the provisions of Presidential Decree 229 providing for the manner of voting and canvass of votes in "barangays" (Citizens Assemblies) applicable to the national referendum-plebiscite of 16 October 1976. Quite relevantly, Presidential Decree 1031 repealed inter alia, Section 4, of Presidential Decree 991. On the same date of 22 September 1976, the President issued Presidential Decree 1033, stating the questions to he submitted to the people in the referendum-plebiscite on 16 October 1976. The Decree recites in its "whereas" clauses that the people's continued opposition to the convening of the interim National Assembly evinces their desire to have such body abolished and replaced thru a constitutional amendment, providing for a new interim legislative body, which will be submitted directly to the people in the referendum-plebiscite of October 16. The Commission on Elections was vested with the exclusive supervision and control of the October 1976 National Referendum-Plebiscite. On 27 September 1976, Pablo C. Sanidad and Pablito V. Sanidad, father and son, commenced L-44640 for Prohibition with Preliminary Injunction seeking to enjoin the Commission on Elections from holding and conducting the Referendum Plebiscite on October 16; to declare without force and effect Presidential Decree Nos. 991 and 1033, insofar as they propose amendments to the Constitution, as well as Presidential Decree 1031, insofar as it directs the Commission on Elections to supervise, control, hold, and conduct the Referendum-Plebiscite scheduled on 16 October 1976. They contend that under the 1935 and 1973 Constitutions there is no grant to the incumbent President to exercise the constituent power to propose amendments to the new Constitution. As a consequence, the Referendum-Plebiscite on October 16 has no constitutional or legal basis. On 30 September 1976, another action for Prohibition with Preliminary Injunction, docketed as L-44684, was instituted by Vicente M. Guzman, a delegate to the 1971 Constitutional Convention, asserting that the power to propose amendments to, or revision of the Constitution during the transition period is expressly conferred on the interim National Assembly under action 16, Article XVII of the Constitution. Still another petition for Prohibition with Preliminary Injunction was filed on 5 October 1976 by Raul M. Gonzales, his son Raul Jr., and Alfredo Salapantan, docketed as L-44714, to restrain the implementation of Presidential Decrees relative to the forthcoming Referendum-Plebiscite of October 16.

Issue: Whether the President may call upon a referendum for the amendment of the Constitution.

Held: Section 1 of Article XVI of the 1973 Constitution on Amendments ordains that "(1) Any amendment to, or revision of, this Constitution may be proposed by the National Assembly upon a vote of three-fourths of all its Members, or by a constitutional convention. (2) The National Assembly may, by a vote of two-thirds of all its Members, call a constitutional convention or, by a majority vote of all its Members, submit the question of calling such a convention to the electorate in an election." Section 2 thereof provides that "Any amendment to, or revision of, this Constitution shall be valid when ratified by a majority of the votes cast in a plebiscite which shall be held not later than three months a after the approval of such amendment or revision." In the present period of transition, the interim National Assembly instituted in the Transitory Provisions is conferred with that amending power. Section 15 of the Transitory Provisions reads "The interim National Assembly, upon special call by the interim Prime Minister, may, by a majority vote of all its Members, propose amendments to this Constitution. Such amendments shall take effect when ratified in accordance with Article Sixteen hereof." There are, therefore, two periods contemplated in the constitutional life of the nation, i.e., period of normalcy and period of transition. In times of normalcy, the amending process may be initiated by the proposals of the (1) regular National Assembly upon a vote of three-fourths of all its members; or (2) by a Constitutional Convention called by a vote of two-thirds of all the Members of the National Assembly. However the calling of a Constitutional Convention may be submitted to the electorate in an election voted upon by a majority vote of all the members of the National Assembly. In times of transition, amendments may be proposed by a majority vote of all the Members of the interim National Assembly upon special call by the interim Prime Minister. The Court in

7

Aquino v. COMELEC, had already settled that the incumbent President is vested with that prerogative of discretion as to when he shall initially convene the interim National Assembly. The Constitutional Convention intended to leave to the President the determination of the time when he shall initially convene the interim National Assembly, consistent with the prevailing conditions of peace and order in the country. When the Delegates to the Constitutional Convention voted on the Transitory Provisions, they were aware of the fact that under the same, the incumbent President was given the discretion as to when he could convene the interim National Assembly. The President's decision to defer the convening of the interim National Assembly soon found support from the people themselves. In the plebiscite of January 10-15, 1973, at which the ratification of the 1973 Constitution was submitted, the people voted against the convening of the interim National Assembly. In the referendum of 24 July 1973, the Citizens Assemblies ("bagangays") reiterated their sovereign will to withhold the convening of the interim National Assembly. Again, in the referendum of 27 February 1975, the proposed question of whether the interim National Assembly shall be initially convened was eliminated, because some of the members of Congress and delegates of the Constitutional Convention, who were deemed automatically members of the interim National Assembly, were against its inclusion since in that referendum of January, 1973 the people had already resolved against it. In sensu striciore, when the legislative arm of the state undertakes the proposals of amendment to a Constitution, that body is not in the usual function of lawmaking. It is not legislating when engaged in the amending process. Rather, it is exercising a peculiar power bestowed upon it by the fundamental charter itself. In the Philippines, that power is provided for in Article XVI of the 1973 Constitution (for the regular National Assembly) or in Section 15 of the Transitory Provisions (for the interim National Assembly). While ordinarily it is the business of the legislating body to legislate for the nation by virtue of constitutional conferment, amending of the Constitution is not legislative in character. In political science a distinction is made between constitutional content of an organic character and that of a legislative character. The distinction, however, is one of policy, not of law. Such being the case, approval of the President of any proposed amendment is a misnomer. The prerogative of the President to approve or disapprove applies only to the ordinary cases of legislation. The President has nothing to do with proposition or adoption of amendments to the Constitution.

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.

CRUZ, J.:

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.

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 Tanada 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.

8

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. Tanada 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.

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-member and spokesman of the party having the largest number of votes in the Senate-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 ...' (1 6 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:

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.

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

9

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 du 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 a reorganization 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 LINA, 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 considerably 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' (See. 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.

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 on Appointments and the six legislative seats in the House Electoral Tribunal.

It is noteworthy that when with 41 members the Liberal Party was alloted two of the seats in the Commission on Appointments, it did not express any objection. 13

Inconsistently, the petitioner is now opposed to the withdrawal from it of one seat although its original number has been cut by more than half.

10

As for the other condition suggested by the petitioner, to wit, that the party must survive in a general congressional election, the LDP has doubtless also passed that test, if only vicariously. It may even be said that as it now commands the biggest following in the House of Representatives, the party has not only survived but in fact prevailed. At any rate, that test was never laid down in Cunanan.

To summarize, then, we hold, in view of the foregoing considerations, that the issue presented to us is justiciable rather political, involving as it does the legality and not the wisdom of the act complained of, or the manner of filling the Commission on Appointments as prescribed by the Constitution. Even if the question were political in nature, it would still come within our powers of review under the expanded jurisdiction conferred upon us by Article VIII, Section 1, of the Constitution, which includes the authority to determine whether grave abuse of discretion amounting to excess or lack of jurisdiction has been committed by any branch or instrumentality of the government. As for the alleged technical flaw in the designation of the party respondent, assuming the existence of such a defect, the same may be brushed aside, conformably to existing doctrine, so that the important constitutional issue raised may be addressed. Lastly, we resolve that issue in favor of the authority of the House of Representatives to change its representation in the Commission on Appointments to reflect at any time the changes that may transpire in the political alignments of its membership. It is understood that such changes must be permanent and do not include the temporary alliances or factional divisions not involving severance of political loyalties or formal disaffiliation and permanent shifts of allegiance from one political party to another.

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 constitutional stalemate had to be resolved, there was no alternative for us except to act, and to act decisively. In doing so, of course, we are not imposing our will upon the said agencies, or substituting our discretion for theirs, but merely discharging our sworn responsibility to interpret and apply the Constitution. That is a duty we do not evade, lest we ourselves betray our oath.

WHEREFORE, the petition is DISMISSED. The temporary restraining order dated January 13, 1989, is LIFTED. The Court holds that the respondent has been validly elected as a member of the Commission on Appointments and is entitled to assume his seat in that body pursuant to Article VI, Section 18, of the Constitution. No pronouncement as to costs.

SO ORDERED.

Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Paras, Feliciano, Gancayco, Padilla, Bidin, Cows, Griño-Aquino, Medialdea and Regalado, JJ., concur.

Sarmiento, J., took no part.

Daza vs. Singson, G.R. No. 86344, Dec. 21, 1989

FACTS:

Petitioner Daza, a Liberal Party member, was given a seat in the Commission on Appointments. However, after the reorganization of the LDP, which resulted in a political realignment in the House. 24 members of the Liberal Party formally resigned and joined the LDP, thereby welling its number to 159 and correspondingly reducing their former party to only 17 members. On the basis of this development, the House revised its representation in the Commission by withdrawing the seat occupied by petitioner and giving this to the newly-formed LDP, who was represented by Respondent Singson.

ISSUES: % Whether or not the reorganization of the House representation in the Commission is based on a permanent political realignment as to warrant

petitioner’s removal therein

RULING:

In the case of Cunanan v. Tan, the Court 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 du 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 a reorganization 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'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. 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

11

members to claim all the twelve seats of the House of Representatives in the Commission on Appointments and the six legislative seats in the House Electoral Tribunal.

It is noteworthy that when with 41 members the Liberal Party was alloted two of the seats in the Commission on Appointments, it did not express any objection. Inconsistently, the petitioner is now opposed to the withdrawal from it of one seat although its original number has been cut by more than half.

As for the other condition suggested by the petitioner, to wit, that the party must survive in a general congressional election, the LDP has doubtless also passed that test, if only vicariously. It may even be said that as it now commands the biggest following in the House of Representatives, the party has not only survived but in fact prevailed. At any rate, that test was never laid down in Cunanan.

DANTE O. CASIBANG, petitioner, vs.HONORABLE NARCISO A. AQUINO, Judge of the Court of First Instance of Pangasinan, Branch XIV, and REMEGIO P. YU, respondents.

Nicanor & Bautista and Agaton D. Yaranon for petitioner.

Bince, Sevilleja, Agsalud & Associates for respondents.

MAKASIAR, J.:

Respondent Remigio P. Yu was proclaimed on November 9, 1971 as the elected Mayor of Rosales, Pangasinan in the 1971 local elections, by a plurality of 501 votes over his only rival, herein petitioner, who seasonably filed on November 24, 1971 a protest against the election of the former with the Court of First Instance of Pangasinan, on the grounds of (1) anomalies and irregularities in the appreciation, counting and consideration of votes in specified electoral precincts; (2) terrorism; (3) rampant vote buying; (4) open voting or balloting; and (5) excessive campaign expenditures and other violations of the 1971 Election Code.

Respondent Yu filed on November 29, 1971 his answer and counter-protest which petitioner answered on December 10, 1971. However, respondent Yu withdrew his counter-protest after waiving the opening and revision of the ballot boxes specified therein.

Proceedings therein continued with respect to the election protest of petitioner before the Court of First Instance of Pangasinan, Branch XIV, presided by respondent Judge, who initially took cognizance of the same as it is unquestionably a justiciable controversy.

In the meantime or on September 21, 1972, the incumbent President of the Republic of the Philippines issued Proclamation No. 1081, placing the entire country under Martial Law; and two months thereafter, more or less, or specifically on November 29, 1972, the 1971 Constitutional Convention passed and approved a Constitution to supplant the 1935 Constitution; and the same was thereafter overwhelmingly ratified by the sovereign people of the Republic of the Philippines on January 17, 1973; and on March 31, 1973, this Court declared that "there is no further judicial obstacle to the new Constitution being considered in force and effect" (Javellana vs. Executive Secretary, 50 SCRA 30 [1973]).

Thereafter or on October 10, 1973, at which time petitioner had already completed presenting his evidence and in fact had rested his case, respondent Yu moved to dismiss the election protest of petitioner on the ground that the trial court had lost jurisdiction over the same in view of the effectivity of the 1973 Constitution by reason of which — principally) Section 9 of Article XVII [Transitory Provisions] and Section 2 of Article XI — a political question has intervened in the case. Respondent Yu contended that "... the provisions in the 1935 Constitution relative to all local governments have been superseded by the 1973 Constitution. Therefore, all local government should adhere to our parliamentary form of government. This is clear in the New Constitution under its Article XI." He further submitted that local elective officials (including mayors) have no more four-year term of office. They are only in office at the pleasure of the appointing power embodied in the New Constitution, and under Section 9 of Article XVII.

Petitioner vigorously opposed the motion to dismiss, and, relying mainly on Sections 7 and 8 of Article XVII (Transitory Provisions) of the New Constitution and G.O. No. 3, contended that the New Constitution did not divest the Court of First Instance of its jurisdiction to hear and decide election protests pending before them at the time of its ratification and effectivity; that the ratification of the New Constitution and its effectivity did not automatically abolish the office and position of municipal mayor nor has it automatically cut short the tenure of the office, so as to render the issue as to who is the lawfully elected candidate to said office or position moot and academic; that election protests involve public interest such that the same must be heard until terminated and may not be dismissed on mere speculation that the office involved may have been abolished, modified or reorganized; and that the motion to dismiss was filed manifestly for delay.

Respondent Yu replied pointing out, among others, that petitioner failed to refute the issue of political question; and reiterated his stand, expanding his arguments on the political question, thus:

It is an undeniable fact that this case has its source from the 1971 elections for municipal mayoralty. Unsatisfied with the counting of votes held by the Board of Canvassers, the herein protestant filed this present case. And before the termination of the same and pending trial, the Filipino people in the exercise of their free will and sovereign capacity approved a NEW CONSTITUTION, thus a NEW FORM OF GOVERNMENT-PARLIAMENTARY IN FORM was enforced. We find this provision under Article XI of the New Constitution, which provides:

SEC. 2. The National Assembly shall enact a local government code which may not thereafter be amended except by a majority vote of all its members, defining a more responsive and accountable local government structure with an effective system of recall, allocating among the different local government units their powers, responsibilities, and resources, and providing for the qualifications, election and removal, term, salaries, powers, functions, and duties of local officials, and all other matters relating to the organization and operation of the local units. However, any change in the existing form of local government shall not take effect until ratified by a majority of the votes cast in a plebiscite called for the purpose.

It is respectfully submitted that the contention of the protestant to the effect that the New Constitution "shows that the office of the Municipal Mayor has not been abolished ... ," is not ACCURATE. Otherwise, the provisions of Section 9 of Article XVII, is meaningless.

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All officials and employees in the existing Government of the Republic shall continue in office until otherwise provided by law or decreed by the incumbent President of the Philippines, ...

In the above-quoted provision is the protection of the officials and employees working in our government, otherwise, by the force of the New Constitution they are all out of the government offices. In fact, in the case above-cited (Javellana) we are all performing our duties in accordance with the New Constitution.

Therefore, election cases of the 1935 Constitution being interwoven in the political complexion of our new Constitution should be dismissed because only those incumbent official and employees existing in the new government are protected by the transitional provisions of the New Fundamental Law of the Land. The protestant, we respectfully submit, is not covered by the provisions of Section 9 Article XVII of the Constitution. And in case he will win in this present case he has no right to hold the position of mayor of the town of Rosales, Pangasinan, because he was not then an official of the government at the time the New Constitution was approved by the Filipino People. His right if proclaimed a winner is derived from the 1935 Constitution which is changed by the Filipino people.

On December 18, 1973, the trial court, presided by respondent Judge, sustained the political question theory of respondent Yu and ordered the dismissal of the electoral protest. Thus:

There is no dispute that the Filipino people have accepted and submitted to a new Constitution to replace the 1935 Constitution, and that we are now living under its aegis and protection. ...

xxx xxx xxx

Under Section 9, Article XVII, of the new Constitution, above-quoted, only those officials and employees of the existing Government of the Republic of the Philippines like the protestee herein, are given protection and are authorized to continue in office at the pleasure of the incumbent President of the Philippines, while under Section 2 of Article XI of the new Constitution, also above-quoted, the intention of completely revamp the whole local government structure, providing for different qualifications, election and removal, term, salaries, powers, functions, and duties, is very clear. These present questions of policy, the necessity and expediency of which are outside the range of judicial review. With respect to the fate of incumbent oficials and employees in the existing Government of the Republic of the Philippines, as well as to the qualifications, election and removal, term of office, salaries, and powers of all local officials under the parliamentary form of government — these have been entrusted or delegated by the sovereign people or has reserved it to be settled by the incumbent Chief Executive or by the National Assembly with full discretionary authority therefor. As if to supplement these delegated powers, the people have also decreed in a referendum the suspension of all elections. Thus, in the United States, questions relating to what persons or organizations constituted the lawful government of a state of the Union (Luther vs. Borden, 7 How. 1, 12, L. Ed 58), and those relating to the political status of a state (Highland Farms Dairy vs. Agnew, 57 S. et 549, 300 U.S. 608, 81 L.ed 835), have been held to be political and for the judiciary to determine.

To the mind of the Court, therefore, the ratification and effectivity of the new Constitution has tainted this case with a political complexion above and beyond the power of judicial review. As fittingly commented by Mr. Justice Antonio in a separate opinion in the Javellana, et al. cases, 69 0. G. No. 36, September 3, 1973, p. 8008:

The essentially political nature of the question is at once manifest by understanding that in the final analysis, what is assailed is not merely the validity of Proclamation No. 1102 of the President, which is merely declaratory of the fact of the approval or ratification, but the legitimacy of the government. It is addressed more to the frame-work and political character of this government which now functions under the new Charter. It seeks to nullify a Constitution that is already effective. In other words, where a complete change in the fundamental law has been effected through political action, the Court whose existence is affected by such a change is, in the words of Mr. Meville Fuller Weston "precluded from passing upon the fact of change by a logical difficulty which is not to be surmounted as the change relates to the existence of a prior point in the Court's "chain of title" to its authority and "does not relate merely to a question of the horizontal distribution of powers." It involves a matter which 'the sovereign has entrusted to the so-called political departments or has reserved to be settled by its own extra-governmental action." The present Government functions under the new Constitution which has become effective through political action. Judicial power presupposes an established government and an effective constitution. If it decides at all as a court, it necessarily affirms the existence and authority of the Government under which it is exercising judicial power.

The Court is not unaware of provisions of the new Constitution, particularly Sections 7 and 8, Article XVII (Transitory Provisions) decreeing that all existing laws not inconsistent with the new Constitution shall remain operative until amended, modified, or repealed by the National Assembly, and that all courts existing at the time of the ratification of the said new Constitution shall continue and exercise their jurisdiction until otherwise provided by law in accordance with the new Constitution, and all cases pending in said courts shall be heard, tried and determined under the laws then in force. Again, to the mind of the Court, these refer to matters raised in the enforcement of existing laws or in the invocation of a court's jurisdiction which have not been "entrusted to the so-called political department or has reserved to be settled by its own extra governmental action.

Hence, this petition.

We reverse.

The thrust of the aforesaid political question theory of respondent Yu is that the 1973 Constitution, through Section 9 of Article XVII thereof, protected only those incumbents, like him, at the time of its ratification and effectivity and are the only ones authorized to continue in office and their term of office as extended now depends on the pleasure of, as the same has been entrusted or committed to, the incumbent President of the Philippines or the Legislative Department; and that Section 2 of Article XI thereof entrusted to the National Assembly the revamp of the entire local government structure by the enactment of a local government code, thus presenting a question of policy, the necessity and expediency of which are outside the range of judicial review. In short, for the respondent Judge to still continue assuming jurisdiction over the pending election protest of petitioner is for him to take cognizance of a question or policy "in regard to which full discretionary authority has been delegated to the Legislative or Executive branch of the government."

I

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.

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WE ruled:

1. That Section 9 of Article XVII of the 1973 Constitution did not render moot and academic pending election protest cases (Santos vs. Castañeda, 65 SCRA 114 [1975]; Euipilag vs. Araula, 60 SCRA 211 [1974]; Nunez vs. Averia, 57 SCRA 726 [1974]; Parades vs. Abad, L-36927, Sunga vs. Mosueda, L-37715, Valley vs. Caro, L-38331, 56 SCRA 522, [1974]).

2. That "the constitutional grant of privilege to continue in office, made by the new Constitution for the benefit of persons who were incumbent officials or employees of the Government when the new Constitution took effect, cannot be fairly construed as indiscriminately encompassing every person who at the time happened to be performing the duties of an elective office, albeit under protest or contest" and that "subject to the constraints specifically mentioned in Section 9, Article XVII of the Transitory Provisions, it neither was, nor could have been the intention of the framers of our new fundamental law to disregard and shunt aside the statutory right of a condidate for elective position who, within the time-frame prescribed in the Election Code of 1971, commenced proceedings beamed mainly at the proper determination in a judicial forum of a proclaimed candidate-elect's right to the contested office."' (Santos vs. Castañeda, supra); and We rationalized that "the Constitutional Convention could not have intended, as in fact it .did not intend, to shielf or protect those who had been unduly elected. To hold that the right of the herein private respondents to the respective offices which they are now holding, may no longer be subject to question, would be tantamount to giving a stamp of approval to what could have been an election victory characterized by fraud, threats, intimidation, vote buying, or other forms of irregularities prohibited by the Election Code to preserve inviolate the sanctity of the ballot." (Parades, Sunga and Valley cases, supra).

3. That "the right of the private respondents (protestees) to continue in office indefinitely arose not only by virtue of Section 9 of Article XVII of the New Constitution but principally from their having been proclaimed elected to their respective positions as a result of the November 8, 1971 elections. Therefore, if in fact and in law, they were not duly elected to their respective positions and consequently, have no right to hold the same, perform their functions, enjoy their privileges and emoluments, then certainly, they should not be allowed to enjoy the indefinite term of office given to them by said constitutional provision" (Parades, Sunga and Valley cases, supra).

4. That "until a subsequent law or presidential decree provides otherwise, the right of respondent (protestee) to continue as mayor rests on the legality of his election which has been protested by herein petitioner. Should the court decide adversely against 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" (Euipilag, supra).

5. That "there is a difference between the 'term' of office and the 'right' to hold an office. A 'term' of office is the period during winch an elected officer or appointee is entitled to hold office, perform its functions and enjoy its privileges and emoluments. A 'right' to hold a public office is the just and legal claim to hold and enjoy the powers and responsibilities of the office. In other words, the 'term' refers to the period, duration of length of time during which the occupant of an office is .entitled to stay therein whether such period be definite or indefinite. Hence, although Section 9, Article XVII of the New Constitution made the term of the petitioners indefinite, it did not foreclose any challenge by the herein petitioners, in an election protest, of the 'right' of the private respondents to continue holding their respective office. What has been directly affected by said constitutional provision is the 'term' to the office, although the 'right' of the incumbent to an office which he is legally holding is co-extensive with the 'term' thereof," and that "it is erroneous to conclude that under Section 9, Article XVII of the New Constitution, the term of office of the private respondents expired, and that they are now holding their respective offices under a new term. We are of the opinion that they hold their respective offices still under the term to which they have been elected, although the same is now indefinite" (Parades, Sunga and Valley cases, supra).

6. That the New Constitution recognized the continuing jurisdiction of courts of first instance to hear, try and decide election protests: "Section 7 of Article XVII of the New Constitution provides that 'all existing laws not inconsistent with this Constitution shall remain operative until amended, modified or repealed by the National Assembly. 'And there has been no amendment, modification or repeal of Section 220 of the Election Code of 1971 which gave the herein petitioners the right to file an election contest against those proclaimed elected," and "according to Section 8, Article XVII of the New Constitution 'all courts existing at the time of the ratification of this Constitution shall continue and exercise their jurisdiction until otherwise provided by law in accordance with this Constitution, and all cases pending in said courts shall be heard, tried and determined under the laws then in force.' Consequently, the Courts of First Instance presided over by the respondent-Judges should continue and exercise their jurisdiction to hear, try and decide the election protests filed by herein petitioners" (Santos, Euipilag, Nunez, Parades, Sunga and Valley cases, supra).

While under the New Constitution the Commission on Elections is now the sole judge of all contests relating to the elections, returns, and qualifications of members of the National Assembly as well as elective provincial and city officials (par. 2 of Sec. 2, Article XII-C of the 1973 Constitution), such power does not extend to electoral contests concerning municipal elective positions.

7. That General Order No. 3, issued by the President of the Philippines merely reiterated his powers under Section 9 of Article XVII of the New Constitution. The President did not intend thereby to modify the aforesaid constitutional provision (Euipilag, supra).

General Order No. 3, as amended by General Order No. 3-A, does not expressly include electoral contests of municipal elective positions as among those removed from the jurisdiction of the courts; for said General Order, after affirming the jurisdiction of the Judiciary to decide in accordance with the existing laws on criminal and civil cases, simply removes from the jurisdiction of the Civil Court certain crimes specified therein as well as the validity, legality or constitutionality of any decree, order or acts issued by the President or his duly designated representative or by public servants pursuant to his decrees and orders issued under Proclamation No. 1081.

8. That General Order No. 3 may not be invoked by the courts to avoid exercise of their jurisdiction because to do co "is nothing short of unwarranted abdication of judicial', authority, which no judge duly imbued with the implications of the paramount principle of independence of the judiciary should ever think of doing. It is unfortunate indeed that respondent Judge is apparently unaware that it is a matter of highly significant historical fact that this Court has always deemed General Order No. 3 including its amendment by General Order No. 3-A as practically inoperative even in the light of Proclamation No. 1081 of September 21, 1972 and Proclamation No. 1104 of January 17, 1973, placing the whole Philippines under martial law. While the members of the Court are not agreed on whether or not particular instances of attack against the validity of certain Presidential decrees raise political questions which the Judiciary would not interfere with, there is unanimity among Us in the view that it is for the Court rather than the Executive to determine whether or not We may take cognizance of any given case involving the validity of acts of the Executive Department purportedly under the authority of the martial law proclamations" (Lina vs. Purisima, 3 PHILAJUR 605, 610-611, 82 SCRA 344 [1978]).

II

1. In the light of the foregoing pronouncements, We hold that the electoral protest case herein involved has remained a justiciable controversy. No political question has

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ever been interwoven into this case. Nor is there any act of the incumbent President or the Legislative Department to be indirectly reviewed or interfered with if the respondent Judge decides the election protest. The term "political question" connotes what it means in ordinary parlance, namely, a question of policy. It refers to those questions which under the Constitution, are to be decided by the people in their sovereign capacity; or in regard to which full discretionary authority has been delegated to the legislative or executive branch of the government. It is concerned with issues dependent upon the wisdom, not legality, of a particular measure" (Tañada vs. Cuenco, L-1052, Feb. 28, 1957). A broader definition was advanced by U.S. Supreme Court Justice Brennan in Baker vs. Carr (369 U.S. 186 [1962]): "Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for non-judicial discretion; or the impossibility of a court's undertaking independent resolution without expressing lack of respect due coordinate branches of the government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question" (p. 217). And Chief Justice Enrique M. Fernando, then an Associate Justice, of this Court fixed the limits of the term, thus: "The term has been made applicable to controversies clearly non-judicial and therefore beyond its jurisdiction or to an issue involved in a case appropriately subject to its cognizance, as to which there has been a prior legislative or executive determination to which deference must be paid (Cf. Vera vs. Avelino, 77 Phil. 192 [1946]; Lopez vs. Roxas, L-25716, July 28, 1966, 17 SCRA 756; Gonzales vs. Commission on Elections, L-28196, Nov. 9, 1967, 21 SCRA 774). It 'has likewise been employed loosely to characterize a suit where the party proceeded against is the President or Congress, or any branch thereof (Cf. Planas vs. Gil, 67 Phil. 62 [1937]; Vera vs. Avelino, 77 Phil. 192 [1946]). If to be delimited with accuracy; 'political questions' should refer to such as would under the Constitution be decided by the people in their sovereign capacity or in regard to which full discretionary authority is vested either in the President or Congress. It is thus beyond the competence of the judiciary to pass upon. ..." (Lansang vs. Garcia, 42 SCRA 448, 504-505 [1971]).

2. The only issue in the electoral protest case dismissed by respondent Judge on the ground of political question is who between protestant — herein petitioner — and protestee — herein respondent Yu — was the duly elected mayor of Rosales, Pangasinan, and legally entitled to enjoy the rights, privileges and emoluments appurtenant thereto and to discharge the functions, duties and obligations of the position. If the protestee's election is upheld by the respondent Judge, then he continues in office; otherwise, it is the protestant, herein petitioner. That is the only consequence of a resolution of the issue therein involved — a purely justiciable question or controversy as it implies a given right, legally demandable and enforceable, an act or ommission violative of said right, and a remedy, granted or sanctioned by law, for said breach of right (Tan vs. Republic, 107 Phil. 632-633 [1960]). Before and after the ratification and effectivity of the New Constitution, the nature of the aforesaid issue as well as the consequences of its resolution by the Court, remains the same as above-stated.

3. Any judgment to be made on that issue will not in any way collide or interfere with the mandate of Section 9 of Article XVII of the New Constitution, as it will merely resolve who as between protestant and protestee is the duly elected mayor of Rosales, Pangasinan; hence, entitled to enjoy the extended term as mandated by said provision of the New Constitution. As construed by this Court, the elective officials referred to in Section 9 of Article XVII are limited to those duly elected as the right to said extended term was not personal to whosoever was incumbent at the time of the ratification and effectivity of the New Constitution. Nor would such judgment preempt, collide or interfere with the power or discretion entrusted by the New Constitution to the incumbent President or the Legislative Department, with respect to the extended term of the duly elected incumbents; because whoever between protestant and protestee is declared the duly elected mayor will be subject always to whatever action the President or the Legislative Department will take pursuant thereto.

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.

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.

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