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G.R. No. 86647 February 5, 1990

REP. VIRGILIO P. ROBLES, petitioner, vs.

HON. HOUSE OF REPRESENTATIVES ELECTORAL TRIBUNAL and ROMEO L. SANTOS, respondents.

MEDIALDEA, J.:

This is a petition for certiorari with prayer for a temporary restraining order assailing the resolutions of the House of Representatives Electoral Tribunal (HRET): 1) dated September 19, 1988 granting herein private respondent's Urgent Motion to Recall and Disregard Withdrawal of Protest, and 2) dated January 26, 1989, denying petitioner's Motion for Reconsideration.

Petitioner Virgilio Robles and private respondent Romeo Santos were candidates for the position of Congressman of the 1st district of Caloocan City in the last May 11, 1987 congressional elections. Petitioner Robles was proclaimed the winner on December 23, 1987.

On January 5, 1988, Santos filed an election protest with respondent HRET. He alleged, among others, that the elections in the 1st District of Caloocan City held last May 11, 1987 were characterized by the commission of electoral frauds and irregularities in various forms, on the day of elections, during the counting of votes and during the canvassing of the election returns. He likewise prayed for the recounting of the genuine ballots in all the 320 contested precincts (pp. 16-20, Rollo).

On January 14, 1988, petitioner filed his Answer (pp. 22-26, Rollo) to the protest. He alleged as among his affirmative defenses, the lack of residence of protestant and the late filing of his protest.

On August 15, 1988, respondent HRET issued an order setting the commencement of the revision of contested ballots on September 1,

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1988 and directed protestant Santos to identify 25% of the total contested precincts which he desires to be revised first in accordance with Section 18 of the Rules of the House of Representatives Electoral Tribunal (pp. 76-77, Rollo).

On September 7, 1988, the revision of the ballots for 75 precincts, representing the initial 25% of all the contested precincts, was terminated.

On September 8, 1988, Robles filed an Urgent Motion to Suspend Revision and on September 12, 1988, Santos filed a Motion to Withdraw Protest on the unrevised precincts (pp. 78-80, Rollo).

No action on Robles' motion to suspend revision and Santos' motion to withdraw protest on unrevised precincts were yet taken by respondent HRET when on September 14,1988, Santos filed an Urgent Motion to Recall and Disregard Withdrawal of Protest (pp. 81-85, Rollo). On September 19, 1988, Robles opposed Santos' motion to Recall and Disregard Withdrawal of Protest in an Urgent Motion to Cancel Continuation of Revision with Opposition to Motion to Recall Withdrawal (pp. 86-91, Rollo). On the same day, respondent HRET issued a resolution which, among others, granted Santos' urgent Motion to Recall and Disregard Withdrawal of Protest. The said resolution states:

House of Representatives Electoral Tribunal Case No. 43 (Romeo L. Santos vs. Virgilio P. Robles). Three pleadings are submitted for consideration by the Tribunal: (a) Protestee's "Urgent Motion to Suspend Revision," dated September 8, 1988; (b) Protestant's "Motion to Withdraw Protest on Unrevised Precincts and Motion to Set Case for Hearing," dated September 12, 1988; and (c) Protestant's Urgent Motion to Recall and Disregard Withdrawal of Protest, dated September 14, 1988.

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Upon the filing of Protestant's Motion to Withdraw Protest, the revision of ballots was stopped and such revision remains suspended until now. In view of such suspension, there is no need to act on Protestee's Motion.

The "Motion to Withdraw Protest," has been withdrawn by Protestant's later motion, and therefore need not be acted upon.

WHEREFORE, Protestee's "Urgent Motion to Suspend Revision" and Protestant's 'Motion to Withdraw Protest' are NOTED. The 'Urgent Motion to Recall and Disregard Withdrawal of Protest' is GRANTED.

The Secretary of the Tribunal is directed to schedule the resumption of the revision on September 26, 1988 and to send out the necessary notices for this purpose. (p. 84, Rollo).

On September 20,1988, Robles filed an Urgent Motion and Manifestation praying that his Urgent Motion to Cancel Revision with Opposition to Motion to Recall dated September 19, 1988 be treated as a Motion for Reconsideration of the HRET resolution of September 19, 1988 (pp. 92-94, Rollo).

On September 22, 1988, respondent HRET directed Santos to comment on Robles' "Urgent Motion to Cancel Continuation of Revision with Opposition to Motion to Recall Withdrawal" and ordered the suspension of the resumption of revision scheduled for September 26, 1988.

On January 26,1989, the House of Representatives Electoral Tribunal denied Robles' Motion for Reconsideration (pp. 109-111, Rollo). Hence, the instant petition was filed on February 1, 1989 (pp. 1-14, Rollo).

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On February 2, 1989, We required the respondent to comment within ten (10) days from notice of the petition (p. 118, Rollo). On February 9, 1989, petitioner Robles filed an Urgent Motion Reiterating Prayer for Injunction or Restraining Order (pp. 119-120, Rollo) which We Noted on February 16, 1989. Petitioner's Motion for Leave to File Reply to Comment was granted in the same resolution of February 16,1989. On February 22, 1989, petitioner filed a Supplemental Petition (p. 129, Rollo), this time questioning respondent HRET's February 16, 1989 resolution denying petitioner's motion to defer or reset revision until this Court has finally disposed of the instant petition and declaring that a partial determination pursuant to Section 18 of the House of Representatives Electoral Tribunal Rules was had with private respondent Santos making a recovery of 267 votes (see Annex "C" of Supplemental Petition, p. 138, Rollo).

It is petitioner's main contention in this petition that when private respondent Santos filed the Motion to Withdraw Protest on Unrevised Precincts and Motion to Set Case for Hearing dated September 12, 1988, respondent HRET lost its jurisdiction over the case, hence, when respondent HRET subsequently ordered the revision of the unrevised protested ballots, notwithstanding the withdrawal of the protest, it acted without jurisdiction or with grave abuse of discretion.

We do not agree with petitioner.

It is noted that upon Santos' filing of his Motion to Withdraw Protest on Unrevised Precincts on September 12, 1988, no action thereon was taken by respondent HRET Contrary to petitioner's claim that the motion to withdraw was favorably acted upon, the records show that it was only on September 19, 1988 when respondent HRET resolved said motion together with two other motions. The questioned resolution of September 19, 1988 resolved three (3) motions, namely: a) Protestee's Urgent Motion to Suspend Revision dated September 8, 1988; b) Protestant's Motion to Withdraw Protest on Unrevised Precincts and Motion to Set Case for Hearing dated September 12,

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1988; and c) Protestant's "Urgent Motion to Recall and Disregard Withdrawal of Protest," dated September 14, 1988. The resolution resolved the three (3) motions as follows:

xxx xxx xxx

WHEREFORE, Protestee's "Urgent Motion to Suspend Revision" and Protestant's 'Motion to Withdraw Protest' are NOTED. The "Urgent Motion to Recall and Disregard Withdrawal of Protest" is GRANTED.

xxx xxx xxx

The mere filing of the motion to withdraw protest on the remaining uncontested precincts, without any action on the part of respondent tribunal, does not by itself divest the tribunal of its jurisdiction over the case. Jurisdiction, once acquired, is not lost upon the instance of the parties but continues until the case is terminated (Jimenez v. Nazareno, G.R. No. L-37933, April 15, 1988, 160 SCRA 1).

We agree with respondent House of Representatives Electoral Tribunal when it held:

We cannot agree with Protestee's contention that Protestant's "Motion to Withdraw Protest on Unrevised Precincts" effectively withdrew the precincts referred to therein from the protest even before the Tribunal has acted thereon. Certainly, the Tribunal retains the authority to grant or deny the Motion, and the withdrawal becomes effective only when the Motion is granted. To hold otherwise would permit a party to deprive the Tribunal of jurisdiction already acquired.

We hold therefore that this Tribunal retains the power and the authority to grant or deny Protestant's Motion to Withdraw, if only to insure that the Tribunal retains

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sufficient authority to see to it that the will of the electorate is ascertained.

Since Protestant's "Motion to Withdraw Protest on the Unrevised Precincts" had not been acted upon by this Tribunal before it was recalled by the Protestant, it did not have the effect of removing the precincts covered thereby from the protest. If these precincts were not withdrawn from the protest, then the granting of Protestant's "Urgent Motion to Recall and Disregard Withdrawal of Protest" did not amount to allowing the refiling of protest beyond the reglementary period.

Where the court has jurisdiction over the subject matter, its orders upon all questions pertaining to the cause are orders within its jurisdiction, and however erroneous they may be, they cannot be corrected by certiorari (Santos v. Court of Appeals, G.R. No. 56614, July 28,1987,152 SCRA 378; Paramount Insurance Corp. v. Luna, G.R. No. 61404, March 16,1987,148 SCRA 564). This rule more appropriately applies to respondent HRET whose independence as a constitutional body has time and again been upheld by Us in many cases. As explained in the case of Lazatin v. The House of Representatives Electoral Tribunal and Timbol, G.R. No. 84297, December 8, 1988, thus:

The use of the word "sole" emphasizes the exclusive character of the jurisdiction conferred [Angara v. Electoral Commission, supra ,at 162]. The exercise of the Power by the Electoral Commission under the 1935 Constitution has been described as "intended to be complete and unimpaired as if it had remained originally in the legislature" [Id. at 175]. Earlier, this grant of power to the legislature was characterized by Justice Malcolm as "full, clear and complete" [Veloso v. Board of Canvassers of Leyte and Samar, 39 Phil. 886 (1919)]. Under the amended 1935 Constitution, the power was unqualifiedly reposed

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upon the Electoral Tribunal [Suanes v. Chief Accountant of the Senate, 81 Phil. 818 (1948)] and it remained as full, clear and complete as that previously granted the legislature and the Electoral Commission [ Lachica v. Yap, G.R. No. L-25379, September 25, 1968, 25 SCRA 140]. The same may be said with regard to the jurisdiction of the Electoral Tribunals under the 1987 Constitution. Thus, "judicial review of decisions or final resolutions of the House Electoral Tribunal is (thus) possible only in the exercise of this Court's so-called extraordinary jurisdiction, . . . upon a determination that the tribunal's decision or resolution was rendered without or in excess of its jurisdiction, or with grave abuse of discretion or, paraphrasing Morrera, upon a clear showing of such arbitrary and improvident use by the Tribunal of its power as constitutes a denial of due process of law, or upon a demonstration of a very clear unmitigated ERROR, manifestly constituting such a GRAVE ABUSE OF DISCRETION that there has to be a remedy for such abuse.

In the absence of any clear showing of abuse of discretion on the part of respondent tribunal in promulgating the assailed resolutions, a writ of certiorari will not issue.

Further, petitioner's objections to the resolutions issued by respondent tribunal center mainly on procedural technicalities, i.e., that the motion to withdraw, in effect, divested the HRET of jurisdiction over the electoral protest. This argument aside from being irrelevant and baseless, overlooks the essence of a public office as a public trust. The right to hold an elective office is rooted on electoral mandate, not perceived entitlement to the office. This is the reason why an electoral tribunal has been set up in order that any doubt as to right/mandate to a public office may be fully resolved vis-a-vis the popular/public will. To this end, it is important that the tribunal be allowed to

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perform its functions as a constitutional body, unhampered by technicalities or procedural play of words.

The case of Dimaporo v. Estipona (G.R. No. L-17358, May 30, 1961, 2 SCRA 282) relied upon by petitioner does not help to bolster his case because the facts attendant therein are different from the case at bar. In the said case, the motion to withdraw was favorably acted upon before the resolution thereon was questioned.

As regards petitioner's Supplemental Petition questioning respondent tribunal's resolution denying his motion to defer or reset revision of the remaining seventy-five (75) per cent of the contested precincts, the same has become academic in view of the fact that the revision was resumed on February 20, 1989 and was terminated on March 2, 1989 (Private Respondent's Memorandum, p. 208, Rollo). This fact was not rebutted by petitioner.

The allegation of petitioner that he was deprived of due process when respondent tribunal rendered a partial determination pursuant to Section 18 of the HRET rules and found that Santos made a recovery of 267 votes after the revision of the first twenty-five per cent of the contested precincts has likewise, no basis. The partial determination was arrived at only by a simple addition of the votes adjudicated to each party in the revision of which both parties were properly represented.

It would not be amiss to state at this point that "an election protest is impressed with public interest in the sense that the public is interested in knowing what happened in the elections" (Dimaporo v. Estipona, supra.), for this reason, private interests must yield to what is for the common good.

ACCORDINGLY, finding no grave abuse of discretion on the part of respondent House of Representatives Electoral Tribunal in issuing the assailed resolutions, the instant petition is DISMISSED.

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G.R. No. L-45081 July 15, 1936

JOSE A. ANGARA, petitioner, vs.

THE ELECTORAL COMMISSION, PEDRO YNSUA, MIGUEL CASTILLO, and DIONISIO C. MAYOR,respondents.

LAUREL, J.:

This is an original action instituted in this court by the petitioner, Jose A. Angara, for the issuance of a writ of prohibition to restrain and prohibit the Electoral Commission, one of the respondents, from taking further cognizance of the protest filed by Pedro Ynsua, another respondent, against the election of said petitioner as member of the National Assembly for the first assembly district of the Province of Tayabas.

The facts of this case as they appear in the petition and as admitted by the respondents are as follows:

(1) That in the elections of September 17, 1935, the petitioner, Jose A. Angara, and the respondents, Pedro Ynsua, Miguel Castillo and Dionisio Mayor, were candidates voted for the position of member of the National Assembly for the first district of the Province of Tayabas;

(2) That on October 7, 1935, the provincial board of canvassers, proclaimed the petitioner as member-elect of the National Assembly for the said district, for having received the most number of votes;

(3) That on November 15, 1935, the petitioner took his oath of office;

(4) That on December 3, 1935, the National Assembly in session assembled, passed the following resolution:

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[No. 8]

RESOLUCION CONFIRMANDO LAS ACTAS DE AQUELLOS DIPUTADOS CONTRA QUIENES NO SE HA PRESENTADO PROTESTA.

Se resuelve: Que las actas de eleccion de los Diputados contra quienes no se hubiere presentado debidamente una protesta antes de la adopcion de la presente resolucion sean, como por la presente, son aprobadas y confirmadas.

Adoptada, 3 de diciembre, 1935.

(5) That on December 8, 1935, the herein respondent Pedro Ynsua filed before the Electoral Commission a "Motion of Protest" against the election of the herein petitioner, Jose A. Angara, being the only protest filed after the passage of Resolutions No. 8 aforequoted, and praying, among other-things, that said respondent be declared elected member of the National Assembly for the first district of Tayabas, or that the election of said position be nullified;

(6) That on December 9, 1935, the Electoral Commission adopted a resolution, paragraph 6 of which provides:

6. La Comision no considerara ninguna protesta que no se haya presentado en o antes de este dia.

(7) That on December 20, 1935, the herein petitioner, Jose A. Angara, one of the respondents in the aforesaid protest, filed before the Electoral Commission a "Motion to Dismiss the Protest", alleging (a) that Resolution No. 8 of Dismiss the Protest", alleging (a) that Resolution No. 8 of the National Assembly was adopted in the legitimate exercise of its constitutional prerogative to prescribe the period during which protests against the election of its members should be presented;

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(b) that the aforesaid resolution has for its object, and is the accepted formula for, the limitation of said period; and (c) that the protest in question was filed out of the prescribed period;

(8) That on December 27, 1935, the herein respondent, Pedro Ynsua, filed an "Answer to the Motion of Dismissal" alleging that there is no legal or constitutional provision barring the presentation of a protest against the election of a member of the National Assembly after confirmation;

(9) That on December 31, 1935, the herein petitioner, Jose A. Angara, filed a "Reply" to the aforesaid "Answer to the Motion of Dismissal";

(10) That the case being submitted for decision, the Electoral Commission promulgated a resolution on January 23, 1936, denying herein petitioner's "Motion to Dismiss the Protest."

The application of the petitioner sets forth the following grounds for the issuance of the writ prayed for:

(a) That the Constitution confers exclusive jurisdiction upon the electoral Commission solely as regards the merits of contested elections to the National Assembly;

(b) That the Constitution excludes from said jurisdiction the power to regulate the proceedings of said election contests, which power has been reserved to the Legislative Department of the Government or the National Assembly;

(c) That like the Supreme Court and other courts created in pursuance of the Constitution, whose exclusive jurisdiction relates solely to deciding the merits of controversies submitted to them for decision and to matters involving their internal organization, the Electoral Commission can regulate its

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proceedings only if the National Assembly has not availed of its primary power to so regulate such proceedings;

(d) That Resolution No. 8 of the National Assembly is, therefore, valid and should be respected and obeyed;

(e) That under paragraph 13 of section 1 of the ordinance appended to the Constitution and paragraph 6 of article 7 of the Tydings-McDuffie Law (No. 127 of the 73rd Congress of the United States) as well as under section 1 and 3 (should be sections 1 and 2) of article VIII of the Constitution, this Supreme Court has jurisdiction to pass upon the fundamental question herein raised because it involves an interpretation of the Constitution of the Philippines.

On February 25, 1936, the Solicitor-General appeared and filed an answer in behalf of the respondent Electoral Commission interposing the following special defenses:

(a) That the Electoral Commission has been created by the Constitution as an instrumentality of the Legislative Department invested with the jurisdiction to decide "all contests relating to the election, returns, and qualifications of the members of the National Assembly"; that in adopting its resolution of December 9, 1935, fixing this date as the last day for the presentation of protests against the election of any member of the National Assembly, it acted within its jurisdiction and in the legitimate exercise of the implied powers granted it by the Constitution to adopt the rules and regulations essential to carry out the power and functions conferred upon the same by the fundamental law; that in adopting its resolution of January 23, 1936, overruling the motion of the petitioner to dismiss the election protest in question, and declaring itself with jurisdiction to take cognizance of said protest, it acted in the legitimate exercise of its quasi-judicial functions a an instrumentality of the Legislative

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Department of the Commonwealth Government, and hence said act is beyond the judicial cognizance or control of the Supreme Court;

(b) That the resolution of the National Assembly of December 3, 1935, confirming the election of the members of the National Assembly against whom no protest had thus far been filed, could not and did not deprive the electoral Commission of its jurisdiction to take cognizance of election protests filed within the time that might be set by its own rules:

(c) That the Electoral Commission is a body invested with quasi-judicial functions, created by the Constitution as an instrumentality of the Legislative Department, and is not an "inferior tribunal, or corporation, or board, or person" within the purview of section 226 and 516 of the Code of Civil Procedure, against which prohibition would lie.

The respondent Pedro Ynsua, in his turn, appeared and filed an answer in his own behalf on March 2, 1936, setting forth the following as his special defense:

(a) That at the time of the approval of the rules of the Electoral Commission on December 9, 1935, there was no existing law fixing the period within which protests against the election of members of the National Assembly should be filed; that in fixing December 9, 1935, as the last day for the filing of protests against the election of members of the National Assembly, the Electoral Commission was exercising a power impliedly conferred upon it by the Constitution, by reason of its quasi-judicial attributes;

(b) That said respondent presented his motion of protest before the Electoral Commission on December 9, 1935, the last day fixed by paragraph 6 of the rules of the said Electoral Commission;

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(c) That therefore the Electoral Commission acquired jurisdiction over the protest filed by said respondent and over the parties thereto, and the resolution of the Electoral Commission of January 23, 1936, denying petitioner's motion to dismiss said protest was an act within the jurisdiction of the said commission, and is not reviewable by means of a writ of prohibition;

(d) That neither the law nor the Constitution requires confirmation by the National Assembly of the election of its members, and that such confirmation does not operate to limit the period within which protests should be filed as to deprive the Electoral Commission of jurisdiction over protest filed subsequent thereto;

(e) That the Electoral Commission is an independent entity created by the Constitution, endowed with quasi-judicial functions, whose decision are final and unappealable;

( f ) That the electoral Commission, as a constitutional creation, is not an inferior tribunal, corporation, board or person, within the terms of sections 226 and 516 of the Code of Civil Procedure; and that neither under the provisions of sections 1 and 2 of article II (should be article VIII) of the Constitution and paragraph 13 of section 1 of the Ordinance appended thereto could it be subject in the exercise of its quasi-judicial functions to a writ of prohibition from the Supreme Court;

(g) That paragraph 6 of article 7 of the Tydings-McDuffie Law (No. 127 of the 73rd Congress of the united States) has no application to the case at bar.

The case was argued before us on March 13, 1936. Before it was submitted for decision, the petitioner prayed for the issuance of a preliminary writ of injunction against the respondent Electoral Commission which petition was denied "without passing upon the merits of the case" by resolution of this court of March 21, 1936.

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There was no appearance for the other respondents.

The issues to be decided in the case at bar may be reduced to the following two principal propositions:

1. Has the Supreme Court jurisdiction over the Electoral Commission and the subject matter of the controversy upon the foregoing related facts, and in the affirmative,

2. Has the said Electoral Commission acted without or in excess of its jurisdiction in assuming to the cognizance of the protest filed the election of the herein petitioner notwithstanding the previous confirmation of such election by resolution of the National Assembly?

We could perhaps dispose of this case by passing directly upon the merits of the controversy. However, the question of jurisdiction having been presented, we do not feel justified in evading the issue. Being a case primæ impressionis, it would hardly be consistent with our sense of duty to overlook the broader aspect of the question and leave it undecided. Neither would we be doing justice to the industry and vehemence of counsel were we not to pass upon the question of jurisdiction squarely presented to our consideration.

The separation of powers is a fundamental principle in our system of government. It obtains not through express provision but by actual division in our Constitution. Each department of the government has exclusive cognizance of matters within its jurisdiction, and is supreme within its own sphere. But it does not follow from the fact that the three powers are to be kept separate and distinct that the Constitution intended them to be absolutely unrestrained and independent of each other. The Constitution has provided for an elaborate system of checks and balances to secure coordination in the workings of the various departments of the government. For example, the Chief Executive under our Constitution is so far made a check on the legislative power that this assent is required in the enactment of laws.

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This, however, is subject to the further check that a bill may become a law notwithstanding the refusal of the President to approve it, by a vote of two-thirds or three-fourths, as the case may be, of the National Assembly. The President has also the right to convene the Assembly in special session whenever he chooses. On the other hand, the National Assembly operates as a check on the Executive in the sense that its consent through its Commission on Appointments is necessary in the appointments of certain officers; and the concurrence of a majority of all its members is essential to the conclusion of treaties. Furthermore, in its power to determine what courts other than the Supreme Court shall be established, to define their jurisdiction and to appropriate funds for their support, the National Assembly controls the judicial department to a certain extent. The Assembly also exercises the judicial power of trying impeachments. And the judiciary in turn, with the Supreme Court as the final arbiter, effectively checks the other departments in the exercise of its power to determine the law, and hence to declare executive and legislative acts void if violative of the Constitution.

But in the main, the Constitution has blocked out with deft strokes and in bold lines, allotment of power to the executive, the legislative and the judicial departments of the government. The overlapping and interlacing of functions and duties between the several departments, however, sometimes makes it hard to say just where the one leaves off and the other begins. In times of social disquietude or political excitement, the great landmarks of the Constitution are apt to be forgotten or marred, if not entirely obliterated. In cases of conflict, the judicial department is the only constitutional organ which can be called upon to determine the proper allocation of powers between the several departments and among the integral or constituent units thereof.

As any human production, our Constitution is of course lacking perfection and perfectibility, but as much as it was within the power of our people, acting through their delegates to so provide, that

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instrument which is the expression of their sovereignty however limited, has established a republican government intended to operate and function as a harmonious whole, under a system of checks and balances, and subject to specific limitations and restrictions provided in the said instrument. The Constitution sets forth in no uncertain language the restrictions and limitations upon governmental powers and agencies. If these restrictions and limitations are transcended it would be inconceivable if the Constitution had not provided for a mechanism by which to direct the course of government along constitutional channels, for then the distribution of powers would be mere verbiage, the bill of rights mere expressions of sentiment, and the principles of good government mere political apothegms. Certainly, the limitation and restrictions embodied in our Constitution are real as they should be in any living constitution. In the United States where no express constitutional grant is found in their constitution, the possession of this moderating power of the courts, not to speak of its historical origin and development there, has been set at rest by popular acquiescence for a period of more than one and a half centuries. In our case, this moderating power is granted, if not expressly, by clear implication from section 2 of article VIII of our constitution.

The Constitution is a definition of the powers of government. Who is to determine the nature, scope and extent of such powers? The Constitution itself has provided for the instrumentality of the judiciary as the rational way. And when the judiciary mediates to allocate constitutional boundaries, it does not assert any superiority over the other departments; it does not in reality nullify or invalidate an act of the legislature, but only asserts the solemn and sacred obligation assigned to it by the Constitution to determine conflicting claims of authority under the Constitution and to establish for the parties in an actual controversy the rights which that instrument secures and guarantees to them. This is in truth all that is involved in what is termed "judicial supremacy" which properly is the power of judicial review under the Constitution. Even then, this power of

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judicial review is limited to actual cases and controversies to be exercised after full opportunity of argument by the parties, and limited further to the constitutional question raised or the very lis mota presented. Any attempt at abstraction could only lead to dialectics and barren legal questions and to sterile conclusions unrelated to actualities. Narrowed as its function is in this manner, the judiciary does not pass upon questions of wisdom, justice or expediency of legislation. More than that, courts accord the presumption of constitutionality to legislative enactments, not only because the legislature is presumed to abide by the Constitution but also because the judiciary in the determination of actual cases and controversies must reflect the wisdom and justice of the people as expressed through their representatives in the executive and legislative departments of the governments of the government.

But much as we might postulate on the internal checks of power provided in our Constitution, it ought not the less to be remembered that, in the language of James Madison, the system itself is not "the chief palladium of constitutional liberty . . . the people who are authors of this blessing must also be its guardians . . . their eyes must be ever ready to mark, their voice to pronounce . . . aggression on the authority of their constitution." In the Last and ultimate analysis, then, must the success of our government in the unfolding years to come be tested in the crucible of Filipino minds and hearts than in consultation rooms and court chambers.

In the case at bar, the national Assembly has by resolution (No. 8) of December 3, 1935, confirmed the election of the herein petitioner to the said body. On the other hand, the Electoral Commission has by resolution adopted on December 9, 1935, fixed said date as the last day for the filing of protests against the election, returns and qualifications of members of the National Assembly, notwithstanding the previous confirmation made by the National Assembly as aforesaid. If, as contended by the petitioner, the resolution of the National Assembly has the effect of cutting off the power of the

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Electoral Commission to entertain protests against the election, returns and qualifications of members of the National Assembly, submitted after December 3, 1935, then the resolution of the Electoral Commission of December 9, 1935, is mere surplusage and had no effect. But, if, as contended by the respondents, the Electoral Commission has the sole power of regulating its proceedings to the exclusion of the National Assembly, then the resolution of December 9, 1935, by which the Electoral Commission fixed said date as the last day for filing protests against the election, returns and qualifications of members of the National Assembly, should be upheld.

Here is then presented an actual controversy involving as it does a conflict of a grave constitutional nature between the National Assembly on the one hand, and the Electoral Commission on the other. From the very nature of the republican government established in our country in the light of American experience and of our own, upon the judicial department is thrown the solemn and inescapable obligation of interpreting the Constitution and defining constitutional boundaries. The Electoral Commission, as we shall have occasion to refer hereafter, is a constitutional organ, created for a specific purpose, namely to determine all contests relating to the election, returns and qualifications of the members of the National Assembly. Although the Electoral Commission may not be interfered with, when and while acting within the limits of its authority, it does not follow that it is beyond the reach of the constitutional mechanism adopted by the people and that it is not subject to constitutional restrictions. The Electoral Commission is not a separate department of the government, and even if it were, conflicting claims of authority under the fundamental law between department powers and agencies of the government are necessarily determined by the judiciary in justifiable and appropriate cases. Discarding the English type and other European types of constitutional government, the framers of our constitution adopted the American type where the written constitution is interpreted and given effect by the judicial department. In some countries which have declined to follow the American

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example, provisions have been inserted in their constitutions prohibiting the courts from exercising the power to interpret the fundamental law. This is taken as a recognition of what otherwise would be the rule that in the absence of direct prohibition courts are bound to assume what is logically their function. For instance, the Constitution of Poland of 1921, expressly provides that courts shall have no power to examine the validity of statutes (art. 81, chap. IV). The former Austrian Constitution contained a similar declaration. In countries whose constitutions are silent in this respect, courts have assumed this power. This is true in Norway, Greece, Australia and South Africa. Whereas, in Czechoslovakia (arts. 2 and 3, Preliminary Law to constitutional Charter of the Czechoslovak Republic, February 29, 1920) and Spain (arts. 121-123, Title IX, Constitutional of the Republic of 1931) especial constitutional courts are established to pass upon the validity of ordinary laws. In our case, the nature of the present controversy shows the necessity of a final constitutional arbiter to determine the conflict of authority between two agencies created by the Constitution. Were we to decline to take cognizance of the controversy, who will determine the conflict? And if the conflict were left undecided and undetermined, would not a void be thus created in our constitutional system which may be in the long run prove destructive of the entire framework? To ask these questions is to answer them. Natura vacuum abhorret, so must we avoid exhaustion in our constitutional system. Upon principle, reason and authority, we are clearly of the opinion that upon the admitted facts of the present case, this court has jurisdiction over the Electoral Commission and the subject mater of the present controversy for the purpose of determining the character, scope and extent of the constitutional grant to the Electoral Commission as "the sole judge of all contests relating to the election, returns and qualifications of the members of the National Assembly."

Having disposed of the question of jurisdiction, we shall now proceed to pass upon the second proposition and determine whether the Electoral Commission has acted without or in excess of its jurisdiction

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in adopting its resolution of December 9, 1935, and in assuming to take cognizance of the protest filed against the election of the herein petitioner notwithstanding the previous confirmation thereof by the National Assembly on December 3, 1935. As able counsel for the petitioner has pointed out, the issue hinges on the interpretation of section 4 of Article VI of the Constitution which provides:

"SEC. 4. There shall be an Electoral Commission composed of three Justice of the Supreme Court designated by the Chief Justice, and of six Members chosen by the National Assembly, three of whom shall be nominated by the party having the largest number of votes, and three by the party having the second largest number of votes therein. The senior Justice in the Commission shall be its Chairman. The Electoral Commission shall be the sole judge of all contests relating to the election, returns and qualifications of the members of the National Assembly." It is imperative, therefore, that we delve into the origin and history of this constitutional provision and inquire into the intention of its framers and the people who adopted it so that we may properly appreciate its full meaning, import and significance.

The original provision regarding this subject in the Act of Congress of July 1, 1902 (sec. 7, par. 5) laying down the rule that "the assembly shall be the judge of the elections, returns, and qualifications of its members", was taken from clause 1 of section 5, Article I of the Constitution of the United States providing that "Each House shall be the Judge of the Elections, Returns, and Qualifications of its own Members, . . . ." The Act of Congress of August 29, 1916 (sec. 18, par. 1) modified this provision by the insertion of the word "sole" as follows: "That the Senate and House of Representatives, respectively, shall be the sole judges of the elections, returns, and qualifications of their elective members . . ." apparently in order to emphasize the exclusive the Legislative over the particular case s therein specified. This court has had occasion to characterize this grant of power to the Philippine Senate and House of Representatives, respectively, as "full, clear and

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complete" (Veloso vs. Boards of Canvassers of Leyte and Samar [1919], 39 Phil., 886, 888.)

The first step towards the creation of an independent tribunal for the purpose of deciding contested elections to the legislature was taken by the sub-committee of five appointed by the Committee on Constitutional Guarantees of the Constitutional Convention, which sub-committee submitted a report on August 30, 1934, recommending the creation of a Tribunal of Constitutional Security empowered to hear legislature but also against the election of executive officers for whose election the vote of the whole nation is required, as well as to initiate impeachment proceedings against specified executive and judicial officer. For the purpose of hearing legislative protests, the tribunal was to be composed of three justices designated by the Supreme Court and six members of the house of the legislature to which the contest corresponds, three members to be designed by the majority party and three by the minority, to be presided over by the Senior Justice unless the Chief Justice is also a member in which case the latter shall preside. The foregoing proposal was submitted by the Committee on Constitutional Guarantees to the Convention on September 15, 1934, with slight modifications consisting in the reduction of the legislative representation to four members, that is, two senators to be designated one each from the two major parties in the Senate and two representatives to be designated one each from the two major parties in the House of Representatives, and in awarding representation to the executive department in the persons of two representatives to be designated by the President.

Meanwhile, the Committee on Legislative Power was also preparing its report. As submitted to the Convention on September 24, 1934 subsection 5, section 5, of the proposed Article on the Legislative Department, reads as follows:

The elections, returns and qualifications of the members of either house and all cases contesting the election of any of their

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members shall be judged by an Electoral Commission, constituted, as to each House, by three members elected by the members of the party having the largest number of votes therein, three elected by the members of the party having the second largest number of votes, and as to its Chairman, one Justice of the Supreme Court designated by the Chief Justice.

The idea of creating a Tribunal of Constitutional Security with comprehensive jurisdiction as proposed by the Committee on Constitutional Guarantees which was probably inspired by the Spanish plan (art. 121, Constitution of the Spanish Republic of 1931), was soon abandoned in favor of the proposition of the Committee on Legislative Power to create a similar body with reduced powers and with specific and limited jurisdiction, to be designated as a Electoral Commission. The Sponsorship Committee modified the proposal of the Committee on Legislative Power with respect to the composition of the Electoral Commission and made further changes in phraseology to suit the project of adopting a unicameral instead of a bicameral legislature. The draft as finally submitted to the Convention on October 26, 1934, reads as follows:

(6) The elections, returns and qualifications of the Members of the National Assembly and all cases contesting the election of any of its Members shall be judged by an Electoral Commission, composed of three members elected by the party having the largest number of votes in the National Assembly, three elected by the members of the party having the second largest number of votes, and three justices of the Supreme Court designated by the Chief Justice, the Commission to be presided over by one of said justices.

During the discussion of the amendment introduced by Delegates Labrador, Abordo, and others, proposing to strike out the whole subsection of the foregoing draft and inserting in lieu thereof the following: "The National Assembly shall be the soled and exclusive

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judge of the elections, returns, and qualifications of the Members", the following illuminating remarks were made on the floor of the Convention in its session of December 4, 1934, as to the scope of the said draft:

x x x x x x x x x

Mr. VENTURA. Mr. President, we have a doubt here as to the scope of the meaning of the first four lines, paragraph 6, page 11 of the draft, reading: "The elections, returns and qualifications of the Members of the National Assembly and all cases contesting the election of any of its Members shall be judged by an Electoral Commission, . . ." I should like to ask from the gentleman from Capiz whether the election and qualification of the member whose elections is not contested shall also be judged by the Electoral Commission.

Mr. ROXAS. If there is no question about the election of the members, there is nothing to be judged; that is why the word "judge" is used to indicate a controversy. If there is no question about the election of a member, there is nothing to be submitted to the Electoral Commission and there is nothing to be determined.

Mr. VENTURA. But does that carry the idea also that the Electoral Commission shall confirm also the election of those whose election is not contested?

Mr. ROXAS. There is no need of confirmation. As the gentleman knows, the action of the House of Representatives confirming the election of its members is just a matter of the rules of the assembly. It is not constitutional. It is not necessary. After a man files his credentials that he has been elected, that is sufficient, unless his election is contested.

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Mr. VENTURA. But I do not believe that that is sufficient, as we have observed that for purposes of the auditor, in the matter of election of a member to a legislative body, because he will not authorize his pay.

Mr. ROXAS. Well, what is the case with regards to the municipal president who is elected? What happens with regards to the councilors of a municipality? Does anybody confirm their election? The municipal council does this: it makes a canvass and proclaims — in this case the municipal council proclaims who has been elected, and it ends there, unless there is a contest. It is the same case; there is no need on the part of the Electoral Commission unless there is a contest. The first clause refers to the case referred to by the gentleman from Cavite where one person tries to be elected in place of another who was declared elected. From example, in a case when the residence of the man who has been elected is in question, or in case the citizenship of the man who has been elected is in question.

However, if the assembly desires to annul the power of the commission, it may do so by certain maneuvers upon its first meeting when the returns are submitted to the assembly. The purpose is to give to the Electoral Commission all the powers exercised by the assembly referring to the elections, returns and qualifications of the members. When there is no contest, there is nothing to be judged.

Mr. VENTURA. Then it should be eliminated.

Mr. ROXAS. But that is a different matter, I think Mr. Delegate.

Mr. CINCO. Mr. President, I have a similar question as that propounded by the gentleman from Ilocos Norte when I arose a while ago. However I want to ask more questions from the delegate from Capiz. This paragraph 6 on page 11 of the draft cites cases contesting the election as separate from the first part

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of the sections which refers to elections, returns and qualifications.

Mr. ROXAS. That is merely for the sake of clarity. In fact the cases of contested elections are already included in the phrase "the elections, returns and qualifications." This phrase "and contested elections" was inserted merely for the sake of clarity.

Mr. CINCO. Under this paragraph, may not the Electoral Commission, at its own instance, refuse to confirm the elections of the members."

Mr. ROXAS. I do not think so, unless there is a protest.

Mr. LABRADOR. Mr. President, will the gentleman yield?

THE PRESIDENT. The gentleman may yield, if he so desires.

Mr. ROXAS. Willingly.

Mr. LABRADOR. Does not the gentleman from Capiz believe that unless this power is granted to the assembly, the assembly on its own motion does not have the right to contest the election and qualification of its members?

Mr. ROXAS. I have no doubt but that the gentleman is right. If this draft is retained as it is, even if two-thirds of the assembly believe that a member has not the qualifications provided by law, they cannot remove him for that reason.

Mr. LABRADOR. So that the right to remove shall only be retained by the Electoral Commission.

Mr. ROXAS. By the assembly for misconduct.

Mr. LABRADOR. I mean with respect to the qualifications of the members.

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Mr. ROXAS. Yes, by the Electoral Commission.

Mr. LABRADOR. So that under this draft, no member of the assembly has the right to question the eligibility of its members?

Mr. ROXAS. Before a member can question the eligibility, he must go to the Electoral Commission and make the question before the Electoral Commission.

Mr. LABRADOR. So that the Electoral Commission shall decide whether the election is contested or not contested.

Mr. ROXAS. Yes, sir: that is the purpose.

Mr. PELAYO. Mr. President, I would like to be informed if the Electoral Commission has power and authority to pass upon the qualifications of the members of the National Assembly even though that question has not been raised.

Mr. ROXAS. I have just said that they have no power, because they can only judge.

In the same session, the first clause of the aforesaid draft reading "The election, returns and qualifications of the members of the National Assembly and" was eliminated by the Sponsorship Committee in response to an amendment introduced by Delegates Francisco, Ventura, Vinzons, Rafols, Lim, Mumar and others. In explaining the difference between the original draft and the draft as amended, Delegate Roxas speaking for the Sponsorship Committee said:

x x x x x x x x x

Sr. ROXAS. La diferencia, señor Presidente, consiste solamente en obviar la objecion apuntada por varios Delegados al efecto de que la primera clausula del draft que dice: "The elections, returns and qualifications of the members of the National Assembly" parece que da a la Comision Electoral la facultad de determinar

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tambien la eleccion de los miembros que no ha sido protestados y para obviar esa dificultad, creemos que la enmienda tien razon en ese sentido, si enmendamos el draft, de tal modo que se lea como sigue: "All cases contesting the election", de modo que los jueces de la Comision Electoral se limitaran solamente a los casos en que haya habido protesta contra las actas." Before the amendment of Delegate Labrador was voted upon the following interpellation also took place:

El Sr. CONEJERO. Antes de votarse la enmienda, quisiera

El Sr. PRESIDENTE. ¿Que dice el Comite?

El Sr. ROXAS. Con mucho gusto.

El Sr. CONEJERO. Tal como esta el draft, dando tres miembros a la mayoria, y otros tres a la minoria y tres a la Corte Suprema, ¿no cree Su Señoria que esto equivale practicamente a dejar el asunto a los miembros del Tribunal Supremo?

El Sr. ROXAS. Si y no. Creemos que si el tribunal o la Commission esta constituido en esa forma, tanto los miembros de la mayoria como los de la minoria asi como los miembros de la Corte Suprema consideraran la cuestion sobre la base de sus meritos, sabiendo que el partidismo no es suficiente para dar el triunfo.

El Sr. CONEJERO. ¿Cree Su Señoria que en un caso como ese, podriamos hacer que tanto los de la mayoria como los de la minoria prescindieran del partidismo?

El Sr. ROXAS. Creo que si, porque el partidismo no les daria el triunfo.

x x x x x x x x x

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The amendment introduced by Delegates Labrador, Abordo and others seeking to restore the power to decide contests relating to the election, returns and qualifications of members of the National Assembly to the National Assembly itself, was defeated by a vote of ninety-eight (98) against fifty-six (56).

In the same session of December 4, 1934, Delegate Cruz (C.) sought to amend the draft by reducing the representation of the minority party and the Supreme Court in the Electoral Commission to two members each, so as to accord more representation to the majority party. The Convention rejected this amendment by a vote of seventy-six (76) against forty-six (46), thus maintaining the non-partisan character of the commission.

As approved on January 31, 1935, the draft was made to read as follows:

(6) All cases contesting the elections, returns and qualifications of the Members of the National Assembly shall be judged by an Electoral Commission, composed of three members elected by the party having the largest number of votes in the National Assembly, three elected by the members of the party having the second largest number of votes, and three justices of the Supreme Court designated by the Chief Justice, the Commission to be presided over by one of said justices.

The Style Committee to which the draft was submitted revised it as follows:

SEC. 4. There shall be an Electoral Commission composed of three Justices of the Supreme Court designated by the Chief Justice, and of six Members chosen by the National Assembly, three of whom shall be nominated by the party having the largest number of votes, and three by the party having the second largest number of votes therein. The senior Justice in the Commission shall be its chairman. The Electoral Commission

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shall be the sole judge of the election, returns, and qualifications of the Members of the National Assembly.

When the foregoing draft was submitted for approval on February 8, 1935, the Style Committee, through President Recto, to effectuate the original intention of the Convention, agreed to insert the phrase "All contests relating to" between the phrase "judge of" and the words "the elections", which was accordingly accepted by the Convention.

The transfer of the power of determining the election, returns and qualifications of the members of the legislature long lodged in the legislative body, to an independent, impartial and non-partisan tribunal, is by no means a mere experiment in the science of government.

Cushing, in his Law and Practice of Legislative Assemblies (ninth edition, chapter VI, pages 57, 58), gives a vivid account of the "scandalously notorious" canvassing of votes by political parties in the disposition of contests by the House of Commons in the following passages which are partly quoted by the petitioner in his printed memorandum of March 14, 1936:

153. From the time when the commons established their right to be the exclusive judges of the elections, returns, and qualifications of their members, until the year 1770, two modes of proceeding prevailed, in the determination of controverted elections, and rights of membership. One of the standing committees appointed at the commencement of each session, was denominated the committee of privileges and elections, whose functions was to hear and investigate all questions of this description which might be referred to them, and to report their proceedings, with their opinion thereupon, to the house, from time to time. When an election petition was referred to this committee they heard the parties and their witnesses and other evidence, and made a report of all the evidence, together with

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their opinion thereupon, in the form of resolutions, which were considered and agreed or disagreed to by the house. The other mode of proceeding was by a hearing at the bar of the house itself. When this court was adopted, the case was heard and decided by the house, in substantially the same manner as by a committee. The committee of privileges and elections although a select committee. The committee of privileges and elections although a select committee was usually what is called an open one; that is to say, in order to constitute the committee, a quorum of the members named was required to be present, but all the members of the house were at liberty to attend the committee and vote if they pleased.

154. With the growth of political parties in parliament questions relating to the right of membership gradually assumed a political character; so that for many years previous to the year 1770, controverted elections had been tried and determined by the house of commons, as mere party questions, upon which the strength of contending factions might be tested. Thus, for Example, in 1741, Sir Robert Walpole, after repeated attacks upon his government, resigned his office in consequence of an adverse vote upon the Chippenham election. Mr. Hatsell remarks, of the trial of election cases, as conducted under this system, that "Every principle of decency and justice were notoriously and openly prostituted, from whence the younger part of the house were insensibly, but too successfully, induced to adopt the same licentious conduct in more serious matters, and in questions of higher importance to the public welfare." Mr. George Grenville, a distinguished member of the house of commons, undertook to propose a remedy for the evil, and, on the 7th of March, 1770, obtained the unanimous leave of the house to bring in a bill, "to regulate the trial of controverted elections, or returns of members to serve in parliament." In his speech to explain his plan, on the motion for leave, Mr. Grenville alluded to the existing practice in the following terms: "Instead

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of trusting to the merits of their respective causes, the principal dependence of both parties is their private interest among us; and it is scandalously notorious that we are as earnestly canvassed to attend in favor of the opposite sides, as if we were wholly self-elective, and not bound to act by the principles of justice, but by the discretionary impulse of our own inclinations; nay, it is well known, that in every contested election, many members of this house, who are ultimately to judge in a kind of judicial capacity between the competitors, enlist themselves as parties in the contention, and take upon themselves the partial management of the very business, upon which they should determine with the strictest impartiality."

155. It was to put an end to the practices thus described, that Mr. Grenville brought in a bill which met with the approbation of both houses, and received the royal assent on the 12th of April, 1770. This was the celebrated law since known by the name of the Grenville Act; of which Mr. Hatsell declares, that it "was one of the nobles works, for the honor of the house of commons, and the security of the constitution, that was ever devised by any minister or statesman." It is probable, that the magnitude of the evil, or the apparent success of the remedy, may have led many of the contemporaries of the measure to the information of a judgement, which was not acquiesced in by some of the leading statesmen of the day, and has not been entirely confirmed by subsequent experience. The bill was objected to by Lord North, Mr. De Grey, afterwards chief justice of the common pleas, Mr. Ellis, Mr. Dyson, who had been clerk of the house, and Mr. Charles James Fox, chiefly on the ground, that the introduction of the new system was an essential alteration of the constitution of parliament, and a total abrogation of one of the most important rights and jurisdictions of the house of commons.

As early as 1868, the House of Commons in England solved the problem of insuring the non-partisan settlement of the controverted

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elections of its members by abdicating its prerogative to two judges of the King's Bench of the High Court of Justice selected from a rota in accordance with rules of court made for the purpose. Having proved successful, the practice has become imbedded in English jurisprudence (Parliamentary Elections Act, 1868 [31 & 32 Vict. c. 125] as amended by Parliamentary Elections and Corrupt Practices Act. 1879 [42 & 43 Vict. c. 75], s. 2; Corrupt and Illegal Practices Preventions Act, 1883 [46 & 47 Vict. c. 51;, s. 70; Expiring Laws Continuance Act, 1911 [1 & 2 Geo. 5, c. 22]; Laws of England, vol. XII, p. 408, vol. XXI, p. 787). In the Dominion of Canada, election contests which were originally heard by the Committee of the House of Commons, are since 1922 tried in the courts. Likewise, in the Commonwealth of Australia, election contests which were originally determined by each house, are since 1922 tried in the High Court. In Hungary, the organic law provides that all protests against the election of members of the Upper House of the Diet are to be resolved by the Supreme Administrative Court (Law 22 of 1916, chap. 2, art. 37, par. 6). The Constitution of Poland of March 17, 1921 (art. 19) and the Constitution of the Free City of Danzig of May 13, 1922 (art. 10) vest the authority to decide contested elections to the Diet or National Assembly in the Supreme Court. For the purpose of deciding legislative contests, the Constitution of the German Reich of July 1, 1919 (art. 31), the Constitution of the Czechoslovak Republic of February 29, 1920 (art. 19) and the Constitution of the Grecian Republic of June 2, 1927 (art. 43), all provide for an Electoral Commission.

The creation of an Electoral Commission whose membership is recruited both from the legislature and the judiciary is by no means unknown in the United States. In the presidential elections of 1876 there was a dispute as to the number of electoral votes received by each of the two opposing candidates. As the Constitution made no adequate provision for such a contingency, Congress passed a law on January 29, 1877 (United States Statutes at Large, vol. 19, chap. 37, pp. 227-229), creating a special Electoral Commission composed of five

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members elected by the Senate, five members elected by the House of Representatives, and five justices of the Supreme Court, the fifth justice to be selected by the four designated in the Act. The decision of the commission was to be binding unless rejected by the two houses voting separately. Although there is not much of a moral lesson to be derived from the experience of America in this regard, judging from the observations of Justice Field, who was a member of that body on the part of the Supreme Court (Countryman, the Supreme Court of the United States and its Appellate Power under the Constitution [Albany, 1913] — Relentless Partisanship of Electoral Commission, p. 25 et seq.), the experiment has at least abiding historical interest.

The members of the Constitutional Convention who framed our fundamental law were in their majority men mature in years and experience. To be sure, many of them were familiar with the history and political development of other countries of the world. When , therefore, they deemed it wise to create an Electoral Commission as a constitutional organ and invested it with the exclusive function of passing upon and determining the election, returns and qualifications of the members of the National Assembly, they must have done so not only in the light of their own experience but also having in view the experience of other enlightened peoples of the world. The creation of the Electoral Commission was designed to remedy certain evils of which the framers of our Constitution were cognizant. Notwithstanding the vigorous opposition of some members of the Convention to its creation, the plan, as hereinabove stated, was approved by that body by a vote of 98 against 58. All that can be said now is that, upon the approval of the constitutional the creation of the Electoral Commission is the expression of the wisdom and "ultimate justice of the people". (Abraham Lincoln, First Inaugural Address, March 4, 1861.)

From the deliberations of our Constitutional Convention it is evident that the purpose was to transfer in its totality all the powers previously exercised by the legislature in matters pertaining to

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contested elections of its members, to an independent and impartial tribunal. It was not so much the knowledge and appreciation of contemporary constitutional precedents, however, as the long-felt need of determining legislative contests devoid of partisan considerations which prompted the people, acting through their delegates to the Convention, to provide for this body known as the Electoral Commission. With this end in view, a composite body in which both the majority and minority parties are equally represented to off-set partisan influence in its deliberations was created, and further endowed with judicial temper by including in its membership three justices of the Supreme Court.

The Electoral Commission is a constitutional creation, invested with the necessary authority in the performance and execution of the limited and specific function assigned to it by the Constitution. Although it is not a power in our tripartite scheme of government, it is, to all intents and purposes, when acting within the limits of its authority, an independent organ. It is, to be sure, closer to the legislative department than to any other. The location of the provision (section 4) creating the Electoral Commission under Article VI entitled "Legislative Department" of our Constitution is very indicative. Its compositions is also significant in that it is constituted by a majority of members of the legislature. But it is a body separate from and independent of the legislature.

The grant of power to the Electoral Commission to judge all contests relating to the election, returns and qualifications of members of the National Assembly, is intended to be as complete and unimpaired as if it had remained originally in the legislature. The express lodging of that power in the Electoral Commission is an implied denial of the exercise of that power by the National Assembly. And this is as effective a restriction upon the legislative power as an express prohibition in the Constitution (Ex parte Lewis, 45 Tex. Crim. Rep., 1; State vs.Whisman, 36 S.D., 260; L.R.A., 1917B, 1). If we concede the power claimed in behalf of the National Assembly that said body may

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regulate the proceedings of the Electoral Commission and cut off the power of the commission to lay down the period within which protests should be filed, the grant of power to the commission would be ineffective. The Electoral Commission in such case would be invested with the power to determine contested cases involving the election, returns and qualifications of the members of the National Assembly but subject at all times to the regulative power of the National Assembly. Not only would the purpose of the framers of our Constitution of totally transferring this authority from the legislative body be frustrated, but a dual authority would be created with the resultant inevitable clash of powers from time to time. A sad spectacle would then be presented of the Electoral Commission retaining the bare authority of taking cognizance of cases referred to, but in reality without the necessary means to render that authority effective whenever and whenever the National Assembly has chosen to act, a situation worse than that intended to be remedied by the framers of our Constitution. The power to regulate on the part of the National Assembly in procedural matters will inevitably lead to the ultimate control by the Assembly of the entire proceedings of the Electoral Commission, and, by indirection, to the entire abrogation of the constitutional grant. It is obvious that this result should not be permitted.

We are not insensible to the impassioned argument or the learned counsel for the petitioner regarding the importance and necessity of respecting the dignity and independence of the national Assembly as a coordinate department of the government and of according validity to its acts, to avoid what he characterized would be practically an unlimited power of the commission in the admission of protests against members of the National Assembly. But as we have pointed out hereinabove, the creation of the Electoral Commission carried with it ex necesitate rei the power regulative in character to limit the time with which protests intrusted to its cognizance should be filed. It is a settled rule of construction that where a general power is conferred or duty enjoined, every particular power necessary for the

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exercise of the one or the performance of the other is also conferred (Cooley, Constitutional Limitations, eight ed., vol. I, pp. 138, 139). In the absence of any further constitutional provision relating to the procedure to be followed in filing protests before the Electoral Commission, therefore, the incidental power to promulgate such rules necessary for the proper exercise of its exclusive power to judge all contests relating to the election, returns and qualifications of members of the National Assembly, must be deemed by necessary implication to have been lodged also in the Electoral Commission.

It is, indeed, possible that, as suggested by counsel for the petitioner, the Electoral Commission may abuse its regulative authority by admitting protests beyond any reasonable time, to the disturbance of the tranquillity and peace of mind of the members of the National Assembly. But the possibility of abuse is not argument against the concession of the power as there is no power that is not susceptible of abuse. In the second place, if any mistake has been committed in the creation of an Electoral Commission and in investing it with exclusive jurisdiction in all cases relating to the election, returns, and qualifications of members of the National Assembly, the remedy is political, not judicial, and must be sought through the ordinary processes of democracy. All the possible abuses of the government are not intended to be corrected by the judiciary. We believe, however, that the people in creating the Electoral Commission reposed as much confidence in this body in the exclusive determination of the specified cases assigned to it, as they have given to the Supreme Court in the proper cases entrusted to it for decision. All the agencies of the government were designed by the Constitution to achieve specific purposes, and each constitutional organ working within its own particular sphere of discretionary action must be deemed to be animated with the same zeal and honesty in accomplishing the great ends for which they were created by the sovereign will. That the actuations of these constitutional agencies might leave much to be desired in given instances, is inherent in the perfection of human institutions. In the third place, from the fact that the Electoral

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Commission may not be interfered with in the exercise of its legitimate power, it does not follow that its acts, however illegal or unconstitutional, may not be challenge in appropriate cases over which the courts may exercise jurisdiction.

But independently of the legal and constitutional aspects of the present case, there are considerations of equitable character that should not be overlooked in the appreciation of the intrinsic merits of the controversy. The Commonwealth Government was inaugurated on November 15, 1935, on which date the Constitution, except as to the provisions mentioned in section 6 of Article XV thereof, went into effect. The new National Assembly convened on November 25th of that year, and the resolution confirming the election of the petitioner, Jose A. Angara was approved by that body on December 3, 1935. The protest by the herein respondent Pedro Ynsua against the election of the petitioner was filed on December 9 of the same year. The pleadings do not show when the Electoral Commission was formally organized but it does appear that on December 9, 1935, the Electoral Commission met for the first time and approved a resolution fixing said date as the last day for the filing of election protest. When, therefore, the National Assembly passed its resolution of December 3, 1935, confirming the election of the petitioner to the National Assembly, the Electoral Commission had not yet met; neither does it appear that said body had actually been organized. As a mater of fact, according to certified copies of official records on file in the archives division of the National Assembly attached to the record of this case upon the petition of the petitioner, the three justices of the Supreme Court the six members of the National Assembly constituting the Electoral Commission were respectively designated only on December 4 and 6, 1935. If Resolution No. 8 of the National Assembly confirming non-protested elections of members of the National Assembly had the effect of limiting or tolling the time for the presentation of protests, the result would be that the National Assembly — on the hypothesis that it still retained the incidental power of regulation in such cases — had already barred the presentation of protests before the Electoral

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Commission had had time to organize itself and deliberate on the mode and method to be followed in a matter entrusted to its exclusive jurisdiction by the Constitution. This result was not and could not have been contemplated, and should be avoided.

From another angle, Resolution No. 8 of the National Assembly confirming the election of members against whom no protests had been filed at the time of its passage on December 3, 1935, can not be construed as a limitation upon the time for the initiation of election contests. While there might have been good reason for the legislative practice of confirmation of the election of members of the legislature at the time when the power to decide election contests was still lodged in the legislature, confirmation alone by the legislature cannot be construed as depriving the Electoral Commission of the authority incidental to its constitutional power to be "the sole judge of all contest relating to the election, returns, and qualifications of the members of the National Assembly", to fix the time for the filing of said election protests. Confirmation by the National Assembly of the returns of its members against whose election no protests have been filed is, to all legal purposes, unnecessary. As contended by the Electoral Commission in its resolution of January 23, 1936, overruling the motion of the herein petitioner to dismiss the protest filed by the respondent Pedro Ynsua, confirmation of the election of any member is not required by the Constitution before he can discharge his duties as such member. As a matter of fact, certification by the proper provincial board of canvassers is sufficient to entitle a member-elect to a seat in the national Assembly and to render him eligible to any office in said body (No. 1, par. 1, Rules of the National Assembly, adopted December 6, 1935).

Under the practice prevailing both in the English House of Commons and in the Congress of the United States, confirmation is neither necessary in order to entitle a member-elect to take his seat. The return of the proper election officers is sufficient, and the member-elect presenting such return begins to enjoy the privileges of a

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member from the time that he takes his oath of office (Laws of England, vol. 12, pp. 331. 332; vol. 21, pp. 694, 695; U. S. C. A., Title 2, secs. 21, 25, 26). Confirmation is in order only in cases of contested elections where the decision is adverse to the claims of the protestant. In England, the judges' decision or report in controverted elections is certified to the Speaker of the House of Commons, and the House, upon being informed of such certificate or report by the Speaker, is required to enter the same upon the Journals, and to give such directions for confirming or altering the return, or for the issue of a writ for a new election, or for carrying into execution the determination as circumstances may require (31 & 32 Vict., c. 125, sec. 13). In the United States, it is believed, the order or decision of the particular house itself is generally regarded as sufficient, without any actual alternation or amendment of the return (Cushing, Law and Practice of Legislative Assemblies, 9th ed., sec. 166).

Under the practice prevailing when the Jones Law was still in force, each house of the Philippine Legislature fixed the time when protests against the election of any of its members should be filed. This was expressly authorized by section 18 of the Jones Law making each house the sole judge of the election, return and qualifications of its members, as well as by a law (sec. 478, Act No. 3387) empowering each house to respectively prescribe by resolution the time and manner of filing contest in the election of member of said bodies. As a matter of formality, after the time fixed by its rules for the filing of protests had already expired, each house passed a resolution confirming or approving the returns of such members against whose election no protests had been filed within the prescribed time. This was interpreted as cutting off the filing of further protests against the election of those members not theretofore contested (Amistad vs. Claravall [Isabela], Second Philippine Legislature, Record — First Period, p. 89; Urguello vs. Rama [Third District, Cebu], Sixth Philippine Legislature; Fetalvero vs. Festin [Romblon], Sixth Philippine Legislature, Record — First Period, pp. 637-640; Kintanar vs. Aldanese [Fourth District, Cebu], Sixth Philippine

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Legislature, Record — First Period, pp. 1121, 1122; Aguilar vs. Corpus [Masbate], Eighth Philippine Legislature, Record — First Period, vol. III, No. 56, pp. 892, 893). The Constitution has repealed section 18 of the Jones Law. Act No. 3387, section 478, must be deemed to have been impliedly abrogated also, for the reason that with the power to determine all contest relating to the election, returns and qualifications of members of the National Assembly, is inseparably linked the authority to prescribe regulations for the exercise of that power. There was thus no law nor constitutional provisions which authorized the National Assembly to fix, as it is alleged to have fixed on December 3, 1935, the time for the filing of contests against the election of its members. And what the National Assembly could not do directly, it could not do by indirection through the medium of confirmation.

Summarizing, we conclude:

(a) That the government established by the Constitution follows fundamentally the theory of separation of power into the legislative, the executive and the judicial.

(b) That the system of checks and balances and the overlapping of functions and duties often makes difficult the delimitation of the powers granted.

(c) That in cases of conflict between the several departments and among the agencies thereof, the judiciary, with the Supreme Court as the final arbiter, is the only constitutional mechanism devised finally to resolve the conflict and allocate constitutional boundaries.

(d) That judicial supremacy is but the power of judicial review in actual and appropriate cases and controversies, and is the power and duty to see that no one branch or agency of the government transcends the Constitution, which is the source of all authority.

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(e) That the Electoral Commission is an independent constitutional creation with specific powers and functions to execute and perform, closer for purposes of classification to the legislative than to any of the other two departments of the governments.

(f ) That the Electoral Commission is the sole judge of all contests relating to the election, returns and qualifications of members of the National Assembly.

(g) That under the organic law prevailing before the present Constitution went into effect, each house of the legislature was respectively the sole judge of the elections, returns, and qualifications of their elective members.

(h) That the present Constitution has transferred all the powers previously exercised by the legislature with respect to contests relating to the elections, returns and qualifications of its members, to the Electoral Commission.

(i) That such transfer of power from the legislature to the Electoral Commission was full, clear and complete, and carried with it ex necesitate rei the implied power inter alia to prescribe the rules and regulations as to the time and manner of filing protests.

( j) That the avowed purpose in creating the Electoral Commission was to have an independent constitutional organ pass upon all contests relating to the election, returns and qualifications of members of the National Assembly, devoid of partisan influence or consideration, which object would be frustrated if the National Assembly were to retain the power to prescribe rules and regulations regarding the manner of conducting said contests.

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(k) That section 4 of article VI of the Constitution repealed not only section 18 of the Jones Law making each house of the Philippine Legislature respectively the sole judge of the elections, returns and qualifications of its elective members, but also section 478 of Act No. 3387 empowering each house to prescribe by resolution the time and manner of filing contests against the election of its members, the time and manner of notifying the adverse party, and bond or bonds, to be required, if any, and to fix the costs and expenses of contest.

(l) That confirmation by the National Assembly of the election is contested or not, is not essential before such member-elect may discharge the duties and enjoy the privileges of a member of the National Assembly.

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

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

In view of the conclusion reached by us relative to the character of the Electoral Commission as a constitutional creation and as to the scope and extent of its authority under the facts of the present controversy,

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we deem it unnecessary to determine whether the Electoral Commission is an inferior tribunal, corporation, board or person within the purview of sections 226 and 516 of the Code of Civil Procedure.

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

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G.R. No. 84297 December 8, 1988

CARMELO F. LAZATIN, petitioner, vs.

THE HOUSE ELECTORAL TRIBUNAL and LORENZO G. TIMBOL, respondents.

CORTES, J.:

Petitioner and private respondent were among the candidates for Representative of the first district of Pampanga during the elections of May 11, 1987. During the canvassing of the votes, private respondent objected to the inclusion of certain election returns. But since the Municipal Board of Canvassers did not rule on his objections, he brought his case to the Commission on Elections. On May 19, 1987, the COMELEC ordered the Provincial Board of Canvassers to suspend the proclamation of the winning candidate for the first district of Pampanga. However, on May 26, 1987, the COMELEC ordered the Provincial Board of Canvassers to proceed with the canvassing of votes and to proclaim the winner. On May 27, 1987, petitioner was proclaimed as Congressman-elect. Private respondent thus filed in the COMELEC a petition to declare petitioners proclamation void ab initio. Later, private respondent also filed a petition to prohibit petitioner from assuming office. The COMELEC failed to act on the second petition so petitioner was able to assume office on June 30, 1987. On September 15, 1987, the COMELEC declared petitioner's proclamation void ab initio. Petitioner challenged the COMELEC resolution before this Court in a petition entitled "Carmelo F. Lazatin v. The Commission on Elections, Francisco R. Buan, Jr. and Lorenzo G. Timbol," docketed as G.R. No. 80007. In a decision promulgated on January 25, 1988, the Court set aside the COMELEC's revocation of petitioner's proclamation. On February 8, 1988, private respondent filed in the House of Representatives Electoral Tribunal (hereinafter referred to as HRET an election protest, docketed as Case No. 46.

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Petitioner moved to dismiss private respondent's protest on the ground that it had been filed late, citing Sec. 250 of the Omnibus Election Code (B.P. Blg. 881). However, the HRET filed that the protest had been filed on time in accordance with Sec. 9 of the HRET Rules. Petitioner's motion for reconsideration was also denied. Hence, petitioner has come to this Court, challenging the jurisdiction of the HRET over the protest filed by private respondent.

A. The Main Case

This special civil action for certiorari and prohibition with prayer for the issuance of a writ of preliminary injunction and/or restraining order seeks the annulment and setting aside of (1) the resolution of the HRET, dated May 2, 1988, in Case No. 46, holding that the protest filed by private respondent had been filed on time, and (2) its July 29, 1988 resolution denying the motion for reconsideration.

Without giving due course to the petition, the Court required the respondents to comment on the petition. The Solicitor General filed a comment in behalf of the HRET while the private respondent filed his comment with a motion to admit counter/cross petition and the petitioner filed his consolidated reply. Thereafter, the Court resolved to give due course to the petition, taking the comments filed as the answers to the petition, and considered the case submitted for decision.

Resolution of the instant controversy hinges on which provision governs the period for filing protests in the HRET. Should Sec. 250 of the Omnibus Election Code be held applicable, private respondent's election protest would have been filed out of time. On the other hand, if Sec. 9 of the HRET Rules is applicable, the filing of the protest would be timely. Succinctly stated, the basic issue is whether or not private respondent's protest had been seasonably filed.

To support his contention that private respondent's protest had been filed out of time and, therefore, the HRET did not acquire jurisdiction

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over it, petitioner relies on Sec. 250 of the Omnibus Election Code, which provides:

Sec. 250. Election contests for Batasang Pambansa, regional, provincial and city offices. — A sworn petition contesting the election of any Member of the Batasang Pambansa or any regional, provincial or city official shall be filed with the Commission by any candidate who has duly filed a certificate of candidacy and has been voted for the same office, within ten days after the proclamation of the results of the election. [Emphasis supplied.]

Petitioner argues that even assuming that the period to file an election protest was suspended by the pendency of the petition to annul his proclamation, the petition was filed out of time, considering that he was proclaimed on May 27, 1987 and therefore private respondent had only until June 6, 1987 to file a protest; that private respondent filed a petition to annul the proclamation on May 28, 1987 and the period was suspended and began to run again on January 28, 1988 when private respondent was served with a copy of the decision of the Court in G.R, No. 80007; that private respondent therefore only had nine (9) days left or until February 6, 1988 within which to file his protest; but that private respondent filed his protest with the HRET only on February 8, 1988.

On the other hand, in finding that the protest was flied on time, the HRET relied on Sec. 9 of its Rules, to wit:

Election contests arising from the 1987 Congressional elections shall be filed with the Office of the Secretary of the Tribunal or mailed at the post office as registered matter addressed to the Secretary of the Tribunal, together with twelve (12) legible copies thereof plus one (1) copy for each protestee,within fifteen (15) days from the effectivity of these Rules on November 22, 1987 where the proclamation has

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been made prior to the effectivity of these Rules, otherwise, the same may be filed within fifteen (15) days from the date of the proclamation. Election contests arising from the 1987 Congressional elections filed with the Secretary of the House of Representatives and transmitted by him to the Chairman of the Tribunal shall be deemed filed with the tribunal as of the date of effectivity of these Rules, subject to payment of filing fees as prescribed in Section 15 hereof. [Emphasis supplied.]

Thus, ruled the HRET:

On the basis of the foregoing Rule, the protest should have been filed within fifteen (15) days from November 22, 1987, or not later than December 7, 1987. However, on September 15, 1987, the COMELEC acting upon a petition filed by the Protestant (private respondent herein), promulgated a Resolution declaring the proclamation void ab initio. This resolution had the effect of nullifying the proclamation, and such proclamation was not reinstated until Protestant received a copy of the Supreme Court's decision annulling the COMELEC Resolution on January 28, 1988. For all intents and purposes, therefore, Protestee's (petitioner herein) proclamation became effective only on January 28, 1988, and the fifteen-day period for Protestant to file his protest must be reckoned from that date.

Protestant filed his protest on February 8, 1988, or eleven (11) days after January 28. The protest, therefore, was filed well within the reglementary period provided by the Rules of this Tribunal. (Rollo, p. 129.]

The Court is of the view that the protest had been filed on time and, hence, the HRET acquired jurisdiction over it.

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Petitioner's reliance on Sec. 250 of the Omnibus Election Code is misplaced. Sec. 250 is couched in unambiguous terms and needs no interpretation. It applies only to petitions filed before the COMELEC contesting the election ofany Member of the Batasang Pambansa, or any regional, provincial or city official. Furthermore, Sec. 250 should be read together with Sec. 249 of the same code which provides that the COMELEC "shall be the sole judge of all contests relating to the elections, returns and qualifications of all Members of the Batasang Pambansa, elective regional, provincial and city officials," reiterating Art. XII-C, Sec. 2(2) of the 1973 Constitution. It must be emphasized that under the 1973 Constitution there was no provision for an Electoral Tribunal, the jurisdiction over election contests involving Members of the Batasang Pambansa having been vested in the COMELEC.

That Sec. 250 of the Omnibus Election Code, as far as contests regarding the election, returns and qualifications of Members of the Batasang Pambansa is concerned, had ceased to be effective under the 1987 Constitution is readily apparent. First, the Batasang Pambansa has already been abolished and the legislative power is now vested in a bicameral Congress. Second, the Constitution vests exclusive jurisdiction over all contests relating to the election, returns and qualifications of the Members of the Senate and the House of Representatives in the respective Electoral Tribunals [Art. VI, Sec. 171. The exclusive original jurisdiction of the COMELEC is limited by constitutional fiat to election contests pertaining to election regional, provincial and city offices and its appellate jurisdiction to those involving municipal and barangay offices [Art. IX-C, Sec. 2(2)].

Petitioner makes much of the fact that the provisions of the Omnibus Election Code on the conduct of the election were generally made applicable to the congressional elections of May 11, 1987. It must be emphasized, however, that such does not necessarily imply the application of all the provisions of said code to each and every aspect of that particular electoral exercise, as petitioner contends. On the

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contrary, the Omnibus Election Code was only one of several laws governing said elections. *

An examination of the Omnibus Election Code and the executive orders specifically applicable to the May 11, 1987 congressional elections reveals that there is no provision for the period within which to file election protests in the respective Electoral Tribunals. Thus, the question may well be asked whether the rules governing the exercise of the Tribunals' constitutional functions may be prescribed by statute.

The Court is of the considered view that it may not.

The power of the HRET, as the sole judge of all contests relating to the election, returns and qualifications of the Members of the House of Representatives, to promulgate rules and regulations relative to matters within its jurisdiction, including the period for filing election protests before it, is beyond dispute. Its rule-making power necessarily flows from the general power granted it by the Constitution. This is the import of the ruling in the landmark case of Angara v. Electoral Commission [63 Phil. 139 (1936)], where the Court, speaking through Justice Laurel, declared in no uncertain terms:

... [The creation of the Electoral Commission carried with it ex necessitate rei the power regulative in character to limit the time within which protests entrusted to its cognizance should be filed. It is a settled rule of construction that where a general power is conferred or duly enjoined, every particular power necessary for the exercise of the one or the performance of the other is also conferred (Cooley, Constitutional Limitations, eighth ed., vol. 1, pp. 138, 139). In the absence of any further constitutional provision relating to the procedure to be followed in filing protests before the Electoral Commission, therefore, the incidental power to promulgate such rules necessary for the proper exercise of its exclusive power to judge all contests relating to the election,

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returns and qualifications of members of the National Assembly, must be deemed by necessary implication to have been lodged also in the Electoral Commission. [At p. 177; emphasis supplied.]

A short review of our constitutional history reveals that, except under the 1973 Constitution, the power to judge all contests relating to the election, returns and qualifications of the members of the legislative branch has been exclusively granted either to the legislative body itself [i.e., the Philippine Assembly under the Philippine Bill of 1902 and the Senate and the House of Representatives under the Philippine Autonomy Act (Jones Law)] or to an independent, impartial and non-partisan body attached to the legislature [i.e., the Electoral Commission under the 1935 Constitution and the Electoral Tribunals under the amended 1935 and the 1987 Constitutions].

Except under the 1973 Constitution, the power granted is that of being the sole judge of all contests relating to the election, returns and qualifications of the members of the legislative body. Article VI of the 1987 Constitution states it in this wise:

See. 17. The Senate and the House of Representatives shall each have an Electoral Tribunal which shall be the sole judge of all contests relating to the election, returns, and qualifications of their respective Members. Each Electoral tribunal shall be composed of nine Members, three of whom shall be Justices of the Supreme Court to be designated by the Chief Justice, and the remaining six shall be Members of the Senate or the House of Representatives, as the case may be, who shall be chosen on the basis of proportional representation from the political parties and the parties or organizations registered under the party-list system represented therein. The senior Justice in the Electoral Tribunal shall be its Chairman.

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The use of the word "sole" emphasizes the exclusive character of the jurisdiction conferred [Angara v. Electoral Commission, supra, at 1621. The exercise of the power by the Electoral Commission under the 1935 Constitution has been described as "intended to be as complete and unimpaired as if it had remained originally in the legislature" [Id. at 175]. Earlier, this grant of power to the legislature was characterized by Justice Malcolm as "full, clear and complete" [Veloso v. Board of Canvassers of Leyte and Samar, 39 Phil. 886 (1919)]. Under the amended 1935 Constitution, the power was unqualifiedly reposed upon the Electoral Tribunal Suanes v. Chief Accountant of the Senate, 81 Phil. 818 (1948)] and it remained as full, clear and complete as that previously granted the legislature and the Electoral Commission Lachica v. Yap, G.R. No. L25379, September 25, 1968, 25 SCRA 1401. The same may be said with regard to the jurisdiction of the Electoral Tribunals under the 1987 Constitution.

The 1935 and 1987 Constitutions, which separate and distinctly apportion the powers of the three branches of government, lodge the power to judge contests relating to the election, returns and qualifications of members of the legislature in an independent, impartial and non-partisan body attached to the legislature and specially created for that singular purpose (i.e., the Electoral Commission and the Electoral Tribunals) [see Suanes v. Chief Accountant of the Senate, supra]. It was only under the 1973 Constitution where the delineation between the powers of the Executive and the Legislature was blurred by constitutional experimentation that the jurisdiction over election contests involving members of the Legislature was vested in the COMELEC, an agency with general jurisdiction over the conduct of elections for all elective national and local officials.

That the framers of the 1987 Constitution intended to restore fully to the Electoral Tribunals exclusive jurisdiction over all contests relating to the election, returns and qualifications of its Members, consonant with the return to the separation of powers of the three branches of

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government under the presidential system, is too evident to escape attention. The new Constitution has substantially retained the COMELEC's purely administrative powers, namely, the exclusive authority to enforce and administer all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum, and recall; to decide, except those involving the right to vote, all questions affecting elections; to deputize law enforcement agencies and government instrumentalities for election purposes; to register political parties and accredit citizens' arms; to file in court petitions for inclusion and exclusion of voters and prosecute, where appropriate, violations of election laws [Art. IX(C), Sec. 2(1), (3)-(6)], as well as its rule-making power. In this sense, and with regard to these areas of election law, the provisions of the Omnibus Election Code are fully applicable, except where specific legislation provides otherwise. But the same cannot be said with regard to the jurisdiction of the COMELEC to hear and decide election contests. This has been trimmed down under the 1987 Constitution. Whereas the 1973 Constitution vested the COMELEC with jurisdiction to be the sole judge of all contests relating to the elections, returns and qualifications of all Members of the Batasang Pambansa and elective provincial and city officials [Art. XII(C), Sec. 2(2)], the 1987 Constitution, while lodging in the COMELEC exclusive original jurisdiction over all contests relating to the elections, returns and qualifications of all elective regional, provincial and city officials and appellate jurisdiction over contests relating to the election of municipal and barangay officials [Art. IX(C), Sec. 2(2)]. expressly makes the Electoral Tribunals of the Senate and the House of Representatives the sole judge of all contests relating to the election, returns and qualifications of their respective Members [Art. VI, Sec. 17].

The inescapable conclusion from the foregoing is that it is well within the power of the HRET to prescribe the period within which protests may be filed before it. This is founded not only on historical precedents and jurisprudence but, more importantly, on the clear language of the Constitution itself.

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Consequently, private respondent's election protest having been filed within the period prescribed by the HRET, the latter cannot be charged with lack of jurisdiction to hear the case.

B. Private-Respondent's Counter/Cross Petition

Private respondent in HRET Case No. 46 prayed for the issuance of a temporary restraining order and/or writ of preliminary injunction to enjoin petitioner herein from discharging his functions and duties as the Representative of the first district of Pampanga during the pendency of the protest. However, on May 5, 1988, the HRET resolved to defer action on said prayer after finding that the grounds therefor did not appear to be indubitable. Private respondent moved for reconsideration, but this was denied by the HRET on May 30, 1988. Thus, private respondent now seeks to have the Court annul and set aside these two resolutions and to issue a temporary restraining order and/or writ of preliminary injunction on the premise that the grounds therefor are too evident to be doubted.

The relief prayed for in private respondent's counter/cross petition is not forthcoming.

The matter of whether or not to issue a restraining order or a writ of preliminary injunction during the pendency of a protest lies within the sound discretion of the HRET as sole judge of all contests relating to the election, returns and qualifications of the Members of the House of Representatives. Necessarily, the determination of whether or not there are indubitable grounds to support the prayer for the aforementioned ancilliary remedies also lies within the HRETs sound judgment. Thus, in G.R. No. 80007, where the Court declined to take cognizance of the private respondent's electoral protest, this Court said:

The alleged invalidity of the proclamation (which had been previously ordered by the COMELEC itself) despite alleged irregularities in connection therewith, and despite the

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pendency of the protests of the rival candidates, is a matter that is also addressed, considering the premises, to the sound judgment of the Electoral Tribunal.

Moreover, private respondent's attempt to have the Court set aside the HRET's resolution to defer action on his prayer for provisional relief is undeniably premature, considering that the HRET had not yet taken any final action with regard to his prayer. Hence, there is actually nothing to review or and and set aside. But then again, so long as the Constitution grants the HRET the power to be the sole judge of all contests relating to the election, returns and qualifications of Members of the House of Representatives, any final action taken by the HRET on a matter within its jurisdiction shall, as a rule, not be reviewed by this Court. As stated earlier, the power granted to the Electoral Tribunal is full, clear and complete and "excludes the exercise of any authority on the part of this Court that would in any wise restrict or curtail it or even affect the same." (Lachica v. Yap, supra, at 143.] As early as 1938 in Morrero v. Bocar (66 Phil. 429, 431 (1938)), the Court declared that '[the judgment rendered by the [Electoral] Commission in the exercise of such an acknowledged power is beyond judicial interference, except, in any event, upon a clear showing of such arbitrary and improvident use of the power as will constitute a denial of due process of law." Under the 1987 Constitution, the scope of the Court's authority is made explicit. The power granted to the Court includes the duty "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 (Art. VIII, Sec. 11. Thus, only where such grave abuse of discretion is clearly shown shall the Court interfere with the HRET's judgment. In the instant case, there is no occasion for the exercise of the Court's collective power, since no grave abuse of discretion that would amount to lack or excess of jurisdiction and would warrant the issuance of the writs prayed for has been clearly shown.

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WHEREFORE, the instant Petition is hereby DISMISSED. Private respondent's Counter/Cross Petition is likewise DISMISSED.

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G.R. No. 83767 October 27, 1988

FIRDAUSI SMAIL ABBAS, HOMOBONO A. ADAZA, ALEJANDRO D. ALMENDRAS, ABUL KAHYR D. ALONTO,

JUAN PONCE ENRILE, RENE G. ESPINA, WILSON P. GAMBOA, ROILO S. GOLEZ, ROMEO G. JALOSJOS EVA R. ESTRADA-

KALAW, WENCESLAO R. LAGUMBAY, VICENTE P. MAGSAYSAY, JEREMIAS U. MONTEMAYOR, BLAS F. OPLE,

RAFAEL P. PALMARES, ZOSIMO JESUS M. PAREDES, JR., VICENTE G. PUYAT, EDITH N. RABAT, ISIDRO S. RODRIGUEZ,

FRANCISCO S. TATAD, LORENZO G. TEVES, ARTURO M. TOLENTINO, and FERNANDO R. VELOSO, petitioners,

vs. THE SENATE ELECTORAL TRIBUNAL, respondent.

GANCAYCO, J.:

This is a Special Civil Action for certiorari to nullify and set aside the Resolutions of the Senate Electoral Tribunal dated February 12, 1988 and May 27, 1988, denying, respectively, the petitioners' Motion for Disqualification or Inhibition and their Motion for Reconsideration thereafter filed.

On October 9, 1987, the petitioners filed before the respondent Tribunal an election contest docketed as SET Case No. 002-87 against 22 candidates of the LABAN coalition who were proclaimed senators-elect in the May 11, 1987 congressional elections by the Commission on Elections. The respondent Tribunal was at the time composed of three (3) Justices of the Supreme Court and six (6) Senators, namely: Senior Associate Justice Pedro L. Yap (Chairman). Associate Justices Andres R. Narvasa and Hugo E. Gutierrez, Jr., and Senators Joseph E. Estrada, Neptali A. Gonzales, Teofisto T. Guingona, Jose Lina, Jr., Mamintal A.J. Tamano and Victor S. Ziga.

On November 17, 1987, the petitioners, with the exception of Senator Estrada but including Senator Juan Ponce Enrile (who had been

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designated Member of the Tribunal replacing Senator Estrada, the latter having affiliated with the Liberal Party and resigned as the Opposition's representative in the Tribunal) filed with the respondent Tribunal a Motion for Disqualification or Inhibition of the Senators-Members thereof from the hearing and resolution of SET Case No. 002-87 on the ground that all of them are interested parties to said case, as respondents therein. Before that, Senator Rene A.V. Saguisag, one of the respondents in the same case, had filed a Petition to Recuse and later a Supplemental Petition to Recuse the same Senators-Members of the Tribunal on essentially the same ground. Senator Vicente T. Paterno, another respondent in the same contest, thereafter filed his comments on both the petitions to recuse and the motion for disqualification or inhibition. Memoranda on the subject were also filed and oral arguments were heard by the respondent Tribunal, with the latter afterwards issuing the Resolutions now complained of.

Senator Juan Ponce Enrile in the meantime had voluntarily inhibited himself from participating in the hearings and deliberations of the respondent tribunal in both SET Case No. 00287 and SET Case No. 001-87, the latter being another contest filed by Augusto's Sanchez against him and Senator Santanina T. Rasul as alternative respondents, citing his personal involvement as a party in the two cases.

The petitioners, in essence, argue that considerations of public policy and the norms of fair play and due process imperatively require the mass disqualification sought and that the doctrine of necessity which they perceive to be the foundation petition of the questioned Resolutions does not rule out a solution both practicable and constitutionally unobjectionable, namely; the amendment of the respondent Tribunal's Rules of procedure so as to permit the contest being decided by only three Members of the Tribunal.

The proposed amendment to the Tribunal's Rules (Section 24)—requiring the concurrence of five (5) members for the adoption of

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resolutions of whatever nature is a proviso that where more than four (4) members are disqualified, the remaining members shall constitute a quorum, if not less than three (3) including one (1) Justice, and may adopt resolutions by majority vote with no abstentions. Obviously tailored to fit the situation created by the petition for disqualification, this would, in the context of that situation, leave the resolution of the contest to the only three Members who would remain, all Justices of this Court, whose disqualification is not sought.

We do not agree with petitioners' thesis that the suggested device is neither unfeasible nor repugnant to the Constitution. We opine that in fact the most fundamental objection to such proposal lies in the plain terms and intent of the Constitution itself which, in its Article VI, Section 17, creates the Senate Electoral Tribunal, ordains its composition and defines its jurisdiction and powers.

Sec. 17. The Senate and the House of Representatives shall each have an Electoral Tribunal which shall be the sole judge of all contests relating to the election, returns, and qualifications of their respective Members. Each Electoral Tribunal shall be composed of nine Members, three of whom shall be Justices of the Supreme Court to be designated by the Chief Justice, and the remaining six shall be Members of the Senate or the House of Representatives, as the case may be, who shall be chosen on the basis of proportional representation from the political parties and the parties or organizations registered under the party-list system represented therein. The senior Justice in the Electoral Tribunal hall be its Chairman.

It seems quite clear to us that in thus providing for a Tribunal to be staffed by both Justices of the Supreme Court and Members of the Senate, the Constitution intended that both those "judicial' and 'legislative' components commonly share the duty and authority of deciding all contests relating to the election, returns and qualifications

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of Senators. The respondent Tribunal correctly stated one part of this proposition when it held that said provision "... is a clear expression of an intent that all (such) contests ... shall be resolved by a panel or body in which their (the Senators') peers in that Chamber are represented." The other part, of course, is that the constitutional provision just as clearly mandates the participation in the same process of decision of a representative or representatives of the Supreme Court.

Said intent is even more clearly signalled by the fact that the proportion of Senators to Justices in the prescribed membership of the Senate Electoral Tribunal is 2 to 1-an unmistakable indication that the "legislative component" cannot be totally excluded from participation in the resolution of senatorial election contests, without doing violence to the spirit and intent of the Constitution.

Where, as here, a situation is created which precludes the substitution of any Senator sitting in the Tribunal by any of his other colleagues in the Senate without inviting the same objections to the substitute's competence, the proposed mass disqualification, if sanctioned and ordered, would leave the Tribunal no alternative but to abandon a duty that no other court or body can perform, but which it cannot lawfully discharge if shorn of the participation of its entire membership of Senators.

To our mind, this is the overriding consideration—that the Tribunal be not prevented from discharging a duty which it alone has the power to perform, the performance of which is in the highest public interest as evidenced by its being expressly imposed by no less than the fundamental law.

It is aptly noted in the first of the questioned Resolutions that the framers of the Constitution could not have been unaware of the possibility of an election contest that would involve all 24 Senators-elect, six of whom would inevitably have to sit in judgment thereon.

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Indeed, such possibility might surface again in the wake of the 1992 elections when once more, but for the last time, all 24 seats in the Senate will be at stake. Yet the Constitution provides no scheme or mode for settling such unusual situations or for the substitution of Senators designated to the Tribunal whose disqualification may be sought. Litigants in such situations must simply place their trust and hopes of vindication in the fairness and sense of justice of the Members of the Tribunal. Justices and Senators, singly and collectively.

Let us not be misunderstood as saying that no Senator-Member of the Senate Electoral Tribunal may inhibit or disqualify himself from sitting in judgment on any case before said Tribunal. Every Member of the Tribunal may, as his conscience dictates, refrain from participating in the resolution of a case where he sincerely feels that his personal interests or biases would stand in the way of an objective and impartial judgment. What we are merely saying is that in the light of the Constitution, the Senate Electoral Tribunal cannot legally function as such, absent its entire membership of Senators and that no amendment of its Rules can confer on the three Justices-Members alone the power of valid adjudication of a senatorial election contest.

The charge that the respondent Tribunal gravely abused its discretion in its disposition of the incidents referred to must therefore fail. In the circumstances, it acted well within law and principle in dismissing the petition for disqualification or inhibition filed by herein petitioners. The instant petition for certiorari is DISMISSED for lack of merit.

SO ORDERED.

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G.R. No. 97710 September 26, 1991

DR. EMIGDIO A. BONDOC, petitioner, vs.

REPRESENTATIVES MARCIANO M. PINEDA, MAGDALENO M. PALACOL, COL. JUANITO G. CAMASURA, JR., or any other

representative who may be appointed vice representative Juanita G. Camasura, Jr., and THE HOUSE OF REPRESENTATIVES

ELECTORAL TRIBUNAL, respondents.

GRIO-AQUIÑO, J.:p

This case involves a question of power. May the House of Representatives, at the request of the dominant political party therein, change that party's representation in the House Electoral Tribunal to thwart the promulgation of a decision freely reached by the tribunal in an election contest pending therein? May the Supreme Court review and annul that action of the House?

Even the Supreme Court of the United States over a century ago, in Marbury vs. Madison, 2 L. ed. 60 (1803), had hesitated to embark upon a legal investigation of the acts of the other two branches of the Government, finding it "peculiarly irksome as well as delicate" because it could be considered by some as "an attempt to intrude" into the affairs of the other two and to intermeddle with their prerogatives.

In the past, the Supreme Court, as head of the third and weakest branch of our Government, was all too willing to avoid a political confrontation with the other two branches by burying its head ostrich-like in the sands of the "political question" doctrine, the accepted meaning of which is that 'where the matter involved is left to a decision by the people acting in their sovereign capacity or to the sole determination by either or both the legislative or executive branch of the government, it is beyond judicial cognizance. Thus it was that in suits where the party proceeded against was either the President or

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Congress, or any of its branches for that matter, the courts refused to act." (Aquino vs. Ponce Enrile, 59 SCRA 183, 196.)

In time, however, the duty of the courts to look into the constitutionality and validity of legislative or executive action, especially when private rights are affected came to be recognized. As we pointed out in the celebrated Aquino case, a showing that plenary power is granted either department of government may not be an obstacle to judicial inquiry, for the improvident exercise or the abuse thereof may give rise to a justiciable controversy. Since "a constitutional grant of authority is not usually unrestricted, limitations being provided for as to what may be done and how it is to be accomplished, necessarily then, it becomes the responsibility of the courts to ascertain whether the two coordinate branches have adhered to the mandate of the fundamental law. The question thus posed is judicial rather than political. The duty remains to assure that the supremacy of the Constitution is upheld" (Aquino vs. Ponce Enrile, 59 SCRA 183, 196).

That duty is a part of the judicial power vested in the courts by an express grant under Section 1, Article VIII of the 1987 Constitution of the Philippines which defines judicial power as both authority and duty of the courts '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 power and duty of the courts to nullify in appropriate cases, the actions of the executive and legislative branches of the Government, does not mean that the courts are superior to the President and the Legislature. It does mean though that the judiciary may not shirk "the irksome task" of inquiring into the constitutionality and legality of legislative or executive action when a justiciable controversy is

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brought before the courts by someone who has been aggrieved or prejudiced by such action, as in this case. It is —

a plain exercise of the judicial power, that power vested in courts to enable them to administer justice according to law. ... It is simply a necessary concomitant of the power to hear and dispose of a case or controversy properly before the court, to the determination of which must be brought the test and measure of the law. (Vera vs. Avelino, 77 Phil. 192, 203.)

In the local and congressional elections held on May 11, 1987, Marciano M. Pineda of the Laban ng Demokratikong Pilipino (LDP) and Dr. Emigdio A. Bondoc of the Nacionalista Party (NP) were rival candidates for the position of Representative for the Fourth District of the province of Pampanga. Each received the following votes in the canvass made by the Provincial Board of Canvassers of Pampanga:

Marciano M. Pineda.................... 31,700 votes

Emigdio A. Bondoc..................... 28,400 votes

Difference...................................... 3,300 votes

On May 19, 1987, Pineda was proclaimed winner in the election. In due time, Bondoc filed a protest (HRET Case No. 25) in the House of Representatives Electoral Tribunal ( for short) which is composed of nine (9) members, three of whom are Justices of the Supreme Court and the remaining six are members of the House of Representatives chosen on the basis of proportional representation from the political parties and the parties or organizations registered under the party-list system represented therein (Sec. 17, Art. VI, 1987 Constitution) as follows:

AMEURFINA M. HERRERA Chairman

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Associate Justice

Supreme Court

ISAGANI A. CRUZ Member

Associate Justice

Supreme Court

FLORENTINO P. FELICIANO Member

Associate Justice

Supreme Court

HONORATO Y. AQUINO Member

Congressman

1st District

Benguet LDP

DAVID A. PONCE DE LEON Member

Congressman

1st District Palawan

LDP

SIMEON E. GARCIA, JR. Member

Congressman

2nd District Nueva Ecija

LDP

JUANITO G. CAMASURA, JR. Member

Congressman

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1st District Davao del Sur

LDP

JOSE E. CALINGASAN Member

Congressman

4th District Batangas

LDP

ANTONIO H. CERILLES Member

Congressman

2nd District Zamboanga del Sur

(formerly GAD, now NP)

After the revision of the ballots, the presentation of evidence, and submission of memoranda, Bondoc's protest was submitted for decision in July, 1989.

By October 1990, a decision had been reached in which Bondoc won over Pineda by a margin of twenty-three (23) votes. At that point, the LDP members in the Tribunal insisted on a reappreciation and recount of the ballots cast in some precincts, thereby delaying by at least four (4) months the finalization of the decision in the case.

The reexamination and re-appreciation of the ballots resulted in increasing Bondoc's lead over Pineda to 107 votes. Congressman Camasura voted with the Supreme Court Justices and Congressman Cerilles to proclaim Bondoc the winner of the contest.

Moved by candor and honesty, Congressman Camasura revealed on March 4, 1991, to his 'Chief," Congressman Jose S. Cojuangco, Jr., LDP Secretary General, not only the final tally in the Bondoc case but also that he voted for Bondoc "consistent with truth and justice and self-

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respect," and to honor a "gentlemen's agreement" among the members of the HRET that they would "abide by the result of the appreciation of the contested ballot Congressman Camasura's revelation stirred a hornets' nest in the LDP which went into a flurry of plotting appropriate moves to neutralize the pro-Bondoc majority in the Tribunal.

On March 5, 1991, the HRET issued a Notice of Promulgation of Decision on March 14, 1991 at 2:30 P.M. in HRET Case No. 25. A copy of the notice was received by Bondoc's counsel on March 6, 1991.

On March 13, 1991, the eve of the promulgation of the Bondoc decision, Congressman Cojuangco informed Congressman Camasura by letter that on February 28, 1991 yet, the LDP Davao del Sur Chapter at Digos, Davao del Sur, by Resolution No. 03-91 had already expelled him and Congressman Benjamin Bautista from the LDP for having allegedly helped to organize the Partido Pilipino of Eduardo "Danding" Cojuangco, and for allegedly having invited LDP members in Davao del Sur to join said political party; and that as those acts are "not only inimical uncalled for, unethical and immoral, but also a complete betrayal to (sic) the cause and objectives, and loyalty to LDP," in a meeting on March 12, 1991, the LDP Executive Committee unanimously confirmed the expulsions.

At the same time, Congressman Cojuangco notified Speaker Ramon V. Mitra about the ouster of the two congressmen from the LDP, and asked the House of Representatives, through the Speaker, to take note of it 'especially in matters where party membership is a prerequisite.

At 9:45 in the morning of March 4, 1991, the Chairman of the Tribunal, Mme. Justice Armeurfina M. Herrera, received the following letter dated March 13, 1991, from the Office of the Secretary General of the House of Representatives, informing the Tribunal that on the basis of the letter from the LDP, the House of Representatives, during its plenary session on March 13, 1991, decided to withdraw the

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nomination and rescind the election of Congressman Camasura, Jr. to the House of Electoral Tribunal. The letter reads as follows:

13 March 1991

Honorable Justice Ameurfina Melencio-Herrera Chairman

House of Representatives Electoral Tribunal Constitution Hills Quezon City

Dear Honorable Justice Melencio-Herrera:

I have the honor to notify the House of Electoral Tribunal of the decision of the House of Representatives during its plenary session on 13 March 1991, to withdraw the nomination and to rescind the election of the Honorable Juanito G. Camasura, Jr. to the House Electoral Tribunal on the basis of an LDP communication which is self-explanatory and copies of which are hereto attached.

Thank you.

For the Secretary-General

(SGD.) Josefina D. Azarcon Officer-in-charge Operations Department (p. 10, Rollo.)

Justices Herrera, Cruz, and Feliciano promptly apprised the Chief Justice and Associate Justices of the Supreme Court in writing, of this "distressing development' and asked to be relieved from their assignments in the HRET because —

By the above action (of the House) the promulgation of the decision of the Tribunal in the electoral protest entitled "Bondoc v. Pineda" (HRET Case No. 25), previously scheduled for 14 March 1991, is sought to be aborted (See the Consolidated Bank and Trust Corporation v. Hon.

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Intermediate Appellate Court, G.R. No. 73777-78 promulgated 12 September 1990). Even if there were no legal impediment to its promulgation, the decision which was reached on a 5 to 4 vote may now be confidently expected to be overturned on a motion for reconsideration by the party-litigant which would have been defeated.

The decision in Bondoc v. Pineda was ready as early as October 1990 with a margin of 23 votes in favor of protestant Bondoc. Because some members of the Tribunal requested re-appreciation of some ballots, the finalization of the decision had to be deferred by at least 4 months.

With the re-appreciation completed, the decision, now with a margin of 107 votes in favor of protestant Bondoc, and concurred in by Justices Ameurfina A. Melencio-Herrera, Isagani A. Cruz and Florentino P. Feliciano, and Congressmen Juanita G. Camasura and Antonio H. Cerilles, is set for promulgation on 14 March 1991, with Congressmen Honorato Y. Aquino, David A. Ponce de Leon Simeon E. Garcia, Jr. and Jose E. Calingasan, dissenting.

Congressman Casamura's vote in the Bondoc v. Pineda case was, in our view, a conscience vote, for which he earned the respect of the Tribunal but also the loss of the confidence of the leader of his party.

Under the above circumstances an untenable situation has come about. It is extremely difficult to continue with membership in the Tribunal and for the Tribunal to preserve it. 8 integrity and credibility as a constitutional body charged with a judicial task. It is clear to us that the unseating of an incumbent member of Congress is being prevented at all costs. We believe that the Tribunal should

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not be hampered in the performance of its constitutional function by factors which have nothing to do with the merits of the cases before it.

In this connection, our own experience teaches that the provision for proportional representation in the Tribunal found in Article VI, Section 17 of the 1987 Constitution, should be amended to provide instead for a return to the composition mandated in the 1935 Constitution, that is: three (3) members chosen by the House or Senate upon nomination of the party having the largest number of votes and three (3) of the party having the second largest number of votes: and a judicial component consisting of three (3) justices from the Supreme Court. Thereby, no party or coalition of parties can dominate the legislative component in the Tribunal.

In the alternative, the Senate Electoral Tribunal could perhaps sit as the sole judge of all contests relating to the election, returns and qualifications of members of the House of Representatives. Similarly, the House of Representatives Electoral Tribunal could sit as the sole judge of all such contests involving members of the Senate. In this way, there should be lesser chances of non-judicial elements playing a decisive role in the resolution of election contests.

We suggest that there should also be a provision in the Constitution that upon designation to membership in the Electoral Tribunal, those so designated should divest themselves of affiliation with their respective political parties, to insure their independence and objectivity as they sit in Tribunal deliberations.

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There are only three (3) remaining cases for decision by the Tribunal. Bondoc should have been promulgated today, 14 March 1991. Cabrera v. Apacible (HRET Case No. 21) is scheduled for promulgation on 31 March 1991 and Lucman v. Dimaporo (HRET Case No. 45), after the Holy Week recess.

But political factors are blocking the accomplishment of the constitutionally mandated task of the Tribunal well ahead of the completion of the present congressional term.

Under these circumstances, we are compelled to ask to be relieved from the chairmanship and membership in the Tribunal.

xxx xxx xxx

At the open session of the HRET in the afternoon of the same day, the Tribunal issued Resolution No. 91-0018 cancelling the promulgation of the decision in HRET Case No. 25. The resolution reads:

In view of the formal notice the Tribunal has received at 9:45 tills morning from the House of Representatives that at its plenary session held on March 13, 1991, it had voted to withdraw the nomination and rescind the election of Congressman Camasura to the House of Representatives Electoral Tribunal,' the Tribunal Resolved to cancel the promulgation of its Decision in Bondoc vs. Pineda (HRET Case No. 25) scheduled for this afternoon. This is because, without Congressman Camasura's vote, the decision lacks the concurrence of five members as required by Section 24 of the Rules of the Tribunal and, therefore, cannot be validly promulgated.

The Tribunal noted that the three (3) Justices-members of the Supreme Court, being of the opinion that this

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development undermines the independence of the Tribunal and derails the orderly adjudication of electoral cases, they have asked the Chief Justice, in a letter of even date, for their relief from membership in the Tribunal.

The Tribunal further Noted that Congressman Cerilles also manifested his intention to resign as a member of the Tribunal.

The Tribunal further Noted that Congressmen Aquino, Ponce de Leon, Garcia, Jr., and Calingasan also manifested a similar intention. (p. 37, Rollo.)

On March 19, 1991, this Court, after deliberating on the request for relief of Justices Herrera, Cruz and Feliciano, resolved to direct them to return to their duties in the Tribunal. The Court observed that:

... in view of the sensitive constitutional functions of the Electoral Tribunals as the 'sole judge' of all contests relationship to the election, returns and qualifications of the members of Congress, all members of these bodies are appropriately guided only by purely legal considerations in the decision of the cases before them and that in the contemplation of the Constitution the members-legislators, thereof, upon assumption of their duties therein, sit in the Tribunal no longer as representatives of their respective political parties but as impartial judges. The view was also submitted that, to further bolster the independence of the Tribunals, the term of office of every member thereof should be considered co-extensive with the corresponding legislative term and may not be legally terminated except only by death, resignation, permanent disability, or removal for valid cause, not including political disloyalty.

ACCORDINGLY, the Court Resolved: a) to DECLINE the request of justices Herrera, Cruz, and Feliciano to be

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relieved from their membership in the House of Representatives Electoral Tribunal and instead to DIRECT them to resume their duties therein: b) to EXPRESS its concern over the intrusion of non-judicial factors in the proceedings of the House of Representatives Electoral Tribunal, which performs functions purely judicial in character despite the inclusion of legislators in its membership; and c) to NOTE the view that the term of all the members of the Electoral Tribunals, including those from the legislature, is co-extensive with the corresponding legislative term and cannot be terminated at will but only for valid legal cause, and to REQUIRE the Justices-members of the Tribunal to submit the issue to the said Tribunal in the first instance.

Paras J. filed this separate concurring opinion: 'I concur, but I wish to add that Rep. Camasura should be allowed to cast his original vote in favor of protestant Bondoc, otherwise a political and judicial travesty will take place.' Melencio-Herrera, Cruz and Feliciano, JJ., took no part. Gancayco, J., is on leave.

On March 21, 1991, a petition for certiorari, prohibition and mandamus was filed by Dr. Emigdio A. Bondoc against Representatives Marciano M. Pineda, Magdaleno M. Palacol, Juanita G. Camasura, Jr., or any other representative who may be appointed Vice Representative Juanita G. Camasura, Jr., and the House of Representatives Electoral Tribunal, praying this Court to:

1. Annul the decision of the House of Representatives of March 13, 1991, 'to withdraw the nomination and to rescind the nomination of Representative Juanita G. Camasura, Jr. to the House of Representatives Electoral Tribunal;"

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2. Issue a wilt of prohibition restraining respondent Palacol or whomsoever may be designated in place of respondent Camasura from assuming, occupying and discharging functions as a member of the House of Representatives Electoral Tribunal;

3. Issue a writ of mandamus ordering respondent Camasura to immediately reassume and discharge his functions as a member of the House of Representatives Electoral Tribunal; and

4. Grant such other relief as may be just and equitable.

Upon receipt of the petition, the Court, without giving it due course, required the respondents to comment on the petition within ten days from notice and to enjoin the HRET 'from reorganizing and allowing participation in its proceedings of Honorable Magdaleno M. Palacol or whoever is designated to replace Honorable Juanita G. Camasura in said House of Representatives Electoral Tribunal, until the issue of the withdrawal of the nomination and rescission of the election of said Congressman Camasura as member of the HRET by the House of Representatives is resolved by this Court, or until otherwise ordered by the Court." (p. 39, Rollo.)

Congressman Juanito G. Camasura, Jr. did not oppose the petition.

Congressman Marciano M. Pineda's plea for the dismissal of the petition is centered on Congress' being the sole authority that nominates and elects from its members. Upon recommendation by the political parties therein, those who are to sit in the House of Representatives Electoral Tribunal (and in the Commission on Appointments as well), hence, it allegedly has the sole power to remove any of them whenever the ratio in the representation of the political parties in the House or Senate is materially changed on account of death, incapacity, removal or expulsion from the political party; that a Tribunal member's term of office is not co-extensive with

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his legislative term, for if a member of the Tribunal who changes his party affiliation is not removed from the Tribunal, the constitutional provision mandating representation based on political affiliation would be completely nullified; and that the expulsion of Congressman Camasura from the LDP, is "purely a party affair" of the LDP and the decision to rescind his membership in the House Electoral Tribunal is the sole prerogative of the House-of-Representative Representatives, hence, it is a purely political question beyond the reach of judicial review.

In his comment, respondent Congressman Magdaleno M. Palacol alleged that the petitioner has no cause of action against him because he has not yet been nominated by the LDP for membership in the HRET. Moreover, the petition failed to implead the House of Representatives as an indispensable party for it was the House, not the HRET that withdrew and rescinded Congressman Camasura's membership in the HRET.

The Solicitor General, as counsel for the Tribunal, argued in a similar vein; that the inclusion of the HETH as a party respondent is erroneous because the petition states no cause of action against the Tribunal. The petitioner does not question any act or order of the HRET in violation of his rights. What he assails is the act of the House of Representatives of withdrawing the nomination, and rescinding the election, of Congressman Juanita nito Camasura as a member of the HRET.

Replying to the Solicitor General's Manifestation, the petitioner argued that while the Tribunal indeed had nothing to do with the assailed decision of the House of Representatives, it acknowledged that decision by cancelling the promulgation of its decision in HRET Case No. 25 to his (Bondoc's) prejudice. Hence, although the Tribunal may not be an indispensable party, it is a necessary party to the suit, to assure that complete relief is accorded to the petitioner for "in the ultimate, the Tribunal would have to acknowledge, give recognition,

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and implement the Supreme Court's decision as to whether the relief of respondent Congressman Camasura from the Office of the Electoral Tribunal is valid."

In his reply to Congressman Palacol's Comment, the petitioner explained that Congressman Palacol was impleaded as one of the respondents in this case because after the House of Representatives had announced the termination of Congressman Camasura's membership in the HETH several newspapers of general circulation reported that the House of Representatives would nominate and elect Congressman Palacol to take Congressman Camasura's seat in the Tribunal.

Now, is the House of Representatives empowered by the Constitution to do that, i.e., to interfere with the disposition of an election contest in the House Electoral Tribunal through the ruse of "reorganizing" the representation in the tribunal of the majority party?

Section 17, Article VI of the 1987 Constitution supplies the answer to that question. It provides:

Section 17. The Senate and the House of Representatives shall each have an Electoral Tribunal which shall be the sole judge of all contests relating to the election, returns and qualifications of their respective members, Each Electoral Tribunal shall be composed of nine Members, three of whom shall be Justices of the Supreme Court to be designated by the Chief Justice, and the remaining six shall be Members of the Senate or House of Representatives, as the case may be, who shall be chosen on the basis of proportional representation from the political parties and the parties or organizations registered under the party list system represented therein. The senior Justice in the Electoral Tribunal shall be its Chairman.

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Section 17 reechoes Section 11, Article VI of the 1935 Constitution, except the provision on the representation of the main political parties in the tribunal which is now based on proportional representation from all the political parties, instead of equal representation of three members from each of the first and second largest political aggrupations in the Legislature. The 1935 constitutional provision reads as follows:

Sec. 11. The Senate and the House of Representatives shall have an Electoral Tribunal which shall be the sole judge of all contests relating to the election, returns, and qualifications of their respective Members. 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 member of votes therein. The senior Justice in each Electoral Tribunal shall be its Chairman. (1 935 Constitution of the Philippines.)

Under the above provision, the Justices held the deciding votes, aid it was impossible for any political party to control the voting in the tribunal.

The 1973 Constitution did not provide for an electoral tribunal in the Batasang Pambansa.

The use of the word "sole" in both Section 17 of the 1987 Constitution and Section 11 of the 1935 Constitution underscores the exclusive jurisdiction of the House Electoral Tribunal as judge of contests relating to the election, returns and qualifications of the members of the House of Representatives (Robles vs. House of

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Representatives Electoral Tribunal, G.R. No. 86647, February 5, 1990). The tribunal was created to function as a nonpartisan court although two-thirds of its members are politicians. It is a non-political body in a sea of politicians. What this Court had earlier said about the Electoral Commission applies as well to the electoral tribunals of the Senate and House of Representatives:

The purpose of the constitutional convention creating the Electoral Commission was to provide an independent and impartial tribunal for the determination of contests to legislative office, devoid of partisan consideration, and to transfer to that tribunal all the powers previously exercised by the legislature in matters pertaining to contested elections of its members.

The power granted to the electoral Commission to judge contests relating to the election and qualification of members of the National Assembly is intended to be as complete and unimpaired as if it had remained in the legislature.

The Electoral Tribunals of the Senate and the House were created by the Constitution as special tribunals to be the sole judge of all contests relating to election returns and qualifications of members of the legislative houses, and, as such, are independent bodies which must be permitted to select their own employees, and to supervise and control them, without any legislative interference. (Suanes vs. Chief Accountant of the Senate, 81 Phil. 818.)

To be able to exercise exclusive jurisdiction, the House Electoral Tribunal must be independent. Its jurisdiction to hear and decide congressional election contests is not to be shared by it with the Legislature nor with the Courts.

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The Electoral Commission is a body separate from and independent of the legislature and though not a power in the tripartite scheme of government, it is to all intents and purposes, when acting within the limits of its authority, an independent organ; while composed of a majority of members of the legislature it is a body separate from and independent of the legislature.

xxx xxx xxx

The Electoral Commission, a constitutional organ created for the specific purpose of determining contests relating to election returns and qualifications of members of the National Assembly may not be interfered with by the judiciary when and while acting within the limits of its authority, but the Supreme Court has jurisdiction over the Electoral Commission for the purpose of determining the character, scope and extent of the constitutional grant to the commission as sole judge of all contests relating to the election and qualifications of the members of the National Assembly. (Angara vs. Electoral Commission, 63 Phil. 139.)

The independence of the electoral tribunal was preserved undiminished in the 1987 Constitution as the following exchanges on the subject between Commissioners Maambong and Azcuna in the 1986 Constitutional Commission, attest:

MR. MAAMBONG. Thank you.

My questions will be very basic so we can go as fast as we can. In the case of the electoral tribunal, either of the House or of the Senate, is it correct to say that these tribunals are constitutional creations? I will distinguish these with the case of the Tanodbayan and the Sandiganbayan which are created by mandate of

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the Constitution but they are not constitutional creations. Is that a good distinction?

MR. AZCUNA. That is an excellent statement.

MR. MAAMBONG. Could we, therefore, say that either the Senate Electoral Tribunal or the House Electoral Tribunal is a constitutional body.?

MR. AZCUNA. It is, Madam President.

MR. MAAMBONG. If it is a constitutional body, is it then subject to constitutional restrictions?

MR. AZCUNA It would be subject to constitutional restrictions intended for that body.

MR. MAAMBONG. I see. But I want to find out if the ruling in the case of Vera vs. Avelino, 77 Phil. 192, will still be applicable to the present bodies we are creating since it ruled that the electoral tribunals are not separate departments of the government. Would that ruling still be valid?

MR. AZCUNA. Yes, they are not separate departments because the separate departments are the legislative, the executive and the judiciary; but they are constitutional bodies.

MR. MAAMBONG. Although they are not separate departments of government, I would like to know again if the ruling in Angara vs. Electoral Commission, 53 Phil. 139, would still be

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applicable to the present bodies we are deciding on, when the Supreme court said that these electoral tribunals are independent from Congress, devoid of partisan influence or consideration and, therefore, Congress has no power to regulate proceedings of these electoral tribunals.

MR. AZCUNA. I think that is correct. They are independent although they are not a separate branch of government.

MR. MAAMBONG. There is a statement that in all parliaments of the world, the invariable rule is to leave unto themselves the determination of controversies with respect to the election and qualifications of their members, and precisely they have this Committee on Privileges which takes care of this particular controversy.

Would the Gentleman say that the creation of electoral tribunals is an exception to this rule because apparently we have an independent electoral tribunal?

MR. AZCUNA. To the extent that the electoral tribunals are independent, but the Gentleman will notice that the wordings say: 'The Senate and the House of Representatives shall each have an Electoral Tribunal. 'It is still the Senate Electoral Tribunal and the House Electoral Tribunal. So, technically, it is the tribunal of the House and tribunal of the Senate although they are independent.

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MR. MAAMBONG. But both of them, as we have agreed on, are independent from both bodies?

MR. AZCUNA. That is correct.

MR. MAAMBONG. This is the bottom line of my question. How can we say that these bodies are independent when we still have six politicians sitting in both tribunals?

MR. AZCUNA. Politicians can be independent, Madam President.

MR. MAAMBONG. Madam President, when we discussed a portion of this in the Committee on the Executive, there was a comment by Chief Justice Concepcion-Commissioner Concepcion-that there seems to be some incongruity in these electoral tribunals, considering that politicians still sit in the tribunals in spite of the fact that in the ruling in the case of Sanidad vs. Vera, Senate Electoral tribunal Case No. 1, they are supposed to act in accordance with law and justice with complete detachment from an political considerations. That is why I am asking now for the record how we could achieve such detachment when there are six politicians sitting there.

MR. AZCUNA. The same reason that the Gentleman, while chosen on behalf of the opposition, has, with sterling competence, shown independence in the proceedings of this Commission. I think we can also trust that the members of the tribunals will be independent.

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(pp. 111-112, Journal, Tuesday, July 22, 1986, Emphasis supplied.)

Resolution of the House of Representatives violates the independence of the HRET. —

The independence of the House Electoral Tribunal so zealously guarded by the framers of our Constitution, would, however, by a myth and its proceedings a farce if the House of Representatives, or the majority party therein, may shuffle and manipulate the political (as distinguished from the judicial) component of the electoral tribunal, to serve the interests of the party in power.

The resolution of the House of Representatives removing Congressman Camasura from the House Electoral Tribunal for disloyalty to the LDP, because he cast his vote in favor of the Nacionalista Party's candidate, Bondoc, is a clear impairment of the constitutional prerogative of the House Electoral Tribunal to be the sole judge of the election contest between Pineda and Bondoc.

To sanction such interference by the House of Representatives in the work of the House Electoral Tribunal would reduce the tribunal to a mere tool for the aggrandizement of the party in power (LDP) which the three justices of the Supreme Court and the lone NP member would be powerless to stop. A minority party candidate may as well abandon all hope at the threshold of the tribunal.

Disloyalty to party is not a valid cause for termination of membership in the HRET. —

As judges, the members of the tribunal must be non-partisan. They must discharge their functions with complete detachment, impartiality, and independence even independence from the political party to which they belong. Hence, "disloyalty to party" and "breach of party discipline," are not valid grounds for the expulsion of a member of the tribunal. In expelling Congressman Camasura from the

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HRET for having cast a conscience vote" in favor of Bondoc, based strictly on the result of the examination and appreciation of the ballots and the recount of the votes by the tribunal, the House of Representatives committed a grave abuse of discretion, an injustice, and a violation of the Constitution. Its resolution of expulsion against Congressman Camasura is, therefore, null and void.

Expulsion of Congressman Camasura violates his right to security of tenure. —

Another reason for the nullity of the expulsion resolution of the House of Representatives is that it violates Congressman Camasura's right to security of tenure. Members of the HRET as "sole judge" of congressional election contests, are entitled to security of tenure just as members of the judiciary enjoy security of tenure under our Constitution (Sec. 2, Art. VIII, 1987 Constitution). Therefore, membership in the House Electoral Tribunal may not be terminated except for a just cause, such as, the expiration of the member's congressional term of office, his death, permanent disability, resignation from the political party he represents in the tribunal, formal affiliation with another political party, or removal for other valid cause. A member may not be expelled by the House of Representatives for "party disloyalty" short of proof that he has formally affiliated with another political group. As the records of this case fail to show that Congressman Camasura has become a registered member of another political party, his expulsion from the LDP and from the HRET was not for a valid cause, hence, it violated his right to security of tenure.

There is nothing to the argument of respondent Pineda that members of the House Electoral Tribunal are not entitled to security of tenure because, as a matter of fact, two Supreme Court Justices in the Tribunal were changed before the end of the congressional term, namely: Chief Justice Marcelo B. Fernan who, upon his elevation to the office of Chief Justice, was replaced by Justice Florentino P.

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Feliciano, and the latter, who was temporarily replaced by Justice Emilio A. Gancayco, when he (J. Feliciano) took a leave of absence to deliver a lecture in Yale University. It should be stressed, however, that those changes in the judicial composition to the HRET had no political implications at all unlike the present attempt to remove Congressman Camasura. No coercion was applied on Chief Justice Fernan to resign from the tribunal, nor on Justice Feliciano to go on a leave of absence. They acted on their own free will, for valid reasons, and with no covert design to derail the disposition of a pending case in the HRET.

The case of Congressman Camasura is different. He was expelled from, and by, the LDP to punish him for "party disloyalty" after he had revealed to the Secretary-General of the party how he voted in the Bondoc case. The purpose of the expulsion of Congressman Camasura was to nullify his vote in the Bondoc case so that the HRET's decision may not be promulgated, and so that the way could be cleared for the LDP to nominate a replacement for Congressman Camasura in the Tribunal. That stratagem of the LDP and the House of Representatives is clearly aimed to substitute Congressman Camasura's vote and, in effect, to change the judgment of the HRET in the Bondoc case.

The judicial power of this Court has been invoked by Bondoc for the protection of his rights against the strong arm of the majority party in the House of Representatives. The Court cannot be deaf to his plea for relief, nor indifferent to his charge that the House of Representatives had acted with grave abuse of discretion in removing Congressman Camasura from the House Electoral Tribunal. He calls upon the Court, as guardian of the Constitution, to exercise its judicial power and discharge its duty to protect his rights as the party aggrieved by the action of the House. The Court must perform its duty under the Constitution "even when the violator be the highest official of the land or the Government itself" (Concurring opinion of J. Antonio Barredo in Aquino vs. Ponce-Enrile, 59 SCRA 183, 207).

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Since the expulsion of Congressman Camasura from the House Electoral Tribunal by the House of Representatives was not for a lawful and valid cause, but to unjustly interfere with the tribunal's disposition of the Bondoc case and to deprive Bondoc of the fruits of the Tribunal's decision in his favor, the action of the House of Representatives is clearly violative of the constitutional mandate (Sec. 17, Art. VI, 1987 Constitution) which created the House Electoral Tribunal to be the "sole judge" of the election contest between Pineda and Bondoc. We, therefore, declare null and void the resolution dated March 13, 1991 of the House of Representatives withdrawing the nomination, and rescinding the election, of Congressman Camasura as a member of the House Electoral Tribunal. The petitioner, Dr. Emigdio Bondoc, is entitled to the reliefs he prays for in this case.

WHEREFORE, the petition for certiorari, prohibition and mandamus is granted. The decision of the House of Representatives withdrawing the nomination and rescinding the election of Congressman Juanita G. Camasura, Jr. as a member of the House Electoral Tribunal is hereby declared null and void ab initio for being violative of the Constitution, and Congressman Juanita G. Camasura, Jr. is ordered reinstated to his position as a member of the House of Representatives Electoral Tribunal. The HRET Resolution No. 91-0018 dated March 14, 1991, cancelling the promulgation of the decision in HRET Case No. 25 ("Dr. Emigdio Bondoc vs. Marciano A. Pineda") is also set aside. Considering the unconscionable delay incurred in the promulgation of that decision to the prejudice of the speedy resolution of electoral cases, the Court, in the exercise of its equity jurisdiction, and in the interest of justice, hereby declares the said decision DULY PROMULGATED, effective upon service of copies thereof on the parties, to be done immediately by the Tribunal. Costs against respondent Marciano A. Pineda.

SO ORDERED.

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G.R. No. 105323 July 3, 1992

FRANCISCO I. CHAVEZ, petitioner, vs.

COMMISSION ON ELECTIONS, respondent.

BIDIN, J.:

This case was originally an urgent petition ad cautelam praying, among others, for the issuance of a temporary restraining order enjoining respondent Commission on Elections (Comelec) from proclaiming the 24th highest senatorial candidate.

The antecedents facts are as follows:

On May 5, 1992, this Court issued a Resolution in G.R. No. 104704, entitled "Francisco Chavez v. Comelec, et al.," disqualifying Melchor Chavez, private respondent therein, from running for the Office of Senator in the May 11, 1992 elections.

The above-mentioned resolution was received by respondent Comelec on May 6, 1992. On the same day, petitioner filed an urgent motion with the Comelec praying that it (1) disseminate through the fastest available means this Court's Resolution dated May 5, 1992 to all regional election directors, provincial election supervisors, city and municipal election registrars, boards of election inspectors, the six (6) accredited political parties and the general public; and (2) order said election officials to delete the name of Melchor Chavez as printed in the certified list of candidates tally sheets, election returns and "to count all votes cast for the disqualified Melchor Chavez in favor of Francisco I. Chavez . . . ."

On May 8, 1992, the Comelec issued Res. No. 92-1322 which resolved to delete the name of Melchor Chavez from the list of qualified candidates. However, it failed to order the crediting of all "Chavez"

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votes in favor of petitioner as well as the cancellation of Melchor Chavez' name in the list of qualified candidates.

According to petitioner, the Comelec failed to perform its mandatory function under Sec. 7, RA 7166 which states that if a candidate has been disqualified, it shall be the duty of the Commission to instruct without delay the deletion of the name of said candidate.

Thus, the name of Melchor Chavez remained undeleted in the list of qualified candidates on election day.

Confusion arose, allegedly nationwide, as the "Chavez" votes were either declared stray or invalidated by the Boards of Election Inspectors (BEIs).

On May 11, 1992, Commissioner Rama of respondent Comelec issued a directive over radio and TV ordering all "Chavez" votes to be credited in favor of petitioner. Petitioner contends that the radio and TV announcements did not reach the BEI at the 170,354 precincts nationwide. As a result, "Chavez" votes were not credited in favor of petitioner.

On May 12, 1992, Comelec issued another Resolution directing all municipal and city election registrars throughout the country to examine the minutes of voting submitted by the BEIs and to credit all the "Chavez" votes, which have been declared stray or invalidated by the BEIs, in favor of petitioner.

Petitioner maintains that the said resolution proved futile because it did not reach all the various BEIs of the 170,354 election precincts throughout the country on time for implementation and that the minutes of voting did not indicate the number of "Chavez" votes which were declared stray or invalidated.

On May 14, 1992, petitioner sent a letter to the Comelec requesting the latter to devise ways and means in crediting "Chavez" votes in his

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favor but the respondent Commission failed to act on said letter/complaint.

On May 23, 1992, petitioner filed an urgent petition before the respondent Comelec praying the latter to (1) implement its May 12, 1992 resolution with costs de officio; (2) to re-open the ballot boxes in 13 provinces including the National Capital Region involving some 80,348 precincts (p. 9 of petition) and to scan for the "Chavez" votes for purposes of crediting the same in his favor; (3) make the appropriate entries in the election returns/certificates of canvass; and (4) to suspend the proclamation of the 24 winning candidates.

Dissatisfied with the failure of respondent Comelec to act on his petition, petitioner filed, as aforesaid, this urgent petition for prohibition and mandamus, with prayer for the issuance of a temporary restraining order, enjoining the Comelec from proclaiming the 24th highest senatorial candidate, without first implementing respondent Comelec's resolution of May 12, 1992 and acting upon petitioner's letter/complaint dated May 14, 1992 and urgent petition dated May 22, 1992.

It is the submission of petitioner that assuming only ten (10) "Chavez" votes were invalidated per precinct, he would have lost at least 1.7 million votes (considering that there are more than 170,000 precincts nationwide); the result of which will affect the 24 ranking senatorial candidates.

Petitioner alleges that respondent Comelec acted capriciously and whimsically and with grave abuse of discretion and therefore prays that the Comelec be enjoined from proclaiming the 24th winning senatorial candidate until after his petition before the Commission is resolved.

On June 4, 1992, the Court issued a Temporary Restraining Order enjoining respondent Comelec from proclaiming the 24th winning senatorial candidate and set the case for hearing on June 9, 1992.

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On the same day (June 4, 1992), petitioner filed a manifestation stating that on May 30, 1992, his urgent petition dated May 22, 1992 was dismissed by respondent Comelec and prayed that the petition ad cautelam at bar be considered a regular petition.

On June 8, 1992, Senator Agapito Aquino ** filed a Motion for Leave to Intervene with Comment in Intervention praying for the dismissal of the instant petition on the ground that the law does not allow pre-proclamation controversy involving the election of members of the Senate.

After hearing the arguments of the parties on June 9, 1992, the Court resolved to lift the temporary restraining order in the afternoon of the same day (June 9, 1992).

Coming now to the merits, We find the petition devoid of any.

As stated earlier, petitioner's urgent petition dated May 22, 1992 was dismissed by respondent Comelec on May 30, 1992. Had it not been prayed that the proclamation of the 24th winning senatorial candidate be suspended, which this Court granted on June 4, 1992, the instant petition would have been dismissed outright for having become moot and academic. But even then, this Court could not have acted favorably on petitioner's plaint.

The alleged inaction of respondent Comelec in ordering the deletion of Melchor Chavez's name in the list of qualified candidates does not call for the exercise of the Court's function of judicial review. This Court can review the decisions or orders of the Comelec only in cases of grave abuse of discretion committed by it in the discharge of its quasi-judicial powers and not those arising from the exercise of its administrative functions. Respondent Commission's alleged failure to implement its own resolution is undoubtedly administrative in nature, hence, beyond judicial interference (See Filipinas Engineering Co. v. Ferrer, 135 SCRA 25 [1985]; Aratuc v. Commission on Elections, 88 SCRA 251 [1979]; see also Pungutan v. Abubakar, 43 SCRA 1

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[1972]). As aptly observed by the Solicitor General, respondent Comelec can administratively undo what it has administratively left undone(Manifestation, p. 2). Moreover, respondent Comelec has in fact, on May 6, 1992 to be exact, ordered the deletion of Melchor Chavez's name not only on the official list of candidates, but also on the election returns, tally sheet and certificate of canvass (Comment, p. 7). Hence, petitioner's allegation that respondent Comelec failed to implement Res. No. 92-132 does not hold water.

Be that as it may, there are other compelling reasons why the instant petition is bound to fail.

A simple reading of the petition would readily show that petitioner has no cause of action, the controversy presented being one in the nature of a pre-proclamation. **

While the Commission has exclusive jurisdiction over pre-proclamation controversies involving local elective officials (Sec. 242, Omnibus Election Code), nevertheless, pre-proclamation cases are not allowed in elections for President, Vice-President, Senator and Member of the House of Representatives.

Sec. 15 of Republic Act 7166 provides:

Sec. 15. Pre-proclamation Cases Not Allowed in Elections for President, Vice-President, Senator, and Member of the House of Representatives. — For purposes of the elections for President, Vice-President, Senator and Member of the House of Representatives, no pre-proclamation cases shall be allowed on matters relating to the preparation, transmission, receipt, custody and appreciation of the election returns or the certificate of canvass, as the case may be. However, this does not preclude the authority of the appropriate canvassing body motu proprio or upon written complaint of an interested person to correct

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manifest errors in the certificate of canvass or election returns before it. (emphasis supplied)

xxx xxx xxx

Any objection on the election returns before the city or municipal board of canvassers, or on the municipal certificates of canvass before the provincial boards of canvassers or district board of canvassers in Metro Manila Area, shall be specifically noted in the minutes of their respective proceedings.

It is clear from the above-quoted provision of the law that "pre-proclamation cases (are) not allowed in elections for President,Vice-President, Senator and Member of the House of Representatives.'' What is allowed is the correction of "manifest errors in the certificate of canvass or election returns." To be manifest, the errors must appear on the face of the certificates of canvass or election returns sought to be corrected and/or objections thereto must have been made before the board of canvassers and specifically noted in the minutes of their respective proceedings.

In the case at bar, however, petitioner prays not only for a restraining order enjoining "the proclamation of the 24th highest ranking senatorial candidate without first acting upon petitioner's letter/complaint dated May 14, 1992 and urgent petition dated May 22, 1992" but also prays that judgment be rendered requiring the Comelec to re-open the ballot boxes in 80,348 precincts in 13 provinces therein enumerated (Petition, p. 9) including Metro Manila, scan the ballots for "Chavez" votes which were invalidated or declared stray and credit said scanned "Chavez" votes in favor of petitioner.

It is quite obvious that petitioner's prayer does not call for the correction of "manifest errors in the certificates of canvass or election returns" before the Comelec but for the re-opening of the ballot boxes and appreciation of the ballots contained therein. Indeed, petitioner

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has not even pointed to any "manifest error" in the certificates of canvass or election returns he desires to be rectified. There being none, petitioner's proper recourse is to file a regular election protest which, under the Constitution and the Omnibus Election Code, exclusively pertains to the Senate Electoral Tribunal.

Thus, Sec. 17, Art. VI of the Constitution provides that "(t)he Senate and the House of Representatives shall each have an Electoral Tribunal which shall be the sole judge of all contests relating to the election, returns, and qualifications of their respective Members. . . ." (emphasis supplied). The word "sole" underscores the exclusivity of the Tribunals' jurisdiction over election contests relating to their respective Members (Co v. Electoral Tribunal of the House of Representatives, 199 SCRA 692 [1991]; Lazatin v. House of Representatives Electoral Tribunal, 168 SCRA 391 [1988]; Angara v. Electoral Commission, 63 Phil. 139 [1936]). It is therefore crystal clear that this Court has no jurisdiction to entertain the instant petition. It is the Senate Electoral Tribunal which has exclusive jurisdiction to act on the complaint of petitioner involving, as it does, contest relating to the election of a member of the Senate. As aforesaid, petitioner's proper recourse is to file a regular election protest before the Senate Electoral Tribunal after the winning senatorial candidates have been proclaimed.

Petitioner argues, on the other hand, that a recount before the Senate Electoral Tribunal where he would be forced to shell out the expenses imposes not only a property requirement for the enjoyment of the right to be voted upon but also a price on the right of suffrage which would ultimately stifle the sovereign will.

The argument, however, is beside the point. The law is very clear on the matter and it is not right for petitioner to ask this Court to abandon settled jurisprudence, engage in judicial legislation, amend the Constitution and alter the Omnibus Election Code. The mandatory procedures laid down by the existing law in cases like the one at bar

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must be faithfully followed lest we allow anarchy to reign. The proper recourse is for petitioner to ask not this Court but the Legislature to enact remedial measures.

Finally, the instant petition falls squarely with the case of Sanchez v. Commission on Elections (153 SCRA 67 [1987]) and the disposition arrived therein finds application in the case at bar, mutatis mutandis:

Sanchez anchors his petition for recount and/or reappreciation on Section 243, paragraph (b) of the Omnibus Election Code in relation to Section 234 thereof with regard to material defects in canvassed election returns. He contends that the canvassed returns discarding "Sanchez" votes as stray were "incomplete" and therefore warrant a recount or reappreciation of the ballots under Section 234.

xxx xxx xxx

. . . The fact that some votes written solely as "Sanchez" were declared stray votes because of the inspectors' erroneous belief that Gil Sanchez had not been disqualified as a candidate, involves an erroneous appreciation of the ballots. It is established by the law as well as jurisprudence . . . that errors in the appreciation of ballots by the board of inspectors are proper subject for election protest and not for recount or reappreciation of ballots.

2. The appreciation of the ballots cast in the precincts is not a "proceeding of the board of canvassers" for purposes of pre-proclamation proceedings under Section 241, Omnibus Election Code, but of the boards of election inspectors who are called upon to count and appreciate the votes in accordance with the rules of appreciation provided in Section 211, Omnibus Election Code. Otherwise stated, the appreciation of ballots is not part of the proceedings of the board of canvassers. The function

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of ballots appreciation is performed by the boards of election inspectors at the precinct level. (Emphasis supplied)

3. The scope of pre-proclamation controversy is limited to the issues enumerated under Sec. 243 of the Omnibus Election Code. The enumeration therein of the issues that may be raised in pre-proclamation controversy is restrictive and exclusive. In the absence of any clear showing or proof that the election returns canvassed are incomplete or contain material defects (sec. 234), appear to have been tampered with, falsified or prepared under duress (sec. 235) and/or contain discrepancies in the votes credited to any candidate, the difference of which affects the result of the election (sec. 236), which are the only instances where a pre-proclamation recount may be resorted to, granted the preservation of the integrity of the ballot box and its contents, Sanchez' petition must fail. The complete election returns whose authenticity is not in question, must be prima facie considered valid for the purpose of canvassing the same and proclamation of the winning candidates.

xxx xxx xxx

7. The ground for recount relied upon by Sanchez is clearly not among the issues that may be raised in pre-proclamation controversy. His allegation of invalidation of "Sanchez" votes intended for him bear no relation to the correctness and authenticity of the election returns canvassed. Neither the Constitution nor statute has granted the Comelec or the board of canvassers the power in the canvass of election returns to look beyond the face thereof, once satisfied of their authenticity (Abes v. Comelec, 21 SCRA 1252, 1256).

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In the case at bar, petitioner's allegation that "Chavez" votes were either invalidated or declared stray has no relation to the correctness or authenticity of the election returns canvassed. Otherwise stated, petitioner has not demonstrated any manifest error in the certificates of canvass or election returns before the Comelec which would warrant their correction. As the authenticity of the certificates of canvass or election returns are not questioned, they must be prima facie considered valid for purposes of canvassing the same and proclamation of the winning candidates (Sanchez v. Comelec, supra).

Premises considered, the Court Resolved to DISMISS the instant petition for lack of merit.

SO ORDERED.

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G.R. No. 141489 November 29, 2002

SENATOR AQUILINO Q. PIMENTEL, JR., REPRESENTATIVES MELVYN D. EBALLE, LEONARDO Q. MONTEMAYOR,

CRESENTE C. PAEZ, LORETTA ANN P. ROSALES and PATRICIA M. SARENAS, petitioners,

vs. HOUSE OF REPRESENTATIVES ELECTORAL TRIBUNAL,

JUSTICES JOSE A.R. MELO, VICENTE V. MENDOZA and JOSE C. VITUG, and REPRESENTATIVES ASANI S. TAMMANG, RAUL

M. GONZALES, DIDAGEN P. DILANGALEN, DANTON Q. BUESER, NAPOLEON R. BERATIO, SIMEON E. GARCIA and

SPEAKER MANUEL B. VILLAR, JR., respondents.

-----------------------------

G.R. No. 141490 November 29, 2002

SENATOR AQUILINO Q. PIMENTEL, JR. REPRESENTATIVES MELVYN D. EBALLE, LEONARDO Q. MONTEMAYOR,

CRESENTE C. PAEZ, LORETTA ANN P. ROSALES and PATRICIA M. SARENAS, petitioners,

vs. COMMISSION ON APPOINTMENTS, its Chair, SENATE

PRESIDENT BLAS F. OPLE, and Members, namely: SENATORS FRANKLIN M. DRILON, RENATO L. CAYETANO, LOREN

LEGARDA-LEVISTE, ROBERT Z. BARBERS, ANNA DOMINIQUE M.L. COSETENG, GREGORIO HONASAN, RAMON B.

MAGSAYSAY, JR., TERESA AQUINO-ORETA, RAUL S. ROCO, FRANCISCO S. TATAD, VICENTE C. SOTTO III and

REPRESENTATIVES LUIS A. ASISTIO, EMILIO R. ESPINOSA, JR., WIGBERTO E. TAÑADA, MANUEL M. GARCIA, SIMEON A.

DATUMANONG, ANTONIO M. DIAZ, FAUSTINO S. DY, JR., PACIFICO M. FAJARDO, ERNESTO F. HERRERA, NUR G.

JAAFAR, CARLOS M. PADILLA, ROGELIO M. SARMIENTO and SPEAKER MANUEL B. VILLAR, JR., respondents.

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CARPIO, J.:

The Case

Before this Court are two original petitions for prohibition and mandamus with prayer for writ of preliminary injunction. Petitioners assail the composition of the House of Representatives Electoral Tribunal ("HRET" for brevity) and the Commission on Appointments ("CA" for brevity). Petitioners pray that respondents be ordered to "alter, reorganize, reconstitute and reconfigure" the composition of the HRET and the CA to include party-list representatives in accordance with Sections 17 and 18, Article VI of the 1987 Constitution and Republic Act No. 7941, otherwise known as the Party-List System Act. Petitioners further pray that the HRET and the CA be enjoined from exercising their functions until they have been reorganized.

Antecedent Facts

Section 5, Article VI of the 1987 Constitution provides for a party-list system in the House of Representatives ("House" for brevity), as follows:

"Sec. 5. (1) The House of Representatives shall be composed of not more than two hundred and fifty members, unless otherwise fixed by law, who shall be elected from legislative districts apportioned among the provinces, cities, and the Metropolitan Manila area in accordance with the number of their respective inhabitants, and on the basis of a uniform and progressive ratio, and those who, as provided by law, shall be elected through a party-list system of registered national, regional and sectoral parties or organizations.

(2) The party-list representatives shall constitute twenty per centum of the total number of representatives including those under the party list. For three consecutive terms after the ratification of this Constitution, one-half of the seats allocated to

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party-list representatives shall be filled, as provided by law, by selection or election from the labor, peasant, urban poor, indigenous cultural communities, women, youth and such other sectors as may be provided by law except the religious sector."

On March 3, 1995, the Party-List System Act took effect. The Act sought to "promote proportional representation in the election of representatives, to the House of Representatives through a party-list system of registered national, regional and sectoral parties or organizations or coalitions thereof, which will enable Filipino citizens belonging to marginalized and underrepresented sectors, organizations and parties, and who lack well-defined political constituencies but who could contribute to the formulation and enactment of appropriate legislation that will benefit the nation as a whole, to become members of the House of Representatives."

On May 11, 1998, in accordance with the Party-List System Act, national elections were held which included, for the first time, the election through popular vote of party-list groups and organizations whose nominees would become members of the House. Proclaimed winners were 14 party-list representatives from 13 organizations, including petitioners from party-list groups Association of Philippine Electric Cooperatives (APEC), Alyansang Bayanihan ng mga Magsasaka, Manggagawang Bukid at Mangingisda (ABA), NATCO Network Party (COOP-NATCCO), Akbayan! Citizens Action Party (AKBAYAN), and Abanse! Pinay (ABANSE). Due to the votes it garnered, APEC was able to send 2 representatives to the House, while the 12 other party-list groups had one representative each. Also elected were district representatives belonging to various political parties.

Subsequently, the House constituted its HRET and CA contingent by electing its representatives to these two constitutional bodies. In practice, the procedure involves the nomination by the political parties of House members who are to occupy seats in the HRET and

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the CA. From available records, it does not appear that after the May 11, 1998 elections the party-list groups in the House nominated any of their representatives to the HRET or the CA. As of the date of filing of the instant petitions, the House contingents to the HRET and the CA were composed solely of district representatives belonging to the different political parties.

On January 18, 2000, Senator Aquilino Q. Pimentel, Jr. wrote two letters addressed to then Senate President Blas F. Ople, as Chairman of the CA, and to Associate Justice of the Supreme Court Jose A. R. Melo (now retired),as Chairman of the HRET. The letters requested Senate President Ople and Justice Melo to cause the restructuring of the CA and the HRET, respectively, to include party-list representatives to conform to Sections 17 and 18, Article VI of the 1987 Constitution.

In its meeting of January 20, 2000, the HRET resolved to direct the Secretary of the Tribunal to refer Senator Pimentel’s letter to the Secretary-General of the House of Representatives. On the same day, HRET Secretary Daisy B. Panga-Vega, in an Indorsement of even date, referred the letter to House of Representatives Secretary General Roberto P. Nazareno.

On February 2, 2000, petitioners filed with this Court their Petitions for Prohibition, Mandamus and Preliminary Injunction (with Prayer for Temporary Restraining Order) against the HRET, its Chairman and Members, and against the CA, its Chairman and Members. Petitioners contend that, under the Constitution and the Party-List System Act, party-list representatives should have 1.2 or at least 1 seat in the HRET, and 2.4 seats in the CA.Petitioners charge that respondents committed grave abuse of discretion in refusing to act positively on the letter of Senator Pimentel. In its Resolution of February 8, 2000, the Court en banc directed the consolidation of G.R. No. 141490 with G.R. No. 141489.

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On February 11, 2000, petitioners filed in both cases a motion to amend their petitions to implead then Speaker Manuel B. Villar, Jr. as an additional respondent, in his capacity as Speaker of the House and as one of the members of the CA. The Court granted both motions and admitted the amended petitions.

Senator Pimentel filed the instant petitions on the strength of his oath to protect, defend and uphold the Constitution and in his capacity as taxpayer ‘and as a member of the CA. He was joined by 5 party-list representatives from APEC, ABA, ABANSE, AKBAYAN and COOP-NATCCO as co-petitioners.

Petitioners cite as basis Sections 17 and 18, Article VI of the 1987 Constitution, to wit:

"Sec. 17. The Senate and the House of Representatives shall each have an Electoral Tribunal which shall be the sole judge of all contests relating to the election, returns and qualifications of their respective Members. Each Electoral Tribunal shall be composed of nine Members, three of whom shall be Justices of the Supreme Court to be designated by the Chief Justice, and the remaining six shall be Members of the Senate or the House of Representatives, as the case may be, who shall be chosen on the basis of proportional representation from the political parties and the parties or organizations registered under the party-list system represented therein. The senior Justice in the Electoral Tribunal shall be its Chairman."

"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

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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," (Emphasis supplied)

Petitioners also invoke the following provision of Section 11 of Republic Act No. 7941:

"Sec. 11. Number of Party-List Representatives. - The party-list representatives shall constitute twenty per centum (20%) of the total number of the members of the House of Representatives including those under the party-list. xxx"

According to the Solicitor General’s Consolidated Comment, at the time petitioners filed the instant petitions the House had 220 members, 14 of whom were party-list representatives, constituting 6.3636% of the House. Of the remaining 206 district representatives affiliated with different political parties, 151 belonged to LAMP (68.6354%), 36 belonged to LAKAS (16.3636%), 13 to the Liberal Party (5.9090%), 1 member (0.4545%) each to KBL, PDRLM, Aksyon Demokratiko, Reporma and PROMDI, and 1 representative was an independent.

In their Reply to Consolidated Comment, petitioners alleged that, following the Solicitor General’s computation, the LP and LAKAS were over-represented in the HRET and the CA. Petitioners particularly assail the presence of one LP representative each in the HRET and the CA, and maintain that the LP representatives should be ousted and replaced with nominees of the 14 party-list representatives.

The Issues

Petitioners raise the following issues:

1. WHETHER THE PRESENT COMPOSITION OF THE HOUSE ELECTORAL TRIBUNAL VIOLATES THE CONSTITUTIONAL

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REQUIREMENT OF PROPORTIONAL REPRESENTATION BECAUSE THERE ARE NO PARTY-LIST REPRESENTATIVES IN THE HRET.

2. WHETHER THE PRESENT MEMBERSHIP OF THE HOUSE IN THE COMMISSION ON APPOINTMENTS VIOLATES THE CONSTITUTIONAL REQUIREMENT OF PROPORTIONAL REPRESENTATION BECAUSE THERE ARE NO PARTY-LIST REPRESENTATIVES IN THE CA.

3. WHETHER THE REFUSAL OF THE HRET AND THE CA TO RECONSTITUTE THEMSELVES TO INCLUDE PARTY-LIST REPRESENTATIVES CONSTITUTES GRAVE ABUSE OF DISCRETION.

On the other hand, the Solicitor General argues that the instant petitions are procedurally defective and substantially lacking in merit for having been filed’ prematurely, thus:

"It is a generally accepted principle that the averments in the pleading determine the existence of a cause of action. In the instant petitions, petitioners failed to aver that they or any one of them was elected by a party or organization registered under the party-list system as a Member of the HRET or CA to represent said party or organization under the party-list system of the House of Representatives."

The Ruling of the Court

Petitioners urge the Court to rule on the issues raised in the petitions under review, citing the following pronouncement in Guingona Jr. v. Gonzales :

"Where constitutional issues are properly raised in the context of the alleged facts, procedural questions acquire a relatively minor significance, and the transcendental importance to the public of the

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case demands that they be settled promptly and definitely brushing aside xxx technicalities of procedure."

Petitioners’ reliance on Guingona, Jr. v. Gonzales is misplaced. The "procedural questions" that petitioners want the Court to brush aside are not mere technicalities but substantive matters that are specifically provided for in the constitutional provisions cited by petitioners.

The Constitution expressly grants to the House of Representatives the prerogative, within constitutionally defined limits, to choose from among its district and party-list representatives those who may occupy the seats allotted to the House in the HRET and the CA. Section 18, Article VI of the Constitution explicitly confers on the Senate and on the House the authority to elect among their members those who would fill the 12 seats for Senators and 12 seats for House members in the Commission on Appointments. Under Section 17, Article VI of the Constitution,each chamber of Congress exercises the power to choose, within constitutionally defined limits, who among their members would occupy the allotted 6 seats of each chamber’s respective electoral tribunal.

These constitutional provisions are reiterated in Rules 3 and 4 (a) of the 1998 Rules of the House of Representatives Electoral Tribunal, to wit:

"Rule 3. Composition. - The 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 House of Representatives who shall be chosen on the basis of proportional representation from the political parties and the parties or organizations registered under the party-list system represented therein. The Senior Justice in the Tribunal shall be its Chairman.

Rule 4. Organization. - (a) Upon the designation of the Justices of the Supreme Court and the election of the Members of the House

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of Representatives who are to compose the House of Representatives Electoral Tribunal pursuant to Sections 17 and 19 of Article VI of the Constitution, the Tribunal shall meet for its organization and adoption of such resolutions as it may deem proper." (Emphasis supplied)

Likewise, Section 1 of the Rules of the Commission on Appointments provides:

"Section 1. Composition of the Commission On Appointments. Within thirty (30) days after both Houses of Congress shall have organized themselves with the election of the Senate President and the Speaker of the House of Representatives, the Commission on Appointments shall be constituted. It shall be composed of twelve (12) Senators and twelve (12) 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 herein.

(Emphasis supplied)

Thus, even assuming that party-list representatives comprise a sufficient number and have agreed to designate common nominees to the HRET and the CA, their primary recourse clearly rests with the House of Representatives and not with this Court. Under Sections 17 and 18, Article VI of the Constitution, party-list representatives must first show to the House that they possess the required numerical strength to be entitled to seats in the HRET and the CA. Only if the House fails to comply with the directive of the Constitution on proportional representation of political parties in the HRET and the CA can the party-list representatives seek recourse to this Court under its power of judicial review. Under the doctrine of primary jurisdiction, prior recourse to the House is necessary before petitioners

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may bring the instant case to the court. Consequently, petitioners’ direct recourse to this Court is premature.

The discretion of the House to choose its members to the HRET and the CA is not absolute, being subject to the mandatory constitutional rule on proportional representation. However, under the doctrine of separation of powers, the Court may not interfere with the exercise by the House of this constitutionally mandated duty, absent a clear violation of the Constitution or grave abuse of discretion amounting to lack or excess of jurisdiction.Otherwise, ‘the doctrine of separation of powers calls for each branch of government to be left alone to discharge its duties as it sees fit. Neither can the Court speculate on what action the House may take if party-list representatives are duly nominated for membership in the HRET and the CA.

The instant petitions are bereft of any allegation that respondents prevented the party-list groups in the House from participating in the election of members of the HRET and the CA. Neither does it appear that after the May 11, 1998 elections, the House barred the party-list representatives from seeking membership in the HRET or the CA. Rather, it appears from the available facts that the party-list groups in the House at that time simply refrained from participating in the election process. The party-list representatives did not designate their nominees even up to the time they filed the instant petitions, with the predictable result that the House did not consider any party-list representative for election to the HRET or the CA. As the primary recourse of the party-list representatives lies with the House of Representatives, ‘the Court cannot resolve the issues presented by petitioners at this time.

Moreover, it is a well-settled rule that a constitutional question will not be heard and resolved by the courts unless the following requirements of judicial inquiry concur: (1) there must be an actual controversy; (2) the person or party raising the constitutional issue must have a personal and substantial interest in the resolution of the

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controversy; (3) the controversy must be raised at the earliest reasonable opportunity; and (4) the resolution of the constitutional issue must be indispensable to the final determination of the controversy.

The five party-list representatives who are petitioners in the instant case have not alleged that they are entitled to, and have been unlawfully deprived of, seats in the HRET or the CA. Neither have they claimed that they have been nominated by the party-list groups in the House to the HRET or the CA. As such, they do not possess the personal and substantial interest required to confer them with locus standi. The party raising the constitutional issue must have "such personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court depends for illumination of difficult constitutional questions."

We likewise find no grave abuse in the action or lack of action by the HRET and the CA in response to the letters of Senator Pimentel. Under Sections 17 and 18 of Article VI of the 1987 Constitution and their internal rules, the HRET and the CA are bereft of any power to reconstitute themselves.

Finally, the issues raised in the petitions have been rendered academic by subsequent events. On May 14, 2001, a new set of district and party-list representatives were elected to the House. The Court cannot now resolve the issue of proportional representation in the HRET and the CA based on the "present composition" of the House of Representatives as presented by petitioners and the Solicitor General. With the May 14, 2001 elections, it is certain that the composition of the House has changed. In the absence of a proper petition assailing the present composition of the HRET and the CA, the instant petitions must fail. Otherwise, for the Court to rule on the instant petitions at this time would be tantamount to rendering an advisory opinion, which is outside our jurisdiction.

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WHEREFORE, the consolidated petitions for prohibition and mandamus are DISMISSED.

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G.R. No. 189466 February 11, 2010

DARYL GRACE J. ABAYON, Petitioner, vs.

THE HONORABLE HOUSE OF REPRESENTATIVES ELECTORAL TRIBUNAL, PERFECTO C. LUCABAN, JR., RONYL S. DE LA

CRUZ and AGUSTIN C. DOROGA, Respondents.

x - - - - - - - - - - - - - - - - - - - - - - -x

G.R. No. 189506

CONGRESSMAN JOVITO S. PALPARAN, JR., Petitioner, vs.

HOUSE OF REPRESENTATIVES ELECTORAL TRIBUNAL (HRET), DR. REYNALDO LESACA, JR., CRISTINA PALABAY,

RENATO M. REYES, JR., ERLINDA CADAPAN, ANTONIO FLORES and JOSELITO USTAREZ,Respondents.

ABAD, J.:

These two cases are about the authority of the House of Representatives Electoral Tribunal (HRET) to pass upon the eligibilities of the nominees of the party-list groups that won seats in the lower house of Congress.

The Facts and the Case

In G.R. 189466, petitioner Daryl Grace J. Abayon is the first nominee of the Aangat Tayo party-list organization that won a seat in the House of Representatives during the 2007 elections.

Respondents Perfecto C. Lucaban, Jr., Ronyl S. Dela Cruz, and Agustin C. Doroga, all registered voters, filed a petition for quo warranto with respondent HRET against Aangat Tayo and its nominee, petitioner Abayon, in HRET Case 07-041. They claimed that Aangat Tayo was not eligible for a party-list seat in the House of

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Representatives, since it did not represent the marginalized and underrepresented sectors.

Respondent Lucaban and the others with him further pointed out that petitioner Abayon herself was not qualified to sit in the House as a party-list nominee since she did not belong to the marginalized and underrepresented sectors, she being the wife of an incumbent congressional district representative. She moreover lost her bid as party-list representative of the party-list organization called An Waray in the immediately preceding elections of May 10, 2004.

Petitioner Abayon countered that the Commission on Elections (COMELEC) had already confirmed the status of Aangat Tayo as a national multi-sectoral party-list organization representing the workers, women, youth, urban poor, and elderly and that she belonged to the women sector. Abayon also claimed that although she was the second nominee of An Waray party-list organization during the 2004 elections, she could not be regarded as having lost a bid for an elective office.

Finally, petitioner Abayon pointed out that respondent HRET had no jurisdiction over the petition for quo warranto since respondent Lucaban and the others with him collaterally attacked the registration of Aangat Tayo as a party-list organization, a matter that fell within the jurisdiction of the COMELEC. It was Aangat Tayo that was taking a seat in the House of Representatives, and not Abayon who was just its nominee. All questions involving her eligibility as first nominee, said Abayon, were internal concerns of Aangat Tayo.

On July 16, 2009 respondent HRET issued an order, dismissing the petition as against Aangat Tayo but upholding its jurisdiction over the qualifications of petitioner Abayon. The latter moved for reconsideration but the HRET denied the same on September 17, 2009, prompting Abayon to file the present petition for special civil action of certiorari.

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In G.R. 189506, petitioner Jovito S. Palparan, Jr. is the first nominee of the Bantay party-list group that won a seat in the 2007 elections for the members of the House of Representatives. Respondents Reynaldo Lesaca, Jr., Cristina Palabay, Renato M. Reyes, Jr., Erlinda Cadapan, Antonio Flores, and Joselito Ustarez are members of some other party-list groups.

Shortly after the elections, respondent Lesaca and the others with him filed with respondent HRET a petition forquo warranto against Bantay and its nominee, petitioner Palparan, in HRET Case 07-040. Lesaca and the others alleged that Palparan was ineligible to sit in the House of Representatives as party-list nominee because he did not belong to the marginalized and underrepresented sectors that Bantay represented, namely, the victims of communist rebels, Civilian Armed Forces Geographical Units (CAFGUs), former rebels, and security guards. Lesaca and the others said that Palparan committed gross human rights violations against marginalized and underrepresented sectors and organizations.

Petitioner Palparan countered that the HRET had no jurisdiction over his person since it was actually the party-list Bantay, not he, that was elected to and assumed membership in the House of Representatives. Palparan claimed that he was just Bantay’s nominee. Consequently, any question involving his eligibility as first nominee was an internal concern of Bantay. Such question must be brought, he said, before that party-list group, not before the HRET.

On July 23, 2009 respondent HRET issued an order dismissing the petition against Bantay for the reason that the issue of the ineligibility or qualification of the party-list group fell within the jurisdiction of the COMELEC pursuant to the Party-List System Act. HRET, however, defended its jurisdiction over the question of petitioner Palparan’s qualifications. Palparan moved for reconsideration but the HRET denied it by a resolution dated September 10, 2009, hence, the

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recourse to this Court through this petition for special civil action of certiorari and prohibition.

Since the two cases raise a common issue, the Court has caused their consolidation.

The Issue Presented

The common issue presented in these two cases is:

Whether or not respondent HRET has jurisdiction over the question of qualifications of petitioners Abayon and Palparan as nominees of Aangat Tayo and Bantay party-list organizations, respectively, who took the seats at the House of Representatives that such organizations won in the 2007 elections.

The Court’s Ruling

Petitioners Abayon and Palparan have a common theory: Republic Act (R.A.) 7941, the Party-List System Act, vests in the COMELEC the authority to determine which parties or organizations have the qualifications to seek party-list seats in the House of Representatives during the elections. Indeed, the HRET dismissed the petitions for quo warranto filed with it insofar as they sought the disqualifications of Aangat Tayo and Bantay. Since petitioners Abayon and Palparan were not elected into office but were chosen by their respective organizations under their internal rules, the HRET has no jurisdiction to inquire into and adjudicate their qualifications as nominees.

If at all, says petitioner Abayon, such authority belongs to the COMELEC which already upheld her qualification as nominee of Aangat Tayo for the women sector. For Palparan, Bantay’s personality is so inseparable and intertwined with his own person as its nominee so that the HRET cannot dismiss the quo warranto action against Bantay without dismissing the action against him.

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But, although it is the party-list organization that is voted for in the elections, it is not the organization that sits as and becomes a member of the House of Representatives. Section 5, Article VI of the Constitution, identifies who the "members" of that House are:

Sec. 5. (1). The House of Representatives shall be composed of not more than two hundred and fifty members, unless otherwise fixed by law, who shall be elected from legislative districts apportioned among the provinces, cities, and the Metropolitan Manila area in accordance with the number of their respective inhabitants, and on the basis of a uniform and progressive ratio, and those who, as provided by law, shall be elected through a party-list system of registered national, regional, and sectoral parties or organizations. (Underscoring supplied)

Clearly, the members of the House of Representatives are of two kinds: "members x x x who shall be elected from legislative districts" and "those who x x x shall be elected through a party-list system of registered national, regional, and sectoral parties or organizations." This means that, from the Constitution’s point of view, it is the party-list representatives who are "elected" into office, not their parties or organizations. These representatives are elected, however, through that peculiar party-list system that the Constitution authorized and that Congress by law established where the voters cast their votes for the organizations or parties to which such party-list representatives belong.

Once elected, both the district representatives and the party-list representatives are treated in like manner. They have the same deliberative rights, salaries, and emoluments. They can participate in the making of laws that will directly benefit their legislative districts or sectors. They are also subject to the same term limitation of three years for a maximum of three consecutive terms.

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It may not be amiss to point out that the Party-List System Act itself recognizes party-list nominees as "members of the House of Representatives," thus:

Sec. 2. Declaration of Policy. - The State shall promote proportional representation in the election of representatives to the House of Representatives through a party-list system of registered national, regional and sectoral parties or organizations or coalitions thereof, which will enable Filipino citizens belonging to the marginalized and underrepresented sectors, organizations and parties, and who lack well-defined political constituencies but who could contribute to the formulation and enactment of appropriate legislation that will benefit the nation as a whole, to become members of the House of Representatives. Towards this end, the State shall develop and guarantee a full, free and open party system in order to attain the broadest possible representation of party, sectoral or group interests in the House of Representatives by enhancing their chances to compete for and win seats in the legislature, and shall provide the simplest scheme possible. (Underscoring supplied)

As this Court also held in Bantay Republic Act or BA-RA 7941 v. Commission on Elections, a party-list representative is in every sense "an elected member of the House of Representatives." Although the vote cast in a party-list election is a vote for a party, such vote, in the end, would be a vote for its nominees, who, in appropriate cases, would eventually sit in the House of Representatives.

Both the Constitution and the Party-List System Act set the qualifications and grounds for disqualification of party-list nominees. Section 9 of R.A. 7941, echoing the Constitution, states:

Sec. 9. Qualification of Party-List Nominees. – No person shall be nominated as party-list representative unless he is a natural-born citizen of the Philippines, a registered voter, a resident of the Philippines for a period of not less than one (1) year immediately

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preceding the day of the election, able to read and write, bona fide member of the party or organization which he seeks to represent for at least ninety (90) days preceding the day of the election, and is at least twenty-five (25) years of age on the day of the election.1avvphi1

In case of a nominee of the youth sector, he must at least be twenty-five (25) but not more than thirty (30) years of age on the day of the election. Any youth sectoral representative who attains the age of thirty (30) during his term shall be allowed to continue until the expiration of his term.

In the cases before the Court, those who challenged the qualifications of petitioners Abayon and Palparan claim that the two do not belong to the marginalized and underrepresented sectors that they ought to represent. The Party-List System Act provides that a nominee must be a "bona fide member of the party or organization which he seeks to represent."

It is for the HRET to interpret the meaning of this particular qualification of a nominee—the need for him or her to be a bona fide member or a representative of his party-list organization—in the context of the facts that characterize petitioners Abayon and Palparan’s relation to Aangat Tayo and Bantay, respectively, and the marginalized and underrepresented interests that they presumably embody.

Petitioners Abayon and Palparan of course point out that the authority to determine the qualifications of a party-list nominee belongs to the party or organization that nominated him. This is true, initially. The right to examine the fitness of aspiring nominees and, eventually, to choose five from among them after all belongs to the party or organization that nominates them. But where an allegation is made that the party or organization had chosen and allowed a disqualified nominee to become its party-list representative in the

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lower House and enjoy the secured tenure that goes with the position, the resolution of the dispute is taken out of its hand.

Parenthetically, although the Party-List System Act does not so state, the COMELEC seems to believe, when it resolved the challenge to petitioner Abayon, that it has the power to do so as an incident of its authority to approve the registration of party-list organizations. But the Court need not resolve this question since it is not raised here and has not been argued by the parties.

What is inevitable is that Section 17, Article VI of the Constitution provides that the HRET shall be the sole judge of all contests relating to, among other things, the qualifications of the members of the House of Representatives. Since, as pointed out above, party-list nominees are "elected members" of the House of Representatives no less than the district representatives are, the HRET has jurisdiction to hear and pass upon their qualifications. By analogy with the cases of district representatives, once the party or organization of the party-list nominee has been proclaimed and the nominee has taken his oath and assumed office as member of the House of Representatives, the COMELEC’s jurisdiction over election contests relating to his qualifications ends and the HRET’s own jurisdiction begins.

The Court holds that respondent HRET did not gravely abuse its discretion when it dismissed the petitions for quo warranto against Aangat Tayo party-list and Bantay party-list but upheld its jurisdiction over the question of the qualifications of petitioners Abayon and Palparan.

WHEREFORE, the Court DISMISSES the consolidated petitions and AFFIRMS the Order dated July 16, 2009 and Resolution 09-183 dated September 17, 2009 in HRET Case 07-041 of the House of Representatives Electoral Tribunal as well as its Order dated July 23,

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2009 and Resolution 09-178 dated September 10, 2009 in HRET Case 07-040.

SO ORDERED.